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Novell's Motion for Leave to Reply to SCO's Opposition to Motion in Limine # 1 - As Text - Update: Opposed/Denied
Monday, February 15 2010 @ 04:54 PM EST

I told you I thought we'd hear from Novell, and so we have: Novell has filed a motion asking the court's permission to reply to SCO's Opposition to Novell's Motion in Limine No. 1. Here's why:
As the court recognized when it established a separate, accelerated deadline for SCO to oppose the Motion, the significance of the issues presented by the Motion, in particular, justify some departures from the procedures to be employed with respect to the other motions in limine.
Exhibit A is their proposed Reply. I'll do it as text for you shortly.

Here's the motion, the proposed Reply and proposed Order:

02/15/2010 - 670 - MOTION for Leave to File Reply to SCO's Opposition to Novell's Motion in Limine No. 1 filed by Defendant Novell, Inc.. (Attachments: # 1 Exhibit A-Reply, # 2 Text of Proposed Order)(Brennan, Sterling) (Entered:02/15/2010)

Quickly though, here's the paragraph about the SCO claim that limiting the trial to SCO's specific performance claim would "make a mockery of the Tenth Circuit's decision":
Fourth, SCO contends that limiting the trial to SCO's claim for specific performance of Novell's alleged duty to transfer the copyrights would "make a mockery of the Tenth Circuit's decision" because SCO referred to this claim as "an alternative count." (Opp. 3.) However, SCO's specific performance claim requires the Court to decide whether the contracts entitle SCO to obtain ownership of the copyrights. This is the same issue that the Tenth Circuit analyzed in reversing Judge Kimball's summary judgment that the contracts did not require Novell to transfer the copyrights. See The SCO Group, 578 F.3d at 1214-19. Specific performance is an "alternative" only in that it applies if SCO has a contractual right to ownership that has not been perfected because Novell has not executed the required transfer documents. This does not change the fact that a trial concerning specific performance will necessarily require a decision on whether SCO had a contractual right to ownership. Thus, holding a trial on copyright ownership in connection with specific performance is consistent with the Tenth Circuit's mandate to conduct a trial on "ownership of the UNIX and UnixWare copyrights" and "SCO's claim seeking specific performance." See The SCO Group, 578 F.3d at 1227.

This was fast, don't you think?

02/16/2010 - 671 - MEMORANDUM in Opposition re 670 MOTION for Leave to File Reply to SCO's Opposition to Novell's Motion in Limine No. 1 filed by Plaintiff SCO Group. (Attachments: # 1 Exhibit A)(Hatch, Brent) (Entered: 02/16/2010)

02/16/2010 - 672 - Amended MEMORANDUM in Opposition re 670 MOTION for Leave to File Reply to SCO's Opposition to Novell's Motion in Limine No. 1 filed by Plaintiff SCO Group. (Attachments: # 1 Exhibit A)(Hatch, Brent) (Entered: 02/16/2010)

02/16/2010 - 673 - DOCKET TEXT ORDER denying 670 Motion for Leave to File. Signed by Judge Ted Stewart on 2/16/2010. No attached document. (tco) (Entered: 02/16/2010)

Surprised? Not so much the denial. But the judge didn't bother to write up an order, so how does Novell appeal that? He provides no basis for his decision. This is getting a little weird. SCO not only opposed, it provided a Sur-Reply in Opposition, just in case the judge did grant Novell's motion. Like he ever does that. They filed an amended version of Exhibit A. The only difference I see is on page 5, where they first referenced the wrong Novell motion. So, slander of title seems to be what the judge would like to try. Since he's already foreshadowed his views in his order on Novell's no special damages for slander of title motion, I'm guessing that Novell will be planning its appeal very methodically from here on. Or at least I would, if I were Novell. I believe it is now fairly obvious that we are in Alice in Wonderland-Utah, not on a level playing field. When you can so easily predict the orders from a judge based on who brings the motion, something smells funny. There can be many reasons for it, so I won't speculate at this point, but if you want to see why I feel that something is odd, go to Google and search by these keywords:
"motions in limine" reply to opposition
You will find many cases where replies to oppositions to motions in limine were allowed. Here's just one example on Justia, docket number 63, and there are others, without having to ask for permission. So Utah is different, or this judge is, for a reason I don't yet grasp. I'll keep researching. Meanwhile, here's P&G I, the case the parties are interpreting differently, and P&G II. The latter was on appeal, with the appellant saying that the lower court exceeded the scope of the earlier appeals court mandate. Yes, my friends, I smell more appeals ahead, based on this dispute as to exactly what the appeals court in this case meant to be tried back in Utah.

And here is Exhibit A in full:

*************************************

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)
[address, phone, fax]

MORRISON & FOERSTER LLP
Michael A. Jacobs, (Admitted Pro hac vice, E-mail...)
Eric M. Acker, (Admitted Pro hac vice, E-mail...)
Grant L. Kim,(Admitted Pro hac vice, E-mail...)
[address, phone, fax]

Attorneys for Defendant and Counterclaim-Plaintiff NOVELL, INC.

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

THE SCO GROUP, INC., a Delaware
corporation,

Plaintiff,

vs.

NOVELL, INC., a Delaware corporation,

Defendant.

______________

AND RELATED COUNTERCLAIMS.

______________

Case No. 2:04CV00139

NOVELL'S REPLY IN SUPPORT OF
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

_______________________

SCO does not dispute that it failed to ask the Tenth Circuit to reverse the judgment on SCO's slander of title claim and the copyright ownership portions of SCO's unfair competition and covenant of good faith claims. Nor does SCO dispute that the Tenth Circuit's mandate did not mention those claims. Nevertheless, SCO contends that Novell's motion should be denied because the mandate "necessarily implied" reversal of the slander of title judgment.1 (SCO's Opposition to Motion in Limine No. 1 ("Opp.") at 2, Dkt. No. 669.)

SCO's argument fails for several reasons. First, SCO has not even attempted to argue that the Tenth Circuit reversed the judgment on the copyright ownership portions of SCO's unfair competition and covenant of good faith claims. Therefore, Novell's motion to preclude SCO from presenting evidence or argument on those claims should indisputably be granted.

Second, SCO bases its "necessarily implied" argument on Procter & Gamble Co. v. Haugen, 317 F.3d 1121 (10th Cir. 2003) ("P&G II"). In P & G II, however, the Tenth Circuit had expressly reversed the prior summary judgment on P&G's Lanham Act claim. Id. at 1124-25.

The judgment of the district court is AFFIRMED as to all claims except the court's grant of summary judgment on P&G's Lanham Act claim and its dismissal of P&G's Utah tortious interference claim, as to which we REVERSE and REMAND for further proceedings in accordance with this opinion.
Procter & Gamble Co. v. Haugen, 222 F.3d 1262, 1280 (10th Cir. 2000)("P & G I"). The Tenth Circuit held that its prior mandate could "plausibly be read" as restoring P&G's Lanham Act claim for contributory infringement. P&G II, 317 F.3d at 1129. This does not help SCO, as the Tenth Circuit mandate did not even mention, let alone reverse, the slander of title judgment.2

1

Third, SCO asserts that the Tenth Circuit's reversal of the copyright ownership ruling requires reversal of the slander of title judgment because the ruling was the "only basis for dismissal of the slander of title count." (Opp. 1.) However, SCO did not make this argument in its appellate briefs, and the Tenth Circuit did not address it.3 SCO's assertion about what the Tenth Circuit might have done if SCO had made this argument is pure speculation. Indeed, the Tenth Circuit might have affirmed the judgment on the ground that slander of title requires proof of malice, and SCO did not challenge Judge Kimball's ruling that "there is no evidence that Novell's public statements were based on anything but its good faith interpretation of the contracts." (Ex. 5 at 64, Dkt. No. 377.)

Fourth, SCO contends that limiting the trial to SCO's claim for specific performance of Novell's alleged duty to transfer the coyrights would "make a mockery of the Tenth Circuit's decision" because SCO referred to this claim as "an alternative count." (Opp. 3.) However, SCO's specific performance claim requires the Court to decide whether the contracts entitle SCO to obtain ownership of the copyrights. This is the same issue that the Tenth Circuit analyzed in reversing Judge Kimball's summary judgment that the contracts did not require Novell to transfer the copyrights. See The SCO Group, 578 F.3d at 1214-19. Specific performance is an "alternative" only in that it applies if SCO has a contractual right to ownership that has not been perfected because Novell has not executed the required transfer documents. This does not change the fact that a trial concerning specific performance will necessarily require a decision on

2

whether SCO had a contractual right to ownership. Thus, holding a trial on copyright ownership in connection with specific performance is consistent with the Tenth Circuit's mandate to conduct a trial on "ownership of the UNIX and UnixWare copyrights" and "SCO's claim seeking specific performance." See The SCO Group, 578 F.3d at 1227.

Fifth, SCO notes that Novell had previously assumed that the trial would include slander of title (Opp. 1.) SCO is correct, but Novell had also assumed that the trial would include its claim for SVRX royalties for other SCOsource licenses, since Judge Kimball's prior denial of that claim "turned on" the copyright ownership ruling that the Tenth Circuit reversed. Both assumptions are now obsolete in view of this Court's recent ruling that the trial will be narrowly limited to the four specific issues in the Tenth Circuit's mandate.

Finally, SCO argues that this Court's reasoning in denying Novell's Rule 60(b) motion does not apply here, as SCO "did appeal." (Opp. 3.) But SCO did not argue in its appellate briefs that the slander of title judgment should be reversed. Therefore, this Court's prior holding is directly on point. 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 of title] should similarly be reversed." (See Ex. 6 at 4, Dkt. No. 627.) SCO failed to do so. Thus, SCO should be barred from attempting to reopen a judgment that it did not challenge in its appeal and that was not reversed by the Tenth Circuit.

DATED: February 15, 2010

Respectfully submitted,

By: /s/ Sterling A. Brennan

WORKMAN NYDEGGER

MORRISON & FOERSTER LLP

Attorneys for Defendant and
Counterclaim-Plaintiff Novell, Inc.

_______________

1 SCO also argues that Novell's motion is "equivalent" to a summary judgment motion. (Opp. 1 n. 1.) SCO is wrong. In fact, Novell simply seeks to enforce the summary judgment that has already been granted, and which was not appealed by SCO or reversed by the Tenth Circuit.

2 P&G is also inapposite because it involved a "general" mandate that left the district court "free to decide anything not foreclosed by the mandate." P&G II, 317 F.3d at 1125. This Court cited P&G for this point in holding that the Tenth Circuit's very specific" mandate in this case is not a general mandate. (Ex. 6 at 4 n. 9 [exhibits are attached to Novell's motion, Dkt. No. 627].)

3 SCO suggests that the Tenth Circuit did address this issue by "expressly recogniz[ing]" that slander of title "turned on" the ownership ruling. (Opp. 2) But the Tenth Circuit's only reference to slander of title was in the statement of facts. See The SCO Group, Inc. v. Novell, Inc., 578 F.3d 1201, 1207 (10th Cir. 2009). The Tenth Circuit did not analyze whether the slander of title judgment should be reversed, nor did it state (or even suggest) that it was reversing this judgment.

4 Judge Kimball did not rely on this ruling in rejecting SCO's slander of title claim, but a judgment may be affirmed based on any ground supported by the record. See, e.g., In re Courtesy Inns, Ltd., Inc., 40 F.3d 1084, 1087 (10th Cir. 1994).


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