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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
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