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Court Grants SCO's Oral Motion for Judgment on Novell's Slander of Title Claim
Friday, March 26 2010 @ 01:44 PM EDT

Yesterday, SCO made an oral motion after Novell rested, asking for judgment as a matter of law on Novell's slander of title counterclaim, and Stewart has ruled that Novell did not carry the burden of proof with respect to special damages, except for copyright registration costs, which he doesn't think can be viewed as specials, so Novell's slander of title claim fails as a matter of law:
As a result, Defendant has failed to present any evidence concerning any special damages that it has suffered as a result of Plaintiff’s alleged slanderous statements. Without such evidence, Defendant may not prevail on its slander of title action against Plaintiff. Therefore, the Court will grant Plaintiff’s Motion for Judgment as a Matter of Law on Defendant’s slander of title claim.
I agree, from the reports we've seen anyway, that they didn't present evidence, and that would be deliberate on their part, a choice not to bother, I would assume. Given that SCO hasn't paid Novell the millions they already owe, fighting for the costs of copyright registrations or whatever probably didn't seem worth going after. Special damages have to be proven as actual money or real deals provably lost, not just coulda woulda shoulda imaginings, and Novell would have had to take time from other things to go after that.

SCO also filed a Rule 50(a) motion regarding copyright ownership, but for some reason, that motion has been mooted. I don't understand why yet, actually, since the order doesn't explain, so we'll have to wait for more information. I have zero doubt that there will be more on this in due time. I think it means SCO's copyright issue has to go to trial. And the judge denied Novell's similar motion for judgment as a matter of law on SCO's slander of title claim, saying that he won't consider it since it would require him to weigh credibility, and that's not his job. It's up to the jury. Interestingly, he did say that Novell had demonstrated evidence of SCO's malice, constitutional malice, but proving special damages is a required element to sustain a slander of title claim. It's like a home run. It doesn't count unless you touch all the bases and home plate. Three out of four necessary elements of a claim also isn't enough.

Here are the filings:

03/26/2010 - 835 - MOTION for Judgment as a Matter of Law SCO'S RULE 50(a) MOTION AT THE CLOSE OF ALL EVIDENCE filed by Plaintiff SCO Group. (Hatch, Brent) (Entered: 03/26/2010)

03/26/2010 - 836 - MEMORANDUM in Support re 835 MOTION for Judgment as a Matter of Law SCO'S RULE 50(a) MOTION AT THE CLOSE OF ALL EVIDENCE filed by Plaintiff SCO Group. (Hatch, Brent) (Entered: 03/26/2010)

03/26/2010 - 838 - MEMORANDUM DECISION denying 833 Motion for Judgment as a Matter of Law. Signed by Judge Ted Stewart on 03/26/2010. (asp) (Entered: 03/26/2010)

03/26/2010 - 839 - MEMORANDUM DECISION granting Plaintiff's oral Motion for Judgment as a Matter of Law ; finding as moot 835 Motion for Judgment as a Matter of Law. Signed by Judge Ted Stewart on 03/26/2010. (asp) (Entered: 03/26/2010)

Specifically, SCO's motion that got mooted said this:
Plaintiff, The SCO Group, Inc. (“SCO”), respectfully hereby moves the Court at the close of all the evidence under Rule 50(a) for judgment as a matter of law in favor of SCO because defendant, Novell, Inc. (“Novell”) has failed to introduce legally sufficient evidence upon which a reasonable jury could find that SCO did not acquire ownership of the UNIX and UnixWare copyrights under the amended Asset Purchase Agreement (“APA”). Specifically, SCO has shown that (1) SCO acquired all “copyrights and trademarks owned by Novell as of the date of the Agreement required for SCO to exercise its rights with respect to the acquisition of UNIX and UnixWare technologies”; and (2) SCO requires the UNIX and UnixWare copyrights to exercise its rights with respect to the UNIX business. Novell has not introduced legally sufficient evidence upon which a reasonable jury could that SCO does not require the UNIX and UnixWare copyrights to exercise its rights with respect to the UNIX business.
Stewart makes one brief reference to this in his ruling cited above, specifically footnote 1:
Plaintiff has also filed a Rule 50(a) Motion at the Close of all Evidence. As a result of this Order, the Court need not address the arguments made in that Motion and that Motion is now moot.
Now, on the special damages, I don't think Novell will be losing sleep, if their only evidence of special damages was the costs of registering the copyrights. So, as best I can make out, that is the only result, with everything else going to the jury. But I confess it makes no sense to me this way, so if it does to you, apply for law school right away.

It's so strange watching this case unfold over the years. You may recall that back in the earlier iteration of the slander of title issue, at the summary judgment phase, SCO fervently argued that legal fees and costs are special damages. Here's their Opposition [PDF] and Novell's Memorandum of Law in support of its motion, which SCO was responding to. Novell's assertion was, in 2007, that SCO had failed to present evidence of special damages:

D. SCO Has Not Produced Evidence to Support Special Damages for Researching Copyright Registrations or for Correcting Public Statements

SCO's complaint further alleges that SCO has suffered damages including "attorneys' fees incurred in researching and reviewing Novell's improper copyright registrations, [and] attempting to mitigate damages by correcting and responding to Novell's false representations made to third parties." (SAC at ¶ 94.) Novell does not dispute that these amounts, if proven, could constitute special damages to support SCO's slander of title claim.

However, document discovery is now closed and SCO has not adduced a shred of evidence to support a realized or liquidated amount of such damages. SCO bore the burden of providing evidence to support this damage claim as well, and it has failed to meet that burden. First Sec. Bank, 780 P.2d at 1258 (holding that slander of title claim where plaintiff failed to bring forth enough evidence to "sufficiently establish[]" special damages resulting from defendant's alleged acts)....

Novell is entitled to summary judgment for SCO's slander of title claim on the grounds that SCO cannot establish the special damages that are a requirement of the claim. At a minimum, if this claim is permitted to proceed to trial, SCO should be limited to the only special damages that can be realized or liquidated based on the facts of this dispute: the costs incurred in researching copyright registration and attempting to respond to Novell's representation....

SCO cannot show that it has suffered special damages and Novell is entitled to summary judgment on SCO's claim for slander of title.

That was Novell's argument then, and it's in essence the same thing happening to Novell, roughly speaking, but with the positions reversed, and what's good for the goose is good for the gander. Special damages are supposed to be actual, provable losses, based on a before and after evaluation, Michael Jacobs argued at the hearing on May 31, 2007 on Novell's motion for summary judgment. The eventual decision was that the issue was mooted by Judge Kimball's ruling in August of 2007 that Novell did not transfer the copyrights, which is why it's back on the table now, after the copyright ruling was appealed by SCO and remanded back for a jury trial.

Here's Novell's answer to SCO's opposition, and here's the transcript of the hearing on the issue before Judge Dale Kimball, if you want the complete picture.


  


Court Grants SCO's Oral Motion for Judgment on Novell's Slander of Title Claim | 177 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections Here
Authored by: ralevin on Friday, March 26 2010 @ 04:35 PM EDT
While we all await reports on the closing statements.

[ Reply to This | # ]

New Salt Lake Tribune Article
Authored by: RFD on Friday, March 26 2010 @ 04:38 PM EDT
According to a new Salt Lake Tribune article:
After a three-week trial and closing arguments from each side, the jury retired to deliberate at 12:15 p.m.

---
Eschew obfuscation assiduously.

[ Reply to This | # ]

"But I confess it makes no sense to me this way"
Authored by: Yossarian on Friday, March 26 2010 @ 04:38 PM EDT
It makes sense to me.
We watch a "sold game".

The judge will do what ever he legally can to help SCO.

[ Reply to This | # ]

Off topic here
Authored by: atheist on Friday, March 26 2010 @ 04:39 PM EDT
I await the determination of my own Labour Court case
Will post link to determination when it's posted to www.labourcourt.ie

[ Reply to This | # ]

Court Grants SCO's Oral Motion for Judgment on Novell's Slander of Title Claim
Authored by: amster69 on Friday, March 26 2010 @ 04:41 PM EDT
So that's it then. After 3 weeks of legal wrangling and decisions - all we can
do is wait and still wonder about whether the fix is in or not.

This is just so much more exciting than Perry Mason ever was!

Bob

[ Reply to This | # ]

  • Or - Authored by: athelas on Friday, March 26 2010 @ 04:54 PM EDT
    • Or - Authored by: rsteinmetz70112 on Friday, March 26 2010 @ 05:20 PM EDT
    • Or - Authored by: argel on Friday, March 26 2010 @ 05:40 PM EDT
Court Grants SCO's Oral Motion for Judgment on Novell's Slander of Title Claim
Authored by: Anonymous on Friday, March 26 2010 @ 04:45 PM EDT
"Interestingly, he did say that Novell had demonstrated evidence of SCO's
malice, constitutional malice"

Is it possible they may pull something out of the hat with that somewhere along
the line?

[ Reply to This | # ]

Court Grants SCO's Oral Motion for Judgment on Novell's Slander of Title Claim
Authored by: Anonymous on Friday, March 26 2010 @ 04:50 PM EDT
I wonder: Is it possible, in this flurry of motions, Judge Stewart assumed that
835 was simply the written equivalent of the Oral motion, thus mooted by
granting the oral? That is, he thought 835/6 were Sco's analogs of Novell's
833/834 instead of a grab for the whole enchilada.

Then 839 would actually make overall sense.

[ Reply to This | # ]

Off Topic
Authored by: jsoulejr on Friday, March 26 2010 @ 04:53 PM EDT
just cause

[ Reply to This | # ]

SCO's going through the Motions?
Authored by: rsteinmetz70112 on Friday, March 26 2010 @ 04:53 PM EDT
SCO's motions don't seem to have the same energy as Novell's. Perhaps they're
tired, perhaps they're just creating a record for appeal.

---
Rsteinmetz - IANAL therefore my opinions are illegal.

"I could be wrong now, but I don't think so."
Randy Newman - The Title Theme from Monk

[ Reply to This | # ]

"The Court finds that Defendant has presented sufficient evidence of constitutional malice"
Authored by: Anonymous on Friday, March 26 2010 @ 04:53 PM EDT
Things seem to be appearing rapidly on Groklaw now, but the news we are all
hoping to hear does not necessarily follow in rapid succession.

I speculate that the quote "The Court finds that Defendant has presented
sufficient evidence of constitutional malice" (footnote 7) may mean that
the court found that SCO knowingly or recklessly gave false information
regarding copyright ownership. Seemingly, that would require a previous
decision that the copyrights did not transfer with the APA.

Tragically, with the issue of SCO owing damages for slander of title against
Novell, this would mean that there are no more issues for the jury to handle
prior to their weekend in Las Vegas.

Of course, the court may have some other surprise for us, rather than this
one...

[ Reply to This | # ]

Your next stop? The Twilight Zone...
Authored by: Anonymous on Friday, March 26 2010 @ 04:53 PM EDT

I almost could not believe my eyes when I read this:

Novell has not introduced legally sufficient evidence upon which a reasonable jury could that SCO does not require the UNIX and UnixWare copyrights to exercise its rights with respect to the UNIX business.

How can SCO write such an outrageous statement with a straight face? Did I just fall into the Twilight Zone?

NNP

[ Reply to This | # ]

news picks
Authored by: jsoulejr on Friday, March 26 2010 @ 04:54 PM EDT
there

[ Reply to This | # ]

"No decision today" is bad news me thinks
Authored by: Anonymous on Friday, March 26 2010 @ 04:57 PM EDT
Considering the lack of SCO's evidence, the decision should be a no-brainer.
So, if the jury feels the need to deliberate more than 1 day it means SCO might
have succeeded creating sufficient confusion and/or playing the "poor small
company" card...

[ Reply to This | # ]

Court Grants SCO's Oral Motion for Judgment on Novell's Slander of Title Claim
Authored by: Anonymous on Friday, March 26 2010 @ 04:59 PM EDT
Could it be that Stewart is regarding the case as a slander of title suit and
will not render a judgement on the copyright ownership?

That is : since the SCO 50b motion is granted in respect to Novell not proving
damages, then there is no reason to rule on the copyright transfer? does not
make too much sense.

[ Reply to This | # ]

Special Damages?
Authored by: rsteinmetz70112 on Friday, March 26 2010 @ 05:29 PM EDT
Don't legal fees defending title to property count as Special Damages?

Seems Novell has plenty of legal fees in this case and could have simply slipped
in a couple of questions about how much they were in their case without too much
trouble.


---
Rsteinmetz - IANAL therefore my opinions are illegal.

"I could be wrong now, but I don't think so."
Randy Newman - The Title Theme from Monk

[ Reply to This | # ]

Major tactical impact--Ouch
Authored by: arch_dude on Friday, March 26 2010 @ 05:37 PM EDT
Speculation: Novell needed its slander of title claim against SCOG, not because
they expected to actually get any money, but because they wanted the jury to see
a symmetrical cases and weigh the trwo slander-of-title claims against each
other. This was sure to be a bit part to the planned summation. Unfortunately,
this changed at teh last minute, so Novell probably had to scramble to re-couch
thier closing arguments on the fly, scrapping a carefully-constructed one-hour
speech and building a new one in less than 24 hours. That had to hurt.

Of course it all done now, so my speculation is really worthless. We must wait
until our reporters file their stories.

[ Reply to This | # ]

constitutional malice - where did the judge speak?
Authored by: PolR on Friday, March 26 2010 @ 05:41 PM EDT
Interestingly, he did say that Novell had demonstrated evidence of SCO's malice, constitutional malice
Where did he say that? It is in a footnote of order 839 where he writes:
Court finds that Defendant has presented sufficient evidence of constitutional malice to survive Plaintiff’s Rule 50 Motion.
This doesn't mean he ruled that SCO was malicious. It means there is enough evidence to send Novell's argument to the jury. But since Novell didn't argue special damages SCO wins the motion anyway.

[ Reply to This | # ]

Do we know what happend to SCO's motion to limit Novell's closing arguments?
Authored by: argel on Friday, March 26 2010 @ 05:47 PM EDT
The previous article mentioned that "The SCO Group wants to limit Novell's
closing arguments". Do we know what the outcome of that motion was?

[ Reply to This | # ]

Mooted motion
Authored by: PolR on Friday, March 26 2010 @ 05:47 PM EDT
The judge says this in a footnote
Plaintiff has also filed a Rule 50(a) Motion at the Close of all Evidence. As a result of this Order, the Court need not address the arguments made in that Motion and that Motion is now moot.
He seems to think copyright transfers are important only as a pre-requisite to slander of title claims. But it doesn't make sense. SCO's claim is still on the table.

[ Reply to This | # ]

...(I think you could have proved) constitutional malice...
Authored by: Anonymous on Friday, March 26 2010 @ 05:55 PM EDT


I loved that part. I cracked a smile.
He didn't have to make any such comment.

[ Reply to This | # ]

Quick Report on Friday PLEASE
Authored by: Anonymous on Friday, March 26 2010 @ 05:57 PM EDT
The suspense is killing me. May we please have a quick summary of today's events?

[ Reply to This | # ]

How will we find out verdict is in and result?
Authored by: Anonymous on Friday, March 26 2010 @ 06:10 PM EDT
I doubt we've got anyone hanging around the courtroom, at least not past today
since nobody can be sure just when a verdict will be reached.

So what happens when the jury has reached a decision? How will we (i.e. Groklaw
followers) get the word and the actual outcome?

How much time before the jury announcement of having reached a decision will
there be? I doubt this would be like TV courts where all the players are right
at hand nearby and rush into the courtroom.

Will Groklaw have anyone able to be, or get there, in time?

Will there be any final statement by the Judge, or just, "Thanks to all,
see ya around."?

If either side appeals, won't that get announced by the party appealing?

So what's the mechanics of the process from now?

[ Reply to This | # ]

Court Grants SCO's Oral Motion for Judgment on Novell's Slander of Title Claim
Authored by: bastiaan on Friday, March 26 2010 @ 06:10 PM EDT
Novell has not introduced legally sufficient evidence upon which a reasonable jury could that SCO does not require the UNIX and UnixWare copyrights to exercise its rights with respect to the UNIX business.
What?

Well, I have to agree with SCO in part here, because it was SCO, and not Novell, who introduced much of the evidence that supports that SCO does not require the UNIX copyrights to exercise its rights with respect to the UNIX business. In particular, I believe it was SCO who called McBride, who testified to that effect.

Otherwise, this motion is just a bunch of lies.

[ Reply to This | # ]

Thank you Judge Kimball!
Authored by: Anonymous on Friday, March 26 2010 @ 06:12 PM EDT
It becomes ever more clear why we should all appreciate Judge Dale Kimball. His
obvious understanding of not only the law but the technical and
"human" issues in these cases yielded a much clearer and focused end
product.

Regardless of the Jury's decisions here, it is clear that Judge Kimball was able
to wade through the rhetoric, antics, and tantrums we have all come to know and
despise, and get to the heart, and truth, of the matters before him.

Thank you Judge Kimball!

[ Reply to This | # ]

Remember the jury has to be unanimous.
Authored by: webster on Friday, March 26 2010 @ 06:19 PM EDT
.

If they are split, then there will be no quick decision. The jury will have to
work toward consensus. There may be votes for SCO, Novell and "Don't
know." That is three factions.

All a party needs is one tough nut in their camp or the "Don't know"
camp and they can't lose.

The exciting part will be when the notes start coming. Let's hope there is a
Groklaw reporter on stand-by.

~webster~

.

[ Reply to This | # ]

4 Utah homies on the 10th Circuit
Authored by: Anonymous on Friday, March 26 2010 @ 06:22 PM EDT
If I read the 10th Circuit's web page right, there are four Utah judges on the
court of appeals. Only one is "active," and three are
"senior." When the appeals are filed, and you find they've dipped into
the "senior judge" pool to get three Utah judges for the case, you can
start wondering if the fix is really in.

[ Reply to This | # ]

Stock price didn't recover today
Authored by: Anonymous on Friday, March 26 2010 @ 06:33 PM EDT
After the big selloff yesterday, it only went down one cent today. Well, I guess
you could say it held its own. But it also means there was no bargain hunting to
push the price back up. Which may mean it's not a bargain right now. Wonder
why.

[ Reply to This | # ]

Court Grants SCO's Oral Motion for Judgment on Novell's Slander of Title Claim
Authored by: Glenn on Friday, March 26 2010 @ 06:36 PM EDT
I may have missed it in all of the reports, but did Novell bring up the
copyright law section which requires a clear, unambiguous transfer document for
copyrights? That would have been something that I thought would have been
hammered home on several occasions when talking about Amendment 2.

Glenn

[ Reply to This | # ]

Well this is interesting :-)
Authored by: SilverWave on Friday, March 26 2010 @ 07:09 PM EDT
It sure does show how things are in the real world.

---
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 | # ]

Court Grants SCO's Oral Motion for Judgment on Novell's Slander of Title Claim
Authored by: Anonymous on Friday, March 26 2010 @ 07:22 PM EDT
Utah or California law? Judge Stewart says that Novell fails to prove special damages under Utah's special damages rule. See last paragraph of discussion in 839 Which parts of this case are under Utah laws and which, if any, are under California laws?

[ Reply to This | # ]

Thank you (n/t)
Authored by: Anonymous on Saturday, March 27 2010 @ 08:46 PM EDT
n/t

[ Reply to This | # ]

Did the Judge Read 835
Authored by: Anonymous on Sunday, March 28 2010 @ 08:08 PM EDT
Footnote 1 in 839 only makes sense (to me) if 835 was on the same issue as the
oral motion. Could this be a submarine motion? When the judge notices the error,
he grants the motion without Novell responding.

[ Reply to This | # ]

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