SCO Files Motion to Amend Complaint And Add Affirmative Defenses

Thursday, February 05 2004 @ 04:24 PM EST

Contributed by: PJ

SCO has filed, on February 4, a Motion, and a Memorandum in support of their motion, asking the judge for permission to amend their complaint and add claims and affirmative defenses. This appears to be directed at IBM's Motion to Strike several of SCO's affirmative defenses. One sentence in the Motion reads: "Moreover the revisions address the concerns raised in IBM's Motion to Strike portions of SCO's Affirmative Defenses, thereby rendering moot IBM's Motion to Strike." They hope. Rand has the motion for us already as text.

The documents don't reveal what exactly they wish to add, and we won't know until we can get the attached exhibits, that reveal that information, from the court. Exhibits A and B were filed in paper form. At least that is my first impression on a quick read-through. They have also filed some documents to be used as Exhibits tomorrow. Once again, I don't see David Boies' name on the motion. Here are the documents:

SCO's Motion for Leave To File Amended Pleadings
Notice of Filing Plaintiff's Exhibits for Use at Hearing on February 6, 2004
Plaintiff SCO's Memorandum of Law in Support of Motion for Leave to File Amended Pleadings

****************************************************


Brent O. Hatch (5715)
Mark F. James (5295)
HATCH, JAMES & DODGE, P.C.
[address, phone, fax]

Stephen N. Zack
Mark J. Heise
David K. Markarian
BOISE,SCHILLER & FLEXNER L.L.P.
[address, phone, fax]

Attorneys for Plaintiff The SCO Group, Inc.


IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH


THE SCO GROUP, INC.,
a Delaware corporation,

Plaintif,
vs.

INTERNATIONAL BUSINESS MACHINES
CORPORATION, a New York corporation,

Defendant.

PLAINTIFF'S MOTION FOR
LEAVE TO FILE AMENDED
PLEADINGS


Case No. 03-CV-0294

Hon: Dale A. Kimball
Magistrate Judge Brooke Wells


        Plaintiff/Counterclaim Defandant, The SCO Group, Inc. ("SCO"), through its undersigned counsel, pursuant to Rules 15(1a) of the Federal Rules of Civil Procedure and applicable Local Rules, files this motion for leave to file its Second Amended Complaint and Amended Affirmative Defenses to IBM's Counterclaim, and in support states:

        1.        SCO's proposed Second Amended Complaint is attached hereto as Exhibit "A".  This proposed amended complaint serves to streamline the pleadings and adds claims that have arisen since the filing of the case.

        2.        SCO's proposed Amended and Additional Affirmative Defenses to IBM's Counterclaim are attached hereto as Exhibit "B".  These proposed amendments reflect the countinuing investigation into the allegations and issues raised by IBM in its eleven count counterclaim, including four separate claims of patent infringement, and serve to better frame the issues for this Court's determination.  Moreover, the revisions address the concerns raised in IBM's Motion to Strike portions of SCO's Affirmative Defenses, thereeby rendering moot IBM's Motion to Strike.

        3.        No prejudice will result to IBM by the granting of this Motion.  The current discovery cut off date is not until August 4, 2004 for fact discovery and October 22, 2004 for expert discovery.  Moreover, the Court set February 4, 2004, as the deadline for amending pleadings.

        4.        In addition, great prejudice will be suffered by SCO if it precluded [sic] from amending its pleadings and affirmative defenses.  Moreover, the recent stay of IBM's discovery obligations have [sic] limited SCO's ability to assess the case and fashion and plead defenses to IBM's Counterclaim.  It is anticipated that IBM may reveal through discovery additional material relevant to the issues raised by its Counterclaim and that SCO may in fact request a future opportunity to futher align its claims once IBM's [sic] resumes the process of complying with its discovery obligations.

SCO has filed concurrently herewith this Memorandum of Law In Support of its Motion for Leave to File its Second Amended Complaint and Amended Affirmative Defenses to IBM's Amended Counterclaim.


Dated this __4__ th day of February, 2004


Respectfully submitted,

HATCH, JAMES & DODGE, P.C.
Brent O. Hatch
Mark F. James

BOISE, SCHILLER & FLEXNER, L.L.P.
Stephen N. Zack
Mark J Heise
David K. Markarian

by________(sig: Brent O. Hatch)__________
Counsel for Plaintiff/Counterclaim defendant











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