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Kimball Rules Against SCO on Motion to Stay Taxation of Costs
Saturday, March 14 2009 @ 03:33 AM EDT

Another ruling [PDF] goes against SCO. Judge Dale Kimball has denied SCO's Motion to Stay Taxation of Costs [PDF]:
...the court does not believe that a party's speculation as to the possibility of the underlying judgment being reversed on appeal is a valid reason for delaying a determination of costs.
I discern the judge may just feel a measure of confidence his ruling will withstand appeal. And his new ruling on costs says that the judge sees no reason to delay figuring out the grand total SCO owes to Novell now, no matter what happens down the road.

If you can't remember what in the world this motion was about or what costs means, here's the page where you'll find SCO's motion, as text, as well as Novell's Bill of Costs. It totals $127,432.20, for costs such as hiring court reporters, renting rooms for depositions, paying video recording fees for depositions, process servers to serve subpoenas, court filing fees, and costs for transcripts -- everything Novell paid out for this stupid litigation, except attorneys' fees. It adds up. Litigation is expensive, and Novell applied for its costs to be covered, arguing that it is entitled to it because it is the prevailing party in the case. Of course, SCO fights everything it can and then some more, although here it was a bit unfinished. Novell filed its opposition to SCO's motion, and SCO didn't reply. That's odd. So the judge ruled on what he had before him, saying he couldn't see that oral argument was required, so if SCO was relying on that, they've missed out.

Novell filed its bill of costs and told the court it wants to know precisely what SCO owes, the total, because it needs that figure for bankruptcy court. And it had argued that it would be better for the judge to decide the matter now, while the case is fresh, and so the grand total can be part of the appeal.

SCO wanted to wait until after the appeal, because, it argued, if it were to be successful, then the payment would be moot, because then Novell would no longer be the prevailing party.

Judge Kimball didn't buy that argument. At the end of SCO's motion, SCO told the judge that while it thought he should grant SCO's motion, if he didn't, then it was SCO's intention to file an opposition to Novell's bill of costs. To which the Honorable Judge Kimball writes, in effect, go ahead: "As SCO indicated in its motion, it shall file any objections it has to Novell's Bill of Costs within ten days of the date of this Order." An objection would be what they normally would have filed in the first place, I think. I don't know why they filed a motion first instead. It seemed to puzzle the judge too:

Instead of filing objections to Novell's Bill of Costs, SCO filed its Motion to Stay the taxation of costs until its pending appeal is decided.
That's SCO. If it can take two steps to get from point A to point B instead of one, it will do the double step. At least that's the impression I've formed, that they'd like to avoid their just deserts or at least postpone having to pay the piper for as long as is legally possible.

Here's the docket entry:

03/13/2009 - 591 - ORDER denying 575 Motion to Stay Taxation of Costs. Signed by Judge Dale A. Kimball on 3/13/09. (jwt) (Entered: 03/13/2009)
*******************************

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


THE SCO GROUP, INC.,
Plaintiff/Counterclaim Defendant,

vs.
NOVELL, INC.,
Defendant/Counterclaim Plaintiff.
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ORDER

Civil Case No. 2:04CV139DAK

Judge Dale A. Kimball

This matter is before the court on The SCO Group, Inc.'s ("SCO") Motion to Stay Taxation of Costs. Novell, Inc. has filed an opposition to SCO's motion. SCO has not filed a reply, but the time for doing so has elapsed. The court concludes that a hearing would not aid in its determination of the motion. Now being fully advised, the court renders the following Order.

This court entered Final Judgment on November 20, 2008. Under local rules, a request for costs is due twenty days after the entry of final judgment. See DUCivR 54-2(a). Novell timely filed its Bill of Costs. Instead of filing objections to Novell's Bill of Costs, SCO filed its Motion to Stay the taxation of costs until its pending appeal is decided. Novell, however, opposes the stay on the grounds that the court should determine costs when the case is fresh, which also allows any appeal from the award of costs to be consolidated into the appeal on the merits. In addition, Novell seeks to have SCO's full liability to it identified in its proof of claim in SCO's bankruptcy.

The parties agree that the district court has the discretion to stay the resolution of costs

(1)

pending appeal. See How v. City of Baxter Springs, 2006 WL 1128667, at *1 (D. Kan. Apr. 26, 2006) (granting unopposed motions to stay taxation of costs pending appeal). At least one court addressing such a stay, however, has concluded that "the consensus seems to be that the court must have some valid reason for not awarding costs at the customary stage of the proceedings." Maytag Corp. v. Electrolux Home Prods., Inc., 2006 U.S. Dist. LEXIS 89383, at *5 (N.D. Iowa Dec. 11, 2006).

As in Maytag, the court does not believe that a party's speculation as to the possibility of the underlying judgment being reversed on appeal is a valid reason for delaying a determination of costs. See id. at *7-8. The court agrees with Novell that this case presents several reasons for determining costs in the regular course: the case and facts are fresh in the court's mind; piecemeal appeals are avoided when an appeal of costs can be consolidated into the appeal on the merits; and Novell should be able to include SCO's full liability to it in its proof of claim in SCO's bankruptcy proceeding. SCO has provided no persuasive reason for staying the taxation of costs pending appeal.

Accordingly, the court denies SCO's Motion to Stay Taxation of Costs. As SCO indicated in its motion, it shall file any objections it has to Novell's Bill of Costs within ten days of the date of this Order.

DATED this 13th day of March, 2009.

(signature)
DALE A. KIMBALL
United States District Judge

(2)


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