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Hearing on SCO's Motion to Amend Complaint in AutoZone: Aug. 24
Monday, July 13 2009 @ 02:31 PM EDT

Judge Robert C. Jones has set a date for oral argument on SCO's recent Motion to Amend/Correct Complaint in the AutoZone case, and he has done so prior to AutoZone having time to file a response. The date is set for August 24 in Las Vegas at 9 AM. I surely hope some of you can attend. Here's the docket entry:

07/06/2009 - 100 - NOTICE of Hearing on 99 MOTION to Amend/Correct Complaint re 1 Complaint : Oral argument is scheduled for Monday, 8/24/2009, at 09:00 AM in LV Courtroom 7D before Judge Robert C. Jones. (no image attached)(KXG) (Entered: 07/06/2009)

What does it mean? We can only guess. One thing it might mean is that he's not inclined to rule in SCO's favor. There is some foundation for that guess, which I'll show you, but it's only a guess. If the fix were in, he'd do the same thing, after all. But at the September 22nd status conference, he gave us a clue as to his thinking, and if we put that together with something he said at a hearing in 2004, when the case was young, I think it makes it possible to make an educated guess.

The September 22, 2008 status conference was about whether or not to go ahead with the case now. The judge raised the issue himself. SCO argued that it would be best to wait until the Novell appeal was decided, but Judge Jones disagreed. The reason he ruled against SCO is significant. Notice, for context, what the judge said at the September 9, 2004 hearing, which was a hearing on an AutoZone motion for a stay on discovery, a motion the judge denied:
Stewart (AutoZone's attorney): Your Honor, the point about the copyrights, if I could just finish that quickly, because I want to make sure I understand where we're heading with the motion that you envision. And my understanding is that, to show irreparable harm, they've got to show . . . they've got to state at least a reasonable basis for a claim for copyright infringement.

Judge Jones: I'm not going to give you the standard at this juncture. I haven't -- don't even have them having filed a motion yet.

Stewart: Well, Your Honor, it would involve the merits of the copyright claim.

Judge Jones: Right.

Stewart: Which necessarily means that they have to show that they own the copyrights . . .

Judge Jones: If you get a ruling out of the Utah -- as far as I'm willing to go out on a limb is to say if you get a ruling from the Utah court in the meantime they don't own any copyrights, then, of course, they've got an additional burden on such a motion [laughs], and I think they realize that.

But if all you're going to tell me is, you know, they've got to establish it first here in this court, where I've already granted the stay so that we can defer to the ruling of the Utah court, that doesn't make any sense.

Stewart: If I could give you one more statement and then I promise I'll shut up...

Judge Jones: OK.

Stewart: If the court in Utah rules that Novell did not assign the copyrights, there is no case. This case is over.

Judge Jones: Sounds likely. I'm not so ruling, yet, because I don't have anything in front of me, but that sounds -- sounds to me like you're right on.

See what I mean? The Utah court has ruled that Novell did not assign the copyrights. By the way, this judge has a rather gruff manner. You can get the flavor in the audio of that hearing [mp3]. And up until the decision in Utah, he leaned, in my view, heavily in SCO's favor as far as letting them go forward in discovery in what turned out to be a bogo case. Now what?

The judge on his own initiative decided to lift the bankruptcy stay. SCO argued at the September 22nd status conference that there was no final decision in the Novell case, in that SCO was appealing, so the stay should continue. After going on about that and the status of the various SCO cases a while, the judge interrupted SCO's attorney, Richard J. Pocker of Boies Schiller:

THE COURT: But the main one that was going forward in Utah, which was Novell?

MR. POCKER: Yes, sir.

THE COURT: In that one, give me the summary on the record here.

MR. POCKER: Okay. Where that stands right now, Your Honor, is that the Court had ruled -- made several rulings on summary judgment back in 2007, then held a trial in April of this year with respect to some of the remaining claims and the damages amounts, so --

THE COURT: And basically it was Novell did not transfer, still held --

MR. POCKER: They -- it --

THE COURT: -- the Linux -- the --

MR. POCKER: -- well, the -- with respect to the copyright issues, that was decided adversely to SCO.

THE COURT: Mm-hmm.

Finally, an admission from SCO, however stuttering and unwilling, that Novell prevailed on the copyrights. Did you notice that the judge already knew it? Why, then, once SCO confirmed that, should the court not lift the stay and proceed on that basis without waiting for the appeals court to rule, the judge asked:
THE COURT: Why shouldn't I lift it now and let you proceed? I appreciate that there's still appeals, or there may be appeals pending, but why shouldn't I lift it now and require you to proceed here, based upon those rulings?

MR. POCKER: Well, Your Honor, I believe that -- it's an efficiency argument, essentially. We believe that there are very strong arguments with respect to the summary judgment rulings especially, that the Court erred in granting summary judgment on those copyright issues. If the Tenth Circuit agrees, then this case down here will be a lot larger and more complex than a truncated version of this case, if the Court were to move forward at this time, with just the main claims that are not impacted by what happened to Novell.

THE COURT: Mm-hmm.

MR. POCKER: And there are questions of --

THE COURT: Let me ask opposing counsel, do you see any reason why I shouldn't lift the stay?

MS. BIELINSKI (AutoZone's attorney): Your Honor, we would submit that to the Court's discretion.

THE COURT: Mm-hmm.

MS. BIELINSKI: I don't see any reason why --

THE COURT: Because you're talking about, Mr. Pocker, several years hence, right?

MR. POCKER: It could be. I --

THE COURT: In the meantime this is an '04 case.

MR. POCKER: It could be 18 months.

THE COURT: Mm-hmm.

MR. POCKER: Maybe two years.

THE COURT: I'm going to lift the stay. I'm going to lift it effective the end of this year, and require you to proceed in this litigation here.

That means that at that point, last September, the judge wasn't moved by SCO's arguments that the world should stop spinning until the appeal is decided in Novell. After all, if the appeals court were to go SCO's way, it's obvious Novell would ask the Supreme Court to review that decision, and if it goes against SCO, they will. That's why the judge is pointing out a time frame a lot longer than just hearing from the appeals court. So he ruled that there's no point in waiting. The case has been on his docket since 2004 and he'd like to wrap it up.

That put SCO in a tight spot, not owning the copyrights it was suing about. So it filed asking permission to alter what it is suing about. I'm not saying they can't prevail. We've seen weirder things. But I think we can safely conclude that it's an uphill climb with this no-nonsense judge.

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