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Last-Minute Filings from Judge Stewart, SCO, Novell
Monday, March 08 2010 @ 04:45 PM EST

My, if we think we're having trouble keeping up, how'd you like to be Judge Ted Stewart? Or Sterling Brennan, for that matter? So many filings already, and more today. Proposed exhibit and witness lists, a Memorandum of Authorities Regarding Excusing Potential Jurors Having Knowledge Pertaining to this Dispute -- the one I'm going to read first -- and another responding to SCO's Objection to Board Minutes and a letter from Brennan to the court. And then one more motion in limine denied. Judge Stewart has denied Novell's motion asking for a further, and broader, ruling on its already successful motion in limine #4. He views is as rearguing a point Novell lost already in the denied Request for Judicial Notice of Prior Factual Findings, and he's not going to change his mind. Of course, that's what appeals are for. And now Novell is fully positioned.

Here they are:

03/07/2010 - 776 - Memorandum of Authorities Regarding Excusing Potential Jurors Having Knowledge Pertaining to This Dispute filed by Counter Claimant Novell, Inc., Defendant Novell, Inc.. (Brennan, Sterling) (Entered: 03/07/2010)

03/08/2010 - 777 - Proposed Exhibit List by Plaintiff SCO Group.. (Hatch, Brent) (Entered: 03/08/2010)

03/08/2010 - 778 - Proposed Witness List (Will Call) by SCO Group. (Hatch, Brent) (Entered: 03/08/2010)

03/08/2010 - 779 - Proposed Witness List (May Call) by SCO Group. (Hatch, Brent) (Entered: 03/08/2010)

03/08/2010 - 780 - Proposed Witness List (Depositions) by SCO Group. (Hatch, Brent) (Entered: 03/08/2010)

03/08/2010 - 781 - MEMORANDUM DECISION denying 775 Motion in Limine. Signed by Judge Ted Stewart on 03/08/2010. (asp) (Entered: 03/08/2010)

03/08/2010 - 782 - DOCUMENTS LODGED consisting of Letter from Sterling A. Brennan. (asp) (Entered: 03/08/2010)

03/08/2010 - 783 - Memorandum of Point and Authorities Responding to SCO's Objection to Board Meeting Minutes filed by Defendant Novell, Inc.. (Brennan, Sterling) (Entered: 03/08/2010)

Here's a bit of Judge Stewart's reasoning about why he doesn't agree that Novell's law of the case argument is correct:
Defendantís law of the case argument fairs no better. The cases cited by Defendant in support of its argument address the issue of collateral estoppel. Collateral estoppel will bar a claim if four elements are met:
(1) the issue previously decided is identical with the one presented in the action in question, (2) the prior action has been finally adjudicated on the merits, (3) the party against whom the doctrine is invoked was a party or in privity with a party to the prior adjudication, and (4) the party against whom the doctrine is raised had a full and fair opportunity to litigate the issue in the prior action.
Here, the first element is not met because the issue previously decided is not identical to the issue in the action in question. As indicated, the ruling upon which Defendant relies dealt with unfair competition and breach of the implied covenant of good faith and fair dealing, it did not concern Plaintiffís slander of title claim. Therefore, Defendantís collateral estoppel claim fails.
He cites Moss v. Kopp, 559 F.3d 1155, 1161 (10th Cir. 2009). I wonder if that's the case he meant. It was a case about judicial immunity, as best I can see. A bit comical he's reading up on that. I think he means another case, Dodge v. Cotter, which is quoted in Amigos Bravos -- a ruling written by Justice Lucero, one of the judges who handled SCO's appeal, and note what it says just before the part Judge Stewart quoted:
We review de novo a district court's determination that collateral estoppel bars a plaintiff's claims. See Dodge v. Cotter Corp., 203 F.3d 1190, 1197 (10th Cir. 2000). Under the doctrine of collateral estoppel, "once a court has decided an issue of fact or law necessary to its judgment, that decision may preclude relitigation of the issue in a suit on a different cause of action involving a party to the first case." Ag Servs. of Am., Inc. v. Nielsen, 231 F.3d 726, 732 (10th Cir. 2000) (quotations and citations omitted). As applied in the Tenth Circuit, the elements of collateral estoppel are:
(1) the issue previously decided is identical with the one presented in the action in question, (2) the prior action has been finally adjudicated on the merits, (3) the party against whom the doctrine is invoked was a party, or in privity with a party, to the prior adjudication, and (4) the party against whom the doctrine is raised had a full and fair opportunity to litigate the issue in the prior action.
That's Dodge, 203 F.3d at 1198. So I read it that the issue must be the same, and the parties, but not the cause of action. And here's what the issue is that was decided on summary judgment by Judge Dale Kimball:
This matter is before the Court on Defendantís Motion for Further Ruling on its Motion in Limine No. 4. In its Motion in Limine No. 4, Defendant sought to preclude Plaintiff from contesting that Defendant had an objectively reasonable, good faith basis for its statements regarding copyright ownership. Defendantís Motion was based on the Courtís summary judgment ruling wherein the Court held, in relation to Plaintiffís unfair competition and breach of the implied covenant of good faith and fair dealing claims, that Defendant had an objectively reasonable, good faith basis for its statements regarding copyright ownership. The Court granted Defendantís Motion in Limine No. 4 to the extent that it sought to preclude Plaintiff from pursuing the copyright ownership portion of its breach of the implied covenant of good faith and fair dealing claims. Defendantís current Motion seeks to clarify that Plaintiff should not be 1 allowed to contest, as to any claim, that Defendant had an objectively reasonable, good faith basis for its statements regarding copyright ownership.
Here, Judge Stewart is citing the difference being a difference in causes of action. Now, I hasten to add, I'm just a paralegal, and he's a judge, so he's more likely to be right. But I don't quite see the hair he is splitting. If Novell had a good faith basis for stating it thought it owned the copyrights, how can it not have a good faith basis for stating it thought it owned the copyrights in every and all conceivable causes of action? The unchangeable issue is not the cause of action but the issue, the issue being, did Novell have a good faith basis for thinking it owned the copyrights? A child on the street with these facts in hand would say yes, obviously.

I'm just asking. Like I say, things are flying by really fast, so mistakes can happen and they do, but little by little they tend to get addressed. But here's another case that seems to draw the line at identical issue, not identical cause of action, Sack v. St. Frankcis Hospital:

Under the doctrine of collateral estoppel, "once a court has decided an issue of fact or law necessary to its judgment, that decision may preclude relitigation of the issue in a suit on a different cause of action involving a party to the first case." Murdock v. Ute Indian Tribe of Uintah and Ouray Reservation, 975 F.2d 683, 686 (10th Cir.) (quoting Allen v. McCurry, 449 U.S. 90, 94 (citation and footnote omitted)). In the Tenth Circuit collateral estoppel requires that the following four criteria be met:
"(1) the issue previously decided is identical with the one presented in the action in question, (2) the prior action has been finally adjudicated on the merits, (3) the party against whom the doctrine is invoked was a party or in privity with a party to the prior adjudication, and (4) the party against whom the doctrine is raised had a full and fair opportunity to litigate the issue in the prior action."
Id. at 687 (citations omitted).
I hasten to mention that I'm working only with cases that are available online for free, so you can follow along, and if one were really working on the case, you'd have to do things differently, checking to make sure the case is still good law, and I'm not doing that because for our purposes, it's enough to show that my question is at least a reasonable one. And finally there can be elements to various causes of action, whereby it is conceivable that you'd be fine on meeting all the elements in one cause of action but not another. So with all those disclaimers, I suggest you read Dodge v. Cotter, because it will give you the clearest picture of that they are discussing. It was also about a dispute on what the jury should be allowed to hear, and here's what happened in that case:
After hearing the arguments, the court ruled the "pure issue of negligence" had been decided and would not be relitigated, emphasizing the ruling did not affect liability, proximate cause, the negligence of another party, or willful and wanton conduct, all of which "certainly is going to be litigated." At the close of five weeks of trial in Dodge, the court then instructed the jury,
The Court already has determined that defendant was negligent. The Court's determination that the defendant was negligent must not influence you in determining any of the remaining issues in this case. As you will be instructed further at the end of this case, a finding of negligence is not a finding of liability. You must still determine whether defendant's negligence caused any of the injuries or damages alleged by plaintiffs, whether defendant's conduct constituted gross negligence, and other issues that will affect the liability, if any, of the defendant.
That's pretty much what Novell is asking for, no more.

Update: I came across another case that cites Moss regarding collateral estoppel, so maybe he did mean this case, but notice what the decision in Gibson v. Campbell, another 10th Circuit case from October of 2009, says:

As a general rule, a litigant is prohibited from bringing a claim that has already been decided in a prior case by the twin doctrines of preclusion: res judicata and collateral estoppel. See San Remo Hotel, L.P. v. City and County of San Francisco, Cal., 545 U.S. 323, 336-37 (2005). However, for preclusion to apply, the litigant must seek to litigate either the same claim, see, e.g., Lewis v. Circuit City Stores, Inc., 500 F.3d 1140, 1147 (10th Cir. 2007), or the same issue, see, e.g., Union Telephone Co. v. Qwest Corp., 495 F.3d 1187, 1195 (10th Cir. 2007), that was decided in the prior proceeding. Further, res judicata may also bar a litigant from bringing a claim that was not-but could have been-brought in a prior proceeding that generated a final, valid judgment on the merits. See Pelt v. Utah, 539 F.3d 1271, 1281 (10th Cir. 2008). Finally, in order to preclude relitigation of a particular issue under collateral estoppel, the prior determination of that issue must have been necessary to the judgment. See Moss v. Kopp, 559 F.3d 1155, 1161 (10th Cir. 2009).
Emphasis added. So according to this, it's either or, either the same issue or the same claim.

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