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:
RvD: Study of 207:IH Statement of material fact supporting MSJ
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
03/22/2017 0203.0_IH_Motion_for_Summary_Judgment
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 Rossi and Leonardo
03/23/2016 0214.0_Rossi_Motion_for_Partial_Summary_Judgment w/SOMF and 42 exhibits
04/04/2017 0236.0_IH_Opp_to_SOMF_214_Rossi MSJ
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
Two lacunae:
The Wong Report gives an estimate supporting Rossi’s figures which is however 10X larger than the correct value – easily determined. The correct value makes it quite clear that even if the heat exchanger existed it could not dissipate even 100kW. See LF. https://www.lenr-forum.com/forum/thread/4745-rossi-vs-darden-developments-part-2/?postID=54925#post54925
That has no relevance,, as far as I can see, for the MSJ. It might be important at some later date depending on how things go – there is quite strong evidence that no heat exchanger existed.
The crucial IH Spoliation motion is still in play, due to go before the Magistrate 20/4:
https://www.lenr-forum.com/forum/thread/4745-rossi-vs-darden-developments-part-2/?postID=54962#post54962
I’d expect LF guest here to be reliable. Perhaps the date is somewhere in the case files?
And the most recent Order 246, shows Altonega somewhat annoyed (it seems to me) at Rossi’s attorney’s repeating material already seen in an attempt to get sanctions for IPH unhelpful deposition rather than her remedy of a new deposition. Commenting on how to change her ruling it would be necessary to make a significant legal argument and this was not done.
The Motions to Strike or Exclude are not important for the MSJs, that’s true. But this is a blog post and I can toss in the kitchen sink if I want. Yes, I think spoliation will be coming up. Yes, Altonaga seemed annoyed, and that could have been expected. I know the case cited and it did not resemble this case; there, the failure was not remediable. The insurance company got shafted by their policy-holder, who refused to testify (as required by the subrogation clause in the policy), but, bottom line, their cause of action was then against their policy-holder for violating the contract; the insurance company could get their costs back. In theory. The decision was made by the Magistrate, and was strong enough. I didn’t agree with it, but maybe there were arguments or facts presented in the hearing. So IH pays for another deposition. Big deal. One attorney for 7 hours and reporter costs. Looking at what they spent, chicken feed. And Rossi’s attorney ends up looking like an idiot, for not leaving well enough alone. Cheap at twice the price.
As to LF Guest, yeah, he was reliable, because he cited a Weliable Source, a certain blog, which, if it is Wong, corrects the problem ASAP. Honestly, though, I keep finding errors in the Docket page, makes me wonder how many are actually using it. A few, obviously. The more eyeballs, the better, if they are willing to drop a comment. They could even be from Planet Wossi.
(Guest cited our copy of 0232.0, the relevant hearing notice. By the way, I did not think that spoliation was a discovery issue, nor would witness tampering be. But Rossi mixed up the alleged witness tampering with a request to pierce attorney-client privilege, and that was a discovery issue. But if she says it’s a magistrate issue, she da boss.)