|
Novell's Motion for Leave to Reply to SCO's Opposition to Motion in Limine # 1 - As Text - Update: Opposed/Denied |
|
Monday, February 15 2010 @ 04:54 PM EST
|
I told you I thought we'd hear from Novell, and so we have: Novell has filed a motion asking the court's permission to reply to SCO's Opposition to Novell's Motion in Limine No. 1. Here's why:As the court recognized when it established a separate, accelerated deadline for SCO to oppose the Motion, the significance of the issues presented by the Motion, in particular, justify some departures from the procedures to be employed with respect to the other motions in limine. Exhibit A is their proposed Reply. I'll do it as text for you shortly.
Here's the motion, the proposed Reply and proposed Order:
02/15/2010 - 670 - MOTION for Leave to File Reply to SCO's Opposition to Novell's Motion in Limine No. 1 filed by Defendant Novell, Inc.. (Attachments: # 1 Exhibit A-Reply, # 2 Text of Proposed Order)(Brennan, Sterling) (Entered:02/15/2010)
Quickly though, here's the paragraph about the SCO claim that limiting the trial to SCO's specific performance claim would "make a mockery of the Tenth Circuit's decision":Fourth, SCO contends that limiting the trial to SCO's claim for specific performance of Novell's alleged duty to transfer the copyrights would "make a mockery of the Tenth Circuit's decision" because SCO referred to this claim as "an alternative count." (Opp. 3.) However, SCO's specific performance claim requires the Court to decide whether the contracts entitle SCO to obtain ownership of the copyrights. This is the same issue that the Tenth Circuit analyzed in reversing Judge Kimball's summary judgment that the contracts did not require Novell to transfer the copyrights. See The SCO Group, 578 F.3d at 1214-19. Specific performance is an "alternative" only in that it applies if SCO has a contractual right to ownership that has not been perfected because Novell has not executed the required transfer documents. This does not change the fact that a trial concerning specific performance will necessarily require a decision on whether SCO had a contractual right to ownership. Thus, holding a trial on copyright ownership in connection with specific performance is consistent with the Tenth Circuit's mandate to conduct a trial on "ownership of the UNIX and UnixWare copyrights" and "SCO's claim seeking specific performance." See The SCO Group, 578 F.3d at 1227.
This was fast, don't you think?
02/16/2010 - 671 - MEMORANDUM in Opposition re 670 MOTION for Leave to File Reply to SCO's Opposition to Novell's Motion in Limine No. 1 filed by Plaintiff SCO Group. (Attachments: # 1 Exhibit A)(Hatch, Brent) (Entered: 02/16/2010)
02/16/2010 - 672 - Amended MEMORANDUM in Opposition re 670 MOTION for Leave to File Reply to SCO's Opposition to Novell's Motion in Limine No. 1 filed by Plaintiff SCO Group. (Attachments: # 1 Exhibit A)(Hatch, Brent) (Entered: 02/16/2010)
02/16/2010 - 673 - DOCKET TEXT ORDER denying 670 Motion for Leave to File. Signed by Judge Ted Stewart on 2/16/2010. No attached document. (tco) (Entered: 02/16/2010)
Surprised? Not so much the denial. But the judge didn't bother to write up an order, so how does Novell appeal that? He provides no basis for his decision. This is getting a little weird. SCO not only opposed, it provided a Sur-Reply in Opposition, just in case the judge did grant Novell's motion. Like he ever does that. They filed an amended version of Exhibit A. The only difference I see is on page 5, where they first referenced the wrong Novell motion. So, slander of title seems to be what the judge would like to try. Since he's already foreshadowed his views in his order on Novell's no special damages for slander of title motion, I'm guessing that Novell will be planning its appeal very methodically from here on. Or at least I would, if I were Novell. I believe it is now fairly obvious that we are in Alice in Wonderland-Utah, not on a level playing field. When you can so easily predict the orders from a judge based on who brings the motion, something smells funny. There can be many reasons for it, so I won't speculate at this point, but if you want to see why I feel that something is odd, go to Google and search by these keywords:"motions in limine" reply to opposition You will find many cases where replies to oppositions to motions in limine were allowed. Here's just one example on Justia, docket number 63, and there are others, without having to ask for permission. So Utah is different, or this judge is, for a reason I don't yet grasp. I'll keep researching. Meanwhile, here's P&G I, the case the parties are interpreting differently, and P&G II. The latter was on appeal, with the appellant saying that the lower court exceeded the scope of the earlier appeals court mandate. Yes, my friends, I smell more appeals ahead, based on this dispute as to exactly what the appeals court in this case meant to be tried back in Utah.
And here is Exhibit A in full:
*************************************
WORKMAN | NYDEGGER A PROFESSIONAL CORPORATION
Sterling A. Brennan (Utah State Bar NO.10060; E-mail)
David R. Wright (Utah State Bar No. 5164: E-mail)
Kirk R. Harris (Utah State Bar No. 10221; E-mail)
Cara J. Baldwin (Utah State Bar No. 11863; E-mail)
[address, phone, fax]
MORRISON & FOERSTER LLP
Michael A. Jacobs, (Admitted Pro hac vice, E-mail...)
Eric M. Acker, (Admitted Pro hac vice, E-mail...)
Grant L. Kim,(Admitted Pro hac vice, E-mail...)
[address, phone, fax]
Attorneys for Defendant and Counterclaim-Plaintiff NOVELL, INC.
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION
THE SCO GROUP, INC., a Delaware
corporation,
Plaintiff,
vs.
NOVELL, INC., a Delaware corporation,
Defendant.
______________
AND RELATED COUNTERCLAIMS.
______________
Case No. 2:04CV00139
NOVELL'S REPLY IN SUPPORT OF
MOTION IN LIMINE NO. 1 TO
EXCLUDE EVIDENCE AND
ARGUMENT CONCERNING CLAIMS
NOT INCLUDED IN SCO'S APPEAL
OR THE TENTH CIRCUIT'S
LIMITED MANDATE
Judge Ted Stewart
_______________________
SCO does not dispute that it failed to ask the Tenth Circuit to reverse the judgment on SCO's slander of title claim and the copyright ownership portions of SCO's unfair competition and covenant of good faith claims. Nor does SCO dispute that the Tenth Circuit's mandate did not mention those claims. Nevertheless, SCO contends that Novell's motion should be denied because the mandate "necessarily implied" reversal of the slander of title judgment.1 (SCO's Opposition to Motion in Limine No. 1 ("Opp.") at 2, Dkt. No. 669.)
SCO's argument fails for several reasons. First, SCO has not even attempted to argue that the Tenth Circuit reversed the judgment on the copyright ownership portions of SCO's unfair competition and covenant of good faith claims. Therefore, Novell's motion to preclude SCO from presenting evidence or argument on those claims should indisputably be granted.
Second, SCO bases its "necessarily implied" argument on Procter & Gamble Co. v. Haugen, 317 F.3d 1121 (10th Cir. 2003) ("P&G II"). In P & G II, however, the Tenth Circuit had expressly reversed the prior summary judgment on P&G's Lanham Act claim. Id. at 1124-25.
The judgment of the district court is AFFIRMED as to all claims except the court's grant of summary judgment on P&G's Lanham Act claim and its dismissal of P&G's Utah tortious interference claim, as to which we REVERSE and REMAND for further proceedings in accordance with this opinion.
Procter & Gamble Co. v. Haugen, 222 F.3d 1262, 1280 (10th Cir. 2000)("P & G I"). The Tenth Circuit held that its prior mandate could "plausibly be read" as restoring P&G's Lanham Act claim for contributory infringement. P&G II, 317 F.3d at 1129. This does not help SCO, as the Tenth Circuit mandate did not even mention, let alone reverse, the slander of title judgment.2
1
Third, SCO asserts that the Tenth Circuit's reversal of the copyright ownership ruling requires reversal of the slander of title judgment because the ruling was the "only basis for dismissal of the slander of title count." (Opp. 1.) However, SCO did not make this argument in its appellate briefs, and the Tenth Circuit did not address it.3 SCO's assertion about what the Tenth Circuit might have done if SCO had made this argument is pure speculation. Indeed, the Tenth Circuit might have affirmed the judgment on the ground that slander of title requires proof of malice, and SCO did not challenge Judge Kimball's ruling that "there is no evidence that Novell's public statements were based on anything but its good faith interpretation of the contracts." (Ex. 5 at 64, Dkt. No. 377.)
Fourth, SCO contends that limiting the trial to SCO's claim for specific performance of Novell's alleged duty to transfer the coyrights would "make a mockery of the Tenth Circuit's decision" because SCO referred to this claim as "an alternative count." (Opp. 3.) However, SCO's specific performance claim requires the Court to decide whether the contracts entitle SCO to obtain ownership of the copyrights. This is the same issue that the Tenth Circuit analyzed in reversing Judge Kimball's summary judgment that the contracts did not require Novell to transfer the copyrights. See The SCO Group, 578 F.3d at 1214-19. Specific performance is an "alternative" only in that it applies if SCO has a contractual right to ownership that has not been perfected because Novell has not executed the required transfer documents. This does not change the fact that a trial concerning specific performance will necessarily require a decision on
2
whether SCO had a contractual right to ownership. Thus, holding a trial on copyright ownership in connection with specific performance is consistent with the Tenth Circuit's mandate to conduct a trial on "ownership of the UNIX and UnixWare copyrights" and "SCO's claim seeking specific performance." See The SCO Group, 578 F.3d at 1227.
Fifth, SCO notes that Novell had previously assumed that the trial would include slander of title (Opp. 1.) SCO is correct, but Novell had also assumed that the trial would include its claim for SVRX royalties for other SCOsource licenses, since Judge Kimball's prior denial of that claim
"turned on" the copyright ownership ruling that the Tenth Circuit reversed. Both assumptions are now obsolete in view of this Court's recent ruling that the trial will be narrowly limited to the four specific issues in the Tenth Circuit's mandate.
Finally, SCO argues that this Court's reasoning in denying Novell's Rule 60(b) motion does not apply here, as SCO "did appeal." (Opp. 3.) But SCO did not argue in its appellate briefs that the slander of title judgment should be reversed. Therefore, this Court's prior holding is directly on point. SCO "could have easily argued to the Tenth Circuit that if this Court's decision concerning the ownership of the copyrights was reversed, the decision concerning [slander of title] should similarly be reversed." (See Ex. 6 at 4, Dkt. No. 627.) SCO failed to do so. Thus, SCO should be barred from attempting to reopen a judgment that it did not challenge in its appeal and that was not reversed by the Tenth Circuit. DATED: February 15, 2010
Respectfully submitted,
By: /s/ Sterling A. Brennan
WORKMAN NYDEGGER
MORRISON & FOERSTER LLP
Attorneys for Defendant and
Counterclaim-Plaintiff Novell, Inc.
_______________
1 SCO also argues that Novell's motion is "equivalent" to a summary judgment motion. (Opp. 1 n. 1.) SCO is wrong. In fact, Novell simply seeks to enforce the summary judgment that has already been granted, and which was not appealed by SCO or reversed by the Tenth Circuit.
2 P&G is also inapposite because it involved a "general" mandate that left the district court "free to decide anything not foreclosed by the mandate." P&G II, 317 F.3d at 1125. This Court cited P&G for this point in holding that the Tenth Circuit's very specific" mandate in this case is not a general mandate. (Ex. 6 at 4 n. 9 [exhibits are attached to Novell's motion, Dkt. No. 627].)
3 SCO suggests that the Tenth Circuit did address this issue by "expressly recogniz[ing]" that slander of title "turned on" the ownership ruling. (Opp. 2) But the Tenth Circuit's only reference to slander of title was in the statement of facts. See The SCO Group, Inc. v. Novell, Inc., 578 F.3d 1201, 1207 (10th Cir. 2009). The Tenth Circuit did not analyze whether the slander of title judgment should be reversed, nor did it state (or even suggest) that it was reversing this judgment.
4 Judge Kimball did not rely on this ruling in rejecting SCO's slander of title claim, but a judgment may be affirmed based on any ground supported by the record. See, e.g., In re Courtesy Inns, Ltd., Inc., 40 F.3d 1084, 1087 (10th Cir. 1994).
|
|
Authored by: tyche on Monday, February 15 2010 @ 05:11 PM EST |
Please place corrections in this thread. Helpful would be to indicate the
correction in the title, and locate where the correction needs to be made in the
body of the comment.
Thanks
Craig
Tyche
---
"The Truth shall Make Ye Fret"
"TRUTH", Terry Pratchett[ Reply to This | # ]
|
- Footnote 3 Missing... n/t - Authored by: lnuss on Monday, February 15 2010 @ 06:22 PM EST
- "not obsolete" -> "now obsolete" - Authored by: Anonymous on Monday, February 15 2010 @ 06:31 PM EST
- Corrections - Authored by: moz1959 on Monday, February 15 2010 @ 06:58 PM EST
- Corrections - Authored by: PJ on Tuesday, February 16 2010 @ 12:34 PM EST
- New layout, or HTML problem in the Newspicks? - Authored by: SpaceLifeForm on Tuesday, February 16 2010 @ 03:01 AM EST
- (P * G II) -> (P & G II) n/t - Authored by: Anonymous on Tuesday, February 16 2010 @ 10:32 AM EST
- Corrections coyrights - Authored by: Anonymous on Tuesday, February 16 2010 @ 11:10 AM EST
- t I believe it -> I believe it - Authored by: kh on Tuesday, February 16 2010 @ 04:41 PM EST
- Corrections - Authored by: Anonymous on Tuesday, February 16 2010 @ 11:20 PM EST
|
Authored by: tyche on Monday, February 15 2010 @ 05:13 PM EST |
Although some of the legal language eludes me (reasonable, since I'm not a
lawyer), I was able to understand enough to get the gist of what he was saying.
And that last paragraph was a block-buster. Very nicely done.
Craig
Tyche
---
"The Truth shall Make Ye Fret"
"TRUTH", Terry Pratchett[ Reply to This | # ]
|
- Clear, concise, and to the point - Authored by: PJ on Monday, February 15 2010 @ 05:59 PM EST
- Clear, concise, and to the point - Authored by: Anonymous on Monday, February 15 2010 @ 09:04 PM EST
- Clear, concise, and to the point - Authored by: PJ on Monday, February 15 2010 @ 10:23 PM EST
- Clear, concise, and to the point - Authored by: Lazarus on Tuesday, February 16 2010 @ 01:47 AM EST
- Discomfort with language - Authored by: Totosplatz on Tuesday, February 16 2010 @ 05:58 AM EST
- What's he gonna do? Take himself out back and shoo...... - no wait! - Authored by: SirHumphrey on Tuesday, February 16 2010 @ 07:05 AM EST
- ... a bald ruling without explanation ... - Authored by: Anonymous on Tuesday, February 16 2010 @ 06:48 PM EST
- Clear, concise, and to the point - Authored by: wvhillbilly on Tuesday, February 16 2010 @ 11:43 PM EST
- How is it "reasonable" that the language eludes you? - Authored by: Anonymous on Tuesday, February 16 2010 @ 06:51 AM EST
|
Authored by: tyche on Monday, February 15 2010 @ 05:17 PM EST |
If it isn't on topic, it goes here. Behave yourselves and remember to respect
PJ's comments policy
(http://www.groklaw.net/staticpages/index.php?page=2004030120301285)
Craig
Tyche
---
"The Truth shall Make Ye Fret"
"TRUTH", Terry Pratchett[ Reply to This | # ]
|
- Washington [State] to Give Microsoft a $100 Million Annual Tax Cut - Authored by: SpaceLifeForm on Monday, February 15 2010 @ 06:02 PM EST
- Outrageous! - Authored by: tiger99 on Monday, February 15 2010 @ 07:05 PM EST
- Outrageous! - Authored by: Kevin on Monday, February 15 2010 @ 10:26 PM EST
- Outrageous! - Authored by: Anonymous on Tuesday, February 16 2010 @ 08:32 PM EST
- Vodafone launch 'world's cheapest phone' - Authored by: tiger99 on Monday, February 15 2010 @ 07:01 PM EST
- MS takes on "many eyes" concept - Authored by: inode_buddha on Tuesday, February 16 2010 @ 01:09 AM EST
- Whaaaaaaaaaa?! - Authored by: Anonymous on Tuesday, February 16 2010 @ 01:10 AM EST
- World Bank grant and Chinese intelligence used to block and monitor Internet outside China. - Authored by: Anonymous on Tuesday, February 16 2010 @ 07:10 AM EST
- CBS Radio cuts off streaming outside the U.S - Authored by: Anonymous on Tuesday, February 16 2010 @ 08:42 AM EST
- As predicted, MS' lost its monopoly (at least of mind and hearts etc.) - Authored by: Winter on Tuesday, February 16 2010 @ 09:22 AM EST
- Matt Asay Slashdot Interview - we need Groklaw input on this imho - Authored by: designerfx on Tuesday, February 16 2010 @ 05:14 PM EST
- slashdot sucks - Authored by: Anonymous on Tuesday, February 16 2010 @ 07:00 PM EST
- Skype - SERIOUS bug - Authored by: Anonymous on Tuesday, February 16 2010 @ 10:34 PM EST
- Ask Microsoft's Matt Asay about removing Mono from Ubuntu - Authored by: Anonymous on Wednesday, February 17 2010 @ 02:28 AM EST
- Jury Bamboozlement! - Authored by: complex_number on Wednesday, February 17 2010 @ 03:35 AM EST
- What about NewsCorp's pay-to-view plan - Authored by: Anonymous on Wednesday, February 17 2010 @ 04:44 AM EST
- Off Topic Thread (No News PIcks, don't want to start an anonymous one) - Authored by: Anonymous on Wednesday, February 17 2010 @ 09:30 AM EST
|
Authored by: tyche on Monday, February 15 2010 @ 05:19 PM EST |
Please include the title AND the link. Many times News Picks scroll off the
page rather quickly.
Craig
Tyche
---
"The Truth shall Make Ye Fret"
"TRUTH", Terry Pratchett[ Reply to This | # ]
|
- re: BAR/BRI class action - self-ownage? - Authored by: Anonymous on Tuesday, February 16 2010 @ 01:20 AM EST
- Update - Restart Issues After Installing MS10-015 - Authored by: Anonymous on Tuesday, February 16 2010 @ 03:45 AM EST
- News Picks: Bing Maps (WARNING) - Authored by: Peter H. Salus on Tuesday, February 16 2010 @ 09:06 AM EST
- Hmm... - Authored by: Anonymous on Tuesday, February 16 2010 @ 12:33 PM EST
- Video: Bing Maps at TED - Authored by: TerryC on Tuesday, February 16 2010 @ 01:00 PM EST
- News Picks: Google Maps (WARNING) - Authored by: rsteinmetz70112 on Tuesday, February 16 2010 @ 05:11 PM EST
- It's all GIGO... - Authored by: Anonymous on Tuesday, February 16 2010 @ 06:10 PM EST
- It's all GIGO... - Authored by: Anonymous on Tuesday, February 16 2010 @ 07:16 PM EST
- It's all GIGO... - Authored by: Anonymous on Tuesday, February 16 2010 @ 11:12 PM EST
- It's all GIGO... - Authored by: Anonymous on Wednesday, February 17 2010 @ 10:41 AM EST
- It's all GIGO... - Authored by: Anonymous on Wednesday, February 17 2010 @ 05:00 PM EST
- Many eyeballs as applied to mapping: OpenStreetMap - Authored by: macrorodent on Tuesday, February 16 2010 @ 11:39 PM EST
- Google isn't perfect either - Authored by: Anonymous on Wednesday, February 17 2010 @ 12:25 PM EST
- Thank you PJ - Authored by: Anonymous on Tuesday, February 16 2010 @ 10:11 AM EST
- CBS Radio cuts off streaming outside the U.S. - Authored by: Anonymous on Tuesday, February 16 2010 @ 02:26 PM EST
- Adobe Air/Flash - Authored by: Anonymous on Tuesday, February 16 2010 @ 04:42 PM EST
- When Windows can mean life or death, - Authored by: Anonymous on Wednesday, February 17 2010 @ 03:48 AM EST
- Net neutrality: Are all bits created equal? - Authored by: Anonymous on Wednesday, February 17 2010 @ 11:34 AM EST
- News Picks - When Windows can mean life or death - Authored by: Anonymous on Wednesday, February 17 2010 @ 12:00 PM EST
|
Authored by: sproggit on Monday, February 15 2010 @ 05:32 PM EST |
I'm sorry, this is an oldie but a goodie...
1. Let a=b
2. Then
a2 = ab
3. So... a2 + a2 =
a2 + ab
4. And.. 2a2 = a2 +
ab
5. So... 2a2 - 2ab = a2 +ab -2ab
6.
Or... 2a2 - 2ab = a2 -ab
7. Which can be written
as 2(a2 - ab) = 1(a2 - ab)
8. And cancelling the
(a2 - ab) from both sides gives us...
9. 1 =
2!
SCO's legal team are amazing. Quite how they have managed
to pull the wool over so many pairs of eyes for so long is beyond comprehension.
I can only hope that the old maxim,
"You can fool some of the people
all of the time and all of the people some of the time, but you can't fool all
of the people all of the time."
steps into this case real soon
now and that when the various SCO chickens come home to roost, they poop in
Darl's hat.
While we're at it, anyone else care to have a go at an
elegant mathematical proof that encapsulates SCO's legal argument? I suspect we
have abler brains than mine out there...[ Reply to This | # ]
|
- SCO's Legal Argument Expressed In Mathematical Terms: - Authored by: BsAtHome on Monday, February 15 2010 @ 05:41 PM EST
- SCO's Legal Argument Expressed In Mathematical Terms: - Authored by: Lazarus on Monday, February 15 2010 @ 05:41 PM EST
- SCO's Legal Argument Expressed In Mathematical Terms: - Authored by: Alan(UK) on Monday, February 15 2010 @ 05:45 PM EST
- SCO's Legal Argument Expressed In Mathematical Terms: - Authored by: Steve Martin on Monday, February 15 2010 @ 06:35 PM EST
- mathematical proof & SCOG logic? - Authored by: hAckz0r on Monday, February 15 2010 @ 06:44 PM EST
- SCO's Legal Argument Expressed In Mathematical Terms: - Authored by: wvhillbilly on Monday, February 15 2010 @ 09:19 PM EST
- A closer analogy - Authored by: caecer on Monday, February 15 2010 @ 10:26 PM EST
- A closer analogy - Authored by: Anonymous on Tuesday, February 16 2010 @ 07:22 AM EST
- A closer analogy - Authored by: Anonymous on Tuesday, February 16 2010 @ 10:40 AM EST
- SCO's Legal Argument Expressed In Mathematical Terms: - Authored by: Anonymous on Tuesday, February 16 2010 @ 08:18 AM EST
- SCO's Legal Argument Expressed In Mathematical Terms: - Authored by: Anonymous on Tuesday, February 16 2010 @ 08:46 AM EST
- SCO's Legal Argument Expressed In Mathematical Terms: - Authored by: Anonymous on Tuesday, February 16 2010 @ 02:16 PM EST
- I Am A Bad Man ;o) - Authored by: sproggit on Tuesday, February 16 2010 @ 03:33 PM EST
- Division by zero - Authored by: Anonymous on Tuesday, February 16 2010 @ 03:46 PM EST
- SCO's Legal Argument Expressed In Mathematical Terms: - Authored by: Pogue Mahone on Tuesday, February 16 2010 @ 04:58 PM EST
- flawed logic - Authored by: Anonymous on Wednesday, February 17 2010 @ 04:58 AM EST
- It's now the court, not the legal team that is trying to pull the wool over our eyes - Authored by: Anonymous on Wednesday, February 17 2010 @ 03:35 PM EST
|
Authored by: Lazarus on Monday, February 15 2010 @ 05:58 PM EST |
Ok, I get that Novell had to ask leave to file a response.
But is it common to include the response you want to file as
an attachment?
Also, can SCO oppose the motion to file a response?
---
I have no opinion on things I know nothing about.
This separates me from 90% of the human race, and 100% of politicians.[ Reply to This | # ]
|
|
Authored by: Kevin on Monday, February 15 2010 @ 10:39 PM EST |
This motion practice is ... weird even for this case. But most of the weirdness
comes from an appellate decision that makes no sense, and Judge Stewart's
attempt to apply that mandate strictly.
I'm sure Stewart is sitting there saying, 'can't I just get this over already
and send it back upstairs?' Because that's where it's going, irrespective of
anything he does.
The worst part is that after all this collapses, the bankruptcy estate will sell
"whatever IP SCO has" to someone who will re-enter the litigation
lottery. This case will never die until copyrights expire again, and since
copyright is now "perpetual on the installment plan", that means
never.
---
73 de ke9tv/2, Kevin (P.S. My surname is not McBride!)[ Reply to This | # ]
|
|
Authored by: webster on Monday, February 15 2010 @ 11:08 PM EST |
Not quite. It depends on Judge Stewart's ruling on this Mambo in limine
#1. Stewart ruled out Novell's Rule 60(b) Motion for another shot at the SVRX
royalties denied them by Kimball on the basis that they, not SCO owned the
copyrights so SCO couldn't sell 'em. It was awfully bold for Novell to assume
this because they didn't appeal it. It may be logical and reasonable and
possible under the law, but if the judge wants it, procedure can trump reality.
Stewart wants a trial following a strict interpretation of the mandate.
Since SCO didn't argue in the appeal the Summary Judgment dismissing
their Slander of Title claim, Novell now assumes that it is out of the trial.
They point out, to put it mildly, that the Court of Appeals didn't reverse this
order. Once Judge Stewart had keyed them on to how to interpret the mandate,
they saw how a strict interpretation "obsoleted" SCO's neglected claims also.
It is even worse for SCO. They appealed and neglected to argue it. Now the
Tenth Circuit comes up with a choppy decision that guarantees a peculiar trial
that they will get to review someday to answer questions they didn't resolve.
In a perfect world the parties and Judge Stewart could twitter and wait
for the Court of Appeal's clarification. The Tenth will take a fresh look some
day since the writer, McConnell, is gone and the other two, including Lucero,
who deferred to McConnell, are wondering what hath he wrought. They won't go
near it and won't be permitted to so do. This is only at Mambo in Limine #1.
This is going to have to be played out for a couple of years and then maybe we
can start to wait for the arbitration.
Novell wants the Judge to
reconsider on the 60(b) Motion except the judge has to suggest it himself. If
he would flex up and be reasonable, he could allow both the Slander of Title and
the SVRX License issues to proceed to trial. But what did the Court of appeals
mean with Slander of Title? Novell points out that you can reverse the decision
that Novell still had the copyrights and still hold that they didn't maliciously
Slander SCO's Title. It was just a good faith business dispute. Who's to know?
SCO didn't argue it; the Tenth didn't reverse.
Why does Novell want the
SVRX Lincenses in the trial? SCO doesn't have the money. It adds a devastating
dynamic. There is already a judgment that they owe for licenses. They are
accused of owing more. They did not "substantially perform" on the APA. That
same APA wouldn't convey copyrights that you had to forward royalties for just
for a 5% kickback. also SCO has to show "substantial performance" to demand
"specific performance" from Novell, i.e. convey the
copyrights.
Conversely without Slander of Title, Novell has no risk.
Without risk of answering for "malicious damages" Novell may fear far fewer
",000.00's" in the end if at all.
Can one tell his wife her "assumption
is obsolete?"
~webster~
[ Reply to This | # ]
|
|
Authored by: Anonymous on Tuesday, February 16 2010 @ 06:41 AM EST |
In all prior motions, as the standard operating procedure, with maybe the
bankruptcy court being the exception, it has been:
1. motion
2. reply to motion
3. response to reply to motion.
And no one has ever had to ask permission to file the reply or the response to
the reply. Is a motion in Limine such a different kind of motion that the 3 step
process doesn't apply?[ Reply to This | # ]
|
|
Authored by: Anonymous on Tuesday, February 16 2010 @ 03:05 PM EST |
Since this motion was denied, do they now argue this in court? [ Reply to This | # ]
|
|
Authored by: turambar386 on Tuesday, February 16 2010 @ 03:14 PM EST |
next up:
"This court, having duly considered upon which side its bread is buttered,
hereby DENIES Novell's Motions in Limine 1-19 and GRANTS The SCO Group's Motions
in Limine 1-5."
[ Reply to This | # ]
|
- Denied - Authored by: Anonymous on Tuesday, February 16 2010 @ 03:46 PM EST
- Denied - Authored by: turambar386 on Tuesday, February 16 2010 @ 03:59 PM EST
- Denied - Authored by: Steve Martin on Tuesday, February 16 2010 @ 05:26 PM EST
- Denied - Authored by: Anonymous on Tuesday, February 16 2010 @ 07:23 PM EST
- Filed - Authored by: Anonymous on Tuesday, February 16 2010 @ 08:37 PM EST
|
Authored by: Anonymous on Tuesday, February 16 2010 @ 03:25 PM EST |
It does look as if PJ is starting to experience some of the doubt other have
about the US Justice system.
Quite frankly, any average sized business could not afford the length of legal
proceedings we have seen in this case (how many years now), and the obvious bias
of the judge is clear even to PJ.
Is it perhaps this time that PJ admits the justice system is broken for anyone
but the rich?[ Reply to This | # ]
|
|
Authored by: Anonymous on Tuesday, February 16 2010 @ 03:34 PM EST |
It's not necessarily because Stewart is biased or because the fix is in. He's
just denying Novell the chance to point out that SCO's opposition is bunk. This
is not the same as saying that he's going to deny Novell's motion #1.
Instead, he may well be saying, "Yeah, I got it. Both of you shut up
already." If he really has got it, that's just fine.
MSS2[ Reply to This | # ]
|
|
Authored by: OmniGeek on Tuesday, February 16 2010 @ 03:58 PM EST |
At least it seems to be going that way for Novell. This basket of vipers is
DEFINITELY headed back to appeals court, no matter how, or how weirdly, it is
decided at trial.
---
My strength is as the strength of ten men, for I am wired to the eyeballs on
espresso.[ Reply to This | # ]
|
|
Authored by: Anonymous on Tuesday, February 16 2010 @ 04:05 PM EST |
http://www.unix.org/what_is_unix.html
The thing in this that's pretty amazing is that initially, Novell sold it's
ENTERPRISE BUSINESS to Santa Cruz. I.e., it was selling the ability to sell UNIX
product to customers. It was not selling the ability to say what UNIX is... that
went to Open Group...
I wonder why all of this is not more clear. I mean clearly, the copyrights were
about the right to print manuals and disks, that's what SCO needed for the
BUSINESS of selling UNIX to enterprise customers.
http://www.unix.org/what_is_unix/history_timeline.html
I don't think that Novell was selling the right to defend copyright or say what
UNIX is, I think they just saw the writing on the wall, that other systems were
making money, and they wouldn't be able to compete. Sure, give SCO a dying
business, and move on. Because anything based on BSD Lite would be just as
good as SCO branded stuff.
So if it's what SCO needed for the acquisition of the "business",
shouldn't it
be restricted to the"business" that Novell sold, i.e. selling product
to
customers, not extorting licenses from people using other products?
[ Reply to This | # ]
|
|
Authored by: Anonymous on Tuesday, February 16 2010 @ 04:30 PM EST |
There is at least a chance that Judge Stuart is simply trying to keep it simple
and streamlined, and intends to deny any optional motion practice: this would
severely cramp SCOG's style much more than Novell's. Until he rules on the
motion in Limine itself, we should not conclude that he will rule against
Novell. He may be saying, in effect, "I don't need any extra input from you
to figure this out, quit joggling my elbow." I will withhold judgment until
I see that order.[ Reply to This | # ]
|
|
Authored by: biochem_guy on Tuesday, February 16 2010 @ 05:29 PM EST |
Hello All:
Having read Groklaw for about two years now, I'm finally going to post
something.
It seems to me (IANAL) that Judge Stewart is setting Novell up nicely for an
appeal. It is possible that this is the way a judge might react when he/she
gets a remanded case like this, that is one where the appeal decision is so
clearly nonsense? In other words, could Judge Stewart be in essence saying
"hey, Tenth Circut, your ruling stinks, so I'm going to give you a chance
to clean up the mess you made by letting Novell appeal my decision"?
---
Chemistry is cool![ Reply to This | # ]
|
- Small correction - Authored by: Anonymous on Tuesday, February 16 2010 @ 06:50 PM EST
|
Authored by: Anonymous on Tuesday, February 16 2010 @ 05:37 PM EST |
Wonder if we could discuss the rules for a party to seek recusal. What are the
grounds, how often does it happen, etc. What does it take?
I was thinking, what happens if all SCO motions are granted, and all Novell
motions are denied. Nah, never could happen.
[ Reply to This | # ]
|
- A Stink - Authored by: Anonymous on Tuesday, February 16 2010 @ 06:34 PM EST
- Risky Business - Authored by: Anonymous on Wednesday, February 17 2010 @ 09:18 AM EST
|
Authored by: Kelledin on Tuesday, February 16 2010 @ 05:39 PM EST |
I'm a little puzzled by the denial order. It's as if Judge Stewart has it in
for Novell, but isn't too bright about his attack plans.
If he was
planning to deny Novell's motion in limine without creating appeal fodder, I
would think he would at least make a show of accepting Novell's reply and giving
it some thought. It could mean he's planning to grant Novell's motion in limine
anyways--in which case Novell's proposed reply would be superfluous--but in that
case I would expect him to grant the original motion almost in the same breath
as denying leave to reply.
Final possibility is, he's genuinely pressed
for time and genuinely hasn't decided which way to rule yet. He already appears
to be far less accepting of overweight briefs than Judge Kimball. He can
probably already see from SCO's filing (with proposed sur-reply) that this could
turn into a never-ending round of sur-sur-sur-sur-reply tennis if he doesn't
shut it down now.
--- <Lionel Hutz> I'll be defending...The SCO
Group!!!??? Even if I lose, I'll be famous! [ Reply to This | # ]
|
|
Authored by: dwiget001 on Tuesday, February 16 2010 @ 05:41 PM EST |
I do believe there is or supposed to be a hearing related to these motions,
IIRC.
As a result, O.K., so no reply, but will just have to be argued during the
hearing. Or am I missing something?[ Reply to This | # ]
|
|
Authored by: Anonymous on Tuesday, February 16 2010 @ 06:04 PM EST |
Wondering if Stewart thinks that he if gives Novell enough adverse rulings, it
will pressure Novell into a settlement. Save the taxpayers the cost of a
trial.
[ Reply to This | # ]
|
|
Authored by: Anonymous on Tuesday, February 16 2010 @ 06:51 PM EST |
This will make the response to motions in limine very interesting. I wonder
which way they will go. Maybe this shows a no nonsense approach rather than bias
but the results of the limines will clarify the picture.
Tufty
[ Reply to This | # ]
|
|
Authored by: DMF on Tuesday, February 16 2010 @ 06:59 PM EST |
You're acting as if Judge Stewart has repeatedly ruled against Novell and for
SCO. Yet as far as I can see, he has ruled against Novell on a substantial
issue only once, and for SCO never. (Or has he ruled on the blizzard and I
missed it?)
It's entirely possible that he has already made up his mind on the question and
doesn't want to open a door to endless filings.
Not to succumb to pessimism, please. (Though we have all visibly aged from when
this mess started).
[ Reply to This | # ]
|
|
Authored by: Anonymous on Tuesday, February 16 2010 @ 08:58 PM EST |
Wow, I have followed this "case" since 2003 and I think this path grows more
stupid everyday. When will SCO run out of money to fund this crap or, maybe,
perhaps, lawyers fund this pursuit so they can practice like the Olympics...
just amazing.[ Reply to This | # ]
|
|
Authored by: Anonymous on Tuesday, February 16 2010 @ 11:07 PM EST |
Judges aren't stupid and if a case gets too hot to handle then they'll find a
way out. Judge Stewart already has one, but hasn't taken it yet.
If he keeps his thumb on the scale then there will soon be solid grounds for
overturn. And no judge likes that. The big question is whether his perception
is good enough to see it coming, or not.
It's big, it's coming, and if he's standing in the way it will shred him.
If he has a clue he will recuse himself and assign to Judge Campbell who's
already on the hook for the IBM case.
But I'm not a Judge -- what do I know ??
I know when I see a shredder coming[ Reply to This | # ]
|
|
Authored by: achurch on Wednesday, February 17 2010 @ 04:48 AM EST |
Use this thread for Comes contributions. If you can, include HTML tags but
post in "Plain Old Text" mode so PJ can copy and paste directly to the exhibits
page. [ Reply to This | # ]
|
|
Authored by: Anonymous on Wednesday, February 17 2010 @ 09:21 AM EST |
Novell is fighting for money from a company that doesn't have any, among other
things.
Now, regarding slander of title.
It was decided in summary judgement. This judge has decided that it should be
decided in his court by a jury.
Will the jury get it, that Novell was operating in good faith?
Novell needing another appeal, will cost money. Novell, while not as bad off as
SCO, is still not rolling in the dough. The reason for my concern, at what
point does Novell find itself at a point where it can no longer aford to play
this stupid game?[ Reply to This | # ]
|
|
|
|
|