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SCO Ordered to File Objections to Novell's Bill of Costs. Novell Files Motion to Dismiss with SCOTUS - Updated 2Xs
Tuesday, August 17 2010 @ 09:15 PM EDT

The chickens have flown home and are circling SCO, looking for a place to roost, with SCO doing its dance to postpone the inevitable. Judge Ted Stewart, who presided over the SCO v. Novell second trial has denied SCO's motion to stay taxation of costs, a motion which Novell opposed.

"Motion to stay taxation of costs" is legalese for "SCO doesn't want to have to pay what they owe Novell for dragging them through another pointless trial that found exactly what the first trial found, so it would like to figure out what the costs are later, much, much later." SCO asked for a postponement until all their appeals were decided. But the judge wasn't buying it.

Note they don't have to pay within ten days. They have to tell the court within ten days if there are any items on Novell's bill it thinks it should not have to pay at all.

Here's the order:

08/17/2010 - 889 - ORDER denying 883 Motion to Stay. Signed by Judge Ted Stewart on 08/16/2010. (asp) (Entered: 08/17/2010)

SCO has to file any objections they have to Novell's bill of costs within ten days. The Order Denying SCO's Motion to Stay Taxation of Costs puts it like this:

This matter is before the Court on SCO’s Motion to Stay Taxation of Costs. For substantially the same reasons set out in the Court’s previous Order, it is hereby ORDERED that SCO’s Motion to Stay Taxation of Costs (Docket No. 883) is DENIED.

In accordance with its Motion, SCO shall file its objections to Novell’s Bill of Costs within ten (10) days of this Order.

If there are no objections, they just pay the full amount. Not that SCO ever pays, it seems, unless it absolutely has to. The reasons Judge Kimball denied [PDF] SCO's postponement motion after the first trial SCO also lost was as follows:
[T]he 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.
Ten days, then. The idea is that you want to do the math while it's still fresh in the judge's and everyone's minds. If SCO were to win on appeal, then it would get its money back.

This is a bit of a runaround on paper, which we notice because Novell's bill of costs totals $315,501.19, which includes the first bill of costs amount SCO never paid and the new costs. This is just costs, remember, not attorneys' fees. That will come later.

The next step is that SCO can object to specific items on Novell's list, if it can find any to object to. The last time, it successfully found some things to object to, so no doubt SCO will try again to whittle it down. Why they bother when they never pay is the mystery, but it's just how SCO rolls.

So the chickens are circling, but they have not yet landed. But for sure this is the reap-what-you-sow part of this saga, and if SCO's appeal fails, as even they seem to expect, the chickens will land and build their nests. But this is SCO, and there are miles to go before we sleep.

Webster stopped by the Supreme Court for us and picked up the latest filing from Novell there. For some reason, the Supreme Court doesn't let you get the filings, unless they have agreed to hear a case, without going there in person. They have filed a motion to dismiss [PDF] their petition. I would guess that is tactical in nature. As SCO argued in its opposition brief, Novell can always do it again, after the Court of Appeals rules on SCO's latest appeal, should SCO prevail. And then Novell can add other items, presumably. It's hard enough to get the Supreme Court to accept your case without relying on getting it to happen twice.

It's very short, which means Web had a very long walk on a really hot day for this one sentence:

Pursuant to Rule 46.1(a) of the Supreme Court Rules, petitioner Novell, Inc. hereby moves to dismiss its petition for a writ of certiorari.
I'm a little puzzled, as the version of the US Supreme Court rules on Cornell Law's LII site doesn't show a 46.1(a). I checked the version of the rules [PDF] on the US Supreme Court website, and again, no 46.1(a). I suspect it's a typo, then, and what was meant is 46.2(a) but to be certain, we will have to wait about 15 days to see if SCO objects, which I doubt it will, and then we will get it clarified. If not, then we'll have to wait longer. But everything that lawyers do they do for the benefit of the client. So this is for sure not because Novell's lawyers don't feel like bothering. It's strategic on some level.

Thanks, Web, for taking that steamy summer's stroll for Groklaw. We all appreciate it a lot. Groklaw's amazing volunteers' willingness to take time out of their lives to pick up documents and attend court hearings are what make Groklaw possible.

Update 2: So ordered, but it only says Rule 46. So mystery unsolved. However, this is a voluntary dismissal, prior to any action by the court, so presumably it can be renewed at a later date, 30 days after the final adjudication, should that happy day ever arrive in our lifetime.

Update: I can't resist sharing this. I was going through some older materials that I have kept for years and years in case I ever need it. I review the older materials from time to time, first because it's SO MUCH fun, and more and more so as things go on and on. And second, I do it because then I am more likely to recall things fast in a pinch, like remembering during the SCO v. Novell second trial time period that Darl McBride had filed with the SEC that SCO didn't need the copyrights to run its business. It's pure gold being able to timely recall such things.

This particular article was from 2005, in Techworld, and then-CEO Darl McBride was saying the company was doing totally great and the company wouldn't have to shut down if it lost in court:

The SCO Group have a viable business even if it loses the titanic courtroom battles it has taken on, CEO Darl McBride has sworn just prior to his company's reseller forum in Las Vegas.

SCO's Unix business is profitable and the company is due to shed its heavy financial burden from legal fees from January 2006, McBride railed. "When we started this and people asked me that question," I said, 'As a company, we're screwed'.Today, I don't believe that to be the case. We've got a cap on our legal expenses and our Unix business is profitable. If you put that together, you've got long-term sustainability."

By January 2006, SCO will have spent close to $40 million in legal fees, according to McBride. However, once the company has made its January payment, it will then have paid in full for legal services "in perpetuity", he said. At that point, SCO's balance sheet will no longer be weighed down by legal expenses....

"I don’t spend a lot of time worrying about it [the litigation]," McBride claimed. "If it takes a year or 10 years, we’ll have our day in court when we get there."

In perpetuity. Ten years, twenty, who cares? Boies Schiller might, I'm thinking. I just thought it'd be a friendly gesture to remind Boies Schiller of SCO's immortal words, so they can look to the future with a happy calm, knowing that no matter how long it takes, it doesn't matter to SCO.

They maybe should have listened to Eben Moglen's words in that same article:

"I feel like a broken record - from first to last, I've never had to change," Moglen said. "SCO's bluffing, whistling up the wind. They ruined a company that had a business and customers that cared. It was a vulgar and selfish thing that has no basis in law and no basis in fact. It's clear to everyone that the whole thing's a sham and a failure."
Well, not exactly *everyone*, because five years later, the dance continues. Why?

I wonder if Mr. Cahn ever sees articles like this one from 2005. If he had been there five years ago, who would he have believed? Boies Schiller and Darl or Eben Moglen? I think we know the answer to that. But would he have been wise? Ah, that is the question.

And is it true that in bankruptcy you have to pursue all claims, as Boies Schiller's Ted Normand reportedly said in the recent status hearing in SCO v. IBM? Well, not frivolous ones, one assumes. In that case, I'd hope that the law would require a law firm to advise a client not to proceed.


  


SCO Ordered to File Objections to Novell's Bill of Costs. Novell Files Motion to Dismiss with SCOTUS - Updated 2Xs | 433 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections Here if needed
Authored by: entre on Tuesday, August 17 2010 @ 09:19 PM EDT
For PJ

[ Reply to This | # ]

SCO Ordered to File Objections to Novell's Bill of Costs. Novell Files Motion to Dismiss with SCOTUS
Authored by: Nivag on Tuesday, August 17 2010 @ 09:22 PM EDT
Why pay now, when you can delay... <SCO logic>

[ Reply to This | # ]

Off Topic
Authored by: bbaston on Tuesday, August 17 2010 @ 09:29 PM EDT
links appreciated, and keep it different that the main deal please!

---
IMBW, IANAL2, ICRN, IAVO
imaybewrong, iamnotalawyertoo, icantremembernow, iamveryold

[ Reply to This | # ]

SCO pays well enough when it wants to...
Authored by: kh on Tuesday, August 17 2010 @ 09:40 PM EDT
Not that SCO ever pays, it seems, unless it absolutely has to.
Some people get well paid by SCO.

[ Reply to This | # ]

[NP] News Picks
Authored by: Aladdin Sane on Tuesday, August 17 2010 @ 09:46 PM EDT
Discuss Groklaw News Picks here.

---
There is nothing unknowable—only that which is yet to be known. —The Fourth Doctor (Tom Baker)

[ Reply to This | # ]

[OT] Off Topic
Authored by: Aladdin Sane on Tuesday, August 17 2010 @ 09:47 PM EDT
Off topic discussions here.

---
There is nothing unknowable—only that which is yet to be known. —The Fourth Doctor (Tom Baker)

[ Reply to This | # ]

COMES docs
Authored by: Aladdin Sane on Tuesday, August 17 2010 @ 09:49 PM EDT
Transcriptions of Comes v. MS docs can go here.

---
There is nothing unknowable—only that which is yet to be known. —The Fourth Doctor (Tom Baker)

[ Reply to This | # ]

Eagles and Vultures and Pelicans Circle
Authored by: Anonymous on Tuesday, August 17 2010 @ 10:20 PM EDT
They all eat meat which is what SCOG is now, dead meat. Chickens more or less flutter in an arc...

pogson - away

[ Reply to This | # ]

Do you need to pursue all claims?
Authored by: tknarr on Wednesday, August 18 2010 @ 03:42 AM EDT

In bankruptcy, do you have to press all possible claims? I don't think so. The way I read bankruptcy law, you have to pursue those claims that:

  1. have a legitimate basis in law,
  2. can be pursued at a reasonable, non-ruinous cost to the business,
  3. and have a probable return (estimated return multiplied by the chance of achieving that return) greater than the cost of pursuing them.
So if a claim is frivolous, that's valid grounds for the trustee to cease pursuing it. If it's legitimate but it's going to cost $10 million to pursue and the company only has $1 million available to it, that's valid grounds for the trustee to not pursue it (the company doesn't have the money available to win it, and if they don't win the money they do spend is just wasted). And if it's going to cost the company $10 million to pursue (and the company has $50 million in the bank and can afford to go forward) but it's only going to net at most $5 million, that's again valid grounds to not pursue it ($5 million return minus $10 million cost is a net loss of $5 million, and in bankruptcy you're supposed to be not trying to lose money).

Then again, I find myself more and more often looking at aspects of the legal system and saying to the courts themselves "Grow a spine already! Stop kow-towing to the bad apples and start demanding that they show why they've got a valid case before going any further.". That's what the German courts did to SCO, and I didn't see the world ending because of it.

[ Reply to This | # ]

SCO objects to everything
Authored by: Anonymous on Wednesday, August 18 2010 @ 04:25 AM EDT
SCO objects to everything, so will they object to having an appeal against them
at SCOTUS dismissed? I wouldn't put it past them...

[ Reply to This | # ]

I think Judge Stewart gets it.
Authored by: Anonymous on Wednesday, August 18 2010 @ 04:37 AM EDT

Some people didn't like Judge Stewart's earlier leniency toward SCO's antics. In retrospect, he was giving them the benefit of the doubt, where doubt existed; which is fair enough.

But now he knows what SCO (and its legal representatives) are like.

[ Reply to This | # ]

PJ, is your memory so short?
Authored by: Anonymous on Wednesday, August 18 2010 @ 04:45 AM EDT

[Moglen]"... no basis in law and no basis in fact. It's clear to everyone that the whole thing's a sham and a failure."

[PJ]Well, not exactly *everyone*, because five years later, the dance continues. Why?

Surely we all know why? Nobody ever expected SCO to win any of these lawsuits. That was never the point. Microsoft paid $10 million for legal FUD, to be dragged out for as long as possible. SCO delivered - and is still delivering.

[ Reply to This | # ]

Déjà Vu, All Over Again
Authored by: DaveJakeman on Wednesday, August 18 2010 @ 05:04 AM EDT
In the interests of judicial economy, the entire content of this post has been
copied in from a previous one.

[ Reply to This | # ]

SCO Ordered to File Objections to Novell's Bill of Costs. Novell Files Motion to Dismiss with SCOTUS - Updated
Authored by: Anonymous on Wednesday, August 18 2010 @ 05:06 AM EDT

This matter is before the Court on SCO’s Motion to Stay Taxation of Costs. For substantially the same reasons set out in the Court’s previous Order, it is hereby ORDERED that SCO’s Motion to Stay Taxation of Costs (Docket No. 883) is DENIED.

In accordance with its Motion, SCO shall file its objections to Novell’s Bill of Costs within ten (10) days of this Order.

I didn't appreciate from PJ's quote that this is the entire response! It's certainly terse. Clearly the Judge didn't feel like wasting any time on TSG. Who can blame him?

[ Reply to This | # ]

Legal Expenses Still Weighing SCO Down
Authored by: Anonymous on Wednesday, August 18 2010 @ 05:45 AM EDT
By January 2006, SCO will have spent close to $40 million in legal fees, according to McBride. However, once the company has made its January payment, it will then have paid in full for legal services "in perpetuity", he said. At that point, SCO's balance sheet will no longer be weighed down by legal expenses....

But they continued paying legal expenses, and continue to do so today. Are these "expert services" not lawyers billing for time? Is it because they aren't part of Boies and Schiller (hereinafter referred to as BS)? If they've paid BS in full for perpetuity, is that why BS seems to be doing so little of the lifting? If BS can't do the work, then why aren't they paying for the legal work that needs to be done? They accepted the risk, they should be paying for perpetuating this farce as well as SCO.

[ Reply to This | # ]

proof the us court system is flawed and geared to waste resources
Authored by: Anonymous on Wednesday, August 18 2010 @ 08:04 AM EDT
how long will this DRAG ON.....
yup what a scam sco is and the system that aided them.

[ Reply to This | # ]

Daryl- If it takes a year or 10 years, we’ll have our day in court when we get there.
Authored by: Anonymous on Wednesday, August 18 2010 @ 10:55 AM EDT
OMG -will I still have to read Groklaw every day in 2015!

[ Reply to This | # ]

Could failure to pay result in contempt charges?
Authored by: Anonymous on Wednesday, August 18 2010 @ 11:36 AM EDT
If SCO fails to pay, could they be held in contempt?
They are under bankruptcy protection but continue to cost others money.

If the judge rounded up the SCO legal team after the next hearing and held them
until the bills were paid maybe they'd get the message.

[ Reply to This | # ]

$315,501.19 -- Ouch.
Authored by: Anonymous on Wednesday, August 18 2010 @ 12:50 PM EDT
Cahn and crew better hurry and pay themselves.

[ Reply to This | # ]

Oracle lies -- Java is not machine agnostic
Authored by: Anonymous on Wednesday, August 18 2010 @ 09:52 PM EDT
Oracle can not claim that Java is machine independent in the mobile space.

DoCoMo in Japan has one version. Softbank in Japan has another. Kddi had
another (but moved to brew and so java on Kddi is not active except for older
handsets).

The java apis are highly carrier specific and so claiming that Google had done
wrong by introducing Android is clearly contrary to the fact that Sun itself
accepted money for many years to allow carrier specific versions. Sheesh,
Android is not even carrier specific and really much closer to the "write
once"
story the Oracle is trying now to say is the intent.

I have people who lie for gain. It really really bothers me.

[ Reply to This | # ]

Hate to interrupt, but there's new stuff on the bankruptcy docket
Authored by: cpeterson on Friday, August 20 2010 @ 11:59 AM EDT
With docket #1156 & #1157, it appears Judge Cahn is upset that people are
worried about the terms of the sale when the sale hasn't even happened yet.
Hearing on Monday, don't forget!

[ Reply to This | # ]

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