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SCO's Ex Parte Motion to Adjourn - as text
Thursday, April 14 2005 @ 10:22 AM EDT

Here is SCO's Ex Parte Motion to Adjourn the April 21, 2005 Argument on SCO's Motion to Amend Its Complaint [PDF] as text, which we commented on already. We have both Feldegast and Steve Martin to thank for this transcription.

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

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

Stuart H. Singer (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[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)
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,

v.

INTERNATIONAL BUSINESS
MACHINES CORPORATION,

Defendant/Counterclaim-Plaintiff.

EX PARTE MOTION TO ADJOURN
THE APRIL 21, 2005 ARGUMENT ON
SCO'S MOTION TO AMEND ITS
COMPLAINT

Case No. 2:03CV0294DAK
Honorable Dale A. Kimball
Magistrate Judge Brooke C. Wells

Plaintiff The SCO Group, Inc. ("SCO") hereby moves the Court for a brief adjournment of the argument on SCO's Motion for Leave to File a Third Amended Complaint (Dkt. No. 322), which is currently scheduled for April 21, 2005.

On October 14, 2004, based on newly discovered evidence, SCO moved to amend its complaint in order to add a single new copyright claim. That claim arises out of IBM's unauthorized use of SCO source code to develop its AIX on Power product. IBM obtained restricted access to the SCO code through "Project Monterey," a joint development effort between IBM and SCO's predecessor-in-interest.

After SCO requested this Court's leave to amend, the Magistrate Court entered an Order on January 18, 2005 that granted in large part SCO's renewed motion to compel substantial, long-outstanding discovery from IBM (the "Discovery Order"). In addition, the Magistrate Court (1) struck the prior Amended Scheduling Order sua sponte and (2) ordered the parties to submit a new proposed schedule by March 25, 2005. 1 On March 17, 2005, this Court scheduled argument on SCO's Motion to Amend for April 21, 2005.

SCO requests a brief adjournment of that argument for two principal reasons.

First, in reliance on discovery obtained since SCO filed its pending Motion to Amend, SCO will be seeking leave to amend its complaint further in order to add claims in addition to the currently proposed copyright claim. SCO submits that it would make sense for all of the proposed amendments to be considered together, rather than in a piecemeal fashion. IBM sought and received a substantial extension of time to comply with the Discovery Order, and is still in the process of producing discovery that the Court ordered. SCO anticipates that it will be in a


position to file the additional amendments shortly after it receives and reviews the outstanding IBM discovery that is currently due on May 3, 2005.

Second, SCO's Proposed Scheduling Order, which is currently pending before the Court, sets June 17, 2005 as the deadline for amendments to the parties' pleadings. As SCO has explained, this new proposed amendment date would permit the parties approximately five months (under either of their proposed schedules) after such deadline to complete fact discovery — an amount of time roughly equivalent to the time the Court originally provided for fact discovery when it imposed the prior amendment deadline. if the Court agrees with SCO that the new scheduling Order, like the initial Order, should include a deadline before which the parties shall be entitled to amend their pleadings as of right, this will resolve SCO's current motion and its future motion to amend. In other words, the new amendment deadline that SCO proposes, if accepted, would obviate the need for additional briefing and court argument on the parties' motions to amend. 2

Accordingly, SCO respectfully requests that the Court adjourn the April 21 hearing on SCO's proposed Motion to Amend so that SCO may consolidate all of its proposed amendments into a single amended complaint and, if necessary, the Court may consider all such amendments together.


DATED this 11th day of April, 2005.

Respectfully submitted,

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

BOIES, SCHILLER & FLEXNER LLP
Robert Silver
Stuart H. Singer
Stephen N. Zack
Edward Normand
Sean Eskovitz

By (signature of Mark F. James)
Counsel for The SCO Group, Inc.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that I caused a true and correct copy of the foregoing to be hand-delivered on this 11th day of April, 2005, to the following:

Alan L. Sullivan, Esq.
Todd M. Shaughnessy, Esq.
Snell & Wilmer L.L.P.
[address]

and mailed by U.S. Mail. First class postage prepaid, to:

Evan R. Chesler, Esq.
Cravath, Swaine & Moore LLP
[address]

Donald J. Rosenberg, Esq.
[address]

(signature of Mark F. James)


1 Because the parties were unable to agree on a number of important scheduling points, they filed separate proposed scheduling orders on March 25, 2005.

2 IBM has filed its own motion effectively to amend one of its counterclaims outside of the time provided by the previous Amended Scheduling Order. On February 18, 2005, IBM filed a Motion for Entry of Judgment Limiting Scope of IBM's Ninth Counterclaim. Although IBM does not label its motion as one to amend its counterclaims, the motion seeks precisely that relief.


  


SCO's Ex Parte Motion to Adjourn - as text | 103 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
corrections here please
Authored by: Anonymous on Thursday, April 14 2005 @ 10:32 AM EDT
so PJ can find them

[ Reply to This | # ]

OT here please
Authored by: Anonymous on Thursday, April 14 2005 @ 10:33 AM EDT
Off Topic here, please make links clickable:

<a href="http://www.example.com">example</a>

[ Reply to This | # ]

Off topic here please
Authored by: fudisbad on Thursday, April 14 2005 @ 10:36 AM EDT
Some people block anonymous comments.

---
See my bio for copyright details re: this post.
Darl McBride, file your 10-Q!

[ Reply to This | # ]

SCO's Ex Parte Motion to Adjourn - as text
Authored by: gnuadam on Thursday, April 14 2005 @ 10:38 AM EDT
Is an adjournment a request for a delay in the hearing, or them backing away
from their whole argument, as though the court had denied it?

What does it mean exactly?

[ Reply to This | # ]

The truth of the matter
Authored by: Anonymous on Thursday, April 14 2005 @ 10:38 AM EDT
"SCO respectfully requests that the Court adjourn the April 21 hearing on
SCO's proposed Motion to Amend so that SCO may delay the case yet again."

[ Reply to This | # ]

Reply memo too
Authored by: Anonymous on Thursday, April 14 2005 @ 10:41 AM EDT
There's already SCO's reply memo (433) on tuxrocks.

I presume 432 must be IBM's opposition.

Quatermass
IANAL IMHO etc

[ Reply to This | # ]

SCO's Ex Parte Motion to Adjourn - as text
Authored by: Anonymous on Thursday, April 14 2005 @ 10:50 AM EDT
to amend its complaint further in order to add claims in addition to the currently proposed copyright claim

I thought this was a contract dispute?

[ Reply to This | # ]

Do I have this right?
Authored by: Anonymous on Thursday, April 14 2005 @ 11:58 AM EDT
SCO wants to delay a hearing on whether they can amend their complaint, because
they want to amend it some more?

And, they want to delay a hearing on whether they can amend it at all, a year
after the court's deadline for amending the complaint, because they (SCO) have
proposed a deadline of June 2005 for the last time the complaint can be
amended?

Words fail me to try to describe how insane this all is.

I hope Kimball smacks them into the ground for this.

MSS

[ Reply to This | # ]

  • Yep - Authored by: Anonymous on Thursday, April 14 2005 @ 12:05 PM EDT
    • Yep - Authored by: frk3 on Thursday, April 14 2005 @ 12:12 PM EDT
  • That may be SCO's game plan - Authored by: jbb on Thursday, April 14 2005 @ 01:35 PM EDT
OT? 433: changing the past
Authored by: overshoot on Thursday, April 14 2005 @ 12:26 PM EDT
SCOXE's reply is up to IBM's opposition to their attempt to reschedule the 21st April hearing. It's a doozy.

IBM's present argument is also deficient, however, because it would effectively allow IBM to prejudice SCO by exploiting the continuing impact of IBM's prior violations of this Court's orders. By witholding extensive and essential discovery through conduct now adjudicated to have been a prolonged violation of this Court's directives, IBM has necessitated the new scheduling order. IBM has still not produced most of what this Court ordered IBM to produce over a year ago. Whereas the previous scheduling order provided that the pleading amendment deadline would be six months before the close of discovery, IBM's approach would exploit its discovery violations and prejudice SCO by seeking to cut-off amendments fifteen (15) months before IBM has even begun to comply with the Court's discovery orders, and twenty-one (21) months before even IBM's proposed fact-discovery cut-off.
(Emphasis added)

Note that SCOXE has managed the interesting trick of retrograde causality: events after the close of the pleading-amendment deadline now reach back to change it.

Still, what's really sweet is SCOXE's blatant misrepresentation of the Court's own orders. Since this motion is now fully briefed and there won't be oral arguments on whether or not to hold a hearing, one hopes that the Court will notice this without IBM pointing it out.

I suppose it's too much to hope that at some point the Court will actually comment on this "creative representation."

[ Reply to This | # ]

Only SCO could argue this.
Authored by: Anonymous on Thursday, April 14 2005 @ 12:54 PM EDT
Only SCO could argue that IBM's desire to restrict one of their claims entitles SCO to introduce a whole new claim.

The sad, sorry part is that in front of this judge, they might get away with it.

[ Reply to This | # ]

SCO's Ex Parte Motion to Adjourn - as text
Authored by: Jaywalk on Thursday, April 14 2005 @ 02:08 PM EDT
SCO moved to amend its complaint in order to add a single new copyright claim. That claim arises out of IBM's unauthorized use of SCO source code to develop its AIX on Power product. IBM obtained restricted access to the SCO code through "Project Monterey," a joint development effort between IBM and SCO's predecessor-in-interest.
Looks like we're in for another interesting dance between copyright and contract claims. If SCO pursued this as a strict copyright claim, they'd be out of luck because Monterey was a joint project and they don't have sole ownership of the end product. But if they say that it's a contract claim, they're also out of luck because the contract specifically states that any disagreements have to be dealt with in New York courts. As a result they're going to go into this weird thing again where it's a contract claim one minute and a copyright claim the next.

Of course, it won't be the first time for this particular stunt.

---
===== Murphy's Law is recursive. =====

[ Reply to This | # ]

SCO's Ex Parte Motion to Adjourn - as text
Authored by: Anonymous on Thursday, April 14 2005 @ 10:15 PM EDT
There are BILLIONS of dollars at stake here, as well as probably new legal
precedents that this case will set.

Is it any wonder that the judge is being careful? And that the case is
exceedingly complex - look at the sheer volume of discovery material.

You people who think that the judge is biased or that it's taking too long are
unable to fathom the complexities this case presents. If I were IBM, I would be
quite happy getting a deliberate and thorough judge like Kimball. He's just busy
closing all the loopholes SCO could jump through to appeal the eventual verdict.
Whast is wrong with that, you of little patience?

[ Reply to This | # ]

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