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Novell Opposes SCO's Motion for More Time to Answer
Thursday, January 11 2007 @ 09:31 AM EST

I thought you might like to see a motion fully briefed, with all the filings on one page. It would give me a chance to explain a couple of things about motion practice, too. There's a SCO motion before the court right now, SCO's Motion for Extension of Time to Respond to Novell's Motion for Partial Summary Judgment on Its Fourth Counterclaim for Relief [PDF], that is perfect for this, because it's short, it's fully briefed, and there has been no hearing yet.

Here are the two new filings related to the motion that are on Pacer, Novell's memo in opposition and SCO's reply to it:

01/09/2007 200 - MEMORANDUM in Opposition re 196 MOTION for Extension of Time to File Response/Reply as to 171 MOTION for Partial Summary Judgment on Novell's Fourth Claim for Relief MOTION for Extension of Time to File Response/Reply as to 171 MOTION for Partial Summary Judgment on Novell's Fourth Claim for Relief filed by Defendant Novell, Inc.. (Sneddon, Heather) (Entered: 01/09/2007)

01/09/2007 202 - REPLY to Response to Motion re 196 MOTION for Extension of Time to File Response/Reply as to 171 MOTION for Partial Summary Judgment on Novell's Fourth Claim for Relief MOTION for Extension of Time to File Response/Reply as to 171 MOTION for Partial Summary Judgment on Novell's Fourth Claim for Relief filed by Plaintiff SCO Group. (Normand, Edward) (Entered: 01/09/2007)

All SCO is asking for is five days extra, and yet Novell is strongly opposing. Why? Let's take a look.

Here's the Novell motion SCO wants more time to answer, along with the memorandum in support of its motion and a Declaration of Kenneth Brakebill with exhibits. This is the motion asking the court for a ruling that the 1995 Asset Purchase Agreement and amendments, between Novell and Santa Cruz Operation gave Novell the right to waive the contract claims SCO has against IBM and Sequent.

The parties are bickering. Novell granted SCO one delay [PDF] already, but now SCO wants another week. Novell isn't thrilled with that idea.

Paralegal Celia Elwell wrote an article in 2002 explaining to other paras how to draft a successful motion, because often that is who does them:

Motions are actually fairly simple to draft since they basically only have three parts:
(1) the nature of the request,
(2) the legal authority upon which the movant relies in making the request, and
(3) the relief sought....

Requirements for All Motions. Rule 7(b) of the Federal Rules of Civil Procedure gives three basic requirements for every motion.

First, the motion must be made in writing, unless the motion is made during a trial or hearing.

Second, the motion must state “with particularity” the ground upon which it relies; that is, which authority (such as a court rule or statute) gives the party/movant permission to ask the court for whatever it is and gives the court the authority to grant the request.

Third, the motion must state the relief or order requested.

She goes on to explain that there are different types of motions. Some, like the one we are going to look at, are procedural, not dispositive. Dispositive is Novell's motion for partial summary judgment, because it is asking for a decision that impacts on the claims in the litigation. This SCO motion, in contrast, is just about a request for more time to file a brief. Let's see if SCO follows her outline. Note that the requirements can vary from state to state. This case is in federal court, so the federal rules apply, and you can find both the federal and state rules on Groklaw's Legal Research page, if you want to dig deeper.

First, SCO does indeed title it in such a way to identify the nature of relief it wants, calling it a motion for an extension of time, but the first paragraph is missing one element:

Plaintiff and Counterclaim-Defendant SCO Group, Inc. (“SCO”), through counsel, hereby moves the Court for an extension of time to respond to the Motion for Partial Summary Judgment on its Fourth Counterclaim for Relief filed by Defendant and Counterclaim-Plaintiff Novell, Inc. (“Novell”).

Did you notice that the second element on her list isn't included? That's the authority on which the movant relies. If you look at the first such motion [PDF] SCO filed in 2003 in SCO v. IBM, it did include that information, so it isn't that SCO doesn't know:

Plaintiff/Counterclaim Defendant The SCO Group, Inc. (“SCO”), through its undersigned counsel, pursuant to Rule 6(b) of the Federal Rules of Civil Procedure and applicable Local Rules, files this Motion for Enlargement of Time to Respond to Defendant IBM's Answer To The Amended Complaint and Cou terclaim-Plaintiff IBM's Counterclaim against SCO, and in support states:...

Technically, SCO hasn't told the judge what authority the court has to grant the motion. Instead, it just says it's very busy and so it would like more time. It probably doesn't matter a bit, but it's not normal for it not to be there, so the missing piece gives me the general feeling of a motion having been slapped together in a hurry.

The article continues to list what a motion would normally include next:

The next step in the motion is to tell the court the reasons why the motion should be granted. For example, in many jurisdictions, there are specific requirements that must be included in a motion for extension of time. Often those requirements mean you must tell the court information such as whether you have applied for, or received, a previous extension of time, whether opposing counsel agrees or objects to your motion, whether granting the extension will negatively impact on the other deadlines set in the case, and so on.

This part of the motion can consist of numbered paragraphs, the format often used for procedural motions....

Here is SCO's wording of that part of its motion:

Counsel for SCO has conferred with counsel for Novell regarding the requested extension. Novell’s counsel has not responded to SCO’s request for an extension of the deadline to January 17, 2007. Due to SCO’s reply briefs to the pending motions for summary judgment in the SCO v. IBM case due two days after the current due date, on January 12, 2007, the intervening holidays, and other commitments, the undersigned counsel respectfully requests an extension to January 17 to respond to Novell’s motion.

Did you notice that SCO failed to mention that it already got a delay from Novell? Normally you'd expect it to be included. Novell, in its memo in opposition fills in that blank right away:

SCO has already sought, and received, delay in resolving this motion. On approximately December 7, 2006 -- or a week after Novell filed its summary judgment motion -- SCO contacted Novell to delay its response. Novell agreed to a courtesy extension that would extend SCO's opposition deadline from just after the holidays (January 3, 2007) to January 10, 2007, which was memorialized in a court order. Now, again, SCO seeks another delay.

That omission by SCO should raise the judge's eyebrows. But it's not the only issue. Hold on a sec, Novell continues. About that accusation that Novell failed to respond to SCO's second request for a delay, that's not how it was, Novell says:

On the afternoon of January 8, 2007, SCO's counsel sent an e-mail to Novell's counsel stating that "SCO has determined that it would like an extension of a full week, until January 17" to respond to Novell's Motion for Partial Summary Judgment on its Fourth Claim for Relief. Less than two hours later, and without awaiting a response from Novell's counsel, SCO filed its instant motion.

SCO in its reply memo says that Novell isn't telling it right. Here's what SCO says happened:

Third, Novell badly mischaracterizes the communication between counsel regarding SCO's Motion by completely omitting central communications between counsel, obviously because those communications undercut Novell's opposition. Counsel for SCO asked Novell to agree to an extension of time, of five days, at the very beginning of the day on January 8. The request for an extension was not made, as Novell suggests in its Opposition Memorandum, less than two hours before SCO filed its Motion. Instead, several hours after its morning request, SCO received the following response from counsel for Novell: "I will have to get back to you."

Novell also omits from its Opposition its utter failure to respond to the following communication from counsel for SCO in response to the foregoing non-answer from counsel for Novell: "Absent agreement from Novell, SCO will need to file its motion for the extension by about 4:30 p.m. Utah time in order to have the issue resolved prior to the due date. This current timing is a result of the fact that SCO waited as long as it reasonably could to seek the extension." That is, SCO seeks an extension not as the result of Novell's sharp assertion of "SCO's apparent inabililty to plan," but as a result of its continuing efforts to address multiple issues on multiple fronts in what Novell concedes to be cases whose issues and schedules the Court should consider together.

I don't know about you, but that account seems to support Novell's story perfectly, that it said it would get back to SCO with an answer and before it could, SCO filed its motion. The fact that SCO sent a later email/fax/or whatever it was (SCO calls it a "communication") pointing out a perceived deadline doesn't change the bottom line: SCO asked for an extension, Novell said it would consider the request, SCO filed its motion without waiting for Novell's answer. That's what Novell told the court.

I gather Novell suspects that SCO would like the court to decide IBM's summary judgment motions *before* Novell's motion. Obviously, Novell wants its motion to be decided first, and so it's highlighting the issue for the court. If Novell wins its motion, then some of IBM's motions will be a slam dunk, the ones on the breach of contract issues. SCO naturally wishes to avoid slam dunks. SCO says that there is nothing to prevent a delay, in that the March motion hearings in IBM are far enough off that the modest delay won't matter anyhow. SCO is just buried in motions, it says, and they need time. That's not a bad argument, except that the court already turned down a similar argument, saying that it was SCO that filed both actions, so any burial in motion practice is self-inflicted and something SCO should have planned for before deciding to file simultaneous lawsuits. As for SCO's excuse that it has to respond to IBM motions simultaneously, Novell says this

Because the issues in this motion overlap directly with issues currently pending (and set for hearing) on summary judgment in the SCO v. IBM case, because SCO has had ample notice of its impending deadlines in the SCO v. IBM case, and because SCO has already sought and received delay in responding to Novell's motion, this Court should deny SCO's request for further delay....

The court can give SCO more time, of course, but it may instead note that SCO had every reason to plan this all out before it even filed. One can assign more attorneys to cases, so as to meet deadlines appropriately, for example. Boies Schiller does have a lot of lawyers, after all, many of them having paraded through the courtroom already. So it's a weak argument, but not necessarily a failed one. But the lack of full disclosure about the earlier delay has to make any judge think twice, I think, particularly in a he said-she said situation like this.

I am not sure Novell cares about the five days so much as it took this opportunity to let the court know about what it does care about -- that whatever schedule the court sets allows for Novell's motion to be heard prior to IBM's motions for summary judgment in March.

Personally, just between us chickens, I kind of would prefer that the IBM motions be decided first on the merits, because that way all the allegations SCO has raised would get a full and complete ruling on the record, as opposed to a slam dunk based on a Novell waiver. But that's just me. I don't have to pay the lawyers, so if I were IBM, I might feel quite differently.

Also, just for the record, Pacer also shows that the two new attorneys SCO wanted have been allowed to be added to the case:

01/08/2007 203 - ORDER granting 195 Motion for Admission Pro Hac Vice of John J. Brogan for SCO Group. Attorneys admitted Pro Hac Vice may download a copy of the District of Utahs local rules from the courts web site at http://www.utd.uscourts.gov. Signed by Judge Dale A. Kimball on 1/5/07. (blk) (Entered: 01/09/2007)

01/08/2007 204 - ORDER granting 194 Motion for Admission Pro Hac Vice of Devan V. Padmanabhan for SCO Group. Attorneys admitted Pro Hac Vice may download a copy of the District of Utahs local rules from the courts web site at http://www.utd.uscourts.gov. Signed by Judge Dale A. Kimball on 1/5/07. (blk) (Entered: 01/09/2007)

And there is also a notice of a sealed filing:

01/09/2007 201 - NOTICE OF CONVENTIONAL FILING of Novell's Reply to SCO's Opposition to Novell's Motion for Partial Summary Judgment or Preliminary Injunction [Filed Under Seal] filed by Defendant Novell, Inc. (Sneddon, Heather) (Entered: 01/09/2007)

Here are the filings on this SCO motion for an extension of time:

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

Brent O. Hatch (5715)
Robert Silver (admitted pro hac vice)
Mark F. James (5295)
Edward Normand (admitted pro hac vice)
HATCH, JAMES & DODGE
[address, phone, fax]

Stuart H. Singer (admitted pro hac vice)
Robert Silver (admitted pro hac vice)
Edward Normand (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address, phone, fax]

Stephen N. Zack (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address, phone, fax]

Attorneys for The SCO Group, Inc.

_________________________

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

________________________

THE SCO GROUP, INC.,

Plaintiff/Counterclaim Defendant,

v.

NOVELL, INC.,

Defendant/Counterclaim-Plaintiff.

_______________________

MOTION FOR EXTENSION OF TIME
TO RESPOND TO NOVELL'S
MOTION FOR PARTIAL SUMMARY
JUDGMENT ON ITS FOURTH
COUNTERCLAIM FOR RELIEF

Case No. 2:04CV00139
Honorable Dale A. Kimball
Magistrate Judge Brooke C. Wells

Plaintiff and Counterclaim-Defendant SCO Group, Inc. (“SCO”), through counsel, hereby moves the Court for an extension of time to respond to the Motion for Partial Summary Judgment on its Fourth Counterclaim for Relief filed by Defendant and Counterclaim-Plaintiff Novell, Inc. (“Novell”).

SCO respectfully requests that it be granted an extension of time, to and including January 17, 2007, within which to file a response to Novell’s motion. Counsel for SCO has conferred with counsel for Novell regarding the requested extension. Novell’s counsel has not responded to SCO’s request for an extension of the deadline to January 17, 2007. Due to SCO’s reply briefs to the pending motions for summary judgment in the SCO v. IBM case due two days after the current due date, on January 12, 2007, the intervening holidays, and other commitments, the undersigned counsel respectfully requests an extension to January 17 to respond to Novell’s motion.

DATED this 8th day of January, 2007.

BOIES, SCHILLER & FLEXNER LLP

By: /s/ Edward Normand
Robert Silver
Stuart H. Singer
Stephen N. Zack
Edward Normand

HATCH, JAMES & DODGE, P.C.
Brent O. Hatch
Mark F. James

Counsel for Plaintiff/Counterclaim-Defendant
The SCO Group, Inc.

2

CERTIFICATE OF SERVICE

Plaintiff/Counterclaim-Defendant, The SCO Group, Inc., hereby certifies that on this 9th day of January, 2007 a true and correct copy of the foregoing was electronicslly filed with the Clerk of Court and delivered by CM/ECF to the following:

Thomas R. Karrenberg
John P. Mullen
Heather M. Sneddon
ANDERSON & KARRENBERG
[address]

Michael A. Jacobs
Matthew I. Kreeger
MORRISON & FOERSTER
[address]

/s/ Edward Normand
Edward Normand

3

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

MORRISON & FOERSTER LLP
Michael A. Jacobs (pro hac vice)
Kenneth W. Brakebill (pro hac vice)
[address, phone, fax]

ANDERSON & KARRENBERG
Thomas R. Karrenberg, #3726
John P. Mullen, #4097
Heather M. Sneddon, #9520
[address]

Attorneys for Novell, Inc.

_______________________

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION

_______________________

THE SCO GROUP, INC., a Delaware
corporation,

Plaintiff and Counterclaim-
Defendant,

vs.

NOVELL, INC., a Delaware corporation,

Defendant and Counterclaim-
Plaintiff.

_______________________

NOVELL'S OPPOSITION TO SCO'S
MOTION FOR EXTENSION OF TIME
TO RESPOND TO NOVELL'S
MOTION FOR PARTIAL SUMMARY
JUDGMENT ON ITS FOURTH
COUNTERCLAIM FOR RELIEF

Case No. 2:04CV00139
Judge Dale A. Kimball
Magistrate Judge Brook C. Wells

Defendant and Counterclaim Plaintiff, Novell, Inc. ("Novell") hereby opposes The SCO Group Inc.'s ("SCO") Motion for Extension of Time to Respond to Novell's Motion for Partial Summary Judgment on its Fourth Counterclaim for Relief. Because the issues in this motion overlap directly with issues currently pending (and set for hearing) on summary judgment in the SCO v. IBM case, because SCO has had ample notice of its impending deadlines in the SCO v. IBM case, and because SCO has already sought and received delay in responding to Novell's motion, this Court should deny SCO's request for further delay.

Novell filed its Motion for Partial Summary Judgment on its Fourth Claim for Relief on December 1, 2006. This motion addresses a significant issue: whether the express terms of the 1995 Asset Purchase Agreement authorize Novell to direct SCO to waive its purported legal claims for alleged breaches of SVRX license agreements with IBM and with Sequent, and to take action on SCO's behalf when SCO refuses to so waive, where the plain language of the 1995 contract gives Novell "at its sole discretion and direction" the right to take such action concerning "any SVRX License." This issue is also raised in IBM's pending Motion for Summary Judgment on SCO's Contract Claim (filed September 29, 2006, PACER Nos. 832-1, 832-2), which is set for hearing during the first week of March 2007. The Court has recognized the overlapping issues in the SCO v. IBM and SCO v. Novell cases, even recently vacating the IBM trial date and noting that it "appears that judicial economy and the interests of all the parties will be best served by trying the Novell case–set to begin on September 17, 2007–prior to the [SCO v. IBM] action." Therefore, SCO's request for further delay should be denied so that Novell's motion can be expeditiously briefed and heard either parallel or prior to IBM's motion.

2

SCO has already sought, and received, delay in resolving this motion. On approximately December 7, 2006 -- or a week after Novell filed its summary judgment motion -- SCO contacted Novell to delay its response. Novell agreed to a courtesy extension that would extend SCO's opposition deadline from just after the holidays (January 3, 2007) to January 10, 2007, which was memorialized in a court order. Now, again, SCO seeks another delay. On the afternoon of January 8, 2007, SCO's counsel sent an e-mail to Novell's counsel stating that "SCO has determined that it would like an extension of a full week, until January 17" to respond to Novell's Motion for Partial Summary Judgment on its Fourth Claim for Relief. Less than two hours later, and without awaiting a response from Novell's counsel, SCO filed its instant motion.

SCO's proffer that its schedule is constrained due to a pending January 12 reply deadline in the SCO v. IBM case is insufficient. SCO has known of this deadline for three weeks; this deadline was the result of another extension. (See SCO v. IBM: Order re Extension of Deadline, Dec. 19, 2006, PACER No. 904 (pushing reply deadline from December 22 to January 12). The resolution of Novell's important motion should not be delayed due to SCO's apparent inability to plan accordingly. Novell therefore respectfully requests that, under the circumstances, this Court deny SCO's motion to extend time

3

DATED: January 9, 2007

ANDERSON & KARRENBERG

/s/ Heather M. Sneddon
Thomas R. Karrenberg
John P. Mullen
Heather M. Sneddon

-and

MORRISON & FOERSTER LLP
Michael A. Jacobs (pro hac vice)
Kenneth W. Brakebill (pro hac vice)

Attorneys for Novell, Inc.

4

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 9th day of January, 2007, I caused a true and correct copy of NOVELL'S OPPOSITION TO SCO'S MOTION FOR EXTENSION OF TIME TO RESPOND TO NOVELL'S MOTION FOR PARTIAL SUMMARY JUDGMENT ON ITS FOURTH COUNTERCLAIM FOR RELIEF to be served to the following via CM/ECF:

Brent O. Hatch
Mark F. James
HATCH JAMES & DODGE, P.C.
[address]

Stuart H. Singer
BOIES, SCHILLER & FLEXNER LLP
[address]

Edward J. Normand
BOIES, SCHILLER & FLEXNER LLP
[address]

/s/ Heather M. Sneddon

5

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

Brent O. Hatch (5715)
Robert Silver (admitted pro hac vice)
Mark F. James (5295)
Edward Normand (admitted pro hac vice)
HATCH, JAMES & DODGE
[address, phone, fax]

Stuart H. Singer (admitted pro hac vice)
Robert Silver (admitted pro hac vice)
Edward Normand (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address, phone, fax]

Stephen N. Zack (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address, phone, fax]

Attorneys for The SCO Group, Inc.

_________________________

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

________________________

THE SCO GROUP, INC.,

Plaintiff/Counterclaim Defendant,

v.

NOVELL, INC.,

Defendant/Counterclaim-Plaintiff.

_______________________

REPLY MEMORANDUM IN
SUPPORT OF SCO'S MOTION FOR
EXTENSION OF TIME TO RESPOND
TO NOVELL'S MOTION FOR
PARTIAL SUMMARY JUDGMENT
ON ITS FOURTH COUNTERCLAIM
FOR RELIEF

Case No. 2:04CV00139
Honorable Dale A. Kimball
Magistrate Judge Brooke C. Wells

Plaintiff and Counterclaim-Defendant, SCO Group, Inc. ("SCO"), through counsel, has moved the Court for an extension of time to respond to the Motion for Partial Summary Judgment on its Fourth Counterclaim for Relief filed by Defendant and Counterclaim-Plaintiff, Novell, Inc. ("Novell").

SCO has respectfully requested that it be granted an extension of time, to and including January 17, 2007, within which to file a response to Novell's motion. Novell's opposition to the Motion fails for the following principal reasons:

First, Novell fails to identify any prejudice as a result of the modest extension SCO seeks. Instead, Novell inexplicably presupposes the propriety of having its Motion for Partial Summary Judgment on its Fourth Counterclaim "heard either parallel or prior to IBM's motion" in the SCO v. IBM case. The Court has not scheduled Novell's Motion for oral argument and there is no basis for denying SCO's Motion on the grounds of Novell's new and sudden request that its Motion be scheduled on a particular date, and in conjunction with the extremely voluminous motions for summary judgment in the IBM case, for which the Court allotted the parties specific times and dates. In addition, the extension SCO seeks would not even interfere with the hearing schedule that Novell has proposed. The extension would leave Novell's motion fully briefed well before March 2007.

Second, the fact that the parties had previously agreed to a modest extension is no grounds for denying SCO's instant Motion. Indeed, the Court recently granted IBM's motion for an extension of time to file reply briefs even though the parties had twice previously stipulated to extensions of the due dates for the motions at issue. It is true that Novell agreed to a courtesy extension of SCO's opposition date, where the work on the opposition would have fallen during

2

the holidays, and SCO agreed to a commensurate extension of Novell's reply date, notwithstanding that the work on the reply brief would not fall during any holidays. Novell presents no grounds, as noted above, for declining to afford the same courtesy now, other than an apparent hope of prejudicing SCO's ability to oppose Novell's Motion.

Third, Novell badly mischaracterizes the communication between counsel regarding SCO's Motion by completely omitting central communications between counsel, obviously because those communications undercut Novell's opposition. Counsel for SCO asked Novell to agree to an extension of time, of five days, at the very beginning of the day on January 8. The request for an extension was not made, as Novell suggests in its Opposition Memorandum, less than two hours before SCO filed its Motion. Instead, several hours after its morning request, SCO received the following response from counsel for Novell: "I will have to get back to you."

Novell also omits from its Opposition its utter failure to respond to the following communication from counsel for SCO in response to the foregoing non-answer from counsel for Novell: "Absent agreement from Novell, SCO will need to file its motion for the extension by about 4:30 p.m. Utah time in order to have the issue resolved prior to the due date. This current timing is a result of the fact that SCO waited as long as it reasonably could to seek the extension." That is, SCO seeks an extension not as the result of Novell's sharp assertion of "SCO's apparent inabililty to plan," but as a result of its continuing efforts to address multiple issues on multiple fronts in what Novell concedes to be cases whose issues and schedules the Court should consider together. Such circumstances, especially where there is no prejudice presented to the other side, are precisely those that warrant modest extensions of time such as the one SCO seeks here. The Court should grant SCO's Motion.

3

Dated this 9th day of January, 2007.

BOIES, SCHILLER & FLEXNER LLP

By: /s/ Edward Normand
Robert Silver
Stuart H. Singer
Stephen N. Zack
Edward Normand

HATCH, JAMES & DODGE, P.C.
Brent O. Hatch
Mark F. James

Counsel for Plaintiff/Counterclaim-Defendant
The SCO Group, Inc.

4

CERTIFICATE OF SERVICE

Plaintiff/Counterclaim-Defendant, The SCO Group, Inc., hereby certifies that on this 9th day of January, 2007 a true and correct copy of the foregoing was electronically filed with the Clerk of Court and delivered by CM/ECF to the following:

Thomas R. Karrenberg
John P. Mullen
Heather M. Sneddon
ANDERSON & KARRENBERG
[address]

Michael A. Jacobs
Matthew I. Kreeger
MORRISON & FOERSTER
[address]

/s/ Edward Normand
Edward Normand

5


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