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To read comments to this article, go here
SCO Files Motion to Amend the Amended Complaint a 3rd Time
Friday, October 15 2004 @ 11:06 PM EDT

This wouldn't have something to do with delay, by any chance, would it?

Or terror about losing some upcoming motions IBM has filed? An insurance plan, to have something left on the table if SCO loses?

SCO has filed a Motion for Leave to File a Third Amended Complaint Pursuant to Federal Rules of Civil Procedure 15(a) and 16(b). The judge doesn't have to say yes, so they say they have filed a memorandum of reasons why they would like him to, and when does he ever say a total no to such requests? The memorandum is sealed:

10/14/04 323 SEALED Memorandum by SCO Grp in support of [322-1] motion
to amend complaint (for leave to file 3rd amended
complaint) (blk) [Entry date 10/15/04]

Of course, they want to talk long, so they've asked for permission to do that too, and so far, they've never been turned down in such requests. They say "SCO must have leave to file its Third Amended Complaint" and that "[g]iven the importance of the issues to SCO, it is necessary for SCO to fully address, clarify and explain to the Court the importance of the amendment."

Sigh. Doesn't your heart just sink to hear this news? This explains the delay on the schedule for the other briefings, I think. It would be sensible on IBM's part to get SCO to show its hand a bit first.

And what are 15(a) and 16(b)? 15(a) basically sets forth when you can and when you can't amend your complaint:

Rule 15.  Amended and Supplemental Pleadings

(a) Amendments.

A party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, the party may so amend it at any time within 20 days after it is served. Otherwise a party may amend the party's pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires. A party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within 10 days after service of the amended pleading, whichever period may be the longer, unless the court otherwise orders."

Because this is the third request, they need the judge's permission, which, as it says, is to be "freely given when justice so requires". That isn't a seriously high bar to get over, so unless the judge has had a bellyful of SCO, he's likely to grant this motion, depending on the arguments and what IBM says in reply.

Rule 16 is about the scheduling order. They evidently are still desirous of altering the scheduling order, so while I can't be sure until we have the memorandum, I'm guessing they will argue they need more time to develop in discovery whatever the new claim or claims in their proposed 3rd Amended Complaint turn out to be:

Rule 16.  Pretrial Conferences; Scheduling; Management

(b) Scheduling and Planning.

Except in categories of actions exempted by district court rule as inappropriate, the district judge, or a magistrate judge when authorized by district court rule, shall, after receiving the report from the parties under Rule 26(f) or after consulting with the attorneys for the parties and any unrepresented parties by a scheduling conference, telephone, mail, or other suitable means, enter a scheduling order that limits the time

(1) to join other parties and to amend the pleadings;

(2) to file motions; and

(3) to complete discovery.

The scheduling order may also include

(4) modifications of the times for disclosures under Rules 26(a) and 26(e)(1) and of the extent of discovery to be permitted;

(5) the date or dates for conferences before trial, a final pretrial conference, and trial; and

(6) any other matters appropriate in the circumstances of the case.

The order shall issue as soon as practicable but in any event within 90 days after the appearance of a defendant and within 120 days after the complaint has been served on a defendant.  A schedule shall not be modified except upon a showing of good cause and by leave of the district judge or, when authorized by local rule, by a magistrate judge.

As you see, the judge can modify the schedule, "upon a showing of good cause" and if the judge grants the motion to file the 3rd amended complaint, he is likely to agree that they need more time to do discovery on the new claims, whatever they are. Maybe this is the fraud claim a certain gal reporter whispered to the world about. The documents don't tell us. The Memorandum in Support of this motion will tell the story, but it's not yet available.

A lawyer I worked for once did divorces, and we had one client, a woman, who wanted to fight and fight and fight. She'd want us to fight for ownership of an ashtray. A car. The house. The visitation schedule. It ended up costing her a small fortune, and we kept trying to talk her out of things, but she enjoyed the fight too much to quit. Fighting with her ex was like her hobby. The poor man wasn't having anywhere near as much fun, because he had a life developing without her and this was like pulling him back into a swamp he had rejoiced to escape. But she would persist. He was not to be left alone to have a life without her.

SCO reminds me of that woman, who lived to torment her ex by never letting go and forcing him to deal with her. What she wanted, she said, was more money. But it was symbolic of something deeper. She wanted him to pay for dumping her. And she wanted to cause him pain. That was the theme of the entire exercise, and she loved the endless details of the fight. She'd bring in boxes of "evidence" of his wrongdoing, with credit card proof he was buying fur coats for his girl friend, proof she'd worked hard to get hold of, and demand we go after him for more alimony on the basis that he could afford it now, or she'd ask us to go to the judge and ask the judge to make her husband bring the daughter back from visitation on time after he'd been late once by an hour, and various borderline things like that.

We finally figured out a way to get her to go away, but it was a long haul, and I never forgot her, because she was, to me, a truly tragic figure, because money can't make up for a disappointed dream, and the sad truth is that divorces mean each side has to live with a lower standard of living. SCO just can't let go of that Project Monterey dream that died aborning, and she wants money to make it right, and she seems to be trying to torment IBM by insisting that it deal with endless, endlessly annoying motion after motion, all of which is screaming, Settle and Pay Me To Go Away, You Two-Timing, No Good... well, I'll leave the rest to your imagination.

Here is the motion asking to be allowed to file an overlength memorandum, followed by the motion to file another amended complaint, thanks to inode_buddha, who is incredibly fast:

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

Brent O. Hatch (5715)
Mark R. Clements (5295)
HATCH, JAMES & DODGE
[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)
Mark J. Heise (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,

vs.

INTERNATIONAL BUSINESS
MACHINES CORPORATION,

Defendant/Counterclaim- Plaintiff.

______________________

EX-PARTE MOTION FOR
LEAVE TO FILE OVER-
LENGTH MEMORANDUM

Civil No. 2:03CV0294 DAK
Honorable Dale A. Kimball
Magistrate Judge Brooke C. Wells

_________________________

Plaintiff/Counterclaim-Defendant The SCO Group ("SCO") hereby moves the Court pursuant to District Court Rule 7-1(c) for leave to file an over-length Memorandum in Support of SCO's Motion for Leave to File a Third Amended Complaint pursuant to Federal Rules of Civil Procedure 15(a) and 16(b). SCO's Memorandum has four pages of preliminary statement, two pages of procedural background, eight pages of factual background, and approximately ten pages of argument. The Memorandum explains why SCO must have leave to file its Third Amended Complaint and the preliminary and procedural statements and the fact section provide the Court with the necessary backgound to understand the basis of SCO's Motion. Given the importance of the issues to SCO, it is necessary for SCO to fulIy address, clarify and explain to the Court the importance ofthe amendment.

To address these issues and place them in context for the Court, SCO respectfully requests leave to file an over-length memorandum. SCO submits that the excess lengh is necessary to fully address the issues.

DATED this l4th day of October, 2004.

Respectfully submitted,

HATCH, JAMES & DODGE, P.C.
Brent O. Hatch
Mark R. Clements

BOIES, SCHILLER & FLEXNER LLP
Robert Silver
Stephen N. Zack
Mark J. Heise
Edward Normand
Sean Eskovitz

By _____[Signature]_______

Counsel for Plaintiff/Counterclaim Defendant


CERTIFICATE OF SERVICE

Plaintiff/Counterclaim Defendant, The SCO Group, Inc., hereby certifies that a true and correct copy of the foregoing was served this 14th day of October, 2004, to:

David Marriott, Esq.
CRAVATH SWAINE & MOORE
[address]

Donald J. Rosenberg, Esq.
[address]

and HAND-DELIVERED to:

Todd M. Shaughnessy, Esq.
SNELL & WILMER LLP
[address]

_________[signature]______


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

Brent O. Hatch (5715)
Mark F. James (5295)
HATCH, JAMES & DODGE
[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)
Mark J. Heise (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,

vs.

INTERNATIONAL BUSINESS
MACHINES CORPORATION,

Defendant/Counterclaim- Plaintiff.

____________________

MOTION FOR LEAVE TO FILE A
THIRD AMENDED COMPLAINT
PURSUANT TO FEDERAL RULES OF
CIVIL PROCEDURE 15(a) AND 16(b)

Civil No. 2:03CV0294 DAK
Honorable Dale A. Kimball
Magistrate Judge Brooke C. Wells

______________________

Pursuant to Rules 15(a) and l6(b) ofthe Federal Rules of Civil Procedure, The SCO Group, Inc. (''SCO''), hereby seeks leave of this Court to fiIe an amended complaint in this action in substantially the same form as the proposed Third Amended Complaint attached as Exhibit l to the memorandum fiIed in support of this motion.

SCO seeks to amend the complaint for the reasons described in the Memorandum in Support of SCO's Motion for Leave to File a Third Amended Complaint pursuant to Federal Rules of Civil Procedure l5(a) and l6(b) filed herewith, and for the good cause shown therein.

DATED this l4th day of October, 2004.

Respectfully submitted,

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

BOIES, SCHILLER & FLEXNER LLP
Robert Silver
Stephen N. Zack
Mark J. Heise
Edward Normand
Sean Eskovitz

By ______[Signature]_____

Counsel for Plaintiff/Counterclaim-Defendant


CERTIFICATE OF SERVICE

Plaintiff/Counterclaim Defendant, The SCO Group, Inc., hereby certifies that a true and correct copy of the foregoing Motion for Leave to File Third Amended Complaint was served by mail on Defendant Intemational Business Machines Corporation on the 14th day of October, 2004, by U.S. MaiI to:

David Marriott, Esq. Cravath, Swaine & Moore LLP [address]

Donald J, Rosenberg, Esq.
[address]

and HAND-DELIVERED to:

Todd Shaughnessy, Esq.
Snell & Wilmer LLP
[address]

_______[signature]_____


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