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To read comments to this article, go here
IBM: Wallace Has Pled Himself Out of Court
Sunday, July 03 2005 @ 02:55 AM EDT

IBM has filed a Motion to Dismiss [PDF] Daniel Wallace's complaint. It's humorous enough I thought it was worth typing up a text version for you. IBM says Wallace has pled himself plum out of court. Not only that, they say he can't fix it by any amendment. It's a problem he can't cure, they say. He lacks standing and there is no antitrust injury, and neither of these facts can be changed, as they are "inherent in who the plaintiff is."

Oh.

The Memorandum in Support [PDF] explains a bit more, referencing a case that held that documents attached to a complaint that are central to a claim are considered part of the pleadings. If the attachment -- in this case, the GPL attached to the complaint -- contradicts allegations in the complaint, the attachment trumps the allegations. If your allegations can't, by any measure, add up to an antitrust injury, you are so out-a-there. "A plaintiff may therefore 'plead himself out of court' by attaching documents to the complaint that indicate he or she is not entitled to judgment." In this case, IBM concludes, the plaintiff is who he is, and "leave to amend cannot cure such a characteristic."

Indeed, if only some plaintiffs could be so readily cured, eh? But I digress.

IBM takes the precaution of asking, in the alternative, that the plaintiff be made to explain what in the world he is complaining about with more precision, but what they really want and ask for is a dismissal with prejudice. Wallace then filed a summary judgment motion[PDF] with exhibits galore (he didn't learn his lesson evidently), but I got no further than the second paragraph of his memorandum in support [PDF], before my brain started to rebel. I find it hard to read something that isn't legalese and isn't English either. I don't know what it is. My opinion is that unless there are some seriously crooked or unbelievably stupid judges in Indiana, in a conspiracy to destroy the GPL to boot and willing to accept the ridicule of the world or worse, which I don't believe to be the case, Mr. Wallace is doomed. But in truth, I had trouble concentrating, so I suppose it's conceivable I missed something wonderful hidden in there. Hidden very, very well.

Like I have always told you, don't ever go into a courtroom without a lawyer to represent you if you can help it. It's like doing surgery on yourself, only worse, because the other side will have lawyers, and they will know how to tear you to shreds, and you won't even understand the why of it or even what they said. They'll speak a language you don't know. It sounds like English, so you'll think you are keeping up, but it's full of code and legal terms of art that you don't know, and you won't know all the tricky procedural stuff either, and so sooner or later, probably sooner, you'll lose. Then you'll blame the "US legal system" instead of yourself, which is where the blame will belong.

I don't think the case is worth following closely, but I have had enough requests for the documents that I'm making the new ones available, and you'll find them after the Motion to Dismiss text. Red Hat and Novell are sharing the same lawyer. That's what you might do if you expect a case to be dismissed.

I can't help but hope that there is some discovery in this case, though. I so want to know who put Wallace up to this, if anyone did. Of course, it's a perverse wish, because a quick dismissal is always best. It's such a waste of money and effort to do discovery on a lost cause. For that matter, it's pointless to file one. It's actually dangerous too. So far, IBM is being nice and all they are asking for is a clean dismissal. If Wallace persists and becomes a lot more annoying, though, I think he'll be fortunate to get out court with anything left in his wallet.

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

IN THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

DANIEL WALLACE,

Plaintiff,

vs.

INTERNATIONAL BUSINESS
MACHINES CORPORATION;
RED HAT INC.;
NOVELL, INC.,

Defendants.

Civil Complaint No.: 1:05-cv-0678-SEB-VSS

DEFENDANT INTERNATIONAL BUSINESS MACHINES CORPORATION'S
MOTION TO DISMISS


Pursuant Federal Rule of Civil Procedure 12(b)(6), Defendant International Business Machines Corporation ("IBM") moves to dismiss plaintiff's attempted claims under the Sherman Act, 15 U.S.C. 1, et seq. Plaintiff's two-page complaint fails to meet even the most liberal pleading requirements in an antitrust case. These minimal allegations, coupled with the language of the GNU General Public License attached to the complaint, demonstrate that plaintiff has pled himself out of court by alleging facts that show he has neither antitrust standing nor recoverable antitrust injury, facts that are inherent in who the plaintiff is and therefore cannot be cured by amendment. Plaintiff also fails to allege any facts whatsoever concerning any combination or conspiracy under Section 1. Further, under the rule of reason, plaintiff fails to allege any unreasonable restraint of trade, anticompetitive effects, or market power in the relevant market.

1

These arguments are set out in IBM's brief in support of this motion, which is incorporated as if fully stated herein. For all of these reasons, as well as the arguments set out in detail in the brief, plaintiff fails to state a Sherman Act claim as a matter of law. Therefore, IBM requests that the Court dismiss his complaint with prejudice under Rule 12(b)(6) of the Federal Rules of Civil Procedure.

Respectfully submitted,

s/ Michael Gottschlich
Michael Gottschlich (#22668-49)
Kendall Millard (#25430-49)
Barnes & Thornburg LLP
[address, phone, fax]

Attorneys for Defendant, International
Business Machines Corporation

2

CERTIFICATE OF SERVICE

The undersigned hereby certifies that on the 30th day of June, 2005, a copy of the foregoing document was filed electronically. Notice of this filing will be sent to the following by operation of the Court's electronic filing system:

Curtis W. McCauley [email]
Philip A. Whistler [email]

The above filing will also be served by U.S. mail on the following, and all attorneys that the Court's notice of delivery indicates will be delivered by other means:

Daniel Wallace
[address]

s/ Kendall Millard
Kendall Millard

2


Wallace v. IBM et al Documents:

16 - Unopposed MOTION for Extension of Time to July 6, 2005, to file response to Complaint, by RED HAT INC.
16-1Proposed Order
17 - MOTION to Dismiss by IBM
18 - BRIEF/MEMORANDUM in Support re 17 MOTION to Dismiss by IBM
19 - MOTION for Summary Judgment by DANIEL WALLACE
20 - Memorandum in Support of Summary Judgment Motion, by Daniel Wallace 21 Wallace Exhibits -

21 -1
21 -2
21 -3
21 -4
21 -5
21 -6
21 -7
21 -8
21 -9
21 -10
21 -11
21 -12

22 - RESPONSE in Opposition re 17 IBM's MOTION to Dismiss, filed by DANIEL WALLACE


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