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| SCO Asks Judge Kimball for an Entry of Final Judgment So It Can Appeal Some Issues Immediately - Updated |
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Wednesday, August 29 2007 @ 06:29 PM EDT
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I gather SCO has noticed that the SCO v. IBM litigation won't be nearly so annoying to IBM unless it does something fast about Judge Dale Kimball's August 10th ruling, which pared that case, like all of SCO's cases, down to almost nothing but the counterclaims against SCO. So it's asking the court to enter a final judgment on certain matters the ruling decided, so it can seek an immediate appeal on those issues, such as whether it owns the UNIX and Unixware copyrights after all and whether Novell has the authority to tell SCO to waive any purported breach of contract by licensees. Those are the two that shot arrows straight through SCO's heart. Well. The heart of its litigation. I believe the evidence before us demonstrates that SCO is a corporation, and hence it has no heart. Otherwise, SCO has to wait until Novell goes through trial to a verdict and then appeal, and while it is in the appeal process, IBM would go forward in its now much smaller version, based on the August 10th ruling. SCO would rather appeal right away so it can try all its claims in IBM, should it successfully appeal the judge's order. The trial starts, though, in less than a month and it will last less than a week, so none of this makes any sense if you look at a calendar. I think, therefore, it must be about FUD, so it sounds like SCO is on the move again or something.
Here's the PACER entry:
410 -
Filed & Entered: 08/29/2007
Motion for Entry of Judgment
Docket Text: Plaintiff's MOTION for Entry of Judgment PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 54(b) filed by Plaintiff SCO Group. (Attachments: # (1)
Text of Proposed Order)(Normand, Edward)
411 -
Filed & Entered: 08/29/2007
Memorandum in Support of Motion
Docket Text: Plaintiff's MEMORANDUM in Support re [410] Plaintiff's MOTION for Entry of Judgment PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 54(b) filed by Plaintiff SCO Group. (Attachments: # (1) Exhibit A-C: Unpublished Cases)(Normand, Edward) The Memorandum ends by saying this: "SCO submits that for these reasons, the entry of final judgment pursuant to Rule 54(b) is appropriate so SCO can take an immediate appeal." Here's the Federal Rule of Civil Procedure SCO is relying on, 54(b): (b) Judgment Upon Multiple Claims or Involving Multiple Parties.
When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.
SCO's argument is that the issues it wants to appeal are not intertwined with what's left to go to trial, so it's better for SCO to appeal them now, and it won't cause any confusion or difficulties. Update: More on PACER. The parties have filed a joint statement telling the court they think the trial will only last four or five days now and Novell asks to pull some surplus lawyers from the list: 412 -
Filed & Entered: 08/29/2007
Status Report
Docket Text: STATUS REPORT (Joint Statement Regarding Trial Length) by Novell, Inc.. (Sneddon, Heather)
413 -
Filed & Entered: 08/29/2007
Motion to Withdraw
Docket Text: MOTION to Withdraw Matthew I. Kreeger, Johnathan Mansfield and Maame A.F. Ewusi-Mensah as Counsel for Novell, Inc. filed by Defendant Novell, Inc.. Motions referred to Brooke C. Wells.(Sneddon, Heather)
414 -
Filed & Entered: 08/29/2007
Memorandum in Support of Motion
Docket Text: MEMORANDUM in Support re [413] MOTION to Withdraw Matthew I. Kreeger, Johnathan Mansfield and Maame A.F. Ewusi-Mensah as Counsel for Novell, Inc. filed by Defendant Novell, Inc.. (Attachments: # (1) Text of Proposed Order)(Sneddon, Heather) If you are curious about the rules of the road for appeals, here's the resource page. There you will find the 2007 Federal Rules of Appellate Procedure and Tenth Circuit Rules [PDF], a memo on changes, and this handy Practitioner's Guide [PDF]. In it, you will learn that the Supreme Court almost never accepts cases from the Tenth Circuit, which is what Utah is, so for all practical purposes, the court of appeals in Denver, Colorado is likely SCO's last resort.
***************************
Brent O. Hatch (5715)
Mark F. James (5295)
HATCH, JAMES & DODGE, PC
[address, phone, fax]
David Boies (admitted Pro Hac Vice)
Robert Silver (admitted Pro Hac Vice)
Edward Normand (admitted Pro Hac Vice)
BOIES SCHILLER & FLEXNER LLP
[address, phone, fax]
Devan V. Padmanabhan (admitted Pro Hac Vice)
DORSEY & WHITNEY LLP
[address, phone, fax]
Stephen N. Zack (admitted Pro Hac Vice)
BOIES SCHILLER & FLEXNER LLP
[address, phone, fax]
Stuart Singer (admitted Pro Hac Vice)
BOIES SCHILLER & FLEXNER LLP
[address, phone, fax]
Attorneys for Plaintiff, 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,
vs.
NOVELL, INC., a Delaware corporation,
Defendant/Counterclaim-Plaintiff.
__________________________
SCO'S MEMORANDUM IN SUPPORT OF
ITS MOTION FOR ENTRY OF FINAL
JUDGMENT PURSUANT TO FEDERAL
RULE OF CIVIL PROCEDURE 54(b)
Civil No. 2:04 CV-000139
Judge Dale A. Kimball
Magistrate Brooke C. Wells
________________________
Plaintiff/Counterclaim-Defendant, The SCO Group, Inc. ("SCO"), respectfully submits
this Memorandum in Support of SCO's Motion for Entry of Final Judgment Pursuant to Federal
Rule of Civil Procedure 54(b).
ARGUMENT
SCO respectfully requests that the Court enter final judgment under Rule 54(b) with
respect to those claims which are fully and completely resolved by the Court's granting of
summary judgment motions in its Order dated August 10, 2007 (the "Order"). The questions
under Rule 54(b) are whether the Court has made "a decision upon a cognizable claim for relief"
in the sense that it is "an ultimate disposition of an individual claim entered in the course of a
multiple claims action," and whether there is any "just cause for delay" of an appeal from the
decision. Curtiss-Wright Corp. v. Gen. Elec. Co., 446 U.S. 1, 7 (1980); accord McKibben v.
Chubb, 840 F.2d 1525, 1528-29 (10th Cir. 1988). With respect to certain of SCO's claims and
Novell's counterclaims, the Order satisfies each requirement.
The Order finally and fully resolves the following: (1) SCO's First Claim for Relief, for
Slander of Title; (2) that portion of SCO's Second Claim for Relief alleging that Novell breached
the covenant of good faith and fair dealing in its exercise of asserted rights under Section 4.16(b)
of the Asset Purchase Agreement ("APA"); (3) SCO's Third Claim for Relief, seeking specific
performance; and (4) that portion of Novell's Fourth Claim for Relief relating to Novell's request
for a declaration of rights and duties under Section 4.16(b) of the APA. In granting summary
judgment on those claims, the Court has reached an ultimate disposition that Novell owns the
UNIX and UnixWare copyrights that it owned as of the date of the APA, and that Novell has the
1
right to direct SCO to waive its breach-of-contract claims against International Business
Machines Corporation ("IBM").
SCO submits that there is no just cause for delay in SCO's appeal from the Court's
disposition of the foregoing claims and issues. This inquiry turns on "the hardship or injustice
that might be inflicted on a litigant because of the delay." United Bank of Pueblo v. Hartford
Acc. & Indem. Co., 529 F.2d 490, 492 (10th Cir. 1976). The party invoking Rule 54(b) need not
show that "harsh or unusual circumstances" merit the entry of final judgment; instead, "the
proper standard against which a district court's exercise of discretion in granting a Rule 54(b)
certification is to be judged is the interest of sound judicial administration." Curtiss-Wright, 446
U.S. at 9. In applying this "balancing test," the Court should "consider such factors as whether
the claims under review were separable from the others remaining to be adjudicated and whether
the nature of the claims already determined was such that no appellate court would have to
decide the same issues more than once even if there were subsequent appeals." Id. at 8; accord
McKibben, 840 F.2d at 1528.
The claims on which SCO seeks entry of final judgment are separable from the others
remaining to be adjudicated. Neither the approaching trial nor the stayed claims in this matter
concern the question of the ownership of the UNIX or UnixWare copyrights or the scope of
Novell's rights under Section 4.16(b) of the APA. See, e.g., McKibben, 840 F.2d at 1529 (entry
of Rule 54(b) judgment is appropriate where appeal presents factually and legally distinct
issues); Bd. of Country Comm'rs of Kane County v. Dep't of the Interior of the U.S., No. 2:06-CV-209-TC, 2007 WL 2156613, at *1 (D. Utah July 26, 2007) (Ex. A.) (same). Accordingly, in
any subsequent appeals, the Tenth Circuit would not have to address this Court's resolution of
2
those issues. Where no risk of redundant appeals is presented, entry of final judgment under
Rule 54(b) is appropriate. See, e.g., Shelter v. Mut. Ins. Co. v. Clark, No. CIV-06-753-F, 2007
WL 2177804, at *2 (W.D. Okla. July 27, 2007) (Ex. B.) (entry of Rule 54(b) judgment is
appropriate where there is no risk of redundant, piecemeal appeals); DirecTV, Inc. v. Turner,
Civ. A. No. 03-2287-CM, 2007 WL 1747479, at *1 (D. Kan. June 18, 2007) (Ex. C) (same).
In addition, the appeal will resolve issues central to the operation of SCO's business and
its financial status including Novell's authority to direct SCO to make decisions affecting its
contractual rights in the operation of its business, and its assertion of those rights against IBM. It
is especially appropriate for the way to be clear for an expeditious appeal of these issues since
they impact the SCO v. IBM case and other pending litigation pending involving SCO's
intellectual property right.1 SCO respectfully submits that an appeal from the Court's disposition
of the foregoing claims involves substantial issues.
One such substantial issue is the determination that in selling the UNIX business to Santa
Cruz, Novell did not transfer UNIX and UnixWare copyrights, notwithstanding the testimony of
the Novell and Santa Cruz executives that such a transfer was intended. This issue includes
important subsidiary questions, including:
- Whether the language the parties expressly removed from the Excluded Assets
Schedule of the APA and that therefore no longer exists can be the basis for
precluding the introduction of extrinsic evidence of the parties' understanding;
- Whether the only reasonable reading of Paragraph A of Amendment No. 2 to the
APA is that the amendment clarifies that Santa Cruz obtained an "implied
3
license" to the UNIX and UnixWare under the "Asset Purchase Agreement,"
where record evidence shows Santa Cruz held no such view or understanding, and
where there is no explanation in the record for why an "implied" license would
have the needed the parties' clarification or confirmation.
Whether it was error to find that Novell only granted SCO an "implied" license to
the UNIX and UnixWare copyrights notwithstanding the transfer of all rights of
ownership to the UNIX and UnixWare source code, where the term "license" is
not mentioned in the APA.
Whether the Court properly considered the extrinsic evidence from numerous
witnesses from Novell and SCO who agree with SCO's interpretation of the APA,
the TLA, and Amendment No. 2.
A second important and substantial issue for appeal is the determination that Novell had
the right to waive action taken by SCO to enforce intellectual property rights pursuant to a
software development contract that was not expressly referenced as an SVRX License and which
was transferred to Santa Cruz in a different part of the included asset schedule. This includes
important subsidiary questions, including:
- Whether the Order accounts for the substantial record evidence in SCO's favor
that nearly a dozen witnesses from both companies agree that Novell's waiver
rights were solely to protect the stream of royalties Novell retained under existing
binary SVRX licenses.
4
Whether Novell's right to exercise certain rights in its "sole discretion" under
Section 4.16(b) of the APA is a contractual right that invests Novell with
"discretionary power" under California law.
Issues such as the foregoing present distinct grounds for the parties to present and have resolved
by the appellate court without undue complication.
The Order thus bears directly and in important respects on the scope of SCO's pending
claims in the other litigations. In addition to the foregoing precedent, the courts have repeatedly
entered Rule 54(b) judgment where doing so would avoid the possibility of redundant, multiple
trials in the event of a remand on appeal. See, e.g., Grand River Enters. Six Nations, Ltd. v.
Pryor, 425 F.3d 158, 165 (2d Cir. 2005) (citing cases); United Bank of Pueblo, 529 F.2d at 492-93; McLean v. Badger Equip. Co., 868 F. Supp. 258, 263 (E.D. Wis. 1994); Polycast Tech. Corp.
v. Uniroyal, Inc., 792 F. Supp. 244, 277-78 (S.D.N.Y. 1992). With respect to SCO v. IBM, for
example, if SCO were to prevail on appeal, the scope of the litigation and issues therein would
be significantly broader. It would be inefficient and wasteful of substantial private and judicial
resources for the Court and parties to pursue that litigation in a significantly limited scope if,
following an appeal, the proper scope of the litigation were revised and broadened. Where the
parties and Court otherwise need to turn back to the pending motions and prospective trial in that
case in the next several weeks, an immediate appeal is the most sensible and efficient course.
See, e.g., United Bank of Pueblo, 529 F.2d at 492-93 (entering Rule 54(b) judgment in the
interests of avoiding potentially redundant expenditure of resources in third-party litigation if
there were a reversal on appeal). The same logic applies SCO's other pending litigations.
5
CONCLUSION
SCO submits that for these reasons, the entry of final judgment pursuant to Rule 54(b) is
appropriate so SCO can take an immediate appeal.
DATED this 29th day of August, 2007.
HATCH, JAMES & DODGE, P.C.
Brent O. Hatch
Mark F. James
BOIES, SCHILLER & FLEXNER LLP
David Boies
Robert Silver
Stuart H. Singer
Stephen N. Zack
Edward Normand
DORSEY & WHITNEY LLP
Devan V. Padmanabhan
Counsel for The SCO Group, Inc.
By: __/s/ Edward Normand____________
1
SCO in involved in pending, stayed litigation against Red Hat and AutoZone in which SCO's
asserted ownership of all UNIX and UnixWare copyrights is a central issue.
6
CERTIFICATE OF SERVICE
Plaintiff/Counterclaim-Defendant, The SCO Group, Inc., hereby certifies that a true and correct copy of the foregoing SCO'S MEMORANDUM IN SUPPORT OF ITS MOTION FOR ENTRY OF FINAL JUDGMENT PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 54(b) was served on this 29th day of August, 2007, via
CM/ECF to the following:
Thomas R. Karrenberg
John P. Mullen
Heather M. Sneddon
ANDERSON & KARRENBERG
[address]
Michael A. Jacobs
Matthew I. Kreeger
Kenneth W. Brakebill
David E. Melaugh
MORRISON & FOERSTER
[address]
By: /s/ Edward Normand
7
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| Authored by: Aladdin Sane on Wednesday, August 29 2007 @ 07:15 PM EDT |
| Please place corrections here.
Please mention the nature of the correction in
the title of your post.
Thanks. ---
Free minds, Free software [ Reply to This | # ]
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| Authored by: Sunny Penguin on Wednesday, August 29 2007 @ 07:16 PM EDT |
I hope they get no ruling till the case is done.
It seems too early to give a "final" ruling now; this may be an
attempt by SCOX to cause a mis-trial.
---
If you love your bike, let it go.
If it comes back, you high sided.....[ Reply to This | # ]
|
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- question - Authored by: Anonymous on Wednesday, August 29 2007 @ 08:46 PM EDT
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| Authored by: Aladdin Sane on Wednesday, August 29 2007 @ 07:18 PM EDT |
| Please place off-topic comments here.
Some HTML is available if you follow
the instructions listed on the "Post a Comment" page.
But if you leave "Post
Mode" as Plain Old Text, then your effort will be for naught. ---
Free
minds, Free software [ Reply to This | # ]
|
- Novell says good things about Linux and good things about Microsoft - Authored by: Anonymous on Wednesday, August 29 2007 @ 07:49 PM EDT
- Hilarious or depressing? - Authored by: Aladdin Sane on Wednesday, August 29 2007 @ 09:20 PM EDT
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- Darn! - Authored by: Ian Al on Thursday, August 30 2007 @ 04:51 AM EDT
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- Darn! - Authored by: Anonymous on Thursday, August 30 2007 @ 08:01 AM EDT
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- Hmmm, try Googling autopatch - Authored by: mdarmistead on Thursday, August 30 2007 @ 08:38 AM EDT
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- Auto patching windows XP still exists - Authored by: Anonymous on Thursday, August 30 2007 @ 11:10 AM EDT
- Make sure your critical data is backed up... - Authored by: Grog6 on Thursday, August 30 2007 @ 11:32 AM EDT
- Time to move - Authored by: Anonymous on Thursday, August 30 2007 @ 01:19 PM EDT
- Darn! - Authored by: erehwon on Thursday, August 30 2007 @ 03:01 PM EDT
- More Love from the Monopoly - Authored by: Anonymous on Wednesday, August 29 2007 @ 10:26 PM EDT
- New Zealand Votes No - Authored by: pajamian on Wednesday, August 29 2007 @ 11:25 PM EDT
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- Man posts on YouTube: Viacom steals video & then files takedown on Creator - Authored by: Anonymous on Thursday, August 30 2007 @ 02:17 AM EDT
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- Press Release Follies for SCO - Authored by: Anonymous on Thursday, August 30 2007 @ 09:04 AM EDT
- GPL violations on Windows - Authored by: TiddlyPom on Thursday, August 30 2007 @ 10:03 AM EDT
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| Authored by: Aladdin Sane on Wednesday, August 29 2007 @ 07:20 PM EDT |
| Thank you for placing any comments on the Groklaw News Picks here...
Thanks
to pL for the text of this post. ---
Free minds, Free software [ Reply to This | # ]
|
- New Zealand casts NO on Open XML vote - Authored by: Aladdin Sane on Thursday, August 30 2007 @ 12:06 AM EDT
- of course the govt wants XP - Authored by: Anonymous on Thursday, August 30 2007 @ 05:18 AM EDT
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| Authored by: Anonymous on Wednesday, August 29 2007 @ 07:23 PM EDT |
| So now SCO understands why you never fight a two front war. [ Reply to This | # ]
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| Authored by: webster on Wednesday, August 29 2007 @ 07:26 PM EDT |
..
Kimball should sit on it so SCO won't waste time on what remains of the Novell
trial. They should waive the jury and let Kimball decide on the stipulated
documents and depositions, sort of like Small Claims Court or TV. They plan to
appeal anything over $ 00.00 anyway. If they are reasonable enough to file this
motion, they shouldn't waste time and effort on the fee trial.
---
webster
© 2007 Monopoly Corporation. ALL rights reserved. Yours included.[ Reply to This | # ]
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| Authored by: RFD on Wednesday, August 29 2007 @ 07:30 PM EDT |
Since these decisions involved no monetary award, would that mean tSCOg would
not have to post a large appeal bond? This may be the only chance they have for
an appeal.
---
Eschew obfuscation assiduously.[ Reply to This | # ]
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| Authored by: tuxi on Wednesday, August 29 2007 @ 07:30 PM EDT |
ISTR that Novell argued that California Law (the law of the contract IIRC)
only allows for parol evidence to be used to sort out ambiguities in a contract.
SCO seems to be going along the lines of, "I want to appeal because your
application of the law is devastating to my case!"
In thinking back on
contractual arrangements I've been involved with, I recall several instances
where a re-reading of the contract reminded me that, "I did agree to
that." Executives' and others memories cannot, by definition, be as reliable as
the written word.
---
tuxi [ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, August 29 2007 @ 07:32 PM EDT |
So, if there is no just reason for delay, does this mean the judge has to accede
to their request? Is this automatic or is it extraordinary?
[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, August 29 2007 @ 07:38 PM EDT |
If this motion were granted, and SCO began to appeal, what obligations, if any,
would be imposed upon Novell *immediately*?[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, August 29 2007 @ 07:42 PM EDT |
SCO wants to speed something up rather than delay delay delay? Lordy me!
Might this have something to do with SCO's legal expenses being capped and the
law firm (what is their name?) not wanting to waste time now that they are not
billing hours to SCO?[ Reply to This | # ]
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| Authored by: TheBlueSkyRanger on Wednesday, August 29 2007 @ 07:44 PM EDT |
Hey, everybody!
Are these guys a laff riot or what?
1) So they want a final judgement, but they need to ask the judge permission to
appeal. So if the judge issues a final judgement but tables the appeal, isn't
that like have a decision made that will affect the other trials?
2) What appeal? The appeals, IIRC, weren't covered in the fees paid to
BS&F. Who is going to cough up for this?
3) There they go, telling the judge what he should do again....
4) What exactly can they appeal? Everything from plain language to common
sense says SCO blew it. They wagered heavily that they could bluff their way
through this, no doubt counting on the judges not being versed in software
licenses and law. It's only if you accept their Elseworlds version of the law
that they are right, and they are the only ones buying it.
5) The above ties into this question, actually. You can only appeal if the
judge really misapplied the law or misunderstood something. How do they expect
to convince the appeals that the judge got it wrong, especially with the
voluminous notes and precautions the judges take? And with the timeline showing
how they've been manipulating everything going on as well?
As my uncle from Texas would say, "They walkin' around dead and don't know
enough to lie down."
Dobre utka,
The Blue Sky Ranger[ Reply to This | # ]
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| Authored by: dmarker on Wednesday, August 29 2007 @ 08:11 PM EDT |
tSCOg wants to maintain its charade re IBM & Linux, by getting in an appeal
while the company is still solvent as after Novell it is unlikely to remain so.
By getting a ruling on these aspects of the IBM case now and an appeal in, tSCOg
if it does go under due to payout in the Novell case, gets to walk (carted) away
saying 'we wuz robbed'
It is clear to me (as it has been for a long time) that *tSCOg still wish to
inflict maximum harm to Linux and IBM even though they have no substance and no
real case.
DSM
* this is open to debate as to if it is just tSCOg acting as a front for
Microsoft or BS&F doing same or both.
[ Reply to This | # ]
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- Yah but - Authored by: Anonymous on Wednesday, August 29 2007 @ 08:46 PM EDT
- My first reaction is .... - Authored by: Anonymous on Wednesday, August 29 2007 @ 09:23 PM EDT
| |
| Authored by: Anonymous on Wednesday, August 29 2007 @ 08:27 PM EDT |
| "It was backed up by nine witnesses from the SCO and Novell management teams
that negotiated the deal in 1995 and all of them said SCO owns the copyrights,"
McBride said.
http://www.informationweek.com/news/showArticle.jhtml?articleID=201802921 [ Reply to This | # ]
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- I guess Kimball's cluestick still hasn't registered - Authored by: Anonymous on Wednesday, August 29 2007 @ 08:29 PM EDT
- It's pretty well established now - when "McBride says ..." - Authored by: Anonymous on Wednesday, August 29 2007 @ 08:55 PM EDT
- McBride says... - Authored by: PJ on Wednesday, August 29 2007 @ 09:03 PM EDT
- McBride debunked - Authored by: nerd6 on Wednesday, August 29 2007 @ 09:40 PM EDT
- McBride debunked - Authored by: Anonymous on Wednesday, August 29 2007 @ 11:31 PM EDT
- McBride ALSO says... - Authored by: Anonymous on Wednesday, August 29 2007 @ 10:01 PM EDT
- McBride didn't check his own evidence - Authored by: Anonymous on Wednesday, August 29 2007 @ 10:11 PM EDT
- McBride says... despite his inconvenient memories - Authored by: hardmath on Wednesday, August 29 2007 @ 10:22 PM EDT
- McBride says... - Authored by: webster on Wednesday, August 29 2007 @ 10:27 PM EDT
- McBride says... - Authored by: PJ on Wednesday, August 29 2007 @ 11:21 PM EDT
- Keep in mind - Authored by: Anonymous on Wednesday, August 29 2007 @ 11:32 PM EDT
- Keep in mind - Authored by: Anonymous on Thursday, August 30 2007 @ 07:46 AM EDT
- McBride says... - Authored by: wvhillbilly on Wednesday, August 29 2007 @ 11:51 PM EDT
- Yahoo on McBride says... - Authored by: sciamiko on Thursday, August 30 2007 @ 04:36 AM EDT
- The ballon - Authored by: Anonymous on Thursday, August 30 2007 @ 07:58 AM EDT
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| Authored by: jrzagar on Wednesday, August 29 2007 @ 08:33 PM EDT |
I don't remember any Novell executives who were party to the agreements actually
agreeing with tSCOg's position...
And the asset purchase agreement didn't include the word "binary" in
it, AFAIK[ Reply to This | # ]
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| Authored by: alansz on Wednesday, August 29 2007 @ 08:44 PM EDT |
If Kimball denies this motion, watch SCO ask for permission file an
interlocutory appeal to his denial of this motion to have final judgments set to
permit appeals etc etc etc.[ Reply to This | # ]
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| Authored by: kurtwall on Wednesday, August 29 2007 @ 08:57 PM EDT |
Can IBM oppose this motion? I would suppose so and it would seem reasonable to
do so, but IANAL.[ Reply to This | # ]
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| Authored by: gvc on Wednesday, August 29 2007 @ 09:00 PM EDT |
It seems to me that Kimball has better things to do than to spend time
considering this motion at this time. Is he compelled to respond before, say,
October?
It seems reasonable to consider the request at that time, as all non-stayed
issues will have been decided.[ Reply to This | # ]
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| Authored by: tredman on Wednesday, August 29 2007 @ 09:06 PM EDT |
So, somebody please tell me how SCOX knows that none of the items intertwine
with the rest of the case, when they can't get straight what Judge Kimball
decided and what he didn't? At the very least, wait until after the limine
hearing, so that the court can properly kick SCOX to the curb.
---
Tim
"I drank what?" - Socrates, 399 BCE[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, August 29 2007 @ 09:06 PM EDT |
| If SCO appeals, does the appeals court have to grant cert?
In cases like this
one what percentage of cases are heard?
Could this be away to get into
appeals court without
having to post a big bond? [ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, August 29 2007 @ 09:16 PM EDT |
. . .I'd tell TSCOG -- no.
krp[ Reply to This | # ]
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| Authored by: devil's advocate on Wednesday, August 29 2007 @ 09:17 PM EDT |
SCO know they have lost, but they have a right to an appeal, and they have a
right to ask for an immediate final judgment. If the judge grants it - and it
does sound reasonable, doesn't it? - then they can tie up Novell's lawyers just
as they are preparing for the trial. I think he should deny it, or postpone
ruling on it until after the trial, when it will be moot anyway.[ Reply to This | # ]
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| Authored by: cbc on Wednesday, August 29 2007 @ 09:26 PM EDT |
I believe the evidence before us demonstrates that SCO is a
corporation, and hence it has no heart.
I have heard that a
corporation is a legal "person" but I have never seen it said so succinctly what
the real difference is.
[ Reply to This | # ]
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| Authored by: cbc on Wednesday, August 29 2007 @ 09:42 PM EDT |
Why is the motion to withdraw the names of lawyers no longer active on the case
necessary? Does it limit liability? Does affect fee distribution? Something
else? All of the above?[ Reply to This | # ]
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| Authored by: Bill The Cat on Wednesday, August 29 2007 @ 10:27 PM EDT |
If they get the appeal, can SCO continue to burn up Novell's remaining due cash?
No trust was set up or requested and Novell hasn't received any amount because
that hasn't been decided yet. Thus, SCO, in SCOs mind would probably consider
all the remaining cash theirs and continue to spend spend spend it away.
Is this allowed or legal? We already know it is unethical but, that is the SCO
way.
---
Bill The Cat[ Reply to This | # ]
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| Authored by: MeinZy on Wednesday, August 29 2007 @ 10:27 PM EDT |
...the Supreme Court almost never accepts cases from the Tenth
Circuit
Is that an indication that the 10th Circuit usually
gets it right?
---
Zy [ Reply to This | # ]
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| Authored by: Steve Martin on Wednesday, August 29 2007 @ 10:30 PM EDT |
Here's a question for legal types regarding procedure. Does this
apply?
[DUCivR 7-1(b)(3)] "Memoranda supporting or opposing all
motions, except (i) motions to dismiss, (ii) motions for summary judgment as
provided in DUCivR 56-1, and (iii) motions pursuant to Fed.R.Civ.P. 65, must not
exceed ten (10) pages, exclusive of face sheet, table of contents, statements of
issues and facts, and exhibits. A memorandum opposing a motion must be filed
within fifteen (15) days after service of the motion or within such extended
time as allowed by the court. A reply memorandum may be filed at the
discretion of the movant within seven (7) days after service of the memorandum
opposing the motion. A reply memorandum must be limited to rebuttal of matters
raised in the memorandum opposing the motion and must not exceed ten (10) pages.
No additional memoranda will be considered without leave of court. Attorneys may
stipulate to shorter briefing periods and fewer memorandum pages, and the court
encourages them to do so."
(emphasis added by me)
This
thing was filed today, so the fifteen-day clock is counting down. If we're
talking about business days, then fifteen days will not expire before the
scheduled trial date, so all Novell would have to do is wait it out. If, on the
other hand, we're talking about calendar days, then fifteen days will
expire two weeks from tomorrow, September 13th.
Of course, if the
requirements of this section don't apply, then I'm way off base here, but it
seems to me that by filing this motion TSG is potentially opening the door to a
severe time crunch.
---
"When I say something, I put my name next to
it." -- Isaac Jaffee, "Sports Night" [ Reply to This | # ]
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| Authored by: Anonymous on Thursday, August 30 2007 @ 12:03 AM EDT |
You better believe IANAL....
Since this is a motion, Novell should be able to oppose it. They have time to
file an opposing memorandum. SCO then gets to file their rebuttal. Either side
could request oral arguments.
Kimball will--undoubtedly--consider all the relevant filings and make his
decision in a timely manner. Shouldn't take more than, oh, 3 or 4 months. By
that time, he may be ready to issue a final ruling in the entire case, thus
rendering SCO's motion moot...
Should SCO object to Kimball acting in a proper, judicially timely manner, it
could be pointed out to them that they were never in any hurry in the past, and
ask why the rush now?[ Reply to This | # ]
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| Authored by: DaveAtFraud on Thursday, August 30 2007 @ 12:27 AM EDT |
I'll actually get a chance to see some of this drama since I live just south of
Denver and it's a (relatively) cheap train ride to get to the courthouse.
Cheers,
Dave
---
Quietly implementing RFC 1925 wherever I go.[ Reply to This | # ]
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| Authored by: David Dudek on Thursday, August 30 2007 @ 12:41 AM EDT |
| One important element of the summary judgement was NOT resolved. The judge found
that SCO breached their fiduciary duties and engaged in conversion of funds due
Novell. Once the amount due Novell is determined, the a constructive trust can
be established, and then an appeal by SCO MIGHT be ripe for consideration. A
trust should be setup be for SCO is allowed to bleed away any more money due
Novell.
Cruel and unusual punishment is against the
law!
Piecemeal appeals by SCO would certainly be "cruel" to the
appeals court and the stated contorted and contrived grounds for appeal would be
inflicting "unusual punishment" on the appeals court. ---
David Dudek [ Reply to This | # ]
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| Authored by: skidrash on Thursday, August 30 2007 @ 12:42 AM EDT |
| maybe SCOG is looking for more PIPE money? [ Reply to This | # ]
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| Authored by: Sunny Penguin on Thursday, August 30 2007 @ 01:21 AM EDT |
Can we get a comment from a real lawyer on the effect of an appeal now, as
opposed to later, in regards to the bond SCOX must put up to appeal the ruling.
I suspect this strategy is meant to bypass the appeal bond.
IANAL (But I have seen The SCO Groups deviousness since 2003)
---
If you love your bike, let it go.
If it comes back, you high sided.....[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, August 30 2007 @ 01:28 AM EDT |
BSF & SCOX have no respect for the court, no respect for the process or even
the obvious.
Now they are in a hurry all of a sudden? what happened to all the delay
tactics.
[ Reply to This | # ]
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- No respect - Authored by: Anonymous on Thursday, August 30 2007 @ 05:56 AM EDT
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| Authored by: webster on Thursday, August 30 2007 @ 02:22 AM EDT |
..
0. IAALBIHNAIU*
1. Interesting Request. Novell has 15 days to respond. The trial may be over
anyway by the time the Judge decides.
2. The appeal is not that complicated. They will essentially review the same
material Kimball had. There is not even any trial testimony. The transcripts
of the hearings and exhibits are ready to go.
3. When the order is final SCO files a Notice of Appeal. Then the parties
designate the record, exhibits and transcripts needed. Then brief, reply,
response, argument, decision, petition for reconsideration in banc, and
decision. The court of appeals doesn't have to grant oral argument. It should
take a few months.
4. It doesn't matter because the Judge is also in charge of the IBM trial date.
His decision is the law of the case, or collateral estoppel, even while it is
on appeal. So the IBM trial will go on anyway unless Kimball thinks he is wrong
and the Court of Appeals will correct him. He will determine that trial by
summary judgment anyway on Novell waiver grounds at least.
5. Basically SCO will say that Kimball misread the APA. Kimball said that
there could be no dispute about what it said and the intent. SCO will say that
it was ambiguous and he should have considered the extrinsic evidence and left
it up to a jury. Ah, but the wise old guy did consider the extrinsic evidence
gratuitously and said it wouldn't matter. That it too supported the unambiguous
reading of the APA. So sadly for SCO they must argue that copyrights on the
excluded assets list is ambiguous. It may mean that they were included. They
will have to skim over not having copyrights whatever the APA said. So if they
win their appeal and get it sent back to Kimball, he considers the extrinsic
evidence and decides the same way. (SCO goes back, wins again and the Court of
Appeals tells Kimball to let the jury decide. He does but he excludes the
extrinsic evidence. SCO loses and appeals again. The Court of Appeals tells
Kimball to include the extrinsic evidence. BSF finally puts everything before
the jury with their threadbare suits. Kimball has retired. Sorry, the truth is
wild enough!)
*....But I Have Never Appealed in Utah.
---
webster
© 2007 Monopoly Corporation. ALL rights reserved. Yours included.[ Reply to This | # ]
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| Authored by: insensitive clod on Thursday, August 30 2007 @ 02:56 AM EDT |
So now Novell can ask for leave to file an overlength memo in opposition.. which
it can not possibly finish until after the jury trial.
---
Lemmings vs Penguins[ Reply to This | # ]
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| Authored by: sproggit on Thursday, August 30 2007 @ 03:08 AM EDT |
When you think about this, SCO's tactics - for delay - make perfect sense.
It works like this:
If the Novell case proceeds to court and runs it's five days, then Novell knows,
we know, but most importantly SCO knows, that SCO will lose and lose big. Once
that happens, the entire case is lost - but can then go to appeal.
However, while SCO run off to appeal, the IBM case might start.
We all know that appeals can be very drawn out and long-winded affairs.
We all know that given SCOs cash burn, they simply do not have sufficient funds
to make it to Christmas, never mind the IBM trial.
But more importantly, we all know that if SCO fail to appeal, then a large chunk
- perhaps all - of their remaining cash reserve will have to be given to Novell
- the rightful owner. Once that happens SCO ceases to exist as a corporation.
So my wacky theory is that, daft as this sounds, SCOs only hope is to get an
appeal in now. But there's another reason.
Imagine the IBM case is about to start and SCO are going into that case with the
Novell case over. Are there any differences in the way that a finding from one
case can be accepted as "fact" in another depending on whether or not
those findings are the subject of an appeal? In other words, if SCO fail to
appeal all of this now, could it theoretically weaken their case in IBM? [Fail
to see the sense of urgency here, but what the heck].
Failing all of the above, I wonder if this is just greed. If this goes to
appeal, does it mean that SCO might not have to pay Novell until the appeal is
heard? If that's the case then SCO would be able to continue the cash burn.
Maybe it's just that without the appeal, then know that SCO as a company won't
be able to survive long enough to get to court against IBM...[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, August 30 2007 @ 03:37 AM EDT |
SCO always want it their way. First they used every trick in the book for delay,
but now it can't go fast enough because they want to appeal. The appeal will be
drawn out forever again, another 5 years trip.
Well, Kimball should simply freeze the monies SCO owes Novell in the same
ruling. I think the situation that Novells own money is working against them in
an endless litigation process until nothing is left unbearable.
[ Reply to This | # ]
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| Authored by: rfrazier on Thursday, August 30 2007 @ 04:13 AM EDT |
If Kimball wants to use the judgment he made in the Novell case as a partial
grounds for ruling on the Requests for Summary Judgment in the IBM case, does he
have to wait until he makes an Entry of Final Judgment?
I think it would be fun to see him make the summary judgment rulings in the IBM
case, set up the trial date, etc., then allow SCO to appeal away.
Best wishes,
Bob
[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, August 30 2007 @ 04:39 AM EDT |
Would the interests of judicial economy be best served by the linking of the
Novell & IBM cases at this point? IANAL[ Reply to This | # ]
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| Authored by: Ian Al on Thursday, August 30 2007 @ 05:31 AM EDT |
The IBM and Redhat cases are stayed pending the outcome of SCO v Novell (and
then stayed pending the outcome of IBM, in the case of Redhat) and neither case
has a scheduled trial date. Judge Kimball has the PSJs in the IBM case before
him.
How would a final judgement and early appeal in SCO v Novell in any way result
in sound judicial administration in any of the cases? If there is any problem of
sound judicial administration then the judge can deal with it in the absence of
an early appeal. He controls when the PSJs are judged and when the trials, if
any, start. At least, in Redhat he controls the earliest point at which a trial
can start. An early SCOG appeal has no effect at all on sound judicial
administration.
---
Regards
Ian Al[ Reply to This | # ]
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| Authored by: billyskank on Thursday, August 30 2007 @ 05:59 AM EDT |
Doesn't there have to be actual grounds for the appeal?
As you say, presumably this is just so they can say: look! We're not dead yet!
Anyway, it is clear now that SCO are definitely engaged in a FUD campaign
against Linux. What's more, that campaign does not benefit SCO in any way.
Who might it benefit? We all can take a good guess at that. But it should be
noted that now there can be no doubt at all that SCO are representing
Microsoft's interests only.
---
It's not the software that's free; it's you.[ Reply to This | # ]
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| Authored by: DaveJakeman on Thursday, August 30 2007 @ 06:45 AM EDT |
Why are SCO so keen to start the appeal (that we knew they would launch)
ASAP?
All SCO's ducks have been lined up and shot. What's
left isn't worth shaking a stick at as far as FUD is concerned. They've been
gutted. It's safe to use Linux again. As a front for Microsoft, SCO have
failed.
What do SCO Microsoft need? They need something
going through the courts that's enough to cast some doubt, no matter how
far-fetched. What remains of SCO vs Novel & IBM is not nothing, it's the
very opposite of what they want: counterclaims. It's anti-FUD.
So, what to
do? What to do?
Quick! launch an appeal!
What's the quickest way go get
something substantial back in the courts? What do we have to do to get that in
motion, right now?
Answer: see article
above.
---
Only two things are infinite: the universe and human
stupidity – and I'm not sure about the former. -- Einstein [ Reply to This | # ]
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| Authored by: Anonymous on Thursday, August 30 2007 @ 07:07 AM EDT |
This may be just another example of SCO dancing as fast as they can while Novell
keep throwing marbles under their feet.
The in limine motion practice about the introduction of evidence related to
apportionment of fees for the Sun/Microsoft agreements appears, gauging by most
of the admittedly partisan opinions here on Groklaw, to leave SCO between a rock
and a hard place. Novell's request that SCO be forced to stick to their original
story, when the court has already found that story rather tall, may result in
SCO having to present the same failed argument in court. Faced with the likely
prospect of a rout, SCO are planning for a strategic withdrawal. That they asked
for the final ruling only after Novell submitted their motion tends to support
this conjecture. SCO's insistence on a jury trial also fits in with it.
If Novell's motion is granted, the case will run its course and Novell will
almost inevitably win big. SCO's only hope for financial survival is to appeal
the ruling about Sun/Microsoft and at least get some wiggle room on the numbers.
SCO's new sense of urgency is the recognition that they are in a race and they
chose the wrong horse. They are racing with a decision on the remainder of the
court case : if the court finds that the Sun/Microsoft money heads to Novell
before they can get Kimball's earlier ruling overturned, SCO's horse becomes
glue (and SCO are toast). I expect we'll see SCO doing all it can to delay the
main case while hurrying the appeal (but then that's hardly rocket science).
-------------------------
Nigel Whitley[ Reply to This | # ]
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| Authored by: SirHumphrey on Thursday, August 30 2007 @ 07:26 AM EDT |
might this "brief case" be viewed as a Blepp on the legal radar?
[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, August 30 2007 @ 07:28 AM EDT |
If SCO appeals immediatly, then don't Novell lawyers have to be ready for the
appeal, and tie them up in the appeal, when they should be concentrating on
what's left of the current case? It does not sound fair to Novell to me. Would
Novell be justified in opposing the appeal?[ Reply to This | # ]
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| Authored by: HockeyPuck on Thursday, August 30 2007 @ 08:12 AM EDT |
There is still the unresolved issue of what SCO owes Novell. I could understand
ruling on the APA issue in regard to Novell being able to direct SCO what to do
as far as IBM and other contracts are concerned. But the court ruled SCO owes
Novell money because the SCOSource and MS/SUN agreements are UNIX contracts. [ Reply to This | # ]
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| Authored by: Wardo on Thursday, August 30 2007 @ 10:35 AM EDT |
Just my 3 cents worth (inflation, go figure):
I suspect that since the awarding of some share of the Sun and MS agreements
depends on the Judges findings, therefore the remaining issues that are going to
trial aren't separate issues as required by the FRCP. The issue of
apportionment remains, and is based on the findings. Reverse the findings, and
the apportionment is canceled or at the very least changed.
Wouldn't that be grounds to refuse this motion, either by Novell or the Judge?
By granting this motion now, would SCO get 2 cracks at appealing the August 10
ruling, by appealing the apportionment later?
Wardo
---
caveat lector...
Wardo = new user(lawyer = FALSE,badTypist = TRUE,badSpeller = TRUE);[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, August 30 2007 @ 11:07 AM EDT |
Novell may oppose SCOs request, on the simple basis that SCOs legal expenses
during an appeals process are likely to erode SCOs ability to come up with any
settlement that is owed to Novell. Novell has a right to protect their
financial interests.
Regardless of how Novell responds, however, I expect that Judge Kimball will
grant this request from SCO. The impact of the copywrite decision is too
critical to the IBM proceedings to ignore. I am sure that if Kimball does give
SCO the final judgement that they request, he will (in the IBM case) place a
time-limit on SCO for filing the appeals.
As I've said in other postings, I'm sure that Kimball's main concern at this
point is not giving SCO any solid grounds for appeal in either case.
By the way, I can think of NO reason that SCO needed to include, in a document
being submitted to the judge who ruled against them, a listing of the arguments
they plan to present during appeal. They could have simply stated "we plan
to appeal". This is insulting to the judge.
Sean[ Reply to This | # ]
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| Authored by: tinkerghost on Thursday, August 30 2007 @ 11:32 AM EDT |
IANAL etc
I doubt that Kimball will grant this petition for the simple
reason that the whole trial is scheduled to be over by the end of
September.
Track the dates:
- Posted: 8/29
- Novell Response: 10 days
(Sun 9/9 gets pushed to) 9/10
- Oral arguments:9/11 (earliest Date)
Novell
of course may respond prior to 9/10, but even if they do, oral arguments won't
be heard until 9/11. Judicial efficiency suggests holding only the 1 court date
if possible & they are already scheduled.
Even if Kimball were to
rule in favor of SCO from the bench on the 11th, they probably wouldn't
be granted a court date before the start of the trial (9/17). The chances of the
date being earlier than 9/24 (the projected end date of the trial) is
minimal.
If SCO gets a jury trial (which it is still asking for),
deliberations are probably going to be less than a week - figure 9/30 - 10/1 for
a final judgement to be entered.
Worse for SCO, they've already made multiple
petitions for extensions of dates based on the fact that they are stretched thin
with both the Novelle and IBM trials running simultainously. It is not in the
courts interest to further degrade SCO's ability to make responses in a timely
manner by allowing them to start a 3rd case (the appeal).
If everything were
to go in SCO's favor, they are looking at saving a maximum of 3 weeks. I doubt
Kimball will feel the need to hurry along justice in this matter, the amount of
time to be gained is less than the amount of time SCO has wasted arguing for
extending deadlines. ---
You patented WHAT?!?!?! [ Reply to This | # ]
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| Authored by: DMF on Thursday, August 30 2007 @ 12:59 PM EDT |
What is the purpose of listing the issues on which SCO "intends" to
appeal? They are irrelevant to the purpose of this document. Or so it would
seem. I can think of two possible explanations:
1) PR/spin/FUD (obviously)
2) To goad Judge Kimball into addressing those issues in downstream documents??
They might be able to pry an apparent internal contradiction out of parallel
writings...
[ Reply to This | # ]
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- My Guess: FRCP - Authored by: Anonymous on Thursday, August 30 2007 @ 01:09 PM EDT
- My Guess: FRCP - Authored by: Anonymous on Thursday, August 30 2007 @ 01:12 PM EDT
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| Authored by: Anonymous on Thursday, August 30 2007 @ 01:14 PM EDT |
- File the request to be allowed to appeal the current
rulings.
- If granted, file for an appeal.
- File for a stay of
the SCOG vs Novell court preceedings due to the fact that at least one of the
issues (apportionment of the license fees collected) will be affected by the
issues (Judge Kimball's reading of the APA) that is under appeal.
If
successful, they manage to get the delay of the length of time it takes for the
appeals court to respond plus the delay of having Judge Kimall re-schedule the
trial.
RAS[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, August 30 2007 @ 01:18 PM EDT |
It might be better if Judge Kimball granted it.
SCO could file with the Appeal Court, who could review the case and decline to
hear it.
Then everything else can move forward without any possibility of disputed
copyright ownership.
If the Appeal Court reached the conclusion that Judge Kimball was correct (which
seems obvious), then all remaining decisions that depend on UNIX copyright
ownership would become much more solid.
[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, August 30 2007 @ 01:31 PM EDT |
He said that he quit commenting on Groklaw because of the advice of his lawyer
.... You
think?
http://www.informationweek.com/news/showArticle.jhtml?articleID=
201803127
Unclickable for those who wish to avoid it ....[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, August 30 2007 @ 01:46 PM EDT |
SCO hope to get an appeal started now so that when the judgment is handed down,
they will be able to ask the appeals court for a stay of judgment as an appeal
is already in progress.
As in "Your honors, we would really love to pay Novell $10,000,000 right
now, but we think it's best to wait until you hear our appeal."
That sounds better than saying to Judge Kimball "Your honor, we plan on
appealing your farcical ruling soon, so could you just hold off on enforcing
your order?"
IANAL, but I believe that Novell would have to petition the appeals court for
permission to address the request for a stay, and it would regardless delay the
receipt of their money. In this instance delay means less money when they
finally get it. In the district court, they would be able to argue against it,
and get at least an escrow account set up quickly.
It's also pretty obvious from this perspective that SCO expect to lose.[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, August 30 2007 @ 01:50 PM EDT |
I think the problem here is that there are 2 "types" on Bonds that may
be involved :
1) Bond to pay for the legal costs of appeal. From previously discussion, it
sounds like the losing side of an appeal is typically ordered to pay the legal
costs of the winning side. This clearly makes sense to limit frivilous appeals
as a harrassment tactic. From earlier quotes of the Fed Procedures, the appeals
court may order the appealing party to place a bond to cover these costs (I
assume to prevent situations of 'Who cares if I lose, I have nothing to pay and
nothing to lose').
2) Bond covering awarded damages/costs that you are appealing. Obviously to make
sure that the appealing party doesn't burn all that damage money on the appeal
and thus become unable to pay the damages when they lose the appeal.
No matter when they appeal, SCO will most likely face the first type bond.
However, I gather some folks speculate that since no damages or costs have yet
been ruled on, by appealing the first set of Final Judgements (based on the
PSJs), they avoid having to also put up money for the second type of bond.
Of course I would rather expect that when the last part of this trial comes out
as we expect, and Novell is awarded costs from SCO, SCO will then have to either
(a) Do a seperate appeal for that part, with its own bond covering both types 1
& 2 above, or (b) Somehow add it into the other appeal, in which case you
can be sure they will be required to add additional bond money to cover the
costs bond.
Dale Pennington[ Reply to This | # ]
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| Authored by: nealywilly on Thursday, August 30 2007 @ 07:32 PM EDT |
Okay, I don't KNOW know, but what I see as the immediate benefit to SCO
regardless of the Judge's ruling is that it makes it very unlikely that he will
rule on the IBM motions for summary judgement, which I(ANAL) think he could have
done between the 8/31 reports from IBM & SCO and the 8/17 Novell & SCO
trial date.
Can anyone (Webster? LexLaw?) confirm whether it's legally within Kimble's
discretion to rule on the fully briefed and argued (in hearings) IBM/SCO SJ
motions eventhough that case is stayed? I don't see why not, but maybe a stay
means even the Judge cannot tie up the loose ends that need no further action
from the parties.
nealywilly[ Reply to This | # ]
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