SCO v. IBM: ORDER RE BRIEFING FOR PENDING MOTIONS - as text

Friday, May 07 2004 @ 02:45 AM EDT

Contributed by: PJ

There is an order by Judge Kimball, dated May 6, stating when IBM and SCO each need to submit briefs regarding SCO's two motions, the Motion to Dismiss and the Motion to Amend the Scheduling Order. The parties agreed to the due dates. Obviously, IBM is opposing both motions, so they are to put in a memorandum in opposition to each motion by May 14, and then SCO gets until May 28 to reply with a memorandum in support of each.

The Motion to Dismiss is the one about Counterclaim 10, in which IBM seeks a declaratory judgment "that IBM does not infringe, induce infringement of, or contribute to the infringement of any SCO copyright through its Linux activities, including its use, reproduction and improvement of Linux, and that some or all of SCO's purported copyrights in UNIX are invalid and unenforceable." That is the one SCO wants dismissed or stayed until the AutoZone case is decided:

"Count Ten presents issues already before another federal court, and, on that basis, should be dismissed or, at a minimum, stayed pending the outcome of the prior filed AutoZone case pending in Nevada."

The Motion to Amend the Scheduling Order is the one where SCO is asking for more time:

"SCO has moved to amend the Scheduling Order to extend certain deadlines in this case. Good cause exists to grant SCO's motion because: (1) after the Scheduling Order was entered, IBM filed 10 counterclaims, including 4 claims for patent infringement [1]; (2) discovery in this case was effectively stayed for four months; and (3) IBM's untimely reponses to discovery have hindered orderly prosecution of the case."

I expect IBM will have something to say about that last point. SCO asked that the fact discovery deadline be changed to May 18, 2005; the expert discovery deadline to July 15, 2005; the deadline for filing dispositive motions to July 27, 2005; the deadline for disclosure of 26(a)(3) materials to August 3, 2005; the deadline for the special attorney conference and for the settlement conference changed to August 15, 2005; the final pre-trial conference to approximately August 30, 2005; and the trial period to approximately September 15, 2005.

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

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

__________________________________

THE SCO GROUP, INC.,

Plaintiff/Counterclaim-Defendant,

vs.

INTERNATIONAL BUSINESS MACHINES CORPORATION,

Defendant/Counterclaim-Plaintiff.

_________________________________

ORDER RE BRIEFING FOR PENDING MOTIONS

Civil No. 2:03CV0294 DAK

Honorable Dale A. Kimball

Magistrate Judge Brooke Wells

_________________________________

Based on the stipulation of the parties, and good cause appearing,

IT IS HEREBY ORDERED as follows:

IBM's Memorandum in Opposition to SCO's Motion to Dismiss shall be due on May 14, 2004;

IBM's Memorandum in Opposition to SCO's Motion to Amend Scheduling order shall be due on May 14, 2004;

SCO's Reply Memorandum in Support of its Motion to Dismiss shall be due on May 28, 2004.

Sco's Reply Memorandum in Support of its Motion to Amend Scheduling Order shall be due on May 28, 2004.

DATED this 6th day of May, 2004.

BY THE COURT:

________[Signature]_______
United States District Court

APPROVED AS TO FORM:

SNELL & WILMER LLP
Alan L. Sullivan
Todd M. Shaughnessy

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

BY: ________[signature]________
Counsel for Defendant International
Business Machines Corporation

HATCH, JAMES & DODGE, P.C.
Brent O. Hatch
Mark R. Clements

BY: _______[signature]__________
Counsel for Plaintiff


United States District Court
for the
District of Utah
May 6, 2004

* * CERTIFICATE OF SERVICE OF CLERK * *

Re: 2:03-cv-00294

True and correct copies of the attached were either mailed, faxed or e-mailed by the clerk to the following:

Brent O. Hatch, Esq.
HATCH JAMES & DODGE
[address]

Scott E. Gant, Esq.
BOIES SCHILLER & FLEXNER
[address]

Evan R. Chesler, Esq.
CRAVATH SWAINE & MOORE
[address]

Mr. Alan L. Sullivan, Esq.
SNELL & WILMER LLLP
[address]

Mark J. Heise, Esq.
BOIES SCHILLER & FLEXNER
[address]

Mr. Kevin P McBride, Esq.
[address]

Mr. David W Scofield, Esq.
PETERS SCOFIELD PRICE
[address]

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