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Novell's Motion to Lift Stay Granted! - Updated: Novell files notice in Utah
Tuesday, November 27 2007 @ 03:15 PM EST

Here is the docket entry:
232 - Filed & Entered: 11/27/2007
Opinion
Docket Text: Opinion Granting Novell's Motion for Relief from the Automatic Stay to Proceed with the Lawsuit (related document(s)[89] ) (LJS, )

233 - Filed & Entered: 11/27/2007
Order on Motion For Relief From Stay
Docket Text: Order Granting Novell's Motion For Relief From Stay to Proceed with the Lawsuit (Related Doc # [89]) Order Signed on 11/27/2007. (LJS, )

Utah, here we come!

Judge Kevin Gross writes in the first filing, the Opinion, that there is no prejudice to SCO by continuing the litigation and finishing it since the case is ready for trial and SCO has separate counsel for it, the balance of hardships favors Novell, Novell has a probability of prevailing on the merits, and the SCO v. Novell litigation is highly technical, and Utah District Court Judge Dale A. Kimball has already spent years mastering that part of the dispute, and so it makes sense to let him finish, as footnote 4 highlights:

The learned District Court issued a thorough 105-page opinion carefully analyzing the facts and law. The District Court's mastery of the facts and law pertaining to the Lawsuit is a powerfully important consideration in the Court's decision to lift the stay.

Amen. Utah was, after all, SCO's chosen forum. We have the order now too, and here is the list of what is and isn't going to be decided in Utah:

ORDERED, that pursuant to 11 U .S.C. § 362(d)(1), relief from the automatic stay is granted for cause to allow Novell to proceed with the Lawsuit at the convenience of the District Court (as defined in the Memorandum Opinion ) on the following issues: (1) the amount of the royalties to which Novell is entitled from certain SCOSource licenses that the District Court determined to be SVRX Licenses and any additional licenses that are determined to be SVRX Licenses; and (2) whether SCO had the authority to enter into licensing agreements with Microsoft Corporation and Sun Microsystems.

ORDERED, that the automatic stay is not lifted for a determination of the imposition of a constructive trust, an issue which this Court will adjudicate if and when necessary, following the District Court’s decision in the Lawsuit.

So back SCO goes to Utah.

As is always true with bankruptcies, whatever Judge Kimball decides, then it goes back to Judge Gross to implement, but this order goes one step further, with the opinion (in this case that means the Findings of Fact, sort of the reasons why the judge orders what he orders) saying that it must come back to Judge Gross to "determine whether a constructive trust is appropriate." Money is the bankruptcy court's area, so he will get to review whatever happens in Utah, to determine what is and is not property of the estate. But he goes on to quote from a case regarding not holding an equitable interest, which is the case with SCO. He points out that "the Debtors simply cannot file a confirmable plan of reorganization until they know what liability they have to Novell." However, the stay on the constructive trust matter is not lifted. That has to be decided by the bankruptcy court, after Utah does what it does. So it's back to Utah to find out what liability SCO has to Novell. And footnote 7 shows what may have finally determined this decision, the difficulty is figuring out what SCO has to sell:

An example of Novell's dilemma, and the Court's, arose recently in the bankruptcy cases. Debtors moved to sell substantially all of their assets. Without a ruling on the Liability Issues it was unclear if the sale would adversely affect Novell's rights. Debtors subsequently withdrew the sale motion, but the problem remains.

I think that means there will be no assets sale as proposed by York until Utah is finished. And footnote 8 says that SCO already said it will appeal the Utah decision, so there may be a longer wait. I personally think there will likely be some issues going forward as to whether Judge Gross is correct in saying that no constructive trust was already established in Utah. We'll see. And he may mean not so much whether there should be one if there were no bankruptcy, but whether there should be one *now* under these circumstances, whether there should be the imposition of one, whether ordered or not. But that is what he wrote, that there was no constructive trust established and so he's not lifting the stay on that, and he'll decide that later. I expect some lawyering on that point, unless Novell decides it isn't worth bothering with. I think Judge Kimball already decided whether or not there should be a constructive trust. Here's what he wrote in his decision on August 10:

Although the court finds that Novell meets the requirements for the imposition of a constructive trust, the question of fact as to the SVRX portion of the 2003 Sun and Microsoft Agreements precludes the court from imposing a trust for the appropriate amount.

I believe that is clearly saying that there should be a trust, but that the amount in it needed to be determined. One would have to also read the cases Judge Gross cites to form a complete picture, which I haven't yet done, but that is one issue I see. But the bankruptcy court has discretion to decided about money, and that is its area of special competence. If any bankruptcy lawyers can explain this part to us, I'd be delighted.

Here's the Fernstrom case the judge refers to. And here's the Sonnax decision [PDF]. I couldn't find a free version, but Groklaw's Steve Martin took the initiative and went to a local law library and sent me the scanned decision, so we can all read it in full. Is he not amazing? I've been trying to get the text done, but things are happening so fast in this bankruptcy, I haven't been able to finish. But at least you have the PDF. Thank you, Steve. By the way, you'll see one reference "reh'g denied" and that means there was a request in that case referenced for a rehearing, and the request was denied. Just a small detail.

So it's back to Utah they go. I'm sure SCO's lawyers can't wait to see Judge Kimball again, after all the horrible things SCO's CEO Darl McBride said about Judge Kimball to the press. It occurs to me that Judge Kimball may have missed that. So as a service to the court, har har, here's an example of what Darl has been saying about the Honorable Judge Dale Kimball, from Todd Weiss's October 1st article in ComputerWorld, "SCO's McBride: Rumors of our demise are greatly exaggerated":

Behind the scenes, though, McBride said SCO's legal team has unearthed some details about Kimball's rulings that may provide a glimmer of hope for his company's ongoing fight.

"There's one little tidbit that we came across just a few days ago," he said. "Whereas the popular press has said, 'OK, this thing is now over,' there is an appeal process and the other fact is that if you look inside that appeals process and you take a microscope and look at the record of Kimball's summary judgment rulings that have gone to appeals, he gets overturned the vast majority of the time. It's nearly two-thirds of the time. That was something I was a little curious about myself.

"This apparently is a [judge] who very regularly, the majority of the time, gets [overturned] when it goes to the replay booth. That's the one sort of a news fact that's not out there today that [could] maybe temper some of this enthusiasm out there" about SCO's troubles. "He certainly has a dismal record on appeals."

So, SCO is not dead yet. Reminds me of a Dylan song lyric... "It's not dark yet, but it's getting there." A number of us looked into those figures, by the way, and I couldn't duplicate the SCO findings, quite the reverse.

It's looking like this bankruptcy thing was a big mistake, a SCO strategy that could only work if they could quickly get a sale shoved through before anyone could figure out what was happening, a Hail Mary pass, and it didn't work.

UPDATE: No moss is growing on Novell's lawyers. They have already filed the notice in Utah:

472 -Filed & Entered: 11/27/2007
Notice (Other)
Docket Text: NOTICE of Delaware Bankruptcy Court's Memorandum Opinion and Order Granting Novell's Motion for Relief from the Automatic Stay to Proceed with the Lawsuit by Novell, Inc. (Attachments: # (1) Exhibit A # (2) Exhibit B)(Sneddon, Heather)

And they're off and running. Here, as text, are the Opinion, then the Order, and then the Notice filed in Utah by Novell.

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

UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE

In re

THE SCO GROUP, INC., et al.,(KG)

Debtors.
Chapter 11

Case Number 07-11337 (KG)
(Jointly Administered)
Related Docket No.: 89

MEMORANDUM OPINION 1

The matter before the Court is the Motion of Novell, Inc. for Relief from the Automatic Stay Pursuant to Section 362(d) of the Bankruptcy Code to Proceed with a District Court Action to (I) Apportion Revenue from SCOSource Licenses and (II) Determine SCO's Authority to Enter into SCOSource Licenses, Etc. (the "Motion") [D.I. 89]. The Motion matches the fundamental protection of the automatic stay against the necessity and timing of the adjudication of an issue that is essential in the administration of the bankruptcy case. After careful analysis of the facts and legal standards, the Court will grant the Motion, as set forth below.

I. BACKGROUND

A. The Debtor

On September 14, 2007, the SCO Group, Inc. ("SCO") and its affiliate, SCO Operations, Inc. (collectively the "Debtors"), filed voluntary petitions for relief under

Chapter 11 of the Bankruptcy Code. 2 The Court ordered the cases to be jointly administered [D.I. 2]. Debtors are currently operating and managing their businesses as debtors in possession pursuant to §§ 1107 and 1108.

SCO is a provider of Linux software technology for distributed, embedded, network-based, and mobile systems, offering SCO OpenServer for small to medium sized businesses, branch offices and franchisees of Fortune 1000 companies, UnixWare, and SCO Mobile Server for enterprise applications and digital network services. SCO Operations, Inc. is a Delaware corporation that is wholly owned by SCO Group and operates the research, development, sales and implementation of technology owned by SCO Group. Declaration of Darl C. McBride, Chief Executive Officer, in Support of First Day Pleadings [D.I. 3].

B. The Novell Litigation

On January 20, 2004, SCO filed a lawsuit in Utah state court against Novell, Inc. ("Novell"). The case was removed by Novell to the United States District Court for the District of Utah ("the District Court") and is captioned The SCO Group, Inc. v. Novell, Inc., Case No. 2:04-CV-00139 ("the Lawsuit"). The Lawsuit is one of a number of litigations involving SCO and the UNIX property rights.

The Lawsuit concerns a dispute over an Asset Purchase Agreement, dated September 19, 1995 (the "APA"), between Novell and SCO's predecessor, The Santa Cruz Operation,

2

Inc. ("Santa Cruz"). 3 Pursuant to the APA, Novell transferred all of its UNIX SVRX software licenses (the "SVRX Licenses") to Santa Cruz. SCO subsequently entered into a licensing campaign, "SCOSource," based on the SVRX Licenses.

In the Lawsuit, SCO asserted a claim for slander of title and interference with the UNIX copyrights. Novell, claiming that it retained all UNIX copyrights under the APA, counterclaimed against SCO alleging breaches of the APA and seeking various forms of relief. SCO subsequently amended its complaint to include claims against Novell for copyright infringement, unfair competition and breach of a technology licensing agreement. Finally, in September of 2006, Novell filed an amended counterclaim alleging that SCO's retention of funds from certain SCOSource licenses constituted breach of fiduciary duty, breach of contract and conversion.

Both SCO and Novell filed multiple motions for summary judgment on their respective claims and counterclaims. On August 10, 2007, the District Court issued its decision 4 denying SCO's motion for summary judgment and granting, in part, Novell's motions for summary judgment. The District Court concluded that: (1) Novell retained ownership of the UNIX copyrights; and (2) Novell is entitled to royalties from certain SCOSource licenses that the District Court determined to be SVRX Licenses. The District

3

Court declined to impose a constructive trust until it could determine the appropriate amount of royalties to which Novell is entitled. As a result of the ruling, the District Court dismissed several of SCO's claims against Novell, including the original allegation of slander of title.

Following the District Court's decision, the parties were poised to begin a trial to resolve the following issues: 5 (1) the amount of the royalties to which Novell is entitled from certain SCOSource licenses that the District Court determined to be SVRX Licenses and any additional licenses that are determined to be SVRX Licenses; (2) whether SCO had the authority to enter into licensing agreements with Microsoft Corporations and Sun Microsystems; and (3) the amount of funds held by SCO that are subject to a constructive trust. The trial was scheduled to begin on Monday, September 17, 2007, until SCO filed for bankruptcy on Friday, September 14, 2007.

Novell filed the instant Motion on October 4, 2007 contending that relief from the automatic stay is warranted for cause. The Motion was set for hearing on November 6, 2007.

II. JURISDICTION

This is a core proceeding which invests the Court with jurisdiction pursuant to 28 U.S.C. § 157(b)(2)(G).

4

III. ANALYSIS

A. The Law

The automatic stay is one of the most fundamental protections provided to the debtor under the Bankruptcy Code. Midlantic Nat'l Bank v. New Jersey Dept. of Envtl. Protection, 474 U.S. 494, 503, 106 S. Ct. 755 (1986) reh'g denied 475 U.S. 1090, 106 S. Ct. 1482. The purpose of the automatic stay is "to prevent certain creditors from gaining a preference for their claims against the debtor; to forestall the depletion of the debtor's assets due to legal costs in defending proceedings against it; and, in general, to avoid interference with the orderly liquidation or rehabilitation of the debtor." St. Croix Condominium Owners v. St. Croix Hotel, 682 F.2d 446, 448 (3d Cir. 1982).

However, the automatic stay is not meant to be absolute, and in appropriate instances relief may be granted. Wedgewood Inv. Fund, Ltd. v. Wedgewood Realty Group, Ltd. (In re Wedgewood), 878 F.2d 693, 697 (3d Cir. 1989). Section 362(d)(1) of the Bankruptcy Code provides that:

On request of a party in interest and after notice and a hearing, the court shall grant relief from the stay provided under subsection (a) of this section, such as by terminating, annulling, modifying or conditioning such stay
(1) for cause, including the lack of adequate protection of an interest in property of such party in interest. . . .

Except for lack of adequate protection, "cause" is not defined by § 362(d)(1). Cause is a flexible concept and courts often conduct a fact intensive, case-by-case balancing test,

5

examining the totality of the circumstances to determine whether sufficient cause exists to lift the stay. See Baldino v. Wilson (In re Wilson), 116 F.3d 87, 90 (3d Cir. 1997); In re Laguna Assocs. Ltd., 30 F.3d 734, 737 (7th Cir. 1994); American Airlines, Inc. v. Continental Airlines, Inc. (In re Continental Airlines, Inc.), 152 B.R. 420, 424 (D. Del. 1993).

The legislative history to section 362(d)(1) emphasizes the section's applicability to proceedings in another tribunal. "It will often be more appropriate to permit proceedings to continue in their place of origin, when no great prejudice to the bankruptcy estate would result, in order to leave the parties to their chosen forum and to relieve the bankruptcy court from any duties that may be handled elsewhere." H.R. Rep. No. 595, 95th Cong., 1st Sess., 341 (1977). Most courts follow this logic and apply an equitable balancing test to determine if cause exists to lift the stay to allow pending litigation to proceed or continue in another forum.

This Court has developed a three-prong balancing test to determine whether to grant relief from the stay:

1. Whether any great prejudice to either the bankrupt estate or the debtor will result from continuation of the civil suit;

2. Whether the hardship to the non-bankrupt party by maintenance of the stay considerably outweighs the hardship to the debtor; and

3. The probability of the creditor prevailing on the merits. Izzarelli v. Rexene (In re Rexene Prods. Co.), 141 B.R. 574, 576 (Bankr. D. Del. 1992).

6

This Court has also considered general policies underlying the automatic stay when deciding whether to grant a motion to lift the stay. These policies, which have been outlined by the United States Court of Appeals for the Second Circuit, are:
1) whether relief would result in a partial or complete resolution of the issues; 2) lack of any connection with or interference with the bankruptcy case; 3) whether the other proceeding involves the debtor as a fiduciary; 4) whether a specialized tribunal with the necessary expertise has been established to hear the cause of action; 5) whether the debtor's insurer has assumed full responsibility for defending it; 6) whether the action primarily involves third parties; 7) whether litigation in another forum would prejudice the interests of other creditors; 8) whether the judgment claim arising from the other action is subject to equitable subordination; 9) whether the moving party's success in the other proceeding would result in a judicial lien avoidable by the debtor; 10) the interests of judicial economy and the expeditious and economical resolution of litigation; 11) whether the parties are ready for trial in the other proceeding; and 12) impact of the stay on the parties and the balance of the harms.

In re Sonnax Indus., Inc. v. Tri Component Prods. Corp., 907 F.2d 1280, 1287 (2d Cir. 1990).

B. Application

Before analyzing the applicable law, the Court notes that the circumstances surrounding this case are unusual. In particular, the parties were on the door-step of beginning a five-day trial of complex issues when the Debtors filed their petitions. Another court has extensive knowledge of the facts and issues and has already made detailed findings.

7

As Novell pointed out in its motion papers, relief from the stay may be granted "when necessary to permit litigation to be concluded in another forum, particularly if the nonbankruptcy suit involves multiple parties or is ready for trial." Lawrence P. King, Collier on Bankruptcy 362.07[3][a] (15th ed. 2006). Moreover, as noted above, the legislative history of section 362(d)(1) emphasizes the importance of allowing a case to continue in the original tribunal so long as there is no prejudice to the estate. In applying the three-prong balancing test, considering the policies set forth in Sonnax, and finding that lifting the stay will not result in prejudice to the debtor and, therefore, it is appropriate to allow the trial to commence before the District Court.

1. Application of the Three-Prong Balancing Test

The first factor the Court must consider in determining whether to grant relief from the automatic stay for "cause" using the three-prong balancing test is whether the lifting of the stay will result in harm to the debtor or the estate. On the facts of this case, it does not appear that lifting the stay will unduly prejudice SCO.

The Debtors argue that allowing the trial to go forward would require the Debtors and their top management to focus all of their attention on the trial, to the detriment and exclusion of the reorganization efforts at a critical stage in the bankruptcy case. The Court does not agree. While the trial will likely require the attendance of SCO's primary officers and directors, SCO's attention to the Lawsuit will certainly not harm the estate.

8

SCO has separate litigation counsel who had already completed its extensive trial preparation prior to the petition date. Thus, the trial preparation will not be burdensome to the Debtors. In addition, because this bankruptcy case was filed on the eve of trial, both parties have already spent all of the necessary time and resources in preparation. 6 The longer the trial is delayed, the more burdensome it is to both parties to ready themselves again.

The Debtors also argue that the estate will be greatly burdened if the Court permits the trial to proceed because the imposition of a constructive trust on funds that are presently property of the estate would effectively kill the chapter 11 case at its inception. However, while the stay will be lifted in order to enable the District Court to determine the License Issues, this Court will determine whether a constructive trust is appropriate because it is the very essence of a bankruptcy court's jurisdiction to decide what is property of the estate. See In re Continental Airlines, 138 B.R.442, 445 (the determination of what constitutes property of the debtor's estate is one of the core proceedings arising under Title 11 and is inherently an issue to be determined by the bankruptcy court). As explained in In re Flanigan, 503 F.3d 171, 180-11(2d Cir. 2007):

The effect of a constructive trust in bankruptcy is profound. While the bankruptcy estate is defined very broadly under § 541(a)(1) of the Bankruptcy Code to include all legal or equitable interests of the debtor, any property that the debtor holds in constructive trust for another is excluded from the estate pursuant to § 541(d), which states

9

Property in which the debtor holds, as of the commencement of the case, only legal title and not an equitable interest. . . becomes property of the estate. . . only to the extent of the debtor's legal title to such property, but not to the extent of any equitable interest in such property that the debtor does not hold.

11 U.S.C. § 541(a)(1), (d), see also Sanyo Elec., Inc. v. Howard's Appliance Corp. (In re Howard's Appliance Corp.), 874 F.2d 88, 93 (2d Cir. 1989). A constructive trust thus places its beneficiary ahead of other creditors with respect to the trust res.

Granting Novell stay relief will not result in the imposition of a constructive trust and, therefore, neither Debtors nor the estate will be prejudiced.

After determining whether relief from the stay will result in any harm to the debtor or the estate, the Court must balance that hardship with any hardship that the movant will suffer as a result of the stay being enforced. Here again, the Court finds the equities favor Novell. Hardship will result to Novell from denying relief, whereas the prejudice to SCO in denying relief, as discussed in the analysis of the first prong, is slight.

Novell has already prepared extensively for a trial that was to take place in September. Novell will be burdened by further delay and the fact that it will have to prepare again. Novell has already spent significant time and resources preparing for the trial in the Lawsuit. In addition, without a ruling on the Liability Issues, Novell's rights in these bankruptcy cases remains undetermined and the value of Novell's claim will remain a troubling issue for the Court, Novell and Debtors.

10

The Debtors urge this Court to follow the holding of the Bankruptcy Court for the Southern District of New York in In re Northwest Airlines Corp., 2006 Bankr. LEXIS 477 (Bankr. S.D.N.Y. 2006) when balancing the hardships of the parties. In Northwest Airlines, the court found that the burden to the estate greatly outweighed that of the creditor and denied a motion for stay relief because (1) the debtors were at a critical stage of the reorganization; (2) the trial would take management attention away from the reorganization; (3) the creditors had not shown any unusual prejudice; and (4) there was no "issue of public health or safety and no indication that the Movants' claims must be resolved before the Debtors can file a feasible plan." Id at *2.

The Debtors argue that the very same reasons to deny the Motion. The Court, however, finds that the fourth point is not present here. As Novell has pointed out in its papers, the Debtors simply cannot file a confirmable plan of reorganization until they know what liability they have to Novell. The resolution of the issues remaining in the District Court litigation will assist the Debtors, not burden them. 7

Finally, the Court must consider whether the movant has some probability of success on the merits of the pending litigation. Even a slight probability of success on the merits may be sufficient to support lifting an automatic stay in an appropriate case. Int'l Business

11

Machines v. Fernstrom Storage & Van Co. (In re Fernstrom Storage & Van Co.), 938 F.2d 731, 737 (7th Cir. 1991); Rexene 141 B.R. at 578.

Novell argues that "probability" has already solidified into actual success on the merits and the issues remaining are merely damage calculations. The Debtors contend that Novell has failed to demonstrate that it will prevail on the other remaining issues: whether SCO had the authority to enter into licensing agreements with Microsoft Corporations and Sun Microsystems; and the amount of funds held by SCO that are subject to a constructive trust. As the Court stated earlier, the stay will not be lifted and, therefore, the Constructive Trust Issue will not proceed in the District Court. It is therefore not necessary to analyze whether Novell is likely to succeed on the Constructive Trust Issue. As for the Liability Issues, the Court finds that there is sufficient evidence, including the District Court's decision, to support a finding of a reasonable probability of success on the merits.

2. Application of the Sonnax Policies

The Court has also considered several of the policies listed in Sonnax in reaching its decision. Of particular importance to the Court are the specialized knowledge that the District Court has developed in presiding over the Lawsuit for four years, the interests of judicial economy and the expenditures and economical resolution of litigation and, as stated earlier, the fact that the parties are ready for trial.8

12

It is undeniable that the Lawsuit involves many highly technical issues that the District Court has already addressed and mastered. Debtors concede that it is unreasonable to expect this Court to spend a significant amount of time learning and resolving the Liability Issues when the District Court already has the knowledge required to adjudicate the Liability Issues. Moreover, to do so would be economically inefficient and unnecessarily time consuming.

IV. CONCLUSION

After an analysis of the facts and equitable considerations, the Court concludes that relief from stay is justified.9 An Order in accordance with the Memorandum Opinion is attached.

Dated: November 27, 2007

[signature]
KEVIN GROSS, U.S.B.J.

13

1 This Memorandum Opinion constitutes the findings of fact and conclusions of law required by Federal Rule of Bankruptcy Procedure 7052, made applicable to contested matters by Bankruptcy Rule 9014.

2 11 U.S.C. §§ 101 et seq. Hereinafter, references to statutory provisions by section number only are to provisions of the Bankruptcy Code, unless the context requires otherwise.

3 Santa Cruz was subsequently purchased by Caldera Systems, Inc. which changed its name to SCO.

4 The learned District Court issued a thorough 105-page opinion carefully analyzing the facts and law. The District Court's mastery of the facts and law pertaining to the Lawsuit is a powerfully important consideration in the Court's decision to lift the stay.

5 The first two issues are hereinafter referred to as "the Liability Issues." The third issue is hereinafter referred to as "the Constructive Trust Issue."

6 Debtors' trial counsel in the Lawsuit is being compensated on a contingency fee basis and therefore the expense of the trial will not unduly burden Debtors.

7 An example of Novell's dilemma, and the Court's, arose recently in the bankruptcy cases. Debtors moved to sell substantially all of their assets. Without a ruling on the Liability Issues it was unclear if the sale would adversely affect Novell's rights. Debtors subsequently withdrew the sale motion, but the problem remains.

8 Lifting the stay may also benefit Debtors who have made it clear that they will appeal the District Court's decision. Until the Lawsuit can proceed to final judgment, the adverse ruling is a "Sword of Damocles" over Debtors.

9 The Court does not presume that the busy District Court will be able immediately to schedule the anticipated five day trial in the Lawsuit, and respectfully defers to the District Court on scheduling.

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

IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE

In re

THE SCO GROUP, INC., et al.,(KG)

Debtors.
Chapter 11

Case Number 07-11337 (KG)
(Jointly Administered)
Related Docket No.: 89

ORDER GRANTING NOVELL’S MOTION FOR RELIEF
FROM THE AUTOMATIC STAY TO PROCEED WITH THE LAWSUIT

Upon consideration of Novell, Inc.’s Motion for Relief from Automatic Stay to proceed with the District Court Action to (I) Apportion Revenue from SCOSource Licenses and (II) Determine SCO ’s Authority to Enter Into SCOSource Licenses, etc. (the “Motion”); and the Court finding that (a) the Court has jurisdiction over this matter pursuant to 28 U.S.C . §§ 157 and 1334, (b) this is a core proceeding pursuant to 28 U .S.C . § 157(b)(2), (c) venue of these cases is proper pursuant to 28 U .S.C . §§ 1408 and 1 4 0 9 , (d) notice of the Motion was sufficient and proper; and upon the record of the hearing held on the Motion; and sufficient cause appearing therefor and for the reasons set forth in the accompanying Memorandum Opinion; it is hereby

ORDERED, that pursuant to 11 U .S.C. § 362(d)(1), relief from the automatic stay is granted for cause to allow Novell to proceed with the Lawsuit at the convenience of the District Court (as defined in the Memorandum Opinion ) on the following issues: (1) the amount of the royalties to which Novell is entitled from certain SCOSource licenses that the District Court determined to be SVRX Licenses and any additional licenses

1

that are determined to be SVRX Licenses; and (2) whether SCO had the authority to enter into licensing agreements with Microsoft Corporation and Sun Microsystems.

ORDERED, that the automatic stay is not lifted for a determination of the imposition of a constructive trust, an issue which this Court will adjudicate if and when necessary, following the District Court’s decision in the Lawsuit.

ORDERED, that Novell shall advise the Court of the trial date when the District Court schedules the trial.

Dated: November 27, 2007
KEVIN GROSS, U.S.B.J.

2

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

MORRISON & FOERSTER LLP
Michael A. Jacobs (admitted pro hac vice)
David E. Melaugh (admitted pro hac vice)
[Address, Phone, Fax]

ANDERSON & KARRENBERG
Thomas R. Karrenberg, #3726
John P. Mullen, #4097
Heather M. Sneddon, #9520
[Address, Phone, Fax]

Attorneys for Novell, Inc.

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

____________________________

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.

__________________________

NOTICE OF DELAWARE
BANKRUPTCY COURT'S
MEMORANDUM OPINION AND
ORDER GRANTING NOVELL'S
MOTION FOR RELIEF FROM THE
AUTOMATIC STAY TO PROCEED
WITH THE LAWSUIT

________________________

Civil No. 2:04 CV-000139

Judge Dale A. Kimball
________________________

1

PLEASE TAKE NOTICE that, in the Chapter 11 bankruptcy proceeding of The SCO Group, Inc., and its affiliate, SCO Operations, Inc., pending before the United States Bankruptcy Court for the District of Delaware (the "Delaware Bankruptcy Court"), the Delaware Bankruptcy Court has entered the following:
(1) a Memorandum Opinion, attached hereto as Exhibit A; and
(2) an Order Granting Novell's Motion for Relief from the Automatic Stay to Proceed with the Lawsuit, attached hereto as Exhibit B.

DATED: November 27, 2007

ANDERSON & KARRENBERG
By: /s/ Heather M. Sneddon
Thomas R. Karrenberg
John P. Mullen
Heather M. Sneddon
-and-
MORRISON & FOERSTER LLP
Michael A. Jacobs (admitted pro hac vice)
David E. Melaugh (admitted pro hac vice)

Attorneys for Novell, Inc.

2

CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 27th day of November, 2007, I caused a true and correct copy of the foregoing NOTICE OF DELAWARE BANKRUPTCY COURT'S MEMORANDUM OPINION AND ORDER GRANTING NOVELL'S MOTION FOR RELIEF FROM THE AUTOMATIC STAY TO PROCEED WITH THE LAWSUIT to be served to the following:
Via CM/ECF: Brent O. Hatch
Mark F. James
HATCH JAMES & DODGE, P.C.
[Address]

Stuart H. Singer
William T. Dzurilla
Sashi Bach Boruchow
BOLES, SCHILLER & FLEXNER LLP
[Address]

David Boies
Edward J. Normand
BOLES, SCHILLER & FLEXNER LLP
[Address]

Devan V. Padmanabhan
John J. Brogan
DORSEY & WHITNEY, LLP
[Address]

Via U. S. Mail, postage prepaid:
Stephen Neal Zack
BOLES, SCHILLER & FLEXNER LLP
[Address]

/s/ Heather M. Sneddon

3


  


Novell's Motion to Lift Stay Granted! - Updated: Novell files notice in Utah | 963 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Novell's Motion to Lift Stay Granted!
Authored by: Anonymous on Tuesday, November 27 2007 @ 03:19 PM EST
SWEEET

[ Reply to This | # ]

Off-topic here, please
Authored by: overshoot on Tuesday, November 27 2007 @ 03:19 PM EST
Please keep the cheering under control and take advantage of the prettyprinting
instructions in red.

[ Reply to This | # ]

Corrections here
Authored by: red floyd on Tuesday, November 27 2007 @ 03:19 PM EST
In case PJ needs them.

[Star-trek-holodoc]
Please state the nature of the correction emergency in the title.
[/Star-trek-holodoc]

---
I am not merely a "consumer" or a "taxpayer". I am a *CITIZEN* of the United
States of America.

[ Reply to This | # ]

W00T
Authored by: mexaly on Tuesday, November 27 2007 @ 03:20 PM EST
We'll soon see what fury hell hath not...

---
My thanks go out to PJ and the legal experts that make Groklaw great.

[ Reply to This | # ]

Novell's Motion to Lift Stay Granted!
Authored by: red floyd on Tuesday, November 27 2007 @ 03:21 PM EST
To misquote Dom Deluise's Don Giovanni in "Men in Tights":

SCOX is D-E-D, dead


---
I am not merely a "consumer" or a "taxpayer". I am a *CITIZEN* of the United
States of America.

[ Reply to This | # ]

/me does the happy dance... (n/m)
Authored by: Anonymous on Tuesday, November 27 2007 @ 03:21 PM EST
MSS2

[ Reply to This | # ]

News Picks Comments Here
Authored by: red floyd on Tuesday, November 27 2007 @ 03:22 PM EST
For stuff that's OT, but in the newspicks.

State the newspick in the title.

---
I am not merely a "consumer" or a "taxpayer". I am a *CITIZEN* of the United
States of America.

[ Reply to This | # ]

Novell's Motion to Lift Stay Granted!
Authored by: JamesK on Tuesday, November 27 2007 @ 03:26 PM EST
Break out the popcorn!!! Things are going to get interesting now!!!


---
I'm not opinionated, I'm right!

[ Reply to This | # ]

Stand by for emergency appeal in 5... 4... 3... (n/m)
Authored by: Anonymous on Tuesday, November 27 2007 @ 03:28 PM EST
MSS2

[ Reply to This | # ]

SCO is a provider of Linux software technology (OUCH!) (nt)
Authored by: Anonymous on Tuesday, November 27 2007 @ 03:28 PM EST
nt

[ Reply to This | # ]

My best so far!
Authored by: Anonymous on Tuesday, November 27 2007 @ 03:30 PM EST
Top of page 1:

"SCO is a provider of Linux software technology for distributed, embedded,
network-based,
and mobile systems, offering SCO OpenServer for small to medium sized
businesses..."

YES! He got it! SCO IS OFFERING LINUX and THAT has been the problem from the
start!

Heh!

JeffV

[ Reply to This | # ]

My Favorite Quote
Authored by: Cloudscout on Tuesday, November 27 2007 @ 03:31 PM EST
Here is my favorite quote so far in this decision (from a footnote):
The learned District Court issued a thorough 105-page opinion carefully analyzing the facts and law. The District Court's mastery of the facts and law pertaining to the Lawsuit is a powerfully important consideration in the Court's decision to lift the stay.

[ Reply to This | # ]

How long will the wait be
Authored by: Anonymous on Tuesday, November 27 2007 @ 03:31 PM EST
The next big question is, how long will the wait be before the court has a trail
date opening.

[ Reply to This | # ]

Might I recomend footnote 3 on page 3
Authored by: Anonymous on Tuesday, November 27 2007 @ 03:34 PM EST
Footnote 2 is important too (the Judge understands that SCO != SCO).

[ Reply to This | # ]

Footnote 4 - Great!
Authored by: Anonymous on Tuesday, November 27 2007 @ 03:35 PM EST
"The learned District Court issued a thorough 105-page opinion carefully
analyzing the facts and law. The District Court's mastery of the facts and law
pertaining to the Lawsuit is a powerfully important consideration in the Court's
decision to lift the stay."

Judge Gross' tone in other places seems fairly deferential to the District
Court. He's not going to lightly disregard Kimball.

MSS2

[ Reply to This | # ]

So:how does it play out from here?
Authored by: Anonymous on Tuesday, November 27 2007 @ 03:35 PM EST
How does it go from here? Would someone care to comment.

Utah decides. Then presumably there's an appeal by SCO ... how does the appeal
process mesh with the bankruptcy proceedings? The bankruptcy court presumably
wants to know the size of the Utah award ... but that's presumably not available
until after the appeal?

[ Reply to This | # ]

Novell's Motion to Lift Stay Granted!
Authored by: John Hasler on Tuesday, November 27 2007 @ 03:35 PM EST
From the PDF:
SCO is a provider of Linux software technology...

---
IOANAL. Licensed under the GNU General Public License

[ Reply to This | # ]

Novell's Motion to Lift Stay Granted!
Authored by: mpg on Tuesday, November 27 2007 @ 03:39 PM EST
My money says SCO issues a press release tomorrow morning spinning this by
saying "we are happy we will finally get our day in court..."

[ Reply to This | # ]

Error in footnote 1
Authored by: John Hasler on Tuesday, November 27 2007 @ 03:41 PM EST
Santa Cruz was subsequently purchased by Caldera Systems, Inc. which changed its name to SCO.
Incorrect. Caldera purchased the Unix business of Santa Cruz. Santa Cruz changed its name to Tarantella and continued in business until purchased by Sun.

---
IOANAL. Licensed under the GNU General Public License

[ Reply to This | # ]

Novell's Motion to Lift Stay Granted!
Authored by: AceBtibucket on Tuesday, November 27 2007 @ 03:41 PM EST
Hehe
Hehehehe
Hehehehehehehehehehehehehehe,
ROTFUWS




Warning: Looming Deadlines Are Closer Than They Appear

[ Reply to This | # ]

A bit confused on the Constructive Trust
Authored by: Anonymous on Tuesday, November 27 2007 @ 03:46 PM EST
While its obvious the stay was lifted, did the Delaware court essentially kill
the Constructive trust (which would have obvious advantages in the pecking order
of creditors) and force Novell's result from the Utah trial(s) into the general
creditors crowd?

The Judge spent some time on this issue discussing the constructive trust and
its not my present skill to read between the lines in bankrupty verbage.

Thanks in Advance!

[ Reply to This | # ]

Stay not lifted for constructive trust?
Authored by: Anonymous on Tuesday, November 27 2007 @ 03:46 PM EST
It sounds like Judge Gross is going to determine whether a constructive trust is
imposed...

"As the Court stated earlier, the stay will not be lifted and, therefore,
the Constructive Trust Issue will not proceed in the District Court."

[ Reply to This | # ]

Novell's Motion to Lift Stay Granted!
Authored by: bastiaan on Tuesday, November 27 2007 @ 03:47 PM EST
I guess (one of) the most significant sentences is this:
However, while the stay will be lifted in order to enable the District Court to determine the License Issues, this Court will determine whether a constructive trust is appropriate because it is the very essence of a bankruptcy court’s jurisdiction to decide what is property of the estate.
This is reinforced by:
Granting Novell stay relief will not result in the imposition of a constructive trust and, therefore, neither Debtors nor the estate will be prejudiced.
But I can't make sense out of this comment:
As the Court stated earlier, the stay will not be lifted and, therefore, the Constructive Trust Issue will not proceed in the District Court.
By saying "the stay will not be lifted" does the court mean that the stay will not be fully lifted?

[ Reply to This | # ]

Cue: Handel's Messiah
Authored by: jbb on Tuesday, November 27 2007 @ 03:47 PM EST
You can download a version for free by the Peabody Concert Orchestra. It is from their 2000 - 2001 season which is near the bottom of the page.

---
You just can't win with DRM.

[ Reply to This | # ]

I'm surprised
Authored by: Anonymous on Tuesday, November 27 2007 @ 03:48 PM EST
If I read this correctly, the BK judge is allowing the Utah case to proceed wrt
the License Issues, but is withholding Kimball's right to impose a constructive
trust.
There have been some signs that this judge wanted to retain some control, but I
have to say I didn't expect this.
It looks like a huge loophole to me.
Kimball will hold a trial, find that all the money SCO has belongs to Novell,
and SCO will try to spend it faster than Novell can go back to the BK court and
get a trust imposed.

[ Reply to This | # ]

Unclear - I thought the judgement aboutthe constructive trust was made but not amount yet
Authored by: Anonymous on Tuesday, November 27 2007 @ 03:57 PM EST
One of us - either the judge or me is unclear. And it's more likely to be the
judge.

I thought that the judgement as to a constructive trust had been made, and what
was still at issue was how much was under trust.

The ruling makes it sound like the judge hasn't grasped that.

Am I wrong?

JeffV

[ Reply to This | # ]

Footnote 7 - "Forget York"
Authored by: Anonymous on Tuesday, November 27 2007 @ 04:00 PM EST
I read footnote 7 as Judge Gross saying that, even with perfect paperwork, the
asset sale to York can't happen until the Novell case is decided. If SCO
appeals, it can't happen until the appeal is resolved.

MSS2

[ Reply to This | # ]

Novell's Motion to Lift Stay Granted!
Authored by: Tezzer on Tuesday, November 27 2007 @ 04:01 PM EST
This is an incredibly clear piece of decision making. Even I can understand it!

---
Kandor

[ Reply to This | # ]

Novell's Motion to Lift Stay Granted! champagne anyone?
Authored by: designerfx on Tuesday, November 27 2007 @ 04:04 PM EST
I for one, welcome the fact that justice comes sooner than later. Is there any
way they can appeal this or thats it, get out of our bankruptcy courtroom?

[ Reply to This | # ]

Novell's Motion to Lift Stay Granted!
Authored by: chaz_paw on Tuesday, November 27 2007 @ 04:04 PM EST
SCO is so appealing! :-)

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

Charles

[ Reply to This | # ]

I like this one best
Authored by: cjk fossman on Tuesday, November 27 2007 @ 04:07 PM EST
The resolution of the issues remaining in the District Court litigation will assist the Debtors, not burden them.
Irony so melodious it deserves four-part harmony and a Grammy award.

[ Reply to This | # ]

Novell's Motion to Lift Stay Granted!
Authored by: Anonymous on Tuesday, November 27 2007 @ 04:18 PM EST
I rather liked this:

> The resolution of the issues remaining in the District Court litigation
will
> assist the Debtors, not burden them.

I'm sure the SCOfolk will be pleased for the assistance.

[ Reply to This | # ]

Go Ahead! Make my Day! - Novell's Motion to Lift Stay Granted!
Authored by: Anonymous on Tuesday, November 27 2007 @ 04:25 PM EST
Probably not before next year with the Christmas holidays coming up, and the
court having to re-schedule the trial?

At least now, York will know what it is purchasing. On top of that, this should
clear up the Novell issue, and be one less thing for York to litigate, should
they buy what they were buying from SCO. They should appreciate the fact that
there is one set of legal fees they wouldn't have to pay. As far as the lawyers
go, for the Novell trial, isn't that taken care of all ready?

But I read the headline, and Oh, I was so excited!!!!

[ Reply to This | # ]

Nice plan ya got there, Darl...
Authored by: Jude on Tuesday, November 27 2007 @ 04:26 PM EST
Escape from Kimball's court into bankruptcy court. That's really using your
head. Not only did you get tossed back into Kimball's court, but now you have
bankruptcy court waiting to chew up what's left after Kimball is done with you.

I am in awe of your executive genius.
</sarcasm>

[ Reply to This | # ]

Apologies to the Judge Here
Authored by: ralevin on Tuesday, November 27 2007 @ 04:27 PM EST
This section is for all the anonymous posters who told us that Judge Gross was
clueless, would never understand what was happening, would give SCO everything
they asked for, etc. to come foward and apologize for insulting his integrity
and his competence. You'll feel better when you've cleansed yourself - so go
ahead and step onto the right side of history.

[ Reply to This | # ]

Heard from Utah
Authored by: Anonymous on Tuesday, November 27 2007 @ 04:28 PM EST
I stepped out of the office here in Salt Lake for a celebratory cream-filled
pastry. And, when I was outside, I could hear the screams of anguish from
Lindon.

But it also seemed that I could hear, more faintly, chuckling coming from the
federal court house...

(Note: Factual content of this post is limited to the cream-filled pastry.)

MSS2

[ Reply to This | # ]

So How Will SCO Continue To Bleed Novell
Authored by: Anonymous on Tuesday, November 27 2007 @ 04:29 PM EST
The only conclusion - now after a partial lift of the stay - that anyone can
draw
from the entire game - is that someone wants SCO to bleed Novell for as much
as possible for as long as possible. Or is it even simpler - to make it just
look
like Novell is bleeding!

[ Reply to This | # ]

This is the opinion, where's the actual order?
Authored by: l8gravely on Tuesday, November 27 2007 @ 04:30 PM EST
So looking this over, it's the opinion part, but where's the actual order which
spells out what the details are?

I assume it will be broken into several issues, with each issues ordered
seperately. At one point the judge writes how there are three issues to cover,
so I assume the order will list each issue and it's status.

As I read this, I don't see any "GRANTED" or "DENIED"
statements. So we're still in a holding pattern until we see the real order.

Right?

John

[ Reply to This | # ]

Bottom Line - Novell's Motion to Lift Stay Granted!
Authored by: Anonymous on Tuesday, November 27 2007 @ 04:34 PM EST
It looks very much as if Judge Gross is a no nonsense person, who does not look
kindly on someone trying to use the bankruptcy code to game the system. If
someone genuinely needs bankruptcy protection from creditors, he will do his
best to make sure things are done fairly and under the law. SCO is no
exception.

[ Reply to This | # ]

So where is the order?
Authored by: avox on Tuesday, November 27 2007 @ 04:36 PM EST
As said in the conclusion: "An Order in accordance with the Memorandum
Opinion is attached."

I guess much of the confusion about the "Is the constructive trust also
unstayed?" question is caused by the missing order.

If you read the memorandum carefully, it's clear that the licence / liability
decisions are unstayed while the constructive trust issue is not. No surprise,
really.

[ Reply to This | # ]

Footnote #9
Authored by: Anonymous on Tuesday, November 27 2007 @ 04:47 PM EST
I'd sure be delighted to read Judge Kimball saying "I have an opening on
next Monday".

[ Reply to This | # ]

Novell's Motion to Lift Stay Granted!
Authored by: dmarker on Tuesday, November 27 2007 @ 04:58 PM EST

I remain convinced that Groklaw's megawatt spotlight pointed at tSCOgs movements
& antics, has allowed this Judge to come up to speed very quickly on what is
going on.

It always seemed simple logic that the Novell case proceed so that a fair
assessment of what tSCOg owed Novell, could be established before any other
questionable activity was entered into by tSCOg.

It seems Judge Goss, could clearly see the 'questionable' activity that tSCOg
was trying to pull off. No amount of obfustication could block out the
spotlight tSCOg was under.

These most recent decisions seem to me to back up PJ's long standing argument
that US law when at its best, despite the apparent meandering of some cases,
does prevail.

D Marker

[ Reply to This | # ]

Stay lifted -- crow munchers' thread
Authored by: grouch on Tuesday, November 27 2007 @ 05:00 PM EST
[chomp][chomp] ...

I'm nearly speechless (and not due to the mouthful of crow, either). I sure had this one pegged completely wrong: Everything the Hon. Judge Gross said in those documents leading up to his taking Novell's motion under advisement seemed to me to indicate he wanted everything related to SCOG to be determined and decided in his court. Apparently, he was satisfied with the Hon. Judge Kimball's meticulous work, reasoning and rulings.

Y'know, with the right sauce, crow tastes just like chicken! It's not often one gets to celebrate guessing wrong.

---
-- grouch

"People aren't as dumb as Microsoft needs them to be."
--PJ, May 2007

[ Reply to This | # ]

Oh dear, SCO, apparently you could not hide by filing bankruptcy.
Authored by: billyskank on Tuesday, November 27 2007 @ 05:02 PM EST
I feel so very sorry for you.

---
It's not the software that's free; it's you.

[ Reply to This | # ]

OT: Nigerian Microsoft puppet suing Negroponte for XO
Authored by: Anonymous on Tuesday, November 27 2007 @ 05:19 PM EST
How greedy can things get?

I mean this last move not only shows how desperate they are but also that they
obviously will virtually do anything to prevent a loss in market share - giving
nothing on ehtics and moral. What next? Buying Blackwater and starting a war
against Brazil and other supporter on FOSS?

http://www.marketwire.com/mw/release.do?id=796745

[ Reply to This | # ]

Wouldn't IBM be entitled to the same thing?
Authored by: Anonymous on Tuesday, November 27 2007 @ 05:24 PM EST
Once the trial is over couldn't IBM goto the court and ask that the stay on
their case be lifted as they also would be entitled to some of the estate. The
IBM case pre-trial items have been complete and are waiting on Novell's case to
complete to finish up the last few things. So my question is is anything stoping
IBM from asking the stay for their case to be lifted now that Novell's case is
going to be complete?

[ Reply to This | # ]

Bravo!!!
Authored by: digger53 on Tuesday, November 27 2007 @ 05:26 PM EST
Wunderbar! Bravissimo!

(Can you tell I'm pleased?)

[ Reply to This | # ]

Let me be the first to say it
Authored by: Anonymous on Tuesday, November 27 2007 @ 05:33 PM EST
The firesale backfired :-)

[ Reply to This | # ]

SCO originally wanted to have the judgements so they could appeal and sell UNIX
Authored by: Anonymous on Tuesday, November 27 2007 @ 05:38 PM EST
But when the plan to have the appeal early failed, they had to go and declare
bk. Just think if Kimbal would have let them have their appeal before the
bk...SCO would have been able to sell the unix business without the direction of
the BK court. Thank goodness Kimbal didn't give them that chance!!!

[ Reply to This | # ]

haiku -Basho
Authored by: Anonymous on Tuesday, November 27 2007 @ 05:42 PM EST
Lead my pony
across this wide moor to where
the cuckoo sings

[ Reply to This | # ]

Question posed on Slashdot
Authored by: Anonymous on Tuesday, November 27 2007 @ 05:47 PM EST
Someone there was asking what the "horrible things" Darl had said
about Kimball were. The only one I could remember was that SCO told the BK
court that they thought Kimball's decision on the Novell PSJs was wrong.

Can anyone post more details about what Darl and/or SCO said about Kimball, and
to whom they said it?

MSS2

[ Reply to This | # ]

Until we meet again ...
Authored by: Anonymous on Tuesday, November 27 2007 @ 05:54 PM EST
I can almost hear a judge whistling the refrain from that old Diana Ross song "Until we meet again".
Now I have to let you go
There's no way we can be friends
But you're always part of me
Until we meet again

And now there's no time left to pretend
And it feels like it's the end
But you're always in my heart
Until we meet again

[ Reply to This | # ]

IBM v Fernstrom appeal
Authored by: cbc on Tuesday, November 27 2007 @ 05:56 PM EST
The MATTE R OF FERNSTROM STORAGE AND VAN CO. cited above involved a bankruptcy proceeding that lasted at least 6 years. The appeal decision is 11 years after the original claim. I suspect this whole thing will keep us on the edge of our seats as long as we can stand it.

[ Reply to This | # ]

The appeal in Utah...
Authored by: sappha58 on Tuesday, November 27 2007 @ 05:57 PM EST
Would it likely happen if Judge Kimball levys fines or some such action against
SCOx's lawyers for their part in all this mess?

What I'm thinking is that Judge Kimball finds for Novell, then sanctions the
SCOundrels' lawyers. Would any court even entertain the notion of an appeal at
that point?

[ Reply to This | # ]

When does Darl actually lose control of SCO?
Authored by: thorpie on Tuesday, November 27 2007 @ 06:04 PM EST

When is it likely that management control of SCO actually leaves Darl & cohorts and moves to the trustee or someone who can make a reasonable decision? What are the steps remaining and what timeframe are we looking at?

I mean, really, SCO is gone, control has to pass to someone who will make reasonable decisions. And the first reasonable decision will be to accept that they have lost and to accept "no contest" (if that is the correct expression) in all outstanding lawsuits and arbitration.

Do they have to go into Chapter 7 for Darl to be evicted?

---
The memories of a man in his old age are the deeds of a man in his prime - Floyd, Pink

[ Reply to This | # ]

This judge (mostly) gets it!
Authored by: GLJason on Tuesday, November 27 2007 @ 06:10 PM EST

SCO was too late in filing for bankruptcy. Judge Kimball already ruled against them in summary judgment and said that although a constructive trust was warranted, the amount had to be determined at trial. I think that is the main finding here. Judge Gross sees that some of SCO's property isn't really SCO's, but Novell's. There is no way to come up with a plan to emerge from bankruptcy or to pay off other creditors unless you know what belongs to SCO.

SCO was three days away from a five day trial. The law firm is now working on a contingency basis so there won't be any more legal fees. All experts should already have all materials they need, they will just have to be paid to testify in court. I believe the money for that is already in escrow, but I could be wrong. The only hardship for SCO will be attending the trial. The bankruptcy has already been going on for over two months, eight more days and this issue would have been resolved already. Of course Judge Gross must now realize that SCO is going to have their head handed to them and that is the main reason they filed for bankruptcy.

[ Reply to This | # ]

How to File for Chapter 7 Bankruptcy
Authored by: Anonymous on Tuesday, November 27 2007 @ 06:28 PM EST
How to File for Chapter 7 Bankruptcy (Paperback)

[ Reply to This | # ]

Novell's Motion to Lift Stay Granted!
Authored by: Anonymous on Tuesday, November 27 2007 @ 06:37 PM EST
"ORDERED, that the automatic stay is not lifted for a determination of the
imposition of a constructive trust, an issue which this Court will adjudicate if
and when necessary, following the District Court’s decision in the
Lawsuit."

So that means that the BK court is reserving the right do the 'tracing'
analysis, to see whether any of the 'res' from the MS and SUN licensing still
exists based on "first in, last out" accounting assumptions. And every
day that SCO can spend down that bank account on litigation fees, that 'res'
shrinks further and further.

Any amount of royalties that Judge Kimball deems are Novell property, but that
exceed the traceable 'res', will become a debt that SCO owes Novell.

But if the tracing exercise reveals a large $$ difference between the remaining
'res', on the one hand, and the licensing revenue amount that is determined to
have actually been Novell's money and hidden by SCO, on the other hand, then the
fact that SCO has spent it away (and spent it suing the party that owns it) is
going to look more and more like a criminal act, IMHO.

[ Reply to This | # ]

Novell's Motion to Lift Stay Granted!
Authored by: Anonymous on Tuesday, November 27 2007 @ 06:58 PM EST
PJ, now that the Utah trial is back on track, it would be worthwhile to bring up
Novell's trial brief for community review.

Novell filed the trial brief just a day or two before SCO filed for bankruptcy,
and IMHO, when SCO read that brief they headed right for the door of the BK
court.

The trial brief lays out what is in store for SCO when they head into that Utah
courtroom, and it ain't gonna be pretty for SCO or for Microsoft.

Someone on SCO's side is going to have some explaining to do, if SCO puts up any
defense at all to Novell's presumptive claim that all the licensing $$ were
really UNIX licenses. And Novell will get to cross-examine that person, and that
will be an exquisitely painful experience for SCO.

In fact, I don't think they can face it. I expect another stunt to be pulled,
anything, anything, to stop that day on the witness stand.

LEXLAW

[ Reply to This | # ]

Hail Mary pass.
Authored by: Anonymous on Tuesday, November 27 2007 @ 06:59 PM EST
It not only didn't work, they got sacked for a safety.

[ Reply to This | # ]

  • Hail Mary pass. - Authored by: Anonymous on Tuesday, November 27 2007 @ 10:14 PM EST
  • Suicide Squeeze - Authored by: Anonymous on Wednesday, November 28 2007 @ 09:50 AM EST
    • Suicide Squeeze - Authored by: Anonymous on Wednesday, November 28 2007 @ 12:50 PM EST
  • Not sacked, unfortunately - Authored by: Anonymous on Wednesday, November 28 2007 @ 01:21 PM EST
    • Translation please - Authored by: Anonymous on Wednesday, November 28 2007 @ 03:40 PM EST
      • Translation - Authored by: Anonymous on Wednesday, November 28 2007 @ 08:07 PM EST
        • Translation - Authored by: Anonymous on Thursday, November 29 2007 @ 05:09 AM EST
Thanks everyone
Authored by: Anonymous on Tuesday, November 27 2007 @ 07:10 PM EST
For clearing up my misunderstanding.

JeffV

[ Reply to This | # ]

Who will represent SCO in Utah-- BSF application to Employ is still pending
Authored by: Anonymous on Tuesday, November 27 2007 @ 07:21 PM EST
BK [115] or the Boies application as special litigation counsel is still pending. The Berger October invoice indicates that the Trustee was questioning Boies vis-a-vis a "Pillowtex" style conflict. Boies may be tied up in a procedural dead-end.

Brent Hatch's lawfirm never applied to the BK court for employment. The tin-hatted may speculate that Hatch could not clear the "conflicts" bar, and opted out.

Biff and Tibbitts may have to represent themselves.

[ Reply to This | # ]

Not exactly SCO's chosen forum
Authored by: Anonymous on Tuesday, November 27 2007 @ 07:34 PM EST
As I recall, SCO originally filed (against IBM) in STATE court but IBM requested
the change to Federal court due to the (alleged) copyright infringement claim.
SCO opposed IBM's motion for the change but it was granted anyway.

Please tell me if I remember incorrectly.

[ Reply to This | # ]

Novell's Motion to Lift Stay Granted! Novell #472 filed!
Authored by: Laomedon on Tuesday, November 27 2007 @ 07:35 PM EST
Date Filed #Docket Text
11/27/2007 472 NOTICE of Delaware Bankruptcy Court's Memorandum Opinion and Order Granting Novell's Motion for Relief from the Automatic Stay to Proceed with the Lawsuit by Novell, Inc. (Attachments: #1 Exhibit A #2 Exhibit B)(Sneddon, Heather) (Entered: 11/27/2007)

[ Reply to This | # ]

SCO will doubtless appeal or something
Authored by: devil's advocate on Tuesday, November 27 2007 @ 07:35 PM EST
SCO will surely appeal this order, if that is possible, or perhaps file another
one of their persuasive motions for reconsideration. It ain't over till it's
over, and in the meantime they are burning up Novell's cash pretty quick. I
reckon Kimball will be busy with something else right now. He won't be able to
schedule this for another couple of months. SCO might look like they're losing
but they are actually winning. They are achieving their goal of burning up
Novell's money and forcing them to expend a small fortune in legal fees.

[ Reply to This | # ]

    "Failure Is ALWAYS An Option!" -- Adam Savage
    Authored by: TheBlueSkyRanger on Tuesday, November 27 2007 @ 07:43 PM EST
    Hey, everybody!

    I smell something. It's the odor from people being the cause of their own
    demise.

    Did SCO trigger the lift by trying to railroad the York deal through? Would the
    judge have been patient if there were no buyers, but seeing someone interested
    prompted him to fasttrack things?

    If so, this means their fiendish plan blew up in their faces. It's so ironic,
    it could cure pernicious anemea all by itself.

    Dobre utka,
    The Blue Sky Ranger

    Failure isn't an option -- it's bundled with your software!

    [ Reply to This | # ]

    Will this affect Microsoft?
    Authored by: Anonymous on Tuesday, November 27 2007 @ 07:45 PM EST
    Remember Microsoft and Sun has a license with SCO for Unix... that's really
    Novell's. What would happen if Microsoft's license deal was declared not
    allowed?

    I hear some folk say it will bite Microsoft big time.

    [ Reply to This | # ]

    appellate judges and wounded
    Authored by: UncleJosh on Tuesday, November 27 2007 @ 07:46 PM EST
    Hmmm...so considering this exchange:

    23 MR. McNUTT: I always like it when the appellate
    24 judges kill the wounded, but --
    25 THE COURT: Yes. Thank you, Mr. McNutt.

    Can we assume Mr McNutt expects SCO to be killed on appeal?
    Or the honorable Judge Gross???

    Nahhhh, probably not...*BUT* it *IS* fun to think about :-)

    [ Reply to This | # ]

    The other shoe!
    Authored by: polymath on Tuesday, November 27 2007 @ 07:55 PM EST
    I think that I hear a motion for reconsideration being filed!

    [ Reply to This | # ]

    A question about appeal
    Authored by: Yossarian on Tuesday, November 27 2007 @ 08:05 PM EST
    >And footnote 8 says that SCO already said
    >it will appeal the Utah decision

    Let's assume that SCO will lose in Utah, and it will decide to
    appeal. If I am a creditor, who has nothing to do with IBM or
    Novell, but I'd like to get (some of) my money back, what
    options do I have?

    Do I have any way to ask the bankruptcy court to prevent SCO
    from burning the creditors money by paying $$$$ for the appeal
    lawyers?

    [ Reply to This | # ]

    Footnote 6
    Authored by: Anonymous on Tuesday, November 27 2007 @ 08:09 PM EST
    "Debtors' trial counsel in the Lawsuit is being compensated on a
    contingency fee basis and therefore the expense of the trial will not unduly
    burden Debtors."

    BSF is on contingency? I thought they scrapped that deal some time ago and
    opted for flat cash?

    [ Reply to This | # ]

    • Footnote 6 - Authored by: PJ on Tuesday, November 27 2007 @ 09:34 PM EST
    This may be unfair to SCO's other creditors!
    Authored by: Anonymous on Tuesday, November 27 2007 @ 09:33 PM EST
    The payments that Microsoft and Sun paid to SCO were nominally license fees, but actually were covert payments to fund SCOs lawsuits. By the terms of the SCO Novell deal license fees all belong to Novell and were never SCO's property. Judge Kimball has ruled that SCO converted (the civil word for stole) these fees.

    Thus when Judge Kimball decides how much of the fees were for SVRX, that amount will be Novell's property that SCO never had title to.

    So Novell will get priority for that amount over all other creditors for that amount.

    But it is all based on a lie! The lie that the payments were for license fees!

    In the action in Judge Kimball's court, no party has motivation to tell the truth about these fees. Novell does not want to say that the payments were not really license fees, because Novell wants that money. SCO can not tell the truth about those payments, because it would expose SCO executives to Lanham act charges. Thus, no party has motivation to tell the truth about those payments! The people that will be hurt by the judgment that the fees are not license fees (the other creditors) are not parties to the suit and hence have no right to speak!

    Once the legal system gets to IBM's case (if it ever gets there), IBM may find itself in this category. But IBM is not interested in the money per-se, it wants to punish SCO so that no one else ever wants to try to extort IBM again. Since Novell is helping punish SCO, IBM is probably happy!

    But what about SCO's other creditors? What about the poor programmers that work for SCO? What about the electric company for that matter? What about SCO's non-management witnesses? These people should not be punished for Microsoft and SCO's lie!

    [ Reply to This | # ]

    Hot Dog!
    Authored by: The Mad Hatter r on Tuesday, November 27 2007 @ 09:38 PM EST


    I've been wondering what Judge Kimball would have ruled - now we'll get to find
    out. Fantastic!

    BTW, I've been suffering from a massive sinus headache all day. Now I feel
    better.


    ---
    Wayne

    http://sourceforge.net/projects/twgs-toolkit/

    [ Reply to This | # ]

    "Balance of hardships"
    Authored by: Khym Chanur on Tuesday, November 27 2007 @ 10:09 PM EST

    I couldn't find a definition for "balance of hardships" using either Google or the Law.com dictionary. I think I have an intuitive understanding of the concept, but could some provide a technical definition? Thanks.

    ---
    Give a man a match, and he'll be warm for a minute, but set him on fire, and he'll be warm for the rest of his life. (Paraphrased from Terry Pratchett)

    [ Reply to This | # ]

    Even without constructive trust...
    Authored by: dcf on Tuesday, November 27 2007 @ 10:31 PM EST

    SCO claimed revenues of $25.8M from the 2003 Sun and Microsoft agreements. Suppose that the trial before Judge Kimball finds that a substantial fraction of that money is SVRX licenses, so that SCO ought to have payed Novell between $10 and $20M.

    SCO may avoid a constructive trust, whether by arguing that the particular money has all been spent or simply because the bankruptcy judge concludes that imposing a trust would give Novell unfair priority over other creditors. However, none of that would change the fact that SCO would owe Novell that money. It would just mean that Novell would be treated like any other unsecured creditor of company in bankruptcy.

    Bankruptcy limits what creditors can do to collect the money they are owed, but it also includes protections for the creditors. After all, part of the intent of bankruptcy law is to return something of value to the creditors (either the proceeds of a sale if the debtor is liquidated in Chapter 7 bankruptcy or shares in a going concern if a company successfully emerges from Chapter 11 bankruptcy), and to distribute those returns fairly among the creditors.

    Consider that SCO claimed $14.8M in assets and $7.5M in liabilities as of Sept. 10 in their Voluntary Petition form. If Judge Kimball awards a significant judgement to Novell (say $10M to $20M), this picture would change in two big ways. First, Novell would jump to the head of the list of unsecured creditors, since it would be owed perhaps 20 to 40 times as much as the next largest creditor (Amici at $0.5M), and perhaps 55 to 70 percent of SCO's total liabilities. Second, SCO's assets would no longer exceed its liabilities, making them insolvent.

    IANAL, but my understanding is that after the preliminary stages, major decisions in bankruptcy (including approval of a reorganization plan or a decision to sell the company's assets) require the approval of the creditors' committee as well as the bankruptcy judge (whose role, in part, is to make sure that a majority of the large creditors on the committee don't take advantage of the smaller creditors who are not represented). It seems likely that Novell will have a controlling vote on the creditors' committee, which should put them in a position to veto any plan of reorginization or sale which is founded on continuing to sue IBM and others over SCO's supposed Unix rights.

    In theory, couldn't Novell propose a plan in which it spends $7.5M to pay off the other creditors upfront and in full, leaving it the de facto owner of what's left of SCO? On what grounds could the other creditors object? Being paid upfront and in full is the best they could possibly expect when a bankrupt company owes them money.

    While having to put up $7.5M for SCO's remaining assets is obviously much less financially appealing to Novell as receiving some fraction of the cash which should have been Novell's in the first place, it would have the advantage of definitively settling any issues of what Novell sold via the APA.

    [ Reply to This | # ]

    A Song for Darl & Co
    Authored by: Anonymous on Wednesday, November 28 2007 @ 12:01 AM EST
    My first thought when I read the stay was lifted was "When the Levee
    Breaks"
    I think it just broke.


    If it keeps on rainin', levee's goin' to break,
    If it keeps on rainin', levee's goin' to break

    When The Levee Breaks I'll have no place to stay.

    Mean old levee taught me to weep and moan
    Mean old levee taught me to weep and moan

    Got what it takes to make a mountain man leave his home,
    Oh, well, oh, well, oh, well.

    Don't it make you feel bad
    When you're tryin' to find your way home,
    You don't know which way to go?
    If you're goin' down South
    They got no work to do,
    If you don't know about Chicago.

    Cryin' won't help you, prayin' won't do you no good,
    Now, cryin' won't help you, prayin' won't do you no good,
    When the levee breaks, mama, you got to move.

    All last night sat on the levee and moaned,
    All last night sat on the levee and moaned

    Thinkin' about me baby and my happy home.
    Going, going to Chicago... Going to Chicago... Sorry but I can't take you...
    Going down... going down now... going down....

    [ Reply to This | # ]

    SCO is a provider of Linux software technology...
    Authored by: sylvester on Wednesday, November 28 2007 @ 12:21 AM EST
    For the particular accuracy with which the Court compounded together all the
    pieces of SCO's business as set forth in the Darl's declaration, I was at first
    astounded at the choice of summarizing it as Linux, instead of the UNIX that SCO
    likes to trumpet around so vehemently.

    Although one might see this as a mistake, I'm now seeing it as a testament to
    the Judge's astute understanding of Caldera/SCO's past voluntary engagement in
    the acceptance and promotion of Linux, and their current attempts to now
    remember an alternate history in which it never happened. Like virginity cannot
    be recaptured through buyer's remorse, the deed is done; you cannot un-ring a
    bell.

    Me thinks that he does really 'grok' the whole picture, and this is his way of
    communicating that sentiment back to Judge Kimball in Utah.

    [ Reply to This | # ]

    Let me just say - Har Har :P
    Authored by: SilverWave on Wednesday, November 28 2007 @ 12:57 AM EST
    :)

    Childish but fun :P

    ---
    Software Patents give Hardware Patents a bad name.

    If the Pharmaceutical industry does not want to be included in the backlash...
    arrange for a separation.

    [ Reply to This | # ]

    I like what Novell uses to avoid delay
    Authored by: Peter Baker on Wednesday, November 28 2007 @ 01:15 AM EST
    "[..] because this bankruptcy case was filed on the eve of trial, both parties have already spent all of the necessary time and resources in preparation."

    It's lovely how Novell uses SCO's tactic against them. Nice.

    ---
    = P =

    [ Reply to This | # ]

    Perjury ?
    Authored by: Anonymous on Wednesday, November 28 2007 @ 02:19 AM EST
    When the trial resumes at Utah, can/will Kimball pullup the SCO Team for lying
    about bankruptcy. If so what are the kind of penalties that can be imposed.

    [ Reply to This | # ]

    How quickly will SCOs next rabbit come out of it's hat?
    Authored by: GriffMG on Wednesday, November 28 2007 @ 03:13 AM EST
    I don't want to rain on anyones parade, but SCO has had plenty of time to
    consider what to do when this order was laid down.

    Just as they clearly planned the chapter 11 scenario and the York deal... so
    don't hold you breath for them to take this on the chin.

    I can see a chapter 7 filing coming, but I think that would be too easy.

    Could they have another buyer?
    Will McBride do the decent thing (and step down)?

    Any ideas anyone?

    ---
    Keep B-) ing

    [ Reply to This | # ]

    How much of an award will result in a loss in 2003 and...
    Authored by: jdg on Wednesday, November 28 2007 @ 03:51 AM EST
    How much of an award will result in a loss in 2003 and thus a reason to
    recapture McBride's substantial bonus for having a profitable year?

    ---
    SCO is trying to appropriate the "commons"; don't let them [IANAL]

    [ Reply to This | # ]

    I understand it. Have I got it wrong?
    Authored by: Ian Al on Wednesday, November 28 2007 @ 04:40 AM EST
    I was surprised that PJ gave a quote from the August 10th order that makes my point, but I will make a second quote that says exactly the same thing.
    The court, however, is precluded from granting a constructive trust.
    So Novell were, as Judge Kimball said, entitled to a constructive trust, but he could not grant one at that point and therefore there was no constructive trust imposed.

    PJ wrote

    I personally think there will likely be some issues going forward as to whether Judge Gross is correct in saying that no constructive trust was already established in Utah. We'll see. And he may mean not so much whether there should be one if there were no bankruptcy, but whether there should be one *now* under these circumstances, whether there should be the imposition of one, whether ordered or not. But that is what he wrote, that there was no constructive trust established and so he's not lifting the stay on that, and he'll decide that later.
    Surely Judge Gross was correct in saying that no constructive trust was imposed in Utah. Thus, a constructive trust was not already established in Utah. Judge Kimball said that, althought he had established Novell's right to a constructive trust he was precluded from imposing one. It seems to me that Judge Gross is absolutely right in making his decision. He wants Judge Kimball to sort out the complex issues and determine the extent of conversion.

    However, he knows that bankruptcy is not Judge Kimball's expertise, but it is his. He does not want Judge Kimball imposing a constructive trust which is appropriate for a company not in Chapter11. He will use his expertise to do that. This is just the sort of issue which is central to managing a bankrupt estate.

    As I see it, nutcrackers are so seasonal this year so it's three cheers for Judge Gross, three cheers for Judge Kimball and a hearty Ho, Ho, Ho from me.

    ---
    Regards
    Ian Al

    Linux: Genuine Advantage

    [ Reply to This | # ]

    phone the court
    Authored by: Anonymous on Wednesday, November 28 2007 @ 05:52 AM EST
    Can't someone phone the court clark and ask when he things it is reasonable for
    the trial to resume?

    [ Reply to This | # ]

    Appeal -- probably a moot point
    Authored by: bezz on Wednesday, November 28 2007 @ 05:55 AM EST

    I previously posted an analysis on SCO's available assets here:

    SCO Assets

    do a search for "The Quick Answer". I thought they would have about $3 million left by the end of December, however I initially missed an important item -- $2 million in assets are Goodwill. So, I expect them to have only about a million cash by the end of December if the burn rate remains the same.

    There probably is not enough cash to cover the bond and expenses associated with an appeal.

    SCO will go out with a whimper when what little cash they have is all gone. And Novell and IBM probably don't care about getting back cash. They most certainly DO care that the lawsuits stay with the Chapter 7 SCO Group. Although Judge Gross doesn't say it, he probably thinks so, too.

    Once in Chapter 7, it will be up to the trustee to determine if there is any potential to the litigation assets (against IBM and Autozone).

    [ Reply to This | # ]

    Ducks in a row - Novell's Motion to Lift Stay Granted! - Updated: Novell files notice in Utah
    Authored by: Anonymous on Wednesday, November 28 2007 @ 07:08 AM EST
    Now Judge Gross knows how to put ducks in a row.

    "...the automatic stay is not lifted for a determination of the imposition
    of a constructive trust, an issue which this Court will adjudicate if and when
    necessary, following the District Court’s decision in the Lawsuit."

    We will let the appropriate court determine how much SCO Owes Novell, then I
    will address the issue of the Constructive Trust.

    Left un-said is what the judge will do about Chapter 11 as opposed to Chapter 7
    bankruptcy in the event the amount Novell is entitled to is more than the amount
    that SCO can pay and remain a viable business.

    In the long run, it probably doesn't make much difference whether SCO filed for
    bankruptcy before or after the trial.

    You know that as soon as Judge Kimball finishes, Novell will be before Judge
    Gross, requesting the constructive trust.

    [ Reply to This | # ]

    Thought on conostructive trust
    Authored by: tknarr on Wednesday, November 28 2007 @ 10:26 AM EST

    Judge Gross surely knows that converted property isn't part of the bankruptcy estate and can't be given to creditors (at least not without inviting a legal tangle). He's also got to realize that, when Judge Kimball sets the amount of money that belongs to Novell, SCO will be appealing that decision. What if he's reserving the right to impose the constructive trust against that inevitable appeal? Ie. if SCO doesn't appeal he sends them straight to Chapter 7 and proceeds to extract Novell's money before beginning to deal with creditors, but if they appeal he imposes the constructive trust to preserve Novell's money pending the outcome of the appeal. Sound possible?

    [ Reply to This | # ]

    Honorable Judge Dale Kimballs Court Calender next 4 months.
    Authored by: Larry on Wednesday, November 28 2007 @ 10:28 AM EST
    I just found Judge Kimballs Court Calender online. Your guess is as goods as
    mine when, but 1/9-2008 through 1/11/2008 looks open to me for a start.
    Christmas week also open but I doubt you want to be in court during the
    Christmas Holiday in front of possible cheesed off Judge ;-)
    Run Darl Run!

    U.S. District Court - District of Utah
    Court Calendar

    Honorable Dale A. Kimball Room 220

    Wednesday, 11/28/2007
    08:30 am USA vs. Joseph Craig Eldredge 1:07-cr-00039-DAK Jury Trial
    Dft - Richards, Randall W
    Pla - Fojtik, Karin
    02:30 pm USA vs. Terry Randal Cox 2:07-cr-00483-DAK Sentencing
    Dft - Zenger, Jamie
    Pla - Esqueda, Carlos A.
    03:00 pm David Early Group et al v. BFS Retail & Commercial Operations
    2:06-cv-00277-DAK Motion Hearing
    Dft - Harrington, John P.
    Dft - Lange, Jennifer L.
    Pla - Bell, Ryan B.
    Pla - Flint, Richard D.
    Pla - Savage, Greggory J.
    RE: Doc #46; Motion for Partial Summary Judgment , RE: Doc #49; Motion for
    Summary Judgment

    Thursday, 11/29/2007
    03:00 pm Crist v. Astrue 2:07-cv-00327-DAK Miscellaneous Hearing
    Dft - Oliver, Amy J.
    Pla - Borsos, John J.

    Friday, 11/30/2007
    02:30 pm USA vs. Steven George Keirstad 2:07-cr-00564-DAK Change of Plea
    Hearing
    Dft - Ramirez, Viviana
    Dft - Ramos, Vanessa M.
    Pla - Huber, John W.
    03:00 pm USA vs. Eric Dustin Johnson 2:07-cr-00339-DAK Change of Plea Hearing

    Dft - Steele, Robert L.
    Pla - Daynes, Richard W.
    Pla - Lambert, Richard N.
    03:30 pm USA vs. Westley Wayne Hill 2:07-cr-00306-DAK Change of Plea Hearing

    Dft - Xaiz, Earl G.
    Pla - Esqueda, Carlos A.
    Pla - Huber, John W.

    Sat, 12/1/2007
    No Hearings Scheduled

    Sun, 12/2/2007
    No Hearings Scheduled

    Monday, 12/03/2007
    08:30 am USA vs. Michael Charles Wise 2:07-cr-00556-DAK Jury Trial
    Dft - Delicino, Jeremy M.
    Pla - Daynes, Richard W.
    Pla - Walz, Stewart C.
    08:30 am USA vs. Steven George Keirstad 2:07-cr-00564-DAK Jury Trial
    Dft - Ramirez, Viviana
    Dft - Ramos, Vanessa M.
    Pla - Huber, John W.
    02:30 pm USA vs. Joshua Christensen 2:07-cr-00061-DAK Sentencing
    Dft - Ramos, Vanessa M.
    Pla - Benson, Eric G.
    Pla - Daynes, Richard W.
    03:00 pm Flitton v. Primary Residential 2:03-cv-00481-DAK Status Rpt and
    Scheduling Cnf
    Dft - Armstrong, Richard J.
    Dft - Lee, Darryl J.
    Pla - Atkin, Blake S.
    Pla - Kimball, William O.
    Pla - Moss, Brennan H.
    Pla - Pugsley, Joseph H.
    03:30 pm USA vs. Eric Bartley White 2:02-cr-00108-DAK Revocation Superv
    Rls-FinalHrg
    Dft - Lewis, Wendy M.
    Pla - Hirata, Mark Y.

    Tuesday, 12/04/2007
    03:00 pm USA vs. Brett Goodman 2:05-cr-00532-DAK Revocation Superv
    Rls-FinalHrg
    Dft - Johnson, Tiffany L.
    Dft - Ramirez, Viviana
    Pla - Pead, Dustin B.
    Pla - Yeates, Jonathan D.

    Wednesday, 12/05/2007
    02:30 pm USA vs. Bahman Yousefi 2:06-cr-00499-DAK Revocation Superv
    Rls-FinalHrg
    Dft - Johnson, Tiffany L.
    Pla - Pead, Dustin B.

    Thursday, 12/06/2007
    02:30 pm USA vs. Juan Jose Faustino-Milanes 2:07-cr-00617-DAK Plea and
    Sentence INTERP
    Dft - Hamilton, Benjamin A.
    Pla - Olsen, Stanley H.
    03:00 pm USA vs. Ramiro Hernandez-Garcia 2:05-cr-00825-DAK Change of Plea
    Hearing INTERP
    Dft - Coebergh, Colleen K.
    Pla - Benson, Eric G.
    Pla - Daynes, Richard W.
    Pla - Huber, John W.
    03:00 pm USA vs. Anthony Angelo Calderone 2:07-cr-00152-DAK Sentencing
    Dft - Finlayson, David V.
    Pla - Lund, Robert A.
    03:00 pm USA vs. Othon Flores-Perez 2:07-cr-00718-DAK Plea and Sentence INTERP

    Dft - Hamilton, Benjamin A.
    Pla - Romney, Scott B.
    03:30 pm USA vs. Travis Adolph Hards 2:05-cr-00697-DAK Revocation Superv
    Rls-FinalHrg
    Dft - Ramos, Vanessa M.
    Pla - Higgins, Trina A.

    Friday, 12/07/2007
    03:00 pm USA vs. William Lawrence Scott 2:06-cr-00684-DAK Scheduling
    Conference
    Dft - Yengich, Ronald J.
    Pla - Vincent, Mark K.

    Sat, 12/8/2007
    No Hearings Scheduled

    Sun, 12/9/2007
    No Hearings Scheduled

    Monday, 12/10/2007
    08:30 am USA vs. Daniel Aguirre 2:07-cr-00644-DAK Jury Trial INTERP
    Dft - Cramer, Aric M.
    Pla - Graf, Paul F.
    08:30 am USA vs. James W Fithen 2:07-cr-00644-DAK Jury Trial
    Dft - Whiteley, Brenda S.
    Pla - Graf, Paul F.
    08:30 am USA vs. Ariel Garcia-Diaz 2:07-cr-00644-DAK Jury Trial INTERP
    Dft - Cramer, Aric M.
    Pla - Graf, Paul F.
    08:30 am USA vs. Alfredo Colin 2:07-cr-00711-DAK Jury Trial INTERP
    Dft - Donaldson, L. Clark
    Pla - Daynes, Richard W.
    Pla - Huber, John W.

    Tuesday, 12/11/2007
    No Hearings Scheduled

    Wednesday, 12/12/2007
    08:30 am USA vs. Steven M. Trujillo 2:07-cr-00354-DAK Jury Trial
    Dft - Bodily, Nyal C.
    Pla - Higgins, Trina A.
    02:30 pm USA vs. Douglas Carl Tuescher 2:07-cr-00258-DAK Sentencing
    Dft - Zenger, Jamie
    Pla - Daynes, Richard W.
    Pla - Huber, John W.
    03:00 pm Rich Financial v. United States of America 2:07-cv-00403-DAK Motion
    Hearing
    Dft - Bennett, Jared C.
    Dft - Watson, Rickey
    Pla - Miller, Blake D.
    Pla - Parry, Lauren Y.
    Pla - Zenger, Joel T.
    RE: Doc #8; Motion to Dismiss/Lack of Jurisdiction

    Thursday, 12/13/2007
    02:30 pm USA vs. Phillip Binder 2:05-cr-00597-DAK Evidentiary Hearing
    Dft - Garcia, Manny C
    Dft - Volpe, Santo J.
    Pla - Travis, Veda M.

    Friday, 12/14/2007
    09:00 am USA v. Orton, et al 2:04-cv-00483-DS Settlement Conference
    Dft - Murphy, J. Kevin
    Dft - Rencher, Jaryl L
    Dft - Skolnick, Michael F.
    Pla - Christensen, Carlie
    Pla - Duffy, Charles M.
    Pla - Swyers, Jeffrey
    02:30 pm USA vs. Freddie Barragon Martinez 1:07-cr-00063-DAK Change of Plea
    Hearing INTERP
    Dft - Ramos, Vanessa M.
    Pla - Daynes, Richard W.

    Sat, 12/15/2007
    No Hearings Scheduled

    Sun, 12/16/2007
    No Hearings Scheduled

    Monday, 12/17/2007
    08:30 am USA vs. Jonathon L. Cordier 2:06-cr-00626-DAK Jury Trial
    Dft - McCaughey, Stephen R
    Pla - Fojtik, Karin
    08:30 am USA vs. John Bryan Halliwall 2:07-cr-00774-DAK Jury Trial
    Dft - Steele, Robert L.
    Pla - Daynes, Richard W.
    Pla - Kendall, William K.
    02:30 pm Halverson v. University of Utah School of Medicine et al
    2:06-cv-00228-DAK-PMW Final Pretrial Conference
    Dft - Evans, Timothy D.
    Dft - Haggerty, Morris O
    Dft - Pena, David V.
    Pla - Birch, Erika
    Pla - Cook, Stephen W.
    Pla - Hollingsworth, April L.
    Pla - Morse, Daniel W.
    Pla - Strindberg, Erik
    02:30 pm USA vs. Rafael Aguilar-Ruiz 2:07-cr-00636-DAK Plea and Sentence
    INTERP
    Dft - Ramirez, Viviana
    Pla - Olsen, Stanley H.
    03:00 pm USA vs. Jeffery Albert Alsop 2:06-cr-00549-DAK Sentencing INTERP
    Dft - Sisneros, Henri R.
    Pla - Stejskal, Vernon G.

    Tuesday, 12/18/2007
    08:30 am USA vs. Heather Lynn Holmes 2:07-cr-00224-DAK Jury Trial
    Dft - Ramos, Vanessa M.
    Pla - Kennedy, Michael P.
    Pla - Romney, Scott B.
    03:00 pm Wolf Mountain Resorts LC v. Talisker et al 2:07-cv-00548-DAK Motion
    Hearing
    Dft - Campbell, Robert S.
    Pla - Homer, Michael W
    Pla - Peters, Paul H.
    Pla - Trentadue, Jesse C
    RE: Doc #4; Motion to Dismiss

    Wednesday, 12/19/2007
    02:30 pm Thomas v. Kelatron Corporation 1:06-cv-00060-DAK Final Pretrial
    Conference
    Dft - Neeley, Jennifer
    Pla - Collins, John L.
    Pla - Olson, Brian L.
    03:00 pm Flinders, et al v. Workforce Stabilizat 2:04-cv-00541-DAK
    Miscellaneous Hearing
    Dft - Durham, Matthew M.
    Dft - Palmer, Justin B.
    Pla - Blue, Michael E.
    Pla - Burke, Paul C.
    Pla - Hagen, Scott A.

    Thursday, 12/20/2007
    08:30 am USA vs. Jamie Stagg 2:01-cr-00347-DAK Jury Trial
    Dft - Bradshaw, James C.
    Dft - Moffat, Mark R
    Pla - McKelvie, Richard D.

    Friday, 12/21/2007
    No Hearings Scheduled

    Sat, 12/22/2007
    No Hearings Scheduled

    Sun, 12/23/2007
    No Hearings Scheduled

    Monday, 12/24/2007
    No Hearings Scheduled

    Tuesday, 12/25/2007
    No Hearings Scheduled

    Wednesday, 12/26/2007
    No Hearings Scheduled

    Thursday, 12/27/2007
    No Hearings Scheduled

    Friday, 12/28/2007
    No Hearings Scheduled

    Sat, 12/29/2007
    No Hearings Scheduled

    Sun, 12/30/2007
    No Hearings Scheduled

    Monday, 12/31/2007
    No Hearings Scheduled

    Tuesday, 1/1/2008
    No Hearings Scheduled

    Wednesday, 01/02/2008
    08:30 am USA vs. Enrique Mejorada-Cordova 2:07-cr-00770-DAK Jury Trial INTERP

    Dft - Ramos, Vanessa M.
    Pla - Kennedy, Michael P.
    08:30 am USA vs. Jorge Gil-Moreno 2:07-cr-00770-DAK Jury Trial INTERP
    Dft - Fujino, Ronald S.
    Pla - Kennedy, Michael P.
    02:30 pm USA vs. Anthony Angelo Calderone 2:07-cr-00152-DAK Sentencing
    Dft - Finlayson, David V.
    Pla - Lund, Robert A.

    Thursday, 01/03/2008
    08:30 am USA vs. William Vincent Clarkson 2:06-cr-00734-DAK Jury Trial
    Dft - Lewis, Matthew R.
    Pla - Daynes, Richard W.
    Pla - Elggren, Adam S.
    08:30 am USA vs. Dale Angle 2:07-cr-00743-DAK Jury Trial
    Dft - Angelos, Kristen R.
    Pla - Benson, Eric G.
    Pla - Daynes, Richard W.
    02:30 pm USA vs. Julio Delgado-Reyes 1:07-cr-00091-DAK Plea and Sentence
    INTERP
    Dft - Garcia, Carlos A.
    Pla - Elggren, Adam S.

    Friday, 01/04/2008
    02:30 pm USA vs. Saul Garcia Macias 2:06-cr-00111-DAK Sentencing INTERP
    Dft - Garcia, Carlos A.
    Pla - Daynes, Richard W.
    Pla - Elggren, Adam S.
    03:00 pm USA vs. Charles E. Hope 2:06-cr-00571-DAK Evidentiary Hearing
    Dft - Ramirez, Viviana
    Pla - Stejskal, Vernon G.
    03:00 pm USA vs. Michelle Denise Wilcox 2:06-cr-00571-DAK Evidentiary Hearing

    Dft - Corporon, Mary C.
    Pla - Stejskal, Vernon G.
    03:30 pm USA vs. Victor Manuel Sanchez 1:06-cr-00081-DAK Sentencing
    Dft - Goodall, Peter D.
    Dft - Gorman, Deirdre A
    Dft - Hunt, Elizabeth
    Dft - Hutchison, John Blair
    Pla - Daynes, Richard W.

    Sat, 1/5/2008
    No Hearings Scheduled

    Sun, 1/6/2008
    No Hearings Scheduled

    Monday, 01/07/2008
    08:30 am Halverson v. University of Utah School of Medicine et al
    2:06-cv-00228-DAK-PMW Jury Trial
    Dft - Evans, Timothy D.
    Dft - Haggerty, Morris O
    Dft - Pena, David V.
    Pla - Birch, Erika
    Pla - Cook, Stephen W.
    Pla - Hollingsworth, April L.
    Pla - Morse, Daniel W.
    Pla - Strindberg, Erik
    08:30 am USA vs. Michael Dummer 2:07-cr-00241-DAK Jury Trial
    Dft - Zenger, Jamie
    Pla - Daynes, Richard W.
    Pla - Huber, John W.
    08:30 am USA vs. William Conrad Neria 1:07-cr-00099-DAK Jury Trial
    Dft - Ljungberg, Robin K.
    Pla - Daynes, Richard W.
    Pla - Miles, Branden B.
    08:30 am USA vs. Chrasaun Johnson 2:07-cr-00784-DAK Jury Trial
    Dft - Gregersen, Mark J.
    Pla - Benson, Eric G.
    Pla - Dain, Carol A.
    02:30 pm USA vs. Bret Slaughter 2:07-cr-00594-DAK Sentencing
    Dft - Zenger, Jamie
    Pla - Huber, John W.
    03:00 pm USA vs. Ryan James Loftus 2:07-cr-00224-DAK Sentencing
    Dft - Mauro, Richard P.
    Pla - Kennedy, Michael P.
    Pla - Romney, Scott B.
    03:30 pm USA vs. Steven Weiss 2:07-cr-00282-DAK Sentencing
    Dft - Xaiz, Earl G.
    Pla - Bennett, Jared C.
    Pla - Daynes, Richard W.

    Tuesday, 01/08/2008
    02:30 pm USA vs. Jacqueline Kay Fodness 2:06-cr-00111-DAK Sentencing
    Dft - Breeze, Robert B.
    Pla - Daynes, Richard W.
    Pla - Elggren, Adam S.
    02:30 pm USA vs. Alicia Peterson 2:07-cr-00442-DAK Sentencing
    Dft - Zenger, Jamie
    Pla - Kennedy, Michael P.
    03:00 pm Dairy Health Products et al v. IBA 1:07-cv-00075-DAK Motion Hearing

    Dft - Zenger, Todd E
    Pla - Foster, Brett L.
    Pla - Lee, Jonathan R.
    Pla - Miller, Mark A.

    Wednesday, 1/9/2008
    No Hearings Scheduled

    Thursday, 1/10/2008
    No Hearings Scheduled

    Friday, 1/11/2008
    No Hearings Scheduled

    Sat, 1/12/2008
    No Hearings Scheduled

    Sun, 1/13/2008
    No Hearings Scheduled
    RE: Doc #13; Motion to Dismiss

    Monday, 01/14/2008
    02:30 am Palmer v. U.S. Department of Education 1:05-cv-00111-DAK-BCW Final
    Pretrial Conference
    Dft - Christensen, Carlie
    Pla - Bennett, Franklin Reed
    08:30 am USA vs. Efren Castro-Bajo 2:05-cr-00268-DAK Jury Trial INTERP
    Dft - Harris, Heather E.
    Dft - Williams, Scott C.
    Pla - Stejskal, Vernon G.
    Pla - Taylor, Lana
    08:30 am Thomas v. Kelatron Corporation 1:06-cv-00060-DAK Jury Trial
    Dft - Neeley, Jennifer
    Pla - Collins, John L.
    Pla - Olson, Brian L.
    03:00 pm USA vs. Fermin Mazariego-Moran 1:07-cr-00025-DAK Sentencing INTERP
    Dft - Gregersen, Mark J.
    Pla - Krause, Lynda Rolston
    03:30 pm USA vs. Mackenzie Glade Hunter 2:07-cr-00307-DAK Sentencing
    Dft - Finlayson, David V.
    Pla - Esqueda, Carlos A.
    Pla - Huber, John W.

    Tuesday, 01/15/2008
    08:30 am USA vs. Gayle R. Jensen 1:07-cr-00022-DAK Jury Trial
    Dft - Angelos, Kristen R.
    Dft - Zenger, Jamie
    Pla - Olsen, Stanley H.
    08:30 am USA vs. Jose Guadalupe Camacho 1:07-cr-00103-DAK Jury Trial
    Dft - Crowley, David L.
    Dft - Jardine, Joseph H.
    Pla - Daynes, Richard W.
    Pla - Miles, Branden B.
    02:30 pm USA vs. Anastacio C. Martinez 2:07-cr-00071-DAK-DN Sentencing
    Dft - Sullivan, Kevin C.
    Pla - Fojtik, Karin
    03:00 pm USA vs. Maria Guadalupe Alejos 1:07-cr-00063-DAK Sentencing INTERP
    Dft - Preston, Sharon L.
    Pla - Daynes, Richard W.
    03:30 pm USA vs. Shawn Michael Van Horne 2:07-cr-00442-DAK Sentencing
    Dft - Williams, Jon D.
    Pla - Kennedy, Michael P.

    Wednesday, 01/16/2008
    08:30 am USA vs. Carlos A. Gamez 2:07-cr-00156-DAK Jury Trial INTERP
    Dft - Sisneros, Henri R.
    Pla - Kelley, Michele M.
    Pla - Vincent, Mark K.
    02:30 pm USA vs. Conor McFarland 2:07-cr-00398-DAK Sentencing
    Dft - Cox, Randall D
    Pla - Fojtik, Karin
    03:00 pm Maynard v. Cannon 2:05-cv-00335-DAK-DN Motion Hearing
    Dft - Burbidge, George W.
    Dft - Ferguson, Phillip S.
    Dft - Quinn, Drew B.
    Dft - Robinson, Randy L.
    Pla - Ady, Ronald W.
    RE: Doc #85; Motion for Summary Judgment

    Thursday, 01/17/2008
    02:30 pm USA vs. Edwin Able Navarro-Valle 2:07-cr-00759-DAK Plea and Sentence
    INTERP
    Dft - Garcia, Carlos A.
    Pla - Elggren, Adam S.
    03:00 pm USA vs. Victor Rios-Tapia 1:07-cr-00096-DAK Plea and Sentence INTERP

    Dft - Garcia, Carlos A.
    Pla - Krause, Lynda Rolston
    03:30 pm USA vs. Everett Wilson 2:07-cr-00514-DAK Sentencing
    Dft - Harkness, Samuel S.
    Pla - Walz, Stewart C.

    Friday, 1/18/2008
    No Hearings Scheduled

    Sat, 1/19/2008
    No Hearings Scheduled

    Sun, 01/20/2008
    08:30 am Palmer v. U.S. Department of Education 1:05-cv-00111-DAK-BCW Bench
    Trial
    Dft - Christensen, Carlie
    Pla - Bennett, Franklin Reed

    Monday, 1/21/2008
    No Hearings Scheduled

    Tuesday, 01/22/2008
    08:30 am USA vs. William Harrison 2:07-cr-00053-DAK Jury Trial
    Dft - Bowland, Joshua Michael
    Pla - Huber, John W.
    08:30 am USA vs. Freddie Barragon Martinez 1:07-cr-00063-DAK Jury Trial INTERP

    Dft - Ramos, Vanessa M.
    Pla - Daynes, Richard W.
    02:30 pm USA vs. Georgina Vargas 2:06-cr-00876-DAK Sentencing INTERP
    Dft - Yengich, Ronald J.
    Pla - Travis, Veda M.

    Wednesday, 01/23/2008
    03:00 pm SEC v. Wolfson, et al 2:03-cv-00914-DAK-DN Motion Hearing
    Dft - Christiansen, Erik A.
    Dft - Golightly, Michael S.
    Dft - Parsons, William B
    Dft - Schwartz, Sarah G.
    Dft - Weed, Richard O.
    Pla - Martinez, Karen L.
    Pla - Melton, Thomas M
    RE: Doc #770; Motion for Summary Judgment

    Thursday, 01/24/2008
    08:30 am USA vs. Malco Kiyabo Kundo 2:07-cr-00571-DAK Jury Trial
    Dft - Zenger, Jamie
    Pla - Walz, Stewart C.
    02:30 pm Johnson et al v. Salt Lake County et al 2:05-cv-00563-DAK Final
    Pretrial Conference
    Dft - Allred, Steven W.
    Dft - Hansen, Donald H.
    Pla - Milliner, J. David
    03:00 pm USA vs. Marco Gonzalez-Alverado 2:07-cr-00782-DAK Plea and Sentence
    INTERP
    Dft - Angelos, Kristen R.
    Pla - Parkinson, Brett R.
    03:30 pm USA vs. Alexis Ortiz-Arteaga 2:07-cr-00832-DAK Plea and Sentence
    INTERP
    Dft - Angelos, Kristen R.
    Pla - Pead, Dustin B.

    Friday, 1/25/2008
    No Hearings Scheduled

    Sat, 1/26/2008
    No Hearings Scheduled

    Sun, 1/27/2008
    No Hearings Scheduled

    Monday, 01/28/2008
    08:30 am White Family Harmony Investment v. Transwestern West Valley et al
    2:05-cv-00495-DAK Bench Trial
    Dft - Dibble, Jonathan A.
    Dft - Maudsley, Adelaide
    Dft - Miller, Steven A.
    Dft - Tracy, James K.
    Pla - Adamson, Craig G.
    Pla - Hoggan, Craig A.
    Pla - Kesler, Joelle S.
    08:30 am USA vs. Joel Barriga 1:07-cr-00060-DAK Jury Trial
    Dft - Delicino, Jeremy M.
    Pla - Daynes, Richard W.
    Pla - Huber, John W.
    08:30 am USA vs. Matthew Owen Christensen 2:07-cr-00626-DAK Jury Trial
    Dft - Metos, G. Fred
    Pla - Fojtik, Karin
    02:30 pm Christensen v. Hide-A-Rake et al 2:05-cv-00831-DAK Status
    Conference
    Pla - Sessions, L. Todd

    Tuesday, 01/29/2008
    02:30 pm USA vs. Dennis T. Wynn 2:07-cr-00115-DAK Sentencing
    Dft - Rich, Bradley P
    Pla - Korb, Jennifer R.
    Pla - Washburn, D. Loren
    03:00 pm USA vs. Phillip Binder 2:05-cr-00597-DAK Miscellaneous Hearing
    Dft - Garcia, Manny C
    Dft - Volpe, Santo J.
    Pla - Travis, Veda M.

    Wednesday, 01/30/2008
    08:30 am USA vs. Miguel Angel Carrillo 2:03-cr-01007-DAK Jury Trial INTERP
    Dft - Delicino, Jeremy M.
    Dft - Garcia, Carlos A.
    Pla - McKelvie, Richard D.

    Thursday, 01/31/2008
    02:30 pm USA vs. Medardo Membreno-Acosta 2:07-cr-00806-DAK Plea and Sentence
    INTERP
    Dft - Garcia, Carlos A.
    Pla - Romney, Scott B.
    03:00 pm USA vs. Jose Ysabel Cruz-Juarez 2:07-cr-00811-DAK Plea and Sentence
    INTERP
    Dft - Hamilton, Benjamin A.
    Pla - Elggren, Adam S.

    Friday, 2/1/2008
    No Hearings Scheduled

    Sat, 2/2/2008
    No Hearings Scheduled

    Sun, 2/3/2008
    No Hearings Scheduled

    Monday, 02/04/2008
    08:30 am USA vs. Sharif Omar 2:06-cr-00756-DAK Jury Trial
    Dft - Athay, D. Gilbert
    Pla - Daynes, Richard W.
    Pla - Hirata, Mark Y.
    Pla - Huber, John W.
    08:30 am USA vs. Ahmed Abudan 2:06-cr-00756-DAK Jury Trial
    Dft - Stewart, Gregory V.
    Pla - Daynes, Richard W.
    Pla - Hirata, Mark Y.
    Pla - Huber, John W.
    08:30 am USA vs. Bassam Omar 2:06-cr-00756-DAK Jury Trial
    Dft - Athay, D. Gilbert
    Pla - Daynes, Richard W.
    Pla - Hirata, Mark Y.
    Pla - Huber, John W.
    08:30 am USA vs. Hikiau Inc 2:07-cr-00792-DAK Jury Trial
    Dft - Marshall, Leilani C.
    Dft - Wheeler, Max D.
    Dft - White, Heather S.
    Pla - Kennedy, Michael P.
    08:30 am USA vs. Gerald Peterson 2:07-cr-00792-DAK Jury Trial
    Dft - Marshall, Leilani C.
    Dft - Wheeler, Max D.
    Dft - White, Heather S.
    Pla - Kennedy, Michael P.
    08:30 am USA vs. Max Peterson 2:07-cr-00792-DAK Jury Trial
    Dft - Romney, Walter A.
    Dft - Snow, Rodney G.
    Pla - Kennedy, Michael P.
    02:30 pm USA vs. Jeremy Glenn Whitehouse 2:07-cr-00092-DAK Sentencing
    Dft - Harkness, Samuel S.
    Dft - Van Wagoner, Richard A.
    Pla - Hirata, Mark Y.
    08:30 pm Arnold, et al v. Curtis 2:04-cv-00564-DAK-SA Jury Trial
    Dft - Anderson, Meb W.
    Dft - Stirba, Peter
    Pla - Johnson, S. Austin

    Tuesday, 02/05/2008
    02:30 pm USA vs. Todd X. Rutner 2:07-cr-00535-DAK Sentencing
    Dft - Brown, David W.
    Pla - Hirata, Mark Y.
    Pla - Kelley, Michele M.
    03:00 pm USA vs. Michael Charles Wise 2:07-cr-00556-DAK Sentencing
    Dft - Delicino, Jeremy M.
    Pla - Daynes, Richard W.
    Pla - Walz, Stewart C.

    Wednesday, 02/06/2008
    08:30 am USA vs. Shane Marchant Rossman 1:06-cr-00102-DAK Jury Trial
    Dft - Yengich, Ronald J.
    Pla - Daynes, Richard W.
    Pla - Elggren, Adam S.

    Thursday, 2/7/2008
    No Hearings Scheduled

    Friday, 2/8/2008
    No Hearings Scheduled

    Sat, 2/9/2008
    No Hearings Scheduled

    Sun, 2/10/2008
    No Hearings Scheduled

    Monday, 02/11/2008
    08:30 am Johnson et al v. Salt Lake County et al 2:05-cv-00563-DAK Jury
    Trial
    Dft - Allred, Steven W.
    Dft - Hansen, Donald H.
    Pla - Milliner, J. David
    08:30 am USA vs. John Blake Taukeiaho 2:06-cr-00549-DAK Jury Trial
    Dft - Corporon, Mary C.
    Pla - Stejskal, Vernon G.
    02:30 pm Kee v. R-G Crown Bank et al 2:06-cv-00602-DAK-PMW Final Pretrial
    Conference
    Dft - Burton, Mona Lyman
    Dft - Norman, Katherine
    Dft - Orien, Melissa A.
    Pla - Brough, Daniel K.
    Pla - Johnson, Barry N.
    Pla - Reynard, Robert K.

    Tuesday, 02/12/2008
    08:30 am USA vs. Navneet C. Bhownath 2:06-cr-00685-DAK Jury Trial
    Dft - Yengich, Ronald J.
    Pla - Boyd, Jonathan C.
    Pla - Daynes, Richard W.
    Pla - Pead, Dustin B.

    Wednesday, 2/13/2008
    No Hearings Scheduled

    Thursday, 2/14/2008
    No Hearings Scheduled

    Friday, 2/15/2008
    No Hearings Scheduled

    Sat, 2/16/2008
    No Hearings Scheduled

    Sun, 2/17/2008
    No Hearings Scheduled

    Monday, 2/18/2008
    No Hearings Scheduled

    Tuesday, 02/19/2008
    02:30 pm Jacobson v. UT Dept Corrections, et al 2:04-cv-00739-DAK Final
    Pretrial Conference
    Dft - Bissell, Richard D.
    Dft - Ferre, Joel A.
    Dft - Parr, Rebecca S.
    Pla - Gowans, Jennifer K.
    Pla - Stubbs, Mark D.

    Wednesday, 02/20/2008
    08:30 am Bodily v. Clinton City et al 1:06-cv-00022-DAK Jury Trial
    Dft - Hathaway, Benson L.
    Dft - Schofield, Peter C.
    Pla - Fuller, Robert J.
    Pla - Sykes, Robert B

    Thursday, 2/21/2008
    No Hearings Scheduled

    Friday, 02/22/2008
    02:30 pm Chao v. AKI Industries et al 2:06-cv-00081-DAK Final Pretrial
    Conference
    Dft - Coulter, Derek A.
    Pla - Christensen, Carlie
    Pla - Vigil, Katherine

    Sat, 2/23/2008
    No Hearings Scheduled

    Sun, 2/24/2008
    No Hearings Scheduled

    Monday, 02/25/2008
    08:30 am Kee v. R-G Crown Bank et al 2:06-cv-00602-DAK-PMW Jury Trial
    Dft - Burton, Mona Lyman
    Dft - Norman, Katherine
    Dft - Orien, Melissa A.
    Pla - Brough, Daniel K.
    Pla - Johnson, Barry N.
    Pla - Reynard, Robert K.
    08:30 am USA vs. Sharif Omar 2:07-cr-00230-DAK Jury Trial
    Dft - Athay, D. Gilbert
    Pla - Hirata, Mark Y.
    02:30 pm Chatwin v. Barlow et al 2:06-cv-00291-DAK Final Pretrial Conference

    Dft - Armstrong, Harold H.
    Dft - Caldwell, Wayne K.
    Dft - Spencer, Sarah E.
    Dft - Stirba, Peter
    Pla - Holdsworth, David J.

    Tuesday, 2/26/2008
    No Hearings Scheduled

    Wednesday, 2/27/2008
    No Hearings Scheduled

    Thursday, 2/28/2008
    No Hearings Scheduled

    Friday, 2/29/2008
    No Hearings Scheduled

    Sat, 3/1/2008
    No Hearings Scheduled

    Sun, 3/2/2008
    No Hearings Scheduled

    Monday, 03/03/2008
    08:30 am Chao v. AKI Industries et al 2:06-cv-00081-DAK Bench Trial
    Dft - Coulter, Derek A.
    Pla - Christensen, Carlie
    Pla - Vigil, Katherine
    08:30 am USA vs. Mark Turner 2:06-cr-00713-DAK Jury Trial
    Dft - Donaldson, L. Clark
    Pla - Fojtik, Karin

    Tuesday, 03/04/2008
    08:30 am USA vs. Mechelle Kent 2:06-cr-00688-DAK Jury Trial
    Dft - Corporon, Mary C.
    Pla - Daynes, Richard W.
    Pla - Krause, Lynda Rolston

    Wednesday, 3/5/2008
    No Hearings Scheduled

    Thursday, 3/6/2008
    No Hearings Scheduled

    Friday, 3/7/2008
    No Hearings Scheduled

    Sat, 3/8/2008
    No Hearings Scheduled

    Sun, 3/9/2008
    No Hearings Scheduled

    Monday, 03/10/2008
    08:30 am Bodtcher v. Jensen 2:05-cv-00512-DAK Jury Trial
    Dft - Trentadue, Jesse C
    Pla - Brown, David W.
    Pla - Orifici, Joseph F.
    08:30 am USA vs. Miguel Carrera 2:05-cr-00895-DAK Jury Trial INTERP
    Dft - Koch, A. Chelsea
    Dft - MacDougall, Richard G
    Pla - Stejskal, Vernon G.
    08:30 am USA vs. Eric Angell 2:05-cr-00895-DAK Jury Trial INTERP
    Dft - Garrett, James D.
    Pla - Stejskal, Vernon G.
    08:30 am USA vs. Mark Robles 2:05-cr-00895-DAK Jury Trial
    Dft - Johnson, Candice A.
    Pla - Stejskal, Vernon G.
    08:30 am Chatwin v. Barlow et al 2:06-cv-00291-DAK Jury Trial
    Dft - Armstrong, Harold H.
    Dft - Caldwell, Wayne K.
    Dft - Spencer, Sarah E.
    Dft - Stirba, Peter
    Pla - Holdsworth, David J.

    Tuesday, 3/11/2008
    No Hearings Scheduled

    Wednesday, 3/12/2008
    No Hearings Scheduled

    Thursday, 3/13/2008
    No Hearings Scheduled

    Friday, 3/14/2008
    No Hearings Scheduled

    Sat, 3/15/2008
    No Hearings Scheduled

    Sun, 3/16/2008
    No Hearings Scheduled

    Monday, 03/17/2008
    08:30 am Jacobson v. UT Dept Corrections, et al 2:04-cv-00739-DAK Jury Trial

    Dft - Bissell, Richard D.
    Dft - Ferre, Joel A.
    Dft - Parr, Rebecca S.
    Pla - Gowans, Jennifer K.
    Pla - Stubbs, Mark D.
    02:30 pm Sweat v. Jordanelle Special Service District et al 2:06-cv-00528-DAK
    Final Pretrial Conference
    Dft - Wright, David C.
    Pla - Day, Daniel L.

    Tuesday, 03/18/2008
    08:30 am USA vs. Efren Castro-Bajo 2:05-cr-00268-DAK Jury Trial INTERP
    Dft - Harris, Heather E.
    Dft - Williams, Scott C.
    Pla - Stejskal, Vernon G.
    Pla - Taylor, Lana
    08:30 am USA vs. William Seth Hooker 2:07-cr-00484-DAK Jury Trial
    Dft - Corporon, Mary C.
    Pla - Esqueda, Carlos A.

    Wednesday, 3/19/108
    No Hearings Scheduled

    Thursday, 3/20/108
    No Hearings Scheduled

    Friday, 3/21/108
    No Hearings Scheduled

    Sat, 3/22/108
    No Hearings Scheduled

    Sun, 3/23/108
    No Hearings Scheduled

    Monday, 3/24/108
    No Hearings Scheduled

    Tuesday, 3/25/108
    No Hearings Scheduled

    Wednesday, 3/26/108
    No Hearings Scheduled

    Thursday, 3/27/108
    No Hearings Scheduled

    Friday, 3/28/108
    No Hearings Scheduled

    Sat, 3/29/108
    No Hearings Scheduled

    Sun, 3/30/108
    No Hearings Scheduled

    [ Reply to This | # ]

    Conversion and SEC Filings and Sarbane Oxley
    Authored by: Anonymous on Wednesday, November 28 2007 @ 11:23 AM EST
    So what does this mean for Darl who swore that the full
    money from the monopoly and sun deals was SCO's? Doesn't this mean that the SEC
    filings he swore were correct aren't and he is criminally liable for this?

    [ Reply to This | # ]

    Kimball loses most appeals - is this misleading?
    Authored by: dwheeler on Wednesday, November 28 2007 @ 11:25 AM EST
    McBride said, "if you look inside that appeals process and you take a microscope and look at the record of Kimball's summary judgment rulings that have gone to appeals, he gets overturned the vast majority of the time. It's nearly two-thirds of the time. That was something I was a little curious about myself." But later he says, "This apparently is a [judge] who very regularly, the majority of the time, gets [overturned] when it goes to the replay booth.... He certainly has a dismal record on appeals."

    That's an unusually-worded statement, so much so that it may be misleading. The first part of McBride's statement may be true - I don't know. But even if it is, the implication that "Kimball rules wrong most of the time" does not follow.

    Even if Kimball gets overturned the majority of the time when there's an appeal, it may be that his judgements are usually so good and thorough that almost no one bothers to appeal (as it would be a waste of time and money). Certainly Kimball's rulings on this case have struck me as being from someone who has done everything he can do to be fair, even when it's becoming increasingly obvious that SCO is spouting nonsense ("this is ALL the evidence you have?"). It'd be interesting to know how many of his rulings stand as a percentage of ALL his rulings (appealed or not).

    If McBride is correct that Kimball often loses in appeals, that may annoy the judge, but by itself Kimball's anger should be directed at the appeals court judges - not McBride. But if Kimball is usually NOT appealed, then Kimball has a right to be angry at McBride - because McBride seems to be implying that Kimball rules incorrectly most of the time. Even if it's true, that's not a smart thing to say while you're in a court case with that judge. If most of Kimball's rulings stand (as I suspect), then arguably the implication isn't true.

    [ Reply to This | # ]

    What else is pending in Utah
    Authored by: Wardo on Wednesday, November 28 2007 @ 11:34 AM EST
    The order of the BK judge is pretty straightforward in lifting the stay for 2 of
    the 3 pending issues in Utah.

    Are there any other motions or decisions we were waiting to see in Utah, and are
    those still under stay?

    I looked at the Novell Timeline page and I think 419/420 are still up for grabs.
    It's a motion to reconsider. There may be other motions still pending, but I
    didn't look too hard for others. Oops, looks like 469 denied that motion...

    Wardo

    ---
    caveat lector...
    Wardo = new user(lawyer = FALSE,badTypist = TRUE,badSpeller = TRUE);

    [ Reply to This | # ]

    New docket 234, Novell
    Authored by: Anonymous on Wednesday, November 28 2007 @ 03:42 PM EST
    Limited Object to Motion for Approval of Compromise of Incipient Controversy
    Regarding Cattleback ...

    :-)

    [ Reply to This | # ]

    Cattleback and the Patent
    Authored by: Anonymous on Wednesday, November 28 2007 @ 07:43 PM EST
    I see it highly unlikely that Novell will succeed in preventing SCO from selling
    this patent. The patent was acquired by Caldera from Acrylis (Boston)during an
    acquisition. It was never used and was put up for auction. It has nothing to
    do with Novell or UNIX or anything in dispute other than whether the funds could
    possibly be given to Novell for a potential judgement from Kimball - but then
    again there is all this lawyering about where money comes from and who could be
    entitled to what. But I don't see how Novell could stop that sale anymore than
    they could stop current sales of OpenServer or UnixWare from SCO.

    [ Reply to This | # ]

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