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Schedule for Rule 12 Motions in Novell v. Microsoft Order
Wednesday, December 08 2004 @ 08:52 PM EST

Here, thanks to the wonderfully reliable Henrik Grouleff, is the latest in the Novell v. Microsoft antitrust litigation, an Order [PDF] telling Microsoft when to file any Rule 12 motions, and the schedule for Novell to respond and then Microsoft in turn. Apparently, judging by the wording of the order, Microsoft plans on bringing a motion to dismiss. (Update: Here's the stipulation [PDF], which makes it explicit that Microsoft does, indeed, plan a motion to dismiss: "Because Microsoft intends to file a motion to dismiss, the parties hereby stipulate . . . ")

Rule 12 is talking about Rule 12 of the Federal Rules of Civil Procedure [scroll down], which are the rules in federal courts in civil, as opposed to criminal, actions, or as they put it, "These rules govern the procedure in the United States district courts in all suits of a civil nature whether cognizable as cases at law or in equity or in admiralty, with the exceptions stated in Rule 81. They shall be construed and administered to secure the just, speedy, and inexpensive determination of every action."

Procedural rules aren't the same as laws or statutes, what they call "substantive law", but you'd best follow them in litigation in federal courts as if they were, because they are the rules of the road, the guidelines to follow to get the substantive law applied. So if someone breaches a contract with you, and you qualify to have it heard in federal court, you follow the Rules of Federal Procedure to get your rights upheld.

There are rules as to when you are supposed to answer a summons and complaint, but the parties can stipulate to a different time, as they seem to have here, and then ask the judge to sign the order. And there are certain defenses and objections to be made right away when you first answer, or by motion, or forever hold your peace. When you get sued, that is the first thing your lawyer will look at, how to respond. You can raise a defense and not have it heard until trial, or you can move to have it decided first. But if you fail to raise it in your first pleading, you waive it. It's the kind of thing that gives lawyers heart attacks if they realize too late they've missed something substantial.

There are reasons so many lawyers burn out young. It's a high-stress job, because you are supposed to think of everything right away, and you have to worry about the opposition and about your client turning on you too if you goof, and since we are all humans, not God, mistakes do sometimes occur and somebody overlooks something that turns out to be pivotal. Hence the high blood pressure. It's why I am always very nice to lawyers, because I've seen how hard it is to do their job well.

Here we have a schedule, on stipulation, that if Microsoft wishes to file any Rule 12 motions, they have until December 22 to do so. Microsoft has already said that they think the statute of limitations has run out, so they may want that issue decided now, or they may have other reasons to bring a motion to dismiss. We'll find out on December 22 or shortly thereafter. You can see the list of 1 Rule 12 issues, below.

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

David B. Tulchin
Steven L. Holley
Joseph J. Reilly
SULLIVAN & CROMWELL
[address, phone]

James S. Jardine (A1647)
Mark M. Bettilyon (A4798)
John W. Mackay (A6923)
Mark W. Pugsley (A8253)
RAY QUINNEY & NEBEKER
[address, phone, fax]

Thomas W. Burt
Steven J. Aeschbacher (A4527)
MICROSOFT CORPORATION [address, phone]

Robert A. Rosenfeld
Kit A. Pierson
HELLER EHRMAN WHITE & McAULIFFE LLP
[address, phone]

Attorneys for Defendant Microsoft Corporation

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION


NOVELL, INC.,
Plaintiff
-vs-

MICROSOFT CORPORATION,
Defendant.

ORDER

Civil No. 2:04 CV 1045 TS
Judge: Ted Stewart



Based on the stipulation of the parties, the Court hereby ORDERS as follows:

1. Defendant Microsoft Corporation ("Microsoft") shall file any responsive motion under Rule 12, including its motion to dismiss the Complaint, by December 22, 2004.

2. Plaintiff, Novell, Inc. shall file its memorandum in opposition by January 31, 2005.

3. Microsoft shall file its reply memorandum by February 14, 2005.

DATED this 8th day of December, 2004.

BY THE COURT


____[signed]____
United States District Court
Judge Ted Stewart


United States District Court
for the
District of Utah
December 8, 2004

* * CERTIFICATE OF SERVICE OF CLERK * *

Re: 2:04-cv-01045

True and correct copies of the attached were either mailed, faxed or e-mailed by the clerk to the following:

Mr. Max D Wheeler, Esq.
SNOW CHRISTENSEN & MARTINEAU
[address]
EMAIL

R. Bruce Holcomb, Esq.
DICKSTEIN SHAPIRO MORIN & OSHINSKY LLP
[address]

James S. Jardine, Esq.
RAY QUINNEY & NEBEKER
[address]
EMAIL


1 Pleadings

(a) When Presented.

(1) Unless a different time is prescribed in a statute of the United States, a defendant shall serve an answer

(A) within 20 days after being served with the summons and complaint, or

(B) if service of the summons has been timely waived on request under Rule 4(d), within 60 days after the date when the request for waiver was sent, or within 90 days after that date if the defendant was addressed outside any judicial district of the United States.

(2) A party served with a pleading stating a cross-claim against that party shall serve an answer thereto within 20 days after being served. The plaintiff shall serve a reply to a counterclaim in the answer within 20 days after service of the answer, or, if a reply is ordered by the court, within 20 days after service of the order, unless the order otherwise directs.

(3)

(A) The United States, an agency of the United States, or an officer or employee of the United States sued in an official capacity, shall serve an answer to the complaint or cross-claim - or a reply to a counterclaim - within 60 days after the United States attorney is served with the pleading asserting the claim.

(B) An officer or employee of the United States sued in an individual capacity for acts or omissions occurring in connection with the performance of duties on behalf of the United States shall serve an answer to the complaint or cross-claim - or a reply to a counterclaim - within 60 days after service on the officer or employee, or service on the United States attorney, whichever is later.

(4) Unless a different time is fixed by court order, the service of a motion permitted under this rule alters the periods of time as follows:

(A) if the court denies the motion or postpones its disposition until the trial on the merits, the responsive pleading shall be served within 10 days after notice of the court's action; or

(B) if the court grants a motion for a more definite statement, the responsive pleading shall be served within 10 days after the service of the more definite statement.

(b) How Presented.

Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, (5) insufficiency of service of process, (6) failure to state a claim upon which relief can be granted, (7) failure to join a party under Rule 19. A motion making any of these defenses shall be made before pleading if a further pleading is permitted. No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion. If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, the adverse party may assert at the trial any defense in law or fact to that claim for relief. If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.

(c) Motion for Judgment on the Pleadings.

After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings. If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.

(d) Preliminary Hearings.

The defenses specifically enumerated (1)-(7) in subdivision (b) of this rule, whether made in a pleading or by motion, and the motion for judgment mentioned in subdivision (c) of this rule shall be heard and determined before trial on application of any party, unless the court orders that the hearing and determination thereof be deferred until the trial.

(e) Motion For More Definite Statement.

If a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, the party may move for a more definite statement before interposing a responsive pleading. The motion shall point out the defects complained of and the details desired. If the motion is granted and the order of the court is not obeyed within 10 days after notice of the order or within such other time as the court may fix, the court may strike the pleading to which the motion was directed or make such order as it deems just.

(f) Motion To Strike.

Upon motion made by a party before responding to a pleading or, if no responsive pleading is permitted by these rules, upon motion made by a party within 20 days after the service of the pleading upon the party or upon the court's own initiative at any time, the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.

(g) Consolidation of Defenses in Motion.

A party who makes a motion under this rule may join with it any other motions herein provided for and then available to the party. If a party makes a motion under this rule but omits therefrom any defense or objection then available to the party which this rule permits to be raised by motion, the party shall not thereafter make a motion based on the defense or objection so omitted, except a motion as provided in subdivision (h)(2) hereof on any of the grounds there stated.

(h) Waiver or Preservation of Certain Defense

(1) A defense of lack of jurisdiction over the person, improper venue, insufficiency of process, or insufficiency of service of process is waived (A) if omitted from a motion in the circumstances described in subdivision (g), or (B) if it is neither made by motion under this rule nor included in a responsive pleading or an amendment thereof permitted by Rule 15(a) to be made as a matter of course.

(2) A defense of failure to state a claim upon which relief can be granted, a defense of failure to join a party indispensable under Rule 19, and an objection of failure to state a legal defense to a claim may be made in any pleading permitted or ordered under Rule 7(a), or by motion for judgment on the pleadings, or at the trial on the merits.

(3) Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.


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