Tuesday, November 30, 2010

Throw it Agsint the Wall and See if it Sticks

What do you do if you are sued for committing a massive fraud against someone, and you know you are guilty?  If you are like me then you don’t know because you aren’t a criminal!  If you are David, Tom and Larry then you have your attorney try to dismiss the case with every dismissal option allowed by the Federal Rules of Civil Procedure.  (Note: I consulted an attorney after I saw the latest Motion the Defendants filed in the Civil Case.)

Neil C. Evans, the legal counsel for David, Tom and Larry, filed another Motion to Dismiss entitled Notice of Motion and Motion to Dismiss for Failure to Join Indispensable Party (12) (b) (7) ) and to Dismiss for Lack of Subject Matter Jurisdiction (12) (b) (1) ) (Case 3:10-cv-01349-O ; Pages 195-201).  When an attorney for a Defendant knows that the Plaintiff has a very strong case then this is a tactic to try and (i) get a case dismissed on a hope and a prayer, or (ii) delay the process because the Defendant cannot answer the lawsuit without incriminating himself/herself.  The attorney I consulted also stated that there is a special reason for Neil to stall the Civil Case that is specific to this situation.  On January 11, 2011 David and Tom will face a grand jury trial in their Criminal Fraud Case.  Neil does not want any of their fraudulent activities in the Civil Case to affect their Criminal Case.  Thus, he does not want Freestone to take any depositions that could be used against David and Tom in the Criminal Case by the U.S. Attorney’s Office. 

Freestone also alleges some serious securities fraud violations.  These same violations could be argued in an ESS case against David and Tom.  More importantly I think everyone that purchased stock in ESS should contact the Securities and Exchange Commission and notify them that David and Tom sold securities through lies and misrepresentations.  Tell them about the Desist and Refrain Order issued by the California Department of Corporations (they are like California’s SEC).  Or contact OSHA and notify them that David and Tom have exposed investors to hazardous chlorinated substances which are also listed in the Desist and Refrain Order during their demonstrations in complete violation with the Toxic Substances Control Act (TSCA)15 U.S.C. §2622.  You will be protected as a whistle blower.   

It still amazes me that Neil Evans needs multiple continuances in the Criminal Case, but he has all the time in the world to file motions in the Civil Case and fly to Texas for hearings.  Something here doesn't add up.   

Once Freestone responds I will give a detailed account of the Defendants’ Motion and the Plaintiff’s Response similar to the blog entry that discussed their previous Motion to Dismiss for Lack of Personal Jurisdiction.  If you don’t remember, the Judge denied their previous attempt to dismiss this case.  So, there might be another hearing in this matter and Neil will fly back to Texas on ESS investor’s money.  This is the type of stuff you see on American Greed. 

-ESS Investor 

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