decoration decoration
Stories

GROKLAW
When you want to know more...
decoration
For layout only
Home
Archives
Site Map
Search
About Groklaw
Awards
Legal Research
Timelines
ApplevSamsung
ApplevSamsung p.2
ArchiveExplorer
Autozone
Bilski
Cases
Cast: Lawyers
Comes v. MS
Contracts/Documents
Courts
DRM
Gordon v MS
GPL
Grokdoc
HTML How To
IPI v RH
IV v. Google
Legal Docs
Lodsys
MS Litigations
MSvB&N
News Picks
Novell v. MS
Novell-MS Deal
ODF/OOXML
OOXML Appeals
OraclevGoogle
Patents
ProjectMonterey
Psystar
Quote Database
Red Hat v SCO
Salus Book
SCEA v Hotz
SCO Appeals
SCO Bankruptcy
SCO Financials
SCO Overview
SCO v IBM
SCO v Novell
SCO:Soup2Nuts
SCOsource
Sean Daly
Software Patents
Switch to Linux
Transcripts
Unix Books
Your contributions keep Groklaw going.
To donate to Groklaw 2.0:

Groklaw Gear

Click here to send an email to the editor of this weblog.


To read comments to this article, go here
Novell v. MS - Novell's Letter: If MS Gets to Appeal, We'll Ask to Appeal Too
Sunday, August 14 2005 @ 06:40 AM EDT

There was a teleconference with the judge and the parties on Wednesday, August 3, in the Novell v. Microsoft antitrust litigation, a monthly status conference, and evidently they discussed Microsoft's motion for an immediate interlocutory appeal of parts of Judge Motz's Order. If you recall, the judge denied Microsoft's motion to dismiss Novell's complaint with respect to two of Novell's claims; 4 others were dismissed. Microsoft would like to appeal regarding the two left standing.

I take it Novell thinks, after the call, that there is a good chance that Microsoft is going to be granted its motion. Marbux told me that he thought they would be granted their motion also. So, Novell has sent a letter to Judge Motz, dated August 12, giving it one last try, reiterating that they believe he should not let Microsoft go forward, but if he does and the appeals court grants permission for Microsoft to appeal Motz's order, Novell will then ask for permission to immediately appeal the parts of Judge Motz's order that went against Novell. If the appeals court doesn't grant Microsoft a hearing, then Novell will not ask to immediately appeal its claims that were dismissed by the order. Got all that?

: )

I asked Marbux if he sees anything else worth mentioning, and he adds this:

I read it as Novell recognition that Judge Motz may grant Microsoft's motion for permission to apply to the Fourth Circuit for an appeal. But Novell doesn't want to weaken their position in opposing Microsoft's subsequent application to the Fourth Circuit by filing their own motion to allow an appeal.

So in effect they are giving Judge Motz a heads-up notice that if the Fourth Circuit ultimately decides to allow Microsoft to appeal, Novell will want a quick ruling at that time on a Novell motion for permission to apply to the Fourth Circuit for the right of appeal.

Novell is sitting pretty at this point. They have a ruling that they get to proceed with discovery on two claims. They know Microsoft will never let the case go to trial; Microsoft will settle high to foreclose that, if necessary, I would think. Microsoft will be nearly as opposed to any summary judgment rulings. Microsoft can not afford a binding adverse ruling in the MDL 1332 litigation or the ruling will metastasize into further cases being filed with collateral estoppel claims.

So Novell's strategy, I think, is to really fight to keep the merits of the complaint in district court. For Microsoft its motion is a win or settle issue. If they get past Judge Motz, then they have the same interests in winning a motion to allow an appeal before the Fourth Circuit. Then finally, they would have to actually win the appeal.

Novell's lawyers are saying they don't want both sides arguing for the right of appeal. But if Microsoft ultimately gets to file an appeal, Novell will want to appeal Judge Motz's rulings against Novell's other claims for relief.

Marbux already explained why, in his view, this is a must-win motion for Microsoft. You can find all the documents on this case on the permanent Novell-MS page, linked to on the left, but for convenience, here are the rest of the filings that are relevent to this letter:

Novell mentions Federal Rule of Civil Procedure 54(b), which you can read here. And here is Novell's letter:

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

[Dickstein Shapiro Morin & Oshinsky LLP letterhead]

August 12, 2005

Via FEDERAL EXPRESS

The Honorable J. Frederick Motz
United States District Judge
United States District Court for the District of Maryland
[address]

Re: In re Microsoft Corp. Antitrust Litigation, MDL 1332

Dear Judge Motz:

We write with respect to Novell, Inc. v. Microsoft Corp., Civil Action No. JFM-05-1087, to restate with more precision our position with respect to the issue of immediate appeals discussed during the monthly status conference call of Wednesday, August 3, 2005. We continue to believe that certification of Microsoft's interlocutory appeal is not justified, for all the reasons set forth in Novell's opposition memorandum dated July 12, 2005; however, assuming this Court grants Microsoft's motion for certification, Novell will seek an immediate appeal under Federal Rule of Civil Procedure 54(b), if but only if, the Fourth Circuit grants Microsoft's petition for permission to appeal.

We respectfully request that Your Honor not enter such an order regarding Novell's appeal at this time. If the Fourth Circuit does grant Microsoft's petition, then Novell will immediately and respectfully request this Court to make the necessary finding concerning Novell's appeal under Rule 54(b).

If you have any questions or concerns please let us know.

Very truly yours,

Jeffrey M. Johnson

cc: David B. Tulchin, Esq. (by First class and electronic mail)
Steven L. Holley, Esq. (by First class and electronic mail)

[Dickstein Shapiro address, phone, fax, email]


  View Printable Version


Groklaw © Copyright 2003-2013 Pamela Jones.
All trademarks and copyrights on this page are owned by their respective owners.
Comments are owned by the individual posters.

PJ's articles are licensed under a Creative Commons License. ( Details )