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Novell Objects to SCO's Motion for Judgment on Pleadings on Novell's Claims for $$ - Update: Hearing 4/30
Monday, April 07 2008 @ 09:35 PM EDT

New filings in SCO v. Novell, with Novell opposing SCO's latest motion for Judgment on the Pleadings on Novell's Claims for Money or Declaratory Relief:
04/07/2008 - 509 - MEMORANDUM in Opposition to SCO's Motion for Judgment on the Pleadings on Novell's Claims for Money or Claim for Declaratory Relief filed by Defendant Novell, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Sneddon, Heather) (Entered: 04/07/2008)

04/07/2008 - 510 - DECLARATION of David E. Melaugh re 509 Memorandum in Opposition to Motion for Judgment on the Pleadings on Novell's Claims for Money or Claim for Declaratory Relief filed by Novell, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Sneddon, Heather) (Entered: 04/07/2008)

Just reading the Introduction tells you that SCO is, once again, asking for unusual relief, which Novell strongly argues it can find no case law to support. What SCO wants is to keep the SCOsource money; but unless either the facts or the law support its position, it is hard to see how it can. Novell uses an illustration, about a guy selling someone else's car without the owner's permission.

Update: This motion has been set for a hearing on April 30 at 3 PM in Room 220, after the trial begins on the 29th, as per the Judge's earlier order that all summary judgment motions will be heard that day. Novell's Motion for Summary Judgment on its 4th Claim for Relief is already scheduled for the same time slot.

Here's the illustration:

To illustrate: suppose Nathan owns a car. If Nathan's friend Scott sells that car to Marty without Nathan's permission, it is hard to see how Scott can argue he is entitled to keep any of that money. Once Nathan gets the money back from Scott, Nathan might decide to keep the monty and let Marty keep the car. Or Nathan might demand the car back from Marty and return Marty's money. But in none of those scenarios does Scott get to keep the money he pocketed by selling something he didn't own.

Moreover, because, here, there is a dispute as to whether "Scott" had permission to sell Nathan's car, and because Scott has stated his intent to go on "selling cars" owned by Nathan, declaratory relief is anything but moot. SCO has proclaimed its intent to continue in the "business" of suing Linux users for purportedly using Novell's SVRX code. In bankruptcy, SCO sought approval of a $100 million loan to allow it to do precisely that. In fact, the terms of that loan contractually committed SCO to aggressively pursue its claims against the Linux community.

Novell is therefore entitled to pursue both forms of relief at the upcoming bench trial and the Court should deny SCO's motion to the contrary.

It is a bit stunning to realize that SCO reportedly wants blood to flow and heads to roll because it can't continue to sell cars it doesn't own, in effect. How dare the car's owner and passing witnesses on the street tell on them and get in the way of the SCO "business"?


  


Novell Objects to SCO's Motion for Judgment on Pleadings on Novell's Claims for $$ - Update: Hearing 4/30 | 86 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections Thread
Authored by: tyche on Monday, April 07 2008 @ 09:42 PM EDT

Craig
Tyche

---
"The Truth shall Make Ye Fret"
"TRUTH", Terry Pratchett

[ Reply to This | # ]

Off Topic (OT) Thread
Authored by: tyche on Monday, April 07 2008 @ 09:44 PM EDT

Craig
Tyche

---
"The Truth shall Make Ye Fret"
"TRUTH", Terry Pratchett

[ Reply to This | # ]

News Picks thread
Authored by: tyche on Monday, April 07 2008 @ 09:45 PM EDT

Craig
Tyche

---
"The Truth shall Make Ye Fret"
"TRUTH", Terry Pratchett

[ Reply to This | # ]

Oh, pity, pity me. . .
Authored by: tyche on Monday, April 07 2008 @ 09:48 PM EDT
Of course, Novell isn't the captains daughter, and TSCOG is DEFINITELY not the
lowly sailer, (and my apologies to Gilbert and Sullivan) but they HAD to try.
That doesn't mean they'll win, but they had to try. Isn't that what their
lawyer would say?

Craig
Tyche

---
"The Truth shall Make Ye Fret"
"TRUTH", Terry Pratchett

[ Reply to This | # ]

Insulting the judge...
Authored by: Anonymous on Monday, April 07 2008 @ 09:59 PM EDT
I especially like the bit where Novell state 'SCO is telling the public that
this court has a "dismal record on appeals" and that...'.

Paraphrasing: 'Hey Judge, this SCO group is calling you a clown".

nobody@nowhere.org

[ Reply to This | # ]

Novell Objects to SCO's Motion for Judgment on Pleadings on Novell's Claims for $$
Authored by: lgrant on Monday, April 07 2008 @ 10:00 PM EDT
I like the choice of names, Nathan, Scott, and Marty....especially the first
letters.

I think the judge is just going to love the part that says "SCO is telling
the public that this Court has a 'dismal record on appeals' and that SCO will
therefore be able to continue its SCOsource program notwithstanding the Court's
ruling on the parties' motions for summary judgment."

That should put the judge in a fine state of mind to rule on the motions.

Lynn Grant

[ Reply to This | # ]

Novell Objects to SCO's Motion for Judgment on Pleadings on Novell's Claims for $$
Authored by: Henning Makholm on Monday, April 07 2008 @ 10:07 PM EDT
It's not clear to me that the car analogy is useful. Wouldn't the correct
solution of that fable be that Nathan gets his car back, and then Marty is left
to try to get Scott to return his money?

In the Novell/SCO case, it seems more like Nathan owns a taxi and allows Scott
to drive it, but only within Utah and provided that all of the fare goes to
Nathan, who then pays Scott wages instead. One day Scrott drives Marty to
Colorado, breaching his agreement with Nathan. Scott now argues that because he
the trip was one he was not allowed to make, he can keep the money Marty paid
him. It should be sufficient to satisfy Nathan that Marty has since returned to
Utah on his own volition, and whether that gives Marty a right to get his money
back from Scott is not Nathan's problem.

[ Reply to This | # ]

Dissin The Judge And SCOs Next Motion....
Authored by: Anonymous on Monday, April 07 2008 @ 10:55 PM EDT
We dissed the judge and he ruled against us cuz he was mad. Appeal!

This is getting better and better....

[ Reply to This | # ]

Novell Objects to SCO's Motion for Judgment on Pleadings on Novell's Claims for $$
Authored by: tknarr on Monday, April 07 2008 @ 11:01 PM EDT

I've noted before: SCO seems to have flown it's lawsuit into coffin corner. Now they've got no choice but to keep on making these outrageous claims, because if they deviate even slightly from their line the wings come off one way or another.

[ Reply to This | # ]

digging the names.
Authored by: Anonymous on Tuesday, April 08 2008 @ 01:48 AM EDT
Nathan, Scott, Marty...

Novell, SCOX, M... ;)

[ Reply to This | # ]

Novell got a new guy on the team?
Authored by: Anonymous on Tuesday, April 08 2008 @ 05:25 AM EDT
Yes I've seen the signature Heather M Sneddon before, but,
I used to shake my head in disbelief at how SCO had no
shame for Novell's cold clinical analysis of their wrongs.

Now that SCO is so obviously down the gurgler, this
descent of MoFo to tabloid analogy gave me a new
understanding of laughing like a drain.

[ Reply to This | # ]

Novell Objects to SCO's Motion for Judgment on Pleadings on Novell's Claims for $$
Authored by: JamesK on Tuesday, April 08 2008 @ 10:20 AM EDT
'SCO is telling the public that this Court "has a dismal record on
appeals"...'

I'll bet that goes over well with Judge Kimball! ;-)


---
This space intentionally left blank.

[ Reply to This | # ]

Case Citations
Authored by: Anonymous on Tuesday, April 08 2008 @ 12:00 PM EDT
The legal researchers for SCO seem to have forgotten whose side they're on. Why
are they citing cases that bear no relevance to their case, or to the contrary,
favor Novell's position?

[ Reply to This | # ]

  • Case Citations - Authored by: PJ on Tuesday, April 08 2008 @ 12:12 PM EDT
    • Case Citations - Authored by: Anonymous on Tuesday, April 08 2008 @ 12:14 PM EDT
      • Case Citations - Authored by: Anonymous on Wednesday, April 09 2008 @ 08:54 AM EDT
    Ratification
    Authored by: Anonymous on Tuesday, April 08 2008 @ 12:09 PM EDT
    This is my understanding of Novell's strategy in [509]. Defer/delay
    ratification (or failure to ratify) of the unauthorized contracts. Move as
    quickly as possible towards a constructive trust and chapter 7, before a
    "white knight" reorganization plan is approved.

    [ Reply to This | # ]

    Good ol' Darl
    Authored by: GLJason on Tuesday, April 08 2008 @ 08:32 PM EDT
    I rue that I missed this back in October...
    "It's a little bit strange that that's how things are being portrayed, while, in fact, this is still early in the game."

    It's been five years since you implemented the first part of your scheme to defraud Linux users and to sue IBM. You've lost all of your claims against Novell and the only thing left to determine is how much money you owe them for your fraudulent conduct with the MS and SUN licenses. Novell's waivers will render most of your claims against IBM invalid and the remaining claims depended heavily on them. Despite numerous court orders dating back to December of 2003, you have been unable to produce any evidence that code that SCO (or Novell for that matter) owns is in Linux, it appears that all of your bluster is because Linux contains code that IBM owns and that IBM donated.

    I will grant you that your lawyers have been exceptional at delay, but the Novell trial is looming and that is the only thing keeping back the IBM trial since discovery is closed and expert reports have been submitted. I fail to see how you could still consider it to be "early in the game".

    [ Reply to This | # ]

    Novell Objects to SCO's Motion for Judgment on Pleadings on Novell's Claims for $$ - Update: Hea
    Authored by: Anonymous on Wednesday, April 09 2008 @ 08:49 AM EDT
    I'm curious - is this something that's considered normal for an attorney to do
    ?

    I'm asking because I believe the deputy DA did that when I once appealed a
    speeding conviction. One of my grounds was that the officer's testimony was in
    error regarding the width of the traffic lane. I indicated the correct width in
    my opening brief, but the DA said I should have done so as part of the settled
    statement on appeal. He quoted a case where the appelate court had opined that
    it could not ask the lower court about the width of a street after the appeal
    had been filed. However that same opinion also noted that they can just take
    judicial notice of the street width... so I never understood why the DA quoted
    that opinion (I just replied by quoting the same case and asking the appelate
    department to take judicial notice of the correct traffic lane width).

    [ Reply to This | # ]

    April fool anyone?
    Authored by: caecer on Wednesday, April 09 2008 @ 10:08 PM EDT
    If you look in Novell-510 at paragraph 4, you will find that Novell managed to
    download a copy of the "SCOsource Licensing" website on April 1st.
    <tongue in cheek mode> I wonder if they mean anything by that?</tongue
    in cheek mode>

    [ Reply to This | # ]

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