Red Hat's Motion for Reconsideration - as text

Wednesday, April 21 2004 @ 02:02 AM EDT

Contributed by: PJ

Here is Red Hat's Motion for Reconsideration as text, plus their proposed order, giving the judge two alternatives.

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

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

RED HAT, INC.,
Plaintiff,


vs.

THE SCO GROUP, INC. (formerly Caldera
International, Inc.)
Defendant.
Civil Action No.:03-772-SLR

MOTION FOR RECONSIDERATION

Red Hat, Inc. respectfully moves pursuant to Local Rule 7.1.5 for reconsideration the Court's Order dated April 6, 2004 staying this case.

In summary form, the grounds for this motion are as follows:

1) The Court did not have the benefit of briefing on the issue of a stay before it when the Court stayed this case sua sponte, and in fact a stay based on the prior pending Utah action would be inappropriate under the facts and caselaw for many reasons; and

2) Red Hat will suffer manifest injustice from a stay, since SCO apparently intends to continue to harass and threaten suit against Red Hat's customers in other jurisdictions, while Red Hat's declaratory judgment suit here, which was intended to prevent this precise harm to it and its customers, is forced to languish.

The above grounds are fully set forth in Red Hat's Memorandum, filed herewith.

WHEREFORE, Red Hat respectfully requests the Court to grant the within Motion. A form of Order is attached hereto.

       (signature)    
Josy W. Ingersoll (#1088)
Adam W. Poff (#3990)
YOUNG CONAWAY STARGATT
& TAYLOR, LLP
[address]
[phone]
Attorneys for Red Hat, Inc.

OF COUNSEL:

William F. Lee
Mark G. Matuschak
Michelle D. Miller
Donald R. Steinberg
HALE AND DORR LLP
[address]
[phone]
[fax]

Dated: April 20, 2004


IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

RED HAT, INC.,
Plaintiff,


vs.

THE SCO GROUP, INC. (formerly Caldera
International, Inc.)
Defendant.
Civil Action No.:03-772 (SLR)

ORDER

The Court having considered the motion of Red Hat for Reconsideration of the Court's Order dated April 6, 2004 (the "Motion"), and having considered the parties' arguments thereon, it IS HEREBY ORDERED this ________ day of ________, 2004 that:

The Motion is granted and:

A. The Order of the Court dated April 6, 2004 is hereby vacated, the stay is lifted and the parties are directed to confer and to submit to the Court a proposed Scheduling Order by ________________ 2004.

Alternatively,

B. The Court's April 6, 2004 Order is hereby modified, as follows: SCO is enjoined from threatening to initiate suit or initiating any lawsuit against Red Hat or any of Red Hat's customers based on alleged infringement of SCO's copyrights through the use of LINUX, for the period during which this case is stayed.

_______________________
U.S.D.J.


CERTIFICATE OF SERVICE

I, Josy W. Ingersoll, Esquire, hereby certify that copies of the foregoing document were caused to be served on April 20, 2004 upon the following counsel of record:

BY HAND DELIVERY

Jack B. Blumenfeld, Esquire
Morris, Nichols, Arsht & Tunnell
[address]

BY FEDERAL EXPRESS

Mark J. Heise, Esquire
Boies, Schiller & Flexner, L.L.P.
[address]




______(signature)_________
Josy W. Ingersoll

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