There were two orders signed and filed in the DaimlerChrysler case. They are not identical. That's very odd. For that reason, on Friday, I contacted the court to find out which one was the final and why there were two. What I learned was something much more interesting: there is a Scheduling Order, on stipulation by the parties, with a court date set for the end of November. Evidently SCO has decided to go forward in the DaimlerChrysler case. Or backward, depending on your point of view.
Somehow, Napoleon's invasion of Russia comes to mind.
As you will recall, DaimlerChrysler won its motion to dismiss everything that mattered. The only issue that couldn't be settled as a matter of law was whether 30 days was a reasonable time period in which to demand certification by licensees under the contract terms or if DC responded quickly enough. The contract was silent on the issue, so the judge couldn't dismiss that part also on summary disposition. I'm sure she would have if she could have, judging by her demeanor and the speed with which she ruled on the rest.
So SCO had the opportunity to try to demonstrate that it suffered some level of damages by DaimlerChrysler's taking longer than 30 days to respond to their demand for certification. They told the media they probably wouldn't proceed, but it looks like that isn't the case. A Scheduling Order on stipulation means they do intend to go forward. Or normally it would mean that. With SCO, you just never know. But that is what the court told me it means.
And so they trudge onward, through the deepening drifts, not deterred by their thunderous defeat so far. They smell a discovery opportunity, after all, and they can't resist. The deepening snow as they march onward, heads down against the wind, supplies running low, and boots wearing thin, does not provide them sufficient warning. Very well. Onward, by all means. I'm sure the judge will be thrilled to see them again in her courtroom, litigating this truly non-vital non-issue against a company that has not used SCO's products for nearly a decade. Unless, of course, they plan to do discovery and then retreat from the fray and not proceed further. That would be my best guess. DC was an IBM customer, was it not?
Now, about the orders. There were the two orders, one dated August 9 [PDF] and one dated August 11 [PDF], and the latter has the hearing transcript [PDF] attached to it as Exhibit A. The wording is not quite identical, as you can see by looking at the title and the final paragraph. It was the title that probably upset SCO, because the final paragraph really means about the same thing.
Under the court rules there in Michigan, a party can file an order within 7 days of a hearing, and then the other side gets to object, if it so wishes. DaimlerChrysler won the motion with the one exception, so it put in the order, the one marked August 11. SCO objected, and actually they had a point about the title, in that technically the motion was granted only in part. It was like 99% granted, but the issue of the 30 days was carved out.
Interestingly, though, it objected not only to the title and the last paragraph, wanting it to say the motion was "granted in part and denied in part" instead of just "granted", but it also objected to the hearing transcript being attached to the August 11 order. I've no doubt they would prefer no one ever read that transcript, especially this part of the judge's decision:
"However, the contract very clearly does not require certification of the various clauses contained in the agreement as 2.05 relates to the current use of the software by its unambiguous terms.
"Thus, Defendant is not required to certify, for example, that it has not exported the software to a prohibited country. Specifically, Defendant is not required by 2.05 to certify compliance with 2.06, 4.01, 7.05, 7.08, 7.09 . . . as requested by Plaintiff's correspondence.
"Therefore, any claim for failing to certify compliance with those sections of the agreement are properly dismissed pursuant to (c)(10) as Defendant has no contractual obligation to make such certifications."
The final order, the August 9 one, merely references the hearing, without having a transcript attached. Somehow, and the court was unable to explain why or how, probably because the transcript of the hearing also needed to be filed, and it was already attached to the first order, it also got filed on August 11, and we now have two orders listed. Even though the August 11 document appears to be later, that is merely the filing date. As you will notice, there is no date of signing by the judge, although she did sign it. It is actually the first version and the one dated August 9, I was told, is the operative one. The August 9 version is signed by attorneys for both sides and was signed and dated by the judge.
Confused? You aren't the only ones. Who can keep track of these people? Even the courts are having a time of it. Judge Kimball's schedule for the 15th in the SCO v. IBM case lists the following, as eagle eye Frank Sorenson noticed:
- Motion Hearing [152-1] for partial summary judgment on claim for declaratory judgment of non-infringement
- Motion Hearing [144-1] amended motion to dismiss
- Motion Hearing [144-2] amended motion to stay count 10 of counterclaim
- Motion Hearing [255-1] for partial summary judgment on Breach of Contract claims
As Frank writes, "I think the extra entry for the hearing is likely to just be an error, since 255 isn't IBM's motion for PSJ on Breach of Contract Claims, but SCO's ex parte Motion for Leave to File Over-Length Memorandum in Reply to IBM's Supplemental Memorandum in Opposition to SCO's Motion to Dismiss or Stay Count Ten of IBM's Second Amended Counterclaims -- (ugh...say that 10 times fast...)." SCO is suing so many entities in so many places with such heavy motion practice that even the courts are getting mixed up. You can verify the numbers and what they correspond to on Pacer, which for the IBM case is free. As you will see, the motion for summary judgment on the contract claims is number 225 [PDF], not 255 [PDF]. Unless I'm confused myself, I don't believe the breach of contract claim matter is fully briefed yet.
And finally, SCO has been given more time to answer Novell's Motion to Dismiss, until September 24. Novell stipulated to it. Note the Freudian slip in the Order, which was written by SCO, judging by the header and it being signed off on by Novell. I gather SCO is beginning to feel more like the hunted than the hunter in that case. Either that or they can't keep track of it all either.