IBM's Objections and Corrections to SCO's "Proposed Partial Judgment" ~pj

The Hon. David Nuffer, now presiding over this farce SCO insists on playing out, ordered SCO to file a list of which of its claims, if any, it believes survived SCO's massive loss to Novell. And it did file, but IBM noticed that SCO attached to its Statement a proposed judgment [PDF] for the judge to sign, trickily titled "Proposed Judgment Dismissing SCO's Claims Mooted by the Final Judgment in SCO v. Novell."

And 'mooted', IBM points out, is hardly the right word.

IBM calmly and cooly presents the court with an alternative version [PDF] of a proposed judgment correcting that and other SCO errors, pointing out SCO isn't named SCO any more, for one thing, and that these claims are not *mooted* -- they were decided on their merits and it would like that wording fixed so SCO doesn't get to sue IBM over them ever again.

I totally missed that sneaky title, but IBM's lawyers at Cravath, Swaine & Moore miss absolutely nothing.

IBM doesn't mind if SCO dismisses Counts I-V, VIII, and SCO's copyright infringement claims, with prejudice, as SCO proposes, IBM tells the court, and it also doesn't object to SCO dismissing certain parts of Count VI with prejudice. But it absolutely does object to dismissing any claims as allegedly moot, because "they are barred under principles of issue preclusion (or collateral estoppel)." The Novell case decided certain elements of these SCO claims on the merits, IBM points out, and "SCO is precluded from relitigating them against IBM." Here's what issue preclusion means. And here's what collateral estoppel means. They both mean that SCO can't hide behind a tree and then leap out and tackle IBM again until the end of time. As in never.

And as for SCO's claim that the Novell judgment "has no bearing" on Count VII, IX and part of the Project Monterey claim, IBM disagrees and will file a summary judgment motion shortly. And that's not all.