Novell has filed its first motion in limine [PDF], the full title of which is Motion in Limine No. 1 to Exclude Evidence and Argument Concerning Claims Not Included in SCO's Appeal or the Tenth Circuit's Limited Mandate. It's making me chuckle.
Ah! The mandate rule. Since the judge, the Hon. Ted Stewart, highlighted it in one of his recent orders, as had Judge Cahn before him, Novell's response is, Fine. Let's all live by the mandate rule. Judge Stewart denied one of Novell's summary judgment motions, holding that the Tenth Circuit “remanded this matter to the Court for trial on those four specific issues identified in the mandate,” and that “[b]ecause of the specific nature of the mandate, the Court is not free to explore matters outside of it.”
So what's good for the goose should be good for the gander. Obviously, we'll find out now what Judge Stewart is made of, since it was his order that brings this motion in limine's argument to the fore. To deny Novell's motion, Judge Stewart has to more or less admit he goofed in his order on Novell's summary judgment motion on the slander of title special damages claim (or alternatively that he was too strict about the mandate rule in his order on Novell's 60(b) motion), which I earlier indicated I thought he had. What to do? What to do?
Now, judges are used to acknowledging their own errors, as it's part of their job to be reviewed by their superiors in the chain if not always by their betters. So that isn't likely to be a problem. I discern, then, that unless the fix is in, as they say, this motion in a normal universe would be granted. In short, I think we are about to find out if we are in a normal universe in Utah for the upcoming SCO v. Novell trial, beginning on March 8, or not.
Here it is:
I don't think it much matters to Novell which way the judge rules, by the way, in that they won't mind if he decides the mandate rule isn't as restrictive as he earlier thought it was. Then they'll bring back to the table his order [PDF] denying their Rule 60(b) motion regarding the SCOsource license money. No judge, even if the fix were in, can blatantly favor only one side to a dispute. It has to be a lot more subtle and plausible-seeming than that, even if it is happening, which, in my experience, is rare. Litigation requires a very strong stomach and steady nerves. You have to have the ability to function well even if some ruling goes against you. Things don't always go your way, no matter how good you are or even how right. It's all in taking the long view, and trusting that the rules of the road matter and usually prevail in the end. And then not giving in to negativity, but instead, when the judge hands you lemons, thinking hard to figure out how you can turn them into some mighty refreshing lemonade.
02/06/2010 - 627 - MOTION in Limine No. 1 to Exclude Evidence and Argument Concerning Claims Not Included in SCO's Appeal or the Tenth Circuit's Limited Mandate filed by Defendant Novell, Inc.. (Attachments: # 1 Exhibit 1-Final Judgment, # 2 Exhibit 2-Tenth Circuit Opinion, # 3 Exhibit 3-SCO Appeal Brief, # 4 Exhibit 4-SCO Reply Brief, # 5 Exhibit 5-Ruling, # 6 Exhibit 6-Order)(Brennan, Sterling) (Entered: 02/06/2010)
When did Cahn talk about the mandate rule? Well, not directly, but I noticed at the last bankruptcy hearing that his attorney, Bonnie Fatell, said this in the context of opposing SUSE's motion to resume the arbitration:
Trustee has considered this and his view is that if there is an appeal, the legal issues have already been decided on SJ and the 10th Circ. has laid out a roadmap for how the trial should proceed, and so if there is an appeal it would probably be limited to evidenciary rulings or if there is a jury charge.
I noted the wording, "the 10th Circuit has laid out a roadmap for how the trial should proceed," and I figured that would be their strategy going forward, that on every issue in dispute, SCO would claim that the mandate rule applied and try to make the appeals court judgment apply somehow in their favor at every turn. And it gave me chills, I confess, when I saw that Judge Stewart was channeling that very theme in his recent order. SCO really only has won once in the entire 7 years of litigation, IIRC, and that was the appeals court ruling, so they would naturally wish to milk it for all it's worth, but how to explain the judge's order? I confess I could not. But what was clear was that both SCO and the judge were on the same page as regards the mandate rule. By the way, we have added a section listing all the substantive court orders in the SCO v. Novell litigation, so you can check me on that, if you want to.
But now, my friends, we have come to a true fork in the road. I can' t help but enjoy the view, and I'm looking forward to reading SCO's opposition to this motion, not just the judge's order. If you recall, which you probably don't, the first time around, when the parties filed their motions in limine, SCO tried to reargue issues already decided. So it isn't just the judge who is in an odd box now. Their whole style has been, as I see it, trying to reargue matters already decided, over and over, and also bringing in surprise elements to blindside Novell and IBM. How can they do that in the new trial, if the mandate rule strictly applies? Like I said, it is making me grin.
If you've forgotten what a motion in limine is, here's the definition from Nolo's Plain English Dictionary:
A motion made before a trial begins, asking the court to decide whether particular evidence will be admissible.
Update: The judge wants to hear from SCO:
Here's the filing referenced, SCO's initial appellate brief, and here's the Novell motion in limine:
02/08/2010 - 628 - DOCKET TEXT ORDER Plaintiff is directed to respond to 627 MOTION in Limine No. 1 to Exclude Evidence and Argument Concerning Claims Not Included in SCO's Appeal or the Tenth Circuit's Limited Mandate filed by Novell, Inc., by February 12, 2010 at 5:00 p.m. No attached document. Signed by Judge Ted Stewart on 2/8/2010. (tco) (Entered: 02/08/2010)
WORKMAN | NYDEGGER A PROFESSIONAL CORPORATION
Sterling A. Brennan (Utah State Bar No. 10060; [E-mail])
David R. Wright (Utah State Bar No. 5164: [E-mail])
Kirk R. Harris (Utah State Bar No. 10221; [E-mail])
Cara J. Baldwin (Utah State Bar No. 11863; [E-mail])
MORRISON & FOERSTER LLP
Michael A. Jacobs, Pro hac vice; [Email]
Eric M. Acker (Admitted Pro Hac Vice; [E-mail])
Grant L. Kim (Admitted Pro Hac Vice; [E-Mail])
Attorneys for Defendant and Counterclaim-Plaintiff Novell,
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION
|THE SCO GROUP, INC., a Delaware corporation,
NOVELL, INC., a Delaware corporation,
AND RELATED COUNTERCLAIMS
|Case No. 2:04CV00139
NOVELL’S MOTION IN LIMINE
NO. 1 TO EXCLUDE EVIDENCE
AND ARGUMENT CONCERNING
CLAIMS NOT INCLUDED IN SCO’S
APPEAL OR THE TENTH
CIRCUIT’S LIMITED MANDATE
Judge Ted Stewart
Novell moves to preclude SCO from presenting evidence or argument on claims not included in SCO’s appeal or the Tenth Circuit’s mandate. The Tenth Circuit reversed and remanded for trial on copyright ownership and SCO’s related claim for specific performance of Novell’s alleged duty to transfer copyrights to SCO. SCO did not appeal — and the Tenth Circuit did not reverse — the judgment on SCO’s slander of title claim or the copyright ownership portions of its unfair competition and covenant of good faith claims. Thus, SCO should be precluded from presenting evidence or argument on those claims.
SCO asserted four separate claims related to ownership of the UNIX copyrights in its operative Second Amended Complaint (Dkt. No. 96, ¶¶ 91, 108, 99 & 122):
(1) Novell slandered SCO’s title by falsely stating that Novell owns the copyrights; Judge Kimball ruled on summary judgment 1 that “Novell is the owner of the UNIX and UnixWare copyrights.” (Ex. 5 at 62.)
Judge Kimball held that this ruling entitled Novell to summary judgment on all four claims above. (Id. at 62, 63, 65, 99.) On specific performance, Judge Kimball emphasized that “[n]either the original APA nor Amendment No. 2 entitle SCO to obtain ownership of the UNIX and UnixWare copyrights.” (Id. at 62.) On unfair competition and good faith, Judge Kimball granted summary judgment on the additional ground that SCO had failed to present evidence that Novell’s public statements were “objectively unreasonable” or
(2) Novell breached the APA by failing to specifically perform its obligation to transfer the UNIX copyrights to SCO;
(3) Novell breached the implied covenant of good faith under the APA and TLA by denying that it owns the copyrights; and
(4) Novell engaged in unfair competition by falsely claiming ownership of the UNIX copyrights.
"based on anything but its good faith interpretation of the contracts.” (Id. at 64-65.) In November 2008, Judge Kimball entered a final judgment dismissing “SCO’s claims for Slander of Title (Count I) and Specific Performance (Count III),” as well as “SCO’s claims for Breach of Contract (Count II)...and Unfair Competition (Count V), insofar as these claims are based on ownership of pre-APA UNIX and UnixWare copyrights.” (Ex. 1 at 1.)
In its opening brief, SCO asked the Tenth Circuit to reverse the rulings that “Santa Cruz did not acquire the UNIX and UnixWare copyrights under the APA” and that “SCO is not entitled to specific performance, requiring the transfer of those copyrights now,” as well as several unrelated claims (Ex. 3 at 70); but it did not seek reversal of the judgment on its slander of title claim, or the copyright ownership portions of its unfair competition and covenant of good faith claims (which were barely even mentioned). (See id. at 2, 4, 11, 31, 51, 70.) The Tenth Circuit remanded with a mandate closely tracking SCO’s request for relief:
For the foregoing reasons, we AFFIRM the district court’s judgment with regards to the royalties due Novell under the 2003 Sun-SCO Agreement, but REVERSE the district court’s entry of summary judgment on (1) the ownership of the UNIX and UnixWare copyrights; (2) SCO’s claim seeking specific performance; (3) the scope of Novell’s rights under Section 4.16 of the APA; (4) the application of the covenant of good faith and fair dealing to Novell’s rights under Section 4.16 of the APA. On these issues, we REMAND for trial [emphasis added]. SCO Group, Inc. v. Novell, Inc., 578 F.3d 1201, 1227 (10th Cir. 2009) (reproduced as Ex. 2).
Novell initially interpreted this remand as not necessarily barring retrial of other claims. Novell moved for relief from the judgment on its claim for SVRX royalties, as that judgment was based on the copyright ownership ruling that the Tenth Circuit reversed. This Court denied that motion, holding that the Tenth Circuit “remanded this matter to the Court for trial on those four specific issues identified in the mandate,” and that “[b]ecause of the specific nature of the mandate, the Court is not free to explore matters outside of it.” (Ex. 6 at 4.)
This Court ruled that the Tenth Circuit’s mandate limits the trial to the four specific issues identified in its mandate. The mandate includes (1) copyright ownership; (2) specific performance; (3) Novell’s rights under Section 4.16, which concerns SVRX licenses (and not copyright ownership); and (4) applying the covenant of good faith to those rights. The mandate does not include SCO’s slander of title claim or the copyright ownership portion of its unfair competition and good faith claims because SCO did not appeal, and the Tenth Circuit did not reverse, the judgment on these claims. The Tenth Circuit remanded for trial on copyright ownership in connection with SCO’s claim for specific performance and not in connection with any other claim. Copyright ownership is an essential element of SCO’s specific performance claim, as this claim requires SCO to prove that the contract entitled SCO to ownership, but Novell failed to sign the necessary transfer documents.
SCO may argue that the judgment on its slander of title claim should be vacated because it was based on the copyright ownership ruling that the Tenth Circuit reversed. However, this Court has already rejected that argument in the context of Novell’s Rule 60(b)(5) motion:
[SCO] could have easily argued to the Tenth Circuit that, if this Court’s decision concerning the ownership of the copyrights was reversed, the decision concerning [slander, unfair competition, and good faith] should similarly be reversed. [It] did not. The Court cannot ignore [SCO’s] decision not to address this issue on appeal. (Ex. 6 at 4 [substituting SCO for Novell, mutatis mutandis].) See also SCO Group, 578 F.3d at 1226 (“An issue or argument insufficiently raised in a party’s opening brief is deemed waived”). Under the Tenth Circuit’s mandate and this Court’s recent ruling, SCO should be precluded from presenting any evidence or argument on the slander of title, unfair competition, and good faith claims that were not included in SCO’s appeal or the limited mandate.
DATED: February 6, 2010
By: /s/ Sterling A. Brennan
MORRISON & FOERSTER LLP
Attorneys for Defendant and
Counterclaim-Plaintiff Novell, Inc.
Judge Kimball’s summary judgment ruling and final judgment, the Tenth Circuit’s opinion, and SCO’s appeal briefs are reproduced as exhibits hereto.