MSS2
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Authored by MSS2 on Feb 29, 2016 17:02:11 GMT
Bets on whether they file an appeal?
And, what's the time limit on when they have to do so?
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Ian Al
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Authored by Ian Al on Mar 1, 2016 8:28:11 GMT
Bets on whether they file an appeal? And, what's the time limit on when they have to do so? Until the twelfth of never, or no earlier that a month.
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Authored by cpeterson on Mar 1, 2016 16:09:01 GMT
MSS2 asked: Per FRAP (Federal Rules of Appellate Procedure) and Tenth Circuit Rules, Rule 4(a)(1)(A): So, the clock hasn't started yet - that happens when Judge Nuffer dockets the certification - and then the appeal filing goes to the district court first, so we'll keep watching the Utah docket. I wrote before I read, so I got that one wrong. The appeal filing does go to the district court clerk, but not into the docket. We have an example of how this works from SCO's appeal after their 2010 loss in SCO v. Novell. Of particular interest there is the first section, the Docketing Statement. It's a form from the Appeals Court, and has a section to fill out about timeliness of the appeal. In that case, Judge Stewart's final judgement was dated June 10, 2010; 30 days from that date, July 10th, was a Saturday, and SCO filed their notice of appeal on the Wednesday prior, July 7th. Then, they finished up the filing with all the necessary supporting materials 14 days later, on the 21st, in accordance with FRAP local rule 3.4(A) So Judge Nuffer's certification will be the last thing we see in the Utah docket.
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nsomos
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Authored by nsomos on Mar 1, 2016 17:43:20 GMT
So now we have to wait for Judge to issue their final order, and then until we actually get an appeal by SCOG (I hope not!!!) or until the 30 days from final order is issued. The only way an appeal would make sense is if the Counsel for The SCO Group, had idle and unbillable time on their hands to burn. Maybe if there were some junior staff coming on board that lacked some experience, they could then be thrown at the appeal to get some of that experience without actually risking a paying customer. But I really really hope that this will finally die and go away. Few cases deserve that more than this one.
And when it finally does get put down with no more hope of appeal, I hope that PJ will have a nice red dress to wear. It would be so great to see a photo of that sometime. (If necessary for privacy, perhaps just from the neck down. I would still enjoy seeing that.)
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swmech
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Authored by swmech on Mar 1, 2016 20:15:59 GMT
But I really really hope that this will finally die and go away. Few cases deserve that more than this one. IMNSHO what it REALLY deserves is for the Nazgul to press their Lanham Act counterclaim (as MSS2 mentioned a few messages back). Some sort of disincentive for this behavior in the future would be A Good Thing. I'd enjoy a picture of the red dress, too - but would absolutely love to read one final commentary from her wrapping things up. My guess is that we won't see that, but it doesn't stop me from wishing.
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squib
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Authored by squib on Mar 1, 2016 20:40:13 GMT
Yes, I agree with you. Whilst I don't think for a moment PJ would won’t to say in her retirement: “See I told you so!” It would be nice to hear her utter a few words for closure. Gosh, this has been a long, long time in coming. We need closure. PJ... you don't have to come back into the thick of things (apple back-doors and everything) rather just say something to encourage those, that think that right over comes might, in the end -if we fight for it.
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Authored by cpeterson on Mar 2, 2016 16:08:02 GMT
CERTIFIED!
Not the end, but it's coming closer. Docket # 1163: " All proceedings in this matter are stayed pending the disposition of SCO's appeal or the expiration of SCO's time for appeal, if no appeal is filed." When I think of "stayed", i imagine the matter to still be open. So I wish I had PJ or a person of competent opinion to tell me how that fits with the subsequent CLERK'S JUDGMENT: Docket # 1164: "judgment is entered in favor of the defendant"? I guess this is to condition the case properly to be accepted by the 10th Circuit Court of Appeals, but it seems odd that the clerk would say "judgment is entered" when the judge said "proceedings [...] are stayed". Or perhaps this purposely omits the proceedings between the counterclaim-plaintiff and counterclaim-defendant. I don't know.
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swmech
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Authored by swmech on Mar 2, 2016 19:52:24 GMT
I'm not making any sense out of that dichotomy either... (<whimper> PJ...?) Also, somebody with more legal sense than I (and probably more objectivity than I) should update the Wikipedia page. It's a bit out of date.
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charlieturner
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Above ground, and still breathing.
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Authored by charlieturner on Mar 2, 2016 23:13:00 GMT
If there is an appeal hearing in Denver, I will do my best to find a way to travel there, and attend if I can. Having done it once, I would dearly love to do it again, if I can find a way to swing it.
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Authored by wol on Mar 2, 2016 23:42:41 GMT
What it all means imho - "All proceedings in this matter are stayed pending the disposition of SCO's appeal" ...
Is that the next step in the case is SCO's appeal. There is no point in doing anything else until the outcome of the appeal is known, therefore Judge Nuffer is not going to do anything until he knows.
There are three outcomes that are legally identical - (1) SCOG does nothing and the time limit expires, or (2) SCOG appeals and the Appeals Court doesn't take it, or (3) SCOG appeals, the Appeals Court takes the case, and then decides there is nothing there. At this point Judge Nuffer presumably just shuts everything down absent a "tear the veil" appeal from IBM.
IFF SCOG appeal, and win, then everything changes and Judge Nuffer will have to deal with the new circumstances. But I think that as far as he is concerned it's all over, so he just wants SCOG's appeal (if any) to fail as quickly as possible so he can put a stake through the heart of the case.
Cheers, Wol
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swmech
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Authored by swmech on Mar 3, 2016 20:19:13 GMT
Thanks, Wol.
I'm assuming that the "tear the veil" appeal would be the Lanham Act counterclaims MSS2 mentioned? Does anybody know how often those claims are pursued to that degree?
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Authored by sk43999 on Mar 3, 2016 23:16:50 GMT
"... SCOG appeals and the Appeals Court doesn't take it ..."
My understanding is that, unless something is procedurally wrong, the Appeals Court must take the case.
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Authored by wol on Mar 4, 2016 13:01:40 GMT
"... SCOG appeals and the Appeals Court doesn't take it ..." My understanding is that, unless something is procedurally wrong, the Appeals Court must take the case. What do you mean by "take the case"? If everybody did that, the appeals court would probably still be finishing off its case load from the century before last ... :-) The Judge can boot the case up to the Appeals Court if he thinks there is something the Court should hear. The Judge can give the loser permission to boot the case up to the Appeals Court - this tells the Appeals Court that the Judge thinks a second opinion might be useful. The Judge can decline permission to boot the case up to the Appeals Court, but the loser has the right to go to the Appeals Court directly, bypassing the Judge. This tells the Appeals Court that either the Judge thinks the case is hopeless, or the Judge is prejudiced. The Appeals Court then has to take the case onto its docket. Most cases never get that far. If the Appeals Court declines to hear the case (ie refuses to take it), then the loser can either take it on the chin or boot it up the next level, where it stands even less of a chance. Cheers, Wol
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swmech
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Authored by swmech on Mar 4, 2016 20:25:48 GMT
One wonders, then (and this isn't questioning you at all), how SCO managed to make it this far with appeals. <shrug>
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Authored by sk43999 on Mar 5, 2016 3:06:02 GMT
www.uscourts.gov/about-federal-courts/types-cases/appeals"The losing party in a decision by a trial court in the federal courts normally is ENTITLED to appeal the decision to a federal court of appeals." The only catch here is that, while we have a final judgment r.e. SCO's claims, we do not have final judgment r.e. IBM's counterclaims. The Appeals Court has to be convinced that it is OK for SCO to appeal now. (Note: the above is in reference to civil cases. Criminal cases - yes, there are circumstances where a Judge's approval is needed and wol's description is more applicable.)
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