Re: Alan Wake 1.06 Update
Randolfo Rasberry
Valorant has been getting a lot of new content with the game's latest updates, including Agent Killjoy. While there's a lot to look forward to, there is also a bug that has been introduced to the game that allows players to walk through walls under certain conditions.
On August 20, Riot Games updated the game with Patch 1.06. The new changes balanced shotguns, included ability changes, and fixed a few bugs that had previously popped up in Valorant matches. While some bugs were patched in the update, it seems that at least one bug was created, and now players can run through walls on Ascent.
One Valorant fan who discovered the glitch posted it on Reddit to share with other players. In their report, the player linked to a clip of Agent Jett shooting at the enemy team from inside a building near the attacker's side of B bombsite. The player attempted to move back into cover and hide behind the crates in B main, but instead, they phased right through the wall into the sites of the enemy Jett, who quickly took them out.
Though the player was unable to recreate the glitch again on their own, they suggested that the bug may have had to do with their interaction with both the wall and Sage's Barrier Orb, which had gone off over Jett's head before the character phased through the wall.
While Riot Games hasn't responded to this glitch as of the time this is being written, it is a difficult glitch to reproduce. However, that doesn't mean that some unsuspecting player won't replicate it in the future. Though the recent patch may have solved some of the issues that players have encountered while playing the game, it appears that some have slipped through the cracks, including another glitch with Agent Phoenix's Curveball. Since the FPS game has only been out for a few months, there hasn't been much time for players to root around in Valorant and find all the issues that need to be fixed.
Though the newest update brought a few bugs with it, the patch also provided players with some new changes that they had been hoping for. Going forward, there are still some glitches in the game that Riot Games will want to fix, and maybe with these fixes, the developer will also add features that players are looking for like toggling Valorant weapon cosmetics into the game.
Before the court are (1) the motion in limine of defendant Marietta Corporation (Marietta) to dismiss Counts I, V, and VI of the Second Amended Complaint (SAC) as time-barred and to preclude the plaintiffs (collectively, Rowe) from claiming any damages from alleged shortfalls in earn out calculations for fiscal years 1989, 1991 and 1992,[1] and (2) the motion of Marietta for *837 judgment on the pleadings on Count IX of the SAC, pursuant to Federal Rule of Civil Procedure 12(c).
While Marietta styled this proceeding as a motion in limine, the Court notes that, in substance, this motion seeks the dismissal of three counts of Rowe's securities law claims on limitations grounds and preclusion of Rowe's breach of contract claim as time-barred pursuant to the express terms of the contract.
A defense predicated on a statute of limitations is an affirmative defense. FED.R.CIV.P. 8(c). The Court construes Marietta's assertion of a contractual limitations or estoppel argument, vis--vis Rowe's breach of contract claim, as volenti non fit injuria, a defense not listed in FED.R.CIV.P. 8(c), but viewed as an affirmative defense nonetheless. 5 CHARLES A. WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE 1271, note 27 (2d ed.1990).
Generally, an affirmative defense must be raised for the first time in the defendant's answer, or may be brought by motion prior to filing an answer. FED.R.CIV.P. 8(c), 12(b) (6). Failure to raise an affirmative defense in accordance with the Federal Rules of Civil Procedure may constitute waiver of that defense. See Colonial Refrigerated Transport, Inc. v. Worsham, 705 F.2d 821 (6th Cir.1983); FED.R.CIV.P. 8(c), 12(b) (6). An affirmative defense which has not been waived may also be raised after the close of pleadings in a motion for judgment on the pleadings. FED.R.CIV.P. 12(c). In Paragraph 172 of its Answer to the SAC, Marietta asserts, as to Counts I, V & VI of the SAC, the affirmative defense of limitations. Marietta posits its affirmative contractual defense to Rowe's breach-of-merger contract claim (Count XI) at Paragraphs 192 and 193 of its Answer to the SAC.
Accordingly, the Court elects to treat this motion in limine as a motion to dismiss pursuant to FED.R.CIV.P. 12(c). Cf. General Elec. Co. v. Sargent & Lundy, 916 F.2d 1119 (6th Cir.1990) (motion in limine based on statute of limitations construed by court as motion for judgment on the pleadings). Marietta supports its motion in limine with deposition testimony and other evidence outside of the pleadings. Rowe's response in opposition also relies on matters outside of the pleadings. Because Marietta and Rowe both rely on matters outside the pleadings, and because the Court finds that neither party will be surprised or prejudiced by conversion, see Dayco Corp. v. Goodyear Tire & Rubber Co., 523 F.2d 389 (6th Cir.1975), the Court, guided by FED.R.CIV.P. 12(c), elects to convert the instant motion to a motion for summary judgment.
When confronted with a properly supported motion for summary judgment, the nonmoving party must set forth specific facts showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). A genuine issue for trial exists if the evidence is such that a reasonable trier of fact could return a verdict for the nonmoving party. Id. The party opposing the motion must "do more than simply show that there is some meta-physical doubt as to the material facts." Matsushita Electrical Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986). In short, the nonmoving party may not oppose a properly supported motion for summary judgment by mere reliance on the pleadings. Celotex, 477 U.S. at 324, 106 S. Ct. at 2553. "[I]n the `new era' of summary judgments that has evolved from the teachings of the Supreme Court in Anderson, Celotex and Matsushita, trial courts have been afforded considerably more discretion in evaluating the weight of the nonmoving party's evidence." Cox v. Kentucky Dep't of Transp., 53 F.3d 146, 150 (6th Cir.1995). "If the record taken in its entirety could not convince a rational trier of fact to return a verdict in favor of the nonmoving party, the motion must be granted." Id.
At all times relevant to the disposition of this motion, Marietta was a publicly-owned corporation. The business of Marietta included the design, manufacture and distribution of guest amenity items for the travel and lodging industry. Marietta's stock was registered with the Securities Exchange Commission (SEC) and was traded on the National Association of Securities Dealers Exchange (NASDAQ), a national exchange regulated by the SEC.
American Soap Company (American Soap) was, until March 17, 1989, a close corporation. Marietta acquired American Soap on March 17, 1989, and thereafter operated it as a wholly-owned subsidiary under the name, Marietta American.
Pursuant to 15 U.S.C. 78m(a) and 17 C.F.R. 13 and 1, respectively, Marietta was required to file quarterly (10-Q) and annual (10-K) reports with the SEC. One purpose in requiring public companies to file these reports is to provide the public with true information on the financial condition of the companies listed on public exchanges. 15 U.S.C. 2 (1934). Marietta's president and treasurer signed all submissions to the SEC. Marietta's fiscal year began on October 1 and ended on September 30 of a given calendar year.
Nadolski has been tried and convicted in the United States District Court for the Northern District of New York on the above four violations of securities laws. In the same proceeding, Nadolski was tried and acquitted of one count of conspiracy to commit securities fraud in violation of 18 U.S.C. 371 and 1001, and of one count of securities fraud in violation of 18 U.S.C. 2 and 1001.
Donald Rowe was, at all times leading up to the acquisition of American Soap by Marietta, the majority shareholder, chief operating officer and president of American Soap. During 1987 and 1988, negotiations took place between Marietta and Rowe for the acquisition of American Soap.
The earn out agreement had two components: (1) the Glycerine Credit and (2) the Soap Earn Out. Under the Glycerine Credit, Rowe was entitled to a specific percentage of revenue from Marietta's sale of glycerine, to the extent that revenue[5] exceeded a pre-set threshold. In the Soap Earn Out, Rowe was entitled to a specific percentage of Marietta American's EBIT's[6] from soap sales, over certain pre-set levels. Shortfalls under the Soap Earn Out would be carried over and added to the threshold for the next year. Revenues, costs, or expenses included in calculating Glycerine Credits were not to be factored into the calculation of EBIT's, and vice versa.
The Purchase Agreement provided that independent accountants would prepare and deliver to Rowe and Marietta a statement *841 setting forth calculations of the two components of the earn out agreement, within 120 days of the end of the fiscal year. Paragraph 1.06(e) of the Purchase Agreement allowed Rowe to contest the accountants' calculations as set forth, in pertinent part, below:
On October 31, 1991, Marietta issued a press release which revealed that Marietta had "discovered possible defalcations of Company funds by a former financial officer aggregating at least $385,000 and of possible misstatements in the Company's financial statements for its 1988 and 1989 fiscal years." On December 19, 1991, Marietta issued another release to the effect that preliminary audits conducted in the wake of the embezzlement announcement revealed irregularities in financial statements for fiscal years 1987-1990, significant overstatements on reported earnings for the fiscal years 1988 and 1989, and that Marietta's outside auditor had withdrawn its opinions for fiscal years 1988-1990.
7fc3f7cf58