SCO Grp v. Novell Inc

Filing 171

MOTION for Partial Summary Judgment on Novell's Fourth Claim for Relief filed by Defendant Novell, Inc.. (Sneddon, Heather)

Case 2:04-cv-00139-DAK-BCW
SCO Grp v. Novell Inc

Document 171

Filed 12/01/2006

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MORRISON & FOERSTER LLP Michael A. Jacobs (pro hac vice) Kenneth W. Brakebill (pro hac vice) 425 Market Street San Francisco, CA 94105-2482 Telephone: [phone] Facsimile: [phone] ANDERSON & KARRENBERG Thomas R. Karrenberg, #3726 John P. Mullen, #4097 Heather M. Sneddon, #9520 700 Chase Tower 50 West Broadway Salt Lake City, UT 84101 Telephone: [phone] Facsimile: [phone] Attorneys for Novell, Inc.

IN THE UNITED STATES DISTRICT COURT DISTRICT OF UTAH, CENTRAL DIVISION THE SCO GROUP, INC., a Delaware corporation, Plaintiff and CounterclaimDefendant, v s. NOVELL, INC., a Delaware corporation, Defendant and CounterclaimPlaintiff.

NOVELL'S MOTION FOR PARTIAL SUMMARY JUDGMENT ON ITS FOURTH CLAIM FOR RELIEF Case No. 2:04CV00139 Judge Dale A. Kimball

Dockets.Justia.com

Case 2:04-cv-00139-DAK-BCW

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Novell, Inc. ("Novell") moves the Court for partial summary judgment as to its Fourth Claim for Relief for declaratory relief. Specifically, Novell asks the Court to declare that Novell has the authority pursuant to Section 4.16(b) of the 1995 Asset Purchase Agreement ("APA") to take the following actions: (1) to direct The SCO Group, Inc. ("SCO") to waive its purported claims against IBM under the SVRX license agreements between IBM Corporation ("IBM") and AT&T and between Sequent Computer Systems, Inc. ("Sequent") and AT&T, and (2) because SCO refused (and still refuses) to follow that direction, to waive those claims on SCO's behalf. In addition, Novell respectfully requests that this Court declare that SCO is obligated to recognize Novell's waiver of SCO's purported claims against IBM and Sequent. Federal Rule of Civil Procedure 56(c) permits the Court to grant partial summary judgment if the pleadings, discovery, and affidavits show that there is no genuine issue of material fact and that Novell is entitled to judgment as a matter of law. Here, the undisputed facts establish that: 1. 2. 3. 4. 5. 6. The APA gives Novell the authority, at its sole discretion, to direct SCO to waive rights under any SVRX License; The IBM and Sequent Licenses are SVRX Licenses because they license rights to the UNIX System V software listed in Item VI to Schedule 1.1(a); Novell directed SCO to waive its purported rights under the IBM and Sequent SVRX Licenses; SCO refused to follow Novell's direction as to both the IBM and Sequent SVRX Licenses; The APA authorizes Novell to take any action on SCO's behalf when SCO fails to take action directed by Novell; Upon SCO's refusal, Novell properly took action on behalf of SCO by waiving SCO's purported claims against IBM and Sequent; and

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7.

SCO improperly refused, and still refuses, to recognize Novell's authority and to abide by Novell's waiver.

Section 4.16(b) of the APA is a broad and unambiguous grant of authority to Novell. It states in plain language that Novell may, at its "sole discretion and direction," direct The Santa Cruz Operation, Inc. ("Santa Cruz") to "amend, supplement, modify or waive any rights under . . . any SVRX License . . . in any manner or respect." If Santa Cruz refuses to follow that direction, Novell is "authorized, and hereby is granted, the rights to take any action on [Santa Cruz's] own behalf." When SCO began to advance claims of SVRX License breach against IBM and Sequent, Novell subsequently directed SCO -- the admitted successor-in-interest to Santa Cruz's rights and obligations under the APA -- to waive those claims. When SCO refused to follow that direction, Novell waived the claims on SCO's behalf. SCO has ignored Novell's waiver, however, and in its co-pending lawsuit with IBM, continues to advance claims of SVRX License breach. Accordingly, Novell asks the Court to accord Novell's actions the legal effect they deserve by granting this motion. DATED: December 1, 2006 ANDERSON & KARRENBERG /s/ Heather M. Sneddon Thomas R. Karrenberg John P. Mullen Heather M. Sneddon -andMORRISON & FOERSTER LLP Michael A. Jacobs (pro hac vice) Kenneth W. Brakebill (pro hac vice) Attorneys for Novell, Inc.
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Case 2:04-cv-00139-DAK-BCW

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Filed 12/01/2006

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CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 1st day of December, 2006, I caused a true and correct copy of NOVELL'S MOTION FOR PARTIAL SUMMARY JUDGMENT ON ITS FOURTH CLAIM FOR RELIEF to be served to the following: Via CM/ECF: Brent O. Hatch Mark F. James HATCH JAMES & DODGE, P.C. 10 West Broadway, Suite 400 Salt Lake City, Utah 84101 Via E-mail: Stuart H. Singer BOIES, SCHILLER & FLEXNER LLP 401 East Las Olas Blvd., Suite 1200 Fort Lauderdale, Florida 33301 Edward J. Normand BOIES, SCHILLER & FLEXNER LLP 333 Main Street Armonk, New York 10504

/s/ Heather M. Sneddon

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