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Wayne Gray's Motion to Lift Stay is Denied. And How.
Wednesday, November 25 2009 @ 03:20 PM EST

Wayne Gray's motion to lift the stay [PDF]in the SCO bankruptcy has been denied. If you are new, here's the report from the hearing about it, and for details on the dispute here's more. Gray is not entitled to the relief he seeks, Judge Kevin Gross has ruled:
Wayne R. Gray ("Mr. Gray" or "Movant") has moved to lift the automatic stay pursuant to 11 U.S.C. $ 362(d) (the "Motion"), in Movant's words, to "permit the Debtor" to participate in pending litigation' and an appeal. The basic problem with the Motion is that the Chapter 11 Trustee does not wish to participate and Mr. Gray lacks standing to compel his participation. Mr. Gray's effort is confounding to the Court because he invested considerable time and money in an obviously ill-founded, losing effort. The Court is willing to give Mr. Gray the benefit of the doubt that he filed and proceeded with the Motion in the good faith belief that he is entitled to the relief. The Court is nevertheless fully satisfied that Mr. Gray is completely wrong.
Not everyone is as nice as Judge Gross. But I admire his willingness to look for the best in everyone. But for sure that is the right question: why would he spend so much money and effort on something bound to fail? And even if he wanted to, why would his lawyers? Did they not tell him it was a losing effort? Here's the order:
11/25/2009 - 973 - Memorandum Order (related document(s) 942 ) Order Signed on 11/25/2009. (TAS) (Entered: 11/25/2009)



Footnote 4 says that his motion is "implausible":
"The law is that which is boldly asserted and plausibly maintained," Thompson Marsh. Here, the Movant takes a bold position, but the Motion is implausible.
SCO's bold position is implausible too, for those who understand the tech and the history of UNIX and Linux. But it's a more complex ball of wax, so it's not so easy to see its implausibility as Wayne Gray's motion, but to those of us who have carefully tracked it all, it's very much the same.

And what do you want to bet he appeals this ruling?

It's a scorching rebuke, one he'll have to take back to the appeals court looking at his appeal of the Florida dismissal of his complaint. The judge says he has no standing at all. He isn't a creditor or a shareholder:

His "concern" about SCO's best interest is patently disingenuous. The law is very and consistently clear: relief pursuant to Section 362(d) is available only to debtors and creditors.
What if he were either a creditor or a shareholder? Would the court lift the stay? No. Because the "prejudice to Debtors' estate would be substantial and irreversible". So much for "concern" for SCO, in that the judge views Gray as the only one who would benefit from a successful conclusion to his litigation. Anyway, Gray doesn't at all need SCO's participation for Gray to prove his case, the judge finds. The case moved along without SCO since SCO filed for bankruptcy. So there is no prejudice to Gray by denying his motion. Besides, the judge writes, he's read the ruling in the Florida action and Gray's "likelihood of success in the Florida Action is low."

That's the sweet way to put it, "low". Then in footnote 5, the judge points out something:

5 The futility of Mr. Gray's efforts is pronounced. If successful in the Appeal and the Federal Action, Mr. Gray will have established that SCO owns the Trademarks and Mr. Gray will have to deal with SCO, which has made it clear that they will not do business with Mr. Gray.
That, if I may be so cynical as to say it, is the simple version of Mr. Gray's position. Since his declared position makes no sense logically or legally, should one not assume that there is more to the story than has been revealed so far and that his actual interest is far from the declared ones? But this was a point raised by Bonnie Glantz Fatell in her presentation to the court at the hearing, and clearly it resonated with the judge. She also found Gray's motion confounding. Why, really, is he doing this?

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