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DaimlerChrysler Answers SCO - It's Moot, Novell Waived, Now Pay Our Lawyers
Wednesday, April 28 2004 @ 08:54 PM EDT

Here is DaimlerChrysler's Answer to SCO's Complaint. This too was filed on April 15. Note the ten affirmative defenses. The rest of the text will be available soon, but I didn't want you to have to wait. It's pretty intriguing. First, they indicate this dispute is moot, in Number 8. They've provided a "proper" certification, whatever that is. I doubt SCO, unless it has decided to run screaming back to Mommy and away from this case, will agree with DC as to what is a "proper" certification.

The reason I doubt it is what they say in Number 6 ("Plaintiff fails to identify a duty under the License Agreement that DCC breached, and DCC has cured any alleged failure to comply with an actual duty under the License Agreement."). Further, consistently throughout the document, they state that to the extent SCO's allegations characterize the License, they deny the allegations. I also don't think they see eye-to-eye because they list so many reasons they don't think SCO even has the right to sue them, including a surprising one: Novell, once again, has stepped up to the plate and told SCO to waive any issues over the license with DC.

On second thought, that isn't so surprising about Novell. They have come through every time so far.

In addition, DC says there was no breach in the first place and SCO wasn't a party to the license it signed anyhow, another indication they have probably been noticing some broken links in the chain, so to speak.

Once again, we have Mark Thorndyke and family to thank for getting this for us. I hope you can read the PDF, as it is faint. If not, we will have a clear plain text soon. Most of it is the usual "Defendant is without knowledge or information sufficient to form a belief" language you always see in Answers to Complaints, but here are the affirmative defenses, the meat of their position, and the final Wherefore clause, where they ask the Court to make SCO pay DC's lawyers:

1. Failure to State a Claim. The Complaint fails to state a claim against DCC upon which relief can be granted.

2. Waiver, Estoppel, Laches, Unclean Hands and Acquiescence. Plaintiff's claims are barred by the doctrines of waiver, estoppel, laches, unclean hands and/or acquiescence.

3. Lack of Capacity to Sue. Plaintiff is not a party to the License Agreement attached to the Complaint, and therefore Plaintiff may lack the capacity to sue.

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.

5. Lack of Case or Controversy. Plaintiff's action for a declaratory judgment fails for lack of a case or controversy because DCC did not breach the License Agreement.

6. Lack of Breach/Cure of Alleged Breach. Plaintiff fails to identify a duty under the License Agreement that DCC breached, and DCC has cured any alleged failure to comply with an actual duty under the License Agreement. Nothing set forth herein shall be construed as an admission by DCC that it has failed to comply with any duty under the License Agreement.

7. Mitigation of Damages. The damages sought by Plaintiff are not recoverable because Plaintiff has failed to mitigate its damages.

8. Plaintiff's Claims are Moot. The claims asserted in the Complaint are moot because DCC has provided Plaintiff with a proper certification under the License Agreement.

9. Bar by Third-Party Contract. Plaintiff is barred from asserting the claims in the Complaint by its contract with Novell, Inc.

10. Reservaton of Right. DCC reserves the right, upon a completion of its discovery and investigation or otherwise, to assert such additional defenses as may be appropriate.

WHEREFORE, Defendant Daimler Chrysler Corporation respectfully requests that the 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.

BayStar has let it leak that part of what they don't like about SCO's choices is the two lawsuits against AutoZone and DaimlerChrysler:

"Reportedly, BayStar was unhappy with the filing of the suits against DaimlerChrysler and AutoZone and wants changes in SCO's management team to include more people with intellectual property and legal experience. Others are interpreting the move by an insider like BayStar as a general vote of no confidence in SCO's ability to prevail or gain significant advantage in its legal disputes. In any event, recent actions by BayStar will probably put the brakes on SCO initiating new litigation, at least for the moment."

If it looks like a waste of money to BayStar, it tells you plenty. More to come as soon as I can get it done.


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