DaimlerChrysler Files Motion to Dismiss, With Prejudice

Wednesday, April 28 2004 @ 11:01 AM EDT

Contributed by: PJ

DaimlerChrysler has filed for a dismissal of SCO's complaint, with prejudice. Their Motion for Summary Disposition was filed on April 15 in the Circuit Court for Oakland County, Michigan. There will be a hearing on this motion, at a date not yet announced, so it isn't going to be decided just on the motion papers. Here is the Motion and the Notice of Hearing, as text. I don't have the PDF ready yet. Please note that there may be slight edits, because of the quality of the scanned material, on a couple of the names and attorney numbers.

They have also filed an answer to SCO's complaint, which we will have for you later tonight, hopefully, also. They list the following affirmative defenses: failure to state a claim, waiver, estoppel, laches, unclean hands and acquiescence, lack of capacity to sue, lack of standing, lack of case or controversy, lack of breach/cure of alleged breach, mitigation of damages, Plaintiff's claims are moot, bar by third-party contract, and reservation of right. The WHEREFORE clause asks that the complaint be dismissed with prejudice, and that the court award DaimlerChrysler costs and attorneys' fees.

You may notice on the Notice of Hearing and Motion that Hale and Dorr are "of counsel". Hale and Dorr are the attorneys for Red Hat in Delaware. The definition of "of counsel" is the following: "refers to an attorney who aids in the preparation of a case, but who is not the principal attorney of record for the case. He or she usually assists the attorney who has been hired for the case." This is from "Law Dictionary" Second Edition, by Steven H. Gifis. Here is the home page for the attorney of record, Dykema Gosssett. Our thanks to Mark Thorndyke, who went to a lot of trouble to get this for us, and to the many volunteers who offered to do the same.

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

STATE OF MICHIGAN
IN THE CIRCUIT COURT FOR THE COUNTY OF OAKLAND

_________________________

THE SCO GROUP, INC.,

Plaintiff,

vs.

DAIMLERCHRYSLER CORPORATION,

Defendant.

_______________________

DAIMLERCHRYSLER CORPORATION'S MOTION
FOR SUMMARY DISPOSITION

Civil Action No. 04-056587-CKB

Honorable Rae Lee Chabot

_______________________

Joel H. Serlin (P20224)
Barry M. Rosenbaum (P26487)
SEYBURN, KAHN, GINN, BESS and
SERLIN, P.C.
Attorneys for Plaintiff
[address, phone]

James P. Feeney (P13335)
Thomas S. Bishoff (P53753)
Stephen L. Tupper (P53918)
DYKEMA GOSSETT PLLC
Attorneys for DaimlerChrysler Corporation
[address, phone]

______________________________

Defendant DaimlerChrysler Corporation ("DaimlerChrysler"), through its counsel, Dykema Gossett PLLC, moves for summary disposition of Plaintiff The SCO Group, Inc.'s Complaint pursuant to MCR 2.116(C)(10).

In support of this Motion, DaimlerChrysler relies upon the facts and law set forth in its Memorandum of Law in Support of Motion for Summary Disposition, filed contemporaneously herewith, and its exhibits, the pleadings and other documents on file with the Court, and all matters of which the Court may take judicial notice.

WHEREFORE, Defendant DaimlerChrysler Corporation respectfully requests that this Court grant this Motion and enter an order, pursuant to MCR 2.116(C)(10), dismissing Plaintiff The SCO Group, Inc.'s Complaint in its entirety with prejudice.

Respectfully submitted,

DYEMA GOSSETT PLLC

_____[signature]_________

James P. Feeney (P13335)
Thomas S. Bishoff (P53753)
Stephen L. Tupper (P53918)
Attorneys for Defendant
DaimlerChrysler Corporation
[address, phone]

Of Counsel:

HALE and DORR LLP

Mark G. Matuschak
Michelle D. Miller
[address, phone]

Robin L. Alperstein
[address, phone]

[Proof of Service]

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

STATE OF MICHIGAN
IN THE CIRCUIT COURT FOR THE COUNTY OF OAKLAND

_________________________

THE SCO GROUP, INC.,

Plaintiff,

vs.

DAIMLERCHRYSLER CORPORATION,

Defendant.

_______________________

Joel H. Serlin (P20224)
Barry M. Rosenbaum (P26487)
SEYBURN, KAHN, GINN, BESS and
SERLIN, P.C.
Attorneys for Plaintiff
[address, phone]

James P. Feeney (P13335)
Thomas S. Bishoff (P53753)
Stephen L. Tupper (P53918)
DYKEMA GOSSETT PLLC
Attorneys for DaimlerChrysler Corporation
[address, phone]

______________________________

NOTICE OF HEARING

TO: ALL COUNSEL OF RECORD

PLEASE TAKE NOTICE that DaimlerChrysler Corporation's Motion for Summary Disposition will come on for hearing before the Honorable Rae Lee Chabot, in her courtroom, at a time and date to be determined by the Court.

DYKEMA GOSSETT PLLC

By: ______[signature]_______
James P. Feeney (P13335)
Thomas S. Bishoff (P53753)
Stephen L. Tupper (P53918)
Attorneys for Defendant
DaimlerChrysler Corporation
[address, phone]

April 15, 2004

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