Is SCO trying to lose this motion? Or just half-hearted? If it knows the court will not grant the motion, why file it? No. Really. Why? To keep things going as long as possible? They think Judge Ted Stewart will be more favorable to them than Judge Dale Kimball? Nothing else has changed.

When you are the paralegal, all you do is take the old document, change the dates to upgrade it, and hand it to your boss for him to add his touches, if any. I puzzle over why SCO is even bothering. But I'm thinking about that more and more. Why is SCO continuing when the outcome is so obvious?

Here's the filing:

07/26/2010 - 888 - MEMORANDUM in Opposition re 883 MOTION to Stay Taxation of Costs filed by Defendant Novell, Inc.. (Brennan, Sterling) (Entered: 07/26/2010)

Federal Rule of Civil Procedure 54 entitles Novell to its costs. SCO moves to stay taxation of costs. SCO has filed this motion once before - essentially verbatim - in a request to stay costs pending its earlier appeal in 2008. (See SCO's Motion to Stay Taxation of Costs, Dkt. No. 575.) This Court denied SCO's motion, then stating, "[T]he 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." (Mar. 13, 2009 Order Denying SCO's Motion to Stay Taxation of Costs, Dkt. No. 591 ["Mar. 13 2009 Order Denying Stay"].) The only reason SCO provides in favor of such a stay is the same reason it provided the first time it filed this motion: the possibility that things will turn out differently for SCO on appeal. As before, this Court should deny SCO's motion.

Assuming the result will be the same this time as last time, SCO next will file objections:

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.

Here it is as text, and all I had to do was copy and paste and then update, and what I noticed doing that was that Novell actually checked the case law, which SCO seems not to have done, and Novell adds another case, Sensormatic Elecs. Corp. v. Tag Co. US, to its list of supporting decisions, and it again and again cites the earlier decision denying SCO's almost verbatim motion. If I were Boies Schiller, I'd be embarrassed.

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

WORKMAN | NYDEGGER
Sterling A. Brennan (Utah State Bar No. 10060 [email]
David R. Wright (Utah State Bar No. 5164, [email])
Kirk R. Harris (Utah State Bar No. 10221, [email])
Cara J. Baldwin (Utah State Bar No. 11863, [email])
[address, phone, fax]

MORRISON & FOERSTER LLP
Michael A. Jacobs (Admitted Pro Hac Vice [email])
Eric M. Acker (Admitted Pro Hac Vice [email])
Grant L. Kim (Admitted Pro Hac Vice [email])
Deaniel P. Muino (Admitted Pro Hac Vice [email])
[address, phone, fax]

Attorneys for Defendant and Counterclaim-Plaintiff NOVELL, Inc.

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

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Federal Rule of Civil Procedure 54 entitles Novell to its costs. SCO moves to stay taxation of costs. SCO has filed this motion once before -- essentially verbatim -- in a request to stay costs pending its earlier appeal in 2008. ( See SCO's Motion to Stay Taxation of Costs, Dkt. No. 575.) This Court denied SCO's motion, then stating, "[T]he 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." (Mar. 13, 2009 order Denying SCO's Motion to Stay Taxation of Costs, Dkt. No. 591 ["Mar. 13, 2009 Order Denying Stay"].) The only reason SCO provides in favor of such a stay is the same reason it provided the first time it filed this motion: the possibility that things will turn out differently for SCO on appeal. As before, this Court should deny SCO's motion.

SCO's only cited support for its motion is How v. City of Baxter Springs, Nos. 04-2256 & 04-2256 JWL, 2006 U.S. Dist. LEXIS 23951 (D. Kan. Apr. 26, 2006), the same inapposite case it cited in 2008, in which the court, on an uncontested motion, stayed costs pending appeal. A subsequent case considering How concluded that How should be limited to unopposed stay requests. See Maytag Corp. v. Electrolux Home Prods., Inc., No. C 04-4067-MWB, 2006 U.S. Dist. LEXIS 89383 (N.D. Iowa Dec. 11, 2006). Examining the caselaw on staying costs, the Maytag court concluded that "the consensus seems to be that the court must have some valid reason for not awarding costs at the customary stage of the proceedings." Id. at *5; see also Fed. R. Civ. P. 54(d) (creating presumption in favor of costs award). In How, the "valid reason" was the consensus of the parties, a consensus not present here. In Maytag, the offered "valid reason" was the same as SCO offers — the possibility of reversal on appeal. Id. at *6. The Maytag court explicitly rejected such an argument:

The possibility that the underlying judgment might be reversed, with the result that the award of costs must also be reversed, is simply too speculative to outweigh the benefit of the trial court conducting a review of the bill of costs while the case is still fresh. The marginal difficulties of vacating an award of costs, upon which Maytag also relies, simply do not justify a stay based on the losing party's speculation that it might do better on appeal. Finally, the court notes that far more judicial resources have been expended to resolve the parties' dispute over whether or not to stay the taxation of costs than could possibly have been saved by delaying

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the taxation of costs to a later date, so that Maytag's judicial economy argument also is not persuasive. Therefore, the court will deny Maytag's motion to stay the taxation of costs.

As before, there are at least three compelling reasons to deny this motion. First, as the Maytag court noted and this Court agreed, it makes sense for this Court to review and determine costs while the facts of the case are fresh. (Mar. 13 2009 Order Denying Stay at 2; Maytag, 2006 U.S. Dist. LEXIS 89383 at *7; see also Le Moine v. Combined Comms. Corp., No. 95 C 5881, 1996 U.S. Dist. LEXIS 10838 (N.D. Ill. July 30, 1996) (expressing preference for review of costs while case fresh).

Second, it avoids the possibility of piecemeal appeals, as "[w]ith prompt taxation, any appeal from the award of costs [can] feasibly be consolidated with the pending appeal on the merits, thereby enhancing judicial efficiency." Singleton v. Dep't of Corr. Educ., No. 1:03CV00004, 2003 U.S. Dist. LEXIS 17834, *4-5 (W.D. Vir. Oct. 3, 2003); see also Mar. 13 Order Denying Stay at 2; Holley v. Giles County, No. 1:03-0071, 2005 U.S. Dist. LEXIS 44372, *6 (M.D. Tenn. Sept. 12, 2005) (denying motion to delay assessment of costs pending appeal); Epcon Gas Sys. v. Bauer Compressors, Inc., No. 98-CV-75392, 2001 U.S. Dist. LEXIS 12665 (E.D. Mich. Mar. 26, 2001)(recommendation that motion for stay of bill of costs pending appeal be denied.)

Third, establishing costs is necessary for Novell to supplement its claim in the Bankruptcy Court.

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DATED: July 26, 2010

Respectfully submitted,

By: /s/ Sterling A. Brennan

WORKMAN | NYDEGGER

MORRISON & FOERSTER LLP

Attorneys for Defendant and
Counterclaim-Plaintiff Novell, Inc.

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