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Judge Kimball rules: There will be no jury in SCO v. Novell
Friday, September 07 2007 @ 09:57 PM EDT

The Honorable Dale Kimball has now ruled: there will be no jury at the trial of SCO v. Novell. He granted Novell's motion on that. He will hear it himself. Here's the ruling [PDF], which comes in response to 8 motions, and here's how the judge ruled on them:
  • The SCO Group, Inc.'s ("SCO") Motion for Entry of Final Judgment Pursuant to Federal Rule of Civil Procedure 54(b) -- No, so there will be no immediate partial appeal.

  • Novell's Motion to Strike Jury Demand -- Yes. No jury trial. Novell is seeking only equitable relief.

  • Novell's Motion to Voluntarily Dismiss Its Third Claim for Relief - Granted, "with Novell having the right to renew such claim only in there event that there is any subsequent adjudication or trial in this action that retries its Fourth, Sixth, Seventh, or Eight Claims for Relief or there is any enlargement of the issues for trial beyond that contemplated by the August 17, 2007 Joint Statement". You'll recognize that as Novell's language, not SCO's. Note the "or".

  • SCO's Motion in Limine to Exclude All Evidence Related to Other Litigation and Commentary Thereon - Moot. The jury won't be there. So the parties can talk about IBM and Groklaw all they want. The judge won't be prejudiced. He's heard it all already. Kidding. Not *all* they want. Here's the wording: "While a jury may have been prejudiced by certain remarks, the court is not. Given the issues remaining for trial, however, the court would expect such references to be quite limited and only in relation to matters of testimony and exhibits that may overlap."

  • Novell's Motion in Limine No. 1 to Preclude SCO from Challenging Questions Already Decided as a Matter of Law - Granted. "To the extent that SCO is continuing to argue positions contrary to the court's order, Novell's Motion in Limine No. 1 is granted."

  • Novell's Motion in Limine No. 2 to Preclude SCO from Contesting Licenses Conveying SVRX Rights are "SVRX Licenses" - Granted. "Therefore, SCO cannot be and is not precluded from arguing that the SVRX component is de minimis. SCO's attempt, however, at making a distinction between the license as a whole being an SVRX License and only the SVRX component of the license being an SVRX License is contrary to the court's finding that even an incidental license of SVRX is considered an SVRX License under the APA's broad definition of SVRX License. The court rejected SCO's arguments that the Sun and Microsoft Agreements were not SVRX Licenses because they licensed SVRX only incidentally. ... There is no relevance to evidence relating to legal determinations already made by the court. Disputes as to the court's interpretation of the contract should be left for appeal."

  • SCO's Amended Motion in Limine Regarding Apportionment of Microsoft and Sun SCOsource Licenses - Mooted in part; denied in part. SCO had argued that there would be jury confusion, but there will be no jury, hence no confusion. That's the mooted part. As for the parties' dispute about who bears the burden of proof on the apportionment issue, the judge tells them they can submit trial briefs regarding legal issues such as burdens of proof.

  • Novell's Motion in Limine No. 3 to Preclude SCO from Introducing New Evidence or Argument Regarding Apportionment of SCOsource Revenue - Denied. "Novell's motion is untenable given the court's ruling that the Sun and Microsoft Agreements contain an SVRX component and that the revenue attributable to that component must be ascertained at trial. SCO recognizes that it is bound by this ruling for purposes of the approaching trial. While Novell is introducing evidence as to the appropriate allocation, SCO shall be permitted to offer evidence and argument against Novell's position — whether that includes a different allocation, such as de minimis, or an argument that no apportionment is appropriate." Dr. Cargill can speak for SCO on the question of apportionment, but only to the extent already disclosed. "SCO, however, asserts that it properly disclosed Dr. Cargill as an expert, and it does not intend to submit any testimony from Dr. Cargill other than what it has already disclosed. Accordingly, the court concludes that Novell has no basis for precluding Dr. Cargill's testimony. Given SCO's representation regarding the scope of Dr. Cargill's testimony, the court finds that no limitation is necessary." Of course, SCO's language limited it already. The court found no prejudice to Novell in that case, and it will have the opportunity to rebut.

SCO has not won this judge over. No amount of dazzle will do it for them now. There will be no jury to be dazzled. And all the media reports about how SCO had filed an appeal were, as you can see with your own eyes, 100 percent wrong.

There's also at the end some housekeeping matters:

Both parties shall file trial briefs by the close of business on Friday, September 14, 2007. On the morning of trial, Monday, September 17, 2007, the parties shall submit proposed finding of fact and conclusions of law, and a proposed form of judgment. The parties will be allowed to supplement such materials at the close of trial if necessary.

The court notifies the parties that it will not hear argument at the Tuesday, September 11, 2007 hearing on SCO's Motion for Reconsideration or Clarification of the Court's August 10, 2007 Order. As discussed in a telephone conference with the parties' counsel, the court requests that Novell file its opposition to the motion at approximately the close of business on Monday, September 10, 2007. The court requests that SCO file a reply memorandum by Wednesday, September 12, 2007. The court will issue a ruling on the motion prior to trial.

I can't imagine what further clarity SCO requires, after this ruling on top of the August 10th decision:

This court's August 10, 2007 Memorandum Decision and Order found that SCO breached its fiduciary duty to Novell when it failed to remit royalties to Novell for licenses indisputably containing SVRX technology. As a result, the court found that Novell was entitled to a constructive trust for those amounts because Novell retained a 100% equitable interest in royalties from SVRX Licenses. The only question of fact remaining for trial is the proper amount of the constructive trust....

The court has already found that SCO is liable to Novell for its breach of fiduciary duty because it unjustly retains SVRX Royalties belonging to Novell. Therefore, the trial is necessary only to determine the proper amount....

The court's order found that the Sun and Microsoft licenses are SVRX Licenses, even if the SVRX component of those leases are only incidental. SCO claims that it has no intention of introducing evidence contrary to the court's order. In that regard, Novell's motion could well be moot. The court, however, cautions both parties that they are not to rehash issues that have already been decided. The trial is to be entirely focused on facts relevant to the appropriate value of the SVRX component licensed in the Sun, Microsoft, and other similar SVRX Licenses. The court has already found that those amounts constitute SVRX Royalties that should have been remitted to Novell.

What is left to be heard on September 11 at the scheduled hearing, then? Looking at number 400 on the Novell Timeline page, as best as I can make out, all that is left is SCO's Motion to Strike Exhibits on Novell's Revised Exhibit List Not Previously Disclosed [PDF; text].

What about the trial itself? What's left there? Only three issues remain, according to this ruling: (1) Are additional SCOsource licenses, like the Sun and Microsoft licenses, "SVRX Licenses" within the meaning of the APA?; (2) What proportion of the payments received and retained by SCO from the Sun, Microsoft and additional SCOsource licenses should have been paid to Novell?; and (3) Did SCO have authority under the APA to enter into the Sun, Microsoft, and additional SCOsource licenses?

Or as I like to think of it for simplicity's sake, in light of the looming constructive trust, is SCO dead, only mostly dead, or just not long for this world? By the way, as you read this ruling, all those who kept imagining that the judge was worried about an appeal: please notice how he anticipates an "inevitable" appeal and doesn't care.

Thanks to the amazingly fast Steve Martin, we have this ruling already as text:

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

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

THE SCO GROUP, INC.,
Plaintiff,

vs.

NOVELL, INC.,
Defendant.
ORDER

Civil Case No. 2:04CV139DAK

This matter is before the court on several pretrial motions: (1) The SCO Group, Inc.'s ("SCO") Motion for Entry of Final Judgment Pursuant to Federal Rule of Civil Procedure 54(b); (2) Novell's Motion to Strike Jury Demand; (3) Novell's Motion to Voluntarily Dismiss Its Third Claim for Relief; (4) SCO's Motion in Limine to Exclude All Evidence Related to Other Litigation and Commentary Thereon; (5) Novell's Motion in Limine No. 1 to Preclude SCO from Challenging Questions Already Decided as a Matter of Law; (6) Novell's Motion in Limine No. 2 to Preclude SCO from Contesting Licenses Conveying SVRX Rights are "SVRX Licenses"; (7) SCO's Amended Motion in Limine Regarding Apportionment of Microsoft and Sun SCOsource Licenses; and (8) Novell's Motion in Limine No. 3 to Preclude SCO from Introducing New Evidence or Argument Regarding Apportionment of SCOsource Revenue. The court concludes that a hearing would not aid the court in its determination of these motions. The court has carefully considered the law and facts relating to the motions. Now being fully

(1)

advised, the court renders the following Order.

DISCUSSION

I. SCO's Rule 54(b) Motion for Entry of Final Judgment

SCO requests that this court enter final judgment under Rule 54(b) of the Federal Rules of Civil Procedure with respect to those claims which are fully and completely resolved by the Court's August 10, 2007 Memorandum Decision and Order. SCO asserts that the Order 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 a case involving multiple claims and counterclaims, Rule 54(b) allows a court to "direct the entry of a final judgment as to one or more but fewer than all 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." Fed. R. Civ. P. 54(b). An analysis of whether Rule 54(b) certification is appropriate requires the court: (1) to determine that the order to be certified is a final judgment; and (2) to find there is no just reason to delay appellate review of the order until the conclusion of the entire case. Id. at 7-8; see also Oklahoma Turnpike Auth. v. Bruner, 259 F.3d 1236, 1242 (10th Cir. 2001); McKibben v. Chubb, 840 F.2d 1525, 1528 (10th Cir. 1988).

In making these determinations, the district court should act as a "dispatcher" weighing Rule 54(b)'s policy of preventing piecemeal appeals against the inequities that could result from

(2)

delaying an appeal. Stockman's Water Co., LLC v. Vaca Partners, L.P., 425 F.3d 1263, 1265 (10th Cir. 2005). The court should consider "whether the claims under review [are] separable from the others remaining to be adjudicated and whether the nature of the claims already determined [are] such that no appellate court would have to decide the same issues more than once even if there were subsequent appeals." Curtiss-Wright Corp. v. General Elec. Co., 446 U.S. 1, 8 (1980).

The court has serious concerns over whether the policy considerations underlying Rule 54(b) would be met by allowing a Rule 54(b) certification in this case. SCO contends that 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. Novell, however, asserts that it seeks a declaration at trial that, under Section 4.16(b), SCO was without authority to enter into the Sun, Microsoft, and other SCOsource licenses.

The separability requirement must be satisfied in order for the judgment to be considered "final." Old Republic Ins. Co. v. Durango Air Serv., Inc., 283 F.3d 1222, 1225 (10th Cir. 2002); see also Oklahoma Turnpike Auth., 259 F.3d at 1243. "[The judgment] must be a 'judgment' in the sense that it is a decision upon a cognizable claim for relief, and it must be 'final' in the sense that it is 'an ultimate disposition of an individual claim entered in the course of a multiple claims action.'" Curtiss-Wright Corp., 466 U.S. at 7 (quoting Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 436 (1956)); see also Old Republic Ins., 283 F.3d at 1225. "For purposes of Rule 54(b), a claim comprises all factually or legally connected elements of a case, but there is no bright-line rule to distinguish multiple claims, which may be appealed separately, from multiple

(3)

legal grounds in a single claim, which may not." Jordan v. Pugh, 425 F.3d 820, 827 (10th Cir. 2005). "This distinction is based largely on practical concerns, particularly the question whether a subsequent appeal of the claims before the district court will require the court of appeals to revisit the same issues decided in the first appeal." Id.

In this case, SCO seeks certification of portions of its Second Claim for Relief and portions of Novell's Fourth Claim for Relief. The court concludes that these portions of the parties' claims for relief do not constitute individual claims for purposes of Rule 54(b). Therefore, the finality requirement has not been met.1

With respect to the remaining claims SCO seeks to have certified, the issue before the court is whether there should be any just reason for delay of entry of final judgment in light of the strong policy against piecemeal appeals. See Curtis-Wright, 466 U.S. at 8. To aid in this inquiry, the Supreme Court directed district courts to exercise discretion "in the interest of sound judicial administration" to determine when each final decision in a multiple claims action is ready for appeal. See Curtis-Wright, 466 U.S. at 8 (quoting Sears, Roebuck & Co., 351 U.S. at 437).

(4)

The court finds no compelling reason to separate these remaining claims for an immediate appeal given that the remaining claims in the case will be ready for appeal in two to three months. Regardless of the outcome of the upcoming trial, there will undoubtedly be an appeal at that time. Thus, the first appeal would still be in the briefing stage when the second appeal was initiated. The risk of piecemeal appeals presented in this case is not outweighed by inequities that could result from delaying an appeal. The trial on the remaining portions of this case is set to begin in only ten days. A potential two to three month delay in bringing an appeal presents little, if any, inequities. For these reasons, the court concludes that the factors under Rule 54(b) weigh in favor of denying SCO's Rule 54(b) Motion for Entry of Final Judgment. Accordingly, SCO's Motion for Entry of Final Judgment is denied.

II. Motion to Strike Jury Demand

Novell moves for this court to strike SCO's jury demand, arguing that the remaining claims for trial seek only equitable remedies that should be decided by the court. SCO opposes this motion, claiming that several of the remaining claims are historically legal in nature and seek legal damages.

The parties agree that the claims remaining for trial include Novell's Third Claim for breach of contract, Fourth Claim for declaratory judgment, Sixth Claim for constructive trust/restitution/unjust enrichment, Seventh Claim for breach of fiduciary duty, and Eighth Claim for conversion. Despite the number of claims for relief that remain, Novell states that in light of the court's August 10, 2007 Memorandum Decision and Order and the court's directive to the parties to identify the remaining claims for trial, the parties have narrowed the issues for trial to three: (1) Are additional SCOsource licenses, like the Sun and Microsoft licenses, "SVRX

(5)

Licenses" within the meaning of the APA?; (2) What proportion of the payments received and retained by SCO from the Sun, Micorsoft and additional SCOsource licenses should have been paid to Novell?; and (3) Did SCO have authority under the APA to enter into the Sun, Microsoft, and additional SCOsource licenses?

Novell argues that SCO is not entitled to a jury trial on these claims because they are inherently equitable claims that seek only equitable relief — restitution and declaratory relief. Although Novell's Seventh and Eighth Claims for Relief also seek special damages for Novell's costs in attempting to make SCO comply with the APA, Novell is not seeking those damages at trial. Novell has also dropped any claim for punitive damages. SCO, however, contends that all of Novell's claims seek damages resulting from its failure to remit royalties to Novell as required by the APA.

The right to a jury trial under federal law depends on whether the nature of the action is at law or in equity. Manning v. United States, 146 F.3d 808, 811-12 (10th Cir. 1998). The Supreme Court requires courts to conduct a two-part inquiry to determine the nature of an action. Chauffeurs, Teamsters and Helpers, Local 391 v. Terry, 494 U.S. 558, 565 (1990). First, the court should determine whether the action would have been brought in law or equity in 18th-century England. Id. Next, the court should "examine the remedy sought and determine whether it is legal or equitable in nature." Id.

The right to a jury trial "depends on the nature of the issue to be tried rather than the character of the overall action." Id. at 565. In that regard, "[t]he second inquiry is more important in [the] analysis." Id. at 565, 569. The Supreme Court has recognized that a court need not rest its "conclusion on what has been called an 'abstruse historical' search for the

(6)

nearest 18th-century analog." Tull v. United States, 481 U.S. 412, 421 (1987). Rather "the relief sought is 'more important' than finding a precisely analogous common-law cause of action in determining whether the Seventh Amendment guarantees a jury trial." Id.

The parties do not appear to dispute the historic legal and equitable nature of the remaining claims. Novell admits that a breach of contract claim and conversion were historically an action at law. And, SCO admits that restitution and breach of fiduciary duty are historically equitable claims. The name a complaint affixes to the claims, however, is not controlling. Consequently, both parties argue that the court should not be tied to the historic categorization of the respective claims. Although Novell admits that its breach of contract and conversion claims were historically actions at law, it asserts that the court must examine the remedy sought for those claims to determine whether each of the claims is legal or equitable in nature. Similarly, while SCO admits that restitution and breach of fiduciary duty are historically equitable claims, it contends that these claims seek damages relating only to a breach of contract.

Legal damages compensate a plaintiff for its injuries such as lost profits, expenses incurred as a consequence of the harm, etc. Equitable remedies such as restitution, unjust enrichment, disgorgement, accounting, constructive trust, etc., require a defendant to turn over the benefits the defendant gained unjustly. This court's August 10, 2007 Memorandum Decision and Order found that SCO breached its fiduciary duty to Novell when it failed to remit royalties to Novell for licenses indisputably containing SVRX technology. As a result, the court found that Novell was entitled to a constructive trust for those amounts because Novell retained a 100% equitable interest in royalties from SVRX Licenses. The only question of fact remaining for trial is the proper amount of the constructive trust.

(7)

The fact that a contract established the fiduciary relationship does not convert the nature of the relief sought into traditional legal damages. In C & K Engineering Contractors v. Amber Steel Co., 23 Cal. 3d 1, 9 (1978), the court acknowledged that a breach of contract claim was typically "an action at law in which a right to jury trial ordinarily would exist," but the underlying remedy sought was enforcement of a promise through estoppel, which was equitable. Because "the legal or equitable nature of a cause of action ordinarily is determined by the mode of relief to be afforded," the court concluded that the plaintiff had no right to a jury trial. Id. at 9, 11. In In re Friedberg, 131 B.R. 6, 12 (S.D.N.Y. 1991), the court found that there was no right to a jury trial on a breach of contract claim where the claim effectively sought specific performance of a clause requiring return of a deposit. Also, in De Guere v. Universal City Studios, Inc., 56 Cal. App. 4th 482, 507-08 (1997), the court held that where the focus of a breach of contract claim was an accounting of monies improperly withheld, the claim was equitable and the defendant had no right to a jury trial. Furthermore, in Van De Kamp v. Bank of America, 204 Cal. App. 3d 819, 864 (1988), the court granted a motion to vacate a jury trial in favor of a bench trial "where the fiduciary [was] liable for various sums of money and plaintiffs [did] not know what money [was] due them." In that case, although the plaintiffs sought damages, the court found that the claim was equitable. Id.

What remains for trial is this case is similar to Van De Kamp. The court has already found that SCO is liable to Novell for its breach of fiduciary duty because it unjustly retains SVRX Royalties belonging to Novell. Therefore, the trial is necessary only to determine the proper amount. This case is also more analogous to an action for apportionment of monies held in trust than a breach of contract action. In Kim v. Yi, 139 Cal. App. 4th 543, 546, 549-50 (2006),

(8)

the court found that there was no right to a jury trial in an action for apportionment of settlement proceeds because apportionment of monies held in trust is "consistently characterized as equitable in nature." In this case, the court has found that Novell has an equitable interest in the SVRX Royalties and met the requirements for imposition of a constructive trust for the amount of SVRX Royalties improperly in SCO's possession.

SCO relies heavily on Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204 (2002), in which the court observed that an action, by any name, which involves a contractual obligation to pay past due sums is "quintessentially an action at law." The Great-West Court noted, however, that where an action does not seek "to impose personal liability on the defendant, but to restore to the plaintiff particular funds or property in the defendant's possession," the action is equitable. Id. at 214.

"[N]ot all money claims are triable to a jury. A historic equitable remedy was the grant of restitution by which defendant is made to disgorge ill-gotten gains or to restore the status quo, or to accomplish both objectives. And when restitution is sought in the form and in the situations allowed in equity prior to the rules or authorized by valid statutes there is no right to a jury trial." SEC v. Commonwealth Chem. Sec., Inc., 574 F.2d 90, 95 (2d Cir. 1978).

Many of the cases cited by SCO are also distinguishable on the grounds that the plaintiff sought traditional legal damages. For example, in Robine v. Ryan, 310 F.2d 797, 798 (2d Cir. 1962), the plaintiffs sought damages caused by the defendant's misappropriation of plaintiffs' invention, not a return of a res unjustly held. And, in Pereira v. Farace, 413 F.3d 330, 341 (2d Cir. 2005), the trustee sought funds attributable to the company's loss, "not the director's unjust gain." The court in In re Lands End Leasing, Inc., 193 B.R. 426, 429-30 (D. N.J. 1996), granted

(9)

summary judgment on the equitable claims and allowed the claims for compensatory and punitive damages based on alleged fraudulent conduct to proceed.

Therefore, the court concludes that Novell's breach of contract, breach of fiduciary duty, constructive trust/restitution/unjust enrichment, and conversion claims are equitable in nature given the nature of the relief sought under these claims and the limited issues remaining for trial. Accordingly, none of these claims provide a right to a jury trial.

The parties separately address Novell's claim for declaratory relief. SCO alleges that Novell's claim for declaratory relief actually seeks a declaration that SCO breached Section 4.16(b) by entering into SCOsource agreements without Novell's prior approval. Novell admits that its Amended Counterclaims set broader contours for this claim, but asserts that it has the right to seek only a narrow form of declaratory relief at trial. Novell asserts that at trial it seeks only a declaration that SCO had no authority to enter into the Sun and Microsoft Licenses, as well as the Intellectual Property Licenses with Linux end users and UNIX vendors. Novell agrees to be bound by this limitation.

SCO further claims that it has a right to a jury trial on Novell's declaratory judgment claim because, absent the procedural vehicle of declaratory relief, Novell's claim would have sounded in contract. See Fischer Imaging Corp. v. General Elec. Co., 187 F.3d 1165, 1169-71 (10th Cir. 1999). In Monroe Property, LLC v. Bachelor Gulch Resort, LLC, 374 F. Supp. 2d 914, 923-24 (D. Colo. 2005), the court recognized that "to determine whether there is a right to jury trial in a declaratory judgment action, it is necessary to determine in what kind of an action the issue would have come to the court if there were no declaratory judgment procedure."

SCO argues that, absent the declaratory judgment procedure, the only claim Novell could

(10)

have brought would have been a breach of contract of the prior-approval provision of the APA. Novell contends that it could have brought claims for specific performance to enforce the APA's approval requirement or rescission based on an agent exceeding its authority in entering into a contract. Novell also claims that it could have sought an injunction preventing SCO from entering into new SVRX Licenses without Novell's approval. All of these claims would be equitable.

In any event, SCO's position ignores the significance of the remedy sought under the claim. Importantly, Novell does not seek legal damages from SCO for injuries to Novell on account of SCO exceeding its authority in entering into the licenses. Novell is not seeking a determination of lost sales or lost profits arising from SCO's actions. Novell seeks only an interpretation of the parties' rights.

A declaratory judgment claim that seeks construction of a contract and no relief akin to damages is an equitable claim. Manning v. United States, 146 F.3d 808, 813 (10th Cir. 1998). In Burlington N. R.R. Co v. Nebraska Public Power Dist., 931 F. Supp. 1470, 1484 (D. Neb. 1996), the court concluded that there was no right to a jury trial on declaratory judgment claims involving the construction of various contractual provisions. The court reasoned that because judges in the late 18th century generally kept the construction of writings out of the jury's hands and the United States Supreme Court has recognized that this practice was for good reason, it is "not necessary (or proper) for 'the jury [to] shoulder [the] responsibility" of construction of the contract . . . in order to "preserve the 'substance of the common-law right of trial by jury.'" Id. (citations omitted).

The court concludes that because Novell's declaratory relief claim seeks only a

(11)

declaration of the rights and duties under Section 4.16(b), it is equitable in nature. Novell's claim is not a substitute for an action for breach of contract. Accordingly, SCO is not entitled to a jury trial based on this claim. Therefore, the court grants Novell's Motion to Strike Jury Demand and concludes that this matter should proceed as a bench trial.

III. Novell's Motion to Voluntarily Dismiss Its Third Claim for Relief

Novell seeks dismissal of its Third Claim for Relief for breach of contract on the grounds that it is duplicative of its other remaining claims that seek the same relief. Novell asserts that the court's August 10, 2007 Order resolves many of the issues arising under Novell's Third Claim for Relief even though it concerns motions relating to other claims. SCO contends that such dismissal is motivated by tactical maneuvers and aimed at preventing it from having a jury trial. Novell replies that even if the case is tried to a jury, a dismissal of its breach of contract claim will streamline the trial by reducing the number of jury instructions and complexity of the special verdict.

Rule 41(a)(2) of the Federal Rules of Civil Procedure grants the court the authority to dismiss claims at the request of the claimant "upon such terms and conditions as the court deems proper." Fed. R. Civ. P. 41(a)(2). "The rule is designed primarily to prevent voluntary dismissals which unfairly affect the other side, and to permit the imposition of curative conditions." Brown v. Baeke, 413 F.3d 1121, 1123 (10th Cir. 2005). "But, '[a]bsent "legal prejudice" to the defendant, the district court normally should grant such a dismissal.'" Id. (quoting Ohlander v. Larson, 114 F.3d 1531, 1537 (10th Cir. 1997)). Both parties agree that the issue before the court is whether SCO will be prejudiced by Novell's dismissal of its Third Claim for Relief.

(12)

The Tenth Circuit has explained that prejudice can result from "practical factors" such as "'the opposing party's effort and expense in preparing for trial; excessive delay and lack of diligence on the part of the movant; insufficient explanation of the need for dismissal; and the present stage of the litigation." Id. at 1124. Because these factors are "neither exhaustive nor conclusive," the court "should be sensitive to other considerations unique to the circumstances of each case." Id. The court's ultimate goal is to consider the equities facing both parties in order "to insure substantial justice is accorded to both parties." Id.

The "practical factors" recognized by the Tenth Circuit weigh in favor of dismissing Novell's Third Claim for Relief. Because Novell's breach of contract claim is duplicative of its fiduciary duty and conversion claims, the parties have not gone to additional effort or expense in preparing separately for the breach of contract claim. In addition, Novell did not delay in bringing this motion. Although the motion is filed close to trial, it was filed as a result of and timely after this court's August 10, 2007 Order. The court's August 10, 2007 Order significantly altered the posture of the case and required the parties to examine the proper resolution of several claims that were not directly addressed but were affected by the Order. Therefore, the court finds no prejudice to SCO based on the timing of Novell's motion. Furthermore, Novell's explanation for dismissing a duplicative claim that seeks the same relief as other claims provides an adequate basis for dismissal. It is a benefit to both the parties and the court to streamline the approaching trial.

SCO's primary objection to Novell's motion is a consideration unique to the circumstances of this case — namely, whether the dismissal of this claim affects its constitutional right to a jury trial. SCO contends that Novell is manipulating Rule 41(a) in order to obtain a

(13)

bench trial that it would not otherwise have had. Whereas, Novell claims that even if the breach of contract claim is left in, SCO is not entitled to a jury trial. In addition, Novell asserts that it seeks dismissal of the claim even if the case is tried to a jury.

The court has already determined that Novell's breach of contract claim does not entitle SCO to a jury demand because it seeks only equitable relief. Even if the court had not so ruled, the court would find that Novell is entitled to voluntarily dismiss its third counterclaim for breach of contract. There is no evidence that Novell has brought this motion for improper tactical motives and SCO has not demonstrated prejudice.

SCO further asserts that Novell should be precluded from raising its Third Claim for Relief in a subsequent trial on the bifurcated issues. The claims remaining on those bifurcated issues, however, are questionable and SCO has consented to dismissal of Novell's First, Second, and Fifth claims for relief under the same conditions Novell seeks with respect to its Third Claim. The court finds no prejudice in allowing Novell to renew its claim under the same conditions.

Therefore, the court grants Novell's Motion to Voluntarily Dismiss Its Third Claim for Relief. Novell's Third Claim for Relief is dismissed, with Novell having the right to renew such claim only in the event that there is any subsequent adjudication or trial in this action that retries its Fourth, Sixth, Seventh, or Eight Claims for Relief or there is any enlargement of the issues for trial beyond that contemplated by the August 17, 2007 Joint Statement.

IV. SCO's Motion in Limine to Exclude All Evidence Related to Other Litigation

SCO's motion seeking an order limiting evidence relating to its litigation with IBM is moot given the court's ruling regarding SCO's right to a jury trial. While a jury may have been

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prejudiced by certain remarks, the court is not. Given the issues remaining for trial, however, the court would expect such references to be quite limited and only in relation to matters of testimony and exhibits that may overlap.

V. Novell's Motion in Limine No.1

Novell's Motion in Limine No. 1 seeks to preclude SCO from challenging questions already decided as a matter of law in the court's August 10, 2007 Memorandum Decision and Order. Novell summarizes several of the court's holdings and asks the court to prevent SCO from challenging such holdings at trial. SCO opposes Novell's motion on the grounds that it is moot, improperly summarizes the court's order, and should apply to both parties equally.

There is no dispute that both parties are equally bound by the court's order. There is also no dispute that the parties are bound by the entirety of the order. There is, however, a dispute as to whether Novell's motion is moot. Based on SCO's opposition to the motion, the real crux of Novell's motion appears to be preventing SCO from challenging the court's conclusions that SCO never "validly converted" Sun and Microsoft to UnixWare, that the APA's definition of SVRX Licenses appears to apply even to incidental licenses of SVRX, and that the Sun and Microsoft Agreements have some SVRX component. The court's order found that the Sun and Microsoft licenses are SVRX Licenses, even if the SVRX component of those leases are only incidental.

SCO claims that it has no intention of introducing evidence contrary to the court's order. In that regard, Novell's motion could well be moot. The court, however, cautions both parties that they are not to rehash issues that have already been decided. The trial is to be entirely focused on facts relevant to the appropriate value of the SVRX component licensed in the Sun,

(15)

Microsoft, and other similar SVRX Licenses. The court has already found that those amounts constitute SVRX Royalties that should have been remitted to Novell. To the extent that SCO is continuing to argue positions contrary to the court's order, Novell's Motion in Limine No. 1 is granted.

VI. Novell's Motion in Limine No. 2

Novell also seeks an order precluding SCO from contesting that licenses conveying SVRX rights are SVRX Licenses according to the terms of the APA. SCO argues that it will not dispute at trial that the Sun and Microsoft Agreements have an SVRX component and that this SVRX component constitutes an "SVRX License." SCO does intend to argue, however, that the SVRX component is an incidental portion of the larger agreement and its value is de minimis. SCO is correct that one purpose of the trial is to determine what portions of the Sun and Microsoft Agreements license SVRX technology and what value is attributable to those portions. Therefore, SCO cannot be and is not precluded from arguing that the SVRX component is de minimis.

SCO's attempt, however, at making a distinction between the license as a whole being an SVRX License and only the SVRX component of the license being an SVRX License is contrary to the court's finding that even an incidental license of SVRX is considered an SVRX License under the APA's broad definition of SVRX License. The court rejected SCO's arguments that the Sun and Microsoft Agreements were not SVRX Licenses because they licensed SVRX only incidentally. SCO's distinction also appears to be irrelevant to the factual questions to be determined at trial--what portion of the licenses are attributable to SVRX technology and what value is attributable to that portion. There is no relevance to evidence relating to legal

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determinations already made by the court. Disputes as to the court's interpretation of the contract should be left for appeal.

Novell's motion does not seek a ruling from the court that the other SCOsource licenses are in fact SVRX Licenses. Novell acknowledges that it must establish such facts at trial. Accordingly, the court grants Novell's Motion in Limine No. 2 to the extent that it seeks to prevent SCO from challenging the legal conclusions in the court's prior order with respect to the definition of SVRX Licenses.

VII. SCO's Motion in Limine Re: Apportionment of Microsoft and Sun Licenses

SCO moves for an order instructing Novell to refrain from stating to the jury that Novell is entitled to all of the revenue associated with the April 30, 2003 agreement between SCO and Microsoft; that Novell is entitled to any revenue from the rights granted in any section of the Microsoft Agreement other than possibly Section 4; that Novell is entitled to all of the revenue associated with the February 25, 2003 agreement between SCO Sun Microsystems; or that Novell is entitled to revenue from the rights granted in any section of the Sun Agreement other than Section 4. SCO asserts that such arguments would confuse the issues and be misleading to the jury.

The court's determination that the trial will be to the bench, rather than a jury, moots SCO's arguments with respect to confusion. SCO's motion, however, also improperly asks the court to make rulings as a matter of law regarding factual disputes that are left for trial. The trial is intended to address what portions of the agreements license SVRX technology and the royalties attributable to those portions that should have been treated as SVRX Royalties. The parties can dispute at trial from which portions of the agreements Novell is entitled to SVRX

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Royalties.

Furthermore, the parties dispute which party has the burden of proof in the apportionment determination. Given that the case is proceeding as a bench trial, the parties can submit trial briefs regarding legal issues such as burdens of proof. Therefore, SCO's motion in limine regarding apportionment of the Sun and Microsoft licenses is mooted in part and denied in part.

VIII. Novell's Motion in Limine No. 3

Novell's third motion in limine seeks to preclude SCO from introducing new evidence and argument regarding an apportionment of SCOsource revenue. Novell asserts that SCO has repeatedly claimed that Novell in not entitled to any allocation from the Sun and Microsoft licenses, and SCO should not be allowed to enter evidence regarding any other division of the SCOsource revenues.

Novell's motion is untenable given the court's ruling that the Sun and Microsoft Agreements contain an SVRX component and that the revenue attributable to that component must be ascertained at trial. SCO recognizes that it is bound by this ruling for purposes of the approaching trial. While Novell is introducing evidence as to the appropriate allocation, SCO shall be permitted to offer evidence and argument against Novell's position — whether that includes a different allocation, such as de minimis, or an argument that no apportionment is appropriate.

SCO states that it does not intend to identify a specific number that should correspond with its positions that the value of the SVRX component is zero or de minimis. The court finds that there is no basis for requiring SCO to take a position that the appropriate allocation is zero if the evidence that is introduced at trial suggests something different and SCO concludes that it is

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more appropriate.

Novell also seeks to preclude SCO from presenting expert testimony from Dr. Thomas Cargill. SCO, however, asserts that it properly disclosed Dr. Cargill as an expert, and it does not intend to submit any testimony from Dr. Cargill other than what it has already disclosed. Accordingly, the court concludes that Novell has no basis for precluding Dr. Cargill's testimony. Given SCO's representation regarding the scope of Dr. Cargill's testimony, the court finds that no limitation is necessary.

Novell's reply takes issue with SCO's arguments in SCO's separate motion in limine regarding apportionment because it parses the rights conveyed by the licenses and SCO did not provide this type of an analysis in response to discovery requests. While the court finds that SCO should have provided such an analysis with respect to apportionment, especially in light of SCO's fiduciary duties regarding the allocation of SVRX revenues, it finds no prejudice to Novell if SCO is allowed to proceed with that type of analysis at trial. Novell will have an adequate opportunity to rebut such claims. Accordingly, Novell's Motion in Limine No. 3 seeking to preclude SCO from introducing new evidence and argument regarding apportionment of SCOsource Revenue is denied.

IX. Bench Trial Procedures & Other Matters

Both parties shall file trial briefs by the close of business on Friday, September 14, 2007. On the morning of trial, Monday, September 17, 2007, the parties shall submit proposed finding of fact and conclusions of law, and a proposed form of judgment. The parties will be allowed to supplement such materials at the close of trial if necessary.

The court notifies the parties that it will not hear argument at the Tuesday, September 11,

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2007 hearing on SCO's Motion for Reconsideration or Clarification of the Court's August 10, 2007 Order. As discussed in a telephone conference with the parties' counsel, the court requests that Novell file its opposition to the motion at approximately the close of business on Monday, September 10, 2007. The court requests that SCO file a reply memorandum by Wednesday, September 12, 2007. The court will issue a ruling on the motion prior to trial.

CONCLUSION

For the reasons stated above, SCO's Motion for Entry of Final Judgment Pursuant to Federal Rule of Civil Procedure 54(b) is DENIED; Novell's Motion to Strike Jury Demand is GRANTED; Novell's Motion to Voluntarily Dismiss Its Third Claim for Relief is GRANTED; SCO's Motion in Limine to Exclude All Evidence Related to Other Litigation and Commentary Thereon is MOOT; Novell's Motion in Limine No. 1 to Preclude SCO from Challenging Questions Already Decided as a Matter of Law is GRANTED; Novell's Motion in Limine No. 2 to Preclude SCO from Contesting Licenses Conveying SVRX Rights are "SVRX Licenses" is GRANTED; SCO's Amended Motion in Limine Regarding Apportionment of Microsoft and Sun SCOsource Licenses is MOOT IN PART and DENIED IN PART; and Novell's Motion in Limine No. 3 to Preclude SCO from Introducing New Evidence or Argument Regarding Apportionment of SCOsource Revenue is DENIED.

DATED this 7th day of September, 2007.

BY THE COURT:

(signature)
DALE A. KIMBALL
United States District Judge

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1 Even if this court were to conclude that the order on the claims SCO seeks to be certified was a final order for purposes of Rule 54(b), it is not conclusive for purposes of appellate jurisdiction. See McKinney v. Gannett Co., Inc., 694 F.2d 1240, 1247 (10th Cir. 1982) (jurisdictional defect cannot be cured by Rule 54(b) certification) (citation omitted); see also Sussex Drug Products v. Kanasco, Ltd., 920 F.2d 1150, 1153 (3rd Cir. 1990) (partial adjudication of single claim not appealable despite Rule 54(b) certification). If the order from which the appeal is taken is in fact interlocutory and does not adjudicate one or more but less than all claims in the action, Rule 54(b) does not permit an immediate appeal notwithstanding the trial court's decision to treat the order as final. Buckley v. Fitzsimmons, 919 F.2d 1230, 1237 (7th Cir. 1990), modified on other grounds, 952 F.2d 965 (7th Cir. 1992), reversed on other grounds, 113 S.Ct. 2606 (1993); see 10 Charles A. Wright, Arthur R. Miller, & Mary K. Kane, Federal Practice and Procedure: Civil 2d § 2655, at 41 (1982); see also United States v. Burnett, 262 F.2d 55, 59 (9th Cir. 1958) (court's language calling a judgment final is not determinative if its own import was to dispose of only a portion of the damages issues presented by a single claim).

  


Judge Kimball rules: There will be no jury in SCO v. Novell | 776 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections Here
Authored by: lordshipmayhem on Friday, September 07 2007 @ 10:21 PM EDT
Please put nature of error in heading, to make it easy for PJ to find.

[ Reply to This | # ]

Off-topic here, please
Authored by: overshoot on Friday, September 07 2007 @ 10:22 PM EDT
There are handy instructions for pretty-printing HTML and clicky links in red.

[ Reply to This | # ]

News Picks discussions here
Authored by: lordshipmayhem on Friday, September 07 2007 @ 10:24 PM EDT
Thank you!

[ Reply to This | # ]

Be still my heart!
Authored by: bbaston on Friday, September 07 2007 @ 10:30 PM EDT
So tSCOg will be able to argue in a limited fashion for less than 100% fees owed to Novell. Fair enough. We all believe in fair. Besides, it will be telling and entertaining to hear the explanations.

After 5 years, the end of SCO's game is nigh!

---
IMBW, IANAL2, IMHO, IAVO
imaybewrong, iamnotalawyertoo, inmyhumbleopinion, iamveryold

[ Reply to This | # ]

..Given that the remaining claims in the case will be ready for appeal in two to three months
Authored by: Anonymous on Friday, September 07 2007 @ 10:31 PM EDT
Sounds like the fat lady humming loudly.

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Judge Kimball rules: There will be no jury in SCO v. Novell
Authored by: ChocoNutDancer on Friday, September 07 2007 @ 10:33 PM EDT
Sweet.
There won't be any smoke and mirrors in front of a jury.

[ Reply to This | # ]

Judge Kimball Gets It
Authored by: Steve Martin on Friday, September 07 2007 @ 10:39 PM EDT

My favorite part:

SCO claims that it has no intention of introducing evidence contrary to the court’s order. In that regard, Novell’s motion could well be moot. The court, however, cautions both parties that they are not to rehash issues that have already been decided. The trial is to be entirely focused on facts relevant to the appropriate value of the SVRX component licensed in the Sun, Microsoft, and other similar SVRX Licenses. The court has already found that those amounts constitute SVRX Royalties that should have been remitted to Novell. To the extent that SCO is continuing to argue positions contrary to the court’s order, Novell’s Motion in Limine No. 1 is granted.
(emphasis added)

"continuing to argue positions contrary to the court's order"... yep, I'd say he gets it.

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

[ Reply to This | # ]

Thanks to the amazingly fast Steve Martin
Authored by: Anonymous on Friday, September 07 2007 @ 10:39 PM EDT
Thanks and more thanks to Steve Martin. He must have cleared his desk and had
his secretary hold all calls in anticipation of this ruling...

-Wang-Lo.

[ Reply to This | # ]

please someone translate for non-lawyers !
Authored by: Anonymous on Friday, September 07 2007 @ 10:43 PM EDT
What does this mean ?
SCO's Motion in Limine to Exclude All Evidence Related to Other Litigation and Commentary Thereon is MOOT
Is this the motion where SCO asked Groklaw and other external sources of information to be precluded from being used ?

[ Reply to This | # ]

Mark your calendar
Authored by: Steve Martin on Friday, September 07 2007 @ 10:51 PM EDT
Red Hat's next letter to the Delaware judge (which is due by my reckoning on
September 18th) should be very interesting.


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

[ Reply to This | # ]

Judge Kimball rules: SCO Lost
Authored by: Anonymous on Friday, September 07 2007 @ 10:58 PM EDT
After reading this decision, I realized that Kimball considers SCO to have lost.
The upcoming trial is ONLY about how much they owe Novell.

[ Reply to This | # ]

For SCO to be slapped back
Authored by: Architeuthis on Friday, September 07 2007 @ 11:08 PM EDT
the way Judge did to them with the <i>Great-West</i> case which they
were quoting to support their side of the story - that must be embarrassing for
the lawyers.

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Novell: Please don't settle out of court. Thanks.
Authored by: bbaston on Friday, September 07 2007 @ 11:11 PM EDT
If Novell settles out of court - and I'm assuming Darl McBride is on the phone NOW, begging, which is a sane behavior to expect from a sane CEO - there will be ill will resulting. The world - and this wronged community - deserves EVERYTHING laid out to be seen.

So please, don't settle. Thank you.

---
IMBW, IANAL2, IMHO, IAVO
imaybewrong, iamnotalawyertoo, inmyhumbleopinion, iamveryold

[ Reply to This | # ]

Holy Cow Batman!
Authored by: snakebitehurts on Friday, September 07 2007 @ 11:21 PM EDT
Is that the sounds of the final nails being driven into the coffin?

Can it be that SCO's only item at trial is what portion of all the money they
collected is due to Novell?

Can their ace expert - Dr. Cargill - save them them from from the axe?

Stay tuned. The final chapter is only a week away.
**********
I am so happy at this ruling from the judge. It's been a long time coming. He
let both sides fire all their shots before he began to rule. One side will get
their just rewards (winning) in the very near future.

[ Reply to This | # ]

  • Holy Cow Batman! - Authored by: Anonymous on Saturday, September 08 2007 @ 10:21 AM EDT
  • Wham! Pow! - Authored by: Anonymous on Saturday, September 08 2007 @ 08:13 PM EDT
So What Next With IBM After Novell?...
Authored by: Anonymous on Friday, September 07 2007 @ 11:38 PM EDT
Inquiring minds want to know.

[ Reply to This | # ]

Judge Kimball rules: There will be no jury in SCO v. Novell
Authored by: Anonymous on Friday, September 07 2007 @ 11:47 PM EDT
"The court should determine whether the action would have been brought in law or equity in 18th-century England."

Nice! :)

Still, I haven't read many court decisions, but the ones I have seen here at Groklaw seem all to be very well founded, littered with case law. Does anyone know if this is particularly true to this case?

Funnily, SCO may have been right all the time, and the Judge saw it - this case would have been too complex for a jury...




IMANAL - I'M Absolutely Not A Lawyer (just didn't login)

[ Reply to This | # ]

SCO = tempest in a teapot.
Authored by: chaz_paw on Friday, September 07 2007 @ 11:58 PM EDT
n/t

---
Proud Linux user since 07/26/04
Registered Linux user #422376

Charles

[ Reply to This | # ]

tSCOg must find this painful
Authored by: Anonymous on Saturday, September 08 2007 @ 12:11 AM EDT
In reading it, all I can say is, "Ouch!" The judge is right up there
with the Novell and IBM lawyers for deveastation.

[ Reply to This | # ]

David Boies will be denied his Stage
Authored by: Anonymous on Saturday, September 08 2007 @ 12:31 AM EDT
No jury trial means that David Boies will be denied his chance to flummox the
jury.

Further, I don't expect him to appear before the judge in the bench trial,
because the judge already knows, from the IBM case, that Boies personally cooked
up this whole shake-down plan with Darl, and as a result Boies therefore won't
bring any plus factors for SCO.

Boies' name is mud before this judge.

LEXLAW

[ Reply to This | # ]

Judge Kimball rules: There will be no jury in SCO v. Novell
Authored by: Anonymous on Saturday, September 08 2007 @ 12:33 AM EDT
Really, the only pressing question now is how soon the bankruptcy papers will be
filed.

[ Reply to This | # ]

This feels so right
Authored by: om1er on Saturday, September 08 2007 @ 12:35 AM EDT
I like this judge.

(Guess you can tell which side I'm rooting for.)

---
August 10, 2007 - The FUD went thud.

[ Reply to This | # ]

Gordian Knot
Authored by: Anonymous on Saturday, September 08 2007 @ 12:39 AM EDT
Does anyone else here feel as if Novell helped the Judge just cut a Gordian
knot? There were all these SCO motions and Novell objections over juries and
such, then Novell realized that we can just dump this one claim and there will
no longer be any need for a jury.

Then *wham* a whole bunch of SCO nonsense gets mooted, just like that and the
Judgment Day SCO fears moves up because of the lack of jury deliberation.

I almost read a subtext into the denial of the more immediate ruling so that SCO
can file a partial appeal: I'm not going to let you appeal half of the ruling
and complicate this thing any further. Just you wait--you'll be appealing the
whole thing in a minute when I get to rule against you.

[ Reply to This | # ]

Actually I'm hoping that it TSG holds on.
Authored by: AH1 on Saturday, September 08 2007 @ 12:46 AM EDT
After all since it all started with IBM I think that it is only fair that the
Nazgul have the honor of grinding Daryl and his cronies into dust.

[ Reply to This | # ]

Upcoming Trial
Authored by: om1er on Saturday, September 08 2007 @ 12:55 AM EDT
If there is a trial, and The SCO Group has to bring in their accounting books to show just how much money they have left to hand over to Novell, I so hope that either the Judge or one of Novell's counsel says,
"I mean, is that all you've got?"

PJ, I have a hobby of thinking up book titles - it's just something I do to amuse myself. Believe it or not, I've come up with several titles for that book you are going to write about this saga. The best one so far, though, is that quote. It gives the plot away with the title, but so precisely defines this case that I do hope you consider it as the title. And since the book will be for learning the law and legal system, it could drive home the fact that you better have something before going to court as a plaintiff (unlike SCOG did).

---
August 10, 2007 - The FUD went thud.

[ Reply to This | # ]

"equity" and "law"
Authored by: arch_dude on Saturday, September 08 2007 @ 12:58 AM EDT
Wow. Pj has tried to explain this to us in the past, but I never understood how
important the distinction was until I saw this decision.

OK, PJ told us aboutthe "court of law" and the "court of
equity." But I did not realize that the seventh amendment right to a jury
trial applied only to the court of law and not the court of equity. Kimball has
decided to handle this as a bench trial rather than a jury trial because all
remaining issues are "equitable" rather than "legal." Novell
cleverly elected to abandon all issues of law, so their only counterclaims are
based on equity. Since all SCO claims have already been dismissed and all Novell
claims are equitable, Kimball has decided on a bench trial rather than a jury
trial. Cool.

How often does this happen? That is, how often do we get a bench trial at the
federal district level when one party wants a jury trial?

[ Reply to This | # ]

Ouch! And, "Woot!"
Authored by: kurtwall on Saturday, September 08 2007 @ 01:13 AM EDT
To the extent that SCO is continuing to argue positions contrary to the court's order, Novell's Motion in Limine No. 1 is granted.

Which I read to mean, "Hizonner is wise to SCO's shenanigans."

[ Reply to This | # ]

Stock market open on Sunday?
Authored by: w30 on Saturday, September 08 2007 @ 01:14 AM EDT
I guess I have to wait for Monday to see what the SCOX stock does, eh?

---
Yes, I dual boot but both are Linux distributions:=)

[ Reply to This | # ]

Dear Honorable Dale Kimball
Authored by: Anonymous on Saturday, September 08 2007 @ 01:32 AM EDT
While we are enjoying your latest rulings and speed.
Please consider moving your rulings to Mondays ( early morning if possible) as
opposed to Fridays. The benefits will include;

1) Better fireworks and real-time reaction. (Better momentum)
2) Will improve productivity on Mondays
3) Less hangovers on Mondays ( see #2)
4) We are accustomed to waiting..one weekend won't kill us.
5) Leads to a better week, which is longer, as opposed to a better weekend.
6) I like watching graphs while reading your orders.
7) My in-laws are in-town on weekends
8) Mondays are boring



[ Reply to This | # ]

The strongest warning so far
Authored by: Anonymous on Saturday, September 08 2007 @ 01:35 AM EDT
I read this ruling as the strongest warning to SCO so far.
"Keep your mouth shut and take it like a man".
"do not rehash", "improper" used several times and several
other warnings obviously directed at SCO.

[ Reply to This | # ]

Judge Kimball rules: There will be no jury in SCO v. Novell
Authored by: Anonymous on Saturday, September 08 2007 @ 01:50 AM EDT
Don't know about anyone else but I distinctly got the impression that Kimball
has been looking for an opportunity to slap tSCOG down for some while, and
Novell just gave it to him.

[ Reply to This | # ]

The End Game is Done - They're Picking Over The Bones
Authored by: Anonymous on Saturday, September 08 2007 @ 02:05 AM EDT
Novell's lawyers have been efficiently devastating in their litigation against
SCO.

They have been like Samurai quickly cutting off one SCO limb at a time. Their
last motions in Lamine have been utterly devastating - essentially cutting
SCO's body into four pieces, after having already cut off the legs, arms, and
head.

I am very impressed.

The end game is done. SCO has been checkmated by Novell.

The only issue to decide upon is how much Novell needs to be paid for
winning the game.

It has been lightning quick. Utterly overwhelming. SCO, in the end, is left
speechless. They don't even have a jury trial to keep squaking to the world.
They go out in a whimper - arguing before a judge who is completely aware
that they have already lost and is simply managing the rest of the
proceedings.

Wow! It's done! SCO is done for.

[ Reply to This | # ]

Judge Kimball rules: ILLEGAL SALE?
Authored by: dodger on Saturday, September 08 2007 @ 02:24 AM EDT
Since Novell was not notified of the sale of the source - the sale could be
considered illegal. The transfer of IP with non-paying parties seems to be a
kind of offense, which sounds a lot like the music sharing offense.

Does Novell have any recourse to demand payment from Microsoft and Sun for its
IP which was never paid for?
-----
Thursday, December 10, 2006 - Akron, Ohio - Spider attacks girl eating rotten
cheese. Girl runs away, reporting incident to police who return to the crime
scene to find broken bowl, but no trace of spider.

[ Reply to This | # ]

A quaint criterion
Authored by: Anonymous on Saturday, September 08 2007 @ 02:30 AM EDT

First, the court should determine whether the action would have been brought in law or equity in 18th-century England.

My first reaction was to wonder whether it can be "determined" how an 18th-century court would have treated a dispute about computer software. But on re-reading the summary of the three issues that remain for trial, it dawned on me that none of them have much to do with the specific nature of computer software. They turn on the relationships between various contracts, and the basic nature of the dispute would have been perfectly understandable to an 18th-century English lawyer.

[ Reply to This | # ]

Yesterday: McBride says SCO isn't dead yet, despite legal loss CEO claims
Authored by: Anonymous on Saturday, September 08 2007 @ 02:30 AM EDT

What about now? Are you dead now? Darl can you hear me? no?

[ Reply to This | # ]

Great news for SCOG!!!!
Authored by: Anonymous on Saturday, September 08 2007 @ 02:51 AM EDT
One of Novell's motions was denied! I can't wait to read the press release on
Monday morning.

bkd

[ Reply to This | # ]

Dr. Thomas Cargill - ?
Authored by: Anonymous on Saturday, September 08 2007 @ 03:03 AM EDT
VIII. Novell's Motion in Limine No. 3 reads in part:
"Novell also seeks to preclude SCO from presenting expert testimony from Dr. Thomas Cargill. SCO, however, asserts that it properly disclosed Dr. Cargill as an expert, and it does not intend to submit any testimony from Dr. Cargill other than what it has already disclosed. Accordingly, the court concludes that Novell has no basis for precluding Dr. Cargill's testimony. Given SCO's representation regarding the scope of Dr. Cargill's testimony, the court finds that no limitation is necessary."

Dr. Cargill has many mentions in SCO v. IBM, but I'm having trouble finding his role (more pointedly - his disclosed expert testimony) in SCO v. Novell. Could somebody clue me in please.

[ Reply to This | # ]

Well, gotta give Judge Kimball some credit
Authored by: mobrien_12 on Saturday, September 08 2007 @ 03:18 AM EDT
I really think he's going to make this a fair trial.

He's given SCOG/BSF massive amounts of leeway up to now. Just essentially,
there is no real point for a jury trial at this time. He's completely on the
ball.


[ Reply to This | # ]

What's really sick about all this
Authored by: Anonymous on Saturday, September 08 2007 @ 05:14 AM EDT

OK, we're finally near the end. SCO will soon be history.

But the way it has ended casts American business in a very poor light.

Old SCO used to be a going concern. It had marketers who assessed customer needs, software engineers who built software to meet those needs, support people who helped customers get value out of their systems ... and so on down to the guys who cleaned the restrooms at head office. They all did honorable work - doing something that some people needed done, and were willing to pay for.

Then along comes Darl McBride. McBride has never accomplished anything for anybody, other than himself. He has terrific ability to convince people that he has what it takes to be a Top Executive. As far as I can determine from his resume, he has never demonstrated any other ability whatsoever.

Darl McBride has been paying himself approximately $265,000 per year plus an annual bonus varying from $36,000 to $213,823. (Details near the end of this proxy statement.) His "accomplishment", since he was appointed, has been to destroy two businesses, Caldera and the part of old SCO it took over, while enriching himself and some lawyers. He's laughing all the way to the bank. The money he received has been much more, in some cases several times more, than the salary of the people mentioned above who made a positive contribution to Caldera/SCO, its stockholders, and its customers. That's what I can't stomach.

[ Reply to This | # ]

As Time Stands Still for SCO
Authored by: DaveJakeman on Saturday, September 08 2007 @ 06:17 AM EDT

Many of the comments above read like the final analysis of the SCO saga.

It's like watching a fragile glass vase falling through the air toward a hard concrete floor. We know what will happen next, yet still we watch intently, speculating even, on how many pieces it will shatter into, where the bits will fly, what delicate tinkling sounds they will make, who shall pick them up after all has come to rest and how should they be disposed of?

It's like one of those rare instances where time slows to a standstill, allowing quiet, subdued contemplation, before being rudely awoken from our reverie by the loud, jarring crash.

PS – I once dropped a large glass honey jar from waist height onto a very hard floor. After time stood still for a moment, the jar landed squarely on its base, bounced, did a neat somersault, landed squarely on its base again and came to rest without so much as a scratch. This was greatly preferable to a mixture of broken glass and honey. So, watch carefully – unexpected things sometimes happen.

---
Only two things are infinite: the universe and human stupidity – and I'm not sure about the former. -- Einstein

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Dead, Mostly Dead, Not Long for this World
Authored by: Anonymous on Saturday, September 08 2007 @ 06:29 AM EDT
"Wrong, he's not dead, only MOSTLY dead. When he's mostly dead, there's
some hope. If he's dead, there's only one thing you can do." "What's
that?" "Go through his pockets for loose change." (From what I
can remember from the Princess Bride.) So, do we blow some life back into SCO
for the purposes of allowing IBM to finish them off, or simply go through their
pockets for loose change? Up to Novell, huh?

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Oh dear, I must have been asleep.
Authored by: Ian Al on Saturday, September 08 2007 @ 06:39 AM EDT
Judge Kimball has put me right. He must have known I was a couple of points short of a conclusion. Anyway, in the current order he gave me the following prod with a cluestick (although it took PJ's article to finish the job),
As a result, the court found that Novell was entitled to a constructive trust.
So, the moment the judge gives his verdict, he will also order the constructive trust to be set up for the sum given in his verdict. He has already said that this is the main reason for having the trial. So, what might the sum be? He says,
While Novell is introducing evidence as to the appropriate allocation, SCO shall be permitted to offer evidence and argument against Novell's position — whether that includes a different allocation, such as de minimis, or an argument that no apportionment is appropriate. SCO states that it does not intend to identify a specific number that should correspond with its positions that the value of the SVRX component is zero or de minimis.

The court finds that there is no basis for requiring SCO to take a position that the appropriate allocation is zero if the evidence that is introduced at trial suggests something different and SCO concludes that is more appropriate.

Is he really saying that SCOG can propose either nothing at all or 'de minimus' (so little that the law could not care less)? I think that the following paragraph actually says that SCOG can argue for something different if the evidence presented by both sides suggests something different. On the other hand, if they wish, they can continue to maintain that, although the judge had said that there is some SVRX in the contracts, that the appropriate sum is, nevertheless, zero or de minimus.

I would have thought that Sun wanted to free Solaris X86, Microsoft wanted to licence its Unix Posix support and EV1 just wanted to run Linux based servers. None of them appear to want to licence the stuff that turns SVRX into UnixWare. I would have thought the judge would conclude 'all of it is the correct apportionment'. Whatever he decides it would still seem likely that it will be more than SCOG can pay.

So, a few days after the court judgement, SCOG will be bankrupt. The trial starts September 17. It could be all over for SCOG by the end of the month.

What am I saying! No it won't. Redhat will be unstayed the moment the August 10 order falls out of the letter to the judge. IBM is still rolling and the judge can enjoy agreeing with IBM how big SCOG's figleaf is in that case. The bankruptcy will delay both for a while (months, IIRC). Perhaps Autozone will choose a settlement of 'never darken my door again'. They have no strong point of principle to resolve: they just want the extortionists off their back.

So, there you have the bad news. If you thought the need for repeat orders of popcorn had come to an end, think again.

---
Regards
Ian Al

Linux: Genuine Advantage

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Now I've Seen it All
Authored by: DaveJakeman on Saturday, September 08 2007 @ 07:42 AM EDT

US law is controlled by English law - 18th century English law, no less.

US law is a "Microsoft Word" of the litigation industry.

It started off by being copied from something else, there's lots of legacy stuff in there, it's bloated yet continually modified and added to, it's incompatible with its own output in different states (no attempt to standadise it would ever work) and it doesn't always do what you might expect. No wonder it's so slow. On the occasions it does do what it should, it seems such a battle that you feel something truly great has been achieved, whereas a lesser tool could achieve the same result, with less effort, consuming fewer resources, in far less time.

Perhaps my analogy should stop there. This is an occasion to be cheerful.

:)

---
Only two things are infinite: the universe and human stupidity – and I'm not sure about the former. -- Einstein

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Sanctions
Authored by: Anonymous on Saturday, September 08 2007 @ 07:42 AM EDT
This is great news. Now all we need to cap it off is for tSCOg's legal team to
be slapped with sanctions that equal more than their coffee budget for the last
couple of years.

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I like Kimball's judicial humour!
Authored by: elderlycynic on Saturday, September 08 2007 @ 08:21 AM EDT
"Regardless of the outcome of the upcoming trial, there will undoubtedly
be an appeal at that time."

"First, the court should determine whether the action would have been
brought in law or equity in 18th-century England."

I may have missed others :-)

[ Reply to This | # ]

Am I Confused? Are You?
Authored by: DaveJakeman on Saturday, September 08 2007 @ 08:35 AM EDT
From Kimball's Order (Motion to Strike Jury Demand):
Despite the number of claims for relief that remain, Novell states that in light of the court's August 10, 2007 Memorandum Decision and Order and the court's directive to the parties to identify the remaining claims for trial, the parties have narrowed the issues for trial to three: (1) Are additional SCOsource licenses, like the Sun and Microsoft licenses, "SVRX Licenses" within the meaning of the APA?;...
From the same Order (Novell's Motion in Limine No.1):
The court's [August 10, 2007] order found that the Sun and Microsoft licenses are SVRX Licenses, even if the SVRX component of those leases are only incidental.
Given that SCO is being denied the chance to rehash issues already decided as a matter of law, why is item (1) above still in scope for the trial? Or have I got it wrong and item (1) is not in scope?

---
Only two things are infinite: the universe and human stupidity – and I'm not sure about the former. -- Einstein

[ Reply to This | # ]

Judge Kimball and Details
Authored by: sproggit on Saturday, September 08 2007 @ 08:59 AM EDT
As a side note to the content of yesterday's rulings, I note with interest that
[on initial inspection at least] it seems as though his two most recent rulings
[August 10th and yesterday] were both apparently timed for release after the
close of stock market on a Friday.

This can be no mere coincidence.

The Honorable Judge Kimball is acutely aware of the impact of his rulings on
share prices and in each case has allowed for a maximum of "cooling
off" time between the release of a ruling and the next opening of markets.


The more we see of Judge Kimball at work, the more content/relieved/joyous I
find myself feeling given that he is presiding over this case.

Though he might not have understood some of the deep technological issues that
were thrown into this particular case, he seems to have been quite meticulous in
his conduct.

In fact, I'll go so far as to say that both SCO and Novell have reasons to be
grateful for his presence in this case: Novell for the fact that Judge Kimball
has seen sense and reason and gives clear indication that the Court is finding
in favour of Novell. But also SCO, who have been given more than ample
opportunity to develop their arguments [though we might concede to IBM's
detriment from a cost-of-discovery perspective!] and who, when the final rulings
and possibly sanctions are handed down, will at least have to concede that Judge
K has been scrupulously fair throughout.


Over the last 4 years the ebb and flow of this case has left many of us - myself
included - doubting the effectiveness of the US legal system given the
overwhelming evidence of systemic abuse and it's vulnerability to "being
gamed". But at least, despite these imperfections, it contains checks and
balances in the form of Judges such as the honorable Judge K, who have the
patience, fortitude and ability to see even complex technical cases such as this
one through to the bitter end.

Rock on, Judge K!

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"SCO IP" in EV1 contract
Authored by: gvc on Saturday, September 08 2007 @ 10:37 AM EDT
I think there's a serious transcription error in the text version of the EV1 contract.

The actual contract (signed and dated 3/1/04) says:

1.7 "SCO IP means the SCO UNIX(r)-based Code alleged by SCO to be included, embodied, or otherwise utilized in the [Linux] Operating System.
The transcription http://www.groklaw.net/article.php?story=20061017111313689 says
1.7 "SCO IP" means the SCO intellectual property alleged by SCO to be included, embodied, or otherwise utilized in the Operating System.

It seems to me that the contract admits any and all evidence as to what components of Unix were alleged to be owned by SCO. And I think the court will find that these components pertain almost exclusively to SVRx, not Unixware.

I think this also explains to a large extent why SCO wanted the IBM case and Groklaw excluded. They provide extensive evidence as to the allegations made by SCO, which are directly relevant to the issues at trial. http://www.groklaw.net/article.php?story=20061017111313689

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"Gentlemen", start your shredders!
Authored by: Anonymous on Saturday, September 08 2007 @ 10:49 AM EDT
(I use the term "gentlemen" very loosely...)

Given that SCO is destined for bankruptcy, wouldn't the bankruptcy trustee have
access to all SCO's correspondence with BSF and the rest of SCO's lawyers?

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Equitability
Authored by: Anonymous on Saturday, September 08 2007 @ 11:06 AM EDT
Could the judge conclude during the trial that SCO did not have the right to
enter into the Sun agreement (for example)and award Novell the entire amount SCO
received or would that go beyond being equitable?

i.e., even if SCO could prove that only a certain % was SVRx ; they would lose
because they had no right to enter into the contract.

J

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Red Dress - Judge Kimball rules: There will be no jury in SCO v. Novell
Authored by: Anonymous on Saturday, September 08 2007 @ 02:05 PM EDT
Ha! Ha! I said as I read the first sentence. That's it, fini, kaput, no more.

Now you can wear that red dress!!!!!!!!!!!!

No more concern about flumoxing inexperienced jurors. It might get appealed,
but unless SCO provides the judge, with specifity, what products were licensed
to IBM and Sun that were developed after the APA, only the pipe fairy can save
SCO now. There is no more!!!! They've overspent. Shouldn't be very much
longer.

Can we possibly dream that by the end of the year, PJ will have no more to write
about SCO?

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"SCO has not won this judge over"
Authored by: Anonymous on Saturday, September 08 2007 @ 06:13 PM EDT
Every judge wants to deal with "real" cases, not frivolous
ones. IMO the judge is angry because SCO's "evidence" is
just not there, so he decided to pull the plug ASAP.

IMO when the appeal court will see SCO's "evidence" it will
make a similar decision, for similar reasons, FAST.

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Does SCO v. IBM wait for appeal?
Authored by: UncleJosh on Saturday, September 08 2007 @ 08:14 PM EDT
The judge says that there will "undoubtedly" be an appeal after the
SCO v. Novell trial and SCO v. IBM was put off until after SCO v. Novell. Does
this mean that SCO v. IBM would wait until after the appeal decision in SCO v.
Novell? Would it make sense to go forward with SCO v. IBM before the appeal was
decided? If the trial court's decisions were overturned on appeal the SCO v.
IBM trial would be very different than it would be if the decisions were upheld
on appeal. Would "judicial efficiency" be served by waiting for the
"final" outcome of SCO v. Novell? I'm just asking...

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Judge Kimball rules: There will be no jury in SCO v. Novell
Authored by: Anonymous on Saturday, September 08 2007 @ 08:25 PM EDT
I suspect Novell will just leave the issue of the license validity hanging.

"Sauce for the goose" as it were.

Of course, Microsoft or Sun could go to court to have it decided, but the
discovery in that case could cost them more than they'd gain.

[ Reply to This | # ]

What about the noncompete?
Authored by: aha on Saturday, September 08 2007 @ 11:30 PM EDT
One thing that I have not heard since the PSJs is about the noncompete. Is that
gone?

---
You get what you focus on.

[ Reply to This | # ]

No more conspiracy speculations please!!
Authored by: Anonymous on Sunday, September 09 2007 @ 12:52 AM EDT
Uhh....I'm sick of reading all these posts that want to tie SCO to MS just
because someone, somewhere, might've at one time met someone, somewhere from MS
and somehow in some way this should implicate Bill G and send him and all the
bad people (whoever they are) to jail for a very long time so that we can take
pleasure in their misery and they can know what terrible people they are.

To quote Tom Cruise in "A Few Good Men" (I think this is the right
quote) -- it doesn't matter what you know, only what you can prove

So what if someone did meet with someone who might in some sixth-degree case be
connected to MS, can you prove that the meeting in itself somehow broke the
law???

On the plus side, it is gratifying to see that the system works, however
slowly.....

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Kimball Rules
Authored by: webster on Sunday, September 09 2007 @ 01:06 AM EDT
..


I. He denies SCO's motion to appeal some of the counts. He doesn't think it's
worth the bother ("no compelling reason")to allow a piecemeal appeal
since so little time ("a potential two or three month delay") is
involved. That delay consists in a few minutes or a few days of trial, then
motions for new trials and Judgment NOV and such. It's a decision to save time
and work. Even SCO is glad about it.

II. Kimball strikes SCO's jury demand. This is a very confident judge. He no
longer believes SCO. No matter how SCO tries to construe the Sun, Microsoft
licenses, he won't buy it. He sees only an equitable remedy and he can apply
that alone, no jury. He has already ruled the licenses SVRX licenses so the
only question is how much the fiduciary, SCO, owes Novell. [SCO could easily
win this accounting with the truth: "Your Honor, we don't owe Novell
anything for this license. No SVRX code was needed or paid for. This was just
a way to pay the very lawyers here before you because that's were the money's
gone." Such candor would cause other problems though. They must continue
to live the lie.]

No Jury. No one but Kimball. No chance. This will shorten the trial. Indeed,
they should stipulate to the documents and argue like a Motion. However on
second thought the testimony on these licenses might spill some beans on PIPE
Fairies and such. If one recalls correctly, our good friend Anderer claimed a
commission on this sum. Was he an SVRX salesman? This may stray too far
afield. Kimball may just want to hear about code and accounting.

III. The judge dismisses Novell's contract claim. He already ruled it an
equitable decision for him. It is duplicative. Save the work. SCO only
opposed because it normally is tried to a jury. They desperately wanted a jury
so they postured to maintain the extra claim against themselves. And they
wonder what has happened to their credibility. Like the gambler on a cold
streak they play more hands.

IV. The Judge finds the Motion to exclude other litigation, IBM, moot since he
can't be prejudiced like a jury. But he goes on to warn the parties keep it
minimal.

V. The Judge moots Novell's "Don't Let 'Em Re-Hash" Motion 'cause SCO
told the Judge they wouldn't. But since Novell took the time to file it, the
Judge goes on to warn both parties not to rehash issues decided. No one thinks
Novell wants a rehash. They asked the Judge for a shot across the bow and he
obliged. More on this later.

VI. The Judge treats Novell's Motion in Limine No. 2 as another "Don't
Rehash" Motion. He says just aportion the SVRX part of the licenses, even
de minimis. He grants this moriton and warns again against challenging his
prior order.

VII. He moots and denies SCO's Motion re apportionment of licenses because
there will be no Jury. While the parties can worry about confusing the jury,
you don't have to worry about confusing the judge.

VIII. Novell asks to preclude new apportionment evidence. SCO's position has
been "none for Novell." The Judge feels that his ruling changed the
landscape so that SCO can come up with an alternative to nothing for Novell.
He's sure Novell will have an oppoprtunity to rebut the new evidence. So shall
SCO now be able to deliver at trial that which they deliberately withheld during
discovery? Apparently so. Will it help or hurt? Will it inspire sanctions?
SCO best stick with all or nothing. Anything else means they have to pay.

IX. The Judge orders trial briefs with findings of fact, conclusions of law and
a proposed judgment. There will be no shooting from the hip in this trial. He
is treating the trial like a motion. He expects witnesses to just help fill in
the numbers for apportionment of the license fees.

He cancels the hearing on the SCO's Motion to reconsider and clarify the August
10 order. He orders the parties to whip out the response and rebly briefs. It
is certainly clear in his mind and he has no need to reconsider. He will rule
before trial. The parties must presume he will essentially repeat this order.
They certainly have to presume this in preparing their trial briefs. All are
happy not to have to do the hearing on September 11. Preparing for trial is
work enough. He'll rule prior to trial. It will not be a surprise.

...

There is not much to try. The Judge is looking for a dollar amount. The only
suspense left surrounds the tactics of SCO. Will they be defiant? Severe
scoldings in front of the jury can't happen. Will they misinterpret and argue
decided issues? Will they try and illustrate why they are prejudiced by
bringing up that which the Judge has warned them not to bring up? They took
some foolish liberties with Judge Wells. It's hard to imagine they would pull
Kimball's chain, but they weren't paid to lose or lose meekly. If Kimball gets
what he wants, it will be a very tame trial with license interpretation, code,
and accountants.

Novell is very fortunate to have a Judge like Kimball who handles vast amounts
of complex material and understands it. Many would just punt and let everything
go to the jury. He has been handling many other cases over this same period.
He has always been a worker starting out with a distinguished law school
experience, cum laude. This is his routine. He is fair and unafraid. With
some judges SCO would still have an upper hand. They get overwhelmed with form
over substance and thoughtlessly wrapped in procedure. This Judge uses the
process to whip the parties into shaping a trial and decision.


---
webster


© 2007 Monopoly Corporation. ALL rights reserved. Yours included.

[ Reply to This | # ]

What SCO Expect
Authored by: DaveJakeman on Sunday, September 09 2007 @ 04:12 AM EDT

In checking the EV1 contract, I came across this snippet:

5.0 RECORD KEEPING AND AUDIT

5.1 Licensee shall keep full, clear and accurate records with respect to licenses granted hereunder for the Systems owned or operated by Licensee. Such records shall contain all information necessary to determine all fees due hereunder and shall be maintained for a period of five (5) years.

5.2 Licensee hereby grants SCO the right to cause an audit to be made with respect to the fees due hereunder. If any discrepancies are found with respect to Licensee's payment of fees due hereunder then a prompt adjustment shall be made by the proper party to compensate for any errors or omissions disclosed by such audit.

So there you have it. That is what SCO expects from their licensees when SCO sell them a SCOsource SVRX licence. Why should the same not apply to SCO?

---
Only two things are infinite: the universe and human stupidity – and I'm not sure about the former. -- Einstein

[ Reply to This | # ]

It appears the apportionment issue was linked in
Authored by: Hyrion on Sunday, September 09 2007 @ 10:41 AM EDT

see also United States v. Burnett, 262 F.2d 55, 59 (9th Cir. 1958) (court's language calling a judgment final is not determinative if its own import was to dispose of only a portion of the damages issues presented by a single claim).
If I read the above correctly, deciding how much Novell was owed by SCOG was linked in to the issues surrounding the interpretation of the APA.

---
IANAL - But I am very curious and like to research.
There are many kinds of dreams. All can be reached if a person chooses.
RAS

[ Reply to This | # ]

Time for TSGX to drop the bombshell
Authored by: Anonymous on Sunday, September 09 2007 @ 10:54 AM EDT
It ain't over 'til its over. Even then, it ain't over 'til TSCX is gone.

What rabbits could TSCX pull out of their hat?

Remember, the TSCX actors have already made their multiple
millions. The trick is to keep all their money while staying out of
jail. Funny thing is PJ has been briefing much of the information
the authorities would need. That is funny in a karma sense.

[ Reply to This | # ]

The sad thing is
Authored by: Bill The Cat on Sunday, September 09 2007 @ 12:26 PM EDT
The sad thing is that this was allowed to drag on for so long without any real
evidence or foundation. How many resources were wasted on this? In the IBM
case, its' even worse. Millions of dollars wasted because SCOX didn't have
anything in the first place. When they were asked to provide their evidence and
they didn't, the court should have said "No evidence. No case.
Dismissed" and saved Novell and others a whole lot of money and time that
could have been spent in a constructive way.

While the entertainment factor has been good, it wasn't worth the loss to
Novell.

---
Bill The Cat

[ Reply to This | # ]

The inevitable appeal
Authored by: Superbiskit on Sunday, September 09 2007 @ 07:50 PM EDT
(setf lawyer-p nil)

Remind us all, please, PJ (and lawyer type people): IIRC, an appeal is not simply a matter of "We don't like what Judge Kimball said, please change it." There must be a demonstrable error in Judge K's interpretation of the law. SCO does not get to reprise this whole silly dance.

The most important piece of these rulings seems to be that the APA means what it says, no matter who says it should have said something different. It seems that Judge K has been meticulous about the legal reasoning there. It doesn't seem to my unlawerly eyes that there's much room for reversable error in here.

---
Cetero censeo Collegium SCO esse delendam.

[ Reply to This | # ]

  • SCOG can appeal - Authored by: Anonymous on Sunday, September 09 2007 @ 09:31 PM EDT
Novells motion in Limine 1: an inside joke
Authored by: Anonymous on Monday, September 10 2007 @ 05:53 AM EDT
I mean you shouldn't *need* a motion to decide that what the court ruled is
clarified and done with. In any other process that would've only resulted in
some puzzled looks. But with SCO regurgitating the same points over and over
again it's an adequate motion and it's even more adequate that it was granted.

Now SCO will probably try to turn *that* motion over.

[ Reply to This | # ]

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