Message ID: 226956
Posted By: al_petrofsky
Posted On: 2005-01-22 09:15:00
Subject: SCO's Claim of Appeal dismissed

According to the docket listing in the
appeal of SCO Group v DaimlerChrysler,
Chief Judge Whitbeck dismissed SCO's
Claim of Appeal yesterday:

> 1/21/2005 6 Order: Dismissal -
> Administrative - Jurisdiction
> Panel: WCW

There's a link to a pdf of the order,
but it gives a 404 error. I assume the
order won't be available before Monday.

I also don't yet have a copy of the
Jurisdictional Checklist that SCO filed
with the appeals court on December 29,
so I don't know exactly what SCO claimed
gave it a right to appeal.

My best guess is that SCO claimed that
the December 21 order was a MCR
7.202(6)(A)(i) "final order", and the
Chief Judge disagreed and, acting alone,
dismissed the claim per MCR 7.203(F)(1).
Per MCR 7.203(F)(2), SCO would now have
until February 11 to move for
reconsideration by a three-judge panel.

There's an interesting article on
partial summary dispositions, partial
dismissals without prejudice, and "final
orders" here:

Although I think SCO has both the
reconsideration option and the option of
applying for leave to appeal (as opposed
to claiming it has a right to appeal),
both sound pretty hopeless to me.

(I also continue to think that SCO's
appeal itself would be hopeless, but
that's a separate issue from whether SCO
can at least get an appeal heard.)

Contrary to some of my previous posts, I
now think SCO won't get to argue an
appeal without first refiling the
timeliness claim and then either (a)
having it dismissed with prejudice or
(b) paying Daimler's August to December
legal costs and then going to trial on
timeliness. I imagine SCO will defer
any decision on those options until
after a ruling on IBM's motion for
summary judgment on the four Breach of
Contract claims in the IBM case.

(Interestingly, the December 21 order
only requires SCO to pay some of
Daimler's costs if SCO both refiles the
timeliness claim and "pursues" it. If
SCO refiles the timeliness claim and
immediately moves for its dismissal with
prejudice, I don't think that would
count as "pursuit".)

Message ID: 228297
Posted By: al_petrofsky
Posted On: 2005-01-25 15:04:00
Subject: Appeals court order text; citation; etc

there are now links to text and pdf
versions of Chief Judge Whitbeck's
Friday order, plus a link and an excerpt
from the June 24, 2004 case he cited,
and some long-winded commentary that
won't fit in a yahoo post.

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