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Judge Denies SCO's Ex Parte Motion to Adjourn
karvind writes "Groklaw has up an article stating that judge Kimball has issued an order regarding SCO's Ex Parte Motion to Adjourn the April 21, 2005 Argument on SCO's Motion to Amend Its Complaint: The Motion is denied. SCO has finally filed its 10Q." From the article: "The court declines to adjourn the hearing. Accordingly, IT IS HEREBY ORDERED that SCO's Ex Parte Motion to Adjourn the April 21, 2005 Argument on SCO's Motion to Amend Its Complaint is DENIED. In addition to hearing SCO's Motion to Amend its Complaint and SCO's Motion to Compel the Deposition of Samuel Palmisano at the April 21, 2005 hearing, the parties are hereby NOTIFIED that the court will also hear argument regarding the parties' Proposed Scheduling Orders."
For those who do not wish to RTFA, the gist is:
Briefly, IBM asked the judge to rule that they weren't infringing any of Calsera/SCO's copyrights by distributing Linux. And they further asked for that ruling immediately, before the trial is complete. In such a pre-trial summary judgement motion, the rules are heavily biased in favor of Caldera/SCO; they only have to show a tiny bit of evidence to defeat the motion.
Iran captures three CIA agents
SCO wanted to adjorn the court so they could file more complaints. The judge says no to both.
10Q is a quartly report.
Samuel Palmisano, the guy wanted to force into deposition, is the CEO of IBM.
I really do wonder how much longer SCO can survive.
Burn Hollywood Burn
As for 'ex parte'... um... the parte is over? Let's get this parte started? No... wait... aha.
But, y'know, they couldn't just say that.
pb Reply or e-mail; don't vaguely moderate.
OK, my attempt to explain from what little legal knowledge I have.
Ex parte orders mean that you're asking for something in your benefit without the other party consenting or defending the decision. Restraining orders, protective orders, etc. are generally ex parte decisions. In other words, the judge hears one side of the arguments and makes a decision for that one side.
I would imagine that SCO is asking for an adjournment without IBM's consent and without first consulting IBM's attorneys. He must feel that they don't have enough reason to do so without some other kind of trial.
That's it. Why this got a front page story I don't know, although it is a sign that this judge at least feels that SCO now has sufficient rope to hang themselves with, so there is that.
UNIX? They're not even circumcised! Savages!
SCOXE wanted time to "amend their complaint" (this is lawyereese for "change our story again"). Before IBM could object (I think...), the judge said "Yeah, right." and denied their plea for delay.
It's a minor thing.
Belief is the currency of delusion.
Ex-parte motion:
i tions.php/US/US-EX_PARTE.htm
;-) )
"Ex parte refers to a motion or petition by or for one party. An ex parte judicial proceeding is on where the opposing party has not received notice nor is present. This is an exception to the usual rule of court procedure and due process rights that both parties must be present at any argument before a judge."
(Source: http://www.uslegalforms.com/lawdigest/legal-defin
)
About the 10-Q:
"What does it Mean? A quarterly report submitted by all public companies to the SEC in which firms are required to disclose relevant information regarding their financial position. This must be done on time, and the information should be available to all interested parties." (Source: http://www.investopedia.com/terms/1/10q.asp)
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In other words...
This means that SCO wanted to play dirty on Linux er, IBM, by doing legal things on their back, this is, without IBM being present for the legal actions to take place - but judge Kimball didn't allow them to do so. Also, SCO also published their quarterly report.
(RTFW <-- words of wisdom to slashdotters regarding legalese
Sorry, the link points to the "original" version of the story, bad paste job on my part. Here is a google link.
http://www.groklaw.net/article.php?story=20050413
SCO Asks for Delay on the April 21st Hearing and IBM Gets Really, Really Clear
Wednesday, April 13 2005 @ 09:15 AM EDT
There are three new filings in SCO v. IBM, and they are enjoyable to me. First, SCO asks for a delay regarding the April 21st hearing [PDF] on their request to amend their complaint again. This would be the AIX on POWER claim, from what they've leaked to the media. They say their reason for wanting a delay is because they are about to get a ton of code from IBM and maybe they'll find some other things to use to amend the complaint.
Yeah. Right. Or maybe they read Groklaw and figured out, now that I did all the research for them, that they haven't a ghost of a chance of prevailing on that misguided claim, and so now they would like some time to figure out what to try next.
So lets see... this means:
Did I get that right?
A Human Right
Just some tool cutting and pasting a Groklaw summary. It wouldn't make any sense unless you've been paying attention to what's going on to begin with.
The judge said no, without offering explanation.
Additionally, SCO and IBM can't agree on scheduling. They had been ordered to meet and come up with a schedule. According to IBM, the two did meet and had a tenative agreement, but SCO changed its mind (withouth explanation) at the last minute. So, the judge said that they'll discuss that at the April 21 hearing as well.
I'm not a lawyer either, but I've worked with enough legal nonsense to explain this. (Though probably not as well as Groklaw.) You slightly missed what happened.
SCO already had a motion (the "motion to amend") on the table to add one additional claim to their suit. This amendment motion then got scheduled to be heard on April 21, meaning that both parties show up in court and make their arguments. They were also scheduled to discuss scheduling proposals, which I think means that they would hammer out dates on which no new discovery can take place and that kind of thing. This is the motion you were referring to. No decision was made by the judge on it.
The motion in the article was to adjourn the April 21 hearing, that is to say they wanted to cancel the scheduled courtroom discussion of the motion mentioned above. They said they needed this cancellation because they wanted to add even more claims besides the single new one that would be discussed April 21. I think they also said they wanted to change around the scheduling proposal. The judge ruled against this motion to adjourn -- essentially saying no, we're not going to delay any longer, you are going to show up on April 21 and argue your amendment motion.
The shorter version -- SCO tried to cancel a court date and stall some more. The judge said no, they need to show up and proceed.
Note that this only means they have to appear on April 21 and argue on whether or not they can add another claim to their lawsuit. I am pretty sure they will NOT be arguing any aspect of the actual lawsuit on April 21.
Translation from legalese into English:
// Judge Kimball made a decision
// A complaint is the document you use to start a lawsuit in federal court - it states what your claim is about. SCO wanted to revise its complaint in some way. April 21, 2005 was the date set for the parties to argue over whether it should be allowed to amend. SCO asked the court (lawyers say "brought a motion") to adjourn (i.e. postpone) that date. "Ex parte" means they didn't notify the other side that they were asking for a postponement - normally not a good idea. Despite the other side not being present, SCO still lost.
Judge Kimball issued an order
regarding SCO's Ex Parte Motion to Adjourn the April 21, 2005 Argument on SCO's Motion to Amend its Complaint
This is a purely procedural ruling. All it means is the arguments over whether SCO can amend will go ahead on April 21, 2005 as scheduled.
"Groklaw has up an article stating that judge Kimball has issued an order regarding SCO's Ex Parte Motion to Adjourn the April 21, 2005 Argument on SCO's Motion to Amend Its Complaint: The Motion is denied. SCO has finally filed its 10Q." From the article: "The court declines to adjourn the hearing. Accordingly, IT IS HEREBY ORDERED that SCO's Ex Parte Motion to Adjourn the April 21, 2005 Argument on SCO's Motion to Amend Its Complaint is DENIED. In addition to hearing SCO's Motion to Amend its Complaint and SCO's Motion to Compel the Deposition of Samuel Palmisano at the April 21, 2005 hearing, the parties are hereby NOTIFIED that the court will also hear argument regarding the parties' Proposed Scheduling Orders."
It's a reference to the Noorda suicide, which The Didiot first reported as a "heart attack".
The actual trial doesn't start until the jury is selected. Even though both sides have asked for a jury trial, it's still possible for the case to be resolved before it ever gets to trial.
:)
:)
We're currently in the "discovery" phase, where both sides are supposed to show each other their evidence and take depositions and whatnot. This is where SCOG is balking, since they apparently have no evidence.
Once discovery is over, there will be a period where both sides continue examining the evidence they've received and prepare for trial. This is also where both sides bring up motions for summary judgement on points where they think the evidence is indisputably in their favor. Look for IBM to gut SCOG's case during this period. Look for SCOG to continue everything they can think of to delay the start of this phase.
Finally, if there's anything left of the case, the trial proper will start. Look for IBM's patent claims against SCOG, and possibly their GPL claims as well, to be resolved here. Look for the people in charge of SCOG's bankruptcy proceedings to be managing the defense.
Finally, as a former customer of the Santa Cruz Operation, I would like to remind people that the company currently called The SCO Group bears no relation. The company suing IBM is a Linux company that was named "Caldera" until a couple of years ago. There's a charming irony there, since "Caldera" basically means, "a smoking hole in the ground," which is what we expect Caldera/SCOG to be fairly soon.
Actually this is very significant, goodwill is a measure of the difference between the price paid for a company that is aqcuired and the hard assets of the company. Most IT companies have huge figures for goodwill because they will buy a company for maybe $100 million and its hard assets might be less then $10 million, the rest is the value of the ongoing business.
In normal circumstances goodwill depreciates at a steady rate but if a company suffers a major financial catastrophe the 'goodwill' has to be written off faster. SCO makes no money from the SCO business acquired by Caldrea, the assets have to be written down to zero as a result.
What this means is that SCO has no ongoing business from any of its acquisitions. It litterally has no goodwill, that is the relationships that are the real value of a modern company.
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Weeeeeeeell... that's all true, but like an earlier poster, not relevant to THIS decision. This particular one was about an upcoming hearing about a couple of matters: IBM wants reconsideration on the "produce everything" document, SCO wants to ammend its claims AGAIN, and IBM wants the judge to force SCO to pin down its claims now, instead of at the end of discovery. Oh, and the Palmisano deposition. Anyway, SCO wanted to postpone the whole mishmosh until June, and the judge said no. So next week, they go to court. Don't expect anything decided that day. On the spot rulings have been very rare in this case, in most instances it's been 2 days to 2 weeks before the rulings come down, although the "No Credible Evidence" ruling of a few weeks ago makes one think SCO's bankroll of goodwill with the judges is wearing thin.