Back to scofacts Daimler case file.

Disclaimer: I (Al Petrofsky) am not licensed to practice law in any state of the union. (Nor am I able to legally assist Puerto Ricans, District of Columbians, and other miscellaneous Americans. Foreigners are right out.) As they say in the blogging world, I am just "a journalist" with a notary public background. Further disclosure (including the amount of my short position in SCO's common stock) can be found at scofacts.org.

2005-02-03 Order amended

On Monday, Chief Judge Whitbeck's January 21 order dismissing SCO's Claim of Appeal was amended. The new order is identical to the old one, but with the title changed from "ORDER" to "AMENDED ORDER", and the date changed from January 21 to January 31.

My only guess as to what happened is that there was some problem in the court's delivery of the order to the parties, and it was therefore decided to reenter it with a new date to reset the clock for seeking redress. Per MCR 7.203(F)(2), SCO now has until February 21 to move for reconsideration by a panel of three judges.

2005-01-25 Claim of Appeal dismissed

On Friday, Chief Judge Whitbeck dismissed SCO's Claim of Appeal. His order says:

William C. Whitbeck, Chief Judge, acting under MCR 7.203(F)(1) and 7.216(A)(10), orders:

The claim of appeal from the December 21, 2004 order of voluntary dismissal is DISMISSED for lack of jurisdiction since this type of order is not a final order that is appealable as a matter of right in view of the fact that "... it does not resolve the merits of the remaining claims and, as such those claims are 'not barred from being resurrected on that docket at some future date.'"

I don't yet have a copy of the Jurisdictional Checklist that SCO filed with the appeals court on December 29, but I assume that SCO claimed on it that it had an appeal of right from the December 21 order because it was a MCR 7.202(6)(A)(i) "final order". In previous entries below, I also said that the December order was a "final order". Unfortunately for SCO, Chief Judge Whitbeck disagreed with us.

As the order says, the Chief Judge was acting under MCR 7.203(F)(1), which enabled him to act alone in dismissing the claim. If SCO wants a second opinion, MCR 7.203(F)(2) gives SCO until February 11 to move for reconsideration by a panel of three judges.

Assuming this dismissal stands, SCO would not have a right to appeal until it goes back to the trial court, reopens the remaining issue ("timeliness"), and has it adjudicated. The December 21 order requires that if SCO refiles and "pursues" that claim, it must first pay Daimler the costs it incurred between the August 9 and December 21 orders. However, if SCO decides to give up on that claim by refiling it and immediately moving for it to be dismissed with prejudice, I don't think that that would count as "pursuit".

If SCO did have a right to appeal from the December 21 order, it would have expired in three weeks, per MCR 7.204(A)(1)(a), but there does not appear to be any particular time limit on when SCO can refile the timeliness claim. In SCO's November 17 Motion to Stay, it stated that it preferred to defer any appeal until after a ruling in the IBM case on IBM's August 13 motion for summary judgment on SCO's four Breach of Contract claims against IBM. My guess, therefore, is that SCO will not make any decision on refiling the timeliness claim until after a ruling on that IBM motion is made. (That motion had originally been scheduled to be heard on December 9, but, after multiple extensions, the last brief on the motion is not even due until February 25, and no new date has yet been set for a hearing.)

Going back to the issue in Chief Judge Whitbeck's order: if a ruling on a summary disposition motion partially adjudicates a case, MCR 2.116(J)(2) says that "A party aggrieved by a decision of the court entered under this rule may: ... proceed to final judgment and raise errors of the court committed under this rule in an appeal taken from final judgment". If, after such a partial ruling, the parties then agree to a dismissal without prejudice of the remaing claims (as happened in this case), does that dismissal count as a MCR 7.202(6)(A)(i) "final judgment" from which a party has a right to appeal and contest the summary disposition ruling? In a December, 2002 article about that by Christine D. Oldani, a long-time Michigan attorney, she says:

Even experienced appellate practitioners are confounded by Michigan's court rule defining "final judgment" or "final order."

This rule defines a "final judgment" or "final order" in a civil case to mean the first judgment or order that disposes of all of the claims and adjudicates the rights and liabilities of all the parties. The rule is deceptively simple in form. Its application and interpretation have proven challenging.

For example, [partial summary disposition followed by stipulated dismissal without prejudice] ... Presumably, the order dismissing the case without prejudice constitutes the "final order" ... Or does it? The Michigan Court of Appeals' clerk's office may hold a different view of this situation. Experience shows that the clerk's office has disputed the fact that a "without prejudice" ruling disposes of or adjudicates anything and thus does not create a right of appeal.

The Court of Appeals' view has not been well received by appellate practitioners. ... representatives of the Michigan Court Rules Practice Committee, a committee of the State Bar of Michigan Appellate Practice Section, look forward to the opportunity to sit down with members of the court of appeals' clerk's staff to discuss the situation.

The recent ruling (June 22, 2004) that Chief Judge Whitbeck cites in his order appears to indicate that the appellate practitioners who shared Oldani's view did not get anywhere in trying to change the view of the appellate court (City of Detroit v State of Michigan, 262 Mich App 542, 545; 686 NW2d 514):

II. Jurisdiction

The parties' stipulation to dismiss the remaining claims without prejudice is not a final order that may be appealed as of right; it does not resolve the merits of the remaining claims and, as such, those claims are "not barred from being resurrected on that docket at some future date." Wickings v Arctic Enterprises, Inc, 244 Mich App 125, 136; 624 NW2d 197 (2000). The parties' stipulation to dismiss the remaining claims was clearly designed to circumvent trial procedures and court rules and obtain appellate review of one of the trial court's initial determinations without precluding further substantive proceedings on the remaining claims. This method of appealing trial court decisions piecemeal is exactly what our Supreme Court attempted to eliminate through the "final judgment" rule. MCR 7.202(6)(a)(i); McCarty & Associates, Inc v Washburn, 194 Mich App 676, 680; 488 NW2d 785 (1992).

Accordingly, this Court does not have jurisdiction over this appeal as an appeal as of right because the trial court has not entered a final order disposing of all plaintiffs' claims. And we caution practitioners and trial courts to refrain from this type of improper practice, which we do not wish to reward. But, because this appeal presents a matter of significant public interest and in the interest of judicial economy, we exercise our discretion to treat the state's appeal as on leave granted. Schultz v Auto-Owners Ins Co, 212 Mich App 199, 200 n 1; 536 NW2d 784 (1995).

I noted below that at the November 24 hearing, Daimler suggested that SCO "dismiss this case and take an appeal", but I failed to notice that Daimler had pointed out in its November 19 brief that SCO's idea of taking an appeal from a dismissal without prejudice was improper:

SCO ... requested that DCC stipulate to a stay.... DCC declined ...

In response, SCO on November 9, 2004 stated that it would move to dismiss the remaining claim without prejudice and take an appeal of the Court's order granting DCC partial summary disposition. DCC informed SCO in writing on November 12, 2004 that DCC would oppose any motion to dismiss without prejudice, particularly given SCO's failure to prosecute this action while DCC has incurred legal fees to defend it, and given SCO's transparent attempt to circumvent Michigan's prohibition against interlocutory appeals and piecemeal litigation.

SCO files an appeal

2005-01-16 The initial appeal filings

I now have the Claim of Appeal that SCO filed on December 29, and the accompanying "Statement of Ordering of Transcript" of the July 21 hearing.

To review: In April, Daimler made a MCR 2.116(C)(10) Summary Disposition motion for SCO's complaint to be dismissed in its entirety with prejudice. At the July 21 hearing, Judge Chabot's oral ruling (which became the August 9 written order) was that the majority of the complaint would be so dismissed, but the "timeliness" issue would remain. In December, both parties stipulated to a dismissal of the remaining claim, and Judge Chabot signed it on December 21. On December 29, SCO claimed its MCR 7.203(A)(1) "appeal of right" from the December 21 order, which was the MCR 7.202(6)(a)(i) "final order" of the circuit court. The wording of SCO's claim is taken directly from MCR 7.204(D)(1):

Plaintiff-Appellant The SCO Group, Inc., claims an appeal from the Stipulated Order of Dismissal Without Prejudice entered on December 21, 2004 in the Oakland County Circuit Court by Judge Rae Lee Chabot, a copy of which is attached hereto.

SCO itself stipulated to the December 21 order, and thus I assume that, although SCO's appeal is taken from that order, the issues SCO will raise will all actually be related to the August 9 summary disposition order. As it says about summary disposition in MCR 2.116(J)(2), "A party aggrieved by a decision of the court entered under this rule may: ... proceed to final judgment and raise errors of the court committed under this rule in an appeal taken from final judgment". At the November 24 hearing, it was contemplated by both parties and the court that SCO would pursue this course of action if SCO's motion to stay were denied, which it subsequently was. As Daimler's counsel stated, "if they disagree with the court's ruling from last July, they ought to either dismiss this case and take an appeal, or litigate the timeliness issue and take an appeal." SCO has now taken the first of those two suggestions.

2005-01-12 SCO appealed on December 29

SCO filed an appeal on December 29, the second-to-last day to avoid the new fast track appeals process. The case was assigned number 260036-C in the Michigan Court of Appeals, and you can get a docket listing directly from the court's website.

I don't have a copy of the initial Claim of Appeal yet, but it sounds pretty boring, anyway. Basically just "we appeal" (see MCR 7.204(D)). A "Docketing Statement" form, which must contain a "Brief statement of all issues to be raised in this appeal", is due on January 26. The Appellant Brief isn't due until February 23 (MCR 7.212(A)(1)(a)(iii)). That's the document in which SCO must actually make its argument for overturning the circuit court (see MCR 7.212(C)). The maximum length is fifty pages.

Daimler's Appellee's Brief (also 50 pages max.) will be due 5 weeks later, or March 30 (MCR 7.212(A)(2)(a)(ii)), and SCO's reply (10 pages max.) will be due 3 weeks after that, or April 20 (MCR 7.212(G)).

SCO beat the deadline to appeal (January 11) by almost two whole weeks (MCR 7.204(A)(1)(a)), but if SCO had been eager to have its appeal heard, I believe it could have waited until January 3 to file and had the case placed on the new fast track for appeals of summary disposition orders. Then all the briefs would have been done by March 7 (AO 2004-5).

2004-12-29 November hearing recording and transcript

(The latest development in this case is the dismissal entered on December 21, which is discussed on this page in the 2004-12-24 entry below this one.)

I finally have the video of the ten-minute November 24 hearing, which has its amusing moments. Take your pick of formats: 10kB html unofficial transcript, 2MB mp3 audio, 4MB ogg audio, 56MB mpeg1 video. (The recordings are made freely available on the internet by permission of Judge Chabot).

This was the hearing on SCO's Motion to Stay, which the December 6 order denied "for the reasons stated on the record at the November 24, 2004 hearing".

Judge Chabot began the hearing with a sigh and a light-hearted "Unh, you guys again". At the start of SCO's reply argument, she laughed and lamented "I knew I was gonna regret leaving that timeliness issue in there -- I should have found a way to deal with it".

Here's what she said on the record once the parties' arguments had concluded:

Okay, here's my view on this.

I guess one of the things that concerns me when I look at this is that the issue that I would be staying this action for is not my issue.

The only issue I have is timeliness. That's the only issue. I decided the other one, and I understand you don't want to spend assets appealing me right now, but I also agree with the defendants that they did not ask to be invited into court. They have a right, now that they have been, to have this issue resolved.

And I understand it's gonna go on in other forums, ... ya know, after I'm done, but ... that's the way it works. I'm not convinced that there is a reason for a stay, and I'm going to deny the motion.

Case Closed (for now)

2004-12-24

On Tuesday, December 21, Judge Chabot signed an order dismissing the remainder of SCO's complaint without prejudice, and thus closed the case.

Backing up a bit: Daimler moved on April 15 for the court to "enter an order, pursuant to MCR 2.116(C)(10), dismissing Plaintiff The SCO Group, Inc.'s Complaint in its entirety with prejudice". Judge Chabot ordered on August 9 that

Defendant DaimlerChrysler Corporation's Motion for Summary Disposition is GRANTED in part and DENIED in part, such that the Court will grant summary disposition as to all claims except for SCO's claim for breach of contract for DaimlerChrysler's alleged failure to respond to the request for certification in a timely manner

thereby dismissing most of SCO's complaint, with prejudice, as Daimler's motion had requested. The December 21 order states that:

Plaintiff The SCO Group, Inc.'s claim for breach of contract for Defendant DaimlerChrysler Corporation's alleged failure to respond to the request for certification in a timely manner is DISMISSED without prejudice.
...
THIS ORDER DISPOSES OF THE LAST PENDING CLAIM AND CLOSES THIS CASE.

Thus, most of SCO's complaint was dismissed with prejudice on August 9, and the remaining "timeliness" issue was dismissed without prejudice on December 21.

The claim that SCO says it considers to be the important one is the claim that Daimler's certification was inadequate. Because that claim was dismissed with prejudice, SCO cannot simply refile it with the circuit court. Its next recourse is with the court of appeals.

Now that a MCR 7.202(6)(a)(i) final judgment has been entered, SCO has a limited window of time in which to make a MCR 7.203(A)(1) "appeal of right" to the Court of Appeals. Per MCR 7.204(A)(1)(a), SCO has 21 days (until January 11) to file a MCR 7.204(D) Claim of Appeal. The claim is just a statement of which order is being appealed.

The MCR 7.212(C) appellant brief, which is what must contain the authorities, facts, and arguments for why the lower court should be overruled, is not due until some weeks after the claim of appeal is filed. If the claim is filed this year, the brief will be due 56 days later (no later than February 24), per MCR 7.212(A)(1)(a)(iii). However, if the claim is made in January, then the new MCR 7.203(G) rule will apply, and the appeal will be placed on the new expedited docket for appeals of summary disposition orders, and, per AO 2004-5 9(B)(1), the appellant brief will be due 28 days after the claim is filed (no later than February 8, Fat Tuesday).

Should SCO ever decide to pursue the timeliness claim, it will have to pay Daimler some cash first. The parties' briefs on SCO's recent Motion to Stay indicated that after the August order, SCO had been willing to stipulate to a dismissal of the remaining claim without prejudice and without any payment by either party to the other, and Daimler had been willing to stipulate to a dismissal with prejudice and without any payment by either party to the other. Neither side was interested in the other's offer, and thus the case continued toward trial. After Judge Chabot's December 6 order denied SCO's Motion to Stay, and also declined Daimler's request to have SCO pay Daimler's costs of opposing that motion, the parties agreed to this stipulated dismissal order, which dismisses the remaining claim without prejudice and without any payment by either party to the other, but requires that if SCO ever wants to refile the claim, it must first pay Daimler the costs Daimler incurred between the August 9 and December 21 orders.

I am still awaiting a videotape of the November 24 hearing on the Motion to Stay. The video clerk told me on Tuesday that a copy was mailed to me on December 17.

SCO moves to stay the Daimler case

2004-12-03

The opposition and reply memos are now here.

Daimler's very entertaining brief lives up to Daimler's track record of being the most consistently aggressive (and most successful, so far) of SCO's opponents. Some samples:

SCO initiated this litigation in February 2004 -- nearly a year after it brought suit against IBM. At no time did SCO suggest to this Court that its claims were unripe, or in any way related to or dependent upon the outcome of SCO's litigation against IBM. It is only now that its remaining claim about timeliness is about to proceed to trial -- without SCO meeting a single Court-ordered deadline or discovery obligation -- that SCO comes before this Court seeking a stay.
....
In other words, SCO wants to see how its bite at the IBM apple turns out before it expends any resources on the claims it has already forced DCC to defend. Courts, however, do not grant stays to promote this kind of litigation tactic -- sue, force the defendant to expend resouces, then stay the case while the plaintiff decides if it is really "worth it" to pursue the case at some unknown later date.

In conclusion, Daimler states that this motion is so ridiculous that Judge Chabot should not only deny it, but also order SCO to pay the cost of preparing the opposition memo:

The context of SCO's motion, the lack of legal authority to support it, and the absence of any plausible reason for tying the adjudication of this case to the outcome of the IBM litigation reveal SCO's motion for what it is -- a naked effort to manipulate the Court system, and DCC, for SCO's own benefit. DCC therefore respectfully requests that the Court deny SCO's Motion For Stay and award DCC its fees and costs incurred in preparing this Opposition.

I can't wait to find out whether Judge Chabot did that. Alas, I know it will probably be a couple weeks yet before I have the video of the hearing, or the written version of any order that was made at it.

At one point (page 3 footnote 2), I think Daimler lost its head in the excitement when it claimed that, in Michigan, a case cannot be stayed pending another case if there is even one respect in which the two cases are not identical. I haven't looked at the cases each side cites, but SCO seems to do a good job of jumping on that mistake. Of course, Daimler's argument can stand without that point, and it seems that SCO still couldn't find a single case to cite in which the plaintiff successfully sought a stay.

SCO admits by silence that it has indeed missed all the scheduled deadlines in the case, but it blames the whole existence of the case in the first place on Daimler's tardiness.

That would be the same tardiness that SCO wants to be excused from proving at trial.

2004-11-30 update

I now have written confirmation that the motion to stay was heard on November 24, and was denied. In a couple of days I should have the opposition and reply briefs that the parties submitted before the hearing. The docket listing includes the entry "11/24/2004 MOTION TO STAY PROCEEDINGS DENIED". Those five words are likely to be the only record of the hearing and Judge Chabot's decision for a couple weeks. One can see on the docket that after the July hearing, it was almost two weeks before a transcript was filed, two and a half weeks before any written order was entered, and a whopping two and a half months before the entry of the last order made at the hearing (the denial of Daimler's motion to strike). I hope things go a little more quickly this time.

2004-11-29

On Wednesday, November 17, SCO moved to stay its suit against DaimlerChrysler indefinitely, pending the contract claims in the IBM case.

The case had been scheduled to go to trial on Tuesday, January 11, 2005. When SCO made this motion to stay, SCO was already two weeks late in filing its lists of witnesses and exhibits that it would use at the trial. The August 25 scheduling order had set the due date for those to be October 27, and Daimler had complied (witness list, exhibit list).

Amusingly, the day after SCO made the motion, the trial date was not postponed, but actually moved up two business days (see the docket listing), to Friday, January 7, at 08:30 -0500 (EST). I imagine this was unrelated to the motion, and was just the result of someone making modest rearrangements in Judge Chabot's January calendar.

SCO requested that the motion be heard on November 24, the day before Thanksgiving (see the notice). I don't think that happened, but I'm not yet certain. An email from the clerk's office this afternoon stated "The docket doesn't list a hearing yet for the motion to stay. But th [sic] DaimlerChrysler filed opposition to mtn for stay." That opposition brief should be on its way to me by snail mail. I will continue to attempt to confirm whether or not a hearing occurred, and, if so, to obtain a videotape and transcript. All proceedings in Judge Chabot's courtroom are normally videotaped, and she approved (see here and here) the internet distribution of the first hearing's video (20 min. 110 MB mpeg1), thus I don't expect any trouble getting recordings of future public proceedings. The "Case Evaluation", however, which is currently scheduled for Tuesday, November 30, is a closed-door proceeding, and no video or transcript will be forthcoming. (Case Evaluations are a fast, cheap alternative to trials, held in a single day before a panel of three evaluators rather than a judge. Their decision is only binding if both parties accept it. For more information, see MCR 2.403 and the webpage of the court's Case Evaluation Department.)

In SCO's motion to stay (the full text is below), it argues that the IBM case involves "the interpretation of a license agreement between SCO and IBM that is substantially similar to the license agreement in the case before this Court", and that "if SCO's interpretation of the license agreement is rejected by the court in the IBM case, SCO may choose never to litigate the sufficiency and timeliness of certification prepared by DCX and other end users of the UNIX operating system".

In paragraph 12, SCO intimates that, if it doesn't drop this case on account of adverse results in the IBM case, then it already plans to appeal, after the trial, Judge Chabot's August 9 order that held that the only possible way in which Daimler's certification of contract compliance may have fallen short was in its timeliness.

(One other note: in paragraph 6, SCO says that "No hearing date has been set" on IBM's motion for summary judgment on SCO's contract claims, "but it is likely that they will be heard sometime early next year". I believe SCO is technically incorrect there, because a hearing date of December 9 has been set for that motion. However, that date was chosen back in August, and in October, the briefing schedule was extended into January, and thus I assume that the December date will eventually be vacated, and I agree with SCO that "it is likely that they will be heard sometime early next year".)

[The following is taken from revision 1.3 of the text-encoded version posted at scofacts.org of this document image.
Please notify al@scofacts.org of any discrepancies between the text and the image.]

RECEIVED FOR FILING
OAKLAND COUNTY CLERK

2004 NOV 17 P 4:04

BY:  s/ [illegible]
-------------------
DEPUTY COUNTY CLERK


STATE OF MICHIGAN
IN THE CIRCUIT COURT FOR THE COUNTY OF OAKLAND

THE SCO GROUP, INC.,
A Delaware corporation,

 Plaintiff,

vs.

DAIMLERCHRYSLER CORPORATION,
a Delaware corporation,

 Defendant.

Case No. 2004-056587-CK
Hon. Rae Lee Chabot

Hearing Date: November 24, 2004

-----------------------------------------------------
JOEL H. SERLIN (P20224)
BARRY M. ROSENBAUM (P26487)
Attorneys for Plaintiff
2000 Town Center, Suite 1500
Southfield, MI 48075
(248) 353-7620

JAMES P. FEENEY (P1335)
THOMAS S. BISHOFF (P53753)
STEPHEN L. TUPPER (P53918)
Attorney for Defendants
39577 Woodward Avenue, Ste. 300
Bloomfield Hills, MI 48304-2820
(248)203-0700

-----------------------------------------------------


MOTION FOR STAY OF PROCEEDINGS
------------------------------

NOW COMES Plaintiff The SCO Group, Inc., by and through its attorneys,
Seyburn, Kahn, Binn, Bess & Serlin, P.C., and move this Honorable
Court to stay the proceedings in this matter for a period of time to
be determined by the Court for the following stated reasons:

1.  On March 3, 2004, Plaintiff The SCO Group, Inc. ("SCO") filed a
Complaint in this matter alleging that Defendant DaimlerChrysler
Corporation ("DCX") had breached a license agreement between the
parties, governing the use of SCO's UNIX computer operating system.

				  1



2.  Specifically, SCO alleged that DCX, as an end-user, had failed to
comply with the agreement's certification requirements governing its
use of the UNIX operating system, by failing to respond to SCO's
request that DCX so certify its compliance with the terms of the
license agreement between the parties.

3.  On August 9, 2004, this Court, pursuant to a motion filed by DCX,
entered an Order Granting in Part and Denying in Part Defendant's
Motion for Summary Disposition ("Order"), holding that DCX had
satisfied its certification obligation, but finding an issue of fact
as to whether DCX had been timely in serving its certification upon
SCO.

4.  The remaining claim is scheduled for case evaluation on November
30, 2004 and trial on January 11, 2005.

5.  SCO is currently engaged in litigation in the United States
District court for the District of Utah with International Business
Machines Corporation ("IBM") over the interpretaion of a license
agreement between SCO and IBM that is substantially similar to the
license agreement in the case before this Court.  That case is SCO
Group, Inc v International Business Machines Corporation,
No. 2:03CV294.

6.  IBM has argued that the license agreements, contrary to their
express terms, protect against only the literal copying of UNIX source
code, while SCO has argued that the protections sweep broader, to
protect, among other things, all modifications and derivatives
prepared by licensees based on the original UNIX source code.  IBM has
filed a motion for summary judgment based on its interpretation of the
license agreements, which motion is currently being briefed.  No
hearing date has been set on the motions, but it is likely that they
will be heard sometime early next year.

				  2



7.  A ruling in the IBM case will provide important guidance
concerning the obligations of end users like DCX under the
certification requirement at issue here.  Specifically, as noted
above, a resolution of the contract-interpretaion issue currently
pending in the IBM case will permit all parties to know with some
certainty the scope of the obligations and restrictions under the
license agreements to which licensees must certify their compliance.

8.  Given this Court's narrow interpretaion of the certification
requirement contained in the license agreement, it may no longer be
productive for SCO to attempt to gather information from UNIX end
users by means of requests for certification until a ruling on the
contract issue in the IBM case is forthcoming.

9.  Moreover, if SCO's interpretation of the license agreement is
rejected by the court in the IBM case, SCO may choose never to
litigate the sufficiency and timeliness of certification prepared by
DCX and other end users of the UNIX operating system.

10.  SCO is engaged in two other diputes relating to its UNIX rights in
federal court in Nevada and Delaware.  Both of these cases have been
stayed by the respective federal judges pending the resolution of the
key issues in the IBM case.  Copies of the stay orders from these
Courts are attached hereto.

11.  In the two cases that have been stayed, SCO has been filing
court-ordered periodic reports on the progress of the IBM case.

12.  It would be a waste of valuable judicial and attorney resources
to proceed with a case evaluation and a trial on SCO's remaining
damage claim as to timeliness, followed by an appeal of this Court's
order regarding the sufficiency of DCX's certification, when these
issues may become moot upon the conclusion of the pending summary
judgment proceedings in the IBM case.

				  3



13.  Courts have the inherent power to control their dockets, and a
motion for stay is directed to the court's sound discretion.  Amersham
International PLC v Corning Glass Works, 618 F Supp 507, 509 (ED Mich,
1984).

14.  SCO requested that DCX consent to a stay of proceedings in
October, 2004, but DCX indicated it would not consent to a stay; DCX
has further stated that if SCO does not intend to pursue the claim as
to the timeliness of DCX's certification at this time, then it insists
that SCO dismiss its remaining claim with prejudice.

WHEREFORE, Plaintiff The SCO group, Inc. respectfully requests that
this Honorable Court stay the proceedings in this matter for a period
of time to be set by the Court.


Respectfully submitted,

SEYBURN, KAHN, GINN, BESS AND SERLIN, P.C.

By: s/ Barry M. Rosenbaum
   ----------------------
   Barry M. Rosenbaum (P26487)
   Attorneys for Plaintiff
   2000 Town Center, Suite 1500
   Southfield, MI 48075-1195
   (248) 353-7620

Dated: November 17, 2004
Steven I. Froot, Esq.
Co-Counsel for Plaintiff
Boies, Schiller & Flexner
570 Lexington Avenue, 16th Floor
New York, NY 10022
(212)-446-0230

Mark J. Heise, Esq.
Co-Counsel for Plaintiff
Boies, Schiller & Flexner LLP
Bank of America Tower
100 South East 2nd Street, Ste. 2800
Miami, FL 33131
(305) 539-8400


2004BMRnmh(10098)=Q:\s014198\motion for stay of proceedings 002.doc=1117

				  4

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