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Novell asks for further ruling on Motion in Limine No. 4
Sunday, March 07 2010 @ 11:05 PM EST

Novell has asked the Court to rule further on their Motion in Limine No. 4 [PDF; text]. The Court had previously issued a ruling [PDF] granting that Motion, but Novell now asks for further ruling, stating that "[t]he Court addressed this issue solely in the context of SCOís covenant of good faith claim. However, Novellís motion covered all of SCOís claims, including slander of title. The Courtís prior ruling did not expressly address other claims, so Novell requests the Court to rule on the issue that was left open by its prior order."

Here's the filing:

03/07/2010 - 775 - Fourth MOTION in Limine Novell's Motion for Further Ruling on Motion in Limine No. 4 to Preclude SCO From Contesting that Novell Had An Objectively Reasonable, Good Faith Basis for Its Statements Regarding Copyright Ownership filed by Counter Claimant Novell, Inc., Defendant Novell, Inc.. (Brennan, Sterling) (Entered: 03/07/2010)

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

NOVELL'S MOTION FOR FURTHER
RULING ON MOTION IN LIMINE
NO. 4 TO PRECLUDE SCO FROM
CONTESTING THAT NOVELL HAD
AN OBJECTIVELY REASONABLE,
GOOD FAITH BASIS FOR ITS
STATEMENTS REGARDING
COPYRIGHT OWNERSHIP

Judge Ted Stewart

(1)

I. INTRODUCTION

Novell requests a further ruling on Novell's Motion In Limine No. 4 because the Court's prior order was limited only to a portion of that motion. Novell's motion requested that the Court "preclude SCO from presenting any evidence or argument that Novell did not have an objectively reasonable, good faith basis for its statements regarding copyright ownership." (Mot. at 3, Dkt No. 631.) The Court addressed this issue solely in the context of SCO's covenant of good faith claim. However, Novell's motion covered all of SCO's claims, including slander of title. The Court's prior ruling did not expressly address other claims, so Novell requests the Court to rule on the issue that was left open by its prior order.

II. PROCEDURAL BACKGROUND

SCO mischaracterized Novell's Motion In Limine No. 4 as arguing that "the law of the case doctrine precludes litigation of SCO's claims for unfair competition and for breach of the implied duty of good faith and fair dealing insofar as those claims relate to Novell's claims of copyright ownership." (Opp'n at 1, Dkt. No. 684.) In fact, Novell did not limit its motion to specific claims. On the contrary, Novell asserted that the law of the case "precludes relitigation of issues decided for one claim that are relevant to a different claim." (Mot. at 2-3 (emphasis added, Dkt No. 631).) Novell requested the Court to bar SCO from "presenting any evidence or argument that Novell did not have an objectively reasonable, good faith basis for its statements regarding copyright ownership," without linking this bar to a specific claim. (Id. at 3.)

This Court granted Novell's Motion In Limine No. 4, but only after limiting the motion to SCO's covenant of good faith claim. (Order Granting Novell's Motion In Limine No. 4 at 2, Dkt. No. 724.) The Court stated that Novell "essentially argues that the law of the case and the mandate rule precludes litigation of the copyright ownership portions of Plaintiff's claims for unfair competition and for breach of the implied duty of good faith and fair dealing." (Id. at 1.)

1 (2)

However, as noted above, Novell generally sought to preclude SCO from contesting that Novell had a reasonable basis for its statements, without limiting this preclusion to a specific claim.

Novell pointed out in its Trial Brief that the Court's ruling on Novell's Motion in Limine No. 4 did not address Novell's request that "SCO be precluded from presenting evidence or argument that Novell lacked an objectively reasonable, good faith basis for its statements regarding copyright ownership." (Dkt. No. 738 at 6 n.12.) Novell explained that it would submit further briefing on this issue in connection with its Request for Judicial Notice. (Id.)

Novell's Judicial Notice brief asserted that the Court should take judicial notice of the prior findings regarding Novell's reasonable, good faith basis for its statements. (Judicial Notice Brief at 4-7, Dkt. No. 749.) Novell contended that (1) judicial notice may be taken of prior findings in a case; and (2) the doctrines of law of the case and issue preclusion bar a party from relitigating an issue decided for one claim in the context of a different claim. (Id. at 1-3, 5-6.)

On March 5, 2010, the Court denied Novell's Request for Judicial Notice on the ground that taking judicial notice of "factual findings" made in the context of a different claim "would be misleading and confusing if read to the jury." (Order at 3, Dkt. No. 763.) The Court did not expressly address Novell's second argument based on the law of the case. (See id.)

III. ARGUMENT

Judge Kimball's ruling that SCO failed to present evidence that Novell lacked an objectively reasonable, good faith basis for its statements is law of the case that bars SCO from relitigating this ruling in connection with any claim. (See Novell's Motion in Limine No. 4 at 2-3, Dkt. No. 631; Novell's Judicial Notice Brief at 2-7, Dkt. No. 749.) The Tenth Circuit has held that a party is barred from "relitigating an issue once it has suffered an adverse determination on the issue, even if the issue arises when the party is pursuing or defending against a different claim." Moss v. Kopp, 559 F.3d 1155, 1161 (10th Cir. 2009) (emphasis added). See also Ag Servs. of Am., Inc. v. Nielsen, 231 F.3d 726, 732-33 (10th Cir. 2000) ("once

2 (3)

a court has decided an issue of fact or law necessary to its judgment, that decision may preclude relitigation of the issue in a suit on a different cause of action") (emphasis added), reh'g denied 235 F.3d 559 (10th Cir. 2000); St. Paul Fire & Marine Ins. Co. v. Heath Fielding Ins. Broking Ltd., No. 91 Civ. 0748, 1995 U.S. Dist. LEXIS 19847, at *30-35 (S.D.N.Y. Dec. 30, 1995) (dismissal of negligence claim is law of the case that bars negligent misrepresentation claim).

Further, SCO did not appeal the adverse rulings on its unfair competition and covenant of good faith claims, and the Tenth Circuit did not reverse those rulings. (See Order Granting Novell's Motion In Limine No. 4 at 1-2, 4, Dkt No. 724.) Indeed, the Tenth Circuit held that Novell had "powerful arguments" on copyright ownership, and that this issue presented "ambiguities" that "could legitimately be resolved in favor of either party." The SCO Group, Inc. v. Novell, Inc., 578 F.3d 1201, 1215 (10th Cir. 2009). Therefore, controlling Tenth Circuit precedent bars SCO from relitigating those rulings in the context of any claim, including slander of title. See Moss, 559 F.3d at 1161; Ag Servs., 231 F.3d at 732-33.

SCO asserts that good faith is an issue for the jury. (SCO's Opp'n to Judicial Notice at 1, Dkt. No. 758.) However, Judge Kimball held as a matter of law on summary judgment that "there is no evidence to demonstrate that Novell's position was contrary to its own understanding of the contractual language or objectively unreasonable given the history of the dispute between the parties." (Order at 65, Dkt. No. 377).) Judge Kimball thus rejected SCO's argument that "the evidence shows that Novell has asserted an interpretation of the APA and related documents contrary to its own understanding." (See SCO's Summary Judgment Briefs, Dkt No. 299 at 18-19; Dkt No. 259 at 2-3, 17-18, 28-30; Dkt No. 306 at 2, 62-74).) On appeal, SCO could have argued that SCO had presented sufficient evidence to raise a triable issue as to whether Novell had a reasonable, good faith basis for its statements. However, SCO failed to do so. Accordingly, Novell requests an order barring SCO from presenting evidence or argument on any claim at trial that Novell lacked an objectively reasonable, good faith basis for its statements.

3 (4)

DATED: March 7, 2010

Respectfully submitted

By: /s/ Sterling A. Brennan
WORKMAN NYDEGGER
Sterling A. Brennan
David R. Wright
Kirk R. Harris
Cara J. Baldwin

MORRISON & FOERSTER LLP
Michael A. Jacobs, pro hac vice
Eric M. Acker, pro hac vice
Grant L. Kim, pro hac vice
Daniel P. Muino, pro hac vice

Attorneys for Defendant and Counterclaim-Plaintiff Novell, Inc.

4 (5)


  


Novell asks for further ruling on Motion in Limine No. 4 | 147 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections here please
Authored by: ailuromancy on Sunday, March 07 2010 @ 11:35 PM EST
Proofread carefully to see if you any words out.

[ Reply to This | # ]

News Picks Thread
Authored by: ailuromancy on Sunday, March 07 2010 @ 11:39 PM EST

Please put the News Pick title in the title box so people can find what has already been said about an article.

-- Never use the words 'Evil Diabolical Plan' on your resume.

[ Reply to This | # ]

Off topic here
Authored by: Tufty on Sunday, March 07 2010 @ 11:39 PM EST
Orf tropic too


---
Linux powered squirrel.

[ Reply to This | # ]

Slander of Title - Defense in Depth
Authored by: ChrisP on Monday, March 08 2010 @ 12:22 AM EST
So Novell are still working on winning against SCO's Slander of Title claim.
Defense in depth.

If Judge Stewart grants this (and I think he should) will SCO have any case left
to put to the jury on it?

---
SCO^WM$^WIBM^W, oh bother, no-one paid me to say this.

[ Reply to This | # ]

Novell asks for further ruling on Motion in Limine No. 4
Authored by: Leg on Monday, March 08 2010 @ 12:59 AM EST
Are we all holding our breaths, or what? I am not a lawyer, but here's how it
looks to me:

In SCO vs. Novell, SCO has not made a claim that Linux infringes on UNIX, and in
SCO vs. IBM those claims were well refuted.

So now, the SCO cases boil down to whether or not they can win awards for
damages on issues that are largely unrelated to the Open Source codebase. They
are:

1) Can SCO prove that IBM violated their contract for a joint venture in a UNIX
implementation?
2) Can SCO convince a jury that Novell's was malicious when it announced that it
believed it still owned the UNIX copyrights?

Novell's request for a ruling here seems quite just, indeed it would seem likely
that any fail to rule in Novell's favor here would lead to a successful appeal
of any slander of title ruling against Novell.

But the Yarrow money probably isn't enough to keep SCO afloat through a period
of appeals. Without big money from Novell, SCO cannot continue to exist long
enough to face arbitration followed by IBM.

[ Reply to This | # ]

Wow that is a very powerful argument - lets see how the judge fudges this one.
Authored by: SilverWave on Monday, March 08 2010 @ 06:33 AM EST
:)

Or is there a real hope of fairness in this case?

/the eternal optimist

---
RMS: The 4 Freedoms
0 run the program for any purpose
1 study the source code and change it
2 make copies and distribute them
3 publish modified versions

[ Reply to This | # ]

I love Novell's style!
Authored by: Anonymous on Monday, March 08 2010 @ 09:45 AM EST
If I understand what is happening here, I really love Novell's style.

To me, it seems like they are letting it be known that they are not going to be
pushed around and walked on unfairly. They are not going to let the Judge side
step real issues that are detrimental to SCO's position.

Also, it seems that if the Judge is not going to be balanced, they will make
sure that there is an excellent paper trail all ready for appeal.

Further, since Cahn is determined to divert all of the creditors money to line
the pockets of Blank Rome and others, Novell should make sure that as much of
Yarro's and his cronyies' money is wasted tilting at windmills.

Three birds with one stone. I love it. Keep it up Novell. Win baby, win! No
quarter!

[ Reply to This | # ]

Effect of last week's decisions on SCOX stock price
Authored by: Anonymous on Monday, March 08 2010 @ 10:19 AM EST

Between them, judges Stewart and Gross boosted SCO's stock price. For most of the last 3 months the price has been fluctuating around 40 cents/share, this morning it went over 80 cents.

This is still a "lottery-ticket price", i.e. the market doesn't think there's real value in SCO, just a small chance of success in the litigation lottery. But investors evidently think that that "small chance" is bigger than it was a week ago (though still small).

[ Reply to This | # ]

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