summary judgement is usually filed for when one pa

summary judgement is usually filed for when one party (usually plaintiff) feels the other has not mounted a defense or a credible one in respond to the claims/suit. It is basically saying the other side provided no credible response to teh claim (as a matter of law) and therefore the judge should summarily rule upon the existing facts instead of moving to trial.

Motion for Summary Judgment

Definition. A request for a decision by a court of the matters submitted to it, based upon legal arguments only, where no material facts are in dispute.

A motion for summary judgment can be granted to resolve disputes involving legal interpretation, but not disputes regarding material facts. Summary judgment, generally, is a pre-trial remedy sought where, based upon facts not in dispute, and an application of the law to those facts, a party is entitled to a judgment on a claim. The judge cannot decide disputed facts in a summary judgment proceeding. If any facts material to a claim are disputed, then summary judgment cannot be granted on that claim.

Summary judgment proceedings are governed by Rule 56, Federal Rules of Civil Procedure.

Federal Rules of Civil Procedure
Rule 56. Summary Judgment
(excerpts)
"A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move ... for a summary judgment in the party's favor as to all or any part thereof. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."


i did not see that coming. i find it rather interesting legally as it does suggest $HJOE is very confident in the counterclaims. courts/judges do not like summary judgment motions being used arbitrarily or as a matter of more legal maneuvering. further, there was a Supreme Court case on the over reach of using summary judgment as the defendant must be given every reasonable opportunity to mount a defense and any reasonable attempt to provide evidence/mount one should be given credence. so - for the HJOE attorneys to file for this on a counter claim is either a bold/strategic legal maneuver or they feel they have provided the court with sufficient evidence/causation for judgment in which KBM has not tried to defend itself.

it is now up to KBM to answer the motion for summary judgment. they could respond with their own motion for summary judgment in the initial claim while summarily dismissing the claims in HJOEs motion. or they may decide now is the time to cut strings and quit poking the beast. if their position is as weak as some/most of us on here assume it is - that could be the reason they have had several attorneys. while losing a case doesn't lose the attorneys any money - it isnt good for the W/L record to attract new clients. further, while they still are getting paid, fighting a losing battle makes them a lot less then arguing a higher reward/less risky case so the opportunity cost for fighting a losing battle is high. they also dont want to piss off judges with legal wrangling on a weak case. especially if they have already been warned.

this is where it gets interesting for KBM. they have by far the most to lose. even if HJOE "loses" the case and has to pay penalties and/or KBM is allowed to convert, they could do the R/s route and blow out the AS until its over. KBM has a much higher risk should they lose. the longer they fight and the longer they are in the public eye, more companies will become emboldened to take action (or specifically - to bear the cost as a risk/reward to taking action). further, it puts the dirty laundry front and center for regulators where the investigative work was paid for third party (by HJOE). if they lose after a protracted battle - it is open season on them and more than likely - the normal course of business they have employed is over. if they do not win convincingly - it still emboldens others (and invites an appeal by HJOE).

on the flip side - they MUST give the appearance of putting up a staunch fight and acting confident so that even if they do settle and more than likely tie the results up tight with an NDA - others arent emboldened to take the risk not knowing the outcome. Unfortunately - we will not know the outcome of the PLN trial (if there was any type of settlement) until they file. even then - we wont know details - only if there was cash involved that shows up as "other revenue." however, since PLN was the only source it more than likely would come from - it could be reasonably assumed as the source of revenue (per the settlement).

there are certainly egos on both side in play. however, for one side it was vindictive and personal. the other side it was greed and arrogance. but never underestimate Ego or principle in lawsuits. they will carry trials far past the point of sensibility when it comes to ROI. sometimes principle really is what it is about (not the money) and other times, EGO goes way past the point of financial return.

for P.Vito's scenario below - it probably represents the best outcome for both parties with respect to moving forward with the least amount of potential damage to both:

"KBM with file motion to forgive the loan and dismiss the suit WITHOUT prejudice and to have all HJOE claims dismissed WITHOUT prejudice.

This is the only way out for KBM and is actually a win-win for HJOE.

Any other scenario going forward will be costly (attorneys win) with great risk on both sides. "

while neither recovers any "damages" - both move on with their respective businesses with limited further "impact." this means HJOE can file and move forward and KBM does not put the big target on its back for further suits.

unfortunately, i have been involved with enough legal issues in the business realm where i know first hand that rational, facts, ethics can go right out the window when it comes to judges' rulings. one attorney tells his client they just got really lucky and the other attorney is telling his client that that is the nature of the system/judges. it is very unfortunate but a matter of reality. again, I have been there firsthand and stood stunned at the absolute incoherent logic of the judge's ruling. now - the higher up one gets and being a federal judge - that tends to be less the case as the bad judges get systematically weeded out. however, it still is largely up to the judge at each level.

unfortunately - this is another month of "waiting" unless KBM files early and/or they reach a mutual settlement/agree to a dismissal on both sides.