SCO Grp v. Novell Inc

Filing 200

MEMORANDUM in Opposition re 196 MOTION for Extension of Time to File Response/Reply as to 171 MOTION for Partial Summary Judgment on Novell's Fourth Claim for Relief MOTION for Extension of Time to File Response/Reply as to 171 MOTION for Partial Summary Judgment on Novell's Fourth Claim for Relief filed by Defendant Novell, Inc.. (Sneddon, Heather)

SCO Grp v. Novell Inc

Doc. 200

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

Document 200

Filed 01/09/2007

Page 1 of 5

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, vs. NOVELL, INC., a Delaware corporation, Defendant and CounterclaimPlaintiff.

NOVELL'S OPPOSITION TO SCO'S MOTION FOR EXTENSION OF TIME TO RESPOND TO NOVELL'S MOTION FOR PARTIAL SUMMARY JUDGMENT ON ITS FOURTH COUNTERCLAIM FOR RELIEF Case No. 2:04CV00139 Judge Dale A. Kimball Magistrate Judge Brook C. Wells

Dockets.Justia.com

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

Document 200

Filed 01/09/2007

Page 2 of 5

Defendant and Counterclaim Plaintiff, Novell, Inc. ("Novell") hereby opposes The SCO Group Inc.'s ("SCO") Motion for Extension of Time to Respond to Novell's Motion for Partial Summary Judgment on its Fourth Counterclaim for Relief. Because the issues in this motion overlap directly with issues currently pending (and set for hearing) on summary judgment in the SCO v. IBM case, because SCO has had ample notice of its impending deadlines in the SCO v. IBM case, and because SCO has already sought and received delay in responding to Novell's motion, this Court should deny SCO's request for further delay. Novell filed its Motion for Partial Summary Judgment on its Fourth Claim for Relief on December 1, 2006. This motion addresses a significant issue: whether the express terms of the 1995 Asset Purchase Agreement authorize Novell to direct SCO to waive its purported legal claims for alleged breaches of SVRX license agreements with IBM and with Sequent, and to take action on SCO's behalf when SCO refuses to so waive, where the plain language of the 1995 contract gives Novell "at its sole discretion and direction" the right to take such action concerning "any SVRX License." This issue is also raised in IBM's pending Motion for Summary Judgment on SCO's Contract Claim (filed September 29, 2006, PACER Nos. 832-1, 832-2), which is set for hearing during the first week of March 2007. The Court has recognized the overlapping issues in the SCO v. IBM and SCO v. Novell cases, even recently vacating the IBM trial date and noting that it "appears that judicial economy and the interests of all the parties will be best served by trying the Novell case­set to begin on September 17, 2007­prior to the [SCO v. IBM] action." Therefore, SCO's request for further delay should be denied so that Novell's motion can be expeditiously briefed and heard either parallel or prior to IBM's motion.

sf-2221754

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

Document 200

Filed 01/09/2007

Page 3 of 5

SCO has already sought, and received, delay in resolving this motion. On approximately December 7, 2006 -- or a week after Novell filed its summary judgment motion -- SCO contacted Novell to delay its response. Novell agreed to a courtesy extension that would extend SCO's opposition deadline from just after the holidays (January 3, 2007) to January 10, 2007, which was memorialized in a court order. Now, again, SCO seeks another delay. On the afternoon of January 8, 2007, SCO's counsel sent an e-mail to Novell's counsel stating that "SCO has determined that it would like an extension of a full week, until January 17" to respond to Novell's Motion for Partial Summary Judgment on its Fourth Claim for Relief. Less than two hours later, and without awaiting a response from Novell's counsel, SCO filed its instant motion. SCO's proffer that its schedule is constrained due to a pending January 12 reply deadline in the SCO v. IBM case is insufficient. SCO has known of this deadline for three weeks; this deadline was the result of another extension. (See SCO v. IBM: Order re Extension of Deadline, Dec. 19, 2006, PACER No. 904 (pushing reply deadline from December 22 to January 12). The resolution of Novell's important motion should not be delayed due to SCO's apparent inability to plan accordingly. Novell therefore respectfully requests that, under the circumstances, this Court deny SCO's motion to extend time

sf-2221754

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

Document 200

Filed 01/09/2007

Page 4 of 5

DATED:

January 9, 2007 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.

sf-2221754

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

Document 200

Filed 01/09/2007

Page 5 of 5

CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 9th day of January, 2007, I caused a true and correct copy of NOVELL'S OPPOSITION TO SCO'S MOTION FOR EXTENSION OF TIME TO RESPOND TO NOVELL'S MOTION FOR PARTIAL SUMMARY JUDGMENT ON ITS FOURTH COUNTERCLAIM 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 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

sf-2221754