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IBM Files Ex Parte Motion For Leave to File Surreply
Tuesday, February 01 2005 @ 04:23 PM EST

Some of you have noticed on Pacer that IBM has filed an Ex Parte Motion for Leave to File a Surreply and have emailed me asking what that is. Here is an explanation from marbux:

A "surreply" is a supplemental reply to a response to a motion. "Sur" translates as on or over in the sense of supplemental. Taking filings in the order they happen, a party files a motion, the other side files a response (sometimes called an "opposition"), then the party that filed the motion replies. With a surreply, the party that originally filed the motion files a supplemental, second reply. In Federal court, surreplies generally are prohibited by local court rules without the court's permission. Permission is most commonly sought to file a surreply when events happening after the filing of the reply brief make a further brief desirable. For example, when lots of motions are flying, it's not uncommon for one party to insert an argument, often in a footnote, in one of the briefs involving a motion it doesn't really relate to. Filing a surreply (or surresponse for the party opposing the original motion) in such a circumstance allows the party opposing that argument to make sure its counter-argument is considered when the court is deciding the appropriate motion.

In this case, it relates to SCO's Motion For Leave to File Third Amended Complaint and IBM is asking to be able to respond to SCO's Reply Memorandum. So some matters that were sealed are now revealed.

The issue is this: SCO, in its motion, "argued that its proposed amendment was timely because it 'did not know and could not reasonably have determined' that IBM's AIX 5L for Power product contains certain UnixWare/SVR4 source code until SCO received various documents from IBM in discovery in April 2004." However, IBM says, rather than providing all or any facts which might support such a contention in its opening memo, "SCO waited until after IBM showed in its opposition memorandum that SCO had -- or should have had -- such knowledge (which has been publicly available for over three-and-a-half years), only then submitting a declaration from a witness formerly employed at The Santa Cruz Operation, Inc. In the declaration, SCO offers new factual arguments regarding notice, arguments to which IBM necessarily has had no opportunity to respond." So, that is the basis for IBM's motion.

Additionally, G2 has filed its Reply Memorandum in Support of Motion to Intervene and Motion to Unseal Court's Files. It seems unnecessary, if the motive is to be able to follow along. As you can see by IBM's motion, even matters which are sealed end up being talked about, and we find ourselves quite well-informed, all in due time.

And here's the Pacer entry:

388-1 - Filed: 01/28/05 - Entered: 01/31/05 - Ex parte motion for leave to file

Docket Text: Ex parte motion by Intl Bus Mach Inc for leave to file sur-reply brief

As for SCO just discovering that UnixWare/SVR4 code is in AIX for Power, Groklaw earlier presented evidence of it being public knowledge for years, as you can review here and here. And we know they read Groklaw.

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

SNELL & WILMER L.L.P.
Alan L. Sullivan (3152)
Todd M. Shaughnessy (6651)
Amy F. Sorenson (8947)
[address, phone, fax]

CRAVATH, SWAINE & MOORE LLP
Evan R. Chesler (admitted pro hac vice)
David R. Marriott (7572)
[address, phone, fax]

  Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation

   ________________________

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

______________________

THE SCO GROUP, INC.,

Plaintiff/Counterclaim-Defendant,

v.

INTERNATIONAL BUSINESS MACHINES
CORPORATION,

Defendant/Counterclaim-Plaintiff.

_______________________

IBM'S EX PARTE MOTION FOR LEAVE TO
FILE SUR-REPLY

Civil No. 2:03 CV-0294 DAK

Honorable Dale A. Kimball

Magistrate Judge Brooke C. Wells

_______________________

Pursuant to DUCivR 7-1(b)(3), International Business Machines Corporation ("IBM") respectfully moves the Court for leave to file a sur-reply memorandum in response to The SCO Group, Inc.'s ("SCO") Reply Memorandum in Support of Motion for Leave to File Third Amended Complaint, filed on December 29, 2004.

Although we have not yet seen a formal order of reference, we understand that SCO's motion to amend will be heard by this Court. Assuming that is the case, IBM respectfully requests that the Court allow IBM to submit a sur-reply memorandum to address issues raised by SCO for the first time in its reply brief that are important to the resolution of that motion.

As the Court is aware, a reply memorandum in support of any motion "must be limited to rebuttal of matters raised in the memorandum opposing the motion." DUCivR 7-1(b)(3) (emphasis added). In its motion, SCO argued that its proposed amendment was timely because it "did not know and could not reasonably have determined" that IBM's AIX 5L for Power product contains certain UnixWare/SVR4 source code until SCO received various documents from IBM in discovery in April 2004. (SCO Mem. at 15.) Rather than providing all (or any) facts which might support such a contention with its opening memorandum, however, SCO waited until after IBM showed in its opposition memorandum that SCO had -- or should have had -- such knowledge (which has been publicly available for over three-and-a-half years), only then submitting a declaration from a witness formerly employed at The Santa Cruz Operation, Inc. In the declaration, SCO offers new factual arguments regarding notice, arguments to which IBM necessarily has had no opportunity to respond. (See Reply Mem., Ex. A, 12/29/04 Decl. of Jay F. Petersen.) Because SCO waited until the filing of its reply memorandum to proffer these new factual and other arguments, IBM respectfully requests that it be given leave to file a brief surreply to fully address these important issues for the Court.

For the foregoing reasons, IBM respectfully requests leave to file a sur-reply memorandum in response to SCO's Reply Memorandum in Support of Motion for Leave to File Third Amended Complaint.

DATED this 28th day of January, 2005.

SNELL & WILMER L.L.P.

___[signature]____
Alan L. Sullivan
Todd M. Shaughnessy
Amy F. Sorenson

  CRAVATH, SWAINE & MOORE LLP
Evan R. Chesler
David R. Marriott

  Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation

Of Counsel:

  INTERNATIONAL BUSINESS MACHINES CORPORATION
Donald J. Rosenberg
Alec S. Berman
[address, phone]

Attorneys for Defendant/Counterclaim-Plaintiff International Business Machines Corporation


CERTIFICATE OF SERVICE

I hereby certify that on the 28th day of January, 2005, a true and correct copy of the foregoing was sent by U.S. Mail, postage prepaid, to the following:

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

  Stephen N. Zack
Mark J. Heise
BOIES, SCHILLER & FLEXNER LLP
[address]

  Robert Silver
Edward Normand
Sean Eskovitz
BOIES, SCHILLER & FLEXNER LLP
[address]

_____[signature]____
Amy F. Sorenson


  View Printable Version


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