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Members Only -- Docket Update January 30, BK and Appeal
Friday, January 30 2009 @ 10:58 PM EST

There are some new filings in the bankruptcy and Novell appeal dockets. The bankruptcy docket has some amended monthly operating reports and the results of the January 29th hearing in Delaware. The Novell appeal docket shows Novell responding to SCO's motion to expedite the appeal, and the Order issued granting SCO's motion in part. We have those two appeal filings as text.

-- The Groklaw Team

Update: No longer Members Only.

[PJ Update: Just wanted to point out that the O'Gara spin on this ("SCO's Appeal Hits the Fast Track") is not accurate, as I read the order. SCO asked to be put on an expedited track. The court said the schedule is entirely within SCO's own control, as it can file any day it wants to, and after Novell responds, it can file the next day if it's in a screaming rush. Duh. So the court declined SCO's request on that as being essentially an unnecessary request. It said after the briefing is finished, SCO can ask at that point to get expedited as to a hearing. So the O'Gara report about SCO succeeding to get on an expedited track isn't so, as I read the order.

Note that Novell didn't oppose fast tracking. Novell asked, though, for 30 days extra to respond, and the court said that the most it can get if it asks for that would be 15 days extra.

Just so the FUD doesn't get too thick, y'all. For those who just must, her article is at http://dotnet.sys-con.com/ node/825833 [end update]

Here are the bankruptcy docket filings:

01/28/2009 679 Certificate of No Objection (No Order Required) Regarding Fifteenth Interim Application of Tanner LC for Compensation for Services and Reimbursement of Expenses as Accountants to the Debtors for the Period from December 1, 2008 Through December 31, 2008 (related document(s) 650 ) Filed by The SCO Group, Inc.. (Attachments: # 1 Certificate of Service and Service List) (O'Neill, James) (Entered: 01/28/2009)

01/29/2009 680 Certificate of Service and Service List for service of [signed] Omnibus Order Approving Certain Quarterly Fee Applications (related document(s) 677 ) Filed by The SCO Group, Inc.. (Makowski, Kathleen) (Entered: 01/29/2009)

01/29/2009 681 Certificate of Service and Service List for service of [signed] Order Approving Expansion of the Scope of Employment of Tanner LC as Accountants to the Debtors Nunc Pro Tunc to December 3, 2008 (related document(s) 678 ) Filed by The SCO Group, Inc.. (Makowski, Kathleen) (Entered: 01/29/2009)

01/29/2009 683 Reply to Objection to Certificate of No Objection to Motion of Petrofsky for an Order Enforcing Electronic Text Requirement (related document(s) 659 , 670 , 674 ) Filed by Alan P. Petrofsky (Attachments: # 1 Exhibit A: Email from Kathleen P. Makowski # 2 Exhibit B: SCO Operations October 2008 MOR # 3 Exhibit C: SCO Operations October 2008 MOR, with images removed to make the underlying OCR text visible # 4 Exhibit D: SCO Operations October 2007 MOR) (Petrofsky, Alan) (Entered: 01/29/2009)

01/29/2009 684 Affidavit/Declaration of Service of Epiq Bankruptcy Solutions LLC Regarding Notice of Hearing on Approval of Disclosure Statement in Connection with Debtors' Joint Plan of Reorganization (related document(s) 656 ) Filed by The SCO Group, Inc.. (Makowski, Kathleen) (Entered: 01/29/2009)

01/29/2009 685 Minutes of Hearing held on: 01/29/2009 Subject: OMNIBUS HEARING / Quarterly Fees. (vCal Hearing ID (84558)). (related document(s) 675 ) (SS) Additional attachment(s) added on 1/29/2009 (SS). (Entered: 01/29/2009)

01/29/2009 686 Amended Debtor-In-Possession Monthly Operating Report for Filing Period as of 10/31/08 for SCO Operations, Inc. (related document(s) 646 , 665 ) Filed by The SCO Group, Inc.. (Attachments: # 1 Certificate of Service and Service List) (Makowski, Kathleen) (Entered: 01/29/2009)

01/29/2009 687 Amended Debtor-In-Possession Monthly Operating Report for Filing Period as of 11/30/08 for SCO Operations, Inc. (related document(s) 666 ) Filed by The SCO Group, Inc.. (Attachments: # 1 Certificate of Service and Service List) (Makowski, Kathleen) (Entered: 01/29/2009)

And here are the appeal docket filings, followed by the text versions.

[9629704] 27-Jan-2009 Open Document. Appellee's response to [9628775-2] appellant's motion to expedite case filed by Novell, Inc. Served on 27-Jan-2008. Manner of Service: US mail. Novell

[9629985] 28-Jan-2009 Open Document. Order filed by Judges Kelly and McConnell (dec) granting in part appellant's motion to expedite case. There is no need to expedite the filing of appellant's opening brief and reply brief. Appellant can file the briefs at any time. Appellee is discouraged from filing any motion for extension of time to file a response brief. If appellee files a motion to extend time, appellee will be limited to a single extension of time of no more than 15 days. After briefing is completed, appellant may file a motion asking that the case be given expedited consideration on the merits by the panel ultimately assigned to hear this appeal. Served on 28-Jan-2009.

Appeal No. 08-4217


IN THE
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT


THE SCO GROUP, INC.,
Plaintiff-Appellant,
vs.
NOVELL, INC.,
Defendant-Appellee.


On Appeal from the United States District Court
for the District of Utah
The Honorable Dale A. Kimball, Judge Presiding
(Case No. 2:04-CV-00139-DAK)


DEFENDANT-APPELLEE NOVELL, INC.'S RESPONSE TO
APPELLANT'S MOTION TO EXPEDITE APPEAL


ANDERSON & KARRENBERG
Thomas R. Karrenberg
Heather M. Sneddon
[address]
[phone]
[fax]
  MORRISON & FOERSTER LLP
Michael A. Jacobs
George C. Harris
David E. Melaugh
[address]
[phone]
[fax]

Attorneys for Defendant-Appellee NOVELL, INC.

(1)

RESPONSE TO APPELLANT'S MOTION TO EXPEDITE APPEAL

1. Novell does not oppose expediting the due date for SCO's opening brief to March 6, 2009.

2. As Novell informed SCO, however, Novell does believe a reasonable extension is warranted for Novell's opposition brief. Novell therefore opposes the proposed April 6, 2009 deadline for the appellee's brief.

3. Novell requests a 30-day extension for its brief. In the event the Court adopts SCO's proposed opening deadline, Novell's brief would be due May 5, 2009.

4. Such an extension is warranted here. Though Novell believes that this appeal presents a straightforward matter of applying plain contract language to undisputed or established facts, the parties generated a considerable record below. SCO has identified seven issues on appeal. Four stem from an August 2007 ruling on the parties. motions for summary judgment. (Dec. 15, 2008 Docketing Statement at 5.) Those motions involved over 1,500 pages of briefing, numerous declarations, and many hundreds of pages of exhibits. The transcript for the summary judgment hearing is over 240 pages. The summary judgment order is itself 102 pages. The remaining three issues on appeal identified by SCO stem from a four-day bench trial, at which 10 witnesses were heard and over 550 exhibits introduced, resulting in a 43-page trial order. A 30-day extension will

(2)

enable Novell to effectively marshal this voluminous record and to respond to SCO's opening brief, which, even with expedition, SCO will have had over 3 months to draft.

5. A 30-day extension will not overly prejudice SCO. Though SCO discusses at length its supposed need to move quickly on this appeal, it ignores that:

  • SCO voluntarily filed for bankruptcy the day before trial was scheduled to go forward, in September 2007. Had SCO instead simply proceeded to trial, this appeal would have been completed long ago.

  • SCO opposed lifting the bankruptcy stay to proceed with trial. Again, had SCO simply sought a prompt lifting of the stay to proceed to trial, this appeal would be complete by now.

  • SCO unnecessarily delayed the post-trial steps required for SCO to perfect its appeal. For months, SCO filed motions and debated with Novell about issues concerning the form of final judgment. In the end, SCO either conceded or lost essentially every such dispute.

  • SCO's bankruptcy plan does not hinge on a rapid appeal. For example, there are no potential buyers waiting in the wings to hear the appellate results. Instead, SCO proposes to sell off assets it claims are entirely unrelated to its litigation, leaving an entity whose main

    (3)

    (perhaps sole) purpose is to press these suits against Novell, IBM, Red Hat, AutoZone, and others.

Respectfully submitted on this 27th day of January, 2009.

ANDERSON & KARRENBERG
Thomas R. Karrenberg
Heather M. Sneddon
[address]
[phone]
[fax]

MORRISON & FOERSTER LLP
Michael A. Jacobs
George C. Harris
David E. Melaugh
[address]
[phone]
[fax]

/s/ Michael A. Jacobs

Attorneys for Defendant-Appellee
NOVELL, INC.

(4)

CERTIFICATE OF SERVICE

I, Michael A. Jacobs, hereby certify that on this 27th day of January, 2009, a true and correct copy of the foregoing DEFENDANT-APPELLEE NOVELL, INC.'S RESPONSE TO APPELLANT'S MOTION TO EXPEDITE APPEAL was electronically filed with the court and forwarded via electronic mail to the following recipients:

Edward Normand
BOIES, SCHILLER & FLEXNER LLP
[address]

Stuart Singer
BOIES, SCHILLER & FLEXNER LLP
[address]

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

s/ Michael A. Jacobs
MORRISON & FOERSTER LLP
Michael A. Jacobs
George C. Harris
David E. Melaugh
[address]
[phone]
[fax]
[email address]

(5)

CERTIFICATE OF DIGITAL SUBMISSION

The undersigned certifies with respect to this filing that no privacy redactions were necessary. This DEFENDANT-APPELLEE NOVELL, INC.'S RESPONSE TO APPELLANT'S MOTION TO EXPEDITE APPEAL submitted in digital form is an exact copy of the written document filed with the Clerk.

This digital submission has been scanned for viruses with the most recent version of a commercial virus scanning program (using Symantec AntiVirus v.10.1.4.4, last updated January 24, 2009) and, according to the program, is free of viruses.

Dated: January 27, 2009

s/ Michael A. Jacobs
MORRISON & FOERSTER LLP
Michael A. Jacobs
George C. Harris
David E. Melaugh
[address]
[phone]
[fax]
[email address]

(6)

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT


SCO GROUP, a Delaware corporation,
Plaintiff - Appellant,

v.

NOVELL, INC., a Delaware corporation,
Defendant - Appellee.
|
|
|
|
|
|
|
No. 08-4217

ORDER


Before KELLY and McCONNELL, Circuit Judges.


Pending before the court is "Appellant's Unopposed Motion to Expedite Appeal" and the "Defendant-Appellee Novell, Inc.'s Response to Appellant's Motion to Expedite Appeal." The motion is granted in part.

Appellant appeals a decision of the district court related to UNIX operating system copyrights. Appellant asserts that the progress of other pending litigation is dependent on the resolution of this appeal and therefore asks that the appeal be expedited. The appellant asks to be ordered to file its opening brief by March 6, 2009, for the appellee to be ordered to file its response brief by April 6, 2009, and to be ordered to file a reply brief

(1)

by April 20, 2009. The appellee does not strongly object to the appeal being expedited, but does object to the briefing schedule, asking for a 30-day extension to file its response brief beyond that proposed by the appellant.

The speed at which the opening brief is filed is almost completely within the control of the appellant who now seeks expedited briefing. The appellant can file its opening brief and appendix at any time those documents are ready, thus triggering a due date for the filing of a response brief. Appellant can also file its reply brief the next day after the response brief is filed, should appellant so elect. Therefore, there is no need to set an expedited schedule for the filing of the opening brief and reply.

The court does direct, however, that once the time for the filing of the appellee's response brief is set based on the service date of the opening brief and appendix (see Fed. R. App. P. 31(a)(1)), the appellee is discouraged from filing any motion for extension of time within which to file its response brief. Further, if appellee does seek an extension of time, the appellee is limited to a single extension of time of no more than 15 days.

The court infers from the motion to expedite that once the appeal is briefed, the appellant would like the panel of judges assigned to the case to give this appeal expedited consideration over other cases. However, in this circuit, the appeal will not be assigned to a panel until after it is fully briefed. After the briefing is completed, the appellant may, if it so elects, file a motion asking that the case be given expedited consideration on the

(2)

merits by the panel ultimately assigned to hear this appeal.

Entered for the Court
ELISABETH A. SHUMAKER
Clerk of Court

(signature)

by:
Douglas E. Cressler
Chief Deputy Clerk

(3)


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