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Lawsuit simmers vs. OpenMPE volunteers

Print-Exclusive  Ousted treasurer Matt Perdue has filed a suit against OpenMPE and two of its directors, while the group seeks a fresh round of funding to launch services. But that suit is more than three months old, and although there's been a counter-motion written and served by a lawyer serving OpenMPE, the suit doesn't have any hearing date scheduled in Texas, according to one board member.

  The OpenMPE advocacy group has been in search of a mission ever since HP finally agreed to license MPE/iX source in 2008. The volunteers have a mission to survive this year, facing a lawsuit filed by a board member they removed, a matter that’s pending in a Texas court. At the same time, the six-person board has floated another kind of plea, for a fresh round of funding to pursue projects.

   The civil lawsuit was filed by former board member Perdue in November, just 11 days after OpenMPE voted to remove him from treasurer duties as well as from the board. The group’s minutes report that Perdue was voted out due to failure to pay a check approved by the board. Within a month after he was removed, board members say monies in the OpenMPE bank account that Perdue controlled exclusively were no longer under available to them.

    Perdue’s filing in the 407th District of Bexar Country, where he does business, accuses board members Wadsworth and Jack Connor individually, and the OpenMPE board as a whole, of “not performing their fiduciary duties with respect to removal of... Wadsworth for admitted self dealing in his own personal interests.” His suit doesn’t specify an amount of damages.

    The facts submitted in the lawsuit, which is pending in the district court but has no hearing date set, allege that Wadsworth contacted a co-location service in San Antonio where Perdue had been denied access to his equipment, including OpenMPE’s donated servers. The group had been paying Perdue to host the equipment, a step on a year-long quest to create a new Invent3k server and Jazz outlet. Perdue is suing the co-locator, CCNBI, for turning off the 3000s and other computers over a disputed invoice.

   OpenMPE has hired an attorney who’s drafted a counter-claim to the suit, a document that seeks to dismiss Perdue’s filing. “OpenMPE seeks declaratory judgement that Perdue has no rights or interest in, or authority to act on behalf OpenMPE; and the HP Source Code license is owned by OpenMPE,”  the counter-claim reads.

   The control of the group’s copy of source code, its bank account with a one-signature scheme, the servers and the domain were all in Perdue’s comand on the day the board removed him, according to board members. 

   The action which sparked the board’s dismissal of Perdue was failure to pay a $5,000 check to Wadsworth, a return of a loan which Wadsworth extended to the group to pay for the source code license. The vote of the remaining board members to remove Perdue was unanimous.

    OpenMPE charges in its counter-motion that “Perdue has stolen certain computers and property owned by OpenMPE,” and the group “seeks damages and attorney’s fees.” The group has since replicated the computers, domain and hosting facilities through donations and low-cost agreements with Client Systems, The Support Group and Allegro Consultants (which owns Invent3K, which Perdue promised would be online in fall 2009, finally was booted more than a year later, running on the replacement system.

    In mid-February the volunteer group emailed a letter to the 3000-L and openmpe-L mailing lists that started a fresh appeal for funds, in part to pay for the legal defense against Perdue’s suit. 

   The letter references “the loss of the original Invent3K HP 3000 server and cash related to the dismissal of our former treasurer,” adding that “our 2010 tax liability is at zero.” Tracy Johnson has assumed the duties of treasurer, in addition to current secretary duties, and the group has a new bank account after it froze the one Perdue controlled.

    Perdue said in a mid-January email that the hosting company locked him out of the facility over an unpaid bill. “CCNBI never completed work on a particular server (having nothing to do with OpenMPE). CCNBI demanded full payment of the remaining balance, then illegally locked me out of the space.” What's at issue is whether Perdue and Connor acted counter to OpenMPE's interests by refusing to be a party to Perdue's suit against his hosting company.

   According to OpenMPE’s counter-motion, Perdue was not authorized to engage any attorney on the board’s behalf to sue CCNBI. But a letter from an attorney representing Perdue’s company in the suit says that Anthony Schram was “retained by OpenMPE” in Perdue’s suit filed in another Texas court.

    There have been no hearings scheduled on either the OpenMPE suit or the group’s counter-motion, according to the Bexar County clerk’s office. Perdue filed his suit pro se, meaning he’s represented himself, something that court records in Texas show he’s done on multiple occasions.

   The conflict on the board has led to changes in its officer rolls. Jack Connor, voted onto the board last spring, has been made chairman. The group has suspended its usual spring elections to the board in the wake of the lawsuit, Connor said, as well as the fundraising efforts.

   OpenMPE’s fundraising letter — which proposes a for-profit corporation to resell HP’s 3000 subsystem programs such as COBOL II, operate Invent3k, recommend consultants and more — says it is “restructuring to function as a truly viable corporation. We will move forward as a self-sustaining entity.”

   Once the group regained control of its website, it posted a PayPal button to solicit contributions for any expenses related to maintaining its servers and the legal defense. The volunteers want to raise $50,000. Details to contribute are at