Like the severed hand of the zombie reaching for a weapon, SCOG has asked a court to let it proceed with its claims against IBM while IBM’s claims against SCOG remain stayed:
“On September 14, 2007, in light of Judge Kimball’s summary judgment rulings in the Novell Litigation, SCO filed for Chapter 11 bankruptcy protection in the United States Bankruptcy Court for the District of Delaware. On that same date, SCO also filed a Notice of Filing for Bankruptcy, informing Judge Kimball of SCO’s bankruptcy petition and the automatic stay of any judicial proceedings against SCO pursuant to the Bankruptcy Statute. (Docket No. 1080.) On September 20, 2007, acknowledging “the automatic stay imposed by 11 U.S.C. § 362(a)(1),” Judge Kimball ordered the temporary administrative closure of this action. (Docket No. 1081.)
…
While Judge Kimball issued an order administratively closing the entire case during the pendency of the statutory stay, the stay applies only to proceedings against SCO, and not to SCO’s claims against IBM and others. SCO thus submits that it would be proper and efficient for the Court now to resolve the pending motions that could allow SCO to pursue claims that are not dependent on the outcome of the Novell Litigation. The summary judgment motions and other applications pending in this case include the following:
1. SCO’s Motion for Partial Summary Judgment on SCO’s Third Cause of Action, For Breach of Contract, dated September 25, 2006, Docket No. 775.
2. SCO’s Motion for Summary Judgment on IBM’s Second, Third, Fourth, and Fifth Counterclaims, dated September 25, 2006, Docket No. 776.
3. SCO’s Motion for Summary Judgment on IBM’s Sixth, Seventh, and Eighth Counterclaims, dated September 25, 2006, Docket No. 777.
4. IBM’s Motion for Summary Judgment on SCO’s Contract Claims (SCO’s First, Second, Third and Fourth Causes of Action), dated September 25, 2006, Docket No. 780.
5. IBM’s Motion for Summary Judgment on SCO’s Copyright Claims (SCO’s Fifth Cause of Action), dated September 25, 2006, Docket No. 781.
6. IBM’s Motion for Summary Judgment on SCO’s Unfair Competition Claim (SCO’s Sixth Cause of Action), dated September 25, 2006, Docket No. 782.
7. IBM’s Motion for Summary Judgment on SCO’s Interference Claims (SCO’s Seventh, Eighth, and Ninth Causes of Action), dated September 25, 2006, Docket No. 783.
8. IBM’s Motion for Summary Judgment on Its Claim for Copyright Infringement (IBM’s Eighth Counterclaim), dated September 25, 2006, Docket No. 784.
9. IBM’s Motion for Summary Judgment on Its Claim for Declaratory Judgment of Non-Infringement (IBM’s Tenth Counterclaim), dated September 25, 2006, Docket No. 785.
10. SCO’s Motion for Reconsideration of the Order Overruling Objections to the Magistrate Court’s Granting of IBM’s Motion in Part to Limit Claims, dated December 13, 2006, Docket No. 897.
11. SCO’s Objections to Magistrate Court’s Order Denying SCO’s Motion for Relief for IBM’s Spoliation of Evidence, dated March 16, 2007, Docket No. 995.
12. SCO’s Objections to the Magistrate Court’s Order on IBM’s Motion to Confine, dated January 9, 2007, Docket No. 916.
SCO believes that the IBM summary judgment motions designated Docket Nos. 782 and 783 do not depend on the outcome of the Novell Litigation and are not stayed because they are directed at SCO’s claims for Unfair Competition and Tortious Interference (the Sixth, Seventh, Eighth, and Ninth Causes of Action in SCO’s Second Amended Complaint). SCO thus respectfully requests the Court to rule on those and possibly other motions so that SCO may pursue those claims.
Based on the position IBM took in its status report after the Novell summary judgment rulings that were subsequently reversed, SCO expects that IBM will argue that the Novell Final Judgment, if affirmed, resolves all claims against SCO, including its Unfair Competition and Tortious Interference Claims. (See IBM’s Memorandum in Response to the Court’s Order of August 10, 2007, at 3-4 (Docket No. 1078) (arguing that the Novell summary judgment decision “foreclosed” these claims).) Given the likely dispute over the effect of the Novell Litigation, the complexity of the claims and pending motions in this action, and the possible dispute over the scope of the bankruptcy stay, SCO respectfully submits that the Court and the parties will be best served by holding a status conference for the Court to consider a schedule for hearings on motions and for a trial in this matter.”
SCOG is clearly mischaracterising the situation. If anything the result of SCOG v Novell resolves all claims against IBM by SCOG, not the other way around. SCOG has no standing to sue IBM, Novell’s licensee. The Asset Purchase Agreement gave Novell the power to order SCOG to leave IBM alone.
While technically SCOG is correct that they are free to sue IBM the judge in SCOG v IBM is very likely to see the fake bankruptcy ( in 2007) was a tactic to use the automatic stay as a weapon in the case and disallow resumption. After all, SCOG could have made this motion years ago to keep things rolling. If anything SCOG’s position is worse than it was in 2007 both legally and financially. I am amazed that a “trustee” for SCOG in bankruptcy should seek to squander the dwindling resources of SCOG on futile litigation. It seems the lawyers are rioting and looting the dying SCOG.
see the complete story on GROKLAW.
SCOG v World was started in 2003 and here we are in 2010 with no resolution.
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