Groklaw - SCO Ordered to File Objections to Novell's Bill of Costs. Novell Files Motion to Dismiss with SCOTUS

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SCO Ordered to File Objections to Novell's Bill of Costs. Novell Files Motion to Dismiss with SCOTUS - Updated 2Xs

Tuesday, August 17 2010 @ 09:15 PM EDT

The chickens have flown home and are circling SCO, looking for a place to roost, with SCO doing its dance to postpone the inevitable. Judge Ted Stewart, who presided over the SCO v. Novell second trial has denied SCO's motion to stay taxation of costs, a motion which Novell opposed.

"Motion to stay taxation of costs" is legalese for "SCO doesn't want to have to pay what they owe Novell for dragging them through another pointless trial that found exactly what the first trial found, so it would like to figure out what the costs are later, much, much later." SCO asked for a postponement until all their appeals were decided. But the judge wasn't buying it.

Note they don't have to pay within ten days. They have to tell the court within ten days if there are any items on Novell's bill it thinks it should not have to pay at all.

Here's the order:

08/17/2010 - 889 - ORDER denying 883 Motion to Stay. Signed by Judge Ted Stewart on 08/16/2010. (asp) (Entered: 08/17/2010)

SCO has to file any objections they have to Novell's bill of costs within ten days. The Order Denying SCO's Motion to Stay Taxation of Costs puts it like this:

This matter is before the Court on SCO’s Motion to Stay Taxation of Costs. For substantially the same reasons set out in the Court’s previous Order, it is hereby ORDERED that SCO’s Motion to Stay Taxation of Costs (Docket No. 883) is DENIED.
In accordance with its Motion, SCO shall file its objections to Novell’s Bill of Costs within ten (10) days of this Order.

If there are no objections, they just pay the full amount. Not that SCO ever pays, it seems, unless it absolutely has to. The reasons Judge Kimball denied [PDF] SCO's postponement motion after the first trial SCO also lost was as follows:

[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.

Ten days, then. The idea is that you want to do the math while it's still fresh in the judge's and everyone's minds. If SCO were to win on appeal, then it would get its money back.

This is a bit of a runaround on paper, which we notice because Novell's bill of costs totals $315,501.19, which includes the first bill of costs amount SCO never paid and the new costs. This is just costs, remember, not attorneys' fees. That will come later.

The next step is that SCO can object to specific items on Novell's list, if it can find any to object to. The last time, it successfully found some things to object to, so no doubt SCO will try again to whittle it down. Why they bother when they never pay is the mystery, but it's just how SCO rolls.

So the chickens are circling, but they have not yet landed. But for sure this is the reap-what-you-sow part of this saga, and if SCO's appeal fails, as even they seem to expect, the chickens will land and build their nests. But this is SCO, and there are miles to go before we sleep.

Webster stopped by the Supreme Court for us and picked up the latest filing from Novell there. For some reason, the Supreme Court doesn't let you get the filings, unless they have agreed to hear a case, without going there in person. They have filed a motion to dismiss [PDF] their petition. I would guess that is tactical in nature. As SCO argued in its opposition brief, Novell can always do it again, after the Court of Appeals rules on SCO's latest appeal, should SCO prevail. And then Novell can add other items, presumably. It's hard enough to get the Supreme Court to accept your case without relying on getting it to happen twice.

It's very short, which means Web had a very long walk on a really hot day for this one sentence:

Pursuant to Rule 46.1(a) of the Supreme Court Rules, petitioner Novell, Inc. hereby moves to dismiss its petition for a writ of certiorari.

I'm a little puzzled, as the version of the US Supreme Court rules on Cornell Law's LII site doesn't show a 46.1(a). I checked the version of the rules [PDF] on the US Supreme Court website, and again, no 46.1(a). I suspect it's a typo, then, and what was meant is 46.2(a) but to be certain, we will have to wait about 15 days to see if SCO objects, which I doubt it will, and then we will get it clarified. If not, then we'll have to wait longer. But everything that lawyers do they do for the benefit of the client. So this is for sure not because Novell's lawyers don't feel like bothering. It's strategic on some level.

Thanks, Web, for taking that steamy summer's stroll for Groklaw. We all appreciate it a lot. Groklaw's amazing volunteers' willingness to take time out of their lives to pick up documents and attend court hearings are what make Groklaw possible.

Update 2: So ordered, but it only says Rule 46. So mystery unsolved. However, this is a voluntary dismissal, prior to any action by the court, so presumably it can be renewed at a later date, 30 days after the final adjudication, should that happy day ever arrive in our lifetime.

Update: I can't resist sharing this. I was going through some older materials that I have kept for years and years in case I ever need it. I review the older materials from time to time, first because it's SO MUCH fun, and more and more so as things go on and on. And second, I do it because then I am more likely to recall things fast in a pinch, like remembering during the SCO v. Novell second trial time period that Darl McBride had filed with the SEC that SCO didn't need the copyrights to run its business. It's pure gold being able to timely recall such things.

This particular article was from 2005, in Techworld, and then-CEO Darl McBride was saying the company was doing totally great and the company wouldn't have to shut down if it lost in court:

The SCO Group have a viable business even if it loses the titanic courtroom battles it has taken on, CEO Darl McBride has sworn just prior to his company's reseller forum in Las Vegas.
SCO's Unix business is profitable and the company is due to shed its heavy financial burden from legal fees from January 2006, McBride railed. "When we started this and people asked me that question," I said, 'As a company, we're screwed'.Today, I don't believe that to be the case. We've got a cap on our legal expenses and our Unix business is profitable. If you put that together, you've got long-term sustainability."
By January 2006, SCO will have spent close to $40 million in legal fees, according to McBride. However, once the company has made its January payment, it will then have paid in full for legal services "in perpetuity", he said. At that point, SCO's balance sheet will no longer be weighed down by legal expenses....
"I don’t spend a lot of time worrying about it [the litigation]," McBride claimed. "If it takes a year or 10 years, we’ll have our day in court when we get there."

In perpetuity. Ten years, twenty, who cares? Boies Schiller might, I'm thinking. I just thought it'd be a friendly gesture to remind Boies Schiller of SCO's immortal words, so they can look to the future with a happy calm, knowing that no matter how long it takes, it doesn't matter to SCO.

They maybe should have listened to Eben Moglen's words in that same article:

"I feel like a broken record - from first to last, I've never had to change," Moglen said. "SCO's bluffing, whistling up the wind. They ruined a company that had a business and customers that cared. It was a vulgar and selfish thing that has no basis in law and no basis in fact. It's clear to everyone that the whole thing's a sham and a failure."

Well, not exactly *everyone*, because five years later, the dance continues. Why?

I wonder if Mr. Cahn ever sees articles like this one from 2005. If he had been there five years ago, who would he have believed? Boies Schiller and Darl or Eben Moglen? I think we know the answer to that. But would he have been wise? Ah, that is the question.

And is it true that in bankruptcy you have to pursue all claims, as Boies Schiller's Ted Normand reportedly said in the recent status hearing in SCO v. IBM? Well, not frivolous ones, one assumes. In that case, I'd hope that the law would require a law firm to advise a client not to proceed.

SCO Ordered to File Objections to Novell's Bill of Costs. Novell Files Motion to Dismiss with SCOTUS - Updated 2Xs | 433 comments | Create New Account

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Corrections Here if needed

Authored by: entre on Tuesday, August 17 2010 @ 09:19 PM EDT

For PJ