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SCO Files Motion to Amend the Amended Complaint a 3rd Time
Friday, October 15 2004 @ 11:06 PM EDT

This wouldn't have something to do with delay, by any chance, would it?

Or terror about losing some upcoming motions IBM has filed? An insurance plan, to have something left on the table if SCO loses?

SCO has filed a Motion for Leave to File a Third Amended Complaint Pursuant to Federal Rules of Civil Procedure 15(a) and 16(b). The judge doesn't have to say yes, so they say they have filed a memorandum of reasons why they would like him to, and when does he ever say a total no to such requests? The memorandum is sealed:

10/14/04 323 SEALED Memorandum by SCO Grp in support of [322-1] motion
to amend complaint (for leave to file 3rd amended
complaint) (blk) [Entry date 10/15/04]

Of course, they want to talk long, so they've asked for permission to do that too, and so far, they've never been turned down in such requests. They say "SCO must have leave to file its Third Amended Complaint" and that "[g]iven the importance of the issues to SCO, it is necessary for SCO to fully address, clarify and explain to the Court the importance of the amendment."

Sigh. Doesn't your heart just sink to hear this news? This explains the delay on the schedule for the other briefings, I think. It would be sensible on IBM's part to get SCO to show its hand a bit first.

And what are 15(a) and 16(b)? 15(a) basically sets forth when you can and when you can't amend your complaint:

Rule 15.  Amended and Supplemental Pleadings

(a) Amendments.

A party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, the party may so amend it at any time within 20 days after it is served. Otherwise a party may amend the party's pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires. A party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within 10 days after service of the amended pleading, whichever period may be the longer, unless the court otherwise orders."

Because this is the third request, they need the judge's permission, which, as it says, is to be "freely given when justice so requires". That isn't a seriously high bar to get over, so unless the judge has had a bellyful of SCO, he's likely to grant this motion, depending on the arguments and what IBM says in reply.

Rule 16 is about the scheduling order. They evidently are still desirous of altering the scheduling order, so while I can't be sure until we have the memorandum, I'm guessing they will argue they need more time to develop in discovery whatever the new claim or claims in their proposed 3rd Amended Complaint turn out to be:

Rule 16.  Pretrial Conferences; Scheduling; Management

(b) Scheduling and Planning.

Except in categories of actions exempted by district court rule as inappropriate, the district judge, or a magistrate judge when authorized by district court rule, shall, after receiving the report from the parties under Rule 26(f) or after consulting with the attorneys for the parties and any unrepresented parties by a scheduling conference, telephone, mail, or other suitable means, enter a scheduling order that limits the time

(1) to join other parties and to amend the pleadings;

(2) to file motions; and

(3) to complete discovery.

The scheduling order may also include

(4) modifications of the times for disclosures under Rules 26(a) and 26(e)(1) and of the extent of discovery to be permitted;

(5) the date or dates for conferences before trial, a final pretrial conference, and trial; and

(6) any other matters appropriate in the circumstances of the case.

The order shall issue as soon as practicable but in any event within 90 days after the appearance of a defendant and within 120 days after the complaint has been served on a defendant.  A schedule shall not be modified except upon a showing of good cause and by leave of the district judge or, when authorized by local rule, by a magistrate judge.

As you see, the judge can modify the schedule, "upon a showing of good cause" and if the judge grants the motion to file the 3rd amended complaint, he is likely to agree that they need more time to do discovery on the new claims, whatever they are. Maybe this is the fraud claim a certain gal reporter whispered to the world about. The documents don't tell us. The Memorandum in Support of this motion will tell the story, but it's not yet available.

A lawyer I worked for once did divorces, and we had one client, a woman, who wanted to fight and fight and fight. She'd want us to fight for ownership of an ashtray. A car. The house. The visitation schedule. It ended up costing her a small fortune, and we kept trying to talk her out of things, but she enjoyed the fight too much to quit. Fighting with her ex was like her hobby. The poor man wasn't having anywhere near as much fun, because he had a life developing without her and this was like pulling him back into a swamp he had rejoiced to escape. But she would persist. He was not to be left alone to have a life without her.

SCO reminds me of that woman, who lived to torment her ex by never letting go and forcing him to deal with her. What she wanted, she said, was more money. But it was symbolic of something deeper. She wanted him to pay for dumping her. And she wanted to cause him pain. That was the theme of the entire exercise, and she loved the endless details of the fight. She'd bring in boxes of "evidence" of his wrongdoing, with credit card proof he was buying fur coats for his girl friend, proof she'd worked hard to get hold of, and demand we go after him for more alimony on the basis that he could afford it now, or she'd ask us to go to the judge and ask the judge to make her husband bring the daughter back from visitation on time after he'd been late once by an hour, and various borderline things like that.

We finally figured out a way to get her to go away, but it was a long haul, and I never forgot her, because she was, to me, a truly tragic figure, because money can't make up for a disappointed dream, and the sad truth is that divorces mean each side has to live with a lower standard of living. SCO just can't let go of that Project Monterey dream that died aborning, and she wants money to make it right, and she seems to be trying to torment IBM by insisting that it deal with endless, endlessly annoying motion after motion, all of which is screaming, Settle and Pay Me To Go Away, You Two-Timing, No Good... well, I'll leave the rest to your imagination.

Here is the motion asking to be allowed to file an overlength memorandum, followed by the motion to file another amended complaint, thanks to inode_buddha, who is incredibly fast:

******************************

Brent O. Hatch (5715)
Mark R. Clements (5295)
HATCH, JAMES & DODGE
[address, phone, fax]

Robert Silver (admitted pro hac vice)
Edward Normand (admitted pro hac vice)
Sean Eskovitz (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address, phone, fax]

Stephen N. Zack (admitted pro hac vice)
Mark J. Heise (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address, phone, fax]

Attorneys for The SCO Group, Inc.

__________________________

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

_________________________

THE SCO GROUP, INC.,

Plaintiff/Counterclaim- Defendant,

vs.

INTERNATIONAL BUSINESS
MACHINES CORPORATION,

Defendant/Counterclaim- Plaintiff.

______________________

EX-PARTE MOTION FOR
LEAVE TO FILE OVER-
LENGTH MEMORANDUM

Civil No. 2:03CV0294 DAK
Honorable Dale A. Kimball
Magistrate Judge Brooke C. Wells

_________________________

Plaintiff/Counterclaim-Defendant The SCO Group ("SCO") hereby moves the Court pursuant to District Court Rule 7-1(c) for leave to file an over-length Memorandum in Support of SCO's Motion for Leave to File a Third Amended Complaint pursuant to Federal Rules of Civil Procedure 15(a) and 16(b). SCO's Memorandum has four pages of preliminary statement, two pages of procedural background, eight pages of factual background, and approximately ten pages of argument. The Memorandum explains why SCO must have leave to file its Third Amended Complaint and the preliminary and procedural statements and the fact section provide the Court with the necessary backgound to understand the basis of SCO's Motion. Given the importance of the issues to SCO, it is necessary for SCO to fulIy address, clarify and explain to the Court the importance ofthe amendment.

To address these issues and place them in context for the Court, SCO respectfully requests leave to file an over-length memorandum. SCO submits that the excess lengh is necessary to fully address the issues.

DATED this l4th day of October, 2004.

Respectfully submitted,

HATCH, JAMES & DODGE, P.C.
Brent O. Hatch
Mark R. Clements

BOIES, SCHILLER & FLEXNER LLP
Robert Silver
Stephen N. Zack
Mark J. Heise
Edward Normand
Sean Eskovitz

By _____[Signature]_______

Counsel for Plaintiff/Counterclaim Defendant


CERTIFICATE OF SERVICE

Plaintiff/Counterclaim Defendant, The SCO Group, Inc., hereby certifies that a true and correct copy of the foregoing was served this 14th day of October, 2004, to:

David Marriott, Esq.
CRAVATH SWAINE & MOORE
[address]

Donald J. Rosenberg, Esq.
[address]

and HAND-DELIVERED to:

Todd M. Shaughnessy, Esq.
SNELL & WILMER LLP
[address]

_________[signature]______


***********************

Brent O. Hatch (5715)
Mark F. James (5295)
HATCH, JAMES & DODGE
[address, phone, fax]

Robert Silver (admitted pro hac vice)
Edward Normand (admitted pro hac vice)
Sean Eskovitz (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address, phone, fax]

Stephen N. Zack (admitted pro hac vice)
Mark J. Heise (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address, phone, fax]

Attorneys for The SCO Group, Inc.

_____________________

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

______________________

THE SCO GROUP, INC.,

Plaintiff/Counterclaim- Defendant,

vs.

INTERNATIONAL BUSINESS
MACHINES CORPORATION,

Defendant/Counterclaim- Plaintiff.

____________________

MOTION FOR LEAVE TO FILE A
THIRD AMENDED COMPLAINT
PURSUANT TO FEDERAL RULES OF
CIVIL PROCEDURE 15(a) AND 16(b)

Civil No. 2:03CV0294 DAK
Honorable Dale A. Kimball
Magistrate Judge Brooke C. Wells

______________________

Pursuant to Rules 15(a) and l6(b) ofthe Federal Rules of Civil Procedure, The SCO Group, Inc. (''SCO''), hereby seeks leave of this Court to fiIe an amended complaint in this action in substantially the same form as the proposed Third Amended Complaint attached as Exhibit l to the memorandum fiIed in support of this motion.

SCO seeks to amend the complaint for the reasons described in the Memorandum in Support of SCO's Motion for Leave to File a Third Amended Complaint pursuant to Federal Rules of Civil Procedure l5(a) and l6(b) filed herewith, and for the good cause shown therein.

DATED this l4th day of October, 2004.

Respectfully submitted,

HATCH, JAMES & DODGE, P.C.
Brent O. Hatch
Mark F. James

BOIES, SCHILLER & FLEXNER LLP
Robert Silver
Stephen N. Zack
Mark J. Heise
Edward Normand
Sean Eskovitz

By ______[Signature]_____

Counsel for Plaintiff/Counterclaim-Defendant


CERTIFICATE OF SERVICE

Plaintiff/Counterclaim Defendant, The SCO Group, Inc., hereby certifies that a true and correct copy of the foregoing Motion for Leave to File Third Amended Complaint was served by mail on Defendant Intemational Business Machines Corporation on the 14th day of October, 2004, by U.S. MaiI to:

David Marriott, Esq. Cravath, Swaine & Moore LLP [address]

Donald J, Rosenberg, Esq.
[address]

and HAND-DELIVERED to:

Todd Shaughnessy, Esq.
Snell & Wilmer LLP
[address]

_______[signature]_____


  


SCO Files Motion to Amend the Amended Complaint a 3rd Time | 417 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections, if needed
Authored by: Anonymous on Saturday, October 16 2004 @ 12:34 AM EDT


---
--Bill P

[ Reply to This | # ]

OT urls and such
Authored by: Anonymous on Saturday, October 16 2004 @ 12:40 AM EDT
Remember how to do links?

---
--Bill P

[ Reply to This | # ]

How /did/ your employer get rid of her?
Authored by: Anonymous on Saturday, October 16 2004 @ 12:42 AM EDT

Maybe you could pass that tactic on to IBM. Might work again.

[ Reply to This | # ]

Official SCO Group comments only
Authored by: Anonymous on Saturday, October 16 2004 @ 12:42 AM EDT
Must be posted by a verifiable employee, officer, or other representative of The
SCO Group. All other comments are to be deleted.

---
--Bill P

[ Reply to This | # ]

Trolls, shills, astroturfers, and the like
Authored by: Anonymous on Saturday, October 16 2004 @ 12:48 AM EDT


---
--Bill P, not a lawyer, ever

[ Reply to This | # ]

Official "The SCO Group" Positions
Authored by: AllParadox on Saturday, October 16 2004 @ 12:51 AM EDT
Main posts in this thread may only be made by senior managers or attorneys for
"The SCO Group". Main posts must use the name and position of the
poster at "The SCO Group". Main posters must post in their official
capacity at "The SCO Group". Sub-posts will also be allowed from
non-"The SCO Group" employees or attorneys. Sub-posts from persons
not connected with "The SCO Group" must be very polite, address other
posters and the main poster with the honorific "Mr." or
"Mrs." or "Ms.", as appropriate, use correct surnames, not
call names or suggest or imply unethical or illegal conduct by "The SCO
Group" or its employees or attorneys. This thread requires an extremely
high standard of conduct and even slightly marginal posts will be deleted. P.J.
says you must be on your very best behavior.

---
All is paradox: I no longer practice law, so this is just another layman's
opinion. For a Real Legal Opinion, buy one from a licensed Attorney

[ Reply to This | # ]

Ideas for 3rd amended complaint
Authored by: Anonymous on Saturday, October 16 2004 @ 01:00 AM EDT
Please post any thoughts, opinions or ideas on what it might contain.

(A) Speculation, (B) opinion and (C) hearsay should be marked as such.

The remainder of this post, certainly falls under *all* three of (A), (B), and
(C).

Some alleged points that have been previously hinted at in the press

1. A fraud allegation against IBM relating to Monterey (previously reported by
Ms O'Gara)

2. An allegation against IBM relating to SVR4 license (previously reported by Ms
O'Gara). I would like to point out that SCO's 2nd amended complaint (paragraph
122 IIRC) seems to allege that IBM *do* have an SVR4 license.

3. SCO dropping or modifying their copyright claim in order to make IBM CC10
non-compulsory (a wild guess)

4. SCO adding several billion of additional damages claims on the existing or
new causes of action, each cause of action coming out to exactly a nice round
$1bn (a wild guess, based on their previous 2 amendments).

Quatermass
IANAL IMHO etc

[ Reply to This | # ]

There is no settling this
Authored by: Anonymous on Saturday, October 16 2004 @ 01:09 AM EDT
Too bad for SCO. They shot themselves in the foot when they challenged the IP
legitimacy of Linux. Now IBM can't settle, because where does that leave the
Linux business that IBM is building. A business which is critical in a strategic
way to the future of the IT industry and IBM. IBM cannot afford to come out of
this with a cloud hanging over Linux. So it must come out in court that SCO has
no case, that Linux is legitimate and that IBM in backing Linux has done no
wrong.


I feel sorry for SCO because I believe that they actually believed that Linux
was a Unix rip off. They looked at Linux, saw the similarities with Unix, looked
at the Kernel developers and saw a bunch of unshaven hippie miscreants, who, to
SCO's mind, must have used stolen code to achieve what they did. And their
animus with IBM over Project Monterrey, naturally led them to IBM as the
Godfather behind this vast criminal enterprise. They did'nt have to analyze the
Linux code. It must have been stolen. How could these Linux misfits produce
anything worthwhile. IBM must have been using these kernel bums to kill Unix by
stealing its code and turning it into Linux.

They sincerely believed that IBM would settle once they sued, since IBM would
know the jig was up. I think its pretty clear they never expected to go to court
over their claims. They clearly have nothing and they have to stretch that out
over a long time now.


Unfortunately for SCO, they are the ones who did not get the memo on Linux. They
completely failed to understand its history, its development and IBM's role in
that. So all the while thinking they were calling IBM's bluff, they shot
themsleves in the foot. They set up the very scenario in which IBM is least
likely to settle.

So now they are caught bare-assed on the arctic ice, hoping for a miracle thaw.
There is nothing to save them now. IBM does not have to do a thing except watch
SCO ass get some freezer burn.

emk

[ Reply to This | # ]

How long will SCO be allowed to game the system?
Authored by: Anonymous on Saturday, October 16 2004 @ 01:17 AM EDT

I hope this doesn't delay a ruling on CC10. A hundred
amended complaints can't erase SCO's public statements
about infringing code.

[ Reply to This | # ]

SCO Files Motion to Amend the Amended Complaint a 3rd Time
Authored by: Anonymous on Saturday, October 16 2004 @ 01:27 AM EDT
... and the 3rd won't be SCO's last!

[ Reply to This | # ]

Joining Another Party
Authored by: Anonymous on Saturday, October 16 2004 @ 01:30 AM EDT
IBM should get Novell to join in the suit and put this puppy to bed. Dtermine
who owns the copyrights and watch the dominos fall on top of SCO's case,
shattering it into tiny pieces once and for all.

I'll bet dollars to donuts a motion requesting Novell to join the suit on IBM's
behalf would make Darl and Co. lose control of their bladders. I can't think of
a worse thing to happen to them legal-wise besides a judgment (of any kind)
against them.

[ Reply to This | # ]

Does new SCO have standing to sue over Monteray? Would old SCO need to do that? eom
Authored by: Anonymous on Saturday, October 16 2004 @ 02:04 AM EDT
eom
Dennis

[ Reply to This | # ]

IBM is going back to Unix!
Authored by: Anonymous on Saturday, October 16 2004 @ 02:07 AM EDT

I've read some news the other day that IBM is going back to Unix.

IBM's new goal is to be #1 in the high-end Unix server market. It wants to beat
HP and Sun with its new Power5 or Power6 proccessor. Even Sun is amazed on how
much faster their unix servers perform.

My question now is why Unix?
Why not Linux? Probably not Linux right now?

Perhaps they want to bait and switch Linux migration slowly?
Maybe they want to move away from Linux?
Maybe Unix because they can easily charge $700,000 for a server without tainting
Linux's lower TCO?
Maybe their is a higher demand for Unix servers?
Or they just want to kill Sun?

[ Reply to This | # ]

Can we expect a redacted version?
Authored by: thorpie on Saturday, October 16 2004 @ 02:22 AM EDT

Can anyone advise whose responsibility it is to release a redacted version and what timeframe we are looking at?

---
The memories of a man in his old age are the deeds of a man in his prime - Floyd, Pink

[ Reply to This | # ]

There is something seriously wrong
Authored by: Anonymous on Saturday, October 16 2004 @ 02:41 AM EDT
with a court system that lets this kind of nonsense drag on and on
and on and on and on and on and on and on, and the plaintiff is not
required to meet a minimal level of proof that they have a basis to
bring suit. Truly the law is an, er, PJ hates bad language, so truly
the law is a small donkey.

[ Reply to This | # ]

Amend complaint to remove all reference to copyrights, to avoid CC10?
Authored by: Anonymous on Saturday, October 16 2004 @ 03:07 AM EDT
Can this possibly fly?

[ Reply to This | # ]

What can be done?
Authored by: NemesisNL on Saturday, October 16 2004 @ 03:50 AM EDT
To stop this madness. Surely the Judges in these cases have a way to stop
someone from endlessly rearanging there complaint just to keep the case lomger
in court. All their complaints so far look like they are dead in the water.
Floating another complaint surely will do nothing to change that.

Why not first decide on the things allready before the courts and then give SCO
the chance to file a new complaint. SCO is allready claiming it is streched for
time and now they want to create an even bigger problem for themselves?

I also do not understand why amending their complaint should have any negative
effects on the timeline of things already before the court. CC10 does not have
to suffer because they (SCO) want to amend now, does it?

If the above is correct this looks like they just want to make sure there still
is something to do after the ruling on the several counterclaims allready before
the court.

[ Reply to This | # ]

  • Wait and watch - Authored by: Anonymous on Saturday, October 16 2004 @ 08:00 AM EDT
    • Rope - Authored by: NemesisNL on Saturday, October 16 2004 @ 09:07 AM EDT
      • Rope - Authored by: Anonymous on Saturday, October 16 2004 @ 09:18 AM EDT
      • Rope - Authored by: Pogue Mahone on Monday, October 18 2004 @ 02:16 AM EDT
Overlength Memoranda?
Authored by: Anonymous on Saturday, October 16 2004 @ 04:27 AM EDT

Why go to the bother of asking for permission to file these things, if permission is always granted? Why not set the bar of "overlengthness" to something higher in the first place?

Reminds me of some of the new controversy with voter registrations in Florida: If, on the registration form, you have no legal use for an answer, then why the $WORD are you asking the question?

[ Reply to This | # ]

  • Overlength Memoranda? - Authored by: Anonymous on Saturday, October 16 2004 @ 04:39 AM EDT
  • Overlength Memoranda? - Authored by: Golem on Saturday, October 16 2004 @ 04:57 AM EDT
  • Reminder - Authored by: belzecue on Saturday, October 16 2004 @ 05:32 AM EDT
    • Reminder - Authored by: fjalvingh on Saturday, October 16 2004 @ 07:05 AM EDT
      • Reminder - Authored by: Anonymous on Saturday, October 16 2004 @ 07:20 AM EDT
        • Reminder - Authored by: coffee17 on Saturday, October 16 2004 @ 10:06 AM EDT
        • Reminder - Authored by: Anonymous on Saturday, October 16 2004 @ 09:59 PM EDT
      • Reminder - Authored by: rlbell on Saturday, October 16 2004 @ 09:20 AM EDT
      • Reminder - Authored by: Anonymous on Saturday, October 16 2004 @ 03:18 PM EDT
        • Reminder - Authored by: jerven on Saturday, October 16 2004 @ 04:13 PM EDT
aborning, well I never
Authored by: ine on Saturday, October 16 2004 @ 04:49 AM EDT
English has been my first language for almost 50 years now, and I am reasonably
adept at it, but I don't think I have ever heard the word "aborning"
before.

I looked it up in the Webster's Dictionary, thinking it might be an Americanism.
It is not in the Shorter Oxford Dictionary, not even in the Supplement (for
newer words).

The Webster's cites it as meaning "while coming into being or being
created".

Well, I never. A rare thing for me to meet a new English word. Always knew you
Americans spoke a foreign language.

[ Reply to This | # ]

SCO seeks more delay
Authored by: Anonymous on Saturday, October 16 2004 @ 05:08 AM EDT
This wouldn't have something to do with delay, by any chance, would it?

Don't be surprised or dismayed by SCO's success in getting more delay. That's their entire object in this case, so that Microsoft's shills can go on saying "there are legal issues hanging over Linux" for as long as possible.

The legal system was not built for speed. With a top firm like Boies, Schiller on the job, I suspect that it's possible to delay things for as long as SCO remains in business.

We can estimate how long that will be from their financial statements. At end-July, SCO's net assets were $28 million. They appear to be losing money at the rate of about $7 million every 3 months.

It's not difficult to calculate that, barring another infusion of money from Microsoft or Sun, the nuisance will go away in about 4 more quarters, more or less. They could spin the agony out a bit longer by getting rid of all their staff, thereby reducing the quarterly loss. Presumably they will do this at some point.

[ Reply to This | # ]

Question for the legally clued
Authored by: overshoot on Saturday, October 16 2004 @ 08:08 AM EDT
If amendments to the complaint are allowed ad infinitum it would seem that a party could effectively delay trial forever. Since this doesn't happen, there is presumably some limit to the ability of parties to drag things out with amendments.

I'm sure we would all greatly appreciate hearing from those who know what those limits are.

I can, of course, speculate:

  • "Justice so requires" sounds a lot like an invocation of the Court's discretion.
  • The amendment has to be closely related to the original subject of the suit (compulsory?)
  • If the amendment isn't compulsory or close to it, the Court could separate the added claim.
  • If the amendment is compulsory or close to it ("arising from the same facts" etc.) the schedule changes would be limited.
  • I'm sure I missed several.

Thanks in advance.

[ Reply to This | # ]

Calvinball
Authored by: Anonymous on Saturday, October 16 2004 @ 08:13 AM EDT
The American legal system seriously resembles Calvinball. For those who don't
get the reference, Calvin and Hobbes was a popular strip that it's cartoonist
retired several years ago. Calvin was a 7 or 8 year old and Hobbes was his
stuffed toy tiger. When nobody else was around, Hobbes was a REAL tiger to
Calvin....and more intelligent to boot. Calvin and Hobbes spent quite a bit of
their time playing Calvinball.

I'd tell you the rules to Calvinball but the rules were subject to alteration at
any time. The rules would most especially get changed just as Calvin or Hobbes
was about to score. Does this sound familiar?

[ Reply to This | # ]

SCO Files Motion to Amend the Amended Complaint a 3rd Time
Authored by: eggplant37 on Saturday, October 16 2004 @ 08:47 AM EDT
So, where does that put us on the docket? Is the hearing on Oct 19 still on?
Or is it all pushed off *yet again* to some unknown date in the future while SCO
games the system to delay this nonsense??

Frustrated? Not me. I only want to see SCO die a long, painful death, Indian
givers that they are. Insert sarcasm tags as needed.

[ Reply to This | # ]

Enough on "Appeal-proof!"
Authored by: overshoot on Saturday, October 16 2004 @ 08:59 AM EDT
I very seriously doubt that Judge Kimball has thought twice about the Tenth Circuit reversing his decisions on this case. The real explanation is much, much simpler: he's acting professionally. He's conscientiously carrying out his duties as a Federal Judge.

All this blather about "making the decision appeal-proof" is, IMHO, disrespectful.

[ Reply to This | # ]

...leave must be freely given when justice so requires...
Authored by: webster on Saturday, October 16 2004 @ 09:29 AM EDT
What does justice require here?

SCO has to show something new has come up. They will have to point to something
they discovered from IBM. [Not what they haven't discovered.]

If they try to add someone like Novell, IBM can oppose saying that suit already
exists. If SCO wants to add the copyright claim against Novell, they may get
it. They can abandan SLander of Title.

If they try to amend the copyright claim away, they are conceding the PSJ.

The standard is whatever the judge wants.



---
webster

[ Reply to This | # ]

COuld someone with the knowledge please enlighten me
Authored by: NemesisNL on Saturday, October 16 2004 @ 09:35 AM EDT
A lot of posts state that the judges are trying to prevent SCO from having a
reason to appeal.

Let's take the tenth CC. What grounds for appeal could SCO possibly have if the
judge were to rule in favour of IBM now?

SCO didn't have the defence required to defeat the CC, didn't even try to come
up with the needed defense. What's keeping this judge from ruling. I'm not a
lawyer and not even an american so I realy would like to understand.

[ Reply to This | # ]

Sealed complaint
Authored by: DebianUser on Saturday, October 16 2004 @ 10:23 AM EDT
Is it really possible to file lawsuits (and parts thereof) in such a way
that the substance of the complaint is kept secret?

That would seem to be the ideal basis for a FUD vehicle. File a suit with a
sealed complaint, and then launch PR campaigns alleging all sorts of terrible
things, presented embroidered with all sorts of hot-button rhetoric.

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Who's driving?
Authored by: Nick_UK on Saturday, October 16 2004 @ 10:25 AM EDT
On a litigation like this, do the Lawyers advise the
client (SCO) what to do next, or do SCO have in house
lawyers that tell Boise and Co what to do next?

Who decides the next move?

What happens if a lawyer makes a move that loses the case
here - can/could SCO then sue the lawyers for making a
wrong move?

I am really trying to see who is driving this.

Nick

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SCO Files Motion to Amend the Amended Complaint a 3rd Time
Authored by: Anonymous on Saturday, October 16 2004 @ 12:05 PM EDT
No doubt the "SEALED Memorandum by SCO Grp in support of motion to amend
complaint" is about unsealing the documents that show how IBM has defrauded
us all.
:)

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3rd time's a charm, eh? (NT)
Authored by: Anonymous on Saturday, October 16 2004 @ 12:15 PM EDT
.

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What SCO is try to do?
Authored by: kberrien on Saturday, October 16 2004 @ 12:38 PM EDT
I didn't get the jist at all from PJ article, but following the posts a bit.

Would it be fair to say SCO, admitting to themselves they are going to loose the
meat of their case, and looking to add new issues so they can claim the case is
on-going and keep themselves afloat?

Which brings up the question. This late in the game, would it not be to IBM
advantage (and a reasonable position) to fight any broad addition of claims
(lets say the fraud bit) and push SCO to file a new suit for additional claims?
If they (IBM) where to win, does SCO have the resources, the energy, the
political approval internally to do so?

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Fishing expedition ?
Authored by: Anonymous on Saturday, October 16 2004 @ 01:46 PM EDT
Several knowledgeable people that discovery is not a fishing expedition. After
nearly 2 years of lawsuit, TSCOG is coming with yet another complaint. We are
(so far) limited to guessing obviously, but as Ms. O'Gara suggests it might be
fraud and/or SVR4 license misuse along with "smoking guns" in IBM's
e-mails. Wouldn't this be the proof of this fishing expedition ? Would this be
allowed ?

Loïc

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Can Judge Kimball ... ?
Authored by: Anonymous on Saturday, October 16 2004 @ 01:52 PM EDT
Can the judge do something like schedule a phone conference with lawyers from
both sides, on, say, Oct. 20, to find out what changes SCOX needs to make? Let
him rule on whether or not the amendment is required for justice?

Something like that would let Judge Wells hold her hearing on the discovery
motions. SCOX will, no doubt, go in and ask for new discovery based on any new
allegations, but at least they'll have to start from scratch.

It might also give him time, if he takes the request to file ANOTHER amended
complaint under advisement, to rule on the PSJ -- best case, after Wells hears
and denies the discovery motion -- before SCOX gets to change course. Again.

(BTW, is it possible for a judge to allow an overlength motion, but still limit
the length? Could he, for example, allow a 15 page motion, but not a 20 pager?)

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Is SCO Going for a Record? Got a way to go!
Authored by: WayneStPaul on Saturday, October 16 2004 @ 02:37 PM EDT
After reading the concerns about delay, I started to wonder what the record
was.

I did some google searches. I found some cases that had a tenth ammended
complaint, but none that had an eleventh ammended complaint.

So only eight more to go to make a record!

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Is SCO precluded from amending again?
Authored by: elcorton on Saturday, October 16 2004 @ 04:25 PM EDT
This is from p 3 of docket 143 (SCO's Memorandum in support of motion
to dismiss counterclaim 10):

"With SCO's Second Amended Complaint being the FINAL amendment and
not containing a claim for infringement arising out of IBM's Linux
activities, the need for IBM's Tenth Counterclaim seeking such declaratory
judgment is nil." (Emphasis added.)

By using this defense, did SCO preclude itself from filing another amended
complaint? Inquiring minds want to know.

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How did you finally make her go away?
Authored by: Anonymous on Sunday, October 17 2004 @ 08:18 AM EDT
I'd really like to know... that woman was an intriguing figure, and I've seen
divorces like that. Other people are just like that in their lives, trying to
be coercive at every step.

So how'd you do it, huh? How'd you make her go away!?!?

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