You guys are so fast. Here's the Reply in Support of Novell, Inc.'s Motion for a More Definite Statement of SCO's Unfair Competition Cause of Action as text. Our volunteer who did the work thinks what he did is too trivial to want credit. That's probably because his usual field is astronomy and astrophysics, so this probably seems too easy. But if I didn't have the help, I could never do Groklaw, and Groklaw isn't trivial. So, thank you.
Here Novell humiliates SCO, by using its own cases against it. That's the worst thing that can happen to a lawyer when it comes to legal research. But SCO is in rather a pickle. It wants to do something unfair, and it's a little hard to find cases that actually say that's A-OK, leaving one with the unhappy choice of either not asking for the unfair relief and losing, or stretching what the cases actually say to make them sound like they say that what's not fair actually is, and hope no one notices. Novell notices.
If you look at footnote 2, you may wonder if that is the problem or if SCO didn't read very carefully. Novell expresses puzzlement that SCO has cited a case that supports Novell's position, not SCO's. That's an ouch. It's like I always tell you: pay your lawyer. And keep paying until you win.
What SCO wants to do is not tell Novell what law, or what state, or what country's unfair competition law or laws Novell is alleged to have violated until later, after Novell has answered SCO's Second Amended Complaint. So which unfair competition law is SCO talking about? As Novell puts it, SCO's claims span the globe. SCO suggests that it shouldn't have to tell until after the court decides the matter of what law will apply. Anyway, Novell can figure it out in discovery.
However, Novell points out that alleging with specificity doesn't in any way hinder the court from deciding what law will apply. It's two separate things, and first comes the allegation. Otherwise, if SCO is allowed to say Novell broke the law worldwide, but it won't say precisely whether it's going to use Utah law or NY law or give Novell at least a star to guide it, Novell will not be able to answer the allegation, and on what fair basis would a court decide what law applies when everyone but SCO is just guessing? Not only that, but Novell might miss its chance to assert certain affirmative defenses, or worse, it might miss its one and only opportunity to plead statutory defenses. What is that?
A statutory defense is exactly what it sounds like: a defense built right into the law. For example, in many if not most states, truth is a statutory defense to libel. Fair use is a statutory defense to copyright or some trademark infringement. (Not to patent infringement though. They just take you out and shoot you at dawn for that. Joke. Joke. But it *feels* like that. All they actually do is shoot your business.)
Or let's look at this explanation of the three statutory defenses to a federal law about liability for hazardous waste, the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (or CERCLA). It'll clearly illustrate what a statutory defense is. It's a statute lawyers who handle real estate deals have to think about and early too, because you have to do your due diligence to make sure the buck doesn't stop with your client after the closing. Actually, last I looked you can be liable for hazardous waste if you even sign an agreement to buy property that is contaminated. And it's a strict liability statute, which means nobody cares whether you meant to release hazardous materials or it was an accident or whatever. If it happens, and you are the owner, you are liable. Personally. The prior owner might be too, and then you litigate to see who has to pay the most for the cleanup. So your lawyer wants to know before you agree to buy a property that there isn't a buried oil tank leaking into the ground. The statute was written with three statutory defenses:
Defenses to CERCLA liability.
Parties to CERCLA lawsuits have attempted to employ a variety of defenses. Almost invariably those efforts have failed. For example, although some courts have allowed equitable defenses, such as unclean hands, in CERCLA actions, others have rejected such defenses as being contrary to congressional intent. In particular, courts have rejected the caveat emptor defense under CERCLA, which explicitly provides for three statutory defenses: act of God, act of war, or act or omission of a third party. Of these, the third-party defense has been the most widely litigated.
Naturally the last is the most widely litigated, because it's the only one where there is someone to litigate with. You are trying to blame somebody else, and he doesn't want to pay either. You can't litigate with God, and if war caused the problem, when a bomb fell on your property and started the oil tank leaking, who are you gonna sue? Anyway, you get the point. The explanation mentioned another kind of defense, equitable defenses, listing two, unclean hands and caveat emptor. An equitable defense means what it sounds like: it would be unfair, not equitable, to apply the law strictly, because of X, Y, or Z. Those defenses are not found in the statutes but rather in case law.
There's no statutory defense of "I didn't know the gun was loaded." Why not? Because the everyone would plead it in every murder. But that doesn't mean that if two young people are playing, stupidly, with a gun they think isn't loaded and it goes off and hurts someone that a court won't take into consideration the circumstances. But the laws of murder don't provide that defense. Equity is about what would be fair. Statutory defenses are those the legislators wrote into the law.
Unfair competition is a wide umbrella. And that's all we know about SCO's claim, that they are alleging unfair competition. Under the Lanham Act, trademark infringement can be a form of unfair competition [warning: link downloads a Powerpoint document]. So if I accuse you of unfair competition, is that what I mean? Maybe, but if I don't cite the Lanham Act and tell you so, you might guess that is what I might mean, but I could mean something else entirely.
There are many ways to compete unfairly. I might not use your trademark, but maybe I make a purse that looks kind of similar to the kind Gucci makes, but without the signature Gucci name or the stylized Gs. They're shaped a lot like Gucci bags, with the same colors, and style. I set up a stand on the street corner at 96th and 2nd Avenue in New York City, and naive folks think they are buying a Gucci bag, even though there's no label saying so and no trademark G. If enough people buy from me instead of Gucci, it can affect their business, obviously.
So maybe you did that, and I'm going to accuse you of that, but all I'll tell you is you are guilty of "unfair competition," without mentioning New York and your stand of "Gucci" bags. Maybe you arguably also infringed my trademark in California, so you aren't sure which conceivable offense I'm talking about. Let's say the court doesn't make me tell you, so either you guess wrong and think I mean selling the bags in New York instead of trademark infringement in California, so you fail to raise the statutory defense of fair use, which you otherwise could and would have.
Or you might answer my claim with the fair use affirmative defense only to find that I meant you interfered with my customers and stole them away illegally by selling pretend Gucci bags. Or maybe because you don't think you have infringed my trademark in California, you don't even think of it, and it turns out to be a nasty surprise.
Or maybe I don't mean either offense or either state. I meant you put my trademark on goods that dilute my mark. Let's say I'm Kodak. And you make and sell cupcakes in Utah. You call them Kodak cakes in your ads, because you wish to stress the uniformity and speed with with you make them. I might feel that blurs and dilutes the Kodak mark, which stands for something else, from someone else, and I will likely sue you to get you to quit it. There are three statutory defenses to a dilution claim written in to Section 43(c) of the Lanham Act, 15 U.S.C. Sec. 1127(c)(4), comparative advertising, non-commercial use, and news reporting and commentary. But if I just say "unfair competition," you may think I mean trademark infringement, not dilution, and so you'll fail to raise the comparative advertising defense, because you are busy arguing fair use. They are related, but not always identical, depending on the facts of your case. Here's an article that explains some of the fine points between statutory defenses and judge-made defenses to trademark allegations.
But getting back to poor you, if I won't tell you what kind of unfair competition I mean or even what state I'm thinking of and you, unfortunately, have already put in your answer, then it's ha ha on you. You can't analyze the facts of your case and meaningfully respond. Law is complicated, and how you defend yourself depends very much on analyzing not only the statute, but how various courts have interpreted it. Without having those facts to analyze, you've literally missed your opportunity to defend yourself. And the law doesn't give you lots of bites of the apple. You don't get to answer and then answer again and then think it over and try again. That's what Novell says SCO is trying to do, prevent it from being able to figure out what defenses it is entitled to and therefore which ones to proffer.
Claims That Span the Globe
Now multiply that problem by all the states, each of which has its own unfair competition law. We've seen Utah's, inspired by Ralph Yarro himself according to his bio. But here's an article about California's Antitrust and Unfair Competition Law [PDF]:
The “unlawful, unfair or fraudulent” prongs of the UCL include a wide
range of conduct. An unlawful business activity includes “anything that can
properly be called a business practice and that at the same time is forbidden by
civil or criminal, state or federal, can serve as the predicate.... Conduct which merely
creates nonstatutory civil liability may not be sufficient to satisfy the unlawful
prong of the UCL.... Likewise, a
breach of contract involving only private harm may not be actionable.... If a statute does
not have explicit language proscribing a particular act, then the unlawful prong
cannot be satisfied.. ..
Under the UCL, however, lawful conduct may still be “unfair” and
thereby actionable. ... If no statute provides
such a “safe harbor,” then a court must determine whether the challenged conduct
is unfair under the following test (20 Cal. 4th at 186):
“When a plaintiff who claims to have suffered injury from a direct
competitor’s ‘unfair’ act or practice under Section 17200, the word
‘unfair’ in that Section means conduct that threatens an incipient
violation of an antitrust law, or violates the policy or spirit of one of
those laws because its effects are comparable to or the same as a
violation of law, or otherwise significantly threatens or harms
It's very, very different, isn't it? California's law is considered very broad [PDF] because conduct can be found to be "unfair" even if it's legal and even if it isn't deceptive:
A business practice is “unfair” if the practice is
“immoral, unethical, oppressive, unscrupulous or substantially injurious to
But as broad as it is, it can't hold a candle to Utah's law. The two laws don't even cover the same types of issues. In Utah, cyberterrorism is a form of unfair competition. So unless SCO points to a map and puts a pin somewhere, how is Novell supposed to guess what law it allegedly violated? If it can't know that, how does it figure out what defenses might be available to it?
Why might it matter? To illustrate, here's a law school course outline [.doc file] from a course on Intellectual Property taught by James Boyle at Duke University last year. He's one of the authors of the wonderful comic book on copyright law I raved on and on about, Bound by Law? Tales from the Public Domain, (Wired just did an interview, by the way) and here's what he suggests (he has his serious hat on now) someone bringing a trademark infringement claim should also do:
Registered marks and § 1125(a).
The owner of a registered mark should claim infringement in violation of § 1114(1). It should also claim unfair competition by alleging misrepresentation in violation of § 1125(a). The tests are the same, but this second claim protects the claimant against the risk that a court might find that it failed to meet the formalities of trademark registration.
In saying that, he is showing that the other side is likely to claim that the plaintiff failed to "meet the formalities of trademark registration" as a way of defending itself from a charge of trademark infringement. Misrepresentation doesn't require that you use the trademark. Remember the "Gucci" bags? But the defendant can't raise that issue of the plaintiff's failure to properly register and police the mark unless it is informed that the allegation is, in fact, trademark infringement and not cyberterrorism. If all he is told is "unfair competition," without at least specifying the state, he's left to guess and the odds of guessing right are low, particularly because the other side can choose a state later that specifically messes him up, because he didn't raise the necessary statutory and equitable defenses that he would have, had he known the state and the law allegedly violated.
So you can see what Novell is saying by now, I'm sure. If SCO is allowed to say just "applicable unfair competition law," does it mean trademark infringement, copyright infringement, violation of an NDA, unfair pricing, fraud, misleading advertising, interfering with customers, selling ersatz goods that confuse the public into thinking they are SCO goods, or cyberterrorism? What?
Yes. This is the nuttiest litigation I have ever seen.
MORRISON & FOERSTER LLP
Michael A. Jacobs (Pro Hac Vice)
Ken W. Brakebill (Pro Hac Vice)
[address, phone, fax]
ANDERSON & KARRENBERG
Thomas R. Karrenberg, #3726
John P. Mullen, #4097
Heather M. Sneddon, #9520
[address, phone, fax]
Attorneys for Novell, Inc.
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION
THE SCO GROUP, INC., a Delaware
Plaintiff and Counterclaim-
NOVELL, INC., a Delaware corporation,
Defendant and Counterclaim-
Case No. 2:04CV00139
Judge Dale A. Kimball
SCO's opposition brief misconstrues the purpose of Novell's motion. Contrary to SCO's contention, Novell is not seeking to compel SCO to "select" or "advance a particular legal theory." Nor is Novell seeking to "learn more" about the factual basis for SCO's unfair competition claim. Rather, Novell is simply seeking notice of the body or bodies of law that SCO is alleging against Novell, so that Novell may properly answer and assert applicable affirmative defenses to SCO's Second Amended Complaint.
SCO's opposition underscores the fundamental need for this Court to exercise its discretion to direct SCO to amend its unfair competition claim. SCO acknowledges that its new unfair competition claim is predicated on allegations that "misappropriation took place 'worldwide.'" (Opp'n 1 n.1 (emphasis added).) SCO also claims that Novell's misconduct, which it alleges to have occurred across several states and over the Internet, has resulted in confusion across the global "marketplace concerning UNIX, Linux, and other products." (Second Am. Compl. ¶ 123.) The sheer breadth of these factual allegations demands that SCO restate its vague and ambiguous assertion that Novell violated the "applicable unfair-competition law." As SCO's own cases demonstrate, more definite statements are the appropriate way to narrow the body of applicable law, especially where, as here, a general claim of unfair competition is based on misconduct spanning multiple jurisdictions.
A. The Rule 12(e) Inquiry is Fact-Specific and SCO's Cases Fail to
SCO acknowledges, as it must, that this Court has the discretion to grant a Rule 12(e) motion. (Opp'n 4.) Moreover, SCO recognizes, as its cases make clear, that the decision to grant a Rule 12(e) motion depends entirely on the particular facts alleged in a complaint. Dethmers Mfg. Co. v. Automatic Equip. Mfg. Co., 23 F. Supp. 2d 974, 1008 (N.D. Iowa 1998) (citing McHenry v. Renne, 84 F.3d 1172, 1179 (9th Cir. 1996)). What constitutes sufficient
Address the Factual Circumstances Presented By SCO's Unfair
notice under the notice-pleading standard of Federal Rules "to enable a defendant to formulate a responsive pleading does change from case to case" and varies depending upon the complexity of the case. Mountain View Pharm. v. Abbott Labs., 630 F.2d 1383, 1386-87 (10th Cir. 1980) (finding Rule 8(a) not satisfied).
Even though the Rule 12(e) inquiry is fact specific, SCO does not cite a single case that considered a situation analogous to the one here. SCO fails to present a case where a Rule 12(e) motion was denied where the plaintiff alleged misconduct spanning multiple jurisdictions (as SCO has done), and also failed to specify the body of law allegedly violated by the defendant (as SCO has failed to do). Instead, SCO cites cases where the plaintiffs nearly always identified by statute the body of law that applied to their claims. (Opp'n 4.) For this reason, SCO's heavy reliance on the JP Morgan case is particularly unfounded.
In JP Morgan, the plaintiff specifically identified the law that applied to the case: "Farmland further clarifies in its response brief that it is bringing its antitrust claim pursuant to Kansas antitrust law." JP Morgan Trust Co. v. Mid-Am. Pipeline Co., 413 F. Supp. 2d 1244, 1270 (D. Kan. 2006). Moreover, the significant operative facts underlying the plaintiff's claims occurred in a single jurisdiction, Kansas. Id. Thus, contrary to SCO's assertion, JP Morgan is not "nearly identical" to this case, but is, instead, inapposite.
The Bryson case is similarly not analogous. First, in Bryson, the plaintiff's complaint specifically stated what law the defendant allegedly violated, citing New York law as well as two specific federal statutes. Bryson v. Bank of N.Y., 584 F. Supp. 1306, 1319 (S.D.N.Y. 1994). Unlike the plaintiff in Bryson, SCO provides no indication as to which body of state and Federal laws Novell is alleged to have violated. In addition, in Bryson, as noted by the court there, the Rule 12(e) motion was "partially mooted by the submissions in Opposition to this motion." During the Rule 12(e) briefing in that case (unlike here), the plaintiff identified many of the specific statutes and rules allegedly violated by the defendant. Id.
Instead of pointing to analogous cases, SCO instead relies on the supposedly "disfavored" status of Rule 12(e) motions. However, Rule 12(e) motions are disfavored where defendants are seeking to discover additional detailed facts. McClanahan v. Mathews, 292 F. Supp. 737, 738 (D. Ky. 1968) ("Rule 12(e) cannot be used as a means of discovery"). That is not the case here. SCO's Second Amended Complaint fails to give Novell fair notice of the nature and basis of SCO's unfair competition claim -- not because of inadequate factual allegations, but because it does not provide adequate notice of the law or laws that Novell has violated.
Nor is this a situation where a Rule 12(e) grant is unnecessary because it is simple to determine what law applies to the plaintiff's allegations. Quite to the contrary, SCO's allegations implicate "worldwide" misconduct. Where a defendant is seeking to narrow the boundless universe of potentially applicable law, as here, Rule 12(e) motions are appropriate. Indeed, in a primary case cited by SCO in its opposition, the court "concluded" that repleading may be appropriate where a complaint implicates a "universe of potentially applicable statutes" because a defendant may have to affirmatively plead statutory defenses. Dethmers, 23 F. Supp. 2d at 1008. Such is the situation here. In the absence of such repleading by SCO of its unfair competition claim, Novell lacks the guidance necessary to plead relevant statutory defenses. The "appropriate time" to seek such guidance is not, as SCO advocates, at a later time, but rather right now, when the offending allegations are made and when the defendant's answers are due. Fed. R. Civ. P. 12(e) ("the party may move for a more definite statement before interposing a responsive pleading.") (emphasis added).
Moreover, Rule 12(e) motions are granted where the underlying complaint contains general assertions of violation of some unidentified or amorphous body of law. MTV Networks v. Curry, 867 F. Supp. 202, 207-08 (S.D.N.Y. 1994); Kverargas v. Scottish Inns, Inc., 96 F.R.D. 425, 426 (E.D. Tenn. 1983), rev'd on other grounds by, 733 F.2d 409 (6th Cir. 1984); see also Coexist, LLP v. Cafepress.com, No. 1:05-CV-0673RLY/WJL, 2006 U.S. Dist. LEXIS 3949 at *8 (D. Ind. 2006) (granting Rule 12(e) motion because there was a general allegation of unfair
competition but the complaint did not identify the state statutory basis, if any, of the claim; denying motion as to common law basis for claim because plaintiff identified Indiana common law in responsive brief) (attached as Ex. A hereto).
Finally, SCO's contention that Novell's Rule 12(e) motion should be denied because SCO's Second Amended Complaint satisfies the notice-pleading requirements of Federal Rule of Civil Procedure Rule 8(a) is short-sighted. As SCO's case law points out, notwithstanding Rule 8, courts have discretion to order more definite statements. Dethmers, 23 F. Supp. 2d at 1008; see also MTV Networks, 867 F. Supp. at 207-08 (even though Rule 8 requires a short, plain statement, under Rule 12(e) "the opposing party must be given sufficient notice to frame a responsive pleading."). Thus, even though Rule 8 "only" requires "notice pleading," courts recognize that Rule 12(e) may nevertheless be granted so as to require a plaintiff to cite the statutes on which it relies. Kverargas, 96 F.R.D. at 426.
B. More Definite Statements Are Appropriate Where a Plaintiff's Claims
Involve Factual Allegations Spanning Multiple Jurisdictions and the
Plaintiff Fails to Allege the Laws Violated.
SCO's reliance on the supposedly disfavored status of Rule 12(e) motions misses the point. SCO's allegations of "worldwide" unfair competition implicate an unlimited universe of state and federal statutory and common law, each with its unique elements and defenses. Aside from SCO's suggestion that it may seek a remedy under Utah law,
1 Novell is without any notice of which laws it need consider to frame a responsive pleading and to assert affirmative defenses. Significantly, courts have required plaintiffs to provide more definite statements of statutory violations in less compelling circumstances than here -- namely, where the actionable
conduct is alleged to have occurred in just one jurisdiction, as opposed to multiple or "worldwide" jurisdictions. See, e.g., Kverargas, 96 F.R.D. at 426.
In Kveragas, for example, the district court directed the complainant to provide a more definite statement concerning the alleged statutory violation, even when it was clear that a single state's law applied to the complaint. "If plaintiffs are going to claim defendants are liable under some statutory provision, defendants must surely be told now -- not in later discovery -- the accusation they are defending against." Id. The court concluded: "I don't see how defendants can plead to the accusation that they disobeyed
'the provisions of the applicable Statutes of the State of Tennessee. Defendants are entitled to know what statute they supposedly violated.'" Id.
2 SCO's Second Amended Complaint likewise seeks remedies under "applicable unfair-competition laws." (Second Am. Compl. ¶ 126 (emphasis added).) Because SCO's complaint implicates an expansive universe of potentially applicable law extending beyond the single jurisdiction at issue in Kverargas, the need for a more definite statement in this case is even more compelling.
This need is underscored by the Dethmers case cited by SCO in its opposition. As the court in Dethmers found, repleading may be necessary where "there may be statutory defenses that must be pleaded in answer to a statutory  claim under the law of the appropriate state." Dethmers, 23 F. Supp. 2d at 1008 (repleading not necessary because the court already had determined what law would apply to the complaint and "the universe of potentially applicable statutes upon which Count IV of [the] complaint could be based has considerably contracted," thus making it a simple matter for defendants to answer the complaint). Failure to replead can cause substantial prejudice to the defendant, who "cannot be expected to guess" the particular
statutory basis for a plaintiff's claim. Cf. Holmes Group, Inc. v. RPS Prods., Inc., 424 F. Supp. 2d 271, 295-96 (D. Mass. 2006) (barring plaintiff's claim for "unfair competition" under specific Massachusetts statute because defendant did not have "adequate notice" that plaintiff would rely on a state statute and was prejudiced in that it otherwise could have raised numerous substantive and procedural defenses).
The fact that SCO's unfair competition claim spans the globe may require Novell to plead affirmative defenses particular to the laws of multiple jurisdictions. Novell cannot properly answer a complaint, or frame its affirmative defenses, without knowing which jurisdiction's laws SCO alleges Novell violated.
C. Resolution of Novell's 12(e) Motion Need Not, and Should Not, Be
Deferred Until If and When Choice-of Law Issues Are Raised and Resolved.
SCO's suggestion that a Rule 12(e) motion seeking a more definite statement of the laws alleged to be violated is premature until the court first resolves the "threshold" choice-of-law question as to which jurisdiction's law will be applied, is inaccurate. (Opp'n 5-6 (citing Dethmers).) First, the court in Dethmers did not conclude that the choice-of-law issue was a predicate to deciding the Rule 12(e) motion. A correct reading of that case reveals that the court there merely referred to the choice-of-law issue as "what [plaintiff] described as the
'threshold question.'" 23 F. Supp. 2d at 1008 (emphasis added).
In addition, Dethmers involved a procedural posture not present in this case. There, the court reached the choice-of-law issue because the defendant had simultaneously filed a Rule 12(b)(6) motion to dismiss for failure to state a claim and several summary judgment motions. In the context of those motions, not the Rule 12(e) motion, the court decided that a particular state's law applied to the complaint. Consequently, at oral argument the plaintiff agreed to replead its claim under that particular law. As such, the Rule 12(e) motion was mooted. Id. at 1008. It is inaccurate to extrapolate from these specific facts that choice-of-law issues must be briefed and decided before Novell's Rule 12(e) motion. That reading contradicts the clear
language in Rule 12(e), which allows a party to bring a motion for more definite statement before interposing a responsive pleading. Fed. R. Civ. P. 12(e). It also contradicts the court's conclusion in Dethmers that repleading is proper where defendants may have to assert specific statutory affirmative defenses.
Regardless, what law is alleged to be violated and what law will be applied are two distinct questions. The former does not depend on the latter. The former can and should be decided now given the procedural posture of this case. SCO has been litigating this case for two-and-a-half years. This is SCO's second amended complaint, and SCO has had ample time to decide what body or bodies of law it believes Novell may have violated.
If SCO believes that Novell has violated Utah law (or New York, or California, and/or any other jurisdiction's laws), then it should be required to so state. Novell is entitled to know what law is being alleged so that it may properly answer the complaint and plead any affirmative defenses. As a result, this Court can and should grant Novell's Rule 12(e) motion.
DATED: June 19, 2006
ANDERSON & KARRENBERG
/s/ Heather M. Sneddon
Thomas R. Karrenberg
John P. Mullen
Heathert M. Sneddon
- and -
MORRISON & FOERSTER LLP
Michael A. Jacobs (pro hac vice)
Kenneth W. Brakebill (pro hac vice)
David E. Melaugh (pro hac vice)
Attorneys for Defendant and Counterclaim-Plaintiff
1SCO's opposition brief states that its allegations are "modeled" on Utah law. (Opp'n 67.) However, like SCO's convoluted response earlier this year to Novell's multiple requests for clarification concerning the "applicable unfair-competition law" being asserted against Novell, SCO in no way limits the bodies of law that it is asserting through its unfair competition allegations. (Opp'n 6.) If SCO is only asserting Utah law, then it should say so, rather than equivocate.
SCO's attempt to distinguish Kveragas is confusing in light of the clear rule and obvious result in that case. The court there granted the defendants' 12(e) motion with respect to plaintiffs' statutory claims. That motion also was granted even though, as here, the Kveragas complaint provided the factual basis of the suit. Id. at 425.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 19th day of
June, 2006, I caused a true and correct copy of the foregoing REPLY IN SUPPORT OF NOVELL,
INC.'S MOTION FOR A MORE DEFINITE STATEMENT OF SCO'S UNFAIR COMPETITION CAUSE OF ACTION to be
served via CM/ECF to the following:
Brent O. Hatch
Mark F. James
HATCH JAMES & DODGE, P.C.
Stephen N. Zack
/s/ Heather M. Sneddon
Mark J. Heise
BOIES, SCHILLER & FLEXNER LLP