|
|
| SCO Must Pay DC's Costs & Attys Fees If It Refiles |
 |
|
Thursday, December 23 2004 @ 01:10 PM EST
|
Darl McBride during the recent conference call told us that the case against DaimlerChrysler had been dismissed without prejudice. "The court in Michigan denied our motion to stay, but based on a stipulation of the parties, the court entered an order of dismissal without prejudice that permits us to refile our claim later, if necessary."
I have just spoken with the clerk in the Michigan courthouse, and that isn't what she read to me over the phone, at least it isn't the whole story.
Here is what she read to me: that there is a Stipulated Order dismissing the case as of December 21. However, the Order says that if ever SCO refiles against DaimlerChrysler for breach of contract regarding an alleged failure to timely certify, it has to pay DC's costs and attorneys' fees going back to August 9th, the date of the judge's order denying in part and granting in part DC's Motion for Summary Disposition.
I'll leave it to you to decide if you got the whole story from the teleconference. If anyone is near the courthouse and can pick it up, that would be fabulous. Otherwise, it'll take a few days. The clerk had to stop reading because there were only two people in the office today, with the holiday, but she says there is a lot more in this order.
|
|
|
|
| Authored by: fb on Thursday, December 23 2004 @ 01:40 PM EST |
Google's top company queries of 2004:
(1) SCO
[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Thursday, December 23 2004 @ 01:41 PM EST |
If I understood the article correctly then SCO has to pay
the fees _if_ they file again?
So if they don't it's like nothing has ever happened? [ Reply to This | # ]
|
| |
| Authored by: Anonymous on Thursday, December 23 2004 @ 01:41 PM EST |
| DO you believe the SCO will ever tell the truth? [ Reply to This | # ]
|
| |
| Authored by: Peter H. Salus on Thursday, December 23 2004 @ 01:41 PM EST |
Well, that makes a lot of sense. We've
all known that Darl was veracity-challenged,
so there's no surprize here.
My guess is that both the local firm and
Boies' will *not* recommend refiling.
So next week (if we're lucky) or early in
the New Year we should get to read the text.
---
Peter H. Salus[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Thursday, December 23 2004 @ 01:46 PM EST |
Does Darl ever consider his *selective* description of the facts, to be outright
lying?!
What moral law does he subscribe to?
Darl...unbelievable, once again!
[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Thursday, December 23 2004 @ 01:59 PM EST |
It is somewhat disappointing that DC settled on these terms. I suppose their
interests don't coincide entirely with ours, but I would have liked to see them
force SCO to waste resources on a stupid trial, or else concede to dismissal
with prejudice. And in any case they should have been required to pay attorneys
fees for everything up to the present.
I guess they decided that this was the lowest-risk move for them.[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Thursday, December 23 2004 @ 02:01 PM EST |
| To anyone with knowledge on what a defendant can do, could DC have refused such
a deal?
I recall the strategy "Marbux on DaimlerChrysler - Now What? Sunday,
December 19 2004" that suggested SCO might want to avoid a judgement w/r/t
Novell's ability to force SCO to drop charges before trying to decide the
IBM mess, as it would provide a precident on SCO's range of enforcement
powers.
4. Lack of Standing. Plaintiff is not a party to the
License Agreement attached to the Complaint, and therefore Plaintiff may lack
standing to sue. Plaintiff also lacks standing to sue because the terms of
Plaintiff's contract with Novell, Inc. ("Novell") require Plaintiff to waive its
right to enforce the License Agreement upon Novell's request, which, upon
information and belief, Novell has expressly requested Plaintiff to
do.
What if Chrystler had simply said, "no, we want it decided
now rather than allowing you to refile later, and dropping without prejudice is
not acceptable." Could they have forced the issue here?
Thanks.. [ Reply to This | # ]
|
| |
| Authored by: Anonymous on Thursday, December 23 2004 @ 02:13 PM EST |
| The payment of fees upon re-commencement of a dismissed action is standard under
Federal Rules of Civil Procedure Rule 41(d):
(d) Costs of
Previously Dismissed Action. If a plaintiff who has once dismissed an action in
any court commences an action based upon or including the same claim against the
same defendant, the court may make such order for the payment of costs of the
action previously dismissed as it may deem proper and may stay the proceedings
in the action until the plaintiff has complied with the
order.
See FRCP 41(d).
I am not
sure that "fees" under 41(d) would include attorneys' fees, which are likely to
have been the bulk of DCX's expenses. [ Reply to This | # ]
|
- FRCP 41(d) - Authored by: Anonymous on Thursday, December 23 2004 @ 02:16 PM EST
| |
| Authored by: Anonymous on Thursday, December 23 2004 @ 02:57 PM EST |
I understand that DC most likely did this because it was in their best interest.
That is to say, they wanted it over with, period. They didn't want it to drag
on, and they didn't want to keep paying legal fees.
However, was this really the best thing for them? As a spectator, I view it as
a loss for them. They agreed to drop the lawsuit and pretend that it never
happened UNLESS SCO decides to bring it up again. That means that DC did NOT
win the case (in my opinion), because they gave SCO permission to refile. It's
highly unlikely that they will, but they have permission to from DC. And to top
it all off, DC didn't get paid a dime! At the very least, they should have been
reimbursed for their legal fees. And I mean, now, not IF SCO decides to refile.
DC paid to defend a bogus lawsuit, and they agreed to forget about it. In my
opinion, they got played.
Going by the letter of the law, there was no way SCO could have gotten a dime
from them, because the contract never gave a time period for the response, so
SCO couldn't possibly argue that they were harmed by it's "tardiness"
(or, more accurately, no competent judge could agree to that). In fact, going
by the letter of the law, SCO cannot even argue that the response WAS tardy,
because there was no "due date" specified by the contract.
I personally believe that DC had a very good chance of winning this case and
getting reimbursed for their legal fees, but instead they decided to sweep it
under the rug. I must say I'm very disappointed. And if I was a shareholder,
I'd be very upset.
[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Thursday, December 23 2004 @ 03:05 PM EST |
If the costs for this case were not much more than their normal retainer fees,
it would be best for DC to drop it as soon as possible. Such a low price is at
least possible, since the hearings were all in DC's home court.
[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Thursday, December 23 2004 @ 07:31 PM EST |
Only mild prejudice but still prejudice against SCO....
I mean that is effectively saying that SCO has been wasting the courts time and
that if they want to do it again they had better darn well have a good reason!
[ Reply to This | # ]
|
| |
| Authored by: _Arthur on Thursday, December 23 2004 @ 07:38 PM EST |
For tactical reasons, dismissal with prejudice was unpalatable to SCO: they
would have clearly lost, and be the laughingstock, as usual.
Daimler merely wanted to be rid of that nonsense case.
So they reached a deal: call it a Dismissal without Prejudice, but if SCO ever
dare refile the case against Daimler, SCO has to pay a "fine" to
Daimler.
There is no chance that we ever see, in a couple of years, SCO or a successor
re-file that silly case, and pay a $200,000 fine for the privilege of losing the
case all over again.
SCO saves face.
_Arthur[ Reply to This | # ]
|
| |
| Authored by: TheBlueSkyRanger on Thursday, December 23 2004 @ 09:31 PM EST |
Hey, everybody!
With the references to the SCO conference call, I was curious about something.
I know that there is software that lets you record streaming audio off the 'Net,
and you can then make an MP3 or put it on CD or whatever. Did anyone capture
the conference call the other day, and where can I find it? Reading isn't the
same as listening to Darl spin, and somehow, I don't think I'll find it on the
filesharers. ;-)
Dobre utka,
Pete Holland Jr.[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, December 24 2004 @ 12:18 AM EST |
my guess is no. they need the final spin to show that it is decidely unhealthy
to engage them in a frivolous lawsuit. the press releases [or joint press
release] should be interesting reads.
sum.zero[ Reply to This | # ]
|
| |
| Authored by: AllParadox on Friday, December 24 2004 @ 01:47 AM EST |
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.
PJ says you must be on your very best behavior.
If you want to comment on this thread, please post under "OT"
---
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 | # ]
|
| |
| Authored by: iceworm on Friday, December 24 2004 @ 08:48 PM EST |
According to their initial answer
and affirmative defense, DC asked for the following:
(emphasis mine)
WHEREFORE, Defendant DaimlerChrysler Corporation
respectfully requests that this Court
dismiss Plaintiff's
Complaint with
prejudice,
award DCC its costs and
attorney's
fees as may be permitted by law,
and grant such other relief as
may
be appropriate.
At the hearing, Judge Chabot, granted almost all DC's
requests.
Here is the order
in pdf. I could not find a text
version.
IT IS HEREBY ORDERED that
DaimlerChrysler Corporation's
motion for Summary Disposition is
GRANTED in part and
DENIED in part, such that the Court will grant
summary
disposition as to all claims except for SCO's claim for
breach of
contract for DaimlerChrysler's alleged failure to respond
to the
request for certification in a timely manner, for the
reasons
stated on the record at the July 21, 2004 hearing.
DC's claims included:
- dismissal with prejudice of plaintiff's complaint
- award costs and attorney's fees
- granting
other relief as may be appropriate
Thus, I conclude that:
- SCO's complaint was
dismissed with prejudice, with the
exception of the timely manner
issue
- DC may sue for costs and attorney's fees
- DC may sue for other relief as may be
appropriate
- SCO may continue the case to trial on the timely
manner issue
Now comes this stipulated order dismissing the case
as of
December 21 with the proviso that SCO must pay DC's costs
and
attorney's fees should it refile against DC on
only the
timely manner
issue. SCO cannot refile on the other complaints
because they
were dismissed with prejudice.
I understand DC's
desire to be free of this foolish suit.
Judge Chabot gave them a rather large
hammer which they
were only willing to use if SCO was so stupid to continue
the
case on the timely manner issue. I imagine the
DC lawyers
offered to put the hammer back in its storage box if
SCO were willing to
stipulate to dismissal (without prejudice)
of this final issue.
In
conclusion, contrary to some comments, I applaud DC
and counsel for, as they
say in poker, knowing when to
hold 'em, knowing when to fold 'em, and
knowing when to call
a bluff. [ Reply to This | # ]
|
|
|
|
|
