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SCO Files Motion to Stay Taxation of Costs. Again.
Thursday, July 08 2010 @ 08:35 PM EDT

SCO has filed a motion to stay taxation of costs until after the appeal they just filed notice that they plan to pursue. If you are getting that deja vu feeling, you're right. They did this the last time too. It's almost word for word the same. The last time, Novell opposed, and Judge Kimball denied SCO's motion, ruling that "the court does not believe that a party's speculation as to the possibility of the underlying judgment being reversed on appeal is a valid reason for delaying a determination of costs."

SCO then filed objections to Novell's list of costs. It got it whittled down slightly.

And here is SCO, submitting the same motion on the same grounds that the court said wasn't convincing the last time. Are they just going through the motions, so Novell has the annoyance and costs of having to file an opposition? One might begin to suspect. And no doubt Novell will oppose again. It wants to be paid. SCO even cites the same case [PDF] that didn't work for them last time, that Novell pointed out doesn't support their motion. What in the world is SCO thinking? Are they really trying?

I don't think SCO is giving this their all. Here's what never changes. SCO doesn't want to pay Novell anything if there is any way around it.

07/08/2010 - 882 - Transmission of Preliminary Record to USCA re 881 Notice of Appeal with partial docket attached. (jmr) (Entered: 07/08/2010)

07/08/2010 - 883 - MOTION to Stay Taxation of Costs filed by Plaintiff SCO Group. (Attachments: # 1 Appendix Unpublished Cases)(Hatch, Brent) (Entered: 07/08/2010)

Here it is as text:

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

Brent O. Hatch (5715)
[redacted email]
Mark F. James (5295)
[redacted email]
HATCH, JAMES & DODGE, PC
[address, phone, fax]

David Boies (admitted pro hac vice)
[redacted email]
Robert Silver (admitted pro hac vice)
[redacted email]
Edward Normand (admitted pro hac vice)
[redacted email]
BOIES SCHILLER & FLEXNER LLP
[address, phone, fax]

Stuart Singer (admitted pro hac vice)
[redacted email]
Sashi Bach Boruchow (admitted pro hac vice) [redacted email]
BOIES SCHILLER & FLEXNER LLP
[address, phone, fax]

Attorneys for Plaintiff, The SCO Group, Inc.

__________________

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

__________________

THE SCO GROUP, INC., by and through the
Chapter 11 Trustee in Bankruptcy, Edward N.
Cahn,

Plaintiff/Counterclaim-Defendant,

vs.

NOVELL, INC., a Delaware corporation,

Defendant/Counterclaim-Plaintiff.

________________

SCO’S MOTION TO STAY TAXATION
OF COSTS

Civil No. 2:04 CV-00139

Judge Ted Stewart

Plaintiff/Counterclaim-Defendant, The SCO Group, Inc. (“SCO”), respectfully moves this Court to stay taxation of costs pending resolution of SCO’s appeal of the Jury Verdict entered in this action on March 30, 2010, the Court’s evidentiary rulings at trial, the Findings of Fact and Conclusions of Law dated June 10, 2010, the Memorandum Decision and Order Denying SCO’s Renewed Motion for Judgment as a Matter of Law or, in the alternative, for a New Trial dated June 10, 2010, and the Final Judgment entered on June 10, 2010.

In its discretion, the District Court may stay the resolution of a bill of costs pending appeal. How v. City of Baxter Springs, Kas., Nos. 04-2256 & 57 JWL, 2006 WL 1128667, at *1 (D. Kan. Apr. 26, 2006) (citing authority). Such a stay is efficient, acknowledging that the grounds justifying the bill of costs may be reversed on appeal.

This Court entered Final Judgment in this case on June 10, 2010. On July 7, 2010, SCO filed its Notice of Appeal of that Judgment to the United States Court of Appeals for the Tenth Circuit. (Docket No. 881.) Novell does not dispute that SCO is taking an appeal nor that SCO may prevail, which would moot any award of costs from this Court, but instead has informed counsel for SCO that it seeks to supplement its claim in the Bankruptcy Court. Yet Novell cannot actually recover the costs pending the appeal, and if Novell were to prevail on appeal, this Court could just as easily resolve the bill of costs at that time.

In sum, absent any good reason for awarding costs at this time, and considering the pendency of SCO’s appeal, the Court should stay the resolution of Novell’s request until such time as the appeal has been resolved. In the event that such stay is not granted, SCO will file its objections to Novell’s Bill of Costs within ten days of the Court’s decision.

2

DATED this 8th day of July, 2010.

By: /s/ Brent O. Hatch
HATCH, JAMES & DODGE, P.C.
Brent O. Hatch Mark F. James

BOIES, SCHILLER & FLEXNER LLP
David Boies
Robert Silver
Stuart H. Singer
Edward Normand
Sashi Bach Boruchow

Counsel for The SCO Group, Inc.

3


  


SCO Files Motion to Stay Taxation of Costs. Again. | 441 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Sanctions?
Authored by: Anonymous on Thursday, July 08 2010 @ 08:45 PM EDT
Can Novell go to the judge and say "this is nuts judge, they
have already been told last time that none of this works, they
are wasting the court's time, etc, in contravention of thier
duties to use thier access to the legal system for good"?



---
Clocks
"Ita erat quando hic adveni."

[ Reply to This | # ]

Corrections Here if needed
Authored by: entre on Thursday, July 08 2010 @ 08:46 PM EDT
For PJ

[ Reply to This | # ]

SCO Files Motion to Stay Taxation of Costs. Again.
Authored by: Anonymous on Thursday, July 08 2010 @ 08:49 PM EDT
Novell should just file a one-page response that says "Since the motion is
the same as last time, so is our response, which is incorporated by reference.
So there."

[ Reply to This | # ]

SCO Files Motion to Stay Taxation of Costs. Again.
Authored by: webster on Thursday, July 08 2010 @ 08:55 PM EDT
.
It's no small sum for a bankrupt company --$315,000. They filed the same motion
and they will probably get the same opposition. They will have to put up the
cash or a surety. Someone has promised this or they wouldn't have bothered with
the appeal.

.

[ Reply to This | # ]

Summer Reruns
Authored by: sk43 on Thursday, July 08 2010 @ 08:58 PM EDT
Not a surprise. It happens every year about this time.

[ Reply to This | # ]

SCO Files Motion to Stay Taxation of Costs. Again.
Authored by: Anonymous on Thursday, July 08 2010 @ 09:11 PM EDT
<blockquote>Are they just going through the motions, so Novell has the
annoyance and costs of having to file an opposition? </blockquote>In other
words, are their lawyers acting like normal lawyers? Um, yep, I suppose
so.<blockquote>Here's what never changes. SCO doesn't want to pay Novell
anything if there is any way around it.
</blockquote>Who actually wants to have to pay their opponent money? Is
this a major revelation somehow? Was their any reason to expect things to
change?<br><br>Fortunately for Novell, if SCO lawyers copied and
pasted stuff that didn't work, Novell lawyers can easily copy and paste stuff
that did. That sounds like junior lawyer work to me.

[ Reply to This | # ]

SCO Files Motion to Stay Taxation of Costs. Again.
Authored by: WhiteFang on Thursday, July 08 2010 @ 10:26 PM EDT
I interpret this as an attempt on the part of the lawyers as part of their CYA
strategy.

i.e. Boise et al could have told their client anytime that the case was
hopeless. As I see it, the lawyers saw "k-ching!" signs, didn't do
their due diligence before litigation started and then accepted a boatload of
money with an agreement to take it all the way to the Supreme Court under the
assumption that, of course, IBM would settle and they'd all get rich.

The lawyers took the money and spent it. Now they're stuck. If they don't
continue this fight, then they may worry about leaving themselves open to
charges of malpractice.

I see no other obvious reason to continue with these appeals and filings. You
can speculate on all kinds of conspiracy scenarios. And, indeed, there are
certainly some elements supportting such. But I don't see any of that for what's
currently happening.

I suspect strongly it's pure CYA all the way around. The officers of the company
want to be able to plead that they really believed they had a case and the
lawyers don't want to admit that simple greed tossed due diligence out the
window. I'm certain they're all thinking about potential liability from all the
people they've smeared, defrauded and taken money from. Plus there are still the
other open court cases.

It really all is simple greed.

'Course. That's just my opinion.

---
"The so-called protection offered by DRM operates only at the
distribution end of the chain. It doesn't help artists eat better." Anonymous

[ Reply to This | # ]

Off Topic Thread
Authored by: artp on Thursday, July 08 2010 @ 11:30 PM EDT
Stay unfocused, now. You can do it! Wandering thoughts welcome.

---
Userfriendly on WGA server outage:
When you're chained to an oar you don't think you should go down when the galley
sinks ?

[ Reply to This | # ]

SCO Files Motion to Stay Taxation of Costs. Again.
Authored by: Anonymous on Thursday, July 08 2010 @ 11:31 PM EDT
My theory, request the US government to start covering their costs, since
it is not their fault that they have lost all their court cases.

[ Reply to This | # ]

News Picks Thread
Authored by: artp on Thursday, July 08 2010 @ 11:33 PM EDT
Please change the title block.
A reference to the article title and URL is appreciated, as the article will
scroll off the sidebar Real Soon Now [RSN] [TM].

---
Userfriendly on WGA server outage:
When you're chained to an oar you don't think you should go down when the galley
sinks ?

[ Reply to This | # ]

Comes Cometh Here
Authored by: artp on Thursday, July 08 2010 @ 11:37 PM EDT
Any article transcriptions from the Microsoft-Comes case go here. Check the "Comes v MS" Clicky above to see what is left to do.

---
Userfriendly on WGA server outage:
When you're chained to an oar you don't think you should go down when the galley sinks ?

[ Reply to This | # ]

SCO Files Motion to Stay Taxation of Costs. Again.
Authored by: Anonymous on Friday, July 09 2010 @ 01:33 AM EDT
Thank you for my daily fill of entertainment. With SCO quiet for a long time
after the ruling, I feared they might have seen some sense, and I would have to
go elsewhere for entertainment. Happily, not so. They're alive and well as ever,
as long as there remains a dime to spend of Novell's money. Party on!

... excuse my sarcasm. I apologize for not posting under "off topic".
Somehow it feels like the point about Novell might just be on topic after all. I
just can't contribute anything constructive here. This is a farce.

[ Reply to This | # ]

SCO Files Motion to Stay Taxation of Costs. Again.
Authored by: tknarr on Friday, July 09 2010 @ 03:42 AM EDT

I really think what SCO's executives want to ask the court is "Can we please stay hidden forever here in bankruptcy court where none of our victims are allowed to get at us? Pretty please?". Basically the little kid who's bit off more than he can chew, hiding behind the legs of the nearest convenient adult hoping the adult will protect him from the consequences of his actions. And of course the adult, as is so often the case, thinks that it's better to "protect" the kid rather than let him (and hopefully the others around) learn the hard way that actions have consequences and you'd better think about what they may be first.

Of course, my parents wouldn't've "protected" me if I'd pulled something like that, and I knew it. Hence I learned early on to think before I did something stupid. Darl &co appear to have learned that adults will shield them, and the court's proving them right.

[ Reply to This | # ]

Novell does not dispute that SCO is taking an appeal nor that SCO may prevail...
Authored by: Anonymous on Friday, July 09 2010 @ 08:07 AM EDT
"Novell does not dispute that SCO is taking an appeal nor that
SCO may prevail"


You bet they will dispute the latter. ;)

[ Reply to This | # ]

SCO Files Motion to Stay Taxation of Costs. Again.
Authored by: Anonymous on Friday, July 09 2010 @ 09:44 AM EDT
It is said that there are two sure things in life: death and
taxes. SCO seems to be able to continue avoiding the first.
Perhaps SCO feels that they will be able to avoid the second
one too.


[ Reply to This | # ]

If the object ..
Authored by: Anonymous on Friday, July 09 2010 @ 11:47 AM EDT
If the object of the game is not to pay Novell, and if Novell is seen as the holder of the UNIX holy-grail, then if you had a source of money to continue to take Novell to court, that would draw on the cash Novell has, that might move them to bankruptcy, or to sell the company (aren't they doing that). Then if you can find someone "clean" to buy them, that is your "friend" ... Well, SCOxSource lives. Not a troll, just a simple mind. -web-

[ Reply to This | # ]

Salt Lake Tribune Spin on SCO's Appeal
Authored by: Eeyore on Friday, July 09 2010 @ 01:21 PM EDT
In an article on the Salt Lake City Tribune web site, they state:
A three-judge appeals panel, in an August 2009 decision, wrote that “Amendment No. 2 was a writing signed by both parties evincing a clear intent to review or clarify the formal schedule of copyrights transferred by Novell to Santa Clara.” In addition, the panel noted “we are skeptical of Novell’s interpretation of the amendment.”
That isn't even CLOSE to what I remember the appeals court saying. Am I loosing my mind, or is this more Spin Doctoring.....

[ Reply to This | # ]

SCO has no real source of revenue.
Authored by: Anonymous on Saturday, July 10 2010 @ 04:07 AM EDT
"But this doesn't seem to matter."
The Register

[ Reply to This | # ]

Easy Money?
Authored by: sproggit on Saturday, July 10 2010 @ 05:58 AM EDT
When Darl McBride was dismissed (taking one of the two remaining
revenue-generating assets of SCO with him) there was a narrow chance that SCO
would get a sudden case of common sense and things would turn around.

That hasn't happened, and it's not easy to discern why.

The Court-appointed trustee, Judge Cahn, has no financial or other interest in
SCO. So what does he have to gain by perpetuating a legal strategy that seems
doomed to failure?

Could the clue have been in a statement that he gave to the Bankruptcy Court,
around the time that McBride was ejected? He made a statement to the effect that
with some personnel changes he was going to return SCO to profitability
(cashflow positive operations).

From an objective point of view, SCO's best options left are:-

1. Get bought out by IBM, Oracle, Novell, Microsoft, HP, or another major
player.

2. Make a clean break from the litigation mold, go back to being a software
company by shedding the current management and then returning focus to
delivering software.

3. File for Chapter 7, wind up and pay the creditors.


But here's the thing... While SCO is receiving maintenance payments for existing
clients, they continue to have money to burn. Cahn got rid of the expensive
salaries (McBride) so now that money goes in to SCO's coffers. Also, he has
Yarro and the remaining Execs over a barrel. If they turn round now and throw in
the litigation towel, he knows - with his legal experience - that questions will
be asked and they may well find themselves in another Court facing charges on
anything up to and including Lanham Act violations.

So what does that leave. Cahn and his firm - Blank Rome - left free to produce a
pointless, fruitless path of litigation. He knows it will go nowhere, just as
Yarro et al know the same thing. But, for as long as it lasts, Blank Rome can
keep on submitting monthly expenses claims.

He could have reasonably argued that, having got 95% of the way to the
Stewart-presided SCOvNovell case, it made sense to see it through, and just
about make his argument stick. Win or lose, he can also argue that he has to go
through with the IBM case as well - because of the counterclaims. And of course,
'with the best interests of the company at heart' he can allow them, in good
conscience, to file an appeal. Especially as (what an unexpected bonus) SCO
negotiated a fixed-fee deal with BSF up to and including any appeal... (So they
are not paying BSF fees, only expenses). All of these points add weight to the
argument that it "makes sense" to see the litigation through.

Meanwhile, Blank Rome are going to be submitting monthly expenses too.

The more I look at this, the more I wonder if this is just easy money -
legitimate, legal, and within the bounds of argument - for Blank Rome? Is this
just easy money?

[ Reply to This | # ]

"SCO even cites the same case"
Authored by: Steve Martin on Saturday, July 10 2010 @ 08:39 AM EDT

Well, I confess I'm surprised they tried this. The case they cited was one in which the prevailing party did not oppose the motion to stay taxation. That was not true in the previous motion before Judge Kimball, and I'd be very surprised if it was true this time either, so I can't imagine why TSG thought this citation would be relevant.

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

[ Reply to This | # ]

Kevin McBride's opinion: Novell will win the appeal
Authored by: Anonymous on Saturday, July 10 2010 @ 12:08 PM EDT
Kevin McBride has a periodic legal blog. He commented on Bilski last month, and yesterday (7/9/10) we wrote up a 9th Circuit Decision expanding Lanham act claims.

In response to a blog comment, McBride editorializes on the SCO v. Novell litigation. I find this enormously interesting because:
1) Attorneys almost never discuss the cases where they still have engagements. McBride relationship with the case is tentative, but I believe he still has a contigency percentage and an engagement letter.
2) McBride's comments describe the thinking of SCO as to the heart of the claims against IBM
3) McBride appears to believe the appeal is useless and Novell will win.

I reprint the comments below so the "cautious" don't have to navigate to the site. and I provide an Anonymouse link and plain text http reference.

Kevin McBride says:
July 9, 2010 at 10:51 pm

Andreas,

Actually, the Lanham Act provisions have nothing to do with copyrights–an entirely different legal standard applies.

You claim in your post that Linux does not violate any SCO copyrights. While UNIX ownership rights are still not finally settled (pending SCO’s appeal of Novell’s jury victory in March, 2010) it is certainly my view, after careful review of all these issues, that Linux DOES violate UNIX copyrights, particularly in ELF code and related tools (debugger code, etc.), header file code wherein implementation code (not just the header interface) have been copied verbatim; STREAMS code; etc. that the Linux community use without license. Then there is the entire question of the overall structure and sequence of Linux being almost an exact copy of UNIX.

There should be little question by anyone at this point that Linux uses a LOT of UNIX code. The Linux world thinks that use is permissive. SCO disagreed. That is the only real issue to be discussed here.

Will Novell win the current SCO appeal? Probably. Will Novell donate the UNIX copyrights to the Linux community if it wins the current appeal? Probably–although Novell’s Linux activities have been difficult to predict in recent years. But does Linux violate UNIX copyrights? Yes.

So, in my opinion, Linux users owe Novell–and particularly its excellent Morrison & Forrester legal team–a huge debt for coming to the rescue and keeping Linux a royalty-free product.

Source: Anonymouse Link to mcbride-law.com

Plaintext linkage: http://www.mcbride-law.com/2010/07/09/lanham-act-claims-extend-to-false-statemen ts-by-implication-and-innuendo/

[ Reply to This | # ]

Meaning of 'Wireless'
Authored by: argee on Saturday, July 10 2010 @ 02:50 PM EDT
You should be careful of the word 'wireless' as it has
several common meanings.

1. The system using dampened waves, like Marconi's spark
transmitters. These were common prior to 1915 or so,
and went completely out of use by 1932. Many people
refer to wireless as different than 'radio' which uses
continuous waves. Most radio hams will make this
distinction.

2. The system commonly known as Wi-Fi.

3. The system commonly known as "cell phones"

4. Any sort of communications not using wires, like
radio, microwave, wifi, cell, but not cable or wires.

5. Like 4 above, but not even allowing fiberoptic.

The biggie here is that most people reading the patent
heading will assume 'wireless' means 'not over wires',
whereas I am fairly certain that it means 'non tcp/ip over
'cell phone' networks.

All this talk about satellite links, ALOHA networks etc
are off point. tcp/ip is one networking protocol, but
cell systems have different protocols.

Otherwise they would sue D-link and Linksys for handling
email via your 'wireless router'. It does not mean that.


---
--
argee

[ Reply to This | # ]

A positive way of looking at this
Authored by: Anonymous on Saturday, July 10 2010 @ 03:17 PM EDT
These cases have been going on for quite some time now. When they started, the
SCO group was on the offensive. For the last couple of years the tables have
been turned and SCO has been on defense. They've lost big and cannot really do
much more damage. This petty motion really serves no purpose because they don't
have the money to pay Novell anyway.

It will be interesting to see what Yarro does with the company once he seizes
the assets.

[ Reply to This | # ]

Going through the motions
Authored by: Anonymous on Saturday, July 10 2010 @ 03:55 PM EDT
PJ:
Are they [SCO] just going through the motions...
Probably. When they find one they like, they resubmit it. It's more efficient that way.

[ Reply to This | # ]

FRCP Rule 11b sanction
Authored by: Anonymous on Saturday, July 10 2010 @ 03:57 PM EDT
Take a look at Federal Rules Of Civil Procedure (FRCP) Rule 11b and tell me why,
after the other Judge denied the same motion before, this isn't the proper place
for a sanction of BSF for continuing this nonsense.

[ Reply to This | # ]

Wonder why Novell didn't submit a bill to the bankruptcy court
Authored by: Zanthopsis on Saturday, July 10 2010 @ 09:07 PM EDT

Wonder why Novell included the $99,639.09 from the first trial in its most recent Bill of Costs filing and didn't submit a bill for the amount to the bankruptcy court? Since the Taxation of Costs for the first trial is settled (with no possibility of reversal), SCO is (supposedly) paying the Constructive Trust it owes Novell from the first trial, and the Taxation of Costs from the first trial is a post-bankruptcy expense, why not submit the bill to the bankruptcy court and compete with Blank Rome, Ocean Park, and other post- bankruptcy creditors for payment? Might provide a little more pressure on the bankruptcy proceedings for final resolution.

[ Reply to This | # ]

business method patents
Authored by: kawabago on Saturday, July 10 2010 @ 09:22 PM EDT
I think innovation is dead in american business, the patent system has killed
it. The patent is what's important now, not innovation. If you do innovate you
will be sued over dubious patents by an entity with no products of it's own. Now
the game is walling off as much as you can behind your own patents and hope
something changes in the future. It will. China, India and Brazil won't play
the entrenched patent game but they will copy and innovate on their own. In a
few years American business won't be able to compete on any footing so they will
call for protectionism. The slow spiral down into economic irrelevance will
pick up speed.

[ Reply to This | # ]

  • Natural outcome - Authored by: Anonymous on Sunday, July 11 2010 @ 10:31 AM EDT
SCO Files Motion to Stay Taxation of Costs. Again.
Authored by: Anonymous on Monday, July 12 2010 @ 09:21 AM EDT
SCO boardroom conversation: "If we can just make it (the court case) last
another er... when does the Church of Latter Day Saints say armageddon is
coming... 1000 years we won't have to pay Novell anything!"

[ Reply to This | # ]

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