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DaimlerChrysler Files Motion to Dismiss, With Prejudice
Wednesday, April 28 2004 @ 11:01 AM EDT

DaimlerChrysler has filed for a dismissal of SCO's complaint, with prejudice. Their Motion for Summary Disposition was filed on April 15 in the Circuit Court for Oakland County, Michigan. There will be a hearing on this motion, at a date not yet announced, so it isn't going to be decided just on the motion papers. Here is the Motion and the Notice of Hearing, as text. I don't have the PDF ready yet. Please note that there may be slight edits, because of the quality of the scanned material, on a couple of the names and attorney numbers.

They have also filed an answer to SCO's complaint, which we will have for you later tonight, hopefully, also. They list the following affirmative defenses: failure to state a claim, waiver, estoppel, laches, unclean hands and acquiescence, lack of capacity to sue, lack of standing, lack of case or controversy, lack of breach/cure of alleged breach, mitigation of damages, Plaintiff's claims are moot, bar by third-party contract, and reservation of right. The WHEREFORE clause asks that the complaint be dismissed with prejudice, and that the court award DaimlerChrysler costs and attorneys' fees.

You may notice on the Notice of Hearing and Motion that Hale and Dorr are "of counsel". Hale and Dorr are the attorneys for Red Hat in Delaware. The definition of "of counsel" is the following: "refers to an attorney who aids in the preparation of a case, but who is not the principal attorney of record for the case. He or she usually assists the attorney who has been hired for the case." This is from "Law Dictionary" Second Edition, by Steven H. Gifis. Here is the home page for the attorney of record, Dykema Gosssett. Our thanks to Mark Thorndyke, who went to a lot of trouble to get this for us, and to the many volunteers who offered to do the same.

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

STATE OF MICHIGAN
IN THE CIRCUIT COURT FOR THE COUNTY OF OAKLAND

_________________________

THE SCO GROUP, INC.,

Plaintiff,

vs.

DAIMLERCHRYSLER CORPORATION,

Defendant.

_______________________

DAIMLERCHRYSLER CORPORATION'S MOTION
FOR SUMMARY DISPOSITION

Civil Action No. 04-056587-CKB

Honorable Rae Lee Chabot

_______________________

Joel H. Serlin (P20224)
Barry M. Rosenbaum (P26487)
SEYBURN, KAHN, GINN, BESS and
SERLIN, P.C.
Attorneys for Plaintiff
[address, phone]

James P. Feeney (P13335)
Thomas S. Bishoff (P53753)
Stephen L. Tupper (P53918)
DYKEMA GOSSETT PLLC
Attorneys for DaimlerChrysler Corporation
[address, phone]

______________________________

Defendant DaimlerChrysler Corporation ("DaimlerChrysler"), through its counsel, Dykema Gossett PLLC, moves for summary disposition of Plaintiff The SCO Group, Inc.'s Complaint pursuant to MCR 2.116(C)(10).

In support of this Motion, DaimlerChrysler relies upon the facts and law set forth in its Memorandum of Law in Support of Motion for Summary Disposition, filed contemporaneously herewith, and its exhibits, the pleadings and other documents on file with the Court, and all matters of which the Court may take judicial notice.

WHEREFORE, Defendant DaimlerChrysler Corporation respectfully requests that this Court grant this Motion and enter an order, pursuant to MCR 2.116(C)(10), dismissing Plaintiff The SCO Group, Inc.'s Complaint in its entirety with prejudice.

Respectfully submitted,

DYEMA GOSSETT PLLC

_____[signature]_________

James P. Feeney (P13335)
Thomas S. Bishoff (P53753)
Stephen L. Tupper (P53918)
Attorneys for Defendant
DaimlerChrysler Corporation
[address, phone]

Of Counsel:

HALE and DORR LLP

Mark G. Matuschak
Michelle D. Miller
[address, phone]

Robin L. Alperstein
[address, phone]

[Proof of Service]

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

STATE OF MICHIGAN
IN THE CIRCUIT COURT FOR THE COUNTY OF OAKLAND

_________________________

THE SCO GROUP, INC.,

Plaintiff,

vs.

DAIMLERCHRYSLER CORPORATION,

Defendant.

_______________________

Joel H. Serlin (P20224)
Barry M. Rosenbaum (P26487)
SEYBURN, KAHN, GINN, BESS and
SERLIN, P.C.
Attorneys for Plaintiff
[address, phone]

James P. Feeney (P13335)
Thomas S. Bishoff (P53753)
Stephen L. Tupper (P53918)
DYKEMA GOSSETT PLLC
Attorneys for DaimlerChrysler Corporation
[address, phone]

______________________________

NOTICE OF HEARING

TO: ALL COUNSEL OF RECORD

PLEASE TAKE NOTICE that DaimlerChrysler Corporation's Motion for Summary Disposition will come on for hearing before the Honorable Rae Lee Chabot, in her courtroom, at a time and date to be determined by the Court.

DYKEMA GOSSETT PLLC

By: ______[signature]_______
James P. Feeney (P13335)
Thomas S. Bishoff (P53753)
Stephen L. Tupper (P53918)
Attorneys for Defendant
DaimlerChrysler Corporation
[address, phone]

April 15, 2004

  


DaimlerChrysler Files Motion to Dismiss, With Prejudice | 251 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections, typos...
Authored by: Anonymous on Wednesday, April 28 2004 @ 11:54 AM EDT
goes here...

[ Reply to This | # ]

News, URLs...
Authored by: Anonymous on Wednesday, April 28 2004 @ 11:55 AM EDT
go here...

[ Reply to This | # ]

LOL
Authored by: arrg on Wednesday, April 28 2004 @ 11:55 AM EDT
That's kind of like "slap,slap, give me money".

---
Time is funny stuff, space has it's points too.... - Hap

[ Reply to This | # ]

DaimlerChrysler Files Motion to Dismiss, With Prejudice
Authored by: danamania on Wednesday, April 28 2004 @ 11:55 AM EDT
It's a good feeling to see so many different ways for those being sued by SCO
to combat their claims, from a piece by piece rejection of facts and relying on

other cases going on at the same time, to DaimlerChrysler's piece which
sounds to me much like they're saying:

"SCO is off their face. Please Judge, stop this insanity".

Law is interesting now... thanks PJ :)

dana


---
--

[ Reply to This | # ]

So much for subtlety?
Authored by: Anonymous on Wednesday, April 28 2004 @ 11:56 AM EDT
I wonder if the sharetraders will pay any attention this time. Currently toying with $7.

I'd like to see SCOX trashed, but not so much that they don't survive long enough for IBM to bounce the rubble into orbit.

[ Reply to This | # ]

failure to state a claim
Authored by: Anonymous on Wednesday, April 28 2004 @ 11:57 AM EDT
> They list the following affirmative defenses: failure
> to state a claim

Oh boy! I wonder where I heard that...

[ Reply to This | # ]

Exsitment In Michigan
Authored by: Ossymoon on Wednesday, April 28 2004 @ 11:58 AM EDT
Nice to see something happen with this, As a local, I look forward to going and
watching our good friends SCO get their heads handed to them, Detorit style

---
He's a technomage... He appears when you want him least, and need him most.

[ Reply to This | # ]

And the truth shall set you free!
Authored by: Anonymous on Wednesday, April 28 2004 @ 12:11 PM EDT

"failure to state a claim, waiver, estoppel, laches, unclean hands and
acquiescence, lack of capacity to sue, lack of standing, lack of case or
controversy, lack of breach/cure of alleged breach, mitigation of damages,
Plaintiff's claims are moot, bar by third-party contract, and reservation of
right"

If this case gets dismissed, would it have an impact on others(AZ,RHAT,IBM)?

The Chystler suit news has just reminded me of something. I need to change the
oil in my Jeep. Maybe I'll go to Autozone and pick up a case of oil and a new
filter.

[ Reply to This | # ]

DaimlerChrysler Files Motion to Dismiss, With Prejudice
Authored by: icebarron on Wednesday, April 28 2004 @ 12:33 PM EDT
Wonderful, short sweet and to the razor sharp point. This was a BS filed action,
and it is being called what it is...

Dan

To sco: And your crybaby whiny-butt opinion would be?

[ Reply to This | # ]

With prejudice?
Authored by: Chaosd on Wednesday, April 28 2004 @ 12:33 PM EDT

I could guess the answer to this - but for the sake of clarity (and those who really are thinking of mafia hitmen), what do they mean by "with prejudice"?

I assume this involves money in some way, but are they seeking damages, or costs or what - how badly could SCO be hit?

Thanks in advance

---
-----
There are no stupid questions

[ Reply to This | # ]

DaimlerChrysler Files Motion to Dismiss, With Prejudice
Authored by: Anonymous on Wednesday, April 28 2004 @ 12:44 PM EDT
Hum. Sounds like DaimlerCrysler is looking to hand SCO there head also. Hum.
Wounder who SCO is going to threaten next. They only have 5 major corporations
with deep pockets in court so far... EV1 was to only slime to cave in to there
outrogous demands and look what that got them... <laugh> Wounder if
McBride still sees big Linux fees in his future? Hey McBride time for another
speach. You have not given us a good laugh lately... OO that's right BayStar
wants you to shut up. It's just not fair. There not playing this game right.
<STOMP, STOMP>.... <ROFL>

[ Reply to This | # ]

Expected SCO responses (?)
Authored by: Anonymous on Wednesday, April 28 2004 @ 12:44 PM EDT
Discovery is just beginning, we do not know the extent of Daimler Chrysler's
violations of the UNIX license agreements, and infringements of our copyrights
by their Linux activities.

SCO should have leave to amend the complaint based on information that comes to
light during discovery.

DaimlerChrysler is acting in concert with IBM, Red Hat, Novell and AutoZone to
destroy the value of economic of proprietary software. SCO should have leave to
amend the complaint to include unfair competition claims.

This case should be stayed pending the resolution of the .... case.

DaimlerChrysler's legal claim that SCO lacks standing or other rights to enforce
our audit requirements, is itself unfair competiton and/or a slander of title of
SCO's UNIX contracts rights. SCO should be given leave to amend the complaint to
include these additional causes of action.

[ Reply to This | # ]

Aha! The Wolfgang Pauli answer
Authored by: Jude on Wednesday, April 28 2004 @ 12:56 PM EDT
Physicist Wolfgang Pauli was once asked to comment on a scientific paper that
had been submitted for publication. Pauli thought the paper was hopelessly
defective, and his comment was:

"This isn't right. This isn't even wrong."

Methinks DC's lawyers got the inspiration for their motion from this story.

[ Reply to This | # ]

What I find encouraging.
Authored by: Anonymous on Wednesday, April 28 2004 @ 01:22 PM EDT
Both Autozone and Daimler Chrysler are prepared to fight this.

They are not in the supplier camp. Essentially, they are customers of IT.

Their directors have listened to the IT manager etc., and they are prepared to
put their money where their mouth is. Not that I expect either company to say
much publicly, it is not their problem.

It is simply, that they understand the principles of GNU/Linux and open source,
see the benifits, and are prepared to fight for it.

I suspect that any other "user" that SCO may try to pick on, will take
the same attitude.

Brian S.

[ Reply to This | # ]

Did anyone say: Thank you?
Authored by: the_flatlander on Wednesday, April 28 2004 @ 01:27 PM EDT
Thank you. Thank you. Thank you. (Many thanks!) to Mark Thorndyke! And, as
always, thanks to the Goddess of Groklaw: PJ.

Thanks!

The Flatlander

[ Reply to This | # ]

Slightly OT : SCO finances
Authored by: Anonymous on Wednesday, April 28 2004 @ 01:46 PM EDT
Does anyone have any reasoned guestimates of when SCO will run out of money?

[ Reply to This | # ]

Deserves a rim shot!
Authored by: Anonymous on Wednesday, April 28 2004 @ 01:53 PM EDT
This is the closest I've seen to a legal "one liner".

but IANAL.

[ Reply to This | # ]

SCO gets run over by a Hemi...
Authored by: Anonymous on Wednesday, April 28 2004 @ 02:15 PM EDT
The auto makers have been fighting IP wars for longer than Daryl has been on
this earth (e.g. the Intermittent Windshield Wiper), and not only that,
liability lawyers, and many agencies of the federal government, much less the
Unions which they at least have a truce with.

Detroit was the Silicon Valley (when Automobiles were High-Tech) of the early
1900s.. And fine German craftsmanship extends to lawyering.

SCO picked the wrong target.

[ Reply to This | # ]

Flow Chart Request!!!
Authored by: Nick_UK on Wednesday, April 28 2004 @ 03:43 PM EDT
Is there anybody up to speed with this can can put together some sort of flow
chart (simple one) to show who is sueing who here - I am getting quite lost
now.

If you know what I mean?

Would be realy helpful!

Nick

[ Reply to This | # ]

Current Stock Price $6.66
Authored by: Anonymous on Wednesday, April 28 2004 @ 04:14 PM EDT
Coincidence? :-)

[ Reply to This | # ]

Off Topic: Next Date...
Authored by: jarichte on Wednesday, April 28 2004 @ 04:24 PM EDT
Sorry guys I'm a little lost here...

When is the next deadline in SCO vs. IBM? Wasn't IBM and SCO supposed to
exchange their code by now as ordered?

thanks in advance
--andy richter

[ Reply to This | # ]

LOL! Quite a list!
Authored by: Synonymous on Wednesday, April 28 2004 @ 05:05 PM EDT
"They list the following affirmative defenses: failure to state a claim,
waiver, estoppel, laches, unclean hands and acquiescence, lack of capacity to
sue, lack of standing, lack of case or controversy, lack of breach/cure of
alleged breach, mitigation of damages, Plaintiff's claims are moot, bar by
third-party contract, and reservation of right."

That's all? This is incompetent SCO, remember, I was expecting at least a page
of stuff :). J/k hehe.

Good work to the Red Hat lawyers, and everyone here at Groklaw.

[ Reply to This | # ]

Stock is dropping like a rock...
Authored by: Anonymous on Wednesday, April 28 2004 @ 05:05 PM EDT
maybe wall street has finally learned to check Groklaw for the latest news on
SCOX? Closed at 6.68.

[ Reply to This | # ]

MCR 2.116(C)(10)
Authored by: Lev on Wednesday, April 28 2004 @ 06:18 PM EDT
Out of curiosity, I tracked down MCR 2.116(C)(10), on which DC's motion is based. It seems equivalent to the summary judgment in F.R.C.P. 56:
Rule 2.116 Summary Disposition
(C) Grounds. The motion may be based on one or more of these grounds, and must specify the grounds on which it is based:
(10) Except as to the amount of damages, there is no genuine issue as to any material fact, and the moving party is entitled to judgment or partial judgment as a matter of law.

[ Reply to This | # ]

http://sco.tuxrocks.com/Humor.php
Authored by: Anonymous on Wednesday, April 28 2004 @ 06:53 PM EDT
To get a moment of relief from all this sound and fury, signifying nothing,
visit
http://sco.tuxrocks.com/Humor.php

BJ

[ Reply to This | # ]

Only a Flesh Wound
Authored by: Ted Powell on Wednesday, April 28 2004 @ 07:03 PM EDT
The picture says it all.

---
"Circular logic will only make you dizzy, Doctor!"
--Perpugilliam Brown

[ Reply to This | # ]

SCO Share price
Authored by: AdamBaker on Wednesday, April 28 2004 @ 07:20 PM EDT
I notice today is the 13th succesive day SCO has closed below $10.50, last time
13 days was the limit before the upward pump started and they only just got the
price back on day 20. This time the starting price is lower - will whoever it
was try again? If it was Baystar who pushed the price up last time my guess is
that they will make sure the request for an injunction on SCO for not returning
their money is filed before the 20 days are up and then not worry about the
continuing drop in the share price. If it was anyone else they need to start
working hard at pumping the price.

Continued drops in the share price won't bankrupt SCO but it will make it harder
for them to recruit replacements for those leaving the board (and lets face it
who would want to stay) and pressure RBC into requesting their money back which
would bankrupt SCO pretty quickly. The big question mark is will IBM get enough
evidence to subpoena MS while SCO are still around.

[ Reply to This | # ]

DaimlerChrysler Files Motion to Dismiss, With Prejudice
Authored by: Anonymous on Thursday, April 29 2004 @ 04:43 AM EDT
SCO: You've messed with the dreadnought of German automotive industry - now
watch in terror as their legal storm troopers tear your case a part with
Teutonic ruthlessness and Preussian discipline!

Except for the fact that IBM can inflict more damage on SCO than DC can, this is
possibly an even stupider choice of enemy...

[ Reply to This | # ]

Substantial similarity arguments and Linux
Authored by: Anonymous on Thursday, April 29 2004 @ 02:23 PM EDT

In SCO's claims about Linux, I've heard very little sense: but one brief portion of an interview somewhere almost made some sense. There, they pointed to various cases (novels, music) where substantial similarity (of plot, riffs) sufficed to establish one work as a derivative of another; and they claim that, because Linux does very much the same kinds of things as Unix, it falls foul of a similar argument. Crucially, copyright infringement suits aren't criminal, so the defendant doesn't get to enjoy a presumption of innocence: it's a civil case, so preponderance of evidence is the rule of the day. By the sound of it, the plan is to have Boies stand up in court and sweet-talk a jury into believing that, if substantial similarity of chord-sequences in the riffs of two works (notwithstanding totally different lyrics) suffics to make one infringe the other, then surely the same should apply to two programs.

One obvious answer to this will be to point to the novel and music cases and make sure the court understands that the case was decided on grounds of the plaintif having shown substantial similarity and the defence being unable to show any countervailing case that the defendant didn't copy (I'm making an educated guess there). Because civil suits come down to who showed better evidence on their side, the plaintif won. However, in the Linux vs SCO case, the defendant shall be able to show substantial evidence of, on the one hand, not having copied and, on the other, of having copied from a source that was fair game for copying.

Another obvious countervailing case will be the clear fact that Caldera / SCO were engaged in extensive work on both Unix and Linux code in parallel at various stages, creating a clear ground for suspicion that any similarities arose by virtue of their agents copying between the two. If their comparison of sources uses their modern code, it'll be reasonable to suspect their code is a copy of Linux code; aside from creating grounds for a counter-suit, the mere possibility of this will eliminate any "preponderance of evidence" argument based on "substantial similarity". Even if they use pre-Linux SysV code, though, they'll have to answer reasonable suspicion that the copying happened at Caldera / SCO; which would make SCO the liable party, at least until it proved the coder who did the copying wasn't acting with managment permission, and even then Linux users would not be subject to even the faintest hint of complaint (provided reasonable steps are promptly taken to replace the offending code, perhaps).

When the Linux community points to demonstrably independent development, Boies will point to the SysV code being widely read, claim that anyone who'd read it would be liable to echo what they read, thus argue that substantial similarity proves the developer was tainted, so the result is a derivative despite not being consciously copied (this argument has certainly been applied to riffs in music). The developers will point out that the basic APIs are defined by public specs they have every right to copy; and that implementing those APIs can be done in only a few straightforward ways (and no developer will consider any other way, if such exist), among which some clear judgements may be made as to which is "better", so that two skilled professionals coming to the same conclusion is no surprise, hence no evidence of copying (just as two mathematicians, asked to prove some theorem of geometry, are liable to produce extremely similar proofs). SCO will point to identical names for variables and substantial similarity in comments (neither of which is implied by those design choices); developers will point to the naturality of calling a spade a spade.

The Linux community will also be able to point to various quite nice illustrations: among the files SCO has claimed are copied, I read an analysis of one (I think it was errno.h) where there were some quite major similarities ... but (aside from the analysis showing how those were natural consequences of the data present, and how the present version in Linux is demonstrably linealy descended from a version Linus can show without doubt to be his own work and based on data from minix - hence from a separate source and, in particular, materially different) the clincher is that the Linux version is auto-generated from glibc by a script whose input doesn't look anything like either header in question (it's the standard library's "if errno is this, what's a good text to show the user to communicate the problem ?" data).

Where Linux code can be shown to be demonstrably not copied - and much of it can be - the defence shall be able to point to its degree of similarity as a threshold that must be significantly exceeded before any less-well-documented code's provenance can be called into doubt merely by virtue of similarity. That case shall, however, need to be made - unless the court accepts that there's a huge qualitative gulf between novels or music and software, arising from the functional aspects of the latter and the difference in constraints and goals that flow from those.

Still, the important detail is that SCO/Boies seem to be relying on "substantial similarity has won cases for novels and music, despite huge differences; Linux and SysV are much closer than that, so we should have no problem" and forgetting that it only worked for novels and music because, in essence, an author or composer has no way to prove independent creation even if she never had encountered the original and really did just happen to hit on the same plot line or chord sequence. Innocent authors get screwed that way: but programmers can point to audit trails (CVS logs), objective design constraints, public standards and a plethora of other data with which to counter a mere "substantial similarity" argument; and, in this case, have several other ways to refute the reasonableness of presuming it implies copying and redress the balance of evidence. If George Harrison (who got screwed over the chord sequence in "My Sweet Lord" resembling something older) were alive today, I'm sure he'd be cheering us on.

[ Reply to This | # ]
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