Third Parties in Rossi v. IH Court Case File Joint Motion to Dismiss Counter Claims Against Them

The third parties in the Rossi v. Industrial Heat case have filed a joint Motion to Dismiss counterclaims III, IV and Vthat Industrial Heat have filed against them. These parties are J.M. Products, Inc., Henry Johnson, James A. Bass, United States Quantum Leap, LLC, and Fulvio Fabiani. These third parties have been accused by IH as participating with Andrea Rossi in fraudulent activites, deceptive and unfair trade practices, and, in the case of Fabiani, breach of a consulting agreement.

The document can be read here:

There’s not much new in the way of evidence presented, but arguments against IH’s allegations are presented. The main thrust is that Industrial Has failed to provide factual support for their allegations against the various third parties. Here are some examples:

IH fails to allege any facts that support its conclusion that JMP was not a manufacturing company, had no commercial use for the steam power generated by the Plant, and was created solely for as a ruse to induce IH to ship the Plant to Florida. (See ECF No. 50, ¶136.) Furthermore, the Term Sheet expressly contradicts IH’s claim, as it specifically states that JMP “operates a production facility in Miami, FL, which requires low temperature steam . . .

Counter-Plaintiffs allege that JMP’s role in the scheme magnified when JMP began sending “falsified invoices” to IH stating the amount of energy or steam JMP was purportedly receiving and using from the Plant during a given month. (ECF No. 50, ¶77.) CounterPlaintiffs’
allegations are belied by the Term Sheet and the face of the documents themselves. Pursuant to the Term Sheet, JMP was required to pay rent based upon the amount of energy it received from the Plant. Accordingly, JMP provided monthly reports with a breakdown of the energy received during a given month. Despite their burden to plead with specificity, CounterPlaintiffs offer no factual basis to support the allegation that JMP’s reports were falsified. . .

Counter-Plaintiffs allege that Leonardo, Rossi, JMP, Johnson, and Fabiani enlisted Bass to pretend to be the Director of Engineering of JMP and that Bass gave his business card representing himself as such. (ECF No. 50, ¶¶78-79.) Once again, the Counterclaims and Third Party Claims are devoid of any factual support for the allegation that Bass was not an employee of JMP and was not the Director of Engineering.

The IH countercomplaints surround their contention that there was no production taking place in the building adjacent to the 1 MW E-Cat plant, and there was no legitimate customer using excess energy produced by the plant — because there was no excess energy being produced by the plant, as Rossi contends. The two sides couldn’t be much further apart.

Fabio Penon, the ERV, is not included here as one of the third parties. From previous documents in the case it states that he has not yet been served notice that he is a defendant.

21 Replies to “Third Parties in Rossi v. IH Court Case File Joint Motion to Dismiss Counter Claims Against Them”

  1. They have a point. IH accused Fabiani, Johnson and JMP of fraud without anything to back it up but their own suspicions. I don’t know how much they have to back those up at this point in the proceedings, but if they must provide a factual basis for those accusations then they should get tossed, because they didn’t.

    1. IH actually hasn’t yet submitted their updated Response, with the clarification required in the last Order (document 67). So probably this Combined Motion will have to be submitted again once the clarification has been made.

      “d. Affirmative Defense 7 is STRICKEN in part. Defendants shall clarify
      Affirmative Defense 7 to specify the corporate entity alleged responsible
      for particular acts of fraudulent misrepresentation.”

        1. At this point, IH has shown a pile of cards, Rossi a very few in the original complaint and nothing more, and Johnson, Bass, and Fabiani none. I cannot draw conclusions from this, because the case is following what seems to be fairly normal procedure, and waiting to Answer until it is absolutely necessary is normal. After all, more time taken probably increases the cogency of what is filed. The only reason for a fast filing would be about public image, which would only matter, perhaps, for Rossi, except he also doesn’t seem to be in any rush. Nor should he be, unless he sees an advantage. I personally think his rush to file in the first place was an error, and has damaged him badly.

          1. The only think IH has “shown” is incompetence. And the only fact that has been proven made IH look like smacked asses. Bass does exist, doesn’t he? IH is accused of breach of contract, IH has accused people of fraud. Those people should be given the benefit of the doubt, not IH. You got it bass ackwards. Pun intended.

          2. I respectfully disagree. Rossi’s quick filing action is seen as the response of a rightfully slighted, indignant victim. The mistake many victims make is waiting too long to complain. This is made clear in cases of assault and sex related crimes that become more difficult to prove after lengthy periods of time have passed. Rossi is calm and cool because he is right.

    2. Factual basis is certainly shown in the IH pleading for Johnson. Fabiani is weaker, but they make at least one specific allegation that, if it can be shown, involves Fabiani in the fraud. I could make up a lot more based on what is public. The clear allegation is that Fabiani participated in the Bass game. In general, I would assert that he must have known what was going on, and he had an obligation to disclose what he knew. How specific IH must be at this point, I’m not sure, but Jones Day is expert at this and if something more must be supplied, there is more they could supply and I assume they will. Basically, from a review of the Second Amended Answer and a familiarity with the case, there is evidence for enough suspicion of fraud to make the claim and then require response in discovery, that is how I would see it.

      The point of requiring specific claims is so that defendants can respond. The claim is collusion or conspiracy in setting up a fraudulent sale of power, for obvious purpose. Johnson can defend by showing, in discovery, under penalty of perjury, testimony or evidence for a real chemical plant, actually connected with Johnson Matthey as he allegedly claimed. If the “Johnson Matthey” claim was fake, a joke, say, but the chemical plant was real, again, he could establish this. As to Bass, he could show evidence of employment and could testify as to his duties. The issue of secrecy has been resolved with the Protective Order.

      The case of Fabiani is a bit different. IH has alleged collusion in the matter of presenting Bass. Consider: Fabiani practically lived in that warehouse for a year, like Rossi. He would know about JMP activity, shipments, and he’d know about Bass. Rossi has often presented Fabiani as the “IH representative” there. Was he? Or was he a friend of Rossi really working for his friend? If JMP was fake — not a real chemical plant — and Bass was fake — not actually a Director of Engineering because nothing to engineer — , Fabiani must have known it, that’s my sense.

      So how would IH know? Ahem. Barry West comes to mind. As well, Fabiani participated in the meeting(s?) with Bass. Was he deceptive there?

      As I point out on, if JMP was real, i.e,. actually processing chemicals, using a megawatt of power or so, the IH position on this falls apart completely and the countersuit against Johnson, Bass, and Fabiani will fail. And that should be simple to show, if it’s true.

    1. I fear the ERV report will be trapped behind the protective order :(. I don’t see how it could be considered confidential, but at this rate…

  2. I discuss this motion in

    As pointed out below by Obvious, there is a clarification due from IH re the “corporate entity.” In fact, the three corporations involved are not clearly distinguishable as to actions from their principals, i.e,. Rossi/Leonardo, Johnson/JMP, and Fabiani/USQL. The requirement from the judge is purely formal, I’m surprised she would waste time with it, but … she did. I don’t see that this would affect the Motion to Dismiss. I certainly hope that IH is not required to upload the entire set of umpteen documents in a new Amended Answer and Counter-Complaint! Perhaps an Addendum will suffice, given that this will not remove anything, I don’t know.

    1. The requirement from the judge is purely formal, I’m surprised she would waste time with it, but … she did.

      Because the Court requires specifics for the case to be argued upon, and those specifics were lacking there. But now we shall get them. Hopefully indeed this doesn’t require an entire re-upload, though that could possibly be intentionally used as a tactic to stall once again and cause the Third Party MTD to have to be resubmitted too to reset the timer–based on how we saw that done by IH last time. Whoooo knnooowwwws, until it happens, or not.

  3. You are certainly entitled to your opinion, no matter how wrong you may be. But, I do not wish to engage in your Devil’s Advocate game. Wish you the best.

    1. It’s great that you will not engage in a game that I am not engaged in. That should greatly simplify your life. Thanks.

    1. The court case just has to be put up with as a temporary but necessary evil. The real problem may be the muons. If that can’t be mitigated or gotten around then the regulatory agencies will slow it down until it is mitigated or controlled. That may allow it’s use only by big players like national and regional grid power producers, military, big industry who can be expected to shield against the muons or work with them. No household and small business will be able to risk the side effects of electronics disruption or biological harm. I am hoping that a version of LENR is developed that does not have Muons or other negative activity to get in the way of home use.

  4. What “contradictory statements under oath”? There are none in the case so far, on either side. Claims in a filing are not “statements under oath.” Statements in discovery may be. According to the Agreement, payment is due if the ERV makes certain statements. That is not — ever — the “final word.” It establishes routine process, but it can *always* be challenged. I’m seeing a total misunderstanding of legal process and law here. Start off with who the ERV is. How did it come to be that Penon was the ERV for this alleged GPT? The Second Amendment to the Agreement provided that the GPT would begin upon agreement of all the parties. The parties would not agree to a GPT if they did not agree on an ERV, or if they changed the conditions, and that apparently did not happen. The precondition for a GPT was not satisified. Without being explicit, Rossi is alleging estoppel, that there was an implied consent, but the basis for that is terminally weak.

    Perhaps Rossi would have been well-advised to get legal advice *before* spending a year with that container.

    1. Their patent and their statements to the court. Whether they were under oath or not, they are contradictory. And we’ll see about Penon, who did the first validation and IH had no problem with it, it can be assumed they were ok with Penon for the GPT as there was no complaint by IH. So by their silence, they concurred. A jury could rule just that, and I think it is more likely they would since IH are the ones with deep pockets and you know how juries tend to not like companies taking advantage of people lesser than themselves lately. Like I said, I may be wrong, but you are just as bias and won’t admit it I think. Sure I a bias against IH at this point. Because in my mind it is they who have been inconsistent at best. Not only that I am sick of seeing scientist get bested by slimy companies and lawyers. And that is what this looks like to me and many others I might add.

  5. Is this another reason to think this was a bad deal or am I missing something?

    October 28, 2016 at 12:20 AM
    Dear Dr Andrea Rossi,
    If you win the litigation against Cherokee and IH, how much will be the quote in percentage you will have to pay in federal taxes to the USA and in State taxes to the Florida State?
    Can you tell this?

    Andrea Rossi
    October 28, 2016 at 11:42 AM
    In total the percentage is about the 40% of the net income.
    Warm Regards

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