Rossi v. Industrial Heat Case: Rossi’s Team Seeks Sanctions Against IH and Counsel for ‘Frivolous Claims’ (Update: Motion Denied)

There continue to be quite a number of documents filed in the Rossi v. Industrial Heat lawsuit, much of which is legal jousting with little in the way of evidence, but a new document published in the court docket (kindly made available here by Eric Walker) does bring out some items of evidence that have been uncovered in the discovery proceedings so far.

In this document (http://www.e-catworld.com/wp-content/uploads/2017/01/108-Motion-for-sanctions.pdf) Rossi’s and the third party counter-defendants’ lawyers are seeking court sanctions against Industrial Heat’s attorneys for what they allege are “a number of frivolous claims which lack any basis in law or fact and that are directly controverted by the evidence immediately available to Defendants and in their possession.”

From the document:

Specifically, Defendants:
— deny the fact that the test being undertaken in Doral, Florida by Engineer Fabio Penon was the “Guaranteed Performance Test” contemplated in paragraph 5 of the License Agreement including amendments thereto, despite their subject matter expert’s and licensed electrical contractor’s testimony to the contrary.

— claim that they were unable to replicate any of Plaintiffs’ claimed E-Cat testing results “or otherwise generate measurable excess energy,” squarely contradicts Defendants’ sworn claims to the contrary in their WIPO Patent Application number WO 2015/127263 A2 filed on August 27, 2015;

— assert that Plaintiffs wrongfully provided or disclosed, without prior consent and without a non-disclosure agreement, E-Cat fuel samples or information to scientists for study and publication, while in possession of written evidence that directly proves otherwise;

— maintain that Plaintiffs “breached the license agreement [by]…failing to report and pay taxes on payments/revenue made under the License Agreement,” while being fully advised that there is neither a legal or factual basis for such; and Rather than presenting viable defenses to their failure to abide by the terms of their agreement, Defendants attempt to mislead the Court and deflect this Court’s attention from
Defendants’ wrongdoing in an effort to intentionally increase Plaintiffs’ costs of litigation and to confuse the issues before the Court. Sanctions are appropriate.

As evidence for the above, Rossi’s team cites part of a patent application that was submitted by Industrial heat to the World Patent Organziation that claims E-Cat testing results with a COP of over 3 for a 16-day period. (see p. 6)

They also include excerpts of transcripts from some of the hearings held so far are included in the document in which Rossi’s lawyers interview IH engineer Thomas Barker Dameron III. Here is one of the exchanges:

Q: Industrial Heat has represented that they replicated a test on their own, which resulted in a COP of 1.3. They have also made an affirmative representation in this case that they have never been able on their own to replicate any measurable excess heat, any, whether it’s reliable or not reliable. These two statements to me seem inconsistent, and I’m asking you, sir, if you have knowledge to which one, if either, are correct?

A. I can’t say that we never had a result that was — let’s see if I can say this right — we probably had results greater than one, 1.3 might be an answer. I think that reliably, repeatedly, repeating those results has not happened. So at some point in time there could have been a result of 1.3 that we thought was good.

Later in the document the topic of the Guaranteed Performance Test is brought up. Mr. Dameron is asked if he knew that the plant that was sent to Doral, Florida was going to be used for the Guaranteed Performance Test, and he answered, “Yes.” More from the transcript:

Q: Did you have an understanding as to whether or not positive results from the test in Dora, Florida would result in a large payment to be made to the Leonardo Corporation and Dr. Rossi?

A. Yeah, I found out about that.

Q: When did you find out about that?

A. A little late in the game. I didn’t know what the total contract amount was.

Q. What did you find out?

A. I found out that it was a hundred million dollars contract.

The document also states that Barry West, who worked in the plant with Andrea Rossi and Fulvio Fabiani acknowledged that he knew the results of the test would determine whether Rossi would get paid.

There is much we don’t know about what has been said or not said in the hearings held so far, since the transcripts are not yet available, so this is just a glimpse of the proceedings. But there does seem to be at least some indication here that IH did get some positive results from E-Cat testing on their own, and that some of their personnel were thinking of the Doral test as the Guaranteed performance test.

Update (Jan 11, 2012) A new document has been published in the docket (see document 112 at this link) in which Judge Cecelia Altonaga denies without prejudice the motion to sanction the IH team’s lawyers.

  • roseland67

    Appears these people are not hedging their bets on LENR appearing anytime in he the next 2-3 decades

    http://www.cnbc.com/2017/01/17/saudi-aramco-ceo-says-oil-will-dominate-over-renewables-for-decades.html

    • cashmemorz

      Not hedging bets. Everyone knows of alternate energy. I think they are of positive attitude regarding their business model. Can’t expect a car salesman to be promoting public transit. The competition takes care of itself without any mention of that in the car depot ads.

      • roseland67

        Cash,

        I don’t equate billion $$ purchases with car salesmen.

  • LION

    Hi Frank, I have no idea how PINING works, may I ask you to let BOB Greenyer know I have added to my posts below, some of which may be of interest to him. THANKS FRANK.

  • Gerard McEk

    Just to let you know that we have to wait until September (at least) before this trial comes to an end. Andrea must be a very quick reader, he can read 7000 (boring) pages in two days!

    Chimico
    January 14, 2017 at 6:41 AM
    Gent.mo Andrea Rossi,

    English: I am a Professor of Chemistry and I follow your work since several years. I am convinced that the E-Cat technology and its scientific ground are valid and have an important future. For this reason I am inviting you to make a Lectio Magistralis in my international institute in Lombardia (Italy). Please let me know your availability.

    Andrea Rossi
    January 14, 2017 at 8:52 AM
    Chimico:
    Thank you for your very kind and appreciated proposal, I surely am honoured by it. I cannot move from the USA in this period, due to the overwhelming engagements on two fronts: the development of the QuarkX and the litigation. The two combined draw at least 14 hours per day of my time and the litigation demands my personal availability for the Attorneys every day. For example, in the last 2 days I had to go through 7 000 ( seven thousand) pages of documents, the whole during a 4 hours hearing in Court in Miami the day before yesterday and an 8 hours hearing in Raleigh, NC, between the counterparts yesterday, while this morning I am in Miami to work with the QuarkX: can you imagine the fun?
    In a short term we can organize it by Skype, while to make possible for me to leave the “battlefield” is necessary to wait for the end of the litigation, that we expect to be within September: the justice in the USA is very efficient, albeit it demands a tremendous effort economical, intellectual and physical.
    Warm Regards,
    A.R.

  • There was at least COP ~1 steam, so they had to do something with it.

  • ebevogon

    There is a delicate point in the lawsuit which deserves attention. In the motion for sanctions (Doc 108, p10-12) the plaintiffs (Rossi,..) give their attention in two full (!) pages to an allegation not to have paid taxes for the income of 10 Billion. I am not a law expert and don’t want to make an prejudgement. Just my feeling is that this point could be very dangerous for Rossi.

    • wpj

      Apart from it being 10 million, rather than billion (maybe in the future), there probably isn’t a great deal of tax to be paid anyway due to the losses and R&D write downs from previous years.

    • Omega Z

      If you read all the details and are capable of criticle thinking, you would realize Darden raising the tax issue thing is all FUD to muddy the waters.
      Nothing more…

  • Could somebody please tell me why Fulvio Fabiani is in $#$%&% Russia and moved his company to &^%!&@#% Russia?

    (Doc 113) https://drive.google.com/drive/folders/0BzKtdce19-wyb1RxOTF6c2NtZkk

    • Obvious

      Because there are Welcome Back Kotter pinball machines there worth a fortune. https://uploads.disquscdn.com/images/6b0ca434d02a844852f39ce50ecb5e97e541effbe31a08c1369aa65d2affb6e4.jpg

      • A magnificence. You wouldn’t believe what he has seen while playing that thing.

    • US_Citizen71

      Maybe the secret customer is Putin?

      • sam

        Another America asleep at the
        switch Pearl Harbor.

    • wpj

      Maybe he is helping the people out there to reproduce the high COPs

      • sam

        Or too make money from it.

    • Gerard McEk

      Maybe he doesn’t want to be arrested?
      He probably trusts the Russian law system more than the Italian. 😉

      • Except the last place one goes when one seeks to preserve his freedom is Russia.

        Why not a sunny place without extradition where he can enjoy his take of the scam of the century, like Venezuela?

        • wpj

          Latest documents says that he will Skype with the court…….

        • Gerard McEk

          He’s a graduated nuclear scientist and maybe not rich enough to retire yet. Venezuela has not much nuclear to work on, I guess.

          • I thought Fabiani is an electrical engineer and Penon is the nuclear engineer.?

            • Gerard McEk

              Yes, you are right, I swapped him with Penon.

            • Omega Z

              Correct,

              However, Fabiani is a freelance electrical engineer/programmer and consultant with knowledge of how to build a controller for LENR activation..

              Question: What the hail is Fabiani doing in Russia???

              • Owen Geiger

                Maybe Russia is paying him lots of money to help develop LENR.

        • sam
        • georgehants

          Cuba, Venezuela, Russia and China now more free than America in notable ways
          (NaturalNews) In reviewing all the breaking news over the last few
          months and looking for the “big picture” of where America is headed, one pattern has emerged with striking regularity: America has quietly become less free in many ways than nations like Cuba, China and even Venezuela.
          This is especially true in California, where “justice” has become a joke, and the power of the state is unleashed in personal vendettas against innocent citizens who have done absolutely nothing wrong other than refuse to bow down to state-run tyranny.
          http://www.naturalnews.com/038086_America_Land_of_the_Free_police_state.html

          • Obvious

            Somebody once said “When fascism comes to America, it will be as American as apple pie”.

            • Private Citizen

              “wrapped in a flag and carrying a cross”–perhaps with a bad comb-over

  • Dickie van Saban

    Rossi stated that the client was so happy with the results that they ordered 3 more plants, and these were in construction (no robots unfortunately!) . So you might as well ask what happened to these 3 additional plants that were ordered by the company after using the heat in the Doral test.

    At the risk of beating dead horses, what happened to the 13 plants ordered years back? The most convenient response, oft repeated, is that these 13 were for secret military customers. So, shhhhh!

    Let me take your question a slight step further. If Rossi has a 1MW plant with COP > 50 all he has to do is hook it up to a rather standard generator in a district that supports net metering and he can basically “print money”. Since power in would be less than power out, he would get paid by the local utility with a hefty check every month.

    In fact, anybody who could actually buy this machine could do exactly the saem. As Dire Straights sang, ” Money for on thing”.

    Instead Roissi is suing IH and working on the upcoming quark X demonstration. I am happy to wager $1000 USD that there will be no quark X demonstration in Feb with an independent agent involved.

    Anyone . . .?

    • * 3 plants ordered: last we were told they were still being constructed. In any case his current partner (if there is one) is laying quite low. We don’t even know their name yet.

      * 13 plants years back: no idea. Best guess is they never got delivered for whatever reason, lying… or as a consequence of shifting business arrangements. It’s also possible some or all were built and delivered and remain secret.

      * hook up and print money: because the focus has been on improving the technology to a point where it is undeniably economical and a reliable (commercializable)… remember he already had enough money ($11M+) to ‘retire’ from his con man ways if that’s what was happening… his behavior makes sense if instead he is working for the greater good (or, yes, insane is another explanation). Anyway I think if you do the math with respect to how long it would take to pay off the costs of building each MW heat plant and selling electricity it doesn’t look so attractive. Conversion rate of heat to electrical ~30%. 300 kW. About 10 cents per kWh. Works out to about $263k per year. Three years or more just to get the money back when the technology was clearly advancing rapidly (if we suspend disbelief…). I would have pressed on if I were in his situation too.

      * Rossi suing: In the con man scenario, Rossi suing makes ZERO sense. He’d just be exposing all of his own misdeeds, costing himself lots of legal fees with no hope of gaining any significant money in judgment. Do not dismiss Woodford’s observation that they did their due diligence and this is just an IP battle.

      * Feb: Rossi rarely makes such a big deal about an event without following through at least in some fashion. So I have little doubt there will be some sort demo or information release in Feb or shortly after. If history holds, there will be more questions than answers after that next info drop.

      But no I’m not going to bet. I’m open-minded, not reckless 😉

  • Obvious

    Motion on sanctions denied.
    See: Document 112, now entered into the docket.

    • Mats002

      Hi Obvious – which side is gained by this and what does it mean?

      • Obvious

        It means that the judge has denied the request for sanctions against IH. The Motion was denied without prejudice, so possibly it could be filed again, later.

        I have pasted the Order on the Leonardo et al Motion for Sanctions below.
        ……………………………………………………………………………..
        “ORDER
        THIS CAUSE came before the Court on Plaintiffs, Andrea Rossi and Leonardo Corporation’s (collectively, “Plaintiffs[’]”) Motion for Rule 11 Sanctions (“Motion”) [ECF No. 108], filed January 10, 2017. The relief Plaintiffs seek is evident from the title of the Motion.

        “A court confronted with a motion for Rule 11 sanctions must first determine whether the claims raised are objectively frivolous and, if they are, whether the signer of the pleadings should have been aware of their frivolous nature.” Lee v. Mid-State Land & Timber Co., Inc., 285 F. App’x 601, 608 (11th Cir. 2008) (citation omitted). The Advisory Committee Notes make clear Rule 11 should not be used to “test the legal sufficiency or efficacy of allegations in the pleadings [as] other motions are available for those purposes.” FED. R. CIV. P. 11 advisory committee’s notes (1993 Amendments) (alteration added).

        By Order dated October 14, 2016 [ECF No. 67], the Court granted in part and denied in part Plaintiffs’ Motion to Strike in Part Defendants’ Second Amended Answer . . . [ECF No. 54]. On November 16, 2016, the Court entered an Order [ECF No. 76], denying Plaintiffs’ Motion to Dismiss Defendants’ Amended Counterclaims . . . [ECF No. 56]. Considering the outcomes on these previous motions and given Plaintiffs have not subsequently filed a motion for judgment on
        the pleadings, the present Motion is premature.
        Being fully advised, it is
        ORDERED AND ADJUDGED that the Motion [ECF No. 108] is DENIED without
        prejudice.
        DONE AND ORDERED in Miami, Florida this 11th day of January, 2017.
        _________________________________
        CECILIA M. ALTONAGA
        UNITED STATES DISTRICT JUDGE

  • radvar

    “the client on the other side of the wall”
    for which there has never been any physical evidence, that I am aware of.

    • There was definitely something over there; it’s visible in the pictures.

      There also was definitely a client: JM Products, Inc that employed James A. Bass.

      What they did with the steam, if anything, is an open question.

      • radvar

        If we believe the calorimetry, then *something* consumed energy on the other side of the wall. And referring to that as a “client” might be *technically* accurate.

        • Ged

          Technicalities… The name of the dimension lawyers thrive in.

  • roseland67

    “Frivolous claims”,

    Pot, meet kettle.

  • wpj

    The plant was padlocked when AR/IH fell out (owned by IH). AR claims that 3 plants were ordered by the client for use outside the USA and that these were being built (and should have been completed by now). There doesn’t seem to have been any update on these recently.

  • Veblin

    Calling Thomas Barker Dameron III an engineer is a joke.
    He is one of Tom Darden’s realtors.
    https://www.homelight.com/agents/thomas-barker-dameron-iii-nc-0241037
    He is an investor in Cherokee and Industrial Heat, individually and through his Calimus LLC.
    https://www.statelog.com/calimus-llc-raleigh-nc
    He is a name to slap on a patent.

    • That certainly does not reflect well on IH. Makes the whole thing look like a shady IP party and purposely failing to replicate.

    • wpj

      At least James Bass had some technical experience.

    • Veblin

      Mr. Dameron has for many years been a Realtor, Broker and Investor.
      Mr. Dameron like his friend and business associate Mr. Darden, does like to set up numerous investment LLC’s. Here are a few.
      Calimus LLC
      T. Barker Dameron III, LLC
      Dameron Family Ventures LLC
      High Bar Creek LLC
      Huggy Bear LLC
      Friendship Chapel Commercial LLC Legal

      As far as engineering he does seem to at least have taken some classes in collage and was part of a three member team to write a paper that was presented to ASME.

      A home-size solar-powered engine for cooling
      systems of generation of electricity. F. 0. Smetana, P. G. Bladen, and
      T. B. Dameron, Ill (North Carolina State University, Raleigh, NC.).
      American Society of Mechanical Engineers, Winter Annual Meeting,
      New York, N. Y., Dec. 2-7, 1979, Paper 79WA/Sol-34. 12 p.
      Abstract
      The paper outlines the steps taken in designing and constructing
      a solar-powered engine at the N.C. State University, to produce
      sufficient electricity from sunlight to meet the needs of the average
      N.C. resident, estimated at being approximately 1000 KWH/month.
      Attention is given to the component selection and assembly, and an
      examination of the preliminary system operating results is given.
      Four criteria for the structure are outlined, including that the
      structure be able to withstand 100 mph winds and that it requires
      only bolt-together assembly in relatively light-weight sections.

  • wpj

    Interesting to see that the collaboration with Norman Cook was passed via his lawyer to IH beforehand and was to have IH’s name associated with it. This too is contrary to the claims of IH.

  • I would like to see IH’s hands smacked for some of their hypocrisy…

    …but the testimony that the highest COP Dameron ever saw independently was 1.3 and they had trouble repeating it is alarming and could be explained by measurement error.

    • Bob Greenyer

      Certainly our research and that of those that have looked harder than their first attempts points to this level of COP. This is in the same range as the classic Piantelli/Focardi reaction.

      Having said that, our assessment of the Lugano reactor points to a COP slightly higher than this and I am of the understanding that IH made that reactor.

      More apparently has to be done to achieve higher excess. I believe that it is to do with field application and what that leads to. Of course, when I have structured thinking I will share.

      • There have been many claims of higher COP. If the whole “industry,” to include BLP, is only really getting ~1.3 but running around claiming 3’s, 4’s, 6’s, 10’s, and 100’s just to get attention or funding or whatever then we’re in a very bad place.

        I hope that’s not the case. I rather expect that ~1.3 is the first gate — where passing the discovery threshold usually gets you — and much optimization is possible after that like every other engineering effort of a new phenomenon in history.

        • Bob Greenyer

          Piantelli pointed to a device in his lab when we were there that he said had been producing around 1.4 for over 2 years.

          1.3 is not the limit. Just like finance – anything over 1 leads to infinite.

      • Ophelia Rump

        I suspect Dottore Rossi gave them working but not the best performing device to begin with, sometimes slow revelation is called for. You never know what the the motives of others are.

        • It does make a certain amount of sense that if he has discovered the secret sauce that lets him turn 1.3 into 6 and more that he might protect that secret sauce at all costs, including possibly omitting it from the device/fuel provided to IH and/or Lugano.

          • Brent Buckner

            As you entertain that notion I note that not delivering such to IH would on the face of it be contrary to Rossi/LC’s obligations under the License Agreement Section 3.2(b).

            • Agreed. We already kind of know that Rossi follows the rules only when they suit his needs, don’t we?

              We know he purposely botched a demo with Hydrofusion to try and shake them. For all we know this 1 year test was an attempt to shake IH because he found a new/better partner and wanted to go do E-Cat X things with them.

      • LION

        Hi BOB, see this from a few days ago.

        LION roseland67 • 5 days ago

        That innocent little word (exact) is slightly Problematic, because of Quantum and sub quantum effects produced by the stellar environment on the Etheric FLUX, but in essence I agree with you. With threshold experiments these stellar effects can be huge, but once an experiment is powerful, it itself conditions its immediate environment and organises the flux. The Russians have studied this, and it is well known to Esoteric Scientists since time immemorial.

        The Russian scientist Dr Nikolai Kozyrev, work is of great interest.

        you can spin a copper disc till you are blue in the face, but if like Michael Faraday, you spin it in a magnetic field and connect it up right then you really have something to shout about, and of course you change the world.
        All the best.