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Hearing Set for Feb. 4 for Novell Motion to Set Aside Judgment - And a Mystery Solved? - Update
Tuesday, January 05 2010 @ 02:36 AM EST

There is a hearing coming up on February 4 at 3 PM before Judge Stewart in SCO v. Novell, and I surely hope some of you can attend, regarding Novell's recently filed motion asking to set aside an earlier judgment by Judge Kimball, so Novell can go after monies SCO took in from Microsoft and companies that bought a SCOsource license.

But there's something odd in the notice about the hearing. It says also on the schedule that day will be oral argument on docket number 277 [PDF], Novell's Motion for Summary Judgment on SCO's First Claim for Slander of Title Based on Failure to Establish Special Damages, which was decided in Novell's favor long ago. Novell didn't ask for that judgment to be opened up, that I can see, nor would it, since it won that motion, and neither has SCO filed any such motion that I can find. So how is this scheduled for this hearing? That is the mystery.

Here's the entry:

01/04/2010 - 611 - NOTICE OF HEARING ON MOTION re: 277 MOTION for Summary Judgment on SCO's First Claim for Slander of Title Based on Failure to Establish Special Damages and 608 MOTION to Set Aside Judgment: (Notice generated by Chambers) Motion Hearing set for 2/4/2010 03:00 PM in Room 142 before Judge Ted Stewart. By 1/7/2010 at 5:00 p.m., the parties shall submit to chambers (Room 148) a courtesy copy of all filings related to 277 Motion for Summary Judgment on SCO's First Claim for Slander of Title Based on Failure to Establish Special Damages. (tco) (Entered: 01/04/2010)

Novell's motion for summary judgment on slander of title was heard back in June of 2007, and Novell won that motion (update: technically, it was mooted by Novell winning another motion):
This court's conclusion that Novell owns the UNIX and UnixWare copyrights impacts several of the claims asserted by both parties and several pending motions. Novell's motion on the copyright issue is brought with respect to SCO's First Claim for Relief for slander of title and Third Claim for Relief for specific performance. Novell is entitled to summary judgment on SCO's First Claim for Relief for slander of title because SCO cannot demonstrate that Novell's assertions of copyright ownership were false. First Sec. Bank of Utah v. Banberry Crossing, 780 P.2d 1253, 1256-57 (Utah 1989). In addition, Novell is entitled to summary judgment in its favor on SCO's Third Claim for Relief seeking an order directing Novell to specifically perform its alleged obligations under the APA by executing all documents needed to transfer ownership of the UNIX and UnixWare copyrights to SCO. Neither the original APA nor Amendment No. 2 entitle SCO to obtain ownership of the UNIX and UnixWare copyrights.
I think you can readily see why SCO would want a do over, in that the decision on slander of title was based on a ruling that is now itself getting a do over, only this time by a jury, as a result of the ruling by the Appeals Court that it's a matter that requires a decision by a jury, not just a judge.

But doesn't SCO at least have to ask to put this back on the table? Can the judge just do this by fiat or as a favor or after a phone call? Like I say, it's a mystery to me so far. I am curious how it gets brought up again and put back on the table without a motion from SCO. We knew SCO wanted to reopen it, since Bonnie Fatell foreshadowed it in her remarks at the latest bankruptcy hearing. There may be a very innocent explanation that will surface later, and if so, I'll surely tell you. It could just be a mistake on the judge's part or the clerk's, so we'll need to wait and see what develops. But I confess when I read this notice, it made the hairs on the back of my neck stand straight up.

Update: I think I have found the innocent explanation. If you read the reports from the most recent status hearing, you find this:

Mr. Jacobs said there were Summary Judgement motions that were mooted when Judge Kimball ruled which Novell would like to heard, including their motion on no special damages. Judge Stewart asked if they were fully briefed before Judge Kimball, which Mr. Jacobs said they were....

After the judge left, the clerk and the parties continued to discuss scheduling. They set Feb 25th at 2pm for the final pre-trial conference. Michael Jacobs said that right after the new year they will file a summary judgment motion regarding no malice pertaining to the slander of title claim. There was some preliminary discussion of dates and time frames for motions but nothing really decided. A court clerk when asked said that on motions that have already been fully briefed, and argued, before Judge Kimball, a new judge would likely want another hearing for argument. It was decided the attorneys would discuss between each other the various dates they will require and call the court back for scheduling.

After the judge left the room, the parties worked things out with the clerk, so this would be when the missing link occurred, with the parties agreeing on what motions would be reargued.

Update: Wait. 277 isn't about no malice. It's about special damages. So the mystery remains.


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