And remember when the judge was asked at the hearing how many depositions would be permitted? He said it was up to the parties to work that out. Evidently there have been more discussions about that, because he has decided it will be 6 each. And SCO has only 20 days after the conclusion of the limited discovery to file its motion for a preliminary injunction. This was not spelled out at the hearing on July 12, and I'm relieved to see it clarified. Also, the periodic reports will have to be not only on IBM and Red Hat cases, as he said at the hearing, but on progress on the Novell case too.

You will see some things we haven't seen before in this case, so I will explain. First, the handwritten corrections. As you may recall from the hearing the judge asked the lawyers for AutoZone to write up the order for his signature. That is what normally happens in such a case. The winning side usually gets "anointed" to do the work. So they then write up what they think the judge said at the hearing, show it to the other side for approval and then submit it to the judge. He then either signs it or changes whatever he wishes. In this case, he changed some dates. Evidently he decided what he said wasn't enough time for SCO. It also could be that there were telephone conferences with the parties and that resulted in the changes. If you remember, he mentioned he was available for such, as was the magistrate.

The second change relates to the fact that nobody knew for sure what the judge had ruled at the hearing about the Motion to Transfer, because he didn't explicitly say, just saying that he was ordering a stay. If you reread it carefully, you will see that is the case. AutoZone had asked for a stay or for a more definite statement, so when the stay was ordered, you'd think that took care of that motion, at least for now, but he never actually said at the hearing what he was doing with that motion. And what about the transfer motion? What do you write up to hand in for his signature? Both sets of lawyers evidently thought he was staying the motion to transfer, as did I, or at least it was their best guess, because AutoZone wrote it that way, and SCO was supposed to sign off on it before it went before the judge. Once the judge saw the order, he evidently realized he hadn't actually said what would happen to that motion, or at least that all he had said at the hearing was that he was staying the case except for limited expedited discovery. The only word he used at the hearing was "stay", but it wasn't in the context of the transfer motion. He was silent on that. So he has now crossed out their wording and inserted the wording that he is denying it without prejudice.

What does that mean? It doesn't mean deny in the sense of lose the motion. It's a legal phrase that is similar to a stay in effect, except the way he has chosen means he doesn't have to track the motion any more. It's denied, but without in any way blocking them from resubmitting it if and when the stay on the case is lifted. The order also says the motion for a more definite statement is denied without prejudice, I gather because the judge knows that if the case goes forward, they need a more definite statement. But for now, because of the stay, there just is nothing to rule on that makes any sense, particularly with limited discovery going on there. So for now, nobody needs a more definite statement, and transfer isn't an issue currently needing to be decided, and it won't be until the stay is lifted and AutoZone resubmits, if they choose to, and I'm sure they will. If the motions were denied, there would have been no opportunity to resubmit.

There is an advantage to AutoZone this way. When they resubmit their motions, and they will the minute the case goes live again, they can rewrite it instead of him ruling on what they already submitted. Remember how they offered statistics on how cases go faster in Tennessee and the judge told them they had old info? So he's doing them a kindness by letting them rewrite to make it more convincing. What they had before, in my view, wasn't working on him. So by denying without prejudice, they get to improve their submission and try again later. It is even possible that AutoZone requested the change, just as it is possible SCO asked for more time in telephone conferences. It's also possible the judge made up his own mind. I don't know which it was, so I'm explaining all the possibilities. If it's all a bit confusing, it's because the judge didn't say clearly at the oral hearing what his ruling was on any of the motions except the motion to stay, which AutoZone won, with the limited exception of discovery. But now it is clarified.

Here are the definitions for dismiss with prejudice and without. Dismiss without prejudice is the word used for criminal cases. I couldn't find an online definition for you for deny without prejudice, but it's the same concept:

"Dismiss with prejudice - to set aside the present action and deny the right to file another suit on that claim.

Dismiss without prejudice - to set aside the present action but leave open the possibility of another suit on the same claim."

Here's a case involving AT&T where the judge denied without prejudice to later refiling because the issue raised in the matter was at the moment speculative, so there was no need for a decision right then:

"The Board will grant AT&T’s unopposed motion for stay while the Board considers the applications for rehearing, but the Board will deny, without prejudice to re-filing at a later date, the motion for a stay of the Board’s order while any subsequent judicial review proceedings are pending. At this time, the need for any such judicial review proceedings is speculative, at best; if AT&T (or any other party) believes a stay pending judicial review is justified after review of the Board’s order considering the merits of the applications for rehearing, then AT&T (or any other party) may file a request for a stay at that time. The Board will consider any such request if and when filed, after hearing from all interested parties."

Here is another case, where the judge denied without prejudice, and you will see that it is a technique used so the party can refile, sometimes so they can refile better:

"However, the court cannot consider the issue without adequate evidence (and sufficient briefs). Therefore, the court shall deny without prejudice the parties' motions for summary judgment as to the premium-payment issue, grant the plaintiffs 10 days to amend their complaint, grant the defendant 10 days after service of the complaint to respond to the amended complaint, and give the parties 10 days after filing of the defendant's responsive pleading to file properly supported motions for summary judgment on the premium-payment issue, if the parties see fit to do so."

Here is another example, where the party had a new lawyer and the judge wanted to give him or her time to get with it and do a better motion:

"Lastly, the Court notes that the defendant has filed three motions in limine (filings 22- 24). Due to the late substitution of plaintiff’s counsel and the necessity to reprogress the case, the Court shall deny the motions in limine without prejudice to the defendant to renew on or before March 17, 2000."

Deny without prejudice, then, is definitely not the same as deny. You can see that here.

So the judge has done AutoZone a kindness. Who knows? Maybe he heard about the DaimlerChrysler decision. Or he's had time to really look at things more in depth. In any case, he did a nice thing.

Speaking of nice things, our thanks go to JeR for transcribing.

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UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA

ORDER

Defendant AutoZone, Inc. (“AutoZone”) has filed a motion to stay this case or, in the alternative, for a more definite statement as well as a motion to transfer venue to the Western District of Tennessee pending the resolution of related litigation pending in federal district courts in Utah and Delaware. Plaintiff The SCO Group, Inc. (“SCO”) has opposed the motion and, in so doing, has alleged that AutoZone is infringing SCO’s OpenServer software product in ways that are not at issue in the related pending cases; and that SCO is suffering irreparable harm as a result of the alleged infringements.

Having read and considered the briefs of the parties, and having heard oral argument from counsel for the parties,

It is HEREBY ORDERED that:

1. AutoZone”s motion is GRANTED. This action is stayed pending further order of the court. The parties shall each submit a letter to the Court every 90 days as to the status of the following cases: The SCO Group, Inc. v. International Business Machines Corporation, No. 2:03CV294 (D. Utah); The SCO Group, Inc. v. Novell, Inc., No. 2:04CV00139 (D. Utah); and RedHat, Inc. v. The SCO Group, Inc., No. 1:03CV772 (D. Del.). The parties’ letters shall be sent 14 days following the dates on which SCO’s status letters are due to the court in the Red Hat case.

2. Notwithstanding the stay of this case, the court will allow the parties to take limited expedited discovery related to the issue of preliminary injunctive relief. In that regard, SCO shall, within ten fifteen days from the date of this Order, serve on AutoZone a statement of the basis for its claim for preliminary injunctive relief and the nature of the relief it seeks on those claims.

3. Discovery and briefing shall occur according to the following schedule and limitations:

(a) The parties shall have 30 45 days from the date of this Order to propound written discovery pursuant to Federal Rules of Civil Procedure.

(b) All relevant party and non-party discovery must be completed within 60 90 days of the date of this Order.

(c) The parties may take no more than six depositions each, including 30(b)(6) and third party depositions.

(d) SCO will file its motion for preliminary injunction and supporting memorandum of authorities within twenty days after the conclusion of discovery.

(e) AutoZone shall have 33 days from the date of service of SCO’s motion for preliminary injunction to file a brief in opposition to SCO’s motion for preliminary injunction. The motion will thereafter be scheduled for hearing at the court’s earliest opportunity.

(f) Defendant AutoZone’s alternative motion for a more definite statement and its motion to transfer this matter pursuant to 28 U.S.C. § 1404(c) are stayed pending further order of this Court. denied without prejudice.

SO ORDERED, this 6 day of JulyAug, 2004.

[signature]
ROBERT C. JONES
UNITED STATES DISTRICT JUDGE