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SCO v. DaimlerChrysler: June 9th Set for Hearing on DC's Motion for Summary Disposition
Saturday, May 15 2004 @ 05:28 AM EDT

The judge in the SCO v. DaimerChrysler case, the Hon. Rae Lee Chabot, seems like a no-nonsense type. She has scheduled a hearing for June 9th on DC's summary disposition motion, and she provided a schedule, letting both sides know when she expects briefs to be filed. If they don't timely file their briefs, "the Court will assume that counsel is without authority for their respective positions" and the motion will be heard on the scheduled date without them.

The June 9 hearing date is currently pencilled in as an oral-arguments hearing, but she tells the parties she is free to waive the oral arguments if she feels like it later, presumably after she reads all the papers. If she doesn't think she needs to hear them argue their points orally, she is saying she can rule on the pleadings alone.

Whoa. Is this not a change from what we are used to?

You think she read that DC hasn't used SCO's software in almost a decade? Actually, as you will see, Michigan Court Rules encourage speed and give the judge a lot of leeway. SCO is to file its response brief by May 19, and DC must file its 5-page reply by May 26, if it chooses to, or it can skip that step if it wants to. If either side misses a deadline, they need to give her a real good reason why. It doesn't look like this case will drag on and on for long stretches without activity, despite delay being SCO's speciality.

This is the same judge who refused a request back in December to let Jack Kavorkian get out of prison early when he pleaded ill health, saying his health problems didn't trump state law.

The SCO v. DC order also informs both sides what she expects to find written on the motions and in them. Cases. She wants cases for every point. But hurry up and not too many. There's a page limit.

The order uses a legal term, "praecipe". This word is just another name for order, or maybe more like a command, because it adds the flavor that the order is to be obeyed or you have to tell the judge why you failed to do so. Here is the definition from my "Law Dictionary" by Steven H. Gifis:

"Lat: order; command. A writ commanding the defendant to do the thing required or to show reason why it has not been done. The clerk of the court is ordered by a praecipe to issue an execution of judgment."

The Free Dictionary says it is "A writ commanding something to be done, or requiring a reason for neglecting it."

In this case, it is referring to a form that the party bringing the motion must fill out just before the hearing date. You have to certify that you contacted, or seriously tried to contact, the other side and at least tried to work things out so as to avoid the necessity for the motion. You can find it here as PDF, and a explanation on the page that links to it:

"General motion practice is governed by MCR 2.119 and LCR 2.119. Procedure may vary by judge. It is recommended that you contact the chambers of the assigned judge with specific questions. Some judges may have posted procedures.

"MCR 2.119(A)(2) requires that a brief accompany any motion presenting an issue of law. An original and judge's copy of the motion, and the brief, must be filed with the court. Motions and responses must be filed on the opposing party as required by MCR 2.119(C). 

"In addition, the moving party must file a certified praecipe (file size 7k)  as required by LCR 2.119(B) at least seven days prior to the hearing or as ordered by the Court."

If they do have oral arguments, I think I'd dress up. Prim, proper, and prepared. You don't want this judge to have to remind you again what the local court rules are.

It's so hard when you get space limits. If you have a lot of points, it can be agonizing. Lawyers try to come up with all kinds of ways to exceed the limit. I have worked on cases involving domain name disputes where you have limits like that. But they do let you add on affidavits and exhibits to your document, so that's how we would exceed the limits. We'd refer in the document to our exhibits and the affidavits and squeeze in our extra points that way. I am not sure I'd go overboard on that trick with this judge.

She also warns the parties that she expects them to follow a Michigan rule regarding motions:

"PLEASE BE ADVISED THE COURT WILL STRICTLY ENFORCE MCR 2.119(A)(2)."

Whew. OK. All caps even. Here is MCR 2.119(A)(2):

2.119(A)(2) A motion or response to a motion that presents an issue of law must be accompanied by a brief citing the authority on which it is based. Except as permitted by the court, the combined length of any motion and brief, or of a response and brief, may not exceed 20 pages double spaced, exclusive of attachments and exhibits. Quotations and footnotes may be single-spaced. At least one-inch margins must be used, and printing shall not be smaller than 12-point type. A copy of a motion or response (including brief) filed under this rule must be provided by counsel to the office of the judge hearing the motion. The judge's copy must be clearly marked judge's copy on the cover sheet; that notation may be handwritten.

You can tell they've seen all the tricks, and they have decided you get 20 pages, and you can do the add-on trick, but no printing in teeny weeny print to make it fit the 20-page limit, and by the way, the margins have to be normal too. The "authority on which it is based" means a case. She wants a case for every point made. That's one way to keep their foot to the pedal. No vague meanderings or philosophical musings. I'd skip the poetry. You don't need Bartlett's, and close the Thesaurus. Just the facts, ma'am.

Rule 2116, which she also refers to, are the rules for summary dispositions, which this one is, and the subsection she references says a "copy of a motion or response (including brief and any affidavits) filed under this rule must be provided by counsel to the office of the judge hearing the motion. The judge's copy must be clearly marked JUDGE'S COPY on the cover sheet; that notation may be handwritten." Got that? I'm guessing this is one time SCO's lawyers will try to get the details right.

If you read the entire Rule 2116, on the same page as Rule 2119, it gives you a clear idea of all the things that could happen and what each side can try, and you can see near the end all the options the judge has to dispose of a case:

"(A) Judgment on Stipulated Facts.

(1) The parties to a civil action may submit an agreed-upon stipulation of facts to the court.

(2) If the parties have stipulated to facts sufficient to enable the court to render judgment in the action, the court shall do so.

(B) Motion.

(1) A party may move for dismissal of or judgment on all or part of a claim in accordance with this rule. A party against whom a defense is asserted may move under this rule for summary disposition of the defense. A request for dismissal without prejudice under MCL 600.2912c must be made by motion under MCR 2.116 and MCR 2.119.

(2) A motion under this rule may be filed at any time consistent with subrule (D) and subrule (G)(1), but the hearing on a motion brought by a party asserting a claim shall not take place until at least 28 days after the opposing party was served with the pleading stating the claim.

(C) Grounds. The motion may be based on one or more of these grounds, and must specify the grounds on which it is based:

(1) The court lacks jurisdiction over the person or property.

(2) The process issued in the action was insufficient.

(3) The service of process was insufficient.

(4) The court lacks jurisdiction of the subject matter.

(5) The party asserting the claim lacks the legal capacity to sue.

(6) Another action has been initiated between the same parties involving the same claim.

(7) The claim is barred because of release, payment, prior judgment, immunity granted by law, statute of limitations, statute of frauds, an agreement to arbitrate, infancy or other disability of the moving party, or assignment or other disposition of the claim before commencement of the action.

(8) The opposing party has failed to state a claim on which relief can be granted.

(9) The opposing party has failed to state a valid defense to the claim asserted against him or her.

(10) Except as to the amount of damages, there is no genuine issue as to any material fact, and the moving party is entitled to judgment or partial judgment as a matter of law.

(D) Time to Raise Defenses and Objections. The grounds listed in subrule (C) must be raised as follows:

(1) The grounds listed in subrule (C)(1), (2), and (3) must be raised in a party's first motion under this rule or in the party's responsive pleading, whichever is filed first, or they are waived.

(2) The grounds listed in subrule (C)(5), (6), and (7) must be raised in a party's responsive pleading, unless the grounds are stated in a motion filed under this rule prior to the party's first responsive pleading. Amendment of a responsive pleading is governed by MCR 2.118.

(3) The grounds listed in subrule (C)(4), (8), (9), and (10) may be raised at any time.

(E) Consolidation; Successive Motions.

(1) A party may combine in a single motion as many defenses or objections as the party has based on any of the grounds enumerated in this rule.

(2) No defense or objection is waived by being joined with one or more other defenses or objections.

(3) A party may file more than one motion under this rule, subject to the provisions of subrule (F).

(F) Motion or Affidavit Filed in Bad Faith. A party or an attorney found by the court to have filed a motion or an affidavit in violation of the provisions of MCR 2.114 may, in addition to the imposition of other penalties prescribed by that rule, be found guilty of contempt.

(G) Affidavits; Hearing.

(1) Except as otherwise provided in this subrule, MCR 2.119 applies to motions brought under this rule.

(a) Unless a different period is set by the court,

(i) a written motion under this rule with supporting brief and any affidavits must be filed and served at least 21 days before the time set for the hearing, and

(ii) any response to the motion (including brief and any affidavits) must be filed and served at least 7 days before the hearing.

(b) If the court sets a different time for filing and serving a motion or a response, its authorization must be endorsed in writing on the face of the notice of hearing or made by separate order.

(c) A copy of a motion or response (including brief and any affidavits) filed under this rule must be provided by counsel to the office of the judge hearing the motion. The judge's copy must be clearly marked JUDGE'S COPY on the cover sheet; that notation may be handwritten.

(2) Except as to a motion based on subrule (C)(8) or (9), affidavits, depositions, admissions, or other documentary evidence may be submitted by a party to support or oppose the grounds asserted in the motion.

(3) Affidavits, depositions, admissions, or other documentary evidence in support of the grounds asserted in the motion are required

(a) when the grounds asserted do not appear on the face of the pleadings, or

(b) when judgment is sought based on subrule (C)(10).

(4) A motion under subrule (C)(10) must specifically identify the issues as to which the moving party believes there is no genuine issue as to any material fact. When a motion under subrule (C)(10) is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his or her pleading, but must, by affidavits or as otherwise provided in this rule, set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, judgment, if appropriate, shall be entered against him or her.

(5) The affidavits, together with the pleadings, depositions, admissions, and documentary evidence then filed in the action or submitted by the parties, must be considered by the court when the motion is based on subrule (C)(1)-(7) or (10). Only the pleadings may be considered when the motion is based on subrule (C)(8) or (9).

(6) Affidavits, depositions, admissions, and documentary evidence offered in support of or in opposition to a motion based on subrule (C)(1)-(7) or (10) shall only be considered to the extent that the content or substance would be admissible as evidence to establish or deny the grounds stated in the motion.

(H) Affidavits Unavailable.

(1) A party may show by affidavit that the facts necessary to support the party's position cannot be presented because the facts are known only to persons whose affidavits the party cannot procure. The affidavit must

(a) name these persons and state why their testimony cannot be procured, and

(b) state the nature of the probable testimony of these persons and the reason for the party's belief that these persons would testify to those facts.

(2) When this kind of affidavit is filed, the court may enter an appropriate order, including an order

(a) denying the motion, or

(b) allowing additional time to permit the affidavit to be supported by further affidavits, or by depositions, answers to interrogatories, or other discovery.

(I) Disposition by Court; Immediate Trial.

(1) If the pleadings show that a party is entitled to judgment as a matter of law, or if the affidavits or other proofs show that there is no genuine issue of material fact, the court shall render judgment without delay.

(2) If it appears to the court that the opposing party, rather than the moving party, is entitled to judgment, the court may render judgment in favor of the opposing party.

(3) A court may, under proper circumstances, order immediate trial to resolve any disputed issue of fact, and judgment may be entered forthwith if the proofs show that a party is entitled to judgment on the facts as determined by the court. An immediate trial may be ordered if the grounds asserted are based on subrules (C)(1) through (C)(6), or if the motion is based on subrule (C)(7) and a jury trial as of right has not been demanded on or before the date set for hearing. If the motion is based on subrule (C)(7) and a jury trial has been demanded, the court may order immediate trial, but must afford the parties a jury trial as to issues raised by the motion as to which there is a right to trial by jury.

(4) The court may postpone until trial the hearing and decision on a matter involving disputed issues of fact brought before it under this rule.

(5) If the grounds asserted are based on subrule (C)(8), (9), or (10), the court shall give the parties an opportunity to amend their pleadings as provided by MCR 2.118, unless the evidence then before the court shows that amendment would not be justified.

(J) Motion Denied; Case Not Fully Adjudicated on Motion.

(1) If a motion under this rule is denied, or if the decision does not dispose of the entire action or grant all the relief demanded, the action must proceed to final judgment. The court may:

(a) set the time for further pleadings or amendments required;

(b) examine the evidence before it and, by questioning the attorneys, ascertain what material facts are without substantial controversy, including the extent to which damages are not disputed; and

(c) set the date on which all discovery must be completed.

(2) A party aggrieved by a decision of the court entered under this rule may:

(a) seek interlocutory leave to appeal as provided for by these rules;

(b) claim an immediate appeal as of right if the judgment entered by the court constitutes a final judgment under MCR 2.604(B); or

(c) proceed to final judgment and raise errors of the court committed under this rule in an appeal taken from the final judgment."

She doesn't look at all the way you have pictured her, I bet. Here is a picture and here is her bio. She's pretty. She was a practicing attorney for quite some time, so she certainly knows her way around a courtroom. She's been a judge since 2001, when she was appointed to fill a term when the prior circuit judge was elected to the Court of Appeals. Yes. Judges on this level are voted for. Chabot, according to this page, will end her current term in January of 2005. Circuit judges in Michigan earn $139,919 per year, this page says, and serve 6-8 year terms. When she was first appointed, this is what she said:

"This is an opportunity for me to approach cases with an attitude of dispute resolution. That's something I know I always appreciated as an attorney in private practice, not just proceeding straight to trial, but to get a judge who would really try to bring the parties together and work things out."

I don't know. With SCO, methinks she'd need to knock them over the head with a 2 by 4 or something to get them to work things out. One thing is for sure. The Michigan Court Rules let her do almost anything she feels like. If she doesn't want to hit them with a metaphorical 2 by 4, might we hope for a clue stick?

Here is Judge Chabot's order:

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

STATE OF MICHIGAN
IN THE CIRCUIT COURT FOR THE COUNTY OF OAKLAND

______________________

THE SCO GROUP,

Plaintiff,

v.

DAIMLERCHRYSLER CORP,

Defendant.

_____________________

Case No. 2004-056587-CK
Hon. Rae Lee Chabot

04-056587-CK

OAKLAND COUNTY
JUDGE RAE LEE CHABOT
SCO GROUP INC V DAIMLERCHRYSLER

RECEIVED FOR FILING
OAKLAND COUNTY CLERK

'04 MAY -4 P12:37
-------------------

DEPUTY COUNTY CLERK

-----------------------

SUMMARY DISPOSITION SCHEDULING ORDER
RE: DEFENDANT'S MOTION FOR SUMMARY DISPOSITION
Scheduled: JUNE 9, 2004

IT IS HEREBY ORDERED that the parties adhere to the following schedule:

(1) Plaintiffs response brief must be filed and received by the Court and opposing counsel by May 19, 2004.

(2) Defendant's reply brief (optional) must be filed and received by the Court and opposing counsel by May 26, 2004. The reply brief may not exceed five (5) pages.

(3) The moving party must re-praecipe the above-stated motion to be heard on the date set above.

(4) PLEASE BE ADVISED THE COURT WILL STRICTLY ENFORCE MCR 2.119(A)(2).

If briefs are not filed, the Court will assume that counsel is without authority for their respective positions, and will hear the motion on the re-praeciped date. This scheduling order pertains to the above-stated motion only. All other motions remain scheduled as praeciped. It is the responsibility of the moving party to notify the Court, in advance of the date scheduled, of any cancellations of the hearing. Counsel shall provide a copy of a response or reply (including brief as well as attachments) to the Judge's Chambers in accordance with MCR 2.116(G)(1)(c). The scheduling of this matter for oral argument does not preclude the Court from waiving oral argument at a later date pursuant to applicable Michigan Court Rule.

IT IS SO ORDERED.

Dated: MAY 04 2004

_____[signature]________
s/ R L Chabot

HONORABLE RAE LEE CHABOT

________________________________

CERTIFICATE OF SERVICE

The undersigned certifies that a copy of the foregoing was mailed to all parties at their respective addresses via first class mail on May 4, 2004.

Signed: s/ Jane Whisnant


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