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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’S RESPONSE TO OPPOSITION TO MOTION FOR LEAVE
Defendant Kent Johnson hereby submits this Response to Plaintiff‟s Opposition to
the Defendant‟s Motion for Leave filed by Plaintiff the Microsoft Corporation
(Microsoft).
I. INTRODUCTION
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
brief.
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).
II. FACTUAL BACKGROUND
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
Leave:
“(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
purposes.
“(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
proceedings.
III. ARGUMENT
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
Court.
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
inadmissible.)”
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
case.
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
IV. CONCLUSION
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
And
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
