|
SCO Asks for More Time in Novell, Again |
|
Saturday, March 10 2007 @ 10:29 AM EST
|
SCO has asked [PDF] the Court for more time to respond to Novell's Opposition to SCO's Cross Motion for PSJ on Novell's Fourth Claim for Relief, which was filed under seal. It's a cross motion, because Novell has its own Motion for Partial Summary Judgment on its 4th Counterclaim for Relief [PDF) so both sides are asking for a ruling on that counterclaim to go their way. You'll remember SCO asked for and, despite Novell's opposition, eventually got more time to respond to that motion too. Delay, delay, delay. SCO's middle name.
To refresh your memory, this is the Novell counterclaim asking the Court for a declaration that Novell had and has the right to waive SCO's claims against IBM and Sequent, and that SCO be obligated to recognize Novell's waiver of SCO's purported claims against IBM and Sequent. Novell also seeks a declaration that SCO was obligated to seek Novell's "prior approval to enter into new SVRX licenses or amendments to SVRX licenses, including SCO's agreements with Sun, Microsoft and other licensees of SCO's Intellectual Property Licenses", unless it could demonstrate that they qualified under two exceptions.
Novell then has an interesting alternative request for relief, namely for a declaration "that SCO had no authority to enter into the Sun and Microsoft SVRX Licenses, as well as the Intellectual Property Licenses with Linux end users and UNIX vendors".
SCO filed their Cross Motion for PSJ on this issue on January 18th [PDF],
on the asserted grounds that "the evidence of the parties’ intent under the APA and Amendments thereto is undisputed in
SCO’s favor." Undisputed. ! ?
Assuming this request is granted, and SCO says Novell doesn't oppose, then SCO's Reply will be due on this coming Friday, March 16th.
For reference, Novell's Counterclaims are here [PDF] and Groklaw's chart showing the Novell Counterclaims and SCO's Reply is here.
Novell's 4th claim for relief reads like this: FOURTH CLAIM FOR RELIEF
(Declaratory Relief: Rights and Duties under § 4.16(b) of the
Asset Purchase Agreement, § B of Amendment No. 2)
117. Novell incorporates by reference all prior paragraphs as if they were set forth here in
full.
26
118. Under § 4.16(b) of the APA, Novell has the right, at its sole discretion, to direct
SCO to waive any rights under any SVRX Licenses. In the event that SCO fails to take any such
action at Novell's direction, § 4.16(b) gives Novell the right to take any action on SCO's own
behalf. SCO refused to perform its corresponding duties under § 4.16(b) and substantially and
materially breached § 4.16(b) by:
a. Purporting to cancel or terminate SVRX licenses, including the IBM and
Sequent SVRX licenses, and then refusing to waive these purported rights
as directed by Novell; and
b. Refusing to recognize actions taken by Novell on SCO's behalf pursuant
to § 4.16(b), including Novell's waiver of SCO's purported claims against
IBM and Sequent.
119. Novell seeks a declaration pursuant to 28 U.S.C. § 2201 that:
a. Under § 4.16(b) of the APA, Novell is entitled, at its sole discretion, to
direct SCO to waive its purported claims against IBM, Sequent and other
SVRX licensees; and
b. Under § 4.16(b) of the APA, Novell is entitled to waive on SCO's behalf
SCO's purported claims against IBM, Sequent and other SVRX licensees,
when SCO refuses to act as directed by Novell; and
c. SCO is obligated to recognize Novell's waiver of SCO's purported claims
against IBM and Sequent.
120. Under § 4.16(b) of the APA, SCO is obligated to seek Novell's prior approval to
enter into new SVRX Licenses or amendments of SVRX Licenses, subject to limited exception.
SCO did not perform its corresponding duties under § 4.16(b) and substantially and materially
breached § 4.16(b) by:
a. Purporting to enter into new SVRX licenses without Novell's prior
approval, including agreements with Sun, Microsoft and other licensees of
27
SCO's Intellectual Property Licenses, without demonstrating that either of
two limited exceptions was applicable; and
b. Purporting to enter into amendments of SVRX Licenses without Novell's
prior approval, including agreements with Sun, Microsoft and other
licensees of SCO's Intellectual Property Licenses, without demonstrating
that a limited exception was applicable.
121. Novell seeks a declaration pursuant to 28 U.S.C. § 2201 that:
a. Under § 4.16(b) of the APA, SCO was obligated to seek Novell's prior
approval to enter into new SVRX licenses or amendments to SVRX
licenses, including SCO's agreements with Sun, Microsoft and other
licensees of SCO's Intellectual Property Licenses; and
b. Under § 4.16(b) of the APA, SCO is obligated to seek Novell's prior
approval to enter into new SVRX licenses or amendments to SVRX
licenses, unless SCO can demonstrate to Novell that any exceptions to the
prohibitions against new licenses and amendments by SCO are applicable.
122. Under § B of Amendment No. 2 to the APA, SCO is obligated to consult Novell and
obtain Novell's approval before concluding any potential buy-out transaction with an SVRX
licensee. SCO did not perform its corresponding duties under § B of Amendment No. 2 and
substantially and materially breached § 4.16(b) by entering into the 2003 Agreement with Sun
without consulting Novell or securing Novell's prior approval.
123. Novell pleads in the alternative for a declaration pursuant to 28 U.S.C. § 2201 that
SCO had no authority to enter into the Sun and Microsoft SVRX Licenses, as well as the
Intellectual Property Licenses with Linux end users and UNIX vendors.
***************************** Brent O. Hatch (5715)
Mark F. James (5295)
HATCH, JAMES & DODGE
[address]
[phone]
Robert Silver (admitted pro hac vice)
Edward Normand (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address]
[phone]
Stuart H. Singer (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address]
[phone]
Stephen N. Zack (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address]
[phone]
Attorneys for The SCO Group, Inc.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
THE SCO GROUP, INC.,
a Delaware corporation,
Plaintiff /Counterclaim-Defendant,
v.
NOVELL, INC.,
a Delaware corporation,
Defendant/Counterclaim-Plaintiff.
MOTION FOR EXTENSION OF TIME
TO REPLY TO NOVELL'S
OPPOSITION TO SCO'S CROSS
MOTION FOR PARTIAL SUMMARY
JUDGMENT ON NOVELL'S FOURTH
CLAIM FOR RELIEF
Case No. 2:04CV00139
Honorable Dale A. Kimball
Magistrate Judge Brooke C. Wells
1
Plaintiff/Counterclaim-Defendant The SCO Group, Inc. ("SCO"),
through counsel, hereby moves the Court for an extension of time to
reply to Novell's Opposition to SCO's Cross Motion for Partial
Summary Judgment on Novell's Fourth Claim for Relief filed by
Defendant/Counterclaim-Plaintiff Novell, Inc. ("Novell").
SCO respectfully requests that it be granted an extension of
time, to and including March 16, 2007, within which to file a
response to Novell's opposition. Counsel for SCO has conferred with
counsel for Novell regarding the requested extension. Novell's
counsel does not oppose SCO's request for an extension of the
deadline to March 16, 2007.
DATED this 9th day of March, 2007.
HATCH, JAMES & DODGE, P.C.
Brent O. Hatch
Mark F. James
BOIES, SCHILLER & FLEXNER LLP
Robert Silver
Stuart H. Singer
Stephen N. Zack
Edward Normand
Counsel for The SCO Group, Inc.
By __/s/ Edward Normand______________
2
CERTIFICATE OF SERVICE
Plaintiff/Counterclaim-Defendant, The SCO Group, Inc., hereby
certifies that a true and correct copy of the foregoing was served
on Defendant/Counterclaim-Plaintiff, Novell, Inc., on this 9th day
of March, 2007, via CM/ECF upon the following:
Thomas R. Karrenberg
John P. Mullen
Heather M. Sneddon
ANDERSON & KARRENBERG
[address]
Michael A. Jacobs
Matthew I. Kreeger
Kenneth W. Brakebill
MORRISON & FOERSTER
[address]
_______/s/ Edward Normand________
3
|
|
Authored by: WhiteFang on Saturday, March 10 2007 @ 10:34 AM EST |
If I had a penny for every second SCOX has delayed these trials ... I'd be RICH
- Teh the MOON!
On the other hand, I'd give more than a pretty penny to know Judge Kimball's
thoughts whenever he sees a new delay request from SCOX.
---
The court cannot really consider the merits of SCO's case unless it has one.
Nothing on the horizon so far. - PM
We can all read SF ... for a day. - Peter H. S[ Reply to This | # ]
|
|
Authored by: WhiteFang on Saturday, March 10 2007 @ 10:36 AM EST |
.
---
The court cannot really consider the merits of SCO's case unless it has one.
Nothing on the horizon so far. - PM
We can all read SF ... for a day. - Peter H. S[ Reply to This | # ]
|
|
Authored by: MathFox on Saturday, March 10 2007 @ 10:37 AM EST |
Other Legal and Open Source issues
---
If an axiomatic system can be proven to be consistent and complete from within
itself, then it is inconsistent.[ Reply to This | # ]
|
- "/bin" (Again) - Dr Salus? - Authored by: Simon G Best on Saturday, March 10 2007 @ 11:08 AM EST
- A Microsoft question - Authored by: Alan(UK) on Saturday, March 10 2007 @ 11:27 AM EST
- A Microsoft question - Authored by: Anonymous on Saturday, March 10 2007 @ 11:40 AM EST
- A Microsoft question - Authored by: MrCharon on Saturday, March 10 2007 @ 12:08 PM EST
- A Microsoft question - Authored by: Anonymous on Saturday, March 10 2007 @ 12:31 PM EST
- You wasted your hard earned £1 just use Linux - Authored by: Anonymous on Saturday, March 10 2007 @ 01:10 PM EST
- A Microsoft question - Authored by: Anonymous on Saturday, March 10 2007 @ 01:55 PM EST
- A Microsoft question - Authored by: Anonymous on Saturday, March 10 2007 @ 06:51 PM EST
- Why is a client / Server model needed? - Authored by: Anonymous on Saturday, March 10 2007 @ 07:45 PM EST
- A Microsoft question - Authored by: Anonymous on Saturday, March 10 2007 @ 07:46 PM EST
- There is a Reason Why it Works Like This. - Authored by: Anonymous on Saturday, March 10 2007 @ 11:01 PM EST
- Microsoft Charity Open Licensing - Authored by: Anonymous on Sunday, March 11 2007 @ 06:15 AM EDT
- Thank you everyone - Authored by: Alan(UK) on Sunday, March 11 2007 @ 07:54 AM EDT
- SME Server - Authored by: Anonymous on Tuesday, March 13 2007 @ 10:40 AM EDT
- Some differences between Associated Press and Reuters. - Authored by: Brian S. on Saturday, March 10 2007 @ 11:38 AM EST
- October 14, 2002: "Reuters, Microsoft launch IM for financial services" - Authored by: Brian S. on Saturday, March 10 2007 @ 11:52 AM EST
- Reuters - Authored by: Brian S. on Saturday, March 10 2007 @ 12:05 PM EST
- Some differences between Associated Press and Reuters. - Authored by: Anonymous on Saturday, March 10 2007 @ 12:07 PM EST
- Associated Press - Authored by: Brian S. on Saturday, March 10 2007 @ 12:20 PM EST
- Some differences between Associated Press and Reuters. - Authored by: PolR on Saturday, March 10 2007 @ 05:23 PM EST
- This is what I find different . - Authored by: Brian S. on Saturday, March 10 2007 @ 10:48 PM EST
- Edward Kozell - Authored by: Brian S. on Saturday, March 10 2007 @ 11:20 PM EST
- Penny Hughes - Authored by: Brian S. on Saturday, March 10 2007 @ 11:26 PM EST
- Lawton W. Fitt - Authored by: Brian S. on Saturday, March 10 2007 @ 11:31 PM EST
- Sir Deryck Maughan - Authored by: Brian S. on Saturday, March 10 2007 @ 11:41 PM EST
- Ken Olisa - Authored by: Brian S. on Saturday, March 10 2007 @ 11:53 PM EST
- Dick Olver - Authored by: Brian S. on Sunday, March 11 2007 @ 12:00 AM EST
- Ian Strachan - Authored by: Brian S. on Sunday, March 11 2007 @ 12:16 AM EST
- David Grigson - Authored by: Brian S. on Sunday, March 11 2007 @ 12:25 AM EST
- Devin Wenig - Authored by: Brian S. on Sunday, March 11 2007 @ 12:34 AM EST
- Nandan Nilekani - Authored by: Brian S. on Sunday, March 11 2007 @ 12:43 AM EST
- Roemary Martin - General Counsel & Company Secretary . - Authored by: Brian S. on Sunday, March 11 2007 @ 12:48 AM EST
- This is what I find different . - Authored by: PolR on Sunday, March 11 2007 @ 12:27 PM EDT
- Actually, this is the way the press works. - Authored by: Anonymous on Saturday, March 10 2007 @ 10:51 PM EST
- PJ again? - Authored by: Anonymous on Saturday, March 10 2007 @ 01:51 PM EST
- Sun are "getting it" - Authored by: tiger99 on Saturday, March 10 2007 @ 02:47 PM EST
- News Pick - Ars - US DOJ: Microsoft dragging feet on documentation - Authored by: kh on Sunday, March 11 2007 @ 03:21 AM EDT
- it's only fair to give them back the hour - Authored by: Anonymous on Sunday, March 11 2007 @ 09:36 AM EDT
|
Authored by: jmc on Saturday, March 10 2007 @ 10:50 AM EST |
The ridiculous thing about this delay is that SCO has just covered exactly the
same ground in the IBM case as it's one of the prongs of IBM's argument against
SCO's contract claim.[ Reply to This | # ]
|
|
Authored by: webster on Saturday, March 10 2007 @ 12:25 PM EST |
..
This is not a delay. Unless you change the trial date, it is not a delay.
Novell consents to this request. These lawyers are working on other matters and
take vacations. Thbings come up. You try and grant these requests because you
may be the one asking for more time for the next deadline. You like to be
courteous and reasonable. Pay it no mind.
---
webster
[ Reply to This | # ]
|
|
Authored by: Anonymous on Saturday, March 10 2007 @ 01:05 PM EST |
How much spin does a filing need to have in it before a judge takes notice? And
what do they do when/if they take notice?[ Reply to This | # ]
|
- Undisputed? - Authored by: charlieo on Saturday, March 10 2007 @ 01:07 PM EST
- Undisputed? - It's another half truth - half lie - Authored by: Anonymous on Saturday, March 10 2007 @ 01:42 PM EST
- To clarify - Authored by: Anonymous on Saturday, March 10 2007 @ 04:29 PM EST
- By this time, the judge KNOWS, fear not. - Authored by: Anonymous on Saturday, March 10 2007 @ 04:30 PM EST
- Microsoft case - Authored by: Anonymous on Saturday, March 10 2007 @ 06:07 PM EST
- Microsoft case - Authored by: Anonymous on Saturday, March 10 2007 @ 09:15 PM EST
- Undisputed? - Authored by: Anonymous on Saturday, March 10 2007 @ 05:24 PM EST
- BSF redefining reality - Authored by: Anonymous on Saturday, March 10 2007 @ 05:42 PM EST
- Undisputed? - Authored by: gnusensibility on Saturday, March 10 2007 @ 07:38 PM EST
|
Authored by: papafox on Sunday, March 11 2007 @ 08:41 AM EDT |
Novell then has an interesting alternative request for relief,
namely for a declaration "that SCO had no authority to enter into the Sun and
Microsoft SVRX Licenses, as well as the Intellectual Property Licenses with
Linux end users and UNIX vendors".
Looks like Novell will be
able to get its money, even though SCO has spent it, by charging Sun and
Microsoft a second time for their licenses. [ Reply to This | # ]
|
|
|
|
|