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Novell files in Utah its opposition in SCO's motion for final judgment
Friday, October 03 2008 @ 08:17 PM EDT

Novell has filed its Opposition to SCO's Motions for Voluntary Dismissal of Stayed Claims, Entry of Final Judgment, and Certification and Entry of Partial Final Judgment [PDF]. There's also a declaration by David Melaugh, with exhibits, both PDFs. We learn from the declaration the following:
2. In meet-and-confer discussions with SCO following the Court's July 16, 2008 entry of its Finding of Fact, Conclusions of Law and Order ("Trial Order"), SCO took the position that it could dismiss the stayed claims for purposes of obtaining final judgment or certification, but could revive and litigate those claims in the event of a favorable ruling on appeal.

3. In these discussions, SCO also refused to say whether it intended to assert, at some future date, that Novell infringed post-APA code and to pursue claims on that basis.

In short, SCO isn't actually willing to dismiss its claims with prejudice, in order to get a "final" judgment; it is willing to table them and then ramp them up again if it wins on appeal. How SCO imagines that offer would result in a "final" judgment under the final judgment rule is hard to discern. Novell says that what SCO wants is a judgment that is "final enough -- but not too final".

Novell, in its opposition, raises that very question in the opening paragraphs:
Under the final judgment rule, federal appellate jurisdiction requires "a decision by the District Court that ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." F.D.I.C. v. McGlamery, 74 F3d 218, 221 (10th Cir. 1996) (internal citations omitted). This requirement "evinces a legislative judgment that restricting appellate review to final decisions prevents the debilitating effect on judicial administration caused by piecemeal appeal disposition of what is, in practical consequences, but a single controversy." Id.

SCO has made no secret of its desire for a prompt appeal. To that end, SCO now seeks to voluntarily dismiss its claims stayed pending arbitration and, having dispensed with that "last impediment to finality" (SCO's Memorandum in Support of Its Motion for Entry of Final Judgment ("SCO's Final Judgment"), filed September 15, 2008, PACER No. 555, at 5), obtain entry of final judgment. Additionally, whether or not this Court dismisses the stayed claims, SCO seeks certification of the "Court-resolved claims" so that these, at least, may be appealed without the Tenth Circuit's raising awkward questions about finality. ( Id. at 8-10.) At the same time, SCO would like to preserve the option to "resurrect[]" its dismissed claims post-appeal, if the Tenth Circuit's legal conclusions give it an opening to do so. (Id. at 7.) Thus, in negotiations with Novell, SCO has refused to commit to a position on whether Novell infringed post-APA code, an issue left open by the Court's summary judgment order from last summer. All in all, the judgment SCO seeks can be described as "final enough -- but not too final."

SCO's finality problems are entirely of its own making. For twelve months, Novell has been briefing, arguing, and negotiating the remaining obstacles to finality, and SCO hasn't listened; indeed, it barely mentions these issues in its brief. First, portions of the case -- indeed, of individual claims -- are stayed pending arbitration pursuant to Section 3 of the Federal Arbitration Act. Whether the stay should be lifted at SCO's whim, so as to permit dismissal, has not been addressed. Second, SCO's refusal to "come to the stake" on whether Novell infringed post-APA code creates significant uncertainty for Novell, making SCO's requested relief inappropriate. Third and similarly, SCO's stated hope of reviving its dismissed claims post-appeal creates too much uncertainty to warrant a "final" judgment.

Until these loose ends are tied up, SCO's quest for what it deems "finality" is premature.

The filings:
557 - Filed & Entered: 10/03/2008
Memorandum in Opposition to Motion
Docket Text: MEMORANDUM in Opposition re [553] MOTION for Judgment under Rule 54(b), [554] MOTION for Entry of Judgment, [552] MOTION to Dismiss Stayed Claims filed by Defendant Novell, Inc.. (Sneddon, Heather)

558 - Filed & Entered: 10/03/2008
Docket Text: DECLARATION of David E. Melaugh re [557] Memorandum in Opposition to Motion (SCO's Motions for Voluntary Dismissal of Stayed Claims, Entry of Final Judgment, and Certification and Entry of Partial Final Judgment) filed by Novell, Inc.. (Attachments: # (1) Exhibit 1)(Sneddon, Heather)

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