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Thanx NAVY for the great job of keeping us all abreast as we move forward. His CV is very impressive! Again more proof that this is not a kangaroo venue as some previously would have wanted us to believe. Skadden Arps is one of the heaviest firms on the planet, so he ran w/ some good company.
All we can hope for is that he performs as well as his credentials imply. Hope that's the case and also hope that he let's Sam's team know that he is in blatant violation of a clearly defined contract. If we get all that we might be in business sooner than i thought. GLTU
Dean is great... period.
Dean has 60 MM shares and over a million of his own dollars invested, not to mention the 15 plus years he has dedicated to this business. So he has more at stake than any investor, and since we are investors we are riding on his coattails should he strike gold. Remember, we have done nothing to add to the process except take a risk with our capital. big deal.
What the average investor doesn't realize is that it takes an average of 2.5 years to go through the patent process and the final outcome can be a FINAL REJECTION!
Navigating through the FDA is much the same process with the exception that unlike the patent process, if the device or improvement has merit there will not be a final rejection if the applicant hangs in there.
Does Dean look like he's a charlatan or a quitter? NO!
Is the finish line in sight? YES!
Are the FDA guidelines etched in stone? As an inventor i can tell you from hard fought experience dealing with the PTO they are NOT! Trust me, both the PTO and the FDA are government run bureaucratic agencies and they could care less about the applicants time frame. Period
Dean has a real machine, been to very prestigious shows, dealing with a very real agency... the FDA. These three things cannot be faked indefinitely! Dean would have been caught by now, end of story.
Approval will come and come sooner than later. If that isn't enough for you, then perhaps you should liquidate your position at the opening of today's trading.
NAVY i hope you are right! that is what i am hoping for myself. if this is truly the case, which i hope it is, then the magistrate won't have any problem letting both sides know where they stand based upon Pauls complaint and Sam's counter claims. like any of us longs, i wanted this to end yesterday.
SERVICE AND FILING A LAW SUIT... service and filing go hand in hand. Sevice must be done within a few days of filing at most. Service in this court can be done electronically and to Sam's attorneys. Sam does not need to be served directly. there is no doubt that Sam's been served. He already knew it was coming anyway.
As for what next, Sam's lawyers have anywhere from 10 t0 20 days to respond with a counter suit. In most cases the defendants lawyers will as for an extension of time, ranging anywhere from an additional 10 to 30 days. in nearly every case, the plaintiffs side will grant it to show the court that they are cooperating in the process. This as all leagal protocol and it is how this collegial club plays it. Don't get hung up on speed or justice, it has no place in our judicial system.
The judge won't get involved until one side will not clearly cooperate with the other sides requests pertaining to depositions and discovery and if that's how Sam wants to play it, that's what will happen. If this case was in the Federal system, mediation only comes JUST BEFORE TRAIL when both sides are at loggerheads.
However, the beauty of this court is that they be much more proactive in the mediation and settlement department.
The misconception that i am trying to dispel here is that these disputes must take their course and that the judge just doesn't rush in to right the wrong that the bad guy committed.
My hope is that Sam will get religion and do the right thing now that he's being squeezed. JMHO
hey court 99... it's always best to know what you are talking about before you commit it to writing. Anyway to file any civil action on the fed level for the third district court is only $350. fees do not support the courts, US taxpayers money does.
Chancery Court is the new jurisdiction it is the Delaware state court of equity. As such, it is highly regarded and is adept at dealing with a controversy such as XMDC's.
As i had previously stated, i never really believed that this case was proper for the Federal jurisdiction. This is not an IP case, this is a breach of contract case, where the transfer of IP failed to take place.
Del Chancery Court is not a watered down court, there are judges and jury's and real trials take place there.
The reason why this is not going to be a jury trial is because, a demand for a jury trial must be in the plaintiff's prayer for relief. Paul did not demand a jury trial in his pleadings.
Should XMDC go to trial they will have a "bench" trial which will take place in front of a judge without a jury.
This move was done for 2 reasons: expedience sake; and it was also done because the controversy is so straight forward a judge will have no problem deciding without the aid of an impartial jury.
Last point, of course there will be mediation first. This process may employ magistrate judges referred to as under judges or it could involve impartial lawyers that are hired for this purpose. All court cases must go through some sort of mediation first in order to reduce the courts case loads. If a compromise can't be had, then the case will proceed to trial.
I have to give Sam a little credit here, although it's going to backfire on him. We are in the right venue and the right jurisdiction and this case will sprout wings compared to being mired in Fed system in Cal.
If Sam was really smart and wanted to stall, he would of shut his mouth and kept this case in Cal. Fed court where we would have been in the vortex of this court anywhere from nine months to a year before the court kicked out our case for having been improperly filed in the wrong jurisdiction and venue. enough said
thanx guys for getting the del complaint and posting it. i read it and it is a great filing. as per the fed rules of civil procedure sam or his counsel has to of been served by now. you can count on it!
according to these pleadings this is a straight forward breach fo contract case with some fraud and unethical busines dealings thrown in for good measure. Ha Ha
The Key: sam had 30 days to get out of this contract after the signing in late Dec of '09. And... he had to put his request directly to Paul in writing! He never did so and only responded to Paul's lawyers on April 27,2010 and it was not to formally get out of the contract either!
Conclusion: this will move swiftly, because we are dealing with a straight forward contract that governs the relationship between these parties. Obviously one party saw fit to ignore this contract and it was 100% Sam and 0% Paul. now any of you doubters chew on that one for a while.
MISCONCEPTIONS, MISCONCEPTIONS,MISCONCEPTIONS....
once a contract has been signed and consideration has been given and received the deal is etched in stone.
Sam has to produce and hand over everything that he promised to do so in the contract.
Sam's technology and product has a cloud on it, a lien if you will. The lein holder is XMDC. Sam cannot sell this or enter into a JV anywhere in the world where the rule of law is observed. Yes he could sell this to North Korea, or even the Somalians, but even the Chinese wouldn't be takers.
his choices are simple, scrap it or deal with paul. no major or minor player will take him up on his offer. any reputable company would not touch this, way too much exposure.
don't use the argument that he could change his IP, first of all it will take too much time and it would cost too much money, and still it could be traced back to the original deal and no one would take that risk going forward.
conclusion: every day that passes the window of opportunity closes little by little, even sam knows this. if he doesn't get his ass in gear soon a real player like GE or Toshiba will beat him to the punch and it will be all for naught.
I'm betting that he'll move, he can't possibly be that short sighted.
now if he doesn't move.... that just means the device never worked and we've all been had including yours truly.
Cub... sam is in the game now and he can't get out unless he settles, defaults, or goes to trial. he has retained counsel and can't feign that he is a foreigner and no speakie English.
now employ a little common sense, he already has representation who fought stridently to have the venue changed to Del. his firm can still defend him in del.; and that's even if they are not members of the Del bar. they can simply do this by going through a member firm... known as pro hoc vice. happens every day.
anyway, to get to the point sam cannot stall, as a matter of fact if he does not respond with his counter suit in 20 days he is in danger of loosing it all by default. at this juncture the court is not going to be very lenient on him, ... after all, he was the one who wanted to be in front of this court.
sammy... thanx for a great update. nadine's words says it all! i knew that there would be no service issue in Del! SL is going to be feeling the squeeze very soon!
ONLY ONE THING MATTERS
in nearly every contract dispute only one thing matters, and it is as follows:
was there a final contract?
did all parties sign?
did anyone put a gun to someones head, meaning did someone sign under duress? of course not sam's sworn affidavit said that he contemplated this agreement for a long time.
is there an "entirety clause",which means that the final signed contract supersedes and and all prior agreements and understandings? by the way this contract had just such a clause.
conclusion: once you sign a legally and binding contract, you are bound by it. that is precisely why the judge is not going to hear the case in California.
now if the judge with great powers feels obliged to be bound by this contract, don't you think the judge in Del is going to make the parties abide by this same contract?
of course! that is what is known as enforcing the contract! all this other talk is nothing but pure speculation. JMO
Bubba you make a very good point about sam owing money. during the negotiations paul asked several times do you own the bioharp free and clear and sam said yes.
however just before signing sam fessed up and said he owed some korean company 250K. obviously paul wanted the deal bad enough that he went ahead and signed knowing that sam had significant debt and was only disclosing it at the last possible minute. all these facts and exactly how much debt will be disclosed during interrogatories, depositions and discovery.
buba.... first of all i'm flattered that you value my opinion. Like many of us longs, i'm deep in the hole with 350k at .025.
secondly i must thank altruism for sending me the docs. he went through some effort to get them i suspect from Pacer... so these docs didn't just fall out of the sky.
after reading the docs much of what i said previously still holds true even though i spouted off without readings the facts. however based upon my personal experience as an inventor that was forced to sue a fortune fifty company over broken contracts and patents i felt qualified to throw my opinion out on the board.
i cut my teeth suing Honeywell international and i sued them as a pro-se litigant [which means without a lawyer] in federal court for over 1 year before i found lawyers brave enough to take me on contingency. During that time i squared off against three law firms one of which was the 9th largest law firm . so i do have a thumbnails sketch when it comes to IP matters etc. and disputes like this.
Enough... Pauls lawyers are good, thorough and well reasoned. he is in capable hands.
As i previously postulated, pauls team took a shot at venue. after reading their well constructed brief i don't blame them for trying. However, the contract between pl and sm specifically states any and all disputes are to be settled in Del. Though pauls lawyers put forth a good reason to go to Cal., and based upon the judges response, paul is going to get bounced to Del. No big deal except more expensive due to travel etc.
sams attorneys so far have done a minimal amount of work and are soley hanging their hat on wrong venue and improper service! this is all baby shit. they are adament about squaring off in Del., so unless they want it heard in Cal., which they don't! the judge is not going to change what the parties have already agreed to in the final contract. paul looses on venue.
Sams lawyers are also hanging their hat on improper service...
This is another minor issue it is my opinion that under the conditions and the evidence put forth... service was proper.
however... the judge for her own reasons could rule against paul and the case just gets tossed. No big Deal!
However the judge must come to terms with how paul needed to serve a man who is knowingly hiding out ibn a foreign country.
Now that Sam has lawyers, [before he didn't] paul will just serve sams lawyers since they now represent him. simple.
As to jurisdiction, that means is this ripe for federal court or state court? well pauls lawyers are citing transfer of ownership and assignment of all patents, trade secrets and IP so the fed jurisdiction should be fine. However if paul gets bounced to Del state court because the federal burden falls short we will still be fine as well.
What i feel is most mind boggling... sams lawyers are only interested in improper service and venue. these two items are so minor in the scheme of things. They mention nothing about jurisdiction, they don't say that sam signed this contract under duress to the contrary sams sworn affidavit states that he signed the agreement after much contemplation! His lawyers are not claiming that the contract is invalid, or sam didn't get paid enough or on time, yada, yada, yada... Seinfeld moment.
conclusion... we are going to Del the judge is not going to change the contract... she really can't without opening herself up to appeal. no biggie
the contract is well written, all parties signed, consideration was given, sam assigned everything to paul, and to top it off sam did not back out of the contract as required in writing during the 30 day window. HE IS LOCKED IN!
Sam will loose and he will loose resoundingly once this case finds a home in del. for reasons only known to him he has played these games and hid in korea which has done nothing more then to set the stage for his own demise... he has destroyed his credibility.
Furthermore, he now has lawyers so we have an address and a point of contact for him through these officers of the court so he can no longer claim that he can't be contacted.
the game is about to begin in earnest, and if this device works...and i sure as heck hope it does, it will be back where it belongs at XMDC.
anyway patience is called for, because we need at least 3 months to go by before we get any traction in the courts.
Last thought, going by the papers alone and especially sams lawyers i can easily surmise that both sides are not talking about anything,there is no such tone in any of the pleadings!
our only hope is that sam comes to Jesus of that the US courts can real him in. It's one of the two. hope this helps
Altruism.... read all of the docs last night and i want to thank you for going out of your way. i sent you back an email with my brief thoughts and contact info.
thanx altruism i'll read it and get back with you hopefully early tonight. email is smoor20073@aol.com
sorry dragon52 she is booting it for improper jurisdiction and venue. the additional facts that she is looking for is to justify staying in front of her court. it is not that paul doesn't have a case... he does the agreement was breached.
by the way where can i read the contract between paul and sam. i think i could intelligently add to this discussion if i could read that doc... anybody?
i agree wholeheartedly pl's case is definitely going to get bounced... Del state court he we come...
string all well thought out points!. i hope your reasoning is correct. however, the appeals court won't get involved until the case had been tried and appealed on the fed level. but i understand what your angle is. they tried the federal option, now the door to that court system is closed and they must proceed on the state level.
as for the other posters observation, yes both sides must travel from Cal to Del. there is no debate on that point.
notice how nobody is calling paul a scammer anymore. personally, i never believed that junk for one minute. look at metter and moskowitz of spnonge.
anyway, i'm just having a slight release armchairing like the rest of us longs. hope it all works out, eventually Sam will be found to have no hand. GLTA
here is the reason... lawyers must be admitted to each states bar if they wish to practice law in that particular state. perhaps pl's lawyers are not licensed in Del. in that case they would have to go through another law firm that is licensed to practice law in Del. this is known as pro hoc vice.
this is no big deal but it does get another law firm involved and it will definitely run up pl's bill because he needs to hire another firm.
the biggie here is that pauls lawyers must fly to Del every time there is a face to face with the judge. and there are postponments and last minute cancellations!!!
best solution... del and the surround states have any number of super qualified law firms to do paul's bidding. he needs to hook up with a local east coast firm that is licensed to practice in Del. it will just eliminate everything i just mentioned. that is what i would do... the Cal. law firm will now just complicate matters. JMHO
here's the deal... i'm an inventor and i sued a fortune fifty corp in fed court. it took me 4.5 ys to get to trial.
this case is simpler and both sides are very small players that don't have expensive lawyers and deep pockets and that's good for us.
since this case is a straight breach of contract, it should move along fairly fast, especially once the facts come to light.
on the other hand, this could play out for one year before summary judgment briefs are filed, this is an exercise where the facts on pauls side could put sam in a headlock. a lot depends on the court, the judge and of course the lawyers. so far pauls lawyers are off to a sloppy start. scary.
i read it and understand it... here goes. the contract has a Del venue court provision. that is etched in stone because the final contract supersedes any and all prior agreements. pauls attorneys for costs and ease of litigation tried to sneak in the Cal venue. they took a calculated shot and in my opinion will loose, and if you read the judges words they have lost already.
lawyers operate on a principle "that it is easier to obtain forgiveness than to get permission." this tactic often backfires and it did here big time.
as for the federal question regarding patents paul looses again. his attorneys wanted to scare Lee by going to federal court... way more prestigious than state court. again they tried. if you read the judges words they paul lost this one as well.
HOPE and Clarification
keep in mind the judge uses the phase "dismissed without prejudice" that means that pauls lawyers will have to start at square one and refile in Del state court. if she said "dismissed WITH prejudice" then the door to refiling the suit would be closed forever.
CONCLUSION: Sams counter suit is pathetic... venue and jurisdiction. in a much earlier post i did say that oftentimes lawyers do get this wrong, but it doesn't stop the suit, but what it does is slow it down and that's what we've got here.
Pauls gonna sue Sam, but he's gonna do it in Delaware state court and not in the Federal court in Ca.
This is strictly a prima facia breach of contract case, the complaint should be streamlined and filed ASAP in Del state court as soon as paul gets kicked out of Cal Fed court.
i am long this stock and now like you, I must wait until mid to late summer in order to get where we are today. i would have never of taken this route in a million years, piss poor legal advice and chalk it up to paul being a greenhorn.
JURISDICTION and VENUE
before filing any lawsuit two critical issues must be determined. they are as follows: jurisdiction and venue
now many people here have confused controlling law which governs the contract with the venue which determines where the physical courthouse is located.
remember, proper venue is nothing more than determining where court house is located to hear the case.
venue is determined by two things: where are the parties domiciled [physical business locations] and secondly; where would they COMMONLY do business.
jurisdiction refers to whether the law suit should be brought in a state court or federal court. obviously this is a civil law suit that has a federal question or it would have never been allowed to be heard on the federal level in the first place. if the jurisdiction was incorrect the magistrate judge who handles the federal judges pretrial duties would have immediately kicked down paul's suit to the state court due to improper jurisdiction. as we all know this did not happen so at this stage we must assume the jurisdiction is correct. FOR EXAMPLE... ALL IP cases such as patents and trademarks fall under the Federal court system. and if i had read the complaint, i would see that there must be a Federal question.
as for the venue and proper service my position still holds.
just from personal experience if you don't mind. the final contract signed certainly specified "controlling law" and it would have read something like this,"this contract shall be governed by the by the laws of the state of Del. and the laws of this state shall supersede the laws of any other state." that simply means the contract must be governed and interpreted under the laws of DEL.
if the contract specifically states that all disagreements must physically be held in a DEL court; then the CAl venue would be INCORRECT... but i seriously doubt it!
if the Cal. venue is correct, then the law governing the fight will be done under the laws of DEL. simple happens every day.
it is ridiculous to think that both parties who are doing business in Call agreed to travel 2500 miles from their respective bases of operation in order to settle a dispute in DEl.
Lastly, as stated in my prior post, pauls lawyers know a hell of alot more than any one of us and would never have in a million years made such elementary mistake on service and venue.
plmg... you are very welcome i share you're sentiments exactly.
plmg... you are very welcome i share you're sentiments exactly.
string has it right. by any measure the venue is correct. venue is based on domicile and where business has been conducted. improper service is laughable because that has been done properly as well, processes service is simple.
PL has hired 2 law firms so we know beyond a doubt this breach of contract is legit, or they wouldn't of taken the case. lawyers who are legit don't make these childish mistakes such as venue and service. it just that simple. and yes, can SL claim improper venue and service.... yes he can. can he ask for an extension and be granted for 10 days or 30... yes he can. courts are lenient with time, they done care about time like we do.
once the magistrate judge determines that SL is out of line after these initial stall tactics the case will move forward.
SL has already made his counter claims and they were for service and venue. he has already shown that he has no hand. the next step is interrogatories where he must answer in writing very direct questions from PL's lawyers. now those questions and answers will tell us whose really telling the truth here. i'm still squarely in PL's corner. hopefully after rogs, the game of chicken on SL's part will end.
jurisdiction and venue.... there are a lot of experts here, but very few a are familiar w/ filing a lawsuit in federal court. first of all, even the best law firms can sometimes get this very basic, but crucial detail wrong.
in a nutshell jurisdiction is determined in large part by where both the plaintiff and defendant are domiciled and where they conduct their business activities... so we know right off that California is the proper jurisdiction.
venue is determined by the federal rules of civil procedure. in this case there must be a federal question for it to be in federal court. one just needs to look at XMDC's claims that they filed, and if there is one or more federal questions, then the venue would be correct. Period.
XMDC's lawyers surely know that they must have grounds to be filed in federal court or they wouldn't have filed there.
Sam's counter claims are due any day now and , this something that he must do,or he will loose by default. once Sam's counterclaims are filed,they will become public knowledge and at that time we'll all know his defense. this process in that regard is very straight forward. patience here is key,
still here entire position have to hold until lawsuit progresses
contract law....once the contract is signed it is in full force.period.then both parties must abide by what is governed by the contract such as an agreed upon exchange of compensation etc.etc. if paul and sam signed this contract it will be a slam dunk for XMDC. if sam wanted out he needed to do so in writting and preferably by his attorney. end of speculation about what shares were given and when. besides the history has been put forth in the complaint.and if paul tendered a second batch of shares to sam, i can assure you this was clearly spelled out in the contract.
garden rose i respectfully disagree. significant consideration was transferred from one party to another and a significant agreement was framed out and agreed to by the parties. if mr lee didn't put it in writing to paul that he wished to break the deal... then he's toast. by the way he's still holding all those shares. if he wanted out and gave paul a box of junk, then he should of returned the money promptly and broken the deal legally...in writing..
well written complaint.... this is not a game to file on the federal level. anyone accusing paul of being a fraud and running to Cabo is ... well just an educated fool. if paul was pulling a fast one on the shareholders he would have never have filed such a complaint because he'd get roasted in the process. becuase of this filing MR lee will not be allowed to conduct any busines or sell or assign this technology to any company doing business in the US.
time frame to respond to a complaint field in district court is 10 days, nearly without exception the plaintiff will grant 30 days for the defendant to respond. if this case was to run the full course to trial it will be anywhere from 2.5 to 4 years before XMDC will ever see the inside of a court with jurors.
walk away clause explained....all contracts of this type have a section referred to as break up or escape clause. the reason why the high powered law firm took XMDC as a client is because the breakup clause in the contract clearly states that if either party wants out of the agreement they must do so in writing. best case senerio, Lee broke the contract without doing so in writing.if that's the case there is no debate who's in breach. to void a contract one party must advise the other party of their wishes to do so and this must be done usually with 15 days notice.
this is an excellent observation. do u know that the Exxon Valdez has not settled yet after 20 years and is in the supreme court now. and that the damages have shrunk over time from 4.4 billion to 430 million. this judge has to settle this case it's implications are way to far reaching as to how corrupt our system really is.
Thanx guys for answering my questions. i'm gonna take a position. thanx again.
thanx anyway, i was just wondering out loud if this particular stock's time has come to take off into something major because mining stocks take such a long time to maturity.
MTSR if you have been around this stock for 14 years i'd like to ask you your opinion regarding these new potential finds.is this what you have been waiting for? this seems to be a very intelligent board and i've been doing my DD that so many of you guys have provided, but being an old timer here, what are your thoughts? i appreciate your answer
The most intelligent board on all of IHUB by far. Question.
why hasn't all of the big smart wall street money gobbled up all of these cheap shares? like they did for AIG when she ran for 50 cents to $60 {yes i realize there was a modest reverse split} i read your scenarios and agree, however i just can't fathom why pps isn't going through the roof in anticipation? can someone please answer, i do have a small position. thanx
You are absolutely right. i was in the inventing and licensing game as an inventor w/ many patents. it took over a decade for my first ship to come in. what many investors can't comprehend is that many of these venture that we invest in, takes time... lots of time. dean is in a waiting game and there's only so much he can do until he gets the approval. this is waiting game and he's just following what he believes is the next logical progression for him.
There is nothing wrong with that approach, and in fact it might be the best one. However i was just addressing the fact that Dean said he knew many radiologists and right away everyone starts shouting about a conflict of interest. just so you know expert testimony can be a very expensive proposition that might be why Dean said that he knows many people in this field. Maybe he was thinking out loud. Whatever the case Dean is a very smart guy.
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