The judge. Faced with three motions to dismiss, and not having the time to review all the claimed “undisputed facts,” she punted.
It took me months of study on this case to come to the point where I might be able to see through the fog. I never finished the study pages, though I may still work on them for historical value, but at this point it is moot. An appeal of a dismissed MSJ is not likely, and that it might even be possible is controversial.
The parties’ voluminous, competing briefing and submissions plainly show the record is brimming over with disputed issues of material fact. Indeed, the Court is hard-pressed to locate any material facts on which the parties agree. Disputed factual issues are for the jury to determine.
In reviewing the MSJs, Oppositions, and Replies, what I found, way too commonly, was fact, clear from the record, that was nevertheless “disputed,” ending up as a matter to be adjudicated, when the asserted fact in the Motion was not at all in dispute, but rather possible implications.
So far, I have only seen this arising in Rossi pleadings, but I have not thoroughly studied the other side yet. By these assertions of dispute, the appearance of “no-agreement” was amplified, and the judge is clearly irritated. Tentatively, I think her ruling was an error, because no process filtered out genuine agreement from faux disagreement. The structure and limitations she ordered (even against unanimous request from all the parties) may have made it difficult for parties to do this.
I’m interested in where process goes south. If the goal was to survive to trial, and to increase litigation costs, Rossi won here. The ultimate impact of that, we will not know until the jury announces its verdict, and even then, I’m seeing possible causes for appeal (at least if the result is adverse to Cherokee, to Darden and Vaughn personall, and possibly to Industrial Heat. This could drag on for a long time.
Meanwhile, Rossi is alleging perjury on the part of Darden, which I have seen no support for in the available documents, and review of certain Rossi claims in his depositions and affidavits indicates possible perjury to me. Rossi clearly, for example, established for IH that the “real customer” was Johnson Matthey, and then only revised this to an impression that JM was acting through JMP, all supported by Johnson, supported by evidence regarding Bass and Rossi emails. IH clearly believed that the customer who “needed” steam for “his” chemical plant was JM, many documents support this. Where did that come from? It’s obvious: Rossi told them.
They knew it that to tell Rossi he was lying would be to end the relationship, and they wanted to continue it until there was overwhelming evidence that — just what they claimed in their Answer — either Rossi had not communicated the necessary technology to them, or it was fake or mistaken, basically didn’t exist.
I think those Rossi emails, plus sworn testimony from others, establishes enough for a charge of perjury to stick. The matter of the “cancellation” of the Second Amendment is similar. Rossi knew, it was not a surprise, that IH would not consider itself bound to pay unless he satisfied them, either by helping them replicate (what they really wanted), or running a real GPT, which would obviously include allowing access to IH experts — as Rossi rejected, with Johnson in support, following Annesser — even if there were missing technical details. The Rossi spoliation, whether or not it results in exclusion of evidence, made it impossible for IH to verify the Test.
Rossi, attempting to avoid the obvious, presents many irrelevant “facts,” confusing the issue, and “disputes” what is not in dispute, thus leading to the Judge’s ruling.
What I don’t know is the extent to which IH may have done the like of this; all I can say at this point is that I haven’t seen it, while Rossi smokescreens have been highly visible. I see no sign that Altonaga actually reviewed the evidence enough to conclude what she concluded. She doesn’t claim to have done it, does not address the issue.
While this might be appealable, that does not appear cost-effective to me at this point, and could irritate the Judge, never a great idea. Going to trial may be simpler, and may be superior for public welfare.
When this is all done, Rossi may have a decent case for legal malpractice against Annesser. And maybe against Chaiken, who did some very weird things, deliberately and blatantly violating a protective order in a deposition. He wasn’t allowed to have that document — so did he lie when he said to the Magistrate that he’d kept no copy! (I’d need to look at dates.) (This is in the Darden deposition just after what I quoted on Lying liars redux. I think it was an attempt to intimidate the witness. The conversation there is amazing.)
I don’t know, yet, whether Jones Day could have presented their MSJ more effectively. Maybe, maybe not.
I now hope to meet — or at least see — the players at the end of June. If someone knows that the trial will be cancelled or might be postponed, please let me know! Otherwise I’ll be starting to spend money, not in plentiful supply around here.