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When Can Dispositive Motions Be Filed in SCO v. IBM?
Sunday, July 03 2005 @ 04:20 PM EDT

I started to think more deeply about Judge Kimball's Order today, the wonderful order giving IBM its big win and denying SCO's motion to amend the complaint to add claims regarding AIX on Power. I was thinking about the deadlines, particularly the date listed for Dispositive Motions, July 28, 2006. Was that the deadline after which no more can be filed? Or is it the first date Judge Kimball will entertain any dispositive motions?

Originally, I wrote I thought it was the cutoff date, because all the others in the long list are cutoff dates, in a column marked "Deadline." I've seen lots of speculation about it on the Internet, and that made me think more about this too, because what I saw didn't seem correct to me. Today, therefore, I started to think conceptually. And having July 28, 2006 as a cutoff date makes no sense.

Here's why. Normally, there's no cutoff for dispositive motions. You can file them any time the facts make appropriate. In fact, after the plaintiff finishes presenting its case at trial, if the plaintiff failed to introduce evidence in support of a particular claim, the defendant typically files a partial summary judgment motion, so as to remove at least some causes of actions from the case.

So I emailed Lewis Mettler, of Lamlaw, after I read his interesting coverage of what this Order means, and by the way, he agrees it's a big win for IBM. He thinks that the July 28 date is the first date Judge Kimball will entertain new dispositive motions, for the same reason I started to rethink the question.

You may be wondering what the *parties* do, if a judge's order isn't clear to them? They have an advantage over us. They can ask the judge directly. We can only use prior experience and knowledge in the field to figure it out and reach an opinion, when it isn't quite clear, and the list is, in fact, in all other respects a list of termination dates, but considering what dispositive motions are, it seems very unlikely to us that he'd set a deadline beyond which there can be no more filed. Of course, it's somewhat unusual to say the parties can't file any until a certain date also, and the Judge did do that. So we'll know for sure when we see what the parties do, but July seems to be the first that we'll see them file any dispositive motions. I've put an Update correction in the original story, but I've left the original, only with a line through it, since this isn't yet positive, only our best guess.


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