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Microsoft Files Motion for Judgment as a Matter of Law
Monday, January 16 2012 @ 09:30 AM EST

As promised Microsoft has now filed its renewed motion for judgment as a matter of law [PDF; Text] in the Novell case. Nothing terribly surprising here, and we don't know what arguments Microsoft will set forth to support this motion, although Microsoft renews its arguments set forth in its original motion from November 17.

One thing that drips with irony is Microsoft's claims about what a reasonable jury would have done:

... given the evidence at trial, (1) a reasonable jury would not have a legally sufficient evidentiary basis to find, and as a matter of law there is no basis to find, that Microsoft’s withdrawal of support for the namespace extension APIs constituted anticompetitive conduct under the antitrust laws; (2) a reasonable jury would not have a legally sufficient evidentiary basis to find, and as a matter of law there is no basis to find, that Microsoft’s withdrawal of support for the namespace extension APIs harmed competition in the PC operating system market; (3) a reasonable jury would not have a legally sufficient evidentiary basis to find, and as a matter of law there is no basis to find, that Microsoft’s withdrawal of support for the namespace extension APIs was the cause of any meaningful delay in the release of versions of PerfectOffice, WordPerfect and Quattro Pro for Windows 95; (4) a reasonable jury would not have a legally sufficient evidentiary basis to find, and as a matter of law there is no basis to find, that Microsoft’s withdrawal of support for the namespace extension APIs caused injury to Novell or entitles Novell to an award of any damages; ... [emphasis added]
Given that the only thing the jury was undecided about was the degree of damage to Novell, are we to conclude that the jury was, in fact, unreasonable in all of its other findings? That seems a bit rich. On the other hand, judges have been known to override juries before, and what a reasonable jury would have done is the basis for a judgment as a matter of law. In this case, however, it would seem that, if the Judge Motz thought Novell had failed to prove its case as Microsoft suggests, he would have never allowed the matter to go to the jury in the first place.

This action by Microsoft is likely simply a matter of protecting its right of appeal and attempting to strengthen its hand in any settlement discussions with Novell. We will await Microsoft's brief, which is due February 3.

Judgment as a Matter of Law - Formerly called a motion for directed verdict, this is a motion entered after trial claiming that the opposing party has failed to put on sufficient evidence to prove its case and, therefore, a verdict cannot be rendered against the moving party. The standard by which the motion is evaluated is what a reasonable jury would find.

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

Docket

396 - Filed and Effective: 01/13/2012
MOTION
Document Text: MOTION for Judgment as a Matter of Law (Renewed) filed by Defendant Microsoft. (Jardine, James) (Entered: 01/13/2012)


***********

Document

396

David B. Tulchin
Steven L. Holley
Sharon L. Nelles
Adam S. Paris
SULLIVAN & CROMWELL LLP
[address telephone]

James S. Jardine (A1647)
RAY QUINNEY & NEBEKER
[address telephone]

Steven J. Aeschbacher (A4527)
MICROSOFT CORPORATION
[address telephone]

Attorneys for Microsoft Corporation

_______________________________________

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

_______________________________________

NOVELL, INC.,
Plaintiff,
-v-
MICROSOFT CORPORATION,
Defendant.

MICROSOFT’S RENEWED MOTION
FOR JUDGMENT AS A MATTER OF
LAW

Civil No. 2:04 CV 1045
Honorable J. Frederick Motz

____________________________________

January 13, 2012

Pursuant to Federal Rule of Civil Procedure 50(b) and District of Utah Civil Rule 7-1(a), Defendant Microsoft Corporation (“Microsoft”) hereby renews its motion for judgment as a matter of law (originally filed on November 17, 2011, at the close of Novell’s case) on (a) each ground set forth in Microsoft’s memoranda in support of that motion (filed on November 17, 2011 and November 21, 2011), (b) each ground set forth in open court at trial, and (c) on the grounds set forth below.

Judgment should be entered in Microsoft’s favor because, given the evidence at trial, (1) a reasonable jury would not have a legally sufficient evidentiary basis to find, and as a matter of law there is no basis to find, that Microsoft’s withdrawal of support for the namespace extension APIs constituted anticompetitive conduct under the antitrust laws; (2) a reasonable jury would not have a legally sufficient evidentiary basis to find, and as a matter of law there is no basis to find, that Microsoft’s withdrawal of support for the namespace extension APIs harmed competition in the PC operating system market; (3) a reasonable jury would not have a legally sufficient evidentiary basis to find, and as a matter of law there is no basis to find, that Microsoft’s withdrawal of support for the namespace extension APIs was the cause of any meaningful delay in the release of versions of PerfectOffice, WordPerfect and Quattro Pro for Windows 95; (4) a reasonable jury would not have a legally sufficient evidentiary basis to find, and as a matter of law there is no basis to find, that Microsoft’s withdrawal of support for the namespace extension APIs caused injury to Novell or entitles Novell to an award of any damages; (5) Novell has no standing to assert its claim because it suffered no cognizable antitrust injury, and because the evidence at trial also establishes that any harm inflicted on Novell’s office productivity applications had no substantial impact on competition in the PC operating system market; (6) the claim asserted in Count I of Novell’s Complaint is “associated directly or

indirectly with” DR DOS and/or the PC operating system market, and thus that claim was sold to Caldera in 1996 and, as a result, Novell does not have standing to assert it; and (7) Novell’s claim is barred by the applicable four-year statute of limitations set forth in 15 U.S.C. § 15b and, further, the tolling provision of 15 U.S.C. § 16(i) does not apply because the claim is not “based in whole or in part” on United States v. Microsoft Corp. (as the quoted phrase is used in that statute).

For each of these reasons and the reasons that will be set forth in Microsoft’s Memorandum in Support of its Renewed Motion for Judgment as a Matter of Law, which will be filed on February 3, 2012 in accordance with the briefing schedule approved by the Court on January 6, 2012 (Docket #395), Microsoft respectfully requests that the Court grant this motion and enter judgment in favor of Microsoft.

Dated: January 13, 2012

Respectfully Submitted,

/s/James S. Jardine
James S. Jardine (A1647)
RAY QUINNEY & NEBEKER
[address telephone fax]

David B. Tulchin
Steven L. Holley
Sharon L. Nelles
Adam S. Paris
SULLIVAN & CROMWELL LLP
[address telephone fax]

Steven J. Aeschbacher (A4527)
MICROSOFT CORPORATION
[address telephone fax]

Attorneys for Microsoft Corporation

-2-

CERTIFICATE OF SERVICE

I hereby certify that on the 13th day of January, 2012, I caused a true and correct copy of the foregoing Microsoft’s Renewed Motion for Judgment as a Matter of Law to be filed with the Clerk of Court using the CM/ECF system, which will send notification of such filing to the following:

Max D. Wheeler
Maralyn M. English
SNOW, CHRISTENSEN & MARTINEAU
[address]

Jeffrey M. Johnson
Paul R. Taskier
Jason D. Wallach
DICKSTEIN SHAPIRO LLP
[address]

R. Bruce Holcomb
ADAMS HOLCOMB LLP
[address]

John E. Schmidtlein
WILLIAMS & CONNOLLY LLP
[address]

/s/ Jasmine Diamanti

  


Microsoft Files Motion for Judgment as a Matter of Law | 256 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
But For Land
Authored by: DaveJakeman on Monday, January 16 2012 @ 09:46 AM EST
This seems to me like the legal system waltzing off into Never-Never Land.

Not satisfied with what a real, living, breathing, down-to-earth actual jury
came up with, Microsoft counters with their subjective "reasonable
jury", in a but for world; or a but for jury in a but for world.

Did the trial not just take place? What was all that for then? Bizarro.

---
When a well-packaged web of lies has been sold gradually to the masses over
generations, the truth seems utterly preposterous and its speaker a raving
lunatic.

[ Reply to This | # ]

Corrections
Authored by: stegu on Monday, January 16 2012 @ 10:08 AM EST
Corrections here, please. Please put the correction,
or a summary of it, in the title.

[ Reply to This | # ]

News Picks
Authored by: stegu on Monday, January 16 2012 @ 10:12 AM EST
Comment on current News Picks here, using a relevant
title for your post and a clickable link to the
article you are commenting on.

[ Reply to This | # ]

Off Topic
Authored by: stegu on Monday, January 16 2012 @ 10:15 AM EST
Miscellaneous comments and discussions unrelated
to the main article, but hopefully relevant to at
least some Groklaw readers. Please consider using
clickable links where appropriate.

[ Reply to This | # ]

COMES
Authored by: stegu on Monday, January 16 2012 @ 10:20 AM EST
Transcribed documents from the shrinking but
still considerably large backlog of COMES exhibits
should be posted here. Post HTML markup as plain
text, to make cut-and-paste easy for PJ.
See the COMES page for instructions and a list
of documents still remaining to be transcribed.
Any help is appreciated.

[ Reply to This | # ]

    A reasonable jury,
    Authored by: Ian Al on Monday, January 16 2012 @ 11:46 AM EST
    would have marched on Redmond, carrying pitchforks and flaming torches.

    ---
    Regards
    Ian Al
    Software Patents: It's the disclosed functions in the patent, stupid!

    [ Reply to This | # ]

    An unbiased jury
    Authored by: Anonymous on Monday, January 16 2012 @ 02:12 PM EST
    I have some deep reservations about how juries are selected for technical
    trials. In a criminal case, the jury can relate to the crime: theft, DWI
    injury, fraud, etc because of real world experience. I think that is what the
    founders and earlier approaches to determining guilt and innocence had in mind.

    On the other hand, technical trials are about APIs, obscure patents, tasks
    involved in producing a large software project, etc. When the jury has no clue
    about the impacts of a technical decision or whether a technique is obvious to
    someone skilled in the art, I think it works against justice.

    The fact that it works at all is a credit to the lawyers, but large mistakes
    have been made.

    I know it's not going to be changed, but jury selection in a technical case
    strikes me more of a lottery than justice.

    [ Reply to This | # ]

    Microsoft Files Motion for Judgment as a Matter of Law
    Authored by: tknarr on Monday, January 16 2012 @ 02:45 PM EST

    I think MS is grabbing at straws here. This case, IIRC, is in front of a jury only because the Appeals Court threw out Judge Motz's summary judgement ruling and ordered a trial. From reading the AC's ruling, it seems to pretty much say flat-out that the evidence presented does give groups for a reasonable jury to find in favor of Novell. I think if Judge Motz grants MS's motion and overrules the jury that Novell's going to win the appeal simply by quoting directly from the AC's own ruling. And that's the kind of overturn that district judges care about: it's not just a matter of interpretation, it's a judge ruling directly and clearly contrary to the AC's ruling on the relevant law. As PJ said, if there weren't already sufficient evidence in the record to justify a jury finding in favor of Novell then the case would never have been sent to the jury in the first place.

    [ Reply to This | # ]

    allowing the matter to go to the jury
    Authored by: IANALitj on Tuesday, January 17 2012 @ 03:06 AM EST
    PJ says this: "In this case, however, it would seem that, if the Judge
    Motz thought Novell had failed to prove its case as Microsoft suggests, he would
    have never allowed the matter to go to the jury in the first place."

    What Judge Motz did is part of a customary dance.

    There is a trial. The plaintiff presents its evidence, then the defendant (with
    possible further testimony coming in as rebuttals). Then the jury votes. If
    there is a hung jury, the process gets repeated.

    Depending on the practice in a particular court, there will be numerous
    opportunities for one party or the other to say "Hey, Judge, decide that I
    win, right now."

    This can happen early on (a motion to dismiss, before the defendant even
    answers). It can happen after the answer (a motion for summary judgment.
    Microsoft won on such a motion, but its victory was overturned by the Court of
    Appeals.)

    It can happen during the trial; in some jurisdictions, if the plantiff does not
    make out its case in the opening statement, the defendant can ask that the case
    be thrown out.

    What is relevant here is a motion under Rule 50(a) of the Federal Rules of Civil
    Procedure, which permits a motion for judgment as a matter of law at any time
    before the case is submitted to the jury.

    Rule 50(b) provides for the judge to defer deciding the motion. "If the
    court does not grant a motion for judgment as a matter of law made under Rule
    50(a), the court is considered to have submitted the action to the jury subject
    to the court's later deciding the legal questions raised by the motion."

    It is my understanding that this is usually done as a matter of course. One
    side or both will ask for judgment as a matter of law, and the judge will
    decline to rule on it at that time.

    If a judge gives judgment as a matter of law during the trial, the trial will be
    over (at least as to that matter). If the judge's ruling is reversed on appeal,
    there will have to be a new trial, with all the evidence that came in during the
    original trial repeated. If the judge waits until after the trial is over to
    decide the motion, and there is a jury decision adverse to the moving party, the
    judge can still give judgment in its favor.

    However, when there has been a jury verdict, which is overturned by the trial
    judge as a matter of law, an appellate court can reinstate the jury verdict. If
    the trial judge's ruling cut the trial short, there is no verdict to reinstate.


    Of course, in this particular case, there was a hung jury, but Judge Motz didn't
    know that this would happen when he decided to let the case go to the jury.

    [ Reply to This | # ]

    Google must focus on patents and people at trial
    Authored by: SilverWave on Wednesday, January 18 2012 @ 02:43 AM EST
    Oracle, Google must focus on patents and people at trial

    ---
    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 | # ]

    Google End Piracy, Not Liberty
    Authored by: SilverWave on Wednesday, January 18 2012 @ 02:54 AM EST
    Google End Piracy, Not Liberty

    ---
    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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