Document Sample
					                         UNITED STATES DISTRICT COURT
                                   FOR THE
                           DISTRICT OF CONNECTICUT

MICROSOFT CORPORATION                         )
               Plaintiff                      )
                                              )      CIVIL ACTION
       Vs.                                    )      NO.
                                              )      3:08CV1602(RNC)
KENT JOHNSON, an individual d/b/a             )
COMPATIBLE COMPUTERS                          )      June 28, 2009
                       Defendant              )


       Defendant Kent Johnson hereby submits this Response to Plaintiff‟s Opposition to

the Defendant‟s Motion for Leave filed by Plaintiff the Microsoft Corporation



       Defendant‟s “Motion for Leave” is, in effect, a request for leave to file a cross

complaint against Microsoft for damages the Defendant suffered due to Plaintiff

Microsoft‟s willful, malicious and unfair accusations against the Defendant‟s business

and reputation in this spurious and meritless civil action. Microsoft makes and repeats

these accusations in this Civil Action and in public. The motion should be approved

because Defendant has demonstrated good cause for leave under Fed. R. Civ. P. 16(b).

       Plaintiff Microsoft repeats erroneous interpretations of Rule 408 and a

misunderstanding of other confidentiality requirements of the Court. Confidentiality is

important to the Plaintiff in this case but not to the Defendant. Microsoft began this

meritless judicial attack with a Press Release to my home town newspaper designed to

damage my reputation and public creditability in an effort to force a quick cash
Case 3:08-cv-01602-RNC                                                              Page      2

settlement instead of a fair hearing of issues by the Court. As such it is the Defendant‟s

position that the Court and those served by the Court, both directly and indirectly, should

know the facts of this case, or lack thereof. Not to further burden the Court by this,

suffice it to say dozens of letters and emails devoted to this issue have been exchanged

and the Defendant remains unclear what specifically the Plaintiff‟s concerns are beyond

total confidentiality of everything; the Plaintiff‟s assertions to my “bad faith”

notwithstanding. I further address these confidentiality issues at the end of this reply


         Microsoft states that my Motion for Leave relies “principally on information

obtained during settlement negotiations”. Untrue. My reasons for filing the Motion for

Leave are stated clearly in the motion, to wit: “Due to new information received from the

Microsoft Corporation about the specific circumstances surrounding the spurious and

malicious actions the Microsoft Corporation has taken against me in the Settlement

Conference of May 20, and the week before that conference, and in a letter to the

Defendant from Microsoft Corporation dated May 28, 2009, and information received

pursuant to Discovery on April 22, 2009, and other information received” none of which

did I rely upon “principally”. I know my thinking better than the Plaintiff knows my

thinking. Plaintiff‟s informing the Court of my principal reliance in this action is a better

demonstration of “bad faith” than I have shown.

         If the Court is curious, the information received from the settlement negotiations

that is pertinent to this motion is mainly the demeanor and position Microsoft has shown

pursuant to this negotiation itself. I can think of no important piece of information that

Microsoft let slip that convinced me to file a counter claim for damages. There is
Case 3:08-cv-01602-RNC                                                           Page          3

certainly nothing that comes to mind above everything else except that following that

conference a settlement offer of May 28th, 2009, proposed eight times the monetary

figure discussed in the settlement conference (Exhibit A).


         Plaintiff Microsoft lists many places where I did not raise counterclaims. I could

list more. In fact I was hesitant to raise counterclaims because philosophically and

religiously I do not believe in attempting to gain money in this way. The reason I

decided to file counter claim, either by this Leave or by separate action, is that I believe

my doing so will inhibit future spurious and malicious claims from Microsoft aimed at

quick cash settlement.

         As quoted by Microsoft, the Court‟s Order further states that “[a]ny motion to

amend or join parties filed after [the dates in the Order] will be governed by the good

cause standard of Fed. R. Civ. P. 16(b).” I quote below from Fed. R. Civ. P. 16(b) and list

many “Matters for Consideration” which will be well served by granting my Motion for


“(A) formulating and simplifying the issues, and eliminating frivolous claims or

defenses;” Allowing my Motion for Leave will make it unnecessary to file a separate suit

against Microsoft for damages inflicted by their actions against me.

“(B) amending the pleadings if necessary or desirable;” This is what my Motion for

Leave is asking, precisely. Allowing the motion for leave in this case is necessary for

justice and fairness to be considered in this case over legal procedure. Such

consideration is desirable.
Case 3:08-cv-01602-RNC                                                           Page         4

“(C) obtaining admissions and stipulations about facts and documents to avoid

unnecessary proof, and ruling in advance on the admissibility of evidence;” Microsoft‟s

responses to interrogatories and requests for document production in the coming

counterclaim will be helpful to the Court to understand the underlying motivations and

events behind this case so the Court can use fairness as a consideration for its disposition

of the case.

“(E) determining the appropriateness and timing of summary adjudication under Rule

56”; It should be obvious to the Court that Summary Judgment is not a suitable

disposition for this case. Granting this Motion for Leave is a better route to a fair and just

resolution which better serves these disputing parties and, in the broader sense all whom

the Court serves.

“(F) controlling and scheduling discovery, including orders affecting disclosures and

discovery under Rule 26 and Rules 29 through 37;” Granting this Motion for Leave will

allow the logical separation of this case into that which did damage to Microsoft and that

damage which Microsoft did to the Defendant, simplifying significantly the philosophical

landscape of this case.

“(G) identifying witnesses and documents, scheduling the filing and exchange of any

pretrial briefs, and setting dates for further conferences and for trial” The motion itself

asks for an extension of deadline, at the Court‟s own discretion to file a counterclaim.

“(I) settling the case and using special procedures to assist in resolving the dispute when

authorized by statute or local rule;” Granting this motion will allow the Defendant to ask
Case 3:08-cv-01602-RNC                                                          Page          5

the Court to aid in resolving this dispute as opposed to filing another separate action, or

allowing the Plaintiff to run roughshod with baseless claims and malicious accusations.

“(K) disposing of pending motions;” Granting this motion will dispose of this pending

motion and make it unnecessary to file a separate action.

“(L) adopting special procedures for managing potentially difficult or protracted actions

that may involve complex issues, multiple parties, difficult legal questions, or unusual

proof problems;” Granting the motion will allow the Defendant to pose a side of this case

not yet seen, a case which is becoming protracted, though the baseless claims and

accusations should be simply dealt with when, finally, the Court has a chance to consider

them. The “special procedure” is merely a short extension of a deadline so the Court will

be able to consider the damage done by the Plaintiff and better serve the Court‟s own


“(M) ordering a separate trial under Rule 42(b) of a claim, counterclaim, crossclaim,

thirdparty claim, or particular issue;” I am asking for leave to make such a counterclaim.

“(N) ordering the presentation of evidence early in the trial on a manageable issue that

might, on the evidence, be the basis for a judgment as a matter of law under Rule 50(a) or

a judgment on partial findings under Rule 52(c);” Allowing a counterclaim will simplify

“the basis of judgment” by separating the case in two: claim v. counterclaim.

“(O) establishing a reasonable limit on the time allowed to present evidence;” The

motions asks for time.
Case 3:08-cv-01602-RNC                                                          Page           6

“(P) facilitating in other ways the just, speedy, and inexpensive disposition of the action.”

This motion will allow the Court to simplify, to be fair, to set a reasonable limit on time.

I am not sure any action of this Court could help with inexpensive disposition of this case

as the limitless resources of the Plaintiff make such a thing impossible.

       Microsoft notes the “Defendant has not attached a proposed Amended Answer to

his motion, nor does he purport to identify in any way the nature of or basis for his

proposed counterclaim.” If it is a convention among lawyers and those of judicial careers

to include a proposed motion along with a Motion for Leave to file such a motion you left

it out of the Federal Rules of Civil Procedure where I could find it.

       Microsoft notes “Defendant's Motion for Leave does not comply with Local Rule

7(f) in that Defendant failed to include a statement that "(1) he…has inquired of opposing

counsel and there is agreement or objection to the motion; or (2) despite diligent effort,

he…cannot ascertain opposing counsel's position." D. Conn. L. Civ. R. 7(f).”

Microsoft‟s position regarding this Motion for Leave is now and was always obvious,

especially with regard to the letter of May 28, 2009, (Exhibit A). Microsoft intends to

pursue this claim for monetary gain and has no regard for the fairness thereof. My

motion shows good cause to ask the Court to allow me to bring fairness back into the



       Fed. R. Civ. P. 16(b)(4) states that a scheduling order “may be modified only for

good cause and with the judge‟s consent.” Microsoft cites precedent showing that at the

discretion of the Court my Motion “could be denied on any of these grounds”. Defendant
Case 3:08-cv-01602-RNC                                                          Page        7

recognizes that to grant or deny my Motion for Leave is entirely within the power of the


         Microsoft notes “it is Defendant‟s burden to establish “good cause” under Rule

16(b)” which governs scheduling orders. Microsoft fails to note that the Court decides

what good cause is.

         Microsoft also states “by failing to describe in even the most general terms the

substance of his proposed counterclaim or the purported evidence upon which it is based,

Defendant has clearly failed to establish good cause for his requested amendment.” The

Defendant rests on the fact that the Motion for Leave itself provides a basis for the Court

to decide there is good cause to grant the Motion. Rule 16(b) governs scheduling which

itself implies time constraints. Defendant listed new developments in the case which

necessarily affect scheduling. Time and schedule are fundamentally related. New

developments are good cause to grant a motion to modify a schedule.

         Microsoft seems to confuse “good cause” under the law and a principal deciding

factor for filing a motion. The good cause for the motion was new information received

by the Defendant from the Plaintiff over several weeks preceding the Motion for Leave

filing of June 4, 2009. But perhaps the principal deciding factor was a letter from the

Plaintiff to the Defendant dated May 28, 2009 (Exhibit A) which made it clear the

Plaintiff did not want to settle along the lines of the May 20 conference in Judge‟s

Chambers. A principal deciding factor in filing a motion is not the same thing as good

cause under the law.

         Microsoft continues: “Moreover, Defendant should not be permitted to use his

reply brief to cure these glaring defects in his motion. Schiavone v. Northeast Utilities
Case 3:08-cv-01602-RNC                                                           Page           8

Service Co., No. 3:08CV429(AWT), 2009 WL 801744, at *2 n.2 (D. Conn. Mar. 25,

2009)”. I have no access to the particulars of this precedent. Be that as it may, I see no

defect in the Motion for Leave that needs to be cured. Microsoft: “courts generally

disregard arguments raised for the first time in a reply brief”. I stand by the fact that the

reasons I filed this Motion for Leave are stated in the motion and constitute good cause to

grant the motion. Only Microsoft‟s concerns and arguments against Leave need be

addressed in this reply brief with the specifics I am providing.

       Microsoft: “As stated in his motion, Defendant's proposed amendment is futile.

Indeed, Defendant has not even identified what cause of action he intends to raise in his

proposed counterclaim. Without details regarding the nature of Defendant's proffered

counterclaim, Microsoft cannot even begin to assess Defendant‟s proposed amendment,

let alone prepare a responsive pleading or evaluate possible defenses.” My motion is

filed according to my best reading of Federal Rules of Civil Procedure, Rule 7 (1) A, B

and C where I find no such requirement. It seems to me Microsoft should make their

arguments against the counterclaim should the Court grant my Motion for Leave to make

the counterclaim, or against the new action I will file if the Motion for Leave is denied.

A better use of the word “futile” is to argue against an unmade argument, as Microsoft

does here.

       Microsoft continually claims that my use of information supplied to me by

Microsoft is somehow “bad faith”. To wit “Defendant has demonstrated bad faith by

stating that his counterclaim will be based largely on information obtained during Court-

ordered settlement discussions in clear contravention of the Federal Rules. See Fed. R.
Case 3:08-cv-01602-RNC                                                            Page          9

Evid. 408(a)(2) („conduct or statements made in compromise negotiations‟ are


       Firstly my counterclaim is based upon many things beyond meeting

representatives of Microsoft in Judges Chambers on May 20, nine days before the Court‟s

Scheduling Order deadline on filing counterclaims. If I had to choose one thing upon

which my counter claim will be “based largely” it will be that which I have learned from

Microsoft pursuant to Discovery. The basis for the Motion for Leave, however, is the

“good cause”. That new information making the counterclaim “necessary or desirable”

(Fed. R. Civ. P. 16[b]) has been received right up until the day before the deadline for

filing a counterclaim expired, and afterwards, is the “good cause” referred to.

       As Microsoft repeats this issue several times, showing confusion here I restate it.

The principal deciding factor that I should file a counterclaim was the settlement letter

(Exhibit A) dated May 28, 2009, the day before the deadline to file such a counterclaim.

It was that letter which contributed the most to my decision to file counterclaim if given

Leave, or a new action if this Leave is denied, but it will certainly not be upon that letter

that my counterclaim will be “based largely”. The “good cause” upon which I base my

argument that the Court will grant a Motion for Leave to modify scheduling is that new

information is available that makes the counterclaim “necessary or desirable” according

to Fed. R. Civ. P. 16(b)”.

       With regards to the confidentiality issues Microsoft repeats: None of the

information in the conference was privileged in a way to keep me from using it in a

counterclaim or new action or in this brief or anywhere else except for the limitations of
Case 3:08-cv-01602-RNC                                                         Page        10

Rule 408. Rule 408 concerns using evidence of willingness to compromise later on in a


        Federal Rules of Evidence, Rule 408 “Compromise and Offers to Compromise”

prohibits use of the evidence of willingness to compromise “regarding the claim”. It does

not prohibit remembering or repeating facts and statements made by any party in a

conference convened for the purpose of fomenting compromise. In fact, Rule 408

explicitly allows the use of evidence collected in such meetings for “proving a witness's

bias or prejudice” and “negating a contention of undue delay” as well as other uses.

        It is reasonable to note here that “negating a contention of undue delay” is

precisely how I am using the information of the settlement conference right now.

        Microsoft continues: “Here, Defendant has been told on numerous occasions that

information exchanged in the course of settlement discussions is to be kept confidential

and may only be used for purposes of settlement.” Although Microsoft repeats this claim

of confidentiality I do not recognize its basis in law (except in Rule 408), philosophy,

fairness or propriety. In law, I agree evidence of willingness to compromise will be

disregarded in a later trial with regard to Rule 408, which was explicitly and correctly

explained to me by Microsoft counsel in that meeting. I believe the evidence of

unwillingness to compromise, however, is useable.
Case 3:08-cv-01602-RNC                                                           Page      11


       For all the foregoing reasons, the Defendant respectfully requests that my Motion

for Leave be granted.

                                               THE DEFENDANT,
                                               Kent Johnson, an individual, d/b/a
                                               Compatible Computers

                                               Kent Johnson
                                               233 East Main St
                                               Torrington, CT 06790

I hereby certify that, on the date hereon, a copy of the foregoing was mailed postage pre-
paid to the following parties:

The Clerk of the Courts
Hartford Federal Court
450 Main Street
Hartford, CT 06103


Brian C. Roche
Two Corporate Drive, Suite 234
Shelton, CT 06484

Notice of this filing will be sent by mail because electronic filing is not an available
option to Pro Se parties.

                                     Kent Johnson
                                     233 East Main St.
                                  Torrington, CT 06790

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