Judge Orders Jury Trial in Rossi et al v. Darden et al Starting June 26, 2017

Thanks to Ged for posting about this. This is the latest entry on the court docket for Rossi et al v. Darden et al:

ORDER Setting Trial and Pretrial Schedule, Requiring Mediation, and Referring Certain Matters to Magistrate Judge John J. O’Sullivan: Jury Trial set for period of 6/26/2017 in Miami Division before Judge Cecilia M. Altonaga. Calendar Call set for 6/20/2017 09:00 AM in Miami Division before Judge Cecilia M. Altonaga. Motions to amend pleadings or join parties due by 8/11/2016. All discovery due by 2/27/2017. Proposed order scheduling mediation due by 7/21/2016. Mediation Deadline 3/13/2017. In Limine Motions due by 4/18/2017. All pretrial motions due by 3/21/2017. Pretrial Stipulation due by 4/18/2017. Signed by Judge Cecilia M. Altonaga on 6/30/2016. (ps1)

Since this is signed by Judge Cecilia M. Altonaga, it seems like she has definitively ruled against the motion to dismiss that was filed by Industrial Heat et al., and she has agreed to a Jury Trial in the case, which is what Andrea Rossi asked for.

The date of June 26, 2017 is a bit earlier than the date of September 17th 2017 that was agreed upon by the attorneys for the two parties in the documents from the previous post on this topic. There’s a lot that can happen between now and next June. Perhaps there will be more public knowledge about the capabilities of the E-Cat by that time. The ruling says that Mediation is required before a magistrate judge, which indicates that Judge Altonaga is hoping they can settle before the trial starts. If not, the wheels have been set in motion for the highest profile court case in the history of cold fusion.

  • Ged

    This is a significant first step win for Rossi in his case. The MTD is denied, and even more, the Judge has seen enough merit in what Rossi has presented, both in what we can view and what is privacy locked by the Court (such as the ERV), to hand Rossi his trial by jury (if matters aren’t resolved first by the court ordered mediation).

    It’s interesting that some “certain matters” are being referred back to Judge O’Sullivan who was originally pegged to be the Judge overseeing the case.

    • Mats002

      I hope this encourage more experiments by more experimenters.

      Experimenters that need funding, need arguments for the chance of a positive outcome.

      He sued them (not the other way around), they tried to dismiss, but their arguments where too thin.

      No smoke without fire.

    • Gerald

      Indeed a first win. Next year Rossi time on holyday instead of le tour france. But if I was big money and Rossi is right and I would give him those 89M. Rather give him something and think a nice story with it then going to trial.

  • Ged

    This is a significant first step win for Rossi in his case. The MTD is denied, and even more, the Judge has seen enough merit in what Rossi has presented–both in what we can view and what is privacy locked by the Court (such as the ERV report)–to hand Rossi his trial by jury (if matters aren’t resolved first by the court ordered mediation).

    It’s interesting that some “certain matters” are being referred back to Judge O’Sullivan who was originally pegged to be the Judge overseeing the case. [Edit: Could be the “certain matters” are the mediation]

    • Mats002

      I hope this encourage more experiments by more experimenters.

      Experimenters that need funding, need arguments for the chance of a positive outcome.

      He sued them (not the other way around), they tried to dismiss, but their arguments where too thin.

      No smoke without fire.

    • Gerald

      Indeed a first win. Next year Rossi time on holyday instead of le tour france. But if I was big money and Rossi is right and I would give him those 89M. Rather give him something and think a nice story with it then going to trial.

    • Turbo3

      The Judge has not yet ruled on the Motion to Dismiss. That is yet to come.

      No wins for anyone yet.

      • Ged

        With respect, the fact the Judge sent the case to trial and thus the case is proceeding as normal means the MTD has been denied. Check out this nice description of what a Motion to Dismiss really is (an objection to procedural matters) and how they work: http://injury.findlaw.com/accident-injury-law/resolving-your-case-before-trial-court-motions.html

        If one looks at the MTD filed by IH, it obviously fails.They went the “Failure to State a Claim” route, which deals with the plaintiff not actually making a claim of a legal wrongdoing having taken place (such as the failure to say “Hello” to someone in the morning; there is nothing legally wrong with that, so a lawsuit would be dismissed by an MTD focused on failure to state a claim as no actual legal claim has been made). Rossi’s filing on the other hand claims obvious harm done and a legal wronging (failure to pay 89 million and breaching contract obligations).

      • Roger Roger

        Hey, look who’s here! a lenr-forum downvote machine!

  • help_lenr

    I would not make any conclusions about the MTD decisions. The documents regarding the MTD were delivered on the last days of June and the judge might consider the MTD for a few days at least after that time before making decision, (therefore – the decision regarding MTD is not expected before 10 July).

    The procedural decisions published now might be routine (not depend on MTD results).

    • Bear1145

      The judge would not have set a calendar date for a jury trail nor would she have assigned mediation to a lower court if she thought she the slightest posibility of excepting the MTD.

  • Rocco for Rossi

    Here is my prediction.

    Rossi will settle with IH before the trial. Part of the settlement will be that the terms of the settlement will remain private and not released. This will include the amount of the settlement and the ERV report. Also, IH will give up claim to the licenses that Rossi unilaterally revoked. Rossi will celebrate this as a big victory, but a year will have passed with still no confirmation of the 1MW Ecat. The QuarkX will not be available either, but a promising new product will be on the horizon.

    • SG

      I predict that precisely the opposite of everything you said will occur.

    • help_lenr

      Not reasonable.

      Rossi worked very hard for the public recognition of the success of the annual test. That’s why he accepted a long test. Hiding the excellent results of the test will be interpreted by most people as a failure and will damage his sales for many years. Even if Rossi gets 89 millions dollars (for hiding his success) the damage for his reputation will be too much. He will have to retire. I don’t expect him to be so fool.

      Looks like you are convinced by the lies of skeptics which say that Rossi never supplies actual products. These are lies because he does supply products although slowly. You expect that these lies will be proved, therefore you expect him to confirm these lies by accepting a lousy agreement. Rossi will accept the lousy agreement which you suggest only if he wants to retire, I don’t think that he wants to retire now. Maybe he will retire 5 years from now because of being too old to continue the fight.

      Rossi cannot supply products as fast as big corporation since to supply his products fast he needs much money (Much money is needed to hire many workers, to make mass production, to give after-sale service). Big corporations succeed not because they have good products but because they have enough money to run their business.

      • LookMoo

        IF Mr. Rossi have one or two eCat factories with some kind of output this time next year IH does not have a case.

  • Fedir Mykhaylov

    It would be much more interesting to read about LENR successes in the energy sector rather than in the courts

  • LION

    This is fantastic NEWS,well done Rossi, -( the wheels have been set in motion for the highest profile court case in the history of cold fusion). So will IH Pay up or will one of them at least go to Prison, and how will all this play out for Woodford?

  • LION

    This is fantastic NEWS,well done Rossi, -( the wheels have been set in motion for the highest profile court case in the history of cold fusion). So will IH Pay up or will one of them at least go to Prison, and how will all this play out for Woodford?

    • MorganMck

      This is a Civil case. Nobody is going to prison based on its outcome. Only monetary compensation is sought.

      • DrD

        Couldn’t that follow though? If pergury or intent to defraud is uncovered.

        • cashmemorz

          Just more money as penalties for being nasty. Western society, at least in the legal system has grown up in terms of discerning what is harm in physical terms as opposed to monetary or potential fiscal harm. The former is corporeal the latter is imagined. Blood is thicker than paper. Try cutting yourself than try cutting a dollar bill. Which is closer to the bone?

          • DrD

            Not so and system age doesn’t enter into. If serious fraud really was present then it’s a criminal matter and some one risks a sentence. At least that’s how it works here and I think the US is similar. My own daughter was defrauded last year. The culprit received a jail sentence as a result of a criminal prosecution and that was for less than £6,000. It’s up to the public prosecutor whether to pursue or not.

          • MorganMck

            DrD: But the jail sentence did not come down from any civil litigation, it couldn’t have. By definition, none of the parties to civil litigation are the government and criminal matters always have the government as the complainant. There would have to be a separate criminal action from the current trial.

          • cashmemorz

            It just seems that the higher one is in society then the less of a penalty is given. The 2008 financial below prime lending ended with few upper crusts in jail.

        • MorganMck

          One of the parties would have to prefer a criminal complaint or it could be done independently by a law enforcement agency or directly by the DA. This case is only concerned with the civil remedy arising from Leonardo’s claims. Anything criminal would have to be the result of a separate action.

  • SG

    I predict that precisely the opposite of everything you said will occur.

  • This seems to indicate that the Motion to Dismiss has failed. But is that a valid assumption? I’m thinking maybe not and that a specific decision on the MTD awaits.

    Can any legally trained folks shed some light on what this activity means for the MTD?

    • Ged

      If an MTD is dismissed, it just means the process continues as normal. The Judge has proceeded, so the MTD, at least in the sense of its challenge to the whole lawsuit (could still take out some of the subparts?), is discarded.

      It’s no surprise, the MTD fails on its face as Rossi clearly states a legal claim, and the MTD IH posted was a procedural challenge that no legal claim was made, nothing more. Put another way, the MTD is simply a challenge that there is no legal issue in the first place to even bring before the court–that the court has nothing to even rule on so why proceed?

      If the Judge ruled in favor of the MTD, it would have been a summary ruling and the process would have stopped before being signed to head to trial.

      Note that I don’t know if some of the subclauses could still be challenged, but the main lawsuit is moving forward so the MTD didn’t work. Again, no surprise, as 89 million in failed payment and a contract violation is indeed a legal issue.

      • Planning for the process just in case the trial continues is also a possibility and may be standard operating procedure. Need a lawyer to chime in.

        • Ged

          I really don’t think so, as an MTD is meant to stop the process in its tracks where it is by saying there’s no facts in dispute so literally no need or purpose for a count, and this is the conclusion all my reading on the matter comes to. But hopefully the legal experts around here will chime in and clarify. The Judge certainly had plenty of time to deliberate on all of this before assigning the case to trial, and mediation, and moving the trial date up by a few months compared to the requested time.

          • I wonder how much power the mediator has. Wouldn’t it be great if the mediator could just say let’s see if it works — we convene next Monday at the plant facility in Doral; the court will provide 3 expert witnesses to take measurements.

          • Ged

            I think it’s like a marriage counselor? Basically, seeing if the issues between the two parties can be worked out between them before going to court so Court resources and time don’t have to be used. It would be cool if they could ask to see it work, but I don’t think that is their role, but more like just there to sit down with both groups and help them talk to each other and sort out differences?

            I really wonder what O’Sulliven and the certain matters are doing in all this though, unless that is the mediation.

          • Interesting:
            “Mediators may have express or implied powers to direct parties to produce documents, reports and other material. In court-referred mediations parties usually exchange with each other all material which would be available through discovery or disclosure rules were the matter to proceed to hearing, including witness statements, valuations and statement accounts.”

            Wikipedia.

          • Ged

            Well then, that is much better than I had hoped and far more along your lines of expectation. That would be really awesome if they can indeed force a demonstration.

          • clovis ray

            hi, Ged, one thing i have been taught, is never ever think you will force Dr.R to do anything, If you ask correctly, and it’s within his capabilities,he will respond, but if you
            (not you) are calling him a fraud to his face, don’t expect anything,,, good,

          • DrD

            My concern is the unlikelihood of finding truly unbiased experts given the degree of polarisation in the science/engineering community over cold fusion

          • cashmemorz

            If bias is revealed/indicated by witnesses/experts or suspected/detected by magistrate/judge or Rossi’s lawyers, this might be good for the LENR/cold fusion field. Depending on the objectivity or involvement of the sitting judge regarding what she has been led to see by TPTB.

  • LuFong

    I agree. I think the ERV report is being used as bargaining chip by IH as the information in it will not reflect well on Rossi. I think this whole affair is as embarrassing to IH as it is to Rossi. IH is trying to peddle LENR and they got caught up in a scam. Would you invest money with them? IH just wants to get as much of their money back and disassociate with Rossi. Legally I believe they have rights to the E-Cat (and all its derivatives like the QuarkX) and for say $11.5M they would gladly give it back. Of course if IH is real greedy and Rossi manages to sell rights to IH territory they would probably go after that. Isn’t greed wonderful?

    • Ged

      I certainly have to disagree with everything you said there. The ERV report, if it actually reflected well for IH, would have been released long ago. It’s IH’s person after all, and plant. I think you’ve been taken in completely by unsubstantiated, and conflicting, narratives from Weaver and Jed. Not only do they not agree with eachother, Mats’ sources disagree with them too, as does IH’s behavior and the current progress and actions of the Court. There is no evidence to back up the view you posted here.

      Additionally, we only have knowledge of Rossi trying to give back the 11.5 million long before the test was over after IH appeared to drop the ball on their obligations to help secure a site. We have no evidence what so ever that IH has tried to ask for the 11.5 million back, and you have been too easily taken in by a random, combative forum poster who claimed to be an IH shareholder–even if he were, that means he isn’t involved with IH itself, just invested money in it and has no knowledge of the real events.

      Seriously, present evidence for what has been posted, as it all looks like FUD being stated with far too much certitude. We simply know nothing about IH’s views except all the praises Tom Darden and co were singing up to just a few months prior to the lawsuit (payment time for the 89 million they signed a contract for–a very favorable to them contract), while they were getting updates on performance from the ERV and their own team of people there in person.

      • LuFong

        I always respect your views GED but as is the case now about Rossi I don’t necessarily agree with them.

        I do not discount Dewey Weaver’s or Jed’s statements even though I recognize mistakes and posturing in them. Like Rossi’s statements I think there are elements of truth. I believe Dewey Weaver’s company has invested in IPH (legal documents) so I believe he is an IH shareholder at some level and he has some knowledge of IH’s experience with Rossi. I believe Jed has seen some of the ERV report but cannot admit to it because that might cause legal issues so he back tracks and refers to Lewan’s interview with Rossi. I believe IH in this case is all about their reputation and investments and to some extent their larger goals of determining the potential for LENR in dealing with our energy issues. I do not hold IH in high regard.

        The problem is there is no real evidence and we have to rely on bits and pieces of hearsay and facts to try to piece together a plausible story. I think being close to this story for 5+ years has clouded the objectivity of most here. Instead I would challenge you to find someone of reasonable intelligence who knows nothing about this and explain to them this story and see where they stand. I think you would have a hard time convincing them and more likely their opinion would mirror mine. At best they would say they can’t really tell.

        • TL;DR: Everybody thinks they’re right, but I’m actually the one who’s right.

          • Ged

            Basically! The joy of discussing views on a very murky and even intentionally obfuscated matter.

          • I hope somebody is right.

            Would suck if we all got it wrong.

        • Ged

          That is absolutely true. And while I challenge the views you may list, as I see them coming from questionable sources (and I don’t believe for a second Jed has seen even a part of the ERV, not that a part of a report is correct to look at and judge alone), I still respect your opinion.

          Actually, as to your last statement, I have had to do that before when people became curious, and you’d be surprised at how supportive they can be of Rossi’s position in all this. I have yet to find a layperson who mirrors the opinion you listed here. Mostly though, people don’t have the personal time to invest in this if they aren’t intrinsically interested as we all here are; so I haven’t found anyone who really gives it much thought. It doesn’t impact anyone’s lives yet, outside this little circle we’ve got.

          • Yeah, it’s a very complicated story; tough to communicate all the nuances to someone who hasn’t been following it.

          • DrD

            Couldn’t that follow though? If pergury or intent to defraud is uncovered.

          • cashmemorz

            Just more money as penalties for being nasty. Western society, at least in the legal system has grown up in terms of discerning what is harm in physical terms as opposed to monetary or potential fiscal harm. The former is corporeal the latter is imagined. Blood is thicker than paper. Try cutting yourself than try cutting a dollar bill. Which is closer to the bone?

          • DrD

            Not so and system age doesn’t enter into. If serious fraud really was present then it’s a criminal matter and some one risks a sentence. At least that’s how it works here and I think the US is similar. My own daughter was defrauded last year. The culprit received a jail sentence as a result of a criminal prosecution and that was for less than £6,000. It’s up to the public prosecutor whether to pursue or not.

          • cashmemorz

            It just seems that the higher one is in society then the less of a penalty is given. The 2008 financial below prime lending ended with few upper crusts in jail.

  • Roger Roger

    Hey, look who’s here! a lenr-forum downvote machine!

  • Anon2012_2014

    Anybody seen the Answer from IH — wasn’t it due?

  • Anon2012_2014

    Anybody seen the Answer from IH — wasn’t it due?

  • Turbo3

    The Judge has not yet ruled on the Motion to Dismiss. All that has happened is both sides have agreed that a magistrate can handle any Discovery disputes, a magistrate has been assigned and various dates for activities have been set and put on the calendar. The assignment of a magistrate just reduces the workload on the Judge.

    Other then the MTD ruling the next event is “Proposed order scheduling mediation due by 7/21/2016”

  • Engineer48

    Noted:
    Referring Certain Matters to Magistrate Judge John J. O’Sullivan

    One wonders what “certain matters” are being referred to Judge O’Sullivan?

    http://fba-sdfla.org/wp-content/uploads/2014/07/profile-osullivan-octnov14.pdf.pdf

  • Engineer48

    Noted:
    Referring Certain Matters to Magistrate Judge John J. O’Sullivan

    One wonders what “certain matters” are being referred to Judge O’Sullivan?

    http://fba-sdfla.org/wp-content/uploads/2014/07/profile-osullivan-octnov14.pdf.pdf

    • Turbo3

      No need to wonder. What Magistrate Judge John J. O’Sullivan can handle is specified in the document IH and Rossi’s lawyer’s signed. Which is only Discovery disputes. That is it. Nothing else was agreed to.

  • Bob Greenyer

    Bob Higgins open sources affordable corona discharge Neutron detection system.

    HUGE THANKYOU FOR THIS EFFORT BY BOB HIGGINS

    For links to the paper, to ask questions and read more information go to our main blog here: http://goo.gl/zdWv28

    • Rene

      I love the stylish neutron thermalizer. It reminds me of the Mr. Fusion unit in the movie _Back to the Future_.

  • Bob Greenyer

    Bob Higgins open sources affordable corona discharge Neutron detection system.

    HUGE THANKYOU FOR THIS EFFORT BY BOB HIGGINS

    For links to the paper, to ask questions and read more information go to our main blog here:

    http://goo.gl/zdWv28

    • Rene

      I love the stylish neutron thermalizer. It reminds me of the Mr. Fusion unit in the movie _Back to the Future_.

  • Keith McClary

    Do the discovery documents become public when they are filed with the court?