California Case Update

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Despite our long term concerns for XF, the longer this drags out, in some way, is better for XF's incoming revenue. You know.... bad publiciity can be good sometimes. The general rule in society is that no one likes a bully, almost every normal person roots for the underdog and very often despises corporate greed, especially in this day and age. So as more and more folks get disgusted with IB, simply because of their corporate behavior, a switch to a different software is going to increase with some of that switch coming to XF. While XF may not make any money over costs (break even) during this, IP just paid for XF's defense indirectly through new sales from disgruntled vb owners.. Jackasses. Of course, the above may seem obvious to everyone but I think sometimes we forget this amidst all the drama a forum can produce.

In the meantime, there are things that XF can do to generate additional revenue, not sure why they aren't employing things but none of my business either as I'm just an arm chair quarterback like all of us.

It is also obvious that there are people on this and coming to this forum who are doing what they can do show prospectivel buyers (viewers) the benefits of VB over XF. Which I don't see any but that is just my opinion. Why XF allows this is again not my business. I'm sure this in turn doesn't help XF sell more product, thus not helping to increase revenue above what is needed for legal expenses.

And finally, I'm sure there are little pukes coming here reporting back to VB what they see here, making the sealing of documents more common now as docket information from this case is easily accessible for anyone. Just an observation.

I'm still willing to go female on them. LOL ;)
 
Damn! I want to see Docs 118-120 SO BAD! From the last doc that IB's Lawyers wanted sealed, it was pure GOLD! Must see those docs!!! AAHH!!!

Come on @Shamil, HACK THE GIBSON!
 
robdog said:
Damn! I want to see Docs 118-120 SO BAD! From the last doc that IB's Lawyers wanted sealed, it was pure GOLD! Must see those docs!!! AAHH!!!

Come on @Shamil, HACK THE GIBSON!
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Wanted to see it to but under seal it will mean it never comes out in the open i think.
 
robdog said:
Damn! I want to see Docs 118-120 SO BAD! From the last doc that IB's Lawyers wanted sealed, it was pure GOLD! Must see those docs!!! AAHH!!!

Come on @Shamil, HACK THE GIBSON!
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As much as I want see it, and believe me, hacking it could be on the table (albeit a small round table)...

we_are_borg said:
Wanted to see it to but under seal it will mean it never comes out in the open i think.
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It'll be destroyed after the case if over, I believe.
 
Docket 118: SEALED DOCUMENT- PLAINTIFF'S APPLICATION to File Under Seal Declaration of Patrick Fraioli and Accompanying Exhibits in Support of Reply in Support of Motion for Leave to File Third Amended Complaint. (mat) (Entered: 05/21/2012)

Docket 119: SEALED DOCUMENT- ORDERGranting Plaintiff's Application to file Under Seal Declaration of Patrick Fraioli and Accompanying Exhibits in Support of Reply in Support of Motion for Leave to File Third Amended Complaint. (mat) (Entered: 05/21/2012)

Docket 120: SEALED DOCUMENT- DECLARATION of Patrick Fraioli in Support of Reply in Support of Motion for Leave to file Third Amended Complaint. (mat) (Entered: 05/21/2012)

Docket 121: MINUTES OF #1) Defendant Ashley Busby's motion to dismiss 2nd amended complaint for lack of personal jurisdiction (fld 3-19-12); and #2) Plaintiff's motion for leave to file a 3rd complaint (fld 4-12-12) held before Judge Manuel L. Real: The parties submit on their papers as filed. The Court GRANTS item # 1 as listed above, with prejudice, and GRANTS IN PART and DENIES IN PART item # 2 as listed above, for reasons, and as stated, on the record. Defendants shall submit a proposed order. Court Reporter: Bridget Montero. (jre) (Entered: 05/23/2012)
 
The court won't "destroy" the documents; the judge may keep it under seal, or may hold a hearing/proceedings on what should be published/available for public inspection and what should remain under seal. Local practice and standing orders can impact how this is handled.
 
Shamil said:
Docket 118: SEALED DOCUMENT- PLAINTIFF'S APPLICATION to File Under Seal Declaration of Patrick Fraioli and Accompanying Exhibits in Support of Reply in Support of Motion for Leave to File Third Amended Complaint. (mat) (Entered: 05/21/2012)

Docket 119: SEALED DOCUMENT- ORDERGranting Plaintiff's Application to file Under Seal Declaration of Patrick Fraioli and Accompanying Exhibits in Support of Reply in Support of Motion for Leave to File Third Amended Complaint. (mat) (Entered: 05/21/2012)

Docket 120: SEALED DOCUMENT- DECLARATION of Patrick Fraioli in Support of Reply in Support of Motion for Leave to file Third Amended Complaint. (mat) (Entered: 05/21/2012)

Docket 121: MINUTES OF #1) Defendant Ashley Busby's motion to dismiss 2nd amended complaint for lack of personal jurisdiction (fld 3-19-12); and #2) Plaintiff's motion for leave to file a 3rd complaint (fld 4-12-12) held before Judge Manuel L. Real: The parties submit on their papers as filed. The Court GRANTS item # 1 as listed above, with prejudice, and GRANTS IN PART and DENIES IN PART item # 2 as listed above, for reasons, and as stated, on the record. Defendants shall submit a proposed order. Court Reporter: Bridget Montero. (jre) (Entered: 05/23/2012)
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Is 121 available yet?
 
Slavik said:
http://blog.shamil.co.uk/pdf/vbsi-xfl/121.pdf yey
Is there any transcript available?
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All you need to read:


IB.delay.tactics.failing.prejudiced.webp


Note: I may have added a few subtle things to the document. "Document may contain alterations". Consider yourself warned.
 
Clickfinity said:
2 b. was at the Plaintiff's request - so isn't that a withdrawal rather than a dismissal by the judge?
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No, it is a dismissal. Note that the plaintiff asked for the claims to be dismissed and the judge dismissed them. So, it is a dismissal. It is probably just semantics anyway, but a withdrawal might put things in a different procedural posture (i.e., with a withdrawal, it is likely that the same claims might be more readily asserted again later, vice a different standard of review with a dismissal). Theory and semantics aside, the "proof" of what it is is found in the language used by the court- "dismissal" is the way this quacked, walked, and was described by the court. Absent some successful objection by the plaintiff, it is a dismissal.
 
I don't think it is just pedantic, this difference between withdrawal and dismissal. I think a dismissal has important implications for appeals under Federal Rules of Appellate Procedure; this is not so for a withdrawal.
 
Shamil said:
I'm not home now but can you look up FRCP 41 - I think and FRAP 42
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http://www.law.cornell.edu/rules/frap/rule_41

http://www.law.cornell.edu/rules/frap/rule_42

Here is the text of FRAP 42:


RULE 42. VOLUNTARY DISMISSAL

(a) Dismissal in the District Court. Before an appeal has been docketed by the circuit clerk, the district court may dismiss the appeal on the filing of a stipulation signed by all parties or on the appellant's motion with notice to all parties.
(b) Dismissal in the Court of Appeals. The circuit clerk may dismiss a docketed appeal if the parties file a signed dismissal agreement specifying how costs are to be paid and pay any fees that are due. But no mandate or other process may issue without a court order. An appeal may be dismissed on the appellant's motion on terms agreed to by the parties or fixed by the court.
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Note, though, that this would deal with the appeal to the Circuit Court of Appeals, not the issue with a dismissal (or withdrawal) of a claim in the trial court. The issues are different.
 
Here you go, FRAP 41:



RULE 41. MANDATE: CONTENTS; ISSUANCE AND EFFECTIVE DATE; STAY

(a) Contents. Unless the court directs that a formal mandate issue, the mandate consists of a certified copy of the judgment, a copy of the court's opinion, if any, and any direction about costs.
(b) When Issued. The court's mandate must issue 7 days after the time to file a petition for rehearing expires, or 7 days after entry of an order denying a timely petition for panel rehearing, petition for rehearing en banc, or motion for stay of mandate, whichever is later. The court may shorten or extend the time.
(c) Effective Date. The mandate is effective when issued.
(d) Staying the Mandate.
(1) On Petition for Rehearing or Motion. The timely filing of a petition for panel rehearing, petition for rehearing en banc, or motion for stay of mandate, stays the mandate until disposition of the petition or motion, unless the court orders otherwise.
(2) Pending Petition for Certiorari.
(A) A party may move to stay the mandate pending the filing of a petition for a writ of certiorari in the Supreme Court. The motion must be served on all parties and must show that the certiorari petition would present a substantial question and that there is good cause for a stay.
(B) The stay must not exceed 90 days, unless the period is extended for good cause or unless the party who obtained the stay files a petition for the writ and so notifies the circuit clerk in writing within the period of the stay. In that case, the stay continues until the Supreme Court's final disposition.
(C) The court may require a bond or other security as a condition to granting or continuing a stay of the mandate.
(D) The court of appeals must issue the mandate immediately when a copy of a Supreme Court order denying the petition for writ of certiorari is filed.
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Shamil,

Sorry, I misread your first post as asking for both rules under FRAP. I see you actually asked for FRCP 41; here it is:



RULE 41. DISMISSAL OF ACTIONS

(a) Voluntary Dismissal.
(1) By the Plaintiff.
(A) Without a Court Order. Subject to Rules 23(e), 23.1(c), 23.2, and 66 and any applicable federal statute, the plaintiff may dismiss an action without a court order by filing:
(i) a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment; or
(ii) a stipulation of dismissal signed by all parties who have appeared.
(B) Effect. Unless the notice or stipulation states otherwise, the dismissal is without prejudice. But if the plaintiff previously dismissed any federal- or state-court action based on or including the same claim, a notice of dismissal operates as an adjudication on the merits.
(2) By Court Order; Effect. Except as provided in Rule 41(a)(1), an action may be dismissed at the plaintiff's request only by court order, on terms that the court considers proper. If a defendant has pleaded a counterclaim before being served with the plaintiff's motion to dismiss, the action may be dismissed over the defendant's objection only if the counterclaim can remain pending for independent adjudication. Unless the order states otherwise, a dismissal under this paragraph (2) is without prejudice.
(b) Involuntary Dismissal; Effect. If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it. Unless the dismissal order states otherwise, a dismissal under this subdivision (b) and any dismissal not under this rule—except one for lack of jurisdiction, improper venue, or failure to join a party under Rule 19—operates as an adjudication on the merits.
(c) Dismissing a Counterclaim, Crossclaim, or Third-Party Claim. This rule applies to a dismissal of any counterclaim, crossclaim, or third-party claim. A claimant's voluntary dismissal underRule 41(a)(1)(A)(i) must be made:
(1) before a responsive pleading is served; or
(2) if there is no responsive pleading, before evidence is introduced at a hearing or trial.
(d) Costs of a Previously Dismissed Action. If a plaintiff who previously dismissed an action in any court files an action based on or including the same claim against the same defendant, the court:
(1) may order the plaintiff to pay all or part of the costs of that previous action; and
(2) may stay the proceedings until the plaintiff has complied.
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