Opposition To Plaintiffs’ Motion To Strike In Part Defendants’ Second Amended Answer, Affirmative [Sic.] Defenses, Counterclaims And Thirdparty Claims, Or In The Alternative, Motion For A More Definite Statement
Rossi’s Lawyer John Annesser (ex. Silver Law Group) now Litigation Counsel at Perlman, Bajandas, Yevoli & Albright, P.L. – PBY&A http://pbyalaw.com/
Darden et al ask the court to move for judgment on the pleadings as to Count I of the complaint!
“Pursuant to Federal Rule of Civil Procedure (“Rule”) 12(c), Industrial Heat, LLC (“IH”) and IPH International, B.V. (“IPH”) hereby move for judgment on the pleadings as to Count I of the complaint (“Complaint”) [D.E. 1] of Andrea Rossi (“Rossi”) and Leonardo Corporation (“Leonardo”) (collectively, “Plaintiffs”) based upon the allegations in the Complaint, the Amended Answer, Additional Defenses, Counterclaims and Third Party Claims (“AACT”) [D.E.30], and the exhibits attached to the Complaint and AACT.”
As already stated in the Motion to Dismiss Judgment the court will have to prove, if the “six-cylinder-unit is simply another name for the E-Cat Unit”, or if it is a different device.
This could be crucial for Rossi et.al, the question is if the six-cylinder-unit is in its core an E-Cat and will the court accept, that even if the device is looking completely different, the 1MW Container plant is suitable to meet the license conditions.
ECAT Core Lugano Test
1 MW ECAT Plant in Florida
ECAT Six-Cylinder-Uni, still in North Carolina
Fernando S. Aran on behalf of J.M. Products http://acg-law.com/about-us/fernando-s-aran/
D. Porpoise Evans on behalf of Leonardo Corporation, Andrea Rossi. http://pbyalaw.com/attorney/porpoise-evans/
Paul Dewey Turner on behalf of Leonardo Corporation, Andrea Rossi. http://pbyalaw.com/attorney/paul-turner/
Update 10.08.2016 – ANSWER AND ADDITIONAL DEFENSES
The Texas Hold’em Heads up between Thomas Darden and Andrea Rossi is in the final phase, the River card was uncovered Thomas Darden is gone all in, uncovering of all cards is imminent.
Again a very weak Jones Day defense; denying many allegations and delivering the disproof in own exhibits at the same time.
Update 21.07.2016 – Order by Judge Cecilia M. Altonaga
ORDER granting in part and denying in part17 Motion to Dismiss for Failure to State a Claim. Counts II, V, VII, and VIII are DISMISSED without prejudice. All other counts remain intact. Signed by Judge Cecilia M. Altonaga on 7/19/2016.
According to the analysis of http://www.e-catworld.com/2016/07/20/industrial-heats-motion-to-dismiss-denied-in-part-granted-in-part/
The district court has more or less simplified the complex case to make it judge-able by setting following premises:
1. The factual allegations of the Leonardo Corp./Rossi are accepted as true.
2. The Second Amendment is valid as it is.
3. The Case is now Leonardo Corp./Rossi vs. Cherokee Investment Partners, because Cherokee entirely owns and funds IH, one of its holding companies, IPH is a wholly owned subsidiary and holding entity of IH furthermore, Darden is the CEO of Cherokee and president of IH; and Vaughn is the manager of Cherokee and vice president of IH.
The intact counts compress the case to its core, the risk for Cherokee Investment Partners to lose the case is high, because they have obviously no facts (or hold them back), that stand against the factual allegations, that are accepted as true by the court. (Including an ERV approved E-Cat 1MW Reactor)
Count I: Breach of Contract (Non-Payment) Intact
Count III: Unjust Enrichment Intact
Count IV: Misappropriaton of Trade Secrets Intact
Count VI: Fraud and Deceit Intact
The dismissed counts are interesting to discuss, but from now on no longer part of the trial at court.
Count II: Breach of Contract (Exceeding Scope of License) Dismissed
Count V: Civil Conspiracy to Misappropriate Trade Secrets Dismissed
Count VII: Constructive and Equitable Fraud Dismissed
Count VIII: Patent Infringement Dismissed
Update 06.07.2016 – New Trial Schedule Signed by Judge Cecilia M. Altonaga
Update 01.07.2016 – As predicted Darden et.al Motion to Dismiss failed, Begin of 10 days trial period September 18, 2017
This is what happened before:
The Cherokee Investment Partners Jones Day attorney Christopher R.J. Pace and the new added Jones Day attorney Christopher M. Lomax , who focuses their practice on complex commercial litigation and white-collar criminal matters, are trying to force the rejection of the Leonardo Corp. lawsuit with a Motion to Dismiss and the threading of formal errors and matching precedents.
Update 17.06.2016 – Leonardo Corp. Answer to the Motion of Dismiss by John Annesser
Update 27.06.2016 – Darden et.al Reply to Response to Motion by Christopher R.J. Pace
IPHBV Holdings Ltd
IH HOLDINGS INTERNATIONAL LIMITED
The reassignment of the lawsuit as patent law case to the District Court Judge Cecilia Altonaga and her consulting of the economic crime specialist Magistrate John O’Sullivan, indicates that the court already has an initial suspicion towards economic crime and therefore the lawsuit will not be rejected on the basis of technicalities.
The informations that were gathered, after the lawsuit was send to the district court, especially the plagiarism of the Lugano Test Reports for one of the Industrial Heat LLC US patent application, and the connection of Cherokee/IH/IPHBV Holdings Ltd UK to NRG Energy (over the old owner of IPH International BV the European Generating S.A.R.L. a subsidiary of NRG Energy) indicates conspiratorial and planned action and that will certainly be investigated.
During the trial, IH must therefore remove all doubts and they will not succeed with the available data. The overall picture clearly shows the attempted theft of Andrea Rossi’s ECAT IP and unauthorized plagiarism of scientific texts and unapproved patent applications in Rossi’s name, and several findings of user in Mats Lewans Blog and by Siffercoll confirm the suspicion.
The strategy of Rossi lawyers will be to invalidate the by Christopher R.J. Pace demanded split of liability to every single defendant for alleged to Leonardo/Rossi impermissibly lump defendants together in several counts, which is possible if an initial suspicion of conspiratorial action by Cherokee/Darden and NRG Energy/CEO David W. Crane may be suspected.
The credibility of Cherokee and Thomas Darden plays a crucial role, therefore the in November 2015 settled enforcement action against Cherokee Investment Partners by the SEC are a bad light on Darden et.al and will play a role.
Additionally is the IH advocacy defense very weak and fault-bound:
One crucial argument in the DEFENDANTS’ MOTION TO DISMISS by Jones Day attorney Christopher R.J. Pace for not to pay the $89 Million is the argument, that the guarantied performance test, as agreed in §5 of the license agreement, was not performed in time and must have ended at least in October 2014.
The lawyer was right that there was such a more or less indicated ‘timeline’ in the original license agreement, but §5 was completely replaced in the second amendment, where no starting, or end-date is apparent, on the contrary, both parties (Rossi and Darden) commit themselves working cooperatively and result-oriented together by all means to successful carry out the 400-day trial.
Christopher R.J. Pace declares that this second amendment, signed by Andrea Rossi and Thomas Darden, is in complete invalid, because of a (for unknown reasons) missing signature of AmpEnergo Inc.(AEG), notwithstanding that it is more than obvious, that AEG has nothing to do with the monetary arrangements between Rossi and Darden, or the timetable (see License Agreement §5- as such time period may be extended by the Company in its sole discretion).
Andrea Rossi, CEO of Leonardo Corp. comments the dismiss document of Industrial Heat and the four major accusations, including the alleged delay of the test execution, in a short Q&A interview at Peter Glucks Blog:
1 -departing from the purported test plan,
“The test plan has respected precisely the protocol; signed in the agreement which has been also the same protocol of the first test made on April 30- May 2, 2013 in Ferrara”
Additionally having a look into the citations of the Darden et.al 2011 “Systems and methods for microgrid power generation and management” US patent 9225173 B2 makes it very implausible, that Industrial Heat/Thomas Darden could have been tricked by a simple fraud of measurement http://www.google.com/patents/US9225173#backward-citations
And it is unlikely and does not make sense that Andrea Rossi, having a US resident, ruins himself by commiting a crime by false accusations of fraud vs. Darden et.al, if he himself is acting fraudulently, because it would be very easy for the court to clarify this by checking the facts.
The Motion to Dismiss Paper by Jones Day attorney Christopher R.J. Pace appears as an attempt by superelevation of trivialities to distract from the attempted fraud and raises more questions than giving answers and therefore gives much more reason why there should be held a trial to investigate the case, than it does the opposite.
In the light of all this it is not likely that District Court Judge Cecilia Altonaga simply close the case on technicalities, so the prospects for Rossi and Leonardo Corp. are good.
First of all the attempted fraud is not sufficiently refuted, second, the arguments that the performance test was not accomplished within a specific time period seams to be wrong, third, the assertion, that the four other mayor arguments, ‘ignoring inoperable reactors, relying on flawed measurements, using unsuitable measuring devices, testing the wrong device’ are accurate and crucial for the fulfillment of the agreement, is more than questionable and forth, if the developing trial reveals everything, it is simply impossible to deny an attempted fraud conspiracy with the aim to steal the ECAT-IP of Rossi/Leonardo and it is then no longer important what kind of agreements are written in the license agreement and the two amendments, this will be invalidated, if the license agreement was part of the attempted fraud/theft.
Thus, the announcement of Leonardo Corporation that IH was revoked the license is basically just a formality.
Developing Storys at LENR FORUM:
Blog of Mats Lewan:
Let’s join forces to bring out the truth on Rossi-IH affair
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