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Mandate Issues From 10th Circuit Court of Appeals Clerk - Updated
Thursday, October 29 2009 @ 06:40 PM EDT

The Appeals Court in Denver has sent a letter to the Utah District Court, letting them know that the mandate has issued and SCO v. Novell is to go to jury trial:

10/29/2009 - Open Document - [9706085] Mandate issued.

In the entire history of this case, or any SCO case, did you ever see a court move as rapidly as this? They can't seem to move fast enough to help SCO out, it seems. Remember the testimony that someone on the Boies team called a clerk of this court? Speaking as a paralegal, it does sometimes happen that you schmooze a little and make some friends of court clerks, so they'll lend a hand here and there, if they decide they want to.

Or it could be this court is uniquely rapid in handling all its cases.

: )

Bottom line: Novell is running this race now with a ball and chain on its leg, and when they asked to be allowed to run without it, they were denied within 24 hours of their petition being filed. Prontissimo.

Update: Speaking of speed, check this out:

11/02/2009 - 598 - NOTICE OF HEARING: (Notice generated by Chambers/slm) Status Conference set for 11/23/2009 10:00 AM in Room 142 before Judge Ted Stewart. (slm) (Entered: 11/02/2009)

Hilarious.

They'll still appeal to the Supreme Court, but the rapidly issued mandate means they'll have to dual track, the trial and the petition to the Supreme Court, because one lawyer can't possibly do it all, and that means potentially less seasoned, knowledgeable work on one of the tracks, just because the lead attorney knows more than anyone what already happened.

It's very puzzling to me that a court would put a party in a disadvantaged position like this. The whole point of the court system is fairness, I believe. But the final outcome of SCO's litigation follies will be the same, no matter what they do, I believe, unless the fix were in all the way up to the Supreme Court. The odds are against that. This isn't Russia, after all.

The marketplace has already spoken. It ruled long ago that SCO has no case. The courts will catch up eventually.

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

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
OFFICE OF THE CLERK
[address, phone]

Elisabeth A. Shumaker
Clerk of Court
Douglas E. Cressler
Chief Deputy Clerk

October 29, 2009

Mr. D. Mark Jones
United States District Court for the District of Utah
Office of the Clerk
[address, UT]

RE: 08-4217, SCO Group v. Novell, Inc.
Dist/Ag docket: 2:04-CV-00139-DAK

Dear Clerk: Please be advised that the mandate for this case has issued today. Please file accordingly in the records of your court or agency.

Please contact this office if you have questions.

Sincerely,

Elisabeth A. Shumaker
Clerk of the Court

cc:
David Boies
George C. Harris
Brent O. Hatch
Michael Allen Jacobs
Mark F. James
Thomas R. Karrenberg
Grant L. Kim
David E. Melaugh
John P. Mullen
Edward Normand
Devan V. Padmanabhan
Robert B. SIlver
Stuart H. Singer
Heather M. Sneddon
Thomas Theron Steele

EAS/bv


  


Mandate Issues From 10th Circuit Court of Appeals Clerk - Updated | 208 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections Here, Please
Authored by: TheBlueSkyRanger on Thursday, October 29 2009 @ 07:00 PM EDT
Dobre utka,
The Blue Sky Ranger

[ Reply to This | # ]

"unless the fix were in"
Authored by: Nice Kitty on Thursday, October 29 2009 @ 07:01 PM EDT
Perhaps "a 'certain' wise Latina" may have some different point of view. Maybe the "fix" is already in. After all, when this drek began in 2003 (?), did anyone expect it would come this far, to trial? Stranger things have happened, when expecting the court to see through (SCO's) B.S.

[ Reply to This | # ]

News Pick Discussion Here, Please
Authored by: TheBlueSkyRanger on Thursday, October 29 2009 @ 07:01 PM EDT
Dobre utka,
The Blue Sky Ranger

[ Reply to This | # ]

Off Topic Here, Please
Authored by: TheBlueSkyRanger on Thursday, October 29 2009 @ 07:03 PM EDT
And now, a word from /dev/null:





Dobre utka,
The Blue Sky Ranger

[ Reply to This | # ]

Mandate Issues From 10th Circuit Court of Appeals Clerk
Authored by: Anonymous on Thursday, October 29 2009 @ 07:03 PM EDT
"The whole point of the court system is fairness,"


Ha! Ha! Ha! Ha! Ha! Ha! Ha! Ha! Ha! Ha! Ha! Ha! Best joke yet. And all
politicians tell the truth!

[ Reply to This | # ]

Can't the Bankruptcy Court stay this, too?
Authored by: Anonymous on Thursday, October 29 2009 @ 07:10 PM EDT
If the Bankruptcy Court could stay earlier proceedings, why can't it
stay this trial, too? Further, the Delaware court is in the 3rd Circuit
(I think), not the 10th.

So, my theory is Novell asks Gross to stay any new proceedings
in Utah, while it goes to the Supreme Court. After all, think of the
money it would save the estate in legal expenses if everything were
frozen in place, no further activity or expenses allowed.

[ Reply to This | # ]

Prima Facie evidence for an investigation of corruption
Authored by: Guil Rarey on Thursday, October 29 2009 @ 07:15 PM EDT
Between a ruling that is, to say the least, tortuous, and now this, there would
seem to be grounds to ask for an independent review of the appellate court
itself on the grounds of bias.

Compared to the scrupulous conduct of the district court, this is, well,
disgusting.

One would expect to see shenanigans in the district courts and a higher standard
prevailing in appellate courts.

Sheesh.

---
If the only way you can value something is with money, you have no idea what
it's worth. If you try to make money by making money, you won't. You might con
so

[ Reply to This | # ]

The upside is that we get to see how to get a bogus lawsuit all the way to SCOTUS
Authored by: SirHumphrey on Thursday, October 29 2009 @ 07:21 PM EDT
Remember, SCOXQ.BK are "the smartest guys in the room"

Just type "smartest guys in the room" into Steve Ballmer's favorite
search engine, the one that isn't bung.

[ Reply to This | # ]

The Right To A Speedy Trial Is Alive And Well, I Guess
Authored by: TheBlueSkyRanger on Thursday, October 29 2009 @ 07:21 PM EDT
Hey, everybody!

Nope, this does nothing to dissuade my cynicism.

PJ"s statement about the legal system putting someone at a disadvantage,
unfortunately, gets undermined quite a bit. Remember how RIM was not granted a
delay while the patents were examined to be potentially overturned.

So, SCO wants delay, it gets delay. The opposition gets delay, and they don't
get it.

What's most upsetting about this is the obviousness of what's going on.
Everyone can tell there is no case and they are trying to use the courts to
cheat. Everyone can tell this is a shakedown scheme. Everyone can tell that
they are gaming the system (I'm sorry, but the BK has had plenty of time to get
the facts, and the fact that they had to be forced to appoint a trustee says
they aren't interested in the facts). SCO is confident they will win, and why
not? It is very difficult to view any of these events as anything but a
concerted effort to benefit SCO.

So, the question becomes, if this really is a fait accompli, where does that
leave us?

What is to be decided at the jury trial, what rights SCO has or whether Novell
should have kept their mouths shut? And, what happens when that is decided?

How much can SCO get in damages, and how long will that stretch things out?

It doesn't do to leave a live dragon out of your plans if you happen to live
near one. I think we should prepare for the contingency of this one hatching
and nesting here.

Dobre utka,
The Blue Sky Ranger

"It's the power and the glory, it's war in paradise
"A Cinderella story on a tumble of the dice."
--Rush
"The Big Money"

[ Reply to This | # ]

USian Justice
Authored by: Anonymous on Thursday, October 29 2009 @ 07:26 PM EDT
> Bottom line: Novell is running this race now with a ball
> and chain on its leg, and when they asked to be allowed
> to run without it, they were denied within 24 hours of
> their petition being filed. Prontissimo.

Unfortunately this conforms with my rather cynical view of the USian justice
system - purchased justice, or "justice" intentionally favoring one
party irrespective of the facts of the case.


[ Reply to This | # ]

Mandate Issues From 10th Circuit Court of Appeals Clerk
Authored by: Anonymous on Thursday, October 29 2009 @ 07:37 PM EDT
I believe that this has nothing to do with Novell's recent request for a stay
pending their filing for a cert with the Supreme Court.

I think that this mandate is a result of the appeal itself, and the refusal of
the appellate court to rehear or hear en banc the original appeal. Once those
refusals were recorded, it was a couple of weeks before the clerk issued this
mandate back to the Utah court.

Their has been no official response from the appeals court on Novell's request
for a stay. That response is still to come, and may deny or allow the sytay, and
if it is a ruling to stay the case pending the Supreme Court cert filing, then
the clerk of the appellate court will issue a notice at that time notifying the
Utah court of the stay.

[ Reply to This | # ]

Two Questions
Authored by: Anonymous on Thursday, October 29 2009 @ 08:05 PM EDT
1-How long before the Jury Trial?
2-How long before SCO's money runs out?

[ Reply to This | # ]

  • Two Questions - Authored by: Anonymous on Thursday, October 29 2009 @ 09:03 PM EDT
Mandate Issues From 10th Circuit Court of Appeals Clerk
Authored by: Tufty on Thursday, October 29 2009 @ 08:55 PM EDT
It stinks.

Tufty


---
Linux powered squirrel.

[ Reply to This | # ]

  • Agreed. - Authored by: RPN on Friday, October 30 2009 @ 06:31 AM EDT
  • Agreed. ...NT - Authored by: Ian Al on Friday, October 30 2009 @ 07:06 AM EDT
Mandate Issues From 10th Circuit Court of Appeals Clerk
Authored by: Anonymous on Thursday, October 29 2009 @ 09:42 PM EDT
What is this court thinking? Isn't it boiler plate to stay until an appeal has
been exhausted? All I can think is they are in a hurry to see the trial so that
they can blame a jury if the case is later overturned by the SCOTUS. IANAL, so
maybe I am misunderstanding what is going on here, but is seems pretty
outrageous for a court to act this way.

[ Reply to This | # ]

  • Yes - Authored by: Anonymous on Friday, October 30 2009 @ 04:13 AM EDT
    • Yes - Authored by: PJ on Friday, October 30 2009 @ 08:11 AM EDT
En Banc review of denial of stay?
Authored by: SpaceLifeForm on Thursday, October 29 2009 @ 10:42 PM EDT
Probably would not get any further than
the previous request, but you never know.

Besides, they did not follow the normal custom
of granting a 90 day stay pending disposition
of a petition for writ of certiorari.

Novell did not ask for anything special, there
was no reason to rush.



---

You are being MICROattacked, from various angles, in a SOFT manner.

[ Reply to This | # ]

Mandate Issues From 10th Circuit Court of Appeals Clerk
Authored by: Anonymous on Thursday, October 29 2009 @ 10:44 PM EDT
It appears that the appeals court doesn't want their decision second guessed,
and in retrospect, they understand that it probably will.

[ Reply to This | # ]

Mandate Issues From 10th Circuit Court of Appeals Clerk
Authored by: Anonymous on Thursday, October 29 2009 @ 10:56 PM EDT
In the entire history of this case, or any SCO case, did you ever see a court move as rapidly as this?

It's very puzzling to me that a court would put a party in a disadvantaged position like this.

I agree.
Did Novell do a bad deal with Brigham Young University or the Mormon Church that people would hold a grudge about?

[ Reply to This | # ]

The circuit is behaving strangely
Authored by: peope on Friday, October 30 2009 @ 12:05 AM EDT
The question is if it is a matter of law that the amended APA was ambiguous.

It seems the other districts are on the side of Novell.
However - they do not stand above the 10th circuit.

Maybe the 10th circuit truly believe that such a thing as the APA is not clearly
a matter of law to decide but a matter of fact.

They might agree that the matter of fact is that the amendment is not a legal
document of transfer of copyright.

However. As explained here on groklaw - matters of fact cannot be used in a
summary ruling.

I *do* hope the 10th circuit see this as the other circuits are wrong.

However. That does not explain why the 10th circuit would not want a stay
pending a response from the supreme court.

It is in conflict with the notion that the 10th circuit would see the other
circuits as having it wrong.

[ Reply to This | # ]

SCO knows which strings to pull
Authored by: Anonymous on Friday, October 30 2009 @ 03:55 AM EDT

Incredible. SCO wants delay - it gets all it asks for, and more, every time. When SCO's victims want to get on with proceedings, the legal system moves with all the speed of a glacier.

Then when a SCO victim asks for a delay on the most reasonable grounds - denied before the paper from the fax machine has had time to cool. When SCO wants to proceed quickly to disadvantage a victim - it gets what it wants in 24 hours!

PJ, stop telling us that the US legal system is fair, good, just, etc. The US legal system is corrupt.

I still believe that the US Supreme Court is clean. In the unlikely event it ever has time to look at this case, I believe it will cut through the obfuscation, understand the issues, and deliver a reasoned verdict. But it accepts only about 1 in 80 petitions. Be realistic, folks, the Supreme Court is never going to look at this case.

But below the SC? I don't know whether it's money, or undue influence, "good buddies", or what, but judges can be "fixed", can be biased - those who think otherwise need to get their heads out of the sand.

[ Reply to This | # ]

No need for such cynicism
Authored by: AMackenzie on Friday, October 30 2009 @ 04:16 AM EDT
[Yes, I had to look up the spelling. ;-]

The appeals court, in all fairness, has perhaps reasoned that if the trial
doesn't happen very soon, it won't happen at all, since SCO is in danger of
becoming not just bankrupt, but BANKRUPT!!!! The court might well be thinking
that Novell is deliberately procrastinating so as to hasten this BANKRUPT!!!!cy.
They might well be right.

If courts in general held to this particular principle of fairness, the world
would be a happier place - and SCOs cases would have been resolved in a few
months rather than many years.

[ Reply to This | # ]

OK, different theory
Authored by: Peter Baker on Friday, October 30 2009 @ 06:03 AM EDT
I realise I'm about to throw a very large stick into the hen
house, but what if SCO found early on that it had
"favourable" connections with judges? What if the players
on that side had found a way to either identify friendly
judges or make them friendly as required? Don't ask me how,
I'm just suggesting a point to test.

It would explain the complete absence of sanctions for what
has been in essence prolonged gaming and abuse of the legal
system, and the, umm, "surprising" judgements in this saga..

[ Reply to This | # ]

**AA?
Authored by: PolR on Friday, October 30 2009 @ 07:07 AM EDT
I will throw an heretic idea in the air.

If there are concerns that there may be untold influences at play, how about
letting the RIAA and MPAA know of this ruling? These guys want their copyrights
to be in the clear don't they? Or is it that they will be happy with a
litigation fertile ground? Perhaps there is a counterbalancing force to be found
there.

[ Reply to This | # ]

Not buying it
Authored by: Anonymous on Friday, October 30 2009 @ 03:18 PM EDT
As I've said before, I know Mike McConnell personally. I can't buy him taking a bribe, or changing a verdict as a favor to Orrin Hatch (or anyone else).

Even if I could buy that, I can't buy him getting two other judges to agree with him.

Even if I could buy that, I can't buy him getting the Appeals Court, en banc, to agree with a bogus ruling. I also can't buy the court en banc not realizing that it was bogus even after Novell pointed it out to them.

That means that they think this decision is correct. What I can't wrap my mind around is why they think that.

I mean, look, an appeals court can get it wrong. That's why you can appeal their decision to the Supreme Court. But I just can't buy all the lazy/incompetent/corrupt charges that are flying around here.

So I ask again - what did we miss in the Appeals Court verdict? What are they thinking that makes this reasonable (to them)? Understanding that is critical, because an appeal to the Supreme Court will probably fail if it does not address that issue, whatever it is.

MSS2

[ Reply to This | # ]

Think Bigger
Authored by: DaveJakeman on Friday, October 30 2009 @ 09:32 PM EDT
Having seen what issued from the Appeals Court, and the manner in which it
issued, and having read the posts of dismay, disbelief, corruption and
conspiracy, I haven't yet seen an explanation of conspiracy/sleaze/corruption
that adequately explains the observable facts and apparent bias towards SCO in
this depressing 6-year case history.

This seems to be the occasion where long-time posters are showing their colours
and saying what has been on their minds for some time, but perhaps didn't have
the will to post earlier. Before, the signs were too subtle and could perhaps
be explained by more prosaic reasoning. It's too blatant for that now.

Others have "gone out on a limb", and without fear of being ridiculed,
I will too:

Nothing I have seen above fully explains what is going on. Some theories are
based on the notion that SCO could do such-and-such to bring this about.
Poppycock. SCO are a fully expendable two-bit player in this, as was McBride,
the "Little Bulldog Puppet". There's your clue. There's something
much bigger going on behind the scenes than what is immediately apparent. It
could be Microsoft, or it could be bigger than Microsoft. Even having seen
Microsoft at work in the OOXML fiasco, it doesn't seem that Microsoft could
orchestrate such machinations as this within the justice system on their own,
whatever their lobbying and bribery.

Think bigger. Think bigger than governments.

What, you say? Bigger than governments? There's nothing bigger than a
government!

Oh yes there is.

Look at what is at stake here. We have the Monopoly and its monoculture O/S on
the desktop and in the home. We have their abysmal operating system
pre-installed on practically any computer you buy. It's only abysmal from the
perspective of the user and techies like us. For its other nefarious purpose,
it's actually quite good: spying on you and being controlled remotely, without
your permission. Those functions are carefully designed in. Those are the bits
that work smoothly and if they don't, get quickly fixed without your consent.

Buy a new PC with Windows installed and connect it to the internet via a switch
and a firewall router that don't use automatic configuration. You won't get
onto the 'net until you've manually configured Windows. And yet, before you've
"got your internet connection working", Windows has already figured
out your network topology and phoned home with your details, without so much as
asking you, telling you, or offering to get your connection working for you.
Why? To spy on you.

Why does Microsoft want to spy on you so badly? Think bigger.

Linux doesn't spy on you. Nor can it be easily subjugated. Is that Microsoft's
concern? Think bigger.

Linux poses a serious threat to those that would have you spied upon. That's
only one reason for all this.

FOSS. The first letter of FOSS stands for Free, as in Freedom. Freedom --
that's what this is about. There are some people that, regardless of what they
say, desperately do not want you to have Freedom. They are in powerful
positions. The reason they don't want you to have freedom is that it would
threaten their position. To put it nicely, it would upset their apple cart.
You are to be controlled. You are not to have freedom. You may only have a
token, ineffectual degree of freedom, strictly constrained. You are to be
hemmed into a corner and taxed heavily -- if not with actual Tax, with
Economics. You are to be good sheep.

The GPL is largely about Freedom. You see that being attacked too.
Increasingly so, of late.

What I see happening today doesn't surprise me. It dismays me, yes, but doesn't
surprise me. The pieces of the jigsaw fit together. Just think bigger.

[ Reply to This | # ]

Mandate Issues From 10th Circuit Court of Appeals Clerk
Authored by: Anonymous on Monday, November 02 2009 @ 02:08 PM EST
I know PJ's original intent for Groklaw was, as its name suggests, to bring an
understanding of the law to the geeks... but maybe, all of the cynical geeks
have had it right all along, and PJ is the one that needs a better understanding
of "the law".

If freedom were our guiding principle and not "the rule of law", Linux
couldn't be abused like this.

[ Reply to This | # ]

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