IBM Says No Problem - SCO Can Amend Their Complaint

Friday, February 20 2004 @ 04:25 PM EST

Contributed by: PJ

IBM yesterday filed a Memorandum in Response to SCO's Motion to File Amended Pleadings.

I would rename it IBM's "Go Ahead, Make My Day" Memorandum. In it they tell the judge that they don't mind a bit if SCO would like to amend their pleadings, dropping the trade secret claims and substituting the copyright infringement based on SCO's serfdom "legal theory" of derivative code. (Thanks to Groklaw reader LionKuntz for the serfdom analogy.)

They will answer, if the judge allows SCO's amended complaint, and they will tell all the reasons why they believe SCO's claims are without merit, and personally I am looking forward to that document. Again, it is very clear, IBM is in no hurry to bring this to any early end based on a technicality. They seem to want to get a ruling on the merits that will be a precedent and stand the test of time. The PDF is here. Also, Kevin McBride is moving to sunny California. Maybe it's too hot in Utah? Joke. Joke. Actually, it's too icy. Notice of his new address is here.

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

SNELL & WILMER, L.L.P.
Alan L. Sullivan (3152)
Todd M. Shaughnessy (6651)
Amy F. Sorenson (8947)
[address, phone, fax]

CRAVATH, SWAINE & MOORE LLP
Evan R. Chesler (admitted pro hac vice)
David R. Marriott (7572)
[address]

Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation

____________________________

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

____________________________

THE SCO GROUP, INC.

Plaintiff/Counterclaim-Defendant,

v.

INTERNATIONAL BUSINESS MACHINES CORPORATION,

Defendant/Counterclaim-Plaintiff.

____________________________

MEMORANDUM OF
DEFENDANT/COUNTERCLAIM-
PLAINTIFF IBM IN RESPONSE TO
PLAINTIFF'S MOTION FOR LEAVE TO
FILE AMENDED PLEADINGS

Civil No. 2:03CV0294 DAK

Honorable Dale A. Kimball
Magistrate Judge Brooke Wells

__________________________

Pursuant to DUCivR 7-1(b)(3), Defendant/Counterclaim-Plaintiff International Business Machines Corporation ("IBM") submits the following response to Plaintiff's Motion for Leave to File Amended Pleadings filed on February 4, 2004.

As will be set out in IBM's answer to plaintiff's proposed Second Amended Complaint -- should the Court permit plaintiff to file it -- plaintiff's amended allegations are meritless. Nevertheless, and without conceding the grounds on which the amended pleadings are based, IBM does not oppose plaintiff's second motion for leave to amend, subject to IBM's right to move against the amended pleadings.

DATED this 19th day of February, 2004.

SNELL & WILMER, LLP

_______[signature]____________

Alan L. Sullivan
Todd M. Shaughnessy
Amy F. Sorenson

CRAVATH, SWAINE & MOORE L.L.P.
Evan R. Chesler
David R. Marriott

Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation

Of counsel:

INTERNATIONAL BUSINESS MACHINES CORPORATION
Donald J. Rosenberg
Alec S. Berman
[address]

Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation

CERTIFICATE OF SERVICE

I hereby certify that on the 19th day of February, 2004, a true and correct copy of the foregoing MEMORANDUM OF DEFENDANT/COUNTERCLAIM-PLAINTIFF IBM IN RESPONSE TO PLAINTIFF'S MOTION FOR LEAVE TO FILE AMENDED PLEADINGS was hand delivered to the following:

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

Kevin P. McBride
[address]

and sent by U.S. Mail, postage prepaid, to the following:

Stephen N. Zack
Mark J. Heise
BOIES, SCHILLER & FLEXNER LLP
[address]

__________signature_________

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

Kevin P. McBride (4494)
[address, phone, fax]

Attorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH

____________________________

THE SCO GROUP, INC.,
a Delaware corporation,

Plaintiff,

v.

INTERNATIONAL BUSINESS MACHINES CORPORATION,

a New York corporation,

Defendant.

____________________________

NOTICE OF CHANGE
OF ADDRESS

Case No. 03-CV-0294

US District Judge: Dale A. Kimball
Magistrate Judge: Brook C. Wells

____________________________

Kevin P. McBride, co-counsel for plaintiff, The SCO Group, Inc., hereby gives notice of change of address. Please serve all further pleadings in this matter to the following:

Kevin P. McBride
[CA address, phone, fax, email]

DATED this 10th day of February 2004.

___________[signed]_____________
KEVIN P. MCBRIDE

The undersigned hereby certifies that a true and correct copy of Notice of Change of Address was served on Defendant International Business Machines Corporation on this 11 day of February 2004, by U.S. Mail, first class, postage prepaid to:

Alan L. Sullivan
Todd Shaughnessy
[address, phone, fax]

Evan R. Chesler
Cravath, Swaine & Moore
[address]

Donald J. Rosenberg
[address]

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