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| When Can Dispositive Motions Be Filed in SCO v. IBM? |
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Sunday, July 03 2005 @ 04:20 PM EDT
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I started to think more deeply about Judge Kimball's Order today, the wonderful order giving IBM its big win and denying SCO's motion to amend the complaint to add claims regarding AIX on Power. I was thinking about the deadlines, particularly the date listed for Dispositive Motions, July 28, 2006. Was that the deadline after which no more can be filed? Or is it the first date Judge Kimball will entertain any dispositive motions?
Originally, I wrote I thought it was the cutoff date, because all the others in the long list are cutoff dates, in a column marked "Deadline." I've seen lots of speculation about it on the Internet, and that made me think more about this too, because what I saw didn't seem correct to me. Today, therefore, I started to think conceptually. And having July 28, 2006 as a cutoff date makes no sense. Here's why. Normally, there's no cutoff for dispositive motions. You can file them any time the facts make appropriate. In fact, after the plaintiff finishes presenting its case at trial, if the plaintiff failed to introduce evidence in support of a particular claim, the defendant typically files a partial summary judgment motion, so as to remove at least some causes of actions from the case. So I emailed Lewis Mettler, of Lamlaw, after I read his interesting coverage of what this Order means, and by the way, he agrees it's a big win for IBM. He thinks that the July 28 date is the first date Judge Kimball will entertain new dispositive motions, for the same reason I started to rethink the question. You may be wondering what the *parties* do, if a judge's order isn't clear to them? They have an advantage over us. They can ask the judge directly. We can only use prior experience and knowledge in the field to figure it out and reach an opinion, when it isn't quite clear, and the list is, in fact, in all other respects a list of termination dates, but considering what dispositive motions are, it seems very unlikely to us that he'd set a deadline beyond which there can be no more filed. Of course, it's somewhat unusual to say the parties can't file any until a certain date also, and the Judge did do that. So we'll know for sure when we see what the parties do, but July seems to be the first that we'll see them file any dispositive motions. I've put an Update correction in the original story, but I've left the original, only with a line through it, since this isn't yet positive, only our best guess.
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| Authored by: Anonymous on Sunday, July 03 2005 @ 04:39 PM EDT |
Of course, IBM has some motions that were put on hold that aren't really
"new". Can they be resubmitted after Dec 11? Since that's when Scox
will have either put up or shut up.[ Reply to This | # ]
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| Authored by: SpaceLifeForm on Sunday, July 03 2005 @ 04:41 PM EDT |
| Check your links. [ Reply to This | # ]
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| Authored by: Darigaaz on Sunday, July 03 2005 @ 04:49 PM EDT |
| It seems odd to me that Judge Kimball would put off all dispositive motions that
long ... I realize the end of expert discovery is shortly before that, but SCOX
will have to put up some infringing code long before then. If they don't, they
have no case whatsoever (at least on those claims), and I really can't see
Kimball making IBM wait another seven months to file for PSJ once SCOX not only
has not presented any evidence but is barred from doing so because they waited
so long.
Of course, this is predicated on the assumption that SCOX finds
nothing. They'll probably find plenty of material that "allegedly" infringes, no
matter how nonsensical the allegation is. In any case, I would expect that once
SCOX's evidence (such as it is) is shot down, if the deadline is past, Kimball
might reopen the option of filing for PSJ ahead of schedule. ---
Many eyes
make all bugs shallow - not just in software, but journalism and law as well. [ Reply to This | # ]
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| Authored by: Anonymous on Sunday, July 03 2005 @ 05:15 PM EDT |
Here's the first one: Lewis Mettler. The L is missing.
[ Reply to This | # ]
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| Authored by: johan on Sunday, July 03 2005 @ 05:28 PM EDT |
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| Authored by: Anonymous on Sunday, July 03 2005 @ 05:32 PM EDT |
I'm not sure what "interim" is meant to mean, but "deadline to
produce enough evidence to resist a SJ motion" is the only sense I can make
of it, and that's meaningless unless such a motion is permitted.
But he did say "close of discovery", and not "close of fact
discovery", and a 16-day window (July 10 to July 28, 2006) to submit any
motions seems ridiculously short. Perhaps he does indeed mean that he'll start
accepting motions again on July 28.
As for a closing date, I don't know the conventions, but that does seem strange.[ Reply to This | # ]
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| Authored by: jbb on Sunday, July 03 2005 @ 07:21 PM EDT |
| I don't want to bad mouth Judge Kimball on Groklaw, but I
must say that I
really don't understand this.
I was hoping that Judge K. was going
to put the IBM case on
a bit of a back burner then force Novell to prove
that SCO
doesn't own the relevant copyrights and then allow IBM to
file
for a massive summary judgment. I hope that Judge K.
allows for some swift
action in the Novell case to perhaps
allow this dream of mine to come true.
Certainly Judge K. has more than an inkling that SCO
doesn't
own the copyrights they claim to own. It also appears
that this will come
to light in the Novell case. It seems
very strange that he would disallow
any dispositive motions
in the IBM case for so long.
What has me
worried now is SCO's burn rate. Even if things
get delayed no further, it
now appears that SCO will run
out of money well before anything gets decided
in the IBM
case even if Judge K. decides in the Novell case that SCO
doesn't own the relevant copyrights.
What happens when SCO goes
belly up before the IBM case is
decided? Surely this won't all end?
Somebody will buy up
SCO. Of course the new owner will have to form a new
corporation to avoid losing other assets when the summary
judgments
finally hit the fan.
The Judge knows that SCO probably doesn't own
the
copyrights (barring some new documents that have not yet
come to
light). The Judge knows that SCO has not presented
any evidence of
infringement despite two court orders to do
so. I don't understand why he
seems to be stringing things
out for what seems to be as long as possible
when SCO has
presented no credible evidence that anyone has done
anything wrong.
I don't want to start a bunch of flames or
conspiracy
theories here (if that happens I hope PJ deletes the entire
thread). I am looking for more benign explanations of what
is going on and a
better understanding of what might happen
if SCO runs out of money before
these cases are resolved.
---
Anyone who has the power to make you
believe absurdities has the power to make you commit injustices. [ Reply to This | # ]
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| Authored by: mattw on Sunday, July 03 2005 @ 07:30 PM EDT |
My guess is that the judge is pre-empting SCO's tirade of whinging and whining.
He's decided something against them, he's seen the arguments, and he's made his
decision. This however, not something SCO will readily accept.
Had he not said "I don't want to see any new disputive motions before
." SCO would have buried him in requests to file over length memorandum, to
show how they're being hard done by, and how they need more time and
more code, you know, the usual.
This way, they have to focus all their efforts on finding *something*, rather
than wasting court time. The judge is probably as tired of SCO's endless
circular complaints as we are. He's now told them to shut up for a bit, so he
can let his mind recover from all their mindless drivel.[ Reply to This | # ]
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| Authored by: marbux on Sunday, July 03 2005 @ 07:59 PM EDT |
| Maybe I'm remembering things wrong (I haven't checked), but I recall Judge
Kimball ordering that no further dispositive motions would be allowed until
discovery closed (except those filed by stipulation). If that's correct,
then the deadline under discussion would most likely be the deadline for filing
the pre-trial dispositive motions.
Such deadlines are common in major
litigation, and are intended to give the judge and his staff time to deal with
the usual avalanche of dispositive motions between close of discovery and trial.
No judge wants to deal with that kind of paper dump after trial has begun. What
is far more unusual is the ruling that dispositive motions can't be filed until
discovery closes, although it isn't unheard of.
But I agree clarification
would be warranted. This is probably something that could be answered by calling
the judge's clerk. ---
Retired lawyer [ Reply to This | # ]
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| Authored by: tknarr on Sunday, July 03 2005 @ 08:59 PM EDT |
I think it's got to be the deadline by which all dispositive motions should
be filed (presumably a party could file after that but would need a really good
reason for the delay). I'm bettin Judge K thinks that SCO isn't going to be able
to file any dispositive motions that IBM can't annihilate in a matter of days,
and IBM's already got most of their motions prepped and ready and'll only need a
week or so to put any last-minute polish on them, so once discovery closes
nobody should need too long to get the last of their dispositive motions filed.
This also to a degree blocks SCO from, after close of discovery, trying to delay
too much when IBM files it's motions for summary judgement. My guess is that
everything after September 29th 2006 (deadline for reply briefs on dispositive
motions) is pro forma, Judge K doesn't expect the case to survive IBM's
dispositive motions.
Basically everything before the dispositive-motions
date looks like a deadline, and most everything after that looks like a
deadline, and I don't see Judge K switching gears unannounced for just this one
item. [ Reply to This | # ]
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| Authored by: webster on Sunday, July 03 2005 @ 09:16 PM EDT |
From the end of discovery to the July 28 deadline. That is the only thing that
makes sense. It is all deadlines.
The Kimball has set his schedule. There is now an opportunity for one of the
other courts to steal the limelight. One of them can resume due to SCO v IBM
delay and set a prompt code deadline that will steal the show. There can be a
lot of needless damage between now and the IBM trial date. It is not a sure
thing that the other judges will wait. Someone ought to ask them to expedite.
---
webster[ Reply to This | # ]
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| Authored by: rm6990 on Monday, July 04 2005 @ 04:37 AM EDT |
Anyone else notice MOG hasn't wrote any trash about the Judge's order?
Maybe it was such a blow to SCO that she couldn't possibly spin it in their
direction. :-P[ Reply to This | # ]
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| Authored by: Totosplatz on Monday, July 04 2005 @ 05:33 AM EDT |
A motion is a "Dispositive Motion" because of some matter of law, to be
decided by a judge only; or is in some way tied up with matters of fact,
possibly to be decided by a jury?
Curious to learn as
always.
---
All the best to one and all. [ Reply to This | # ]
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| Authored by: ChasF on Monday, July 04 2005 @ 06:26 PM EDT |
I've read through many of the posts so far, especially those from the legal
experts, and there is one alternative interpretation that I haven't seen
considered (beware, IANAL).
Here are my thoughts:
- Judge K.
has indicated that he doesn't think much of tSCOG's case based on the 'evidence'
(or lack thereof) presented so far.
- It is clear that the lawyers on
both sides are not working together to achieve a speedy reconciliation of the
case. (NB: I have my own personal opinions of where the fault lies, and the
reasons for this. This distraction is not relevant to the ideas expressed here,
so please skip this point.)
- Judge K. recognises that IBM want to know
exactly when to re-submit all of the PSJ motions, and also when Judge K.
thinks that they will be
appropriate.
Conclusion
The date is the
point at which Judge K. will start to read and consider any dispositive
motions - IBM or tSCOG can file them earlier, but they will sit in the
in-tray.
Bearing in mind the clear IANAL, perhaps the specialists (PJ,
AllParadox, MathFox, Marbux, to name a few) could comment on my interpretation
especially since the English-English meaning of the verb 'entertain' matches
exactly the idea I've proposed.
[ Reply to This | # ]
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| Authored by: overshoot on Tuesday, July 05 2005 @ 11:30 AM EDT |
| "End of discovery" is relative. Since the Court has set a deadline for
identifying "allegedly misused materials," nothing past that date can by even a
strained construction resolve SCOX' lack of factual allegations against
IBM.
In other words, if they don't identify anything other than what they
already have (e.g, IBM contributed RCU code to Linux and SCOX supposedly owns
RCU) then IBM can, at that point, ask for a judgment based on SCOX' claim being
legally groundless.
Of course, that's theory. Judges aren't necessarily
interested in theory. [ Reply to This | # ]
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| Authored by: GLJason on Tuesday, July 05 2005 @ 08:08 PM EDT |
| That is the deadline for filing dispositive motions. A month later is the
deadline for oppositions, a month after that is the deadline for reply briefs.
In fact, no dispostivie motions will be allowed after july 28th.
That
Judge Kimball ordered was
this:
(7) The Court's Order Dated September 30, 2004 [Docket #
313] is VACATED to the extent that it grants permission to file dispositive
motions prior to the close of discovery. The court will not entertain any
dispositive motions until after discover is complete, unless both parties
stipulate that resolution of the motion is possible prior to the close of
discovery.
So what does he mean there by 'The close of
discovery'? If we look at the schedule, there are several discovery dates that
may be it:
- January 27, 2006 - Close of All Fact Discovery Except As to
Defenses to Claims Relating to Allegedly Misused Material
- March 17, 2006 -
Close of All Remaining Discovery (i.e., Fact Discovery As to Defenses to Any
Claim Relating to Allegedly Misused Material)
- June 16, 2006 - Rebuttal
Expert Reports
- July 10, 2006 - Final Deadline for Expert Discovery
By
January 27, 2006, all fact discovery (except for defenses to claims of misused
material) must be done. At this point, SCO would have all possible material
they need to claim Linux infringes on their copyrights (IBM's 10th
counterclaim).
However, they would get until March 17th to perform discovery
relating to defenses against IBM's 8th (I think) counterclaim that they violated
IBM's copyright.
And SCO would get until June 16th to file rebuttal expert
reports. Then July 10th is the FINAL deadline for expert discovery.
Based
on this, I would say that IBM could file a motion for partial summary judgement
on the contract claims at any time after January 27th since there is no
discovery deadline after that pertaining to the contract issue, it all has to do
with misused materials. I could be wrong about this though if SCO has convinced
the judge that's what the contract issue is about.
As for other motions, I
would say either June 16th or July 10th would be the date. That gives a window
of 42 or 18 days to file dispositive motions before the deadline of July 28th.
I think that IBM's existing motions will probably only have to be tweaked and
possibly have some new exhibits added to convince the judge. [ Reply to This | # ]
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