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IBM: Get Me Outa Here
Tuesday, June 17 2003 @ 04:55 AM EDT

This Shankland article points to an interesting connection:

"SCO has made no secret in recent months that it hired high-profile attorney David Boies to spearhead its case against IBM, but the company's legal representation in Utah courts is also noteworthy. The company retained Brent O. Hatch and Mark F. James of the law firm Hatch, James & Dodge. Hatch is the son of Sen. Orrin Hatch, R-Utah, a spokesman for SCO confirmed Monday."

Another Hatch connection turns up in this Salt Lake Tribune story from April of 2002, which mentions that Judge Dale A. Kimball, the judge assigned to this case, was sponsored by Hatch.

Cozy. Well, I noticed that IBM has filed an Amended Response on May 20, 2003. (You can read it on SCO's site, but everything except the list of denials is here.) And in it, in their Affirmative Defenses, they list one that says "Caldera's claim's are improperly venued in this district." That means: this is the wrong venue, or place, to bring this lawsuit. Here is the explanation of venue, from Steven H. Gifis' Law Dictionary, Second Edition:

"VENUE: a neighborhood, a neighboring place; synonymous with 'place of trial'. It refers to the possible or proper place or places for the trial of a suit, as among several places where jurisdiction could be established. See 132 N.W. 2d 304, 308; and 257 F. Supp. 219, 224. 'Jurisdiction deals with the authority of a court to exercise judicial power. Venue deals with the place where that power should be exercised. Jurisdiction over the subject matter cannot be conferred by the parties, and the lack thereof may not be waived. Venue, on the other hand, is bottomed on convenience, and improper venue may be waived.' Green, Civil Procedure 64 (2d ed. 1979). Venue 'is the right of the party sued to have the action brought and heard in a particular judicial district.' 249 A. 2d 916, 918."

Evidently, IBM would like to have this case heard elsewhere.

Here is the introduction to the Amended Complaint and all 9 affirmative defenses:

"In answer to the allegations of the complaint of Caldera Systems, Inc. d/b/a The SCO Group ("Caldera"), defendant International Business Machines Corporation ("IBM"), by and through its attorneys, states that, contrary to Caldera's allegations, by its lawsuit, Caldera seeks to hold up the open source community (and development of Linux in particular) by improperly seeking to assert proprietary rights over important, widely used technology and impeding the use of that technology by the open source community.

"While IBM has endeavored to support the open source community and to further the development of Linux, IBM has not engaged in any wrongdoing. Contrary to Caldera's unsupported assertions, IBM has not misappropriated any trade secrets; it has not engaged in unfair competition; it has not interfered with Caldera's contracts; and it has not breached contractual obligations to Caldera. In any event, IBM has the irrevocable, fully paid-up, and perpetual right to use the "proprietary software" that it is alleged to have misappropriated or misused."

Here are the nine affirmative defenses:

First Defense
The complaint fails to state a claim upon which relief can be granted.

Second Defense
Caldera's claims are barred because IBM has not engaged in any unlawful or unfair business practices, and IBM's conduct was privileged, performed in the exercise of an absolute right, proper and/or justified.

Third Defense
Caldera lacks standing to pursue its claims against IBM.

Fourth Defense
Caldera's claims are barred, in whole or in part, by the applicable statutes of limitations.

Fifth Defense
Caldera's claims are barred, in whole or in part, by the economic-loss doctrine or the independent-duty doctrine.

Sixth Defense
Caldera's claims are barred by the doctrines of laches and delay.

Seventh Defense
Caldera's claims are barred by the doctrines of waiver, estoppel and unclean hands.

Eighth Defense
Caldera's claims are, in whole or in part, pre-empted by federal law.

Ninth Defense
Caldera's claim's are improperly venued in this district.

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