James J. Pisanelli, Esq., Bar No. 4027
Nikki L. Wilmer, Esq., Bar No. 6562
BROWNSTEIN HYATT FARBER SCHRECK, LLP
[address]
[phone]
[fax]
[email addresses]
David J. Stewart, Esq.
Georgia Bar No. 681149
ALSTON & BIRD LLP
[address]
[phone]
[email address]
Attorneys for Defendant AutoZone, Inc.
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
THE SCO GROUP, INC.
Plaintiff,
v.
AUTOZONE, INC.
Defendants
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Case No. 2:04-cv-0237-RCJ-GWF
DEFENDANT AUTOZONE, INC.'S
ANSWER
(JURY DEMAND) |
Defendant AutoZone, Inc. ("AutoZone"), for its Answer and
Affirmative Defenses to the Complaint of Plaintiff The SCO Group,
Inc. ("SCO"), responds as follows:
1. Answering the allegations contained in Paragraph 1, AutoZone
admits that it uses one or more versions of the Linux operating
system. AutoZone further admits that SCO purports to bring claims
under the Copyright Act. AutoZone denies each and every remaining
allegation contained in Paragraph 1.
2. AutoZone admits the allegations contained in Paragraph 2.
3. AutoZone admits the allegations contained in Paragraph 3.
(1)
4. Answering the allegations contained in Paragraph 4, AutoZone
is without knowledge or information sufficient to form a belief as
to whether this Court has subject matter jurisdiction over SCO's
claims, and the same is therefore denied. SCO has based its claim
of subject matter jurisdiction on copyright registrations in
certain versions of the UNIX operating system. To the extent SCO
does not own the copyrights claimed in the registrations, the
registrations would be invalid and would deprive this Court of
subject matter jurisdiction over SCO's claims.
5. AutoZone admits the allegations contained in Paragraph 5,
however, AutoZone denies that this District is the most convenient
forum as no relevant witnesses or documents are located in this
District.
6. AutoZone admits the allegations contained in Paragraph 6.
7. AutoZone admits the allegations contained in Paragraph 7.
8. Answering the allegations contained in Paragraph 8, AutoZone
admits that the UNIX operating system was developed at least in
part by AT&T Bell Laboratories and that AT&T licensed UNIX
to third parties. AutoZone is without knowledge or information
sufficient to form a belief as to the truth of the remaining
allegations contained in Paragraph 8, and the same are therefore
denied.
9. AutoZone is without knowledge or information sufficient to
form a belief as to the truth of the allegations contained in
Paragraph 9, and the same are therefore denied.
10. AutoZone is without knowledge or information sufficient to
form a belief as to the truth of the allegations contained in
Paragraph 10, and the same are therefore denied.
11. AutoZone denies the allegations contained in Paragraph
11.
12. AutoZone admits the allegations contained in Paragraph
12.
13. AutoZone is without knowledge or information sufficient to
form a belief as to the truth of the allegations contained in
Paragraph 13, and the same are therefore denied.
14. Answering the allegations contained in Paragraph 14,
AutoZone repeats and realleges its answers to Paragraph 1 through
13, above, as though fully set forth herein.
(2)
15. Answering the allegations contained in Paragraph 15,
AutoZone denies that SCO is the owner of all copyright in UNIX
software source code and object code. AutoZone is without knowledge
or information sufficient to form a belief as to the truth of the
remaining allegations contained in Paragraph 15, and the same are
therefore denied.
16. AutoZone is without knowledge or information sufficient to
form a belief as to the truth of the allegations contained in
Paragraph 16, and the same are therefore denied.
17. AutoZone is without knowledge or information sufficient to
form a belief as to the truth of the allegations contained in
Paragraph 17, and the same are therefore denied.
18. Answering the allegations contained in Paragraph 18,
AutoZone states that the final two sentences are purported
statements of law, and, as such, neither an admission or denial is
required as to these statements. AutoZone denies that SCO owns all
copyrights in the Copyrighted Materials. AutoZone is without
knowledge or information sufficient to form a belief as to the
truth of the remaining allegations contained in Paragraph 18, and
the same are therefore denied.
19. AutoZone is without knowledge or information sufficient to
form a belief as to the truth of the allegations contained in
Paragraph 19, and the same are therefore denied.
20. AutoZone is without knowledge or information sufficient to
form a belief as to the truth of the allegations contained in
Paragraph 20, and the same are therefore denied.
21. Answering the allegations contained in Paragraph 21,
AutoZone admits that it implemented one or more versions of the
Linux operating system. AutoZone denies the remaining allegations
contained in Paragraph 21.
22. Answering the allegations contained in Paragraph 22,
AutoZone admits that it does not own the copyright to the
Copyrighted Materials. AutoZone further admits that it does not
have permission or license from SCO to use the Copyrighted
Material, however, AutoZone denies that any such permission or
license is necessary or required for AutoZone to implement and use
Linux. AutoZone denies each and every remaining allegation
contained in Paragraph 22.
23. AutoZone denies the allegations contained in Paragraph
23.
24. AutoZone denies the allegations contained in Paragraph
24.
25. AutoZone denies the SCO is entitled to any of the relief
requested in Paragraph 25.
(3)
Except as specifically admitted, AutoZone denies each and every
allegation contained in the Complaint.
AFFIRMATIVE DEFENSES
FIRST DEFENSE
SCO has failed to state a claim upon which relief can be
granted.
SECOND DEFENSE
SCO's claims are barred, in whole or in part, by the doctrine of
laches.
THIRD DEFENSE
SCO's claims are barred, in whole or in part, by the doctrine of
collateral estoppel.
FOURTH DEFENSE
SCO's claims are barred because one or more of the copyright
registrations upon which it relies are invalid.
FIFTH DEFENSE
AutoZone's alleged use of the Copyrighted materials is lawful
use based on agreements and licenses with third-parties.
SIXTH DEFENSE
AutoZone currently has insufficient information upon which to
form a belief as to the existence of additional, as yet unstated,
affirmative defenses. AutoZone reserves the right to assert
additional affirmative defenses in the event discovery discloses
the existence of said affirmative defenses.
WHEREFORE, AutoZone requests that the Complaint be dismissed
with prejudice, that judgment be entered in AutoZone's favor, and
that the Court award AutoZone recovery of its costs and reasonable
attorneys' fees incurred in connection with this matter and such
other and additional relief as the Court deems just and proper.
(4)
JURY DEMAND
AutoZone demands a trial by jury of all issues triable of right
by a jury that are raised in the SCO's Complaint.
DATED this 11th day of February, 2009.
(signature)
James J. Pisanelli
Nevada Bar No. 4027
Nikki L. Wilmer
Nevada Bar No. 6562
BROWNSTEIN HYATT FARBER SCHRECK, LLP
[address]
[phone]
[email addresses]
David J. Stewart
Georgia Bar No. 681149
ALSTON & BIRD LLP
[address]
[phone]
[email address]
Attorneys for Defendant AutoZone, Inc.
(5)
CERTIFICATE OF MAILING
I HEREBY CERTIFY that I am an employee of Brownstein Hyatt
Farber Schreck, LLP, and that on this 11 day of
February, 2009, I caused to be sent via electronic mail, a true and
correct copy of the above and foregoing DEFENDANT AUTOZONE,
INC.'S ANSWER properly addressed to the following:
Stanley W. Parry
Ballard Spahr Andrews & Ingersoll, LLP
[email address]
Stephen N. Zack
Boies, Schiller & Flexner, LLP
[email address]
Richard J. Pocker
Boies Schiller & Flexner, LLP
[email address]
(signature)
An employee of Brownstein Hyatt Farber Schreck, LLP
(6)
