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Stay Lifted on AutoZone as of December 31st - Updated
Friday, September 26 2008 @ 06:03 AM EDT

The stay on SCO v. AutoZone has been lifted, and the case can resume after December 31. We learn this from the minutes of the status hearing that was held on the 22nd, now listed on PACER.

I gather from the minutes that SCO asked for the stay to remain in place, which surprises me, but then again, nothing SCO does should surprise me any more.

Here are the minutes from the status conference:

81 - Filed: 09/22/2008
Entered: 09/25/2008
Status Conference
Docket Text: MINUTES OF PROCEEDINGS - Status Conference held on 9/22/2008 before Judge Robert C. Jones. Crtrm Administrator: K. Goetsch; Pla Counsel: Richard Pocker with Ryan Tidbits (General Counsel); Def Counsel: Laura Bielinski; Court Reporter/FTR #: A. Bareng; Time of Hearing: 9:20a.m.; Courtroom: 7D;

The Court inquires as to status of this case as well as the cases pending in New Jersey, Delaware, and Utah. Mr. Pocker provides a summary as to status of the cases and requests that the stay of this case continue in effect. Ms. Bielinski submits the matter on behalf of defendants.

IT IS ORDERED the stay in this case shall expire on 12/31/08 at which time the parties will be required to proceed with the prosecution of this case.

IT IS FURTHER ORDERED a proposed Discovery Plan/Scheduling Order shall be submitted forthwith upon expiration of the stay. (no image attached) (Copies have been distributed pursuant to the NEF - KXG)

They got Ryan Tibbitts' name wrong. It's not Tidbits. Mr. Pocker is one of SCO's attorneys, the one who wrote the letter to the court the other day that sounded to me like SCO was hoping to go forward. It will be intriguing to read the transcript once it is made public, but that can't happen for months. We contacted the court, and they told us 90 days, the same rule we bumped into in Utah.

This is all very odd. I find it hard to believe the judge would order the case to go forward on his own initiative. And I don't quite see how AutoZone can ask that the stay be lifted, or rather, how it could request it here and not in bankruptcy court. So unless the minutes are incorrect and it is SCO asking that it go forward, the judge seems to be the only one in the room who can have done it.

Perhaps he has had enough and rather than order it to go forward, ordered that SCO go forward right now or he's clearing the deck, so to speak, of a dead case. At least on life support. It's simply impossible to know from these notes. Very strange. Stay tuned.

There are some orders telling three of the attorneys to sign up within five days or they'll be sanctioned, but the two on Autozone's side, Doug Bridges and James Harvey, no longer work on this case because they left Alston & Bird, we learn from a Notice of Change of Attorney, although the firm still represents AutoZone. And as for Scott Gant, he left Boies Schiller a while ago (two full years ago), so we'll probably see a Notice about that in due time:

78 - Filed & Entered: 09/24/2008
Order
Docket Text: ORDER( Notice of Compliance is due by 9/29/2008 for Mr. Bridges and Mr. Harvey.) Signed by Magistrate Judge George W Foley, Jr. (Copies have been distributed pursuant to the NEF - AXM)

79 - Filed & Entered: 09/24/2008
Order
Docket Text: ORDER( Notice of Compliance is due by 9/29/2008 for Mr. Grant.) Signed by Magistrate Judge George W Foley, Jr. (Copies have been distributed pursuant to the NEF - AXM)

80 - Filed & Entered: 09/25/2008
Notice of Change of Attorney
Docket Text: NOTICE of Change of Attorney on behalf of Defendant Autozone, Inc.. (Wilmer, Nikki)

What is particularly interesting is that I don't see any of the Boies boys that we know on the list as having been there for the status hearing. Most cases don't cling like this one, for years on end in a dormant state.

And so we have three attorneys, at least one of whom, I'm guessing, was sitting with his feet up on the desk today, looking out the window and musing on life in general and on how glad he is he doesn't have to do this case any more in particular.

Richard J. Pocker, my friend Google tells me, is an Administrative Partner for Boies Schiller in the Nevada office. Here's his bio, which indicates a very interesting and accomplished career. I don't know what Boies Schiller means by that term, administrative partner, but usually it means the lawyer who keeps track of the office and keeps all the cases running smoothly, in addition to whatever cases he litigates personally.

Boies Schiller didn't send anyone from Florida. Let's put it that way.

Update: The fact that the judge ordered that the case be prosecuted as of December 31 made me think of the legal phrase "lack of prosecution", which is one way a case can be dismissed with prejudice. You can't just sue someone, get them into the court system, and then leave them there forever without finishing. So I went hunting for Nevada's rules, and here they are, Nevada Rules of Civil Procedure:

(e) Want of Prosecution. The court may in its discretion dismiss any action for want of prosecution on motion of any party or on the courtís own motion and after due notice to the parties, whenever plaintiff has failed for 2 years after action is filed to bring such action to trial. Any action heretofore or hereafter commenced shall be dismissed by the court in which the same shall have been commenced or to which it may be transferred on motion of any party, or on the courtís own motion, after due notice to the parties, unless such action is brought to trial within 5 years after the plaintiff has filed the action, except where the parties have stipulated in writing that the time may be extended. When, in any action after judgment, a motion for a new trial has been made and a new trial granted, such action shall be dismissed on motion of any party after due notice to the parties, or by the court of its own motion, if no appeal has been taken, unless such action is brought to trial within 3 years after the entry of the order granting a new trial, except when the parties have stipulated in writing that the time may be extended. When in an action after judgment, an appeal has been taken and judgment reversed with cause remanded for a new trial (or when an appeal has been taken from an order granting a new trial and such order is affirmed on appeal), the action must be dismissed by the trial court on motion of any party after due notice to the parties, or of its own motion, unless brought to trial within 3 years from the date upon which remittitur is filed by the clerk of the trial court. A dismissal under this subdivision (e) is a bar to another action upon the same claim for relief against the same defendants unless the court otherwise provides.

So there you are. The judge, on his own initiative, can say, Enough is enough. Go forward with your case and bring it to trial, or forever hold your peace about your alleged injury.


  


Stay Lifted on AutoZone as of December 31st - Updated | 71 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
OT
Authored by: Winter on Friday, September 26 2008 @ 06:51 AM EDT
Please post Off Topic comments in this thread

---
Some say the sun rises in the east, some say it rises in the west; the truth
lies probably somewhere in between.

[ Reply to This | # ]

Corrections
Authored by: Winter on Friday, September 26 2008 @ 06:52 AM EDT
Corrections here please so PJ can easily find them

---
Some say the sun rises in the east, some say it rises in the west; the truth
lies probably somewhere in between.

[ Reply to This | # ]

Newspicks
Authored by: Winter on Friday, September 26 2008 @ 06:54 AM EDT
Please quote part or all of the newspick in the title

---
Some say the sun rises in the east, some say it rises in the west; the truth
lies probably somewhere in between.

[ Reply to This | # ]

Whatever happened to
Authored by: overshoot on Friday, September 26 2008 @ 07:28 AM EDT
... the automatic stay from bankruptcy?

Or is this a case of, "my stay expires and the music starts as soon as the
automatic bankruptcy stay ends?"

[ Reply to This | # ]

The real question is...
Authored by: complex_number on Friday, September 26 2008 @ 07:34 AM EDT
If SCO is actually in existence then.
We have seen estimates that all the cash will have gone in Mid October so will
they or won't they?
If they have gone into Chapter 7 then all the litigation takes on a different
light.

I'll expect that IBM will take this as the green light to get their engines
warmed up again.



---

Ubuntu & 'apt-get' are not the answer to Life, The Universe & Everything which
is of course, "42"

[ Reply to This | # ]

Stay Lifted on AutoZone as of December 31st
Authored by: jrvalverde on Friday, September 26 2008 @ 07:40 AM EDT
I would expect several things from this:

- on one hand, SCO may try to build a new theory of infringement in Autozone (as
they hinted recently) stating that use of Linux is an infringement of SCO's (C)
because Linux contains unspecified Unixware code.

- on the other hand, SCO is struggling for life and any extra expenditures,
mostly lawyers, in pursuing a dead case like Autozone will bleed them out.

SCO may try to spin it out by asking AZ for damages for use of Linux (infringing
on Unixware), which is new as they formerly claimed wrong use of Unixware and
libraries (which the judge tossed off). Now, this might fly off, as AZ probably
has no way to prove otherwise unless they do a code audit themselves, and this
might force them to accept a settlement to save costs. SCO can say the code
infringed was not contributed by IBM and is thus not at issue in the IBM case
and try to force AZ to proceed and cope alone.

But there are two things: if they try and AZ decides to ask for discovery to do
an audit SCO costs may rocket while in bankrupcy. And AZ might argue SCO needs
not discovery (AZ do es not contribute Linux code, only uses it) but ask for all
SCO code for checking and bleed SCO and then state that the issue should be
decided after the SuSE arbitration which seeks to clear up Linux status, hence
forcing opening another front, one SCO seems to dislike (and my bet is in
Europe, and specially Switzerland they would get a beating).

Plus, AZ may refer to RH who accused SCO of slandering because they have not yet
identified infringed code and open yet another front, asking for a stay until
those two (RH and SUSE) are decided.

So, on the one hand SCO may be willing to leave a door open to pursue AZ on
fuzzy grounds trying to force them to a settlement to extort some quick and easy
bucks. But on the other hand, if AZ fights back they could be opening
potentially many other fronts and expenses, and the Suse arbitration specially
is prone to doom them by declaring any code that crossed UnitedLinux must be
GPL.

In short, they must be ambivalent, but their best strategy would be to leave the
AZ door open (by hinting it with the letter to Judge Jones) but not to pursue it
yet.

I'd guess that they must have entertained using Utah's ruling to extort AZ
(hence the curious recent letter to the judge) and possibly have bragged in
Delaware about how good a stand they now had against AZ after the Utah rulings
and how this might produce a tremendous income. If so, it would not be a
surprise that the bankrupcy court on its own would lift the stay to
"help" ensure that that "claimed income" flows to a bleeding
company that to date has shown certain lack on interest itself to speed up
exiting bankrupcy status.


---
Jose R. Valverde
EMBnet/CNB

[ Reply to This | # ]

Further speculation
Authored by: NigelWhitley on Friday, September 26 2008 @ 07:43 AM EDT

As PJ indicated, we can only guess what has caused the stay to be lifted. I'm inclined, not for the first time, to agree with PJ in suspecting the Judge may want to clear out an old case that's going nowhere, possibly urged by Autozone.

SCO may have been hoist by their own petard in putting such a positive spin on events in Utah. That talk of key findings being confirmed may have led the judge to think that the legal position is as clear as it's going to get. If that's so, the sensible thing would be to proceed and allow SCO to present its case (or not). I suspect the party pushing for resolutions would have been Autozone, so they can remove this sword of Damocles once and for all, and SCO's letter would not have hurt their position while artificially inflating SCO's (IMHO).

It's always entertaining to see more quick, quick, SCO from the former Caldera (and possible future crater in the software landscape). SCO needs a final settlement so it can launch an appeal but doesn't want to go to arbitration IIRC. SCO wants to continue its business but wants a continuance before producing a business plan. SCO's legal position has (apparently) been clarified but is not clear enough for trying the suit they previously brought against Autozone.

As usual, SCO is constant as the northern star.

------------------------
Nigel Whitley

[ Reply to This | # ]

Stay Lifted on AutoZone as of December 31st
Authored by: Anonymous on Friday, September 26 2008 @ 08:05 AM EDT
<blockquote>I find it hard to believe the judge would order the case to go
forward on his own initiative. And I don't quite see how AutoZone can ask that
the stay be lifted, or rather, how it could request it here and not in
bankruptcy court.</blockquote>

WHy? No claims against SCO are involved and so the case is not subject to the
automatic stay.

[ Reply to This | # ]

Sco dream litigation! The stay protects them, while they sue others.
Authored by: Anonymous on Friday, September 26 2008 @ 08:37 AM EDT
Sounds like SCO to me.

[ Reply to This | # ]

reasons SCO asked for the stay to remain in place ..
Authored by: emacsuser on Friday, September 26 2008 @ 09:42 AM EDT
"I gather from the minutes that SCO asked for the stay to remain in place, which surprises me, but then again, nothing SCO does should surprise me any more"

I gather that the whole strategy behind SCOlitigationTM is to keep the cases running for a long as possible, their enitre function being to create Fear Uncertainty and Doubt regarding Linux and Open Source. I guess when this as all over certain people are going to be rewarded with non-exec directorships etc ..

[ Reply to This | # ]

Stay Lifted on AutoZone as of December 31st
Authored by: Anonymous on Friday, September 26 2008 @ 10:23 AM EDT

To sum up the speculative thoughts of others. The "facts" as I far as I can recall (and have recently been refreshed on):

  1. The stay in the Autozone case was done with regards RedHat, Novell and IBM in mind.
  2. SCOG fought IBM to "PSJ's prior to court trial" stage with little to no actual proof of infringement.
  3. SCOG fought Novell to PSJ stage and a day before trial filed for bankruptcy. This put - to the majority understanding - all cases against SCOG in automatic stay.
Some curious questions about what the Judge in Autozone may or may not know:
    Does he know SCOG provided such limited evidence against IBM? Did Autozone fill him in (perhaps in chambers) of Kimball's statement at the surprising lack of evidence?
    His honor almost certainly recognizes that his trial is effectively put on hold indefinitely so long as the other cases are on hold due to the bankruptcy.
    His honor almost certainly recognizes the fact that his case is not auto-stayed because SCOG is not a defendant.
    His honor quite probably recognizes SCOG has as much as they're going to have against Autozone and the issues that were affected by Novell, Redhat and IBM are almost totaly out of the picture. I can't quite recall but if SCOG's case against Autozone is issolated to Autozone's use of SCOG libraries (and not a direct attack on Linux) then his honor may very well believe there are no further outstanding issues.
So... if it's within his authority to unstay a case without specific request from either plaintiff or defendant, then depending how much of the above he's actually aware of, it wouldn't be a surprise he did it on his own initiative.

RAS

[ Reply to This | # ]

Bankruptcy court?
Authored by: Anonymous on Friday, September 26 2008 @ 01:14 PM EDT
I find it hard to believe the judge would order the case to go forward on his own initiative. And I don't quite see how AutoZone can ask that the stay be lifted, or rather, how it could request it here and not in bankruptcy court.

What does the bankruptcy court have to do with this? The stay was imposed by the trial court. The AutoZone case is obviously not covered by the automatic stay.

[ Reply to This | # ]

Nevada state rules not applicable
Authored by: Anonymous on Friday, September 26 2008 @ 05:53 PM EDT

The state rules of civil procedure don't apply in federal court. The corresponding federal rule is Fed.R.Civ.P. 41((2)(b):

If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it. Unless the dismissal order states otherwise, a dismissal under this subdivision (b) and any dismissal not under this rule ó except one for lack of jurisdiction, improper venue, or failure to join a party under Rule 19 ó operates as an adjudication on the merits.
SCO can't, of course, fail to prosecute while the case is stayed.

[ Reply to This | # ]

(e) Want of Prosecution/Want of Parsing
Authored by: DaveJakeman on Sunday, September 28 2008 @ 09:45 AM EDT
I tried cutting out the verbiage of said rule, leaving only the time-dependent
and conditional/exceptional language. I thought that might make parsing easier.
Before I got half-way through, spots appeared before my eyes and I went dizzy.
One of the many reasons IANAL and others in the profession enjoy such gainful
employment, no doubt.

---
Monopolistic Ignominious Corporation Requiring Office $tandard Only For
Themselves

[ Reply to This | # ]

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