SCO has filed a motion to stay taxation of costs until after the appeal they just filed notice that they plan to pursue. If you are getting that deja vu feeling, you're right. They did this the last time too. It's almost word for word the same. The last time, Novell opposed, and Judge Kimball denied SCO's motion, ruling that "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." SCO then filed objections to Novell's list of costs. It got it whittled down slightly. And here is SCO, submitting the same motion on the same grounds that the court said wasn't convincing the last time. Are they just going through the motions, so Novell has the annoyance and costs of having to file an opposition? One might begin to suspect. And no doubt Novell will oppose again. It wants to be paid. SCO even cites the same case [PDF] that didn't work for them last time, that Novell pointed out doesn't support their motion. What in the world is SCO thinking? Are they really trying? I don't think SCO is giving this their all.
Here's what never changes. SCO doesn't want to pay Novell anything if there is any way around it.
07/08/2010 - 882 - Transmission of Preliminary Record to USCA re 881 Notice of Appeal with partial docket attached. (jmr) (Entered: 07/08/2010)
07/08/2010 - 883 - MOTION to Stay Taxation of Costs filed by Plaintiff SCO Group. (Attachments: # 1 Appendix Unpublished Cases)(Hatch, Brent) (Entered: 07/08/2010)
Here it is as text:
***********************************
Brent O. Hatch (5715)
[redacted email]
Mark F. James (5295)
[redacted email]
HATCH, JAMES & DODGE, PC
[address, phone, fax]
David Boies (admitted pro hac vice)
[redacted email]
Robert Silver (admitted pro hac vice)
[redacted email]
Edward Normand (admitted pro hac vice)
[redacted email]
BOIES SCHILLER & FLEXNER LLP
[address, phone, fax]
Stuart Singer (admitted pro hac vice)
[redacted email]
Sashi Bach Boruchow (admitted pro hac vice)
[redacted email]
BOIES SCHILLER & FLEXNER LLP
[address, phone, fax]
Attorneys for Plaintiff, The SCO Group, Inc.
__________________
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
__________________
THE SCO GROUP, INC., by and through the
Chapter 11 Trustee in Bankruptcy, Edward N.
Cahn,
Plaintiff/Counterclaim-Defendant,
vs.
NOVELL, INC., a Delaware corporation,
Defendant/Counterclaim-Plaintiff.
________________
SCO’S MOTION TO STAY TAXATION
OF COSTS
Civil No. 2:04 CV-00139
Judge Ted Stewart
Plaintiff/Counterclaim-Defendant, The SCO Group, Inc. (“SCO”), respectfully moves this Court to stay taxation of costs pending resolution of SCO’s appeal of the Jury Verdict entered in this action on March 30, 2010, the Court’s evidentiary rulings at trial, the Findings of Fact and Conclusions of Law dated June 10, 2010, the Memorandum Decision and Order Denying SCO’s Renewed Motion for Judgment as a Matter of Law or, in the alternative, for a New Trial dated June 10, 2010, and the Final Judgment entered on June 10, 2010.
In its discretion, the District Court may stay the resolution of a bill of costs pending appeal. How v. City of Baxter Springs, Kas., Nos. 04-2256 & 57 JWL, 2006 WL 1128667, at *1 (D. Kan. Apr. 26, 2006) (citing authority). Such a stay is efficient, acknowledging that the grounds justifying the bill of costs may be reversed on appeal.
This Court entered Final Judgment in this case on June 10, 2010. On July 7, 2010, SCO filed its Notice of Appeal of that Judgment to the United States Court of Appeals for the Tenth Circuit. (Docket No. 881.) Novell does not dispute that SCO is taking an appeal nor that SCO may prevail, which would moot any award of costs from this Court, but instead has informed counsel for SCO that it seeks to supplement its claim in the Bankruptcy Court. Yet Novell cannot actually recover the costs pending the appeal, and if Novell were to prevail on appeal, this Court could just as easily resolve the bill of costs at that time.
In sum, absent any good reason for awarding costs at this time, and considering the pendency of SCO’s appeal, the Court should stay the resolution of Novell’s request until such time as the appeal has been resolved. In the event that such stay is not granted, SCO will file its objections to Novell’s Bill of Costs within ten days of the Court’s decision.
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DATED this 8th day of July, 2010.
By: /s/ Brent O. Hatch
HATCH, JAMES & DODGE, P.C.
Brent O. Hatch Mark F. James
BOIES, SCHILLER & FLEXNER LLP
David Boies
Robert Silver
Stuart H. Singer
Edward Normand
Sashi Bach Boruchow
Counsel for The SCO Group, Inc.
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