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| Novell asks for further ruling on Motion in Limine No. 4 |
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Sunday, March 07 2010 @ 11:05 PM EST
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Novell has asked the Court to rule further on their Motion in Limine No. 4 [PDF; text]. The Court had previously issued a ruling [PDF] granting that Motion, but Novell now asks for further ruling, stating that "[t]he Court addressed this issue solely in the context of SCO’s covenant of
good faith claim. However, Novell’s motion covered all of SCO’s claims, including slander of
title. The Court’s prior ruling did not expressly address other claims, so Novell requests the
Court to rule on the issue that was left open by its prior order."
Here's the filing:
03/07/2010 - 775 - Fourth MOTION in Limine Novell's Motion for Further Ruling on Motion in Limine No. 4 to Preclude SCO From Contesting that Novell Had An Objectively Reasonable, Good Faith Basis for Its Statements Regarding Copyright Ownership filed by Counter Claimant Novell, Inc., Defendant Novell, Inc.. (Brennan, Sterling) (Entered: 03/07/2010)
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NOVELL'S MOTION FOR FURTHER
RULING ON MOTION IN LIMINE
NO. 4 TO PRECLUDE SCO FROM
CONTESTING THAT NOVELL HAD
AN OBJECTIVELY REASONABLE,
GOOD FAITH BASIS FOR ITS
STATEMENTS REGARDING
COPYRIGHT OWNERSHIP
Judge Ted Stewart
(1)
I. INTRODUCTION
Novell requests a further ruling on Novell's Motion In Limine
No. 4 because the Court's prior order was limited only to a portion
of that motion. Novell's motion requested that the Court "preclude
SCO from presenting any evidence or argument that Novell did not
have an objectively reasonable, good faith basis for its statements
regarding copyright ownership." (Mot. at 3, Dkt No. 631.) The Court
addressed this issue solely in the context of SCO's covenant of
good faith claim. However, Novell's motion covered all of SCO's
claims, including slander of title. The Court's prior ruling did
not expressly address other claims, so Novell requests the Court to
rule on the issue that was left open by its prior order.
II. PROCEDURAL BACKGROUND
SCO mischaracterized Novell's Motion In Limine No. 4 as arguing
that "the law of the case doctrine precludes litigation of SCO's
claims for unfair competition and for breach of the implied duty of
good faith and fair dealing insofar as those claims relate to
Novell's claims of copyright ownership." (Opp'n at 1, Dkt. No.
684.) In fact, Novell did not limit its motion to specific claims.
On the contrary, Novell asserted that the law of the case
"precludes relitigation of issues decided for one claim that
are relevant to a different claim." (Mot. at 2-3 (emphasis
added, Dkt No. 631).) Novell requested the Court to bar SCO from
"presenting any evidence or argument that Novell did not have an
objectively reasonable, good faith basis for its statements
regarding copyright ownership," without linking this bar to a
specific claim. (Id. at 3.)
This Court granted Novell's Motion In Limine No. 4, but only
after limiting the motion to SCO's covenant of good faith claim.
(Order Granting Novell's Motion In Limine No. 4 at 2, Dkt. No.
724.) The Court stated that Novell "essentially argues that the law
of the case and the mandate rule precludes litigation of the
copyright ownership portions of Plaintiff's claims for unfair
competition and for breach of the implied duty of good faith and
fair dealing." (Id. at 1.)
1 (2)
However, as noted above, Novell generally sought to preclude SCO
from contesting that Novell had a reasonable basis for its
statements, without limiting this preclusion to a specific
claim.
Novell pointed out in its Trial Brief that the Court's ruling on
Novell's Motion in Limine No. 4 did not address Novell's request
that "SCO be precluded from presenting evidence or argument that
Novell lacked an objectively reasonable, good faith basis for its
statements regarding copyright ownership." (Dkt. No. 738 at 6
n.12.) Novell explained that it would submit further briefing on
this issue in connection with its Request for Judicial Notice.
(Id.)
Novell's Judicial Notice brief asserted that the Court should
take judicial notice of the prior findings regarding Novell's
reasonable, good faith basis for its statements. (Judicial Notice
Brief at 4-7, Dkt. No. 749.) Novell contended that (1) judicial
notice may be taken of prior findings in a case; and (2) the
doctrines of law of the case and issue preclusion bar a party from
relitigating an issue decided for one claim in the context of a
different claim. (Id. at 1-3, 5-6.)
On March 5, 2010, the Court denied Novell's Request for Judicial
Notice on the ground that taking judicial notice of "factual
findings" made in the context of a different claim "would be
misleading and confusing if read to the jury." (Order at 3, Dkt.
No. 763.) The Court did not expressly address Novell's second
argument based on the law of the case. (See id.)
III. ARGUMENT
Judge Kimball's ruling that SCO failed to present evidence that
Novell lacked an objectively reasonable, good faith basis for its
statements is law of the case that bars SCO from relitigating this
ruling in connection with any claim. (See Novell's Motion in
Limine No. 4 at 2-3, Dkt. No. 631; Novell's Judicial Notice Brief
at 2-7, Dkt. No. 749.) The Tenth Circuit has held that a party is
barred from "relitigating an issue once it has suffered an adverse
determination on the issue, even if the issue arises when the party
is pursuing or defending against a different claim."
Moss v. Kopp, 559 F.3d 1155, 1161 (10th Cir. 2009) (emphasis
added). See also Ag Servs. of Am., Inc. v. Nielsen, 231 F.3d
726, 732-33 (10th Cir. 2000) ("once
2 (3)
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") (emphasis added), reh'g
denied 235 F.3d 559 (10th Cir. 2000); St. Paul Fire &
Marine Ins. Co. v. Heath Fielding Ins. Broking Ltd., No. 91
Civ. 0748, 1995 U.S. Dist. LEXIS 19847, at *30-35 (S.D.N.Y. Dec.
30, 1995) (dismissal of negligence claim is law of the case that
bars negligent misrepresentation claim).
Further, SCO did not appeal the adverse rulings on its
unfair competition and covenant of good faith claims, and the Tenth
Circuit did not reverse those rulings. (See Order Granting
Novell's Motion In Limine No. 4 at 1-2, 4, Dkt No. 724.) Indeed,
the Tenth Circuit held that Novell had "powerful arguments" on
copyright ownership, and that this issue presented "ambiguities"
that "could legitimately be resolved in favor of either party."
The SCO Group, Inc. v. Novell, Inc., 578 F.3d 1201, 1215
(10th Cir. 2009). Therefore, controlling Tenth Circuit precedent
bars SCO from relitigating those rulings in the context of any
claim, including slander of title. See Moss, 559 F.3d at
1161; Ag Servs., 231 F.3d at 732-33.
SCO asserts that good faith is an issue for the jury. (SCO's
Opp'n to Judicial Notice at 1, Dkt. No. 758.) However, Judge
Kimball held as a matter of law on summary judgment that
"there is no evidence to demonstrate that Novell's position was
contrary to its own understanding of the contractual language or
objectively unreasonable given the history of the dispute between
the parties." (Order at 65, Dkt. No. 377).) Judge Kimball thus
rejected SCO's argument that "the evidence shows that Novell has
asserted an interpretation of the APA and related documents
contrary to its own understanding." (See SCO's Summary
Judgment Briefs, Dkt No. 299 at 18-19; Dkt No. 259 at 2-3, 17-18,
28-30; Dkt No. 306 at 2, 62-74).) On appeal, SCO could have argued
that SCO had presented sufficient evidence to raise a triable issue
as to whether Novell had a reasonable, good faith basis for its
statements. However, SCO failed to do so. Accordingly, Novell
requests an order barring SCO from presenting evidence or argument
on any claim at trial that Novell lacked an objectively reasonable,
good faith basis for its statements.
3 (4)
DATED: March 7, 2010
Respectfully submitted
By: /s/ Sterling A. Brennan
WORKMAN NYDEGGER
Sterling A. Brennan
David R. Wright
Kirk R. Harris
Cara J. Baldwin
MORRISON & FOERSTER LLP
Michael A. Jacobs, pro hac vice
Eric M. Acker, pro hac vice
Grant L. Kim, pro hac vice
Daniel P. Muino, pro hac vice
Attorneys for Defendant and Counterclaim-Plaintiff Novell,
Inc.
4 (5)
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| Authored by: ailuromancy on Sunday, March 07 2010 @ 11:35 PM EST |
| Proofread carefully to see if you any words out. [ Reply to This | # ]
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| Authored by: ailuromancy on Sunday, March 07 2010 @ 11:39 PM EST |
Please put the News Pick title in the title box so
people can find what has
already been said about an
article.
-- Never use the words 'Evil
Diabolical Plan'
on your resume. [ Reply to This | # ]
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| Authored by: Tufty on Sunday, March 07 2010 @ 11:39 PM EST |
Orf tropic too
---
Linux powered squirrel.[ Reply to This | # ]
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| Authored by: ChrisP on Monday, March 08 2010 @ 12:22 AM EST |
So Novell are still working on winning against SCO's Slander of Title claim.
Defense in depth.
If Judge Stewart grants this (and I think he should) will SCO have any case left
to put to the jury on it?
---
SCO^WM$^WIBM^W, oh bother, no-one paid me to say this.[ Reply to This | # ]
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| Authored by: Leg on Monday, March 08 2010 @ 12:59 AM EST |
Are we all holding our breaths, or what? I am not a lawyer, but here's how it
looks to me:
In SCO vs. Novell, SCO has not made a claim that Linux infringes on UNIX, and in
SCO vs. IBM those claims were well refuted.
So now, the SCO cases boil down to whether or not they can win awards for
damages on issues that are largely unrelated to the Open Source codebase. They
are:
1) Can SCO prove that IBM violated their contract for a joint venture in a UNIX
implementation?
2) Can SCO convince a jury that Novell's was malicious when it announced that it
believed it still owned the UNIX copyrights?
Novell's request for a ruling here seems quite just, indeed it would seem likely
that any fail to rule in Novell's favor here would lead to a successful appeal
of any slander of title ruling against Novell.
But the Yarrow money probably isn't enough to keep SCO afloat through a period
of appeals. Without big money from Novell, SCO cannot continue to exist long
enough to face arbitration followed by IBM.[ Reply to This | # ]
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| Authored by: SilverWave on Monday, March 08 2010 @ 06:33 AM EST |
:)
Or is there a real hope of fairness in this case?
/the eternal optimist
---
RMS: The 4 Freedoms
0 run the program for any purpose
1 study the source code and change it
2 make copies and distribute them
3 publish modified versions
[ Reply to This | # ]
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| Authored by: Anonymous on Monday, March 08 2010 @ 09:45 AM EST |
If I understand what is happening here, I really love Novell's style.
To me, it seems like they are letting it be known that they are not going to be
pushed around and walked on unfairly. They are not going to let the Judge side
step real issues that are detrimental to SCO's position.
Also, it seems that if the Judge is not going to be balanced, they will make
sure that there is an excellent paper trail all ready for appeal.
Further, since Cahn is determined to divert all of the creditors money to line
the pockets of Blank Rome and others, Novell should make sure that as much of
Yarro's and his cronyies' money is wasted tilting at windmills.
Three birds with one stone. I love it. Keep it up Novell. Win baby, win! No
quarter![ Reply to This | # ]
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| Authored by: Anonymous on Monday, March 08 2010 @ 10:19 AM EST |
Between them, judges Stewart and Gross boosted SCO's stock price. For most of
the last 3 months the price has been fluctuating around 40 cents/share, this
morning it went over 80 cents.
This is still a "lottery-ticket price",
i.e. the market doesn't think there's real value in SCO, just a small chance of
success in the litigation lottery. But investors evidently think that that
"small chance" is bigger than it was a week ago (though still small). [ Reply to This | # ]
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