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IBM Seeks Change of Venue in SCO Suit

IBM Seeks Change of Venue in SCO Suit

(March 31, 2003) - IBM has filed a so-called "notice of removal" to get the controversial billion-dollar suit filed against it by the SCO Group and its fancy lawyers Boies, Schiller & Flexner out of the state court in Utah where they lodged it. 

As every child over three must know by now, IBM has been accused of misappropriating SCO's Unix trade secrets and giving them to Linux.

IBM wants the case, which has already been assigned to state judge Leslie Lewis, kicked upstairs to Utah's federal court.  The tactic buys IBM a few more days to answer the broadly written, fact-shy SCO suit. According to state rules, IBM had until Thursday March 27 to respond to the SCO suit. Now it may get another five or 10 days, the Boies people said. 

Simply making a motion for a change of venue is of course no guarantee that IBM will have its way, although IBM seems to regard it as automatic. Boies will doubtless resist since it handpicked the state court, but a move to the district court still may not lose SCO its home-court advantage. 

What exactly the move buys IBM strategically is unclear at this point. It may be thinking of widening the case to a discussion of patents and copyrights hoping to catch SCO out.

The reason IBM is using to justify the move is a legal concept called "diversity", called into play when companies live in different states. It must have been tickled to point out to the district court that the Boies operation apparently nodded off in writing its complaint and identified IBM as a Delaware corporation. It's not. It's a New York corporation.  The mistake gave IBM lawyers, who are, by the way in this case, the mighty Cravath, Swaine & Moore, where Boies spent most of his career before going off on his own, the opportunity to regurgitate some law, make a reference to "sham or fraudulent" devices being used to prevent removal, and self-righteously note that "an incorrect allegation of corporate citizenship cannot defeat diversity jurisdiction." Ah, the judge's coloring book is being tinted for him already.

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Maureen O'Gara the most read technology reporter for the past 20 years, is the Cloud Computing and Virtualization News Desk editor of SYS-CON Media. She is the publisher of famous "Billygrams" and the editor-in-chief of "Client/Server News" for more than a decade. One of the most respected technology reporters in the business, Maureen can be reached by email at maureen(at)sys-con.com or paperboy(at)g2news.com, and by phone at 516 759-7025. Twitter: @MaureenOGara

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