decoration decoration
Stories

GROKLAW
When you want to know more...
decoration
For layout only
Home
Archives
Site Map
Search
About Groklaw
Awards
Legal Research
Timelines
ApplevSamsung
ApplevSamsung p.2
ArchiveExplorer
Autozone
Bilski
Cases
Cast: Lawyers
Comes v. MS
Contracts/Documents
Courts
DRM
Gordon v MS
GPL
Grokdoc
HTML How To
IPI v RH
IV v. Google
Legal Docs
Lodsys
MS Litigations
MSvB&N
News Picks
Novell v. MS
Novell-MS Deal
ODF/OOXML
OOXML Appeals
OraclevGoogle
Patents
ProjectMonterey
Psystar
Quote Database
Red Hat v SCO
Salus Book
SCEA v Hotz
SCO Appeals
SCO Bankruptcy
SCO Financials
SCO Overview
SCO v IBM
SCO v Novell
SCO:Soup2Nuts
SCOsource
Sean Daly
Software Patents
Switch to Linux
Transcripts
Unix Books
Your contributions keep Groklaw going.
To donate to Groklaw 2.0:

Groklaw Gear

Click here to send an email to the editor of this weblog.


Contact PJ

Click here to email PJ. You won't find me on Facebook Donate Paypal


User Functions

Username:

Password:

Don't have an account yet? Sign up as a New User

No Legal Advice

The information on Groklaw is not intended to constitute legal advice. While Mark is a lawyer and he has asked other lawyers and law students to contribute articles, all of these articles are offered to help educate, not to provide specific legal advice. They are not your lawyers.

Here's Groklaw's comments policy.


What's New

STORIES
No new stories

COMMENTS last 48 hrs
No new comments


Sponsors

Hosting:
hosted by ibiblio

On servers donated to ibiblio by AMD.

Webmaster
SCO Begs Novell Court to Stay Novell's PSJ/PI Motion Until IBM is Decided
Thursday, October 05 2006 @ 12:12 AM EDT

Heavens. End game is turning out to be fun. SCO now begs the court to postpone its bankruptcy by... no, wait, they didn't say that. They ask for a stay on the Novell motion for partial summary judgment or preliminary injunction until after the IBM case goes to trial and is decided. They do seem to be in a bit of a tizzy.

SCO got used to IBM's gentlemenly ways. Now they are up against Novell's pit bull lawyers, who think of everything, and don't care for nuttin', street fighters in the very best sense of the term, and SCO, who would certainly do the same if the tables were turned and they had the ammo, is screaming bloody murder and asking the court to make them stop. Or wait, so SCO can catch its breath and not get beat to a pulp.

They frantically tell the court they'd like to put all this Novell stuff on hold until after the trial in IBM is over. (Like they'll ever make it to trial.) Too long to wait? Then in the alternative, they have a menu of other smaller delays. Like 3 months to answer Novell's motion. Or more time to respond to Novell's discovery requests. Heh heh. Or six months more discovery. Or they'd like a preliminary injunction too, 'cause, um, 'cause, 'cause Novell waited too long to ask for this relief, this estocada.

I love this incomplete sentence: "Novell moves in the alternative for a preliminary injunction on grounds that Novell could have raised in this litigation any time in the last two years." Yes, a panic indeed. SCO would like to just keep parading around the arena FUDing on and on forever and ever, and skip the coup de gr‚ce part, and here comes Novell, sword in hand. Eek. Mommy, Mommy, save me. No fair! Novell hit me. Novell is trying to win.

Don't you just love it when bullies get theirs? They always act like such weanies when the tables are turned and somebody stronger than they are walks into the playground. I love that part.

Without a stay, I guess they figure they won't make it to trial with IBM, and then their most cherished dreams of IBM's money up to their eyeballs will never come true. And then the poor bullies won't be able to charge a toll on innocent Linux users, or get to shut down their businesses using the DMCA and all their cherished cut-throat plans die.

If you wish to get SCO's attention, do something that says, Hand over your money. SCO whines that Novell timed this to interfere with SCO's ability to respond to IBM's numerous motions, and if Novell is so worried about SCO's financial worth, why did it file the arbitration? That added considerable expense to SCO. (Hint to SCO: Because they want you to lose this exact minute? You think?) Novell has gotten SCO's attention in a big way.

All joking and gloating aside, here's SCO's Motion for Expedited Stay or Continuance to Respond to Novell's Motion for Partial Summary Judgment or Preliminary Injunction, and to Extend Fact Discovery [PDF]. If I can make myself be serious for a minute, here's what SCO asks the court for:

SCO asks the Court: (1) to stay any briefing or hearing on Novellís Motion until after the end of the trial in the SCO v. IBM litigation (scheduled to begin in February 2007), or in the alternative, to grant SCO an extension of ninety (90) days to file its opposition to Novellís Motion; (2) to extend the period of fact discovery in this case for six (6) months, from November 1, 2006; and (3) to grant SCO an extension of ninety (90) days to respond to numerous recent discovery requests promulgated on SCO by Novell.

I could watch this part forever. Now that I think of it, I'm sure SCO would ask for a forever continuance if it thought it had a prayer of getting it. I must say, for a group of fellows who told us they are due billions, they don't seem in much of a hurry to collect.

****************************************

Brent O. Hatch (5715)
HATCH, JAMES & DODGE, PC
[address]

Robert Silver (admitted pro hac vice)
Edward Normand (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address]

Stephen N. Zack (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address]

Stuart Singer (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address]

Attorneys for Plaintiff, The SCO Group, Inc.

_________________________

THE SCO GROUP, INC.,
a Delaware corporation,

Plaintiff, vs.

NOVELL, INC.,
a Delaware corporation,

Defendant.

________________________

SCOíS MOTION FOR EXPEDITED STAY
OR CONTINUANCE TO RESPOND TO
NOVELLíS MOTION FOR PARTIAL
SUMMARY JUDGMENT OR
PRELIMINARY INJUNCTION, AND TO
EXTEND FACT DISCOVERY

Civil No.: 2:04CV00139

Judge: Dale A. Kimball

Plaintiff, The SCO Group, Inc. (ďSCOĒ), respectfully moves the Court to act, on an expedited basis, to stay, or for a continuance to respond to, Novellís Motion for Partial Summary Judgment or Preliminary Injunction dated September 29, 2006, and to extend fact discovery.

SCO asks the Court: (1) to stay any briefing or hearing on Novellís Motion until after the end of the trial in the SCO v. IBM litigation (scheduled to begin in February 2007), or in the alternative, to grant SCO an extension of ninety (90) days to file its opposition to Novellís Motion; (2) to extend the period of fact discovery in this case for six (6) months, from November 1, 2006; and (3) to grant SCO an extension of ninety (90) days to respond to numerous recent discovery requests promulgated on SCO by Novell. The principal grounds for the foregoing requests for relief are as follows.

First, Novell moves for summary judgment in significant part on the basis of causes of action that Novell has just added as amendments to its counterclaims. (See Novell, Inc.ís Amended Counterclaims dated Sept. 25, 2006.) There has been no discovery specific to those causes of action, or even a responsive pleading served by SCO. Instead, in conjunction with the filing of its Motion (as addressed further below), Novell has served numerous discovery requests on SCO relating to issues raised in the Motion. SCO submits that it would be plainly premature for the Court to consider Novellís summary judgment motion under the circumstances.

Second, Novell moves in the alternative for a preliminary injunction on grounds that Novell could have raised in this litigation any time in the last two years. The two agreements at issue in Novellís Motion date from 2003, and Novell acknowledges (as at paragraphs 44 & 45 of Novellís memorandum in support of its Motion) that the agreements were a subject raised between the parties that same year. This litigation has been pending since January 2004. If Novell believed at any time in the long previous course of this litigation that it had a basis for a claim

2

against SCO on these grounds, Novell could have acted during that time. By Novell's own admission, moreover, it had copies of the documents over eight months ago, since February 7, 2006. Indeed, Novell filed counterclaims on July 29, 2005, in which Novell specifically asserted the right to revenues from the agreements at issue. (See Novell, Inc.'s Answer and Counterclaims, dated July 29, 2005.) Novell amended those counterclaims on April 10, 2006. (See Novell, Inc.'s Answer to SCO's Second Amended Complaint and Counterclaims, dated April 10, 2006.) In the face of these undisputed facts, Novell's long delay in seeking the preliminary injunction it now seeks is fatal to that request for relief, and therefore further grounds for staying the Motion.

Third, having received and had the opportunity to review the agreements at issue and file counterclaims about them, rather than move for summary judgment or seek a preliminary injunction, Novell instead chose to move on April 10, 2006, to stay this litigation altogether. (See Novell, Inc.'s Motion to Stay Claims Raising Issues Subject to Arbitration, dated Apr. 10, 2006.) Novell based that motion on the grounds that a stay would allow the arbitration filed by Novell's wholly owned subsidiary SuSE to proceed and thereby permit this Court to address the issues remaining after that arbitration. Novell, of course, made no mention of any intent to seek a preliminary injunction. Instead, Novell argued how judicial economy should lead the Court to exercise its discretion to enter a stay so that the arbitration could proceed first and then this Court could determine what issues remained to be decided. Now Novell asks the Court to proceed in a diametrically opposite direction. Novell's motion for preliminary injunction requires consideration of issues that Novell sought to have stayed and that were in fact stayed. That is, in evaluating the likelihood of success of the Novell counterclaims at issue and in assessing the balance of equities, the Court should consider issues such as whether Novell has been in breach of the Assert Purchase Agreement (APA) at issue in Novell's Motion through its Linux-related

3

activities, and whether Novell has infringed SCO's copyrights, concerning issues that the Court has stayed in favor of the SuSE arbitration.

Fourth, in furtherance of its admitted cooperation and joint-defense agreement with IBM in litigating against SCO (which is itself a subject of SCO's claims against IBM), Novell has evidently timed its Motion to interfere with SCO's response to the six (6) motions for summary judgment that IBM filed against SCO on September 25, 2006. The IBM summary judgment motions comprise more than 400 pages of briefs and more than 600 exhibits, totaling over 50,000 pages of documents. SCO's response is due on October 25, 2006. Novell's motion, which concerns agreements entered in 2003, and which Novell asserted in counterclaims in July 2005 and again in April 2006, is seemingly timed to interfere with SCO's ability to respond to these IBM motions, and to prepare for trial in the IBM action. The stay SCO seeks would permit SCO properly to respond to IBM's multiple, voluminous and document-intensive motions for summary judgment. The additional time would not remotely prejudice Novell, which waited years to file its instant Motion, and therefore should not be heard to argue that its Motion warrants immediate resolution.

In addition and putting aside the numerous serious defects in its argument on the merits on this score Novell's alternative request for relief in the form of a preliminary injunction concerns SCO's predicted financial status well in the future, as of the middle of next year. SCO submits that there are no fair grounds on which to require SCO to respond to Novell's Motion at the same time it responds to IBM's multiple motions.

Fifth, Novell moved to stay this litigation (as noted above) after the parties had agreed in late 2005 to a proposed period of fact discovery ending on November 1, 2006. During the pendency of Novell's Motion to Stay, from April 10, 2006, until August 21, 2006, the parties

4

undertook very little fact discovery. Neither party has, for example, taken a single deposition. The parties' tacit agreement to follow that course was sensible, considering that if the Court were to grant Novell's motion to stay, such discovery would have been obviated in substantial part.

Last week, Novell served eleven (11) new interrogatories and thirty-nine (39) new document requests. On the same date that it filed its Motion, Novell served one additional interrogatory, two additional document requests, and thirty-four (34) requests for admission. SCO believes an extension of time of six months to complete discovery, especially in light of the impending IBM trial and the new amendments made by Novell to its counterclaims in the last week, is appropriate.

Sixth, Novell's purported concern with SCO's financial condition as grounds for its instant Motion is a transparent fiction. The relief Novell seeks would bind SCO's hands just when SCO needs the flexibility and resources to devote to the SCO v. IBM litigation. In addition, if Novell were actually concerned about any forfeiture of its rights as a result of any deterioration in SCO's financial condition, then Novell's decision to have SuSE file its arbitration against SCO in Europe is inexplicable. The arbitration plainly imposes substantial additional expense on SCO, and Novell had SuSE file the arbitration years after Novell first identified its concerns arising out of the agreements at issue in Novell's instant Motion and many months after Novell had received physical copies of those agreements in discovery. Contrary to Novell's suggestion, moreover, SCO's financial condition gives Novell no more basis to file its instant Motion now than it did over a year ago. As Novell's own memorandum shows (at paragraphs 50 & 51), SCO had less cash reserves a year ago than it does now.

SCO has sought to resolve these issues by agreement with Novell. Counsel for the parties have initiated such discussions but to date have not reached agreement. Considering the time-

5

sensitive nature of SCO's Motion, SCO respectfully submits this Motion at this time and asks the Court to direct an expedited response from Novell and to decide the Motion on an expedited basis, as it concerns the timing of a response to Novell's Motion that would otherwise be due in less than thirty days.

Respectfully submitted,

Dated this 4th day of October, 2006.

By: /s/ Brent O. Hatch

HATCH JAMES & DODGE
Brent O. Hatch

BOIES, SCHILLER & FLEXNER LLP
Stephen N. Zack
Robert Silver
Stuart Singer
Edward Normand

Attorneys for Plaintiff

6

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 4th day of October, 2006, I caused to be mailed a true and correct copy of the foregoing via the Court's CM/ECF system or first class mail to the following:

Thomas R. Karrenberg
John P. Mullen
Heather M. Sneddon
ANDERSON & KARRENBERG
[address]

Michael A. Jacobs
Ken W. Brakebill
MORRISON & FOERSTER
[address]

/s/ Brent O. Hatch

7


  


SCO Begs Novell Court to Stay Novell's PSJ/PI Motion Until IBM is Decided | 526 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections Here
Authored by: digger53 on Thursday, October 05 2006 @ 12:17 AM EDT
Should there be any.

[ Reply to This | # ]

Off-topic Here.
Authored by: digger53 on Thursday, October 05 2006 @ 12:19 AM EDT
I just love this topic like a fish loves water. Hoo-boy!!!

[ Reply to This | # ]

SCO Begs Novell Court to Stay Novell's PSJ/PI Motion Until IBM is Decided
Authored by: Anonymous on Thursday, October 05 2006 @ 12:19 AM EDT
Didn't SCO object earlier to Novell proposing a stay until the arbitration was
done? So, it's NOT ok to wait for that, but it IS ok to wait longer for IBM to
finish.

So what are the chances this will get ordered?

[ Reply to This | # ]

SCO Begs Novell Court to Stay Novell's PSJ/PI Motion Until IBM is Decided
Authored by: Zarkov on Thursday, October 05 2006 @ 12:23 AM EDT
Interesting to note that if even the least of their suggested delays is granted,
SCO makes it to the starting blocks in IBM...

February 2007 is obviously their Holy Grail... hmmm so what else happens between
now and February 2007? Vista anybody??

[ Reply to This | # ]

Monopoly
Authored by: chrisbrown on Thursday, October 05 2006 @ 12:26 AM EDT
When I played the game of Monopoly with my siblings as a child, there always
comes a time when one of us would land on a property we just simply couldn't
afford. Or perhaps we could, but we'd have to sell nearly everything to do it.
We'd often ask for a discount on the rent, a loan, anything... just to keep
playing. And nearly as often some clemency would be granted.

But, really, we don't want *this* game to go on endlessly. Sure, there are
things we'd like publicly decided first, but if SCO has played poorly, spending
it's money in a frivolous desparate case, I'd rather see it ended sooner than
later.

[ Reply to This | # ]

Judicial economy
Authored by: globularity on Thursday, October 05 2006 @ 12:40 AM EDT
Wouldnt it be a great way to save court time, just read Novell's PSJ motion and
if it is good then bye bye SCOX I bet even BSF would secretly be glad to be rid
of this client even though they probably deserve each other.

Mark

---
"It's all about myths and conceptions" I think that is what Darl meant to say.

[ Reply to This | # ]

SCO Begs Novell Court to Stay Novell's PSJ/PI Motion Until IBM is Decided
Authored by: nattt on Thursday, October 05 2006 @ 12:41 AM EDT
How can SCO complain that the burdens of running both too cases great, when
they themselves are the ones who filed suit against IBM and against Novel.
Surely the time to decide the burden would be too great was when they filed, not

now. Surely the judge can't let them get away with them saying "we're too
busy
now" when it's SCO themselves and their blinkin leave to file overlength
motions,
and their delaying tactics, and that they've filed all these court cases that
has got
them into this busy state??

[ Reply to This | # ]

cooperation and joint-defense agreement?
Authored by: Anonymous on Thursday, October 05 2006 @ 12:43 AM EDT
Fourth, in furtherance of its admitted cooperation and joint-defense agreement with IBM in litigating against SCO (which is itself a subject of SCO's claims against IBM), Novell has evidently timed its Motion to interfere with SCO's response to the six (6) motions for summary judgment ...
For the life of me, I don't recall any of SCOG's claims in the IBM case that mention an "admitted cooperation and joint-defense agreement with IBM". Have I missed something, is this yet another BSF wookiee, is it a signal that BSF are trying to morph the claims again, or what?

---
--Bill P, not a lawyer. Question the answers, especially if I give some.

[ Reply to This | # ]

SCO Begs Novell Court to Stay Novell's PSJ/PI Motion Until IBM is Decided
Authored by: Anonymous on Thursday, October 05 2006 @ 12:43 AM EDT
One has to wonder why BSF got paid millions if they can not fight two
legal-fronts.

[ Reply to This | # ]

Red Herring Dept.
Authored by: Ed L. on Thursday, October 05 2006 @ 12:44 AM EDT
Whaaaaaaa? Years? What are these years?
"...Novell had SuSE file the arbitration years after Novell first identified its concerns arising out of the agreements at issue in Novell's instant Motion..."
Is it just me, or does anyone else maintain the distinct recollection that "Novell had SuSE file the arbitration" within but weeks of SCO's amended complaint that alleged copyright infringment against Novell? That "Novell's concerns arising out of the (presumably SUN and Microsoft) agreements in Novell's instant motion" had little or aught to do with why SuSE filed for arbitration?

(Not a lawyer, but am confused.)

---
"They coulda and they shoulda and they knew it but they didn't." ~ The Hon. Brooke Wells in a Nutshell

[ Reply to This | # ]

SCO Begs Novell Court for Delay
Authored by: Dave23 on Thursday, October 05 2006 @ 12:49 AM EDT
Seems to me that denial of SCOX/BSF motion here is the only equitable ruling.
Preliminary injunctions must be argued promptly, in the order of their receipt
by the court.

Time is of the essence! Novell now has reason to believe that the converted
money will be lost to them forever if there is a delay. SCOX's refusal to
permit an audit and to hide the nature of the contracts delayed Novell's motion;
not Novell. SCOX/BSF must argue on point against Novell's Summary
Judgement/Preliminary Injunction motion. This pleading is a tell: SCOX/BSF's
poker hand on the Novell motion is likely nothing: SCOX's chips are down to
small blind levels. They must bet everything on what they have soon; but are
trying to get out of the game, at least for awhile. "It is easy to get
into a lawsuit; the hard part is getting out."

If they are in a time/manpower bind, SCOX/BSF's correct motion is for a stay
against everything in the Novell lawsuit, except for the SJ/PI motion. They
might get that if Judge K. takes pity on them.

This is what you get when you hit a nest of hornets with a board.

---
Nonlawyer Gawker

[ Reply to This | # ]

SCO Begs Novell Court to Stay Novell's PSJ/PI Motion Until IBM is Decided
Authored by: digger53 on Thursday, October 05 2006 @ 12:52 AM EDT
Tough, they should have thought thing through before they cried "Havoc, and let slip the dogs of war." Sic semper tyrannis. and all wannabe tyrants.

Frankly, I hope SCO is obliterated and its masters rendered unemployable, if not imprisoned. May the Furies descend upon them and all of their supporters. And perhaps they have ... are they not already mad?

[ Reply to This | # ]

Delay will probably be granted
Authored by: Anonymous on Thursday, October 05 2006 @ 12:52 AM EDT
As much as I hate to say it, it most likely will be granted in some form. While
I'm enjoying this tremendously, if SCO goes bankrupt, the courts time on SCO vs.
IBM, SCO vs. Novell, Redhat vs. Sco will all have been a waste. I'm sure the
judge(s) will be laughing in thier sleeves but I would go a buck that some form
of delay is granted.
Yeah, they bit off more than they can chew and any of the counter claims will
decimate thier company. I would hate to see it end like this though. SCO runs
out of money and that's the end. I want to hear *a judge* say they were
idiots.
BSF say they are capped and will go through the appeals. I don't buy it. Who
will refill the 5 million escrow? That's thier way out.
My biggest fear is they *won't* make it to trial and/or summary judgements.

[ Reply to This | # ]

We can't afford to give it back
Authored by: davogt on Thursday, October 05 2006 @ 12:53 AM EDT
Sixth, Novell's purported concern with SCO's financial condition as grounds for its instant Motion is a transparent fiction. The relief Novell seeks would bind SCO's hands just when SCO needs the flexibility and resources to devote to the SCO v. IBM litigation. In addition, if Novell were actually concerned about any forfeiture of its rights as a result of any deterioration in SCO's financial condition, then Novell's decision to have SuSE file its arbitration against SCO in Europe is inexplicable.

In other words, Novell has no right to ask for their money back because we want to spend it on other stuff. Awesome.

[ Reply to This | # ]

Too Much of a Good Thing
Authored by: kozmcrae on Thursday, October 05 2006 @ 12:55 AM EDT
Please take care PJ.  It's quite possible for someone to make the ultimate transition by laughing to death.  I fear that SCO's recent and future frantic dancing may be the end of you.

I suggest you cut out some pictures of needy children from old magazines and tape them up near your monitor.  Maybe you could rent a VCR tape of "Dark Shadows" and play it in the background.

Richard

---
Darl, have you been lying to us? I'm a frayed knot.

[ Reply to This | # ]

How can Novell & IBM both be made whole?
Authored by: Anonymous on Thursday, October 05 2006 @ 12:55 AM EDT
That is, Novell needs to protect their cash and IBM needs a clear win to protect
their name, their back, and Linux.


Must/will SCO v IBM go forward even if SCO has no money?

Could Novell or IBM or Judge K do something to assure a win+win+Dust-in-the-wind
outcome?

[ Reply to This | # ]

SCO ask for the same thing
Authored by: Anonymous on Thursday, October 05 2006 @ 01:00 AM EDT
90 days + 6 months = wait until IBM vs SCO decided

[ Reply to This | # ]

Could novell make a criminal compliant about unpaid moneys?
Authored by: Anonymous on Thursday, October 05 2006 @ 01:04 AM EDT

It's probably an academic question - but seeing as Novell is going for the jugular - why does it not bring the other dogs into the fight - e.g. Securities Commission (false statements in numerous filings), FBI (wire fraud), etc?

And could a company make a criminal complain against SCO, e.g. fraud, conspiracy to defraud, etc?

Charles from OZ

[ Reply to This | # ]

what are the odds this will be granted?
Authored by: Anonymous on Thursday, October 05 2006 @ 01:08 AM EDT
in whole or in part?

btw, I like the title. "Motion for Expedited Stay". that's like a very
fast delay, right? :-)

[ Reply to This | # ]

SCO's expedited Motion to Stay, Go, Continue, or Extend
Authored by: webster on Thursday, October 05 2006 @ 01:15 AM EDT
.

1. They must not be serious because this isn't overlength.

2. Novell should go first. It will determine what SCO has from them, the
copyrights, and whether Novell could waive according to the APA. If it is res
judicata or collatteral estoppel (or damage in military terms), then IBM will be
moot.

3. SCO filed the suits. What did they expect? A picnic? They took this on.
They should be prepared to deal with it. Besides much of the preparation for
IBM, such as document discovery, can be used in Novell.

4. SCO arguments are meaningful. They need a lot of time and creativity to
respond to IBM Motions. They should ask to have IBM moved, too.

5. It is about money. Novell should ask them to put up a bond or a voluntary
trust to save time. Then they could agree to the continuance. A trust with
stock and some cash should do it. It need not be much. SCO
don't have much. But the low millions would show their "Good Faith."
Maybe the PIPE Fairy could get involved. At this point delay is better than a
decision.

6. SCO's argument that Novell delayed is meaningful. Maybe Novell hoped to get
out of this quick and cheap by their motions to dismiss the slander of title or
by an early IBM knock-out. It was not to be, so they have finally worked up to
a pretty dangerous hand.

7. Kimble will probably let it play out and deny the trust in the end just to
avoid a drastic, dispositive step apart from the merits. SCO will be dealing
here again with a contract they weren't a party to. It's worse than the IBM
Software Agreement. At least there they have the "one clause" they
interpret as ambiguous.

8. Does Kimball know the fees were suspicious SUN and M$ licenses for easily
available code? Suspicious because the fees were bloated, the purchasers had an
interest in destroying Linux. Suspicious because the money was meant to finance
these lawsuits. What's it to be, Judge? Decide or endure.

---
webster

[ Reply to This | # ]

Didn't SCO file against Novell and IBM?
Authored by: Anonymous on Thursday, October 05 2006 @ 01:45 AM EDT
Why are they now asking for a stay in litigation which they initiated?
Any thoughts on whether or not they'll get it?

[ Reply to This | # ]

SCO Begs Novell Court to Stay Novell's PSJ/PI Motion Until IBM is Decided
Authored by: Zarkov on Thursday, October 05 2006 @ 02:04 AM EDT
Fourth, in furtherance of its admitted cooperation and joint-defense agreement with IBM in litigating against SCO (which is itself a subject of SCO's claims against IBM)... (bold mine) The use of words here is quite clever... There was me thinking for all this time that IBM and Novel were defending against SCO - when all along its been a conspiracy to litigate them into the ground... tsk, just show how wrong you can be I guess... While in dictionary truth IBM and Novel are indeed litigating against SCO, it is not by their own choice. Any agreement they may have come to in dealing with the law suits will have come about after SCO filed suit against them. SCO are once again demonstrating their extreme chutzpa by claiming that the are suing because of something that they themselves brought about.

[ Reply to This | # ]

This DEFINITELY CONVINCES me that SCOG has some trick set up to pull on IBM
Authored by: Anonymous on Thursday, October 05 2006 @ 02:14 AM EDT
It's now guaranteed in my mind - SCOG has prepared a Perry Mason moment,
contrary to law, procedure and fairness.

[ Reply to This | # ]

Dear Court (colloquial)
Authored by: elronxenu on Thursday, October 05 2006 @ 03:10 AM EDT
Dear Court,

Please let us keep the money which we stole from Novell to fund our extortion attempts against Linux users and IBM. We're sure IBM will roll over any day now (we've really got them up against the wall with our PSJ motions) and just as soon as we've collected our billions, we'll be able to pay Novell back.

Yours Sincerely,

SCO.

[ Reply to This | # ]

Hot.
Authored by: Anonymous on Thursday, October 05 2006 @ 03:49 AM EDT
Dear court, stay justice because it would come inconvenient, pulling both the
financial and legal rug from under us in other extortion schemes we'd like to
bluff through a jury elsewhere.

How is that going to make a judge anything but livid? Maybe they are hoping to
trigger appealable behavior?

[ Reply to This | # ]

Or wait, so SCO can catch its breath and not get beat to a pulp...
Authored by: Anonymous on Thursday, October 05 2006 @ 04:27 AM EDT
I think that sentence is missing one of the following.

...Yet
...By Novell

Tee Hee. Are we having fun yet:-)

[ Reply to This | # ]

Seems to me that....
Authored by: jmc on Thursday, October 05 2006 @ 04:35 AM EDT
SCO are more or less admitting that Novell have a strong case for the money.

If they thought that Novell didn't have any right to the cash what would they
have to fear?

Maybe Novell could agree to a stay provided SCO put up at least half the cash
now?

[ Reply to This | # ]

Misery HATES Company
Authored by: lsmft on Thursday, October 05 2006 @ 04:59 AM EDT
These folks have spent the past 2 centuries making every body eleses life
miserable, now they complain when someone tries to make their life miserable.
Gimme a break!

One last note , IBM, Novell, Autozone etc, can at least afford having someone
pull a "practical joke" like this on them, what sickens me is that
our "injustice system" allows entities to pull these kind of pranks
without fear of punishment (perjury is rarely prosecuted).



[ Reply to This | # ]

Why didn't SCO serially litigate?
Authored by: rfrazier on Thursday, October 05 2006 @ 05:09 AM EDT
SCO thought they had the resources to litigate concurrently against IBM and SCO,
so they initiated the proceedings concurrently. If they made a mistake, and
should have proceeded serially, why, let it be a "learning
experience".

Is there such a thing as a litgation orientated Darwin Prize?

Best wishes,
Bob

[ Reply to This | # ]

SCO Begs Novell Court to Stay Novell's PSJ/PI Motion Until IBM is Decided
Authored by: drreagan on Thursday, October 05 2006 @ 05:15 AM EDT
Number 4 has got to be my favourite. Here's a hint SCO - if you don't want
people ganging up their defences on you, then don't start a war on two fronts.
Many better strategists than Darl have learnt this to their detriment throughout
history.

[ Reply to This | # ]

SCO wants to waste Novells Money on the IBM case
Authored by: Anonymous on Thursday, October 05 2006 @ 05:27 AM EDT
I mean, when you take a little closer look it becomes pretty clear that SCO is
being run into the ground and the management sees it's main job as distributing
SCOs assets to their cronies before Novell or IBM can get what's rightfully
theirs.

If it wouldn't totally destroy their case as well as any base for their
FUDcampaigns they'd long since have closed down all development and fired
everyone but for the management gang. Since they can't do that they do the next
best thing: keep development on life support, generate some artificial
"news" and meanwhile shift the money around that SCO still has until
it's safely in their pockets. Just look at all the restructuring and management
changes as well as the big fat deal with BSF to see what SCO is *really* all
about.

[ Reply to This | # ]

Put Novell's money into a trust account first
Authored by: Chris Lingard on Thursday, October 05 2006 @ 05:28 AM EDT

If SCO want to delay they should make safe the money that they owe. The monies should be paid into an account where SCO cannot waste it. A delay would allow SCO to spend that money.

SCO started this law suite; if they want to stop, it should be dismissed in Novell's favour, without prejudice, so that SCO could re-file once they are ready.

[ Reply to This | # ]

Itís a conspiracy!
Authored by: Anonymous on Thursday, October 05 2006 @ 06:36 AM EDT
"...admitted cooperation and joint-defense agreement with IBM in litigating
against SCO .."

See! See! Novel is out to out to destroy SCO and Unix Ďcos every sale of Unix
not made by SCO is costing um...Novel...um....90% of.....um....the sale value.

Errr...

[ Reply to This | # ]

What happens if SCO goes bankrupt?
Authored by: Anonymous on Thursday, October 05 2006 @ 06:40 AM EDT
If SCO goes bankrupt, does Darl get to walk away from it all with the
untouchable millions siphoned off to his brother for 'legal' assistance? Or is
it still possible for them to get jail time or something?

It just seems like a massive perverson of the legal system when people can cause
hundreds of millions of dollars in damages and damage to reputations with false
accusations and lies and simply walk away from it.

[ Reply to This | # ]

Translation
Authored by: DaveJakeman on Thursday, October 05 2006 @ 06:53 AM EDT
"The stay SCO seeks would permit SCO properly to respond to IBMís multiple,
voluminous and document-intensive motions for summary judgment."

Translation:

"Yikes! Not even we at SCO can misdirect, FUD and lie that quickly! Let
us outta here!!!"

SCO has realised that in order to do big-league litigation against big-league
targets, on the shakiest of foundations, it requires multiple, big-league law
firms, each equipped with schools of the best lawyers, plus an almost bottomless
pit of spondulicks. For a company that has never, ever been profitable, except
for the year it misappropriated certain licence revenues and dished out
inappropriate performance bonuses, that kind of bottomless pit is a tall order.
Even the shareholders have figured that bit out now.

As a business model, methinks it needs a rethink, which SCO should get the
opportunity to do real soon.

"SCO submits that there are no fair grounds on which to require SCO to
respond to Novellís Motion at the same time it responds to IBMís multiple
motions."

No fair? Er, SCO, that's kind of what happens when you change to the Litigation
business: multiple concurrent lawsuits = good business! Yes? No? You did
start both those lawsuits, didn't you? You have heard of SMP haven't you?

Maybe the world should stop and give SCO pause to sue the world at SCO's
comfortable, glacial place. SCO shouldn't be pinned down like this and made to
feel uncomfortable after SCO making the rest of the world feel uncomfortable for
over three years.

---
Unfortunately for us, common sense is not very common.
---
Should one hear an accusation, try it out on the accuser.

[ Reply to This | # ]

My answers
Authored by: Anonymous on Thursday, October 05 2006 @ 07:01 AM EDT
SCO: First, Novell moves for summary judgment in significant part on the basis
of causes of action that Novell has just added as amendments to its
counterclaims. (See Novell, Inc.ís Amended Counterclaims dated Sept. 25, 2006.)
There has been no discovery specific to those causes of action, or even a
responsive pleading served by SCO. Instead, in conjunction with the filing of
its Motion (as addressed further below), Novell has served numerous discovery
requests on SCO relating to issues raised in the Motion. SCO submits that it
would be plainly premature for the Court to consider Novellís summary judgment
motion under the circumstances.

My Answer: The rules allow summary judgment motions to be filed at more or less
any time, so on that basis it can not be "premature". If more
discovery is needed, why don't SCO identify which specific discovery will raise
factual issues ia normal 56(f) motion? Are they trying to avoid a 56(f) motion,
because there can be no useful 56(f) motion - the APA, the Sun and Microsoft
Agreements, speak for themselves and can simply be read by the judge as a matter
of law.



SCO: Second, Novell moves in the alternative for a preliminary injunction on
grounds that Novell could have raised in this litigation any time in the last
two years. The two agreements at issue in Novellís Motion date from 2003, and
Novell acknowledges (as at paragraphs 44 & 45 of Novellís memorandum in
support of its Motion) that the agreements were a subject raised between the
parties that same year. This litigation has been pending since January 2004. If
Novell believed at any time in the long previous course of this litigation that
it had a basis for a claim against SCO on these grounds, Novell could have
acted during that time. By Novell's own admission, moreover, it had copies of
the documents over eight months ago, since February 7, 2006. Indeed, Novell
filed counterclaims on July 29, 2005, in which Novell specifically asserted the
right to revenues from the agreements at issue. (See Novell, Inc.'s Answer and
Counterclaims, dated July 29, 2005.) Novell amended those counterclaims on April
10, 2006. (See Novell, Inc.'s Answer to SCO's Second Amended Complaint and
Counterclaims, dated April 10, 2006.) In the face of these undisputed facts,
Novell's long delay in seeking the preliminary injunction it now seeks is fatal
to that request for relief, and therefore further grounds for staying the
Motion.

My Answer: Yes, Novell have been asking for the "two agreements at
issue" since 2003. And yes, the litigation has been pending since January
2004. But SCO hid the agreements from Novell until 2006. Novell amended their
complaint and filed for a PI as soon as they had the document. In any case,
the Federal Arbitration act requires that Novell asked the court for a stay of
arbitrable issues.



SCO: Third, having received and had the opportunity to review the agreements at
issue and file counterclaims about them, rather than move for summary judgment
or seek a preliminary injunction, Novell instead chose to move on April 10,
2006, to stay this litigation altogether. (See Novell, Inc.'s Motion to Stay
Claims Raising Issues Subject to Arbitration, dated Apr. 10, 2006.) Novell based
that motion on the grounds that a stay would allow the arbitration filed by
Novell's wholly owned subsidiary SuSE to proceed and thereby permit this Court
to address the issues remaining after that arbitration. Novell, of course, made
no mention of any intent to seek a preliminary injunction. Instead, Novell
argued how judicial economy should lead the Court to exercise its discretion to
enter a stay so that the arbitration could proceed first and then this Court
could determine what issues remained to be decided. Now Novell asks the Court to
proceed in a diametrically opposite direction. Novell's motion for preliminary
injunction requires consideration of issues that Novell sought to have stayed
and that were in fact stayed. That is, in evaluating the likelihood of success
of the Novell counterclaims at issue and in assessing the balance of equities,
the Court should consider issues such as whether Novell has been in breach of
the Assert Purchase Agreement (APA) at issue in Novell's Motion through its
Linux-related activities, and whether Novell has infringed SCO's copyrights,
concerning issues that the Court has stayed in favor of the SuSE arbitration.

My Answer: Novell did NOT move to stay the litigation all together. They moved
to stay those parts of the litigation relating to SuSE Linux and the
Arbitration. Novell believed those parts included all SCO's claims - but they
did not and never believed or represented that they included all Novell's
claims.



SCO: Fourth, in furtherance of its admitted cooperation and joint-defense
agreement with IBM in litigating against SCO (which is itself a subject of SCO's
claims against IBM), Novell has evidently timed its Motion to interfere with
SCO's response to the six (6) motions for summary judgment that IBM filed
against SCO on September 25, 2006. The IBM summary judgment motions comprise
more than 400 pages of briefs and more than 600 exhibits, totaling over 50,000
pages of documents. SCO's response is due on October 25, 2006. Novell's motion,
which concerns agreements entered in 2003, and which Novell asserted in
counterclaims in July 2005 and again in April 2006, is seemingly timed to
interfere with SCO's ability to respond to these IBM motions, and to prepare for
trial in the IBM action. The stay SCO seeks would permit SCO properly to respond
to IBM's multiple, voluminous and document-intensive motions for summary
judgment. The additional time would not remotely prejudice Novell, which waited
years to file its instant Motion, and therefore should not be heard to argue
that its Motion warrants immediate resolution.

My Answer: Novell (probably) has no objection to allowing SCO's period to
respond to Novell's motions starting the day after (October 26th) they respond
to IBM's summary judgment motions. This would give SCO nearly 2 months to
respond. However SCO seems to want about six (6) months to respond. It's not
Novell's fault that SCO's case against IBM is so weak that it faces 6 summary
judgment motions based on multiple lines of argument (and the majority of
summary judgment motions concern SCO's causes of actions, which SCO choose to
litigate in th first place. Novell didn' wait years to litigate the issues in
their SJ/PI point, because SCO hid the documents for years. In any case, the
rules plainly allow SJ motions to be filed at any time.


SCO: In addition and putting aside the numerous serious defects in its argument
on the merits on this score Novell's alternative request for relief in the form
of a preliminary injunction concerns SCO's predicted financial status well in
the future, as of the middle of next year. SCO submits that there are no fair
grounds on which to require SCO to respond to Novell's Motion at the same time
it responds to IBM's multiple motions.

My Answer: Novell (probably) has no objection to allowing SCO's period to
respond to Novell's motions starting the day after (October 26th) they respond
to IBM's summary judgment motions. If there are defects in Novell's arguments,
why doesn't SCO point them out in a 56(e) motion.



SCO: Fifth, Novell moved to stay this litigation (as noted above) after the
parties had agreed in late 2005 to a proposed period of fact discovery ending on
November 1, 2006. During the pendency of Novell's Motion to Stay, from April 10,
2006, until August 21, 2006, the parties
undertook very little fact discovery. Neither party has, for example, taken a
single deposition. The parties' tacit agreement to follow that course was
sensible, considering that if the Court were to grant Novell's motion to stay,
such discovery would have been obviated in substantial part.

My Answer: Novell has been diligently pursuing discovery at all times. It
Novell's fault that SCO hasn't


SCO: Last week, Novell served eleven (11) new interrogatories and thirty-nine
(39) new document requests. On the same date that it filed its Motion, Novell
served one additional interrogatory, two additional document requests, and
thirty-four (34) requests for admission. SCO believes an extension of time of
six months to complete discovery, especially in light of the impending IBM trial
and the new amendments made by Novell to its counterclaims in the last week, is
appropriate.

My Answer: SCO identifies no reason why it needs six months of additional time.
A six month extension to discovery is not the usual court response to a
"the new amendments made by Novell to its counterclaims". Novell
(probably) has no objection to allowing SCO's period to respond to Novell's
discovery starting the day after (October 26th) they respond to IBM's summary
judgment motions, and perhaps a 1 monthe extension of discovery.



SCO: Sixth, Novell's purported concern with SCO's financial condition as grounds
for its instant Motion is a transparent fiction. The relief Novell seeks would
bind SCO's hands just when SCO needs the flexibility and resources to devote to
the SCO v. IBM litigation. In addition, if Novell were actually concerned about
any forfeiture of its rights as a result of any deterioration in SCO's financial
condition, then Novell's decision to have SuSE file its arbitration against SCO
in Europe is inexplicable. The arbitration plainly imposes substantial
additional expense on SCO, and Novell had SuSE file the arbitration years after
Novell first identified its concerns arising out of the agreements at issue in
Novell's instant Motion and many months after Novell had received physical
copies of those agreements in discovery. Contrary to Novell's suggestion,
moreover, SCO's financial condition gives Novell no more basis to file its
instant Motion now than it did over a year ago. As Novell's own memorandum shows
(at paragraphs 50 & 51), SCO had less cash reserves a year ago than it does
now.

SCO: SCO has sought to resolve these issues by agreement with Novell. Counsel
for the parties have initiated such discussions but to date have not reached
agreement. Considering the time-sensitive nature of SCO's Motion, SCO
respectfully submits this Motion at this time and asks the Court to direct an
expedited response from Novell and to decide the Motion on an expedited basis,
as it concerns the timing of a response to Novell's Motion that would otherwise
be due in less than thirty days.


My Answer: Novell is not concerned about SCO's financial condition, and has no
business being concerned about it, except to the extent that SCO is wrongfully
holding Novell's money. If (as Novell believes), SCO is wrongfully holding
Novell's money, the money should be returned to Novell or protected, and Novell
is not concerned whether or not that "binds SCO's hands". SCO keeps
talking about the facts a year ago - but a year ago, SCO was still hiding the
relevant papers (the Sun and MS agreements) from Novell. SCO should not be
allowed to benefit by its obfuscation and hiding of relevant documents. As for
arbitration costs, SuSE has filed for arbitration because that is the mechanism
that the UnitedLinux specifically requires, and in any case (and it is
undisputed that SCO voluntary signed the UnitedLinux agreements), it was SCO's
choice to file a meritless court action against Novell in Utah when issues
relating to all SCO's claims are in fact required to be arbitrated in
Switzerland.



Quatermass
IANAL IMHO etc.

[ Reply to This | # ]

Wot, no exhibits?
Authored by: DaveJakeman on Thursday, October 05 2006 @ 07:13 AM EDT
Wot, no citations?

Wot, no over-length, rambling, circuitous nonsense?

This one's written in plain English!

SCO dashed this one off in a panic, thinking that if they were real quick, they
could somehow avoid answering Novell's Motion for Partial Summary Judgment or
Preliminary Injunction, hoping it might just somehow go away. Maybe SCO think
they haven't a prayer with that one, so it's better to just create a side issue
rather than tackle the real issue head-on.

Pure sophistry. SCO lives in the wrong age.

---
Unfortunately for us, common sense is not very common.
---
Should one hear an accusation, try it out on the accuser.

[ Reply to This | # ]

I like the first two arguments.
Authored by: rao on Thursday, October 05 2006 @ 07:31 AM EDT

1. It's too early.

2. It's too late.

[ Reply to This | # ]

SCO has it all three ways:
Authored by: DaveJakeman on Thursday, October 05 2006 @ 07:50 AM EDT
"SCO submits that it would be plainly premature for the Court to consider
Novellís summary judgment motion under the circumstances."

"Premature", huh?

"In the face of these undisputed facts, Novellís long delay in seeking the
preliminary injunction it now seeks is fatal to that request for relief, and
therefore further grounds for staying the Motion."

"Long delay", huh?

"Novellís motion, which concerns agreements entered in 2003, and which
Novell asserted in counterclaims in July 2005 and again in April 2006, is
seemingly timed to interfere with SCOís ability to respond to these IBM motions,
and to prepare for trial in the IBM action."

"Timed", huh?

Which is it, SCO? Premature, delayed, or timely? Surely it has to be one of
the three!

Or maybe just no fair, bad for SCO?

Sheesh.

In SCO's universe, Time is not a fundamental property; it is arbitrary, optional
or well-defined only at chosen instances of itself.

---
Unfortunately for us, common sense is not very common.
---
Should one hear an accusation, try it out on the accuser.

[ Reply to This | # ]

This is comedy in its highest form!
Authored by: eggplant37 on Thursday, October 05 2006 @ 08:03 AM EDT
I'm still wiping the tears from my eyes from laughing at this. SCO is scared
and whimpering at this point, saying "Oh, please, Master Judge, Yerronner,
please don't let nasty old Novell take OUR moneys from us, no, it mustn't, no,
and don't take our pretty, shiny, PREEECCCCIIIIOOOOOUUUUSSSS IBM case away from
us, no it musn't, please? It's OURS, we stole it fair and square, we did,
yeesssss... GOLLUM!"

I also was reminded of Brer Rabbit for a brief second until I reread the story
and realized that Brer Rabbit manages to wiggle out of his predicament, and we
certainly wouldn't want to see that, now would we? Or is this where the briar
patch backfires and SCO not only is tied up in the tar, it's skewered on the
thorns?

Oh, my sides.

[ Reply to This | # ]

SCO Begs Novell Court to Stay Novell's PSJ/PI Motion Until IBM is Decided
Authored by: Steve Martin on Thursday, October 05 2006 @ 08:10 AM EDT

There has been no discovery specific to those causes of action, or even a responsive pleading served by SCO.

"No discovery"? Hey Mr. Hatch, remember this?

46. It was not until February 7, 2006 that Novell finally received the Sun and Microsoft Agreements from SCO, alongside a simultaneous production of many hundreds of thousands of other pages, pursuant to discovery requests in this litigation.
(emphasis added)

I'd say the Sun and Microsoft contracts are clearly relevant to Novell's Seventh (fiduciary duty) and Eighth (conversion) counterclaims at least.

---
"When I say something, I put my name next to it." -- Isaac Jaffee, "Sports Night"

[ Reply to This | # ]

SCO Begs Novell Court to Stay Novell's PSJ/PI Motion Until IBM is Decided
Authored by: Anonymous on Thursday, October 05 2006 @ 08:25 AM EDT
SCO will probably file a motion to stall the IBM case until the Novell case is
decided...................................

[ Reply to This | # ]

Memo to SCO from Novell
Authored by: Anonymous on Thursday, October 05 2006 @ 08:36 AM EDT
SCO asks the Court: (1) to stay any briefing or hearing on Novellís Motion until after the end of the trial in the SCO v. IBM litigation (scheduled to begin in February 2007)

Uh - weren't you the one stating in argument III of your opposition memo to stay parts of the case in one of our previous motions that III. THE COURT SHOULD NOT STAY THE NON-ARBITRABLE CLAIMS PENDING ARBITRATION? Specifically, I remember your statement that "But Novell does not (and, based on SCO's research, cannot) cite any authority for the proposition that a potential defense requires a stay of a non-arbitrable claim." Now you believe that a stay is necessary?

Second note - Fourth, in furtherance of its admitted cooperation and joint-defense agreement with IBM in litigating against SCO (which is itself a subject of SCO's claims against IBM), Novell has evidently timed its Motion to interfere with SCO's response to the six (6) motions for summary judgment that IBM filed against SCO on September 25, 2006.

This is a simple response that can be responded to in three simple words to jog your memory: YOU SUED US! If you don't like the reactions that you have, don't file a lawsuit.

Sorry about your luck.

[ Reply to This | # ]

Grant in Part, Deny in Part
Authored by: RFD on Thursday, October 05 2006 @ 08:39 AM EDT
I would like to see the Court immediately, without waiting for Novell to respond, to:

  • Grant SCO a temporary stay on the PSJ,
  • Deny the stay on the PI, and
  • Set an expidited date to hear both Novell's motion for a preliminary injunction and SCO's motion for a longer stay.
  • Then we could sit back and enjoy the fireworks!

    ---
    Eschew obfuscation assiduously.

    [ Reply to This | # ]

    Novell's Intent?
    Authored by: Anonymous on Thursday, October 05 2006 @ 08:51 AM EDT
    Everyone and their brother knows that Novell should go first. If SCO truly
    doesn't own anything then the IBM case just completely falls apart.

    Do you think this was planned by Novell to force the court to decide Novell
    first? If this PI is granted, then SCO will not be able to continue IBM, and I
    think any reasonable judge would grant a lengthy delay in IBM until Novell is
    done (because if SCO wins, it gets its money back).

    Whadda 'ya think?

    [ Reply to This | # ]

    Novell Had Copies of the Agreements? Huh?
    Authored by: Steve Martin on Thursday, October 05 2006 @ 08:59 AM EDT

    By Novell's own admission, moreover, it had copies of the documents over eight months ago, since February 7, 2006.

    How can TSG call this an "undisputed fact" when they offer no substantiation or evidence proving the fact? Looks like this is an unsupported allegation to my IANAL-type eyes.

    Indeed, Novell filed counterclaims on July 29, 2005, in which Novell specifically asserted the right to revenues from the agreements at issue. (See Novell, Inc.'s Answer and Counterclaims, dated July 29, 2005.)

    Um, okay, I took another look at Novell's Amended Counterclaims dated July 29, 2005, and in that filing Novell explicitly states in ¶¶ 73, 101, and 134 that TSG refused / failed to provide these documents when requested. What possessed HJ&D / BS&F to cite this document to support their allegation that Novell received copies of the Sun and Microsoft agreements?? As the Lost In Space robot would say, "that does not compute!"

    ---
    "When I say something, I put my name next to it." -- Isaac Jaffee, "Sports Night"

    [ Reply to This | # ]

    Novell waited for end of IBM discovery?
    Authored by: rkhalloran on Thursday, October 05 2006 @ 09:16 AM EDT
    Could the reason for the delay in Novell's filing be they wanted to wait until
    all SCOX' cards were on the table? This way there's little chance of hearing
    the argument "We could have won if Novell hadn't BK'd us first...".
    At this point we *know* what SCOX's holding [bupkis], and it's time to end the
    charade there's actually a case here.

    SCOX DELENDA EST!!

    [ Reply to This | # ]

    Brilliant Argument
    Authored by: Anonymous on Thursday, October 05 2006 @ 09:29 AM EDT
    Novell: SCOG owes us money. We've been trying to get it for years. We have
    enough evidence to show this money's ownership is contested. We are suing over
    this money. Judge, they are spending this money, and if you don't sock it away
    in trust, it will be gone by the time we go to trial.

    SCOG: Judge, put this decision off until the money is spent.

    [ Reply to This | # ]

    SCO Begs Novell Court to Stay Novell's PSJ/PI Motion Until IBM is Decided
    Authored by: Steve Martin on Thursday, October 05 2006 @ 09:49 AM EDT

    Contrary to Novell's suggestion, moreover, SCO's financial condition gives Novell no more basis to file its instant Motion now than it did over a year ago. As Novell's own memorandum shows (at paragraphs 50 & 51), SCO had less cash reserves a year ago than it does now.

    English translation: "A year ago, I was hurting for money, so since then I went out and took out a ten million dollar loan. See? I have more cash on hand now than I did then! It's all good!"

    Yeah. Right.

    ---
    "When I say something, I put my name next to it." -- Isaac Jaffee, "Sports Night"

    [ Reply to This | # ]

    Where is the supporting legal precedents?
    Authored by: Anonymous on Thursday, October 05 2006 @ 09:51 AM EDT
    SCO seems to make their plea on emotional not legal grounds. Shouldn't there be
    some supporting case law or something? I don't see any legal grounds for
    granting a delay just because Novell could have filed their request earlier. I
    also think undue burden is hard to prove since SCO filed against Autozone,
    Daimler Chrysler, IBM and Novell at the same time. "But your honor, we
    didn't realize that they would mount a vigorout defence" isn't really a
    strong legal argument.

    [ Reply to This | # ]

    My favorite part
    Authored by: Quila on Thursday, October 05 2006 @ 09:55 AM EDT
    Novell has evidently timed its Motion to interfere with SCO's response to the six (6) motions for summary judgment that IBM filed

    SCO brought lawsuits against four other companies, and now they're complaining that it's too difficult to litigate two at the same time? If you can't handle two lawsuits at once, then don't file more than one.

    [ Reply to This | # ]

    Grant Injunction & Delay?
    Authored by: shiptar on Thursday, October 05 2006 @ 09:57 AM EDT
    Could the Judge give them both? They're basically saying they would be hurt by
    responding to everything so quickly, not that we care, but the Judge in all this
    'legal fairness' stuff will probably consider it.

    But this seems like a rather easy case of giving both sides what they want. SCO
    can take their time responding and Novell's money is secure. IBM gets to hammer
    them with their PSJs. Would be a Win/Win.

    [ Reply to This | # ]

    SCO Begs Novell Court to Stay Novell's PSJ/PI Motion Until IBM is Decided
    Authored by: Anonymous on Thursday, October 05 2006 @ 10:21 AM EDT
    Somehow when I read this the image of Little Richard in his latest TV comercial
    came to mind. And he says:

    HELP ME, HELP ME

    [ Reply to This | # ]

    SCO Begs Novell Court to Stay Novell's PSJ/PI Motion Until IBM is Decided
    Authored by: seanlynch on Thursday, October 05 2006 @ 10:37 AM EDT
    Novell will probably agree to the stay, as long ass all of the money SCOX owes
    them is locked up by the Court and held in trust until the stay is lifted.

    No problem waitng, as long as SCOX is bankrupted now and our money is safe!

    [ Reply to This | # ]

    • Yep - Authored by: Anonymous on Thursday, October 05 2006 @ 02:43 PM EDT
    SCO Begs Novell Court to Stay Novell's PSJ/PI Motion Until IBM is Decided
    Authored by: Anonymous on Thursday, October 05 2006 @ 10:48 AM EDT
    Ohh... the horror... er... irony.

    Some of this is just too good to pass up, and I needed a good laugh. How can
    we handle this much "frivolity" ... apparently SCO can't.

    1) file (frivolous) suits with the world
    2) get many stayed round-robin
    3) left with two cases moving forward
    4) (I think) reject the idea of staying all of this Novell case pending
    arbitration
    5) Enlist a gazillion lawyers
    6) whine to judge that they can't handle this much case load
    7) point out that their cash reserves are better than a year ago, because of
    Novell's money that Novell wants back
    8) imply collusion between IBM and Novell on timing of motion practice

    I think this one calls for caramel corn, not just pop corn ;-)

    ...D

    [ Reply to This | # ]

    SCO should push for quick resolution
    Authored by: Anonymous on Thursday, October 05 2006 @ 10:50 AM EDT
    If SCO is confident they should push for a quick resolution to this issue. It
    clearly hits hard at the solvency of SCO in the short and interferes directly
    with any ability to raise more cash.

    It should be resolved ASAP for all parties.
    a) if Novell should have the money then it needs to get it now before more
    becomes unrecoverable
    b) if SCO should have the money then getting this cloud of doubt removed now
    best serves their continued existance.

    The only thing delay serves is if SCO is not concerned about existing later.

    [ Reply to This | # ]

    *Please* don't let it be over yet!
    Authored by: Crocodile_Dundee on Thursday, October 05 2006 @ 10:54 AM EDT
    I'm so close to getting to see an act of this drama happen live when I'm in Salt
    Lake City on the 24th.

    What sort of luck would I have to have for it to crumble before then?

    ---
    ---
    That's not a law suit. *THIS* is a law suit!

    [ Reply to This | # ]

    SCO will be denied, then appeal and get the delay
    Authored by: Anonymous on Thursday, October 05 2006 @ 10:56 AM EDT
    Situation 1. Novells motion granted. SCO will then appeal and it will take 3
    months to get a ruling from the court. SCO wins. Hate to say it, but it likely.

    [ Reply to This | # ]

    Hitler's three-front war
    Authored by: joef on Thursday, October 05 2006 @ 11:12 AM EDT
    Students of not-so-ancient history can see what happened when he took on the
    Brits and Russians and tried to seize North Africa all at once, then declared
    war on the US. Apply that to SCO's decision to take on IBM, Novell,
    Daimler-Chrysler, and Autozone. Of course, Red Hat jumped into the fray at
    their own choice when they felt the collateral damage. And SCO tops it by
    threatning another 1498 potential targets at the same time.

    History has a way of dealing with madmen.

    [ Reply to This | # ]

    SCO Begs Novell Court to Stay Novell's PSJ/PI Motion Until IBM is Decided
    Authored by: dcf on Thursday, October 05 2006 @ 11:27 AM EDT

    It's incredible what nonsense SCO is willing to put in black and white. For example

    1st ground for relief: We haven't done discover on this amended counterclaim. Oddly, though, the example they give is that Novell just filed discovery requests related to this issue.

    3rd ground: Novell moved to stay, so now that they didn't get the whole trial stayed, they have forfeited their rights to file motions which advance the rest of the trial. Besides, this motion hinges on issues that were stayed because

    1. They are both about APA violations. Never mind that the stayed issue is SCO's allegation that Novell violated that APA by distributing SuSE, while this motion is about Novell's allegation that SCO violated the APA by failing to turn over their money. SCO seems to argue that all APA violations have to be decided at once. Apparently they don't understand the meaning of a Motion for Partial Summary Judgement.
    2. This motion depends on the stayed issue of whether Novell violated SCO's copyrights. After arguing that its claims against IBM are contract issues and don't depend on copyright, SCO now seems to argue that it doesn't have to comply with its contract terms if it accuses the other party of copyright violation.

    4th ground: we don't have enough lawyers; please call back later

    5th ground: discovery again, and again they aren't claiming that they have to finish discovery in order to respond the PSJ motion, but that Novell shouldn't be able to file this and ask for discovery at the same time.

    6th ground: The loan shark is asking for the money we owe him, and he isn't buying our plan to spend it all on lottery tickets and pay him back once we've won.

    [ Reply to This | # ]

    From Parent Poster
    Authored by: Anonymous on Thursday, October 05 2006 @ 11:30 AM EDT
    This is going to sound a little rude I suppose...
    I really don't care about IBM and/or Novell getting money from SCO.
    SCO is going down due to thier own business practices. If all the court cases
    magically blinked out, they would still crash hard.
    As one of the posters put it, MS pays SCO $3.50 for the Unix blah blah blah,
    here we go again. Wash, rinse, repeat.
    I want this DONE, wrapped up tight and over with. I don't want SCO (or trustee)
    to settle anything.
    The goal should not be to shut SCO down, it should be to legitimize Linux and
    the GPL.

    [ Reply to This | # ]

    SCOGs biggest worry....
    Authored by: Anonymous on Thursday, October 05 2006 @ 11:44 AM EDT

    I'm thinking SCOGs biggest worry at this point is having someone come in control of the situation that is not part of Darl's little game. Imagine the following:

    1. SCOG has to file for bankruptcy protection!
    2. Control of the company is effectively put in the hands of a bankruptcy over-seer assigned by the court.
    3. The bankruptcy over-seer starts examining all the "evidence" SCOG has with regard to the court cases.
    4. Do the orders being given to BSF suddenly alter so that the fight no longer continues?
    That's my guess - without actually knowing how bankruptcy proceedings work - at what SCOG is really worried about. Imagine someone coming in and being able to see everything. What's the potential fraud charges would be more likely applied?

    RAS

    [ Reply to This | # ]

    SCO Begs Novell Court to Stay Novell's PSJ/PI Motion Until IBM is Decided
    Authored by: mtew on Thursday, October 05 2006 @ 11:58 AM EDT

    First, I am not a lawyer (INL - I note that the other abbreviation has a slightly inappropriate component).

    I believe that Novel gets to respond to this.  I expect that the following points (and probably others) will be included:

    • tSCOg admits that they are in financial trouble, therefore the Preliminary Injunction is now more necessary than ever.  As for the arbitration, we filed when we were required to.  We were not about to forgo our rights in this regard.  (Re: Reason 6.)
    • Yes, we want more discovery.  We've just gotten the information we need to make these allegations.  However, the trust needs to be established before the stay tSCOg has asked for is granted.  (Re: Reason 1.)
    • These claims are timely because we have only recently received the proof to substantiate them.  We've not been able to make these claims before this because of tSCOg's lackadaisical response to discovery requests.  (Re: Reason 2.)
    • Yes, we asked for a stay in relation to the arbitration but that request was denied in part.  The arbitration is proceeding.  We're willing to abide by the previous decision of the court on this issue.  (Re: Reason 3.)
    • We don't object to a stay as long the trust is set up first.  As for the problems tSCOg has with IBM, that was tSCOg's decision when they sued us.  They buttered their bed and must now lie in it.  As for working with IBM, a) tSCOg has already agreed that we are allowed to do this (see protective order) and b) this really is none of tSCOg's business.  (Re: Reason 4.)
    • Some of the discovery already done is related to these claims.  Of course we want more.  However, we still need to set up the trust to protect our property first.  (Re: Reason 5.)

    In other words, let them delay all they want as long as the money is safe.  They are only hurting themselves.

    ---
    MTEW

    [ Reply to This | # ]

    Paranoid thought?
    Authored by: jplatt39 on Thursday, October 05 2006 @ 12:04 PM EDT
    Could this be a result of contacts between Kimball and one or both sets of
    lawyers so the disposition of this motion could possibly have nothing to do with
    what outsiders perceive as its merits?

    When would that be legal, if it were true?

    [ Reply to This | # ]

    SCO Begs Novell Court to Stay Novell's PSJ/PI Motion Until IBM is Decided
    Authored by: wharris on Thursday, October 05 2006 @ 12:10 PM EDT
    It's worth remembering that this motion is only about
    whether or not SCO will have more time to respond to
    Novel; it is not itself a defence against Novel's motion
    for injunction.

    I think SCO will get a small additional time to reply, but
    far less than they are asking for. They give no good
    reasons for a delay, and their bad reasons are comical "We
    need more time because Novell filed too late. No, they
    filed too early. No, they timed their filings". "We need
    more time because when we opposed the stay of this case we
    didn't realize that the IBM case was ongoing" "We need
    more time because how dare Novel continue pursuing hte
    case after their motion to stay was denied in part" And
    last but far from least "We need more time because we
    haven't finished spending Novel's money"

    [ Reply to This | # ]

    SCO Begs Novell Court to Stay Novell's PSJ/PI Motion Until IBM is Decided
    Authored by: Yossarian on Thursday, October 05 2006 @ 01:26 PM EDT
    Legally speaking, Novell has a legitimate issue. It believes,
    rightly or wrongly, that SCO should pay it big $$$$. If IBM
    will skin SCO, Novell will not get its $$$$. So if I were
    Novell I'd offer the court a simple deal:
    1) SCO will put the $$$$ in an escrow.
    2) *Afer* the $$$$ are secured, the court may delay the trial.

    If the judge will believe that Novell claims have a merit, he
    may order just that for the following reason:
    Such a deal will save the court time - some SCO vs. Novell
    issues may be moot after SCO vs. IBM, and it will still
    protect Novell's legitimate interest.

    [ Reply to This | # ]

    Impact of requested delay on Redhat vs. SCO?
    Authored by: Anonymous on Thursday, October 05 2006 @ 03:35 PM EDT
    Didn't the Redhat judge imply that any further significant delays / changes in
    schedule on either the IBM or Novell cases, would be reason to reconsider / lift
    the stay she imposed?

    It would be pretty funny for SCO to get a small delay (30days?) to respond and
    then have the Redhat case re-opened.

    [ Reply to This | # ]

    Reply to SCO's motion
    Authored by: Reven on Thursday, October 05 2006 @ 04:08 PM EDT
    1) Discovery closes in less than 30 days - you expected to do substantial
    discovery in that time?

    2) Wait a minute, first you complain that our summary judgement request arises
    from a cause that was just added, so you need more discovery, now you're saying
    it's been too long? So what is it, it's too soon or too late?

    3) We were willing then to stay this whole thing for arbitration - you opposed
    that. Not our fault you opposed it. If you didn't want us to proceed, you
    should have stipulated to our motion to stay. Since you wanted it to proceed,
    we're proceeding. Can't go back now because you don't like the way we're
    proceeding.

    4) Note to SCO - YOU SUED US. You sued IBM too. If you didn't think you could
    handle two simultaneous litigations, you shouldn't have sued both of us.

    5) Some motions are granted. Some are denied. As noted above, you chose to
    oppose the motion to stay, so you wanted it to be denied. You can't ask for a
    motion to be denied and then complain you didn't do your homework because the
    motion might have been granted.

    6) Seems to be two arguments here. First of all, the court has already ruled on
    whether the arbitration was timely. Secondly, Novel's concern for SCO's
    finances are quite real. We want you to be solvent enough to give us the money
    you owe us. We recognize that the arbitration is going to be costly - that's
    WHY we made our move to ask for our money. We don't want you using our money
    to defend yourself against our arbitration. We'll stipulate to the fact that,
    after we get our money, we don't give a misused method about your finances.

    ---
    Ex Turbo Modestum

    [ Reply to This | # ]

    SCO Begs Novell Court to Stay Novell's PSJ/PI Motion Until IBM is Decided
    Authored by: Maciarc on Thursday, October 05 2006 @ 04:58 PM EDT
    Hey Novell, copy this into your reply!
    Accordingly, the Court should proceed with resolution of claims and issues the parties did not agree to arbitrate, in accordance with the agreed-upon scheduling order. Because Novell SCO has offered no compelling reason to overcome the heavy presumption against a stay of non-arbitrable issues, and because a stay would be contrary to the interest of judicial efficiency and unfairly prejudicial to SCO Novell, there is no valid reason for any stay.
    The original is an exerpt from SCO'S MEMORANDUM IN OPPOSITION TO NOVELL'S MOTION TO STAY CLAIMS RAISING ISSUES SUBJECT TO ARBITRATION, filed 05/26/2006, page 26 (p. 31 of 32 in the pdf).

    ---
    IANAL and I don't play one on TV, this is just an "anti-SCO Philippic."

    [ Reply to This | # ]

    I wonder how long this will take...
    Authored by: thombone on Thursday, October 05 2006 @ 04:59 PM EDT
    I wonder when we'll see a decision on this?

    I mean, how long it may take?

    [ Reply to This | # ]

    This is BAD news
    Authored by: ThatBobGuy on Thursday, October 05 2006 @ 07:44 PM EDT
    I want to see this played out. I want to see the courts decide that this was
    all rediculous. I want the GPL, IBM, Novell, Autozone, etc to be vindicated.
    Having this handled by the trustee, I think, is the second worst possible
    outcome.
    As one poster put (sorry, don't have nym), someone else buys the "unix
    rights" and we start all over again.. three years later, here we are.
    I think Novell is justified, but I have to admit, I hope SCO wins the delay :(.

    [ Reply to This | # ]

    Die already
    Authored by: Anonymous on Thursday, October 05 2006 @ 08:40 PM EDT
    This motion is just another groan in SCO's death cry.

    Those involved need a little more time to bleed SCO dry. It won't be quick.
    BSF needs their billable hours to exceed the upfront payment so that the
    bankruptsy court doesn't come back on them.

    Darl and company should start jumping ship soon. I wonder if Microsoft or Sun
    are hiring.



    [ Reply to This | # ]

    Yet another irony.
    Authored by: darkonc on Saturday, October 07 2006 @ 12:04 AM EDT
    SCOg is arguing that Novell shouldn't be allowed to apply for an injunction because they applied to have the case stayed. But SCO won their fight to have the case go ahead on the non-arbitrated portions...

    So now they're whining that more motions are coming at them from a case that they fought to not have stayed.

    Boy, oh boy do I not feel sorry for them.

    ---
    Powerful, committed communication. Touching the jewel within each person and bringing it to life..

    [ Reply to This | # ]

    What if game
    Authored by: Anonymous on Saturday, October 07 2006 @ 01:01 AM EDT
    IANAL, and I want to know about this possibilities :

    Assume that SCO win in IBM vs SCO and get some monies. Later, NOVELL win in
    NOVELL vs SCO and the conclusion is no copyright for SCO and SCO is not
    successor interest of AT&T.

    What will happen with IBM money that have been awarded to SCO ?.

    [ Reply to This | # ]

    Groklaw © Copyright 2003-2013 Pamela Jones.
    All trademarks and copyrights on this page are owned by their respective owners.
    Comments are owned by the individual posters.

    PJ's articles are licensed under a Creative Commons License. ( Details )