While the federal courts continue to do their best glacier impressions, SCO is currently scheduled to encounter an actual trial less than 40 days from now (on January 7) in Michigan's 6th Circuit.
Ever the reluctant litigant, SCO moved on November 17 to stay its case against DaimlerChrysler indefinitely.
Disclaimer: I (Al Petrofsky) am not licensed to practice
law in any state of the union. (Nor am I able to legally assist Puerto
Ricans, District of Columbians, and other miscellaneous Americans.
Foreigners are right out.) As they say in the blogging world, I am
just "a journalist" with a notary public background. Further
disclosure (including the amount of my short position in SCO's common
stock) can be found at
On Wednesday, November 17, SCO moved to stay its suit against DaimlerChrysler indefinitely, pending the contract claims in the IBM case.
The case had been scheduled to go to trial on Tuesday, January 11, 2005. When SCO made this motion to stay, SCO was already two weeks late in filing its lists of witnesses and exhibits that it would use at the trial. The August 25 scheduling order had set the due date for those to be October 27, and Daimler had complied (witness list, exhibit list).
Amusingly, the day after SCO made the motion, the trial date was not postponed, but actually moved up two business days (see the docket listing), to Friday, January 7, at 08:30 -0500 (EST). I imagine this was unrelated to the motion, and was just the result of someone making modest rearrangements in Judge Chabot's January calendar.
SCO requested that the motion be heard on November 24, the day before Thanksgiving (see the notice). I don't think that happened, but I'm not yet certain. An email from the clerk's office this afternoon stated "The docket doesn't list a hearing yet for the motion to stay. But th [sic] DaimlerChrysler filed opposition to mtn for stay." That opposition brief should be on its way to me by snail mail. I will continue to attempt to confirm whether or not a hearing occurred, and, if so, to obtain a videotape and transcript. All proceedings in Judge Chabot's courtroom are normally videotaped, and she approved (see here and here) the internet distribution of the first hearing's video (20 min. 110 MB mpeg1), thus I don't expect any trouble getting recordings of future public proceedings. The "Case Evaluation", however, which is currently scheduled for Tuesday, November 30, is a closed-door proceeding, and no video or transcript will be forthcoming. (Case Evaluations are a fast, cheap alternative to trials, held in a single day before a panel of three evaluators rather than a judge. Their decision is only binding if both parties accept it. For more information, see MCR 2.403 and the webpage of the court's Case Evaluation Department.)
In SCO's motion to stay (the full text is below), it argues that the IBM case involves "the interpretation of a license agreement between SCO and IBM that is substantially similar to the license agreement in the case before this Court", and that "if SCO's interpretation of the license agreement is rejected by the court in the IBM case, SCO may choose never to litigate the sufficiency and timeliness of certification prepared by DCX and other end users of the UNIX operating system".
In paragraph 12, SCO intimates that, if it doesn't drop this case on account of adverse results in the IBM case, then it already plans to appeal, after the trial, Judge Chabot's August 9 order that held that the only possible way in which Daimler's certification of contract compliance may have fallen short was in its timeliness.
(One other note: in paragraph 6, SCO says that "No hearing date has been set" on IBM's motion for summary judgment on SCO's contract claims, "but it is likely that they will be heard sometime early next year". I believe SCO is technically incorrect there, because a hearing date of December 8 has been set for that motion. However, that date was chosen back in August, and in October, the briefing schedule was extended into January, and thus I assume that the December date will eventually be vacated, and I agree with SCO that "it is likely that they will be heard sometime early next year".)
[The following is taken from revision 1.1 of the text-encoded version
posted at scofacts.org of the
document whose image is found here: pdf.
RECEIVED FOR FILING OAKLAND COUNTY CLERK 2004 NOV 17 P 4:04 BY: s/ [illegible] ------------------- DEPUTY COUNTY CLERK STATE OF MICHIGAN IN THE CIRCUIT COURT FOR THE COUNTY OF OAKLAND THE SCO GROUP, INC., A Delaware corporation, Plaintiff, vs. DAIMLERCHRYSLER CORPORATION, a Delaware corporation, Defendant. Case No. 2004-056587-CK Hon. Rae Lee Chabot Hearing Date: November 24, 2004 ----------------------------------------------------- JOEL H. SELIN (P20224) BARRY M. ROSENBAUM (P26487) Attorneys for Plaintiff 2000 Town Center, Suite 1500 Southfield, MI 48075 (248) 353-7620 JAMES P. FEENEY (P1335) THOMAS S. BISHOFF (P53753) STEPHEN L. TUPPER (P53918) Attorney for Defendants 39577 Woodward Avenue, Ste. 300 Bloomfield Hills, MI 48304-2820 (248)203-0700 ----------------------------------------------------- MOTION FOR STAY OF PROCEEDINGS ------------------------------ NOW COMES Plaintiff The SCO Group, Inc., by and through its attornesy, Seyburn, Kahn, Binn, Bess & Serlin, P.C., and move this Honorable Court to stay the proceedings in this matter for a period of time to be determined by the Court for the following stated reasons: 1. On March 3, 2004, Plaintiff The SCO Group, Inc. ("SCO") filed a Complaint in this matter alleging that Defendant DaimlerChrysler Corporation ("DCX") had breached a license agreement between the parties, governing the use of SCO's UNIX computer operating system. 1 2. Specifically, SCO alleged that DCX, as an end-user, had failed to comply with the agreement's certification requirements governing its use of the UNIX operating system, by failing to respond to SCO's request that DCX so certify its compliance with the terms of the license agreement between the parties. 3. On August 9, 2004, this Court, pursuant to a motion filed by DCX, entered an Order Granting in Part and Denying in Part Defendant's Motion for Summary Disposition ("Order"), holding that DCX had satisfied its certification obligation, but finding an issue of fact as to whether DCX had been timely in serving its certification upon SCO. 4. The remaining claim is scheduled for case evaluation on November 30, 2004 and trial on January 11, 2005. 5. SCO is currently engaged in litigation in the United States District court for the District of Utah with International Business Machines Corporation ("IBM") over the interpretaion of a license agreement between SCO and IBM that is substantially similar to the license agreement in the case before this Court. That case is SCO Group, Inc v International Business Machines Corporation, No. 2:03CV294. 6. IBM has argued that the license agreements, contrary to their express terms, protect against only the literal copying of UNIX source code, while SCO has argued that the protections sweep broader, to protect, among other things, all modifications and derivatives prepared by licensees based on the original UNIX source code. IBM has filed a motion for summary judgment based on its interpretation of the license agreements, which motion is currently being briefed. No hearing date has been set on the motions, but it is likely that they will be heard sometime early next year. 2 7. A ruling in the IBM case will provide important guidance concerning the obligations of end users like DCX under the certification requirement at issue here. Specifically, as noted above, a resolution of the contract-interpretaion issue currently pending in the IBM case will permit all parties to know with some certainty the scope of the obligations and restrictions under the license agreements to which licensees must certify their compliance. 8. Given this Court's narrow interpretaion of the certification requirement contained in the license agreement, it may no longer be productive for SCO to attempt to gather information from UNIX end users by means of requests for certification until a ruling on the contract issue in the IBM case is forthcoming. 9. Moreover, if SCO's interpretation of the license agreement is rejected by the court in the IBM case, SCO may choose never to litigate the sufficiency and timeliness of certification prepared by DCX and other end users of the UNIX operating system. 10. SCO is engaged in two other diputes relating to its UNIX rights in federal court in Nevada and Delaware. Both of these cases have been stayed by the respective federal judges pending the resolution of the key issues in the IBM case. Copies of the stay orders from these Courts are attached hereto. 11. In the two cases that have been stayed, SCO has been filing court-ordered periodic reports on the progress of the IBM case. 12. It would be a waste of valuable judicial and attorney resources to proceed with a case evaluation and a trial on SCO's remaining damage claim as to timeliness, followed by an appeal of this Court's order regarding the sufficiency of DCX's certification, when these issues may become moot upon the conclusion of the pending summary judgment proceedings in the IBM case. 3 13. Courts have the inherent power to control their dockets, and a motion for stay is directed to the court's sound discretion. Amersham International PLC v Corning Glass Works, 618 F Supp 507, 509 (ED Mich, 1984). 14. SCO requested that DCX consent to a stay of proceedings in October, 2004, but DCX indicated it would not consent to a stay; DCX has further stated that if SCO does not intend to pursue the claim as to the timeliness of DCX's certification at this time, then it insists that SCO dismiss its remaining claim with prejudice. WHEREFORE, Plaintiff The SCO group, Inc. respectfully requests that this Honorable Court stay the proceedings in this matter for a period of time to be set by the Court. Respectfully submitted, SEYBURN, KAHN, GINN, BESS AND SERLIN, P.C. By: s/ Barry M. Rosenbaum ---------------------- Barry M. Rosenbaum (P26487) Attorneys for Plaintiff 2000 Town Center, Suite 1500 Southfield, MI 48075-1195 (248) 353-7620 Dated: November 17, 2004 Steven I. Froot, Esq. Co-Counsel for Plaintiff Boies, Schiller & Flexner 570 Lexington Avenue, 16th Floor New York, NY 10022 (212)-446-0230 Mark J. Heise, Esq. Co-Counsel for Plaintiff Boies, Schiller & Flexner LLP Bank of America Tower 100 South East 2nd Street, Ste. 2800 Miami, FL 33131 (305) 539-8400 2004BMRnmh(10098)=Q:\s014198\motion for stay of proceedings 002.doc=1117 4
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