SCO Grp v. Novell Inc

Filing 235

Ex Parte (Not Sealed) MOTION for Leave to File Excess Pages (Novell's Reply to SCO's Opposition to Novell's Motion for Partial Summary Judgment on its Fourth Claim for Relief) filed by Defendant Novell, Inc.. (Attachments: # 1 Text of Proposed Order) Motions referred to Brooke C. Wells.(Sneddon, Heather)

SCO Grp v. Novell Inc

Doc. 235

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

Document 235

Filed 02/12/2007

Page 1 of 3

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. Case No. 2:04CV00139 Judge Dale A. Kimball

NOVELL INC.'S EX PARTE MOTION FOR LEAVE TO FILE AN OVERLENGTH REPLY MEMORANDUM

Defendant and Counterclaim-Plaintiff Novell, Inc., through its attorneys of record, and pursuant to DuCivR 7-1(e), hereby moves the Court for an order granting it leave to file a reply memorandum in support of Novell's Motion for Partial Summary Judgment on its Fourth Claim for Relief ("Motion") that exceeds the page limitations of DuCivR 56-1(b). Novell requests that

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

Document 235

Filed 02/12/2007

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it be allowed to file a reply that does not exceed fourteen pages, exclusive of face sheet, table of contents, table of authorities, statement of issues and summary of argument. Novell requires an extension of the page limitations specified in DuCivR 56-1(b) due to the length and breadth of the single overlength memorandum filed by Plaintiff and Counterclaim-Defendant The SCO Group, Inc. ("SCO"), both in response to Novell's Motion and in support of SCO's cross-motion for summary judgment ("SCO's Memorandum"). SCO's Memorandum is approximately 80 pages long, consisting of nearly 36 pages of argument. Further, SCO submitted the Declaration of Brent O. Hatch in connection with its Memorandum, attaching 63 exhibits totaling hundreds of pages. Novell has endeavored to be as concise as possible in drafting its arguments contained in its Reply to SCO's Opposition to Novell's Motion for Partial Summary Judgment in Support of its Fourth Claim for Relief, but to adequately apprise the Court of: the material facts conceded by SCO that are sufficient to grant summary judgment to Novell, how SCO's post-hoc interpretation of the term "SVRX License" in the APA is unreasonable and contrary to the express terms of the APA, the 1985 and 1986 IBM and Sequent Software and Sublicensing Agreements, Amendment No. X and Santa Cruz's treatment of all SVRX revenue flowing from Amendment No. X, why Amendment No. 2 is immaterial to Novell's Motion, why SCO's extrinsic evidence cannot be considered under California contract law, and how SCO's good faith and fair dealing defense is directly contradicted by the case it cites,

a reply consisting of approximately fourteen pages, exclusive of face sheet, table of contents, table of authorities, statement of issues and summary of argument, is necessary.

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

Document 235

Filed 02/12/2007

Page 3 of 3

For the foregoing reasons, Novell submits that good cause and exceptional circumstances exist for the filing of an overlength reply, and respectfully requests that it be granted leave to file the requested Reply to SCO's Opposition to Novell's Motion for Partial Summary Judgment on its Fourth Claim for Relief. DATED: February 12, 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.

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