SCO Grp v. Novell Inc
MOTION for Partial Summary Judgment on SCO's Non-Compete Claim in its Second Claim for Breach of Contract and Fifth Claim for Unfair Competition filed by Defendant Novell, Inc.. (Sneddon, Heather)
SCO Grp v. Novell Inc
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MORRISON & FOERSTER LLP Michael A. Jacobs (pro hac vice) Kenneth W. Brakebill (pro hac vice) Grant L. Kim (pro hac vice) 425 Market Street San Francisco, CA 94105-2482 Telephone: (415) 268-7000 Facsimile: (415) 268-7522 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: (801) 534-1700 Facsimile: (801) 364-7697 Attorneys for Defendant and Counterclaimant 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 MOTION FOR PARTIAL SUMMARY JUDGMENT ON THE COPYRIGHT OWNERSHIP PORTIONS OF SCO'S SECOND CLAIM FOR BREACH OF CONTRACT AND FIFTH CLAIM FOR UNFAIR COMPETITION Case No. 2:04CV00139 Judge Dale A. Kimball
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Novell, Inc. ("Novell") moves the Court for partial summary judgment as to the copyright ownership portions of The SCO Group, Inc.'s ("SCO's") Second Claim for breach of contract and Fifth Claim for unfair competition. Federal Rule of Civil Procedure 56 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, SCO has claimed that Novell slandered SCO's alleged title to UNIX and UnixWare copyrights by falsely asserting that SCO does not own these copyrights. In addition, SCO has asserted duplicative claims for unfair competition and breach of the implied covenant of good faith and fair dealing, which are based on the same allegation that Novell has wrongfully denied SCO's copyright ownership. Novell is entitled to summary judgment on the "copyright ownership" portions of SCO's claims for unfair competition and breach of the implied covenant of good faith because: 1. As a matter of law, Novell's assertion that SCO does not own the UNIX and
UnixWare copyrights does not state a claim for unfair competition under Utah common law or Utah statutory law. Statements about property ownership do not fit within the categories of "unfair competition" that have been recognized by the Utah courts, and the Tenth Circuit has rejected a similar attempt to extend these categories to encompass allegedly false statements. The Utah Unfair Competition Act does not apply because Novell's statements were made before the Act became effective in May 2004, and making statements about property ownership does not fit within the statutory definition of "unfair competition." 2. As a matter of law, Novell's assertion that SCO does not own the UNIX and
UnixWare copyrights does not state a claim for breach of the implied covenant of good faith under the governing California law. California courts have generally applied the implied
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covenant to fill gaps in the express contractual provisions to effectuate the purpose of those provisions. Here, there is no contractual provision that even suggests that the parties are prohibited from making statements regarding their interpretation of the contract. Moreover, the California Supreme Court has held that alleged bad faith denial of the existence of contractual obligations does not support a tort claim. 3. By its own admission, SCO's claims require it to prove that Novell's assertion
that SCO does not own the UNIX and UnixWare copyrights is false. SCO cannot establish the required falsity for the reasons set forth in Novell's concurrent Motion for Summary Judgment on SCO's First Claim for Slander of Title and Third Claim for Specific Performance. Accordingly, Novell respectfully requests that its motion for partial summary judgment on the copyright ownership portions of SCO's Second Claim for breach of contract and Fifth Claim for unfair competition be granted. DATED: April 20, 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) Grant L. Kim (pro hac vice) Attorneys for Defendant and Counterclaim-Plaintiff Novell, Inc.
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CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 20th day of April, 2007, I caused a true and correct copy of NOVELL'S MOTION FOR PARTIAL SUMMARY JUDGMENT ON THE COPYRIGHT OWNERSHIP PORTIONS OF SCO'S SECOND CLAIM FOR BREACH OF CONTRACT AND FIFTH CLAIM FOR UNFAIR COMPETITION 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 William T. Dzurilla Sashi Bach Boruchow BOIES, SCHILLER & FLEXNER LLP 401 East Las Olas Blvd., Suite 1200 Fort Lauderdale, Florida 33301 David Boies Edward J. Normand BOIES, SCHILLER & FLEXNER LLP 333 Main Street Armonk, New York 10504 Devan V. Padmanabhan John J. Brogan DORSEY & WHITNEY, LLP 50 South Sixth Street, Suite 1500 Minneapolis, Minnesota 55401 Via U.S. Mail, postage prepaid: Stephen Neal Zack BOIES, SCHILLER & FLEXNER LLP 100 Southeast Second Street, Suite 2800 Miami, Florida 33131 /s/ Heather M. Sneddon
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