SCO's motion to reopen its case against IBM has just been denied by the US District Court Judge David Nuffer in Utah. And the denial presents SCO with a Catch 22. It can go forward only when the bankruptcy stay is lifted, meaning when *both* parties can present their claims, not just SCO, with IBM sitting with its arms tied behind its back on a chair with duct tape over its mouth, which was, I gather, SCO's dream on how to go forward:
The court has reviewed the parties' submissions and finds that SCO's
claims and IBM's counterclaims are inextricably intertwined. Thus,
proceeding in the piecemeal manner suggested by SCO would be an
inefficient use of judicial and party resources, and potentially could
result in inconsistent rulings. Accordingly, the court declines to
reopen the case at this time. When the bankruptcy stay is lifted, either
party may file a motion to reopen the case. Until then, the case shall
remain administratively closed. That's a bonk on the head for SCO, for sure, by a judge who demonstrates the simple truth that judges tend to be brainiacs, and they know it's a duck when they see one paddling along calling out "quack, quack" even if it holds up a sign saying, "I am a Swan." Utah, or so I've read, is the scam capitol of the US. So judges there not only have brains, they probably get a lot of experience as well, one assumes. Judge Nuffer also ruled that he doesn't think oral argument would be needed on this, so SCO's request for a hearing is also denied. I guess you could call it a no-brainer. I mean, fair is fair. Isn't that what courts are supposed to be for? But dealing with SCOfolk does take brains and some careful planning, because they are tireless and nothing dissuades them from trying again any which way, and you see that careful thought went into this order. Also because dealing with SCO is like picking up a scorpion. You do want to give it some advance thought before you try it.
Surely SCO's "We Own Linux" scam must be in the top ten scams in history, not just in Utah.
What? You thought the law was dry and boring? Ha!
[ Update: Rereading this article, I think the judge goofed in one respect -- the bankruptcy stay is lifted already. It's hard to keep track of all the ins and outs, and this judge is newly assigned. And who wants to reopen this nasty ball of wax if it isn't required? What really faces the judge, though, and I'm sure IBM will bring it to his attention if SCO tries again, is that with the Novell judgment affirmed by the appeals court, there aren't any SCO issues pending, unless SCO can start a new thread, so to speak, only IBM counterclaims. And that leads to the likely result that the End is Nigh, because I can't see why IBM would bother. That's not a prediction. They might bother, but I can't see why they would want to, personally.]
Here's the decision:
Some of you old timers who have followed the SCO Follies for years with me may remember Judge Nuffer. He used to be a Magistrate Judge, if you recall, and we posted a ruling he issued on spoliation of evidence in an unrelated case that I used in 2006 to explain what spoliation is. SCO was making some pretty wild claims about that, if you recall, that Dan Lyons wrote about in his usual style and then had to correct. He's not a journalist any more, by the way, I read the other day. He left ReadWrite for a marketing software company.
04/24/2013 - 1109
- MEMORANDUM DECISION AND ORDER denying 1095 Motion to Reopen Case;
denying 1108 Motion for Hearing. Signed by Judge David Nuffer on 4/22/13
(alt) (Entered: 04/24/2013)
What a trip SCO took us all on! You know how things get all hazy and gentler when time passes? Not me. I still recall how vicious it all was. I'll never forget that. Never.
Here's the full order, as text, because it's a beaut:
We have all the documents referenced in the footnotes:
Sometimes I miss covering SCO. They had panache. Inappropriately so, but isn't that what scammers generally need? They are a case study, that is for sure. So, Boies Schiller. To paraphrase the words of the Bob Dylan song, what's a nice law firm like you doing in a place like this?
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
THE SCO GROUP, INC.,
INTERNATIONAL BUSINESS MACHINES CORPORATION,
MEMORANDUM DECISION AND
Case No. 2:03-cv-294 DN
ORDER DENYING MOTION TO
District Judge David Nuffer
Plaintiff The SCO Group, Inc. (SCO) has filed a motion to reopen this administratively closed case.
1 SCO previously requested that the court reopen the case to rule on two of many pending motions. In response, Judge Campbell issued an order
2 declining to reopen while an appeal was pending before the Tenth Circuit in a related case, The SCO Group, Inc. v. Novell (the Novell case).
3 Judge Campbell stated, however, that either party could file a motion to reopen the case after the Tenth Circuit issued its decision.
On August 30, 2011, the Tenth Circuit affirmed the judgment in the Novell case.
4 Thereafter, SCO filed the instant motion requesting that the court re-open this case in order to proceed with SCOís unfair competition and tortious interference claims against IBM.
IBM filed a response,
5 noting that during the course of this litigation, SCO filed a petition under the Bankruptcy Code which resulted in an automatic stay, and ultimately, the closure of
6 IBM states that it has eleven counterclaims against SCO in this case which are subject to the bankruptcy stay, and which are closely related to SCOís claims against IBM.
7 IBM therefore opposes reopening the case until the bankruptcy stay of its counterclaims is lifted so that SCOís claims and IBMís counterclaims may be litigated together.
The court has reviewed the partiesí submissions and finds that SCOís claims and IBMís counterclaims are inextricably intertwined. Thus, proceeding in the piecemeal manner suggested by SCO would be an inefficient use of judicial and party resources, and potentially could result in inconsistent rulings. Accordingly, the court declines to reopen the case at this time. When the bankruptcy stay is lifted, either party may file a motion to reopen the case. Until then, the case shall remain administratively closed.
ORDER SCOĒs Motion to Reopen the Case
8 is DENIED. Further, the court concludes that oral
argument on the motion would not be helpful. Therefore, SCOís motion for a hearing on its motion to reopen
9 is also DENIED.
Signed April 22, 2013.
BY THE COURT:
U.S. District Judge
1 The SCO Group, Inc.ís Motion to Reopen the Case, docket no. 1095, filed November 4, 2011.
2 Order, docket no. 1093, filed September 10, 2010.
3 SCO Group, Inc. v. Novell, Case no. 2:04-CV-139.
4 The SCO Group, Inc. v. Novell, Inc., 439 Fed. Appx. 688 (10th Cir. 2011).
5 IBMís Memorandum Responding to SCOís Request to Reopen (Opposing Memorandum), docket no. 1100, filed November 21, 2011.
6 Id. at 1.
7 Id. at 2.
8 The SCO Group, Inc.ís Motion to Reopen the Case, docket no. 1095, filed November 4, 2011.
9 The SCO Group, Inc.ís Motion for Status Conference or Hearing on Its Motion to Reopen the Case, docket no. 1108, filed March 25, 2013.
And no, I haven't forgotten that Microsoft funded the SCO Follies, and it's still trying to kill off Linux in the current Android patent smartphone wars. Android runs on Linux. So does pretty much everything else that matters in this world, as Jim Zemlin points out in a TEDx Talk that Jennifer Cloer describes at Linux.com:
Linux has been pretty successful and the TEDx audience was eager to learn how it has achieved such success and how they could apply some of the Linux community's best practices to their own work. In true Zemlin style, the lessons seemed a little surprising at first but as he elaborated, the audience soon understood how Linux has become the largest shared technology resource known to man. It runs the Internet, our smartphones, televisions, the world's high performance computing systems and eight out of 10 of the world's stock exchanges. It's literally the foundation for our global economy, he explained. That's by the way what people hate about Linux, that it's so good people want to use it, preferring it to closed, proprietary systems. They like the price too. But for me, it's the freedom. I use various operating systems, sometimes because I have to, but a GNU/Linux system is the only one that when I use it I feel I can exhale. It's relaxing to know no one is standing in your way or tracking your movements. I've never enjoyed people reading over my shoulder.
That's what Microsoft is trying to kill off or tax, that freedom. Think about that seriously, and next time they announce some "open source" project, remember that what *they* apparently learned from the SCO Follies was that patents were a more lethal weapon than copyrights.
What I learned is that when a lot of folks work together, you can accomplish more than you think, even against large and well-funded companies who don't mind being awful.
You know what else I learned? All the people and companies who supported SCO are not doing so marvelously well these days, but Groklaw's still swimming right along nicely. We're still here. Go figure.