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Hearing Set for Feb. 4 for Novell Motion to Set Aside Judgment - And a Mystery Solved? - Update
Tuesday, January 05 2010 @ 02:36 AM EST

There is a hearing coming up on February 4 at 3 PM before Judge Stewart in SCO v. Novell, and I surely hope some of you can attend, regarding Novell's recently filed motion asking to set aside an earlier judgment by Judge Kimball, so Novell can go after monies SCO took in from Microsoft and companies that bought a SCOsource license.

But there's something odd in the notice about the hearing. It says also on the schedule that day will be oral argument on docket number 277 [PDF], Novell's Motion for Summary Judgment on SCO's First Claim for Slander of Title Based on Failure to Establish Special Damages, which was decided in Novell's favor long ago. Novell didn't ask for that judgment to be opened up, that I can see, nor would it, since it won that motion, and neither has SCO filed any such motion that I can find. So how is this scheduled for this hearing? That is the mystery.

Here's the entry:

01/04/2010 - 611 - NOTICE OF HEARING ON MOTION re: 277 MOTION for Summary Judgment on SCO's First Claim for Slander of Title Based on Failure to Establish Special Damages and 608 MOTION to Set Aside Judgment: (Notice generated by Chambers) Motion Hearing set for 2/4/2010 03:00 PM in Room 142 before Judge Ted Stewart. By 1/7/2010 at 5:00 p.m., the parties shall submit to chambers (Room 148) a courtesy copy of all filings related to 277 Motion for Summary Judgment on SCO's First Claim for Slander of Title Based on Failure to Establish Special Damages. (tco) (Entered: 01/04/2010)

Novell's motion for summary judgment on slander of title was heard back in June of 2007, and Novell won that motion (update: technically, it was mooted by Novell winning another motion):
This court's conclusion that Novell owns the UNIX and UnixWare copyrights impacts several of the claims asserted by both parties and several pending motions. Novell's motion on the copyright issue is brought with respect to SCO's First Claim for Relief for slander of title and Third Claim for Relief for specific performance. Novell is entitled to summary judgment on SCO's First Claim for Relief for slander of title because SCO cannot demonstrate that Novell's assertions of copyright ownership were false. First Sec. Bank of Utah v. Banberry Crossing, 780 P.2d 1253, 1256-57 (Utah 1989). In addition, Novell is entitled to summary judgment in its favor on SCO's Third Claim for Relief seeking an order directing Novell to specifically perform its alleged obligations under the APA by executing all documents needed to transfer ownership of the UNIX and UnixWare copyrights to SCO. Neither the original APA nor Amendment No. 2 entitle SCO to obtain ownership of the UNIX and UnixWare copyrights.
I think you can readily see why SCO would want a do over, in that the decision on slander of title was based on a ruling that is now itself getting a do over, only this time by a jury, as a result of the ruling by the Appeals Court that it's a matter that requires a decision by a jury, not just a judge.

But doesn't SCO at least have to ask to put this back on the table? Can the judge just do this by fiat or as a favor or after a phone call? Like I say, it's a mystery to me so far. I am curious how it gets brought up again and put back on the table without a motion from SCO. We knew SCO wanted to reopen it, since Bonnie Fatell foreshadowed it in her remarks at the latest bankruptcy hearing. There may be a very innocent explanation that will surface later, and if so, I'll surely tell you. It could just be a mistake on the judge's part or the clerk's, so we'll need to wait and see what develops. But I confess when I read this notice, it made the hairs on the back of my neck stand straight up.

Update: I think I have found the innocent explanation. If you read the reports from the most recent status hearing, you find this:

Mr. Jacobs said there were Summary Judgement motions that were mooted when Judge Kimball ruled which Novell would like to heard, including their motion on no special damages. Judge Stewart asked if they were fully briefed before Judge Kimball, which Mr. Jacobs said they were....

After the judge left, the clerk and the parties continued to discuss scheduling. They set Feb 25th at 2pm for the final pre-trial conference. Michael Jacobs said that right after the new year they will file a summary judgment motion regarding no malice pertaining to the slander of title claim. There was some preliminary discussion of dates and time frames for motions but nothing really decided. A court clerk when asked said that on motions that have already been fully briefed, and argued, before Judge Kimball, a new judge would likely want another hearing for argument. It was decided the attorneys would discuss between each other the various dates they will require and call the court back for scheduling.

After the judge left the room, the parties worked things out with the clerk, so this would be when the missing link occurred, with the parties agreeing on what motions would be reargued.

Update: Wait. 277 isn't about no malice. It's about special damages. So the mystery remains.


  


Hearing Set for Feb. 4 for Novell Motion to Set Aside Judgment - And a Mystery Solved? - Update | 115 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections
Authored by: Anonimuse on Tuesday, January 05 2010 @ 03:30 AM EST
.

[ Reply to This | # ]

"It could just be a mistake on the judge's part"
Authored by: ak on Tuesday, January 05 2010 @ 03:30 AM EST
Such a "mistake" would demonstrate that the judge is not impartial.

[ Reply to This | # ]

Off Topic
Authored by: Anonimuse on Tuesday, January 05 2010 @ 03:33 AM EST
.

[ Reply to This | # ]

News Picks
Authored by: Anonimuse on Tuesday, January 05 2010 @ 03:34 AM EST
.

[ Reply to This | # ]

I wish Judge Kimball had not recsused himself!
Authored by: Totosplatz on Tuesday, January 05 2010 @ 05:39 AM EST
It is too bad to lose Judge Kimball, who had so much experience with these
clowns, and now there is so little left to do; and one cannot expect a new judge
to step in and have those experiences in short order. We have seen how Kimball
and then Gross tried to take these people at face value only to wise up after
delay after delay.

BSF must be crowing to themselves now. If Judge Stewart sees this as merely an
old case that needs to get sped along quickly it will be one mistake after
another.

Bah!

Caldera did in fact surrender many IP rights to United Linux and did knowingly
contribute code to Linux. Those are un-alterable facts of history.

.


---
Greetings from Zhuhai, Guangdong, China; or Portland, Oregon, USA (location
varies).

All the best to one and all.

[ Reply to This | # ]

And a Mystery... (Not so, as the money waste cause by the courts in this case is not a mystery)!
Authored by: Anonymous on Tuesday, January 05 2010 @ 06:18 AM EST
And a Mystery... (Not so, as the money waste cause by the courts in this case is
not a mystery).

Based on the facts, this case should have been over and done with a long time
ago. What we have are lawyers, and maybe a judge or two, who don't understand
the GPL and the history of UNIX, and the history of LINUX, (and maybe they all
have also forgot about the body of LAW around the word AGENT or AGENCY), ..who
due to them being out of touch, we have seen this case go on for years and years
when it never should have.

GPL, and looking at the facts of the case with an eye on what bearing the LAW OF
AGENCY has on it, etc... should have been the place to have started with all
this. If they did so, then it would have ended quickly, and maybe The SCO Group
would still be around and MAYBE might be a major player in the LINUX community
like they once were when Ransom LOVE was the CEO (something that current
management, including the last CEO, seemed to have forgotten about).

[ Reply to This | # ]

Here's some relevant background
Authored by: Steve Martin on Tuesday, January 05 2010 @ 06:40 AM EST

Here's what I've been able to dig up from Groklaw's coverage:

  • August 6, 2004: Novell moved to dismiss the Amended Complaint, claiming that TSG could not prove malice. Judge Kimball denied the motion on June 27, 2005, saying that certain issues of fact precluded summary judgment, and that there could still be a finding of malice after discovery was complete.

  • April 20, 2007: Novell moves for summary judgment against TSG's slander-of-title claim, this time on the basis that TSG did not properly plead special damages. Judge Kimball ruled the motion as moot in his August 10, 2007 Summary Judgment Order, saying

    This court's conclusion that Novell owns the UNIX and UnixWare copyrights impacts several of the claims asserted by both parties and several pending motions. Novell's motion on the copyright issue is brought with respect to SCO's First Claim for Relief for slander of title and Third Claim for Relief for specific performance. Novell is entitled to summary judgment on SCO's First Claim for Relief for slander of title because SCO cannot demonstrate that Novell's assertions of copyright ownership were false.

    [...]

    Novell's motion for summary judgment on SCO's slander of title claim for failure to establish special damages is now moot because the claim has been dismissed on other grounds.

    It would appear that Kimball's ruling on this issue was based solely on his finding that Novell had retained the UNIX copyrights.

So if the motion was mooted because of a finding that the Tenth Circuit has now reversed and remanded for trial, it seems that the ruling on the slander-of-title motion being moot must also be reversed. Like PJ, though, I'm at a loss to explain how this came to the forefront at this particular time. There is nothing on the docket showing any requests from anyone for this motion to be resurrected.

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

[ Reply to This | # ]

Novell motion not a good thing?
Authored by: Anonymous on Tuesday, January 05 2010 @ 12:41 PM EST
I really don't understand why the Novell motion would be considered a good thing
as far as the community is concerned. It gives them a chance to argue more money
at the expense of their best defense so far of the rights of the community,
which was only demolished as a summary judgement, not as a best argument. With
the Kimball decision, how can they argue about money at this point in time
without implicitly arguing that they were wrong and the copyrights did
transfer?

Only a fool would trust Novell/Suse at this point to make the best case for the
community. I realize that while it puts Novell in a bad position, it also places
SCO in a similar one, i.e. how can SCO argue to keep the ruling without
undermining their own case. But this does not seem so very comforting given the
lack of reasonable legislative and judiciary support for what is obviously the
just cause of the community in this case.

[ Reply to This | # ]

The big question
Authored by: Anonymous on Tuesday, January 05 2010 @ 01:47 PM EST
As Judge Kimball pointed out, SCO did not bring forth the actual OldSCO lawyers
who negotiated and helped draft the actual APA and amendments to counter
Novell's own lawyer's depositions.

This leads to the following questions that I have asked myself a few times over
the many years of this fiaSCO:

Why has Novell not tried to depose the lawyers from OldSCO who were on the other
side of the bargaining table back when the APA and amendments were negotiated
and drafted? Or are they planning to subpoena them for the trial without
deposing them simply because they already know that they will help support
Novell's argument, or are they barred from calling them as witnesses because of
lawyer-client confidentiality?

[ Reply to This | # ]

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