Motions for Summary Judgment are handled by Federal Rule 56.
While it can be fun to express opinions, simple or complex, without study, just because we can (especially if we admin the blog) it is much more fun, long-term, to Know WTF one is talking about. Capiche?
Hence, when the Parties went wild March 22 with Motions, I realized that to study these motions would be haphazard at best, unless tools were created …
I have compiled a neutral study tool, one of a number to be put together:
This has anchors at each paragraph that can be used to quickly reference it. (The IH MSJ references these paragraphs.) It also has links to specific pages of evidence, which then can facilitate putting together all the evidence (at least from the IH side) for a particular point.
The basis for a Motion for Summary Judgment is a Statement of Material Facts (SOMF). While defects in the pleadings can be remedied, to be used in an MSJ evidence, per Rule 56, must be attested, including what has previously merely been, say, exhibits, without attestation under penalty of perjury, hence a lot of material is being put up that we already saw, but now, supposedly, with affirmations, such as the lovely 0207.23_Exhibit_23, a declaration “by John T. Vaughn (Vice President of Industrial Heat) authenticating certain exhibits to this statement of material facts.”
The link there is to paragraph 107 of the IH SOMF, and Rossi has accepted that paragraph, so…. mysteries abound. I’m suspecting some clerical glitch, because Rossi would have received that SOMF, like all pleadings and motions, directly from IH.
My plan is to go over each alleged material fact, addressing them narrowly and very specifically, instead of as some overall impression, which is what we tend to do.
Then the actual Motions can be examined, and the application of law considered. The judge apparently has some discretion in resolving apparent contradictions. A ruling for Summary Judgment does not need absolute proof, as I read the rule, but rather an assessment by the Judge that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Much apparent contradictory testimony in the case is a conflict between opinions about facts, what they allegedly mean. Industrial Heat claims they were not able to confirm Rossi’s claims, and has sometimes expressed this as not finding any excess heat. So Rossi shows that some Industrial Heat tests measured excess heat. Of course, appears to have later concluded that the measurements were misleading. There is not necessarily any conflict in fact, but in implications and meanings.
We have these Motions for Summary Judgment pending, with accessory filings and oppositions:
By Darden, Vaughn, IH, IPH and Cherokee
03/23/2017 0207.0_Defendants_support_of_MSJ (“Statement of Material Facts”) with 75 exhibits
04/04/2017 0238.0_Rossi_Resp_to_203_207_IH_ MSJ w 29 exhibits
04/05/2017 0243.0 _3pDef_Opposition_to_IH_MSJ with 15 exhibits
By Third Party Defendants JMP, Johnson, USQL, Fabiani and Bass
04/05/2017 0242.0_3pDef_Motion_for_Summary_Judgment (Partial w/SOMF)
This was late; the original had been filed with a request for seal, which was denied (209), and the original filing (204) was deleted by the clerk; the 3p defendants requested leave to file late, this was not opposed by IH, and permission was granted. IH already had their answer ready — since they had received the to-be-sealed version when first filed.
04/05/2017 244_IH_Opp_to_3pDef_MSJ D.E. 242
04/05/2017 0245.0 _IH_ Opp_ to 3rdP_Statement_of_Fact w 42 exhibits
There are also dueling Daubert Motions.
03/22/2017 0197.0_IH_Motion_to_exclude_Rossi_expert with three exhibits
3/30/2017 0233.0_Rossi_response_to_IH_Motion_to_Exclude Rossi expert Wong (DE 197) with 5 exhibits
04/06/2017 0248.0_IH_reply_Rossi_233_Opp_197 with 6 exhibits
03/23/2017 0215.0_Rossi_motion_to_strike expert testimony of Murray and Smith with six exhibits
04/03/2017 0235.0_IH_Opposition_to_Rossi_215 Motion to Strike and Exclude IH experts with 15 exhibits