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Partial Summary Judgments - by AllParadox
Friday, September 24 2004 @ 04:03 PM EDT

A Groklaw member, AllParadox, is a retired attorney, so I asked some questions a couple of weeks ago about something he'd written, and in the course of the conversation, it dawned on me that you'd probably be interested in having him explain a few things, like what a partial summary judgment motion is and how it differs from a dismissal, so I asked him to write something for Groklaw.

Of course, you know how lawyers are. They always want disclaimers, and even after they stop practicing, that persists. So he agreed, with the disclaimer that he doesn't practice law now, so please don't interpret this as legal advice in any way. He's not your lawyer, in any case, even if he were still practicing, and this is just his personal opinion and intended simply to help us all to understand in more depth what has been going on in a certain courtroom in Utah by giving us a general overview, so we can follow along with comprehension. He says that if you want or need a Real Legal Opinion, please buy one from a licensed attorney in your area.

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

PARTIAL SUMMARY JUDGMENTS
~ by AllParadox

What is a partial summary judgment, where did it come from, what is required to get it, and what does it mean if it is or is not granted?

Let us take a moment and distinguish dismissal from summary Judgment. Summary judgment is not dismissal.

Dismissal has always been part of trial procedure. If the allegations in the formal complaint do not collectively cover the requirements of the charge, the case may be dismissed. For example, a plaintiff may sue a defendant for the personal injury (a tort) of battery. A valid claim for battery must include an element of unwanted touching. The plaintiff, somewhere in the complaint, must claim that the defendant somehow struck him. If there is no indication of any kind of contact in the complaint, then the complaint is inadequate. The defendant may ask that it be dismissed. Unfortunately for the defendant, that dismissal may not be, and often is not, "with prejudice". The plaintiff can read up on the law of torts and the tort of battery, fix his complaint, and refile it.

Summary judgment is not about an adequate complaint. Summary judgment is about inadequate *evidence*. Summary judgment motions presume adequate complaints. Summary judgments are final, i.e. "with prejudice". If a party receives a summary judgment against him, his only remedy is to appeal the judgment.

Some History

First, some history. English Common Law descended from three distinct predecessors: the King's Court (Criminal), "factors" (arbitrators) on the London docks (Civil), and the reorganized Chancery Courts of the Roman Catholic Church (Equity).

This case (SCO vs. IBM) is not a criminal case. It may result in a separate criminal case, but that is different. Therefore, Judge Kimball's final judgment may be a mix of Civil (money judgment only) and Equitable (injunction) remedies.

In Britain's American colonies, prior to the American Revolution, cases were decided by judges alone. Things were much more efficient then. Some magistrates were able to handle as many as a dozen death-penalty trials in one afternoon. Not only that, but often, the executed defendants had actually committed the crimes for which they were charged.

With the adoption of the U.S. Constitution plus Bill of Rights, trial by jury became a right in criminal and civil cases, but not equity cases. The rationale for the civil-equity distinction escapes me just now. Unfortunately, it has always escaped me.

The trial by jury was a tremendous change in court procedures. Courts rapidly realized that it was a practical impossibility to train twelve new jurists for any trial, much less every trial, so the fact/law partition arose: the court decided the legal issues, and the jury decided the factual issues. Jurists also followed some pre-existing practices in the State of Virginia. Please keep in mind that the trial judge got "the law" from one or two thin books: a manual of bare statutues, and if he was lucky, perhaps a copy of "Blackstone's commentaries" on the law.

In the early United States, a form of summary judgment was still used in jury trials. At the end of his opponent's case presentation, a party was allowed to move for summary judgment. The issue was not weight of the evidence, or whether or not to believe part or all of a witness's testimony: those decisions strictly belonged to the jury. The issue was whether there was sufficient evidence for a jury to make a conclusion about each element of the case. If no evidence was presented to the jury about a critical element, there was no possible way for the jury to find for the presenter. Thus, a summary judgment was appropriate against the presenter, but not for him, absent very unusual circumstances.

In the mid to late 1800's, Karl Lewellyn, eventually dean of the Harvard Law School, pioneered the uniform use of "precedent". For appellate opinions in prior cases to be of use, they must be collected, printed, and indexed in some rational manner, and Lewellyn did that. Before then, outside of a few U.S. Supreme Court opinions, precedent had little meaning. Afterwards, attorneys had a real possibility of adequately advising their clients about the state of the law.

Near the end of the 1800's, Lewellyn's innovations had severe unintended consequences. It became painfully obvious to appellate courts that trial courts were embarassingly wild and wooly places, far from the moderating influences of appellate judges. The response of the appellate courts was to impose draconian interpretations of the laws and opinions. Anything not letter-perfect or not precisely conforming to the terms of the statutes or the ancient rules was automatically reversed. There were remnants of those judicial habits in the early part of the 20th Century, up until the introduction of new rules.

This period was harsh but necessary. In my opinion, the most valuable result was that legal theorists were forced to directly confront the problems of hoary old judicial procedures. Antiquated, meaningless rules, without practical justification, were the primary tasks of sitting judges. Between 1930 and 1965, the whole structure of judicial procedures was revised. I seriously question whether a lawyer from 1900 could effectively practice in a 1970's courtroom, or a 1970's lawyer could effectively practice in a 1900 courtroom. Many antiquated procedures and requirements were completely eliminated. Much of what remained was modified and broadened, and whole new procedural systems were instituted.

Discovery and the Summary Judgement Process

Part of the new system was a new set of rules called "discovery". To give you some idea of how new this process really is, the deposition portion of discovery has still not been instituted in federal criminal trials. If you, as a federal criminal defendant, file a federal civil suit to try to take advantage of civil (not criminal) discovery tools, the civil suit *will* be stayed until the criminal case is concluded, for the specific purpose of preventing you from doing depositions to discover the merits of the case against you or possible defenses.

Discovery was a solution designed to address an evil. Courts were being severly embarassed by trials. Lawyers in the old days described it as "trial by ambush". As a party, you had almost no idea what the opponent was planning. Other than a formal complaint or answer, it was all a guess, and not that educated a guess, either. Completely meritless complaints wound up in jury trials. Wholly meritless defenses showed up as well. A judge and a meritorious plaintiff would be publicly humiliated by scoundrels willing to say or do anything for a defendant. A defendant might not hear the really criticial evidence and arguments against him until the end of the plaintiff's reply argument in closing. Sadly, this still happens in federal criminal trials. The emergence of broadly distributed cheap newspapers and modest trial coverage exposed the real legal mess in civil procedures.

"Discovery" emerged, then, in the mid-1900s, and a modified summary judgment was part of the solution. In the old days, the concept of a "summary judgment" prior to the trial was absurd. No evidence had been introduced. There was nothing upon which to base such a judgment.

With the advent of discovery, pre-trial summary judgment, even in the land of the jury, now made sense.

Discovery is a process. The tools are "requests for admissions", "requests for production of documents", interrogatories, and depositions. Discovery is far from perfect, and the process is in continual revision. Still, with all the problems, discovery adds a great deal of fairness to the process, and in my opinion, the value far outweighs the cost.

At the end of the discovery process, the parties should have a clear idea about their available evidence. At the end of discovery, it is now fair to allow one party to demand the other party show what he has.

With that goal in mind, an adequate response to a motion for summary judgment merely presents *enough* evidence. For each element of the claim, enough evidence must be presented to carry the burden of proof. Affidavits are frequently used. Responses to interrogatories, transcripts of depositions, and admissions in response to pleadings are other sources of adequate proof (provided that they actually address the point). Sometimes, a single sentence in a document may satisfy several elements of a claim simultaneously. In theory, if a party submits satisfactory evidence to overcome a motion for summary judgment, then the party has enough evidence to establish a prima facie case at trial. In other words, if the opponent sleeps through the trial, there is probably enough evidence for the first party to win (only "probably" because the jury is still free to disbelieve any or all of the plaintiff's witnesses)

A summary judgment is really that, a judgment on the merits of the claim. On the other hand, a denial of a motion for summary judgment proves almost nothing. An affidavit from some homeless wino may be adequate to establish a fact *for the purpose of a summary judgment*. That a jury composed of real people would probably never believe his story is irrelevant to the question of adequacy.

On the other hand, such a motion is serious, with real potential consequences, and parties must treat it that way. Almost always, parties submit barely enough to prove up a fact and move on. An adequate, bare, fact usually will not receive "embroidery", as it would during a jury trial, but at least it will be presented. If a defending party fails to provide adequate proof of even one element of his claims, then the ruling goes against him. The judgment also goes against him, and it is final, with prejudice. He may not refile it somewhere else. Appeals are allowed from granted adverse summary judgments.

IBM's Motion for Partial Summary Judgment on IBM's Counterclaim 10

With this burden of history, let us return to SCO vs. IBM and revisit IBM's Motion for Partial Summary Judgment on IBM's Counterclaim 10 (CC10). For this analysis, I assume that CC10 has not been dismissed as inadequate, or for being unacceptably prejudicial, or for any other reason, and that the motion is not being heard too early.

More than a year and a half since the initial filing, IBM has filed a Motion for Partial Summary Judgment on their CC10, as they are allowed to do, pursuant to Fed.R.Civ.Proc. 56.

IBM has been filing motions for partial summary judgment piecemeal. This is probably because, first, it is allowed, second, SCO vs. IBM is a large, complex case, and, third, this appears to be the only possible way to get the The SCO Group attorneys to address specific issues. The goal of lawsuits is to resolve real issues. Judges routinely refuse to hear cases with no real issues, e.g. "how many angels can dance on the head of a pin?". Resolving meritless claims before the jury trial encourages settlement, reduces waste of court time, and reduces chance of prejudicial error caused by extraneous evidence.

Let us take a moment and recall the context of CC10. The SCO Group, through its president, Darl McBride, and other agents, has claimed that IBM has "stolen" copyrighted material from UnixSysV. Furthermore, they broadcast to the world that literally "mountains of code" have been apparently freely given away by IBM, being distributed as part of the Linux OS.

This is a justiciable issue: whether IBM wrongfully distributed The SCO Group's copyrighted material into Linux. The issue comes up, IBM states, as a compulsory counterclaim (Fed.R.Civ.Proc. 13). IBM has to raise it as a declaratory judgment issue, because if they do not, they will not be able to raise it anywhere else later. According to IBM, the facts of this copyright issue are so closely related to TSG's contract claims that it would be unreasonable to try the issues separately. CC10 also closely tracks paragraph 179 of The SCO Group's complaint. A separate motion by SCO to dismiss CC10 as being not required by Rule 13 is also under consideration by Judge Kimball.

In the declaratory judgment action, SCO has the same burden as if they themselves had filed a copyright infringement claim with the wording of CC10.

To win the Motion for Partial Summary Judgment, SCO must make a "prima facie" presentation on every element of a copyright infringement claim. Very little is required, but it is still something.

With our brief history of Rule 56, and even more concise legal analysis in place, let's outline the things that SCO must show to win on this motion, with some examples to make the generalities more clear. Again, if SCO wins this motion, their only reward is the right to have a jury hear the evidence and make the final decision about whether IBM has infringed SCO's copyrights by giving away Linux code.

I found a Ninth Circuit model jury instruction that probably adequately describes the elements. Please note that Judge Kimball is not required to follow Ninth Circuit rules, because he is in the Tenth Circuit. My reliance on the jury instruction is reinforced by the IBM opening memo on CC10. On pages 25 and 26 of that memo, they also say that SCO must prove ownership of the copyrights and prove that there was copying.

According to Ninth Circuit Model Civil Jury Instruction 20.4, the elements are:

1.The plaintiff is the owner of a valid copyright, and

2.the defendant copied original elements from the copyrighted work.

The process for SCO is in reverse order from the instruction.

SCO must first identify infringing works, being "original elements" of earlier works, that IBM has contributed to Linux. SCO must then prove that they are the owners (or agents for the proper owner) of the valid copyright. Because this is about IBM distributions of Linux, it covers much more than SCO code claims under the various contracts. It also covers any other contributors to Linux that IBM is *redistributing*. Those redistributions, if infringing, are every bit as much copyright infringments as if IBM directly copied original elements of UnixSysV into Dynix, and from there into Linux.

The reason that this broad demand is fair is because SCO has already announced to the world through numerous broadcasts and press releases that they have identified "millions" of lines, "mountains" of stolen code, and that there is no question about the source. Again: it was SCO that made the wild claims. This is the fight that they publicly demanded, and a fight they loudly announced they were prepared for. It was SCO, in paragraph 179 of their complaint, that formally insisted that this broad copyright infringement was an injury perpetrated by IBM. SCO has never publicly retracted these claims.

"Original element" is a term-of-art, with a special, specific meaning. It is a term used in copyright law. It means the portion (or "element") of the protected work that was created (thus original) by the author.

This is SCO's first hurdle, and they have not cleared it. Original elements must be identified with specificity. In requests 12 and 13, IBM asked SCO to identify all infringing code. SCO has been twice ordered to identify all infringing code, with specificity. SCO has still not done so.

The infringing code would be the "original elements".

SCO must then connect the infringing code "original elements" to an identifiable work or works. For SCO, I infer that this is UnixSysV. Given the breadth of CC10, it could be anything.

It is not enough to make the connection, however. SCO must also prove that the element in UnixSysV is an "original element", and not brought into UnixSysV from some other source, e.g. a text by Donald Knuth. For example, there are apparently sections of code in UnixSysV that carry copyrights from parties other than SCO that are not parties to this suit: Sun, The Regents of the University of California, AT&T, Novell, and USL, to name a few. These sections would clearly not be "original elements" created by SCO.

Finally, SCO must prove the first element for the claim. They must prove that they are the owners or agents for the owners of the valid copyrights on the "original elements".

When a pre-trial motion for partial summary judgment is heard, we have the advantage of hindsight. Everything must already be in the record. Depositions, affidavits from witnesses, copies of documents like contracts, all must have been filed in some manner in the Court File. By now, the Court File is a monster, and a misnomer. It must already consist of several very thick volumes of filings.

It is not enough for SCO to merely claim that SCO owns the UnixSysV copyrights. Even by SCO's peculiar logic, they themselves did not create the "original elements". SCO claims to be the successors-in-interest to the original authors. Therefore, to get by the motion, SCO must submit some proof, any proof, however flimsy, that they are the proper successors-in-interest of the original authors. A simple affidavit of personal knowledge would be powerfully adequate for motion purposes. "I, John Doe, wrote the code attached to this affidavit, while employed by AT&T, and by my employment contract, this code belonged to AT&T when written." This, coupled with the documents that created USL from AT&T, the transfer documents from USL to Novell, the Novell-SCO APA, and the creation-transfer documents renaming "Caldera" to "The SCO Group" would mostly satisfy the requirements. (I say mostly. Even ignoring the dispute about the terms of the APA, the APA still clearly says that it is not assignable by oldSCO, so the assignment from oldSCO to newSCO should not be valid.)

SCO has not submitted so much as a trace of anything like the above that we have seen. On this element alone, SCO should lose, not because their evidence is not credible enough, but because there is *no* evidence.

SCO has not identified any "original elements" in Linux. On this point alone, SCO could lose, not because their evidence is not credible enough, but because there is *no* evidence.

SCO has not effectively tied "original element" code in Linux to any part of UnixSysV. Sandeep Gupta's and Chris Sontag's affidavits were an attempt in this direction, but were, in my opinion, severely lacking in necessary detail. The affidavits were also soundly criticized for lack of proper Gates-type procedure by Dr. Davis. On this point alone, SCO could lose, and in my opinion should lose, not because their evidence is not credible enough, but because there is *no* evidence.

Lastly, a caution: there are a number of documents that have been filed that have been sealed. The documents are part of the Court File, but are not available to the public. These documents may satisfy the above requirements. I don't think there is a snowball's chance of that, but stranger things have happened. SCO did not necessarily have to file the documents; they could be IBM filings. Neither SCO nor IBM necessarily had to reference the documents in their motions or supporting briefs for Kimball to use them in deciding on adequacy in either direction. Judge Kimball is allowed to be persuaded that, although there is not quite enough evidence for a SCO prima facie case, it would be fair to allow a jury trial on the issue anyway. Absent very unusual circumstances, it is not error to deny a motion for summary judgment on any grounds.


Usual Boilerplate: These things are hard to write. For every specific assertion about the law that I have made above, I know of, or could create, an exception. If you have similar issues, please do the wise thing and protect yourself by getting an opinion from a practicing professional. Then, even if the attorney is wrong, their malpractice insurance is available.


AllParadox is a retired attorney who practiced law for fifteen years, primarily as a trial lawyer in the areas of criminal law, bankruptcy, civil lawsuits, and divorce. The author is also a practicing programmer and developer with years of experience in development of major systems.

This work is licensed under a Creative Commons License, noncommercial-attribution 2.0.


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