SCO Grp v. Novell Inc

Filing 562

REPLY to Response to Motion re 554 MOTION for Entry of Judgment and in support of 561 NOTICE of Voluntary Dismissal of Its Unresolved Stayed Claims With Prejudice filed by Counter Defendant SCO Group. (Attachments: # 1 Text of Proposed Order Proposed Final Judgment)(Normand, Edward)

SCO Grp v. Novell Inc

Doc. 562

Brent O. Hatch (5715) Mark F. James (5295) HATCH, JAMES & DODGE, PC 10 West Broadway, Suite 400 Salt Lake City, Utah 84101 Telephone: [phone] Facsimile: [phone] David Boies (admitted pro hac vice) Robert Silver (admitted pro hac vice) Edward Normand (admitted pro hac vice) BOIES SCHILLER & FLEXNER LLP 333 Main Street Armonk, New York 10504 Telephone: [phone] Facsimile: [phone] Devan V. Padmanabhan (admitted pro hac vice) DORSEY & WHITNEY LLP 50 south Sixth Street, Suite 1500 Minneapolis, Minnesota 55402 Telephone: [phone] Facsimile: [phone]

Stephen N. Zack (admitted Pro Hac Vice) BOIES SCHILLER & FLEXNER LLP Bank of America Tower, suite 2800 100 Southeast Second Street Miami, Florida 33131 Telephone: [phone] Facsimile: [phone] Stuart Singer (admitted pro hac vice) BOIES SCHILLER & FLEXNER LLP 401 East Las Olas Blvd. Suite 1200 Fort Lauderdale, Florida 33301 Telephone: [phone] Facsimile: [phone]

Attorneys for Plaintiff, The SCO Group, Inc. ______________________________________________________________________________ IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH THE SCO GROUP, INC., a Delaware corporation, Plaintiff/Counterclaim-Defendant, vs. NOVELL, INC., a Delaware corporation, Defendant/Counterclaim-Plaintiff. Civil No. 2:04 CV-00139 Judge Dale A. Kimball Magistrate Brooke C. Wells SCO'S REPLY MEMORANDUM IN SUPPORT OF ITS MOTION FOR ENTRY OF FINAL JUDGMENT

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Plaintiff/Counterclaim-Defendant, The SCO Group, Inc. ("SCO"), respectfully submits this Reply Memorandum in Support of its Motion for Entry of Final Judgment. ARGUMENT In order to expedite the resolution of this case and foreclose further disputes about finality, SCO will voluntarily dismiss with prejudice those portions of its severed and stayed claims that remain pending. While SCO believes that the position set forth in its initial motion is legally correct ­ that its voluntary dismissal of pending claims with the right to pursue them upon remand perfects finality under controlling law ­ it is more important for SCO to avoid extended litigation on this issue Accordingly, SCO has attached hereto a revised proposed form of Final Judgment that simply dismisses with prejudice those portions of the severed and stayed claims not resolved by this Court's summary judgment decision (that is, that part of the claims for copyright infringement, breach of the APA and TLA, and unfair competition that concern any SCO copyrights obtained after the Asset Purchase Agreement). As that is the sole substantive issue with respect to the entry of a Final Judgment, SCO respectfully submits that, with this Court's approval of the dismissal, there should be no question that a Final Judgment may now be entered. The procedural issue Novell raises ­ that these claims had been stayed pending arbitration by SuSE ­ is easily disposed of. The stay of those claims obviously was entered to prevent their litigation, not to prevent their dismissal. In any event, SCO respectfully requests that the Court treat SCO's pending applications as a motion to vacate the stay to permit the dismissal with prejudice of those parts of these claims not resolved by the Court's summary judgment decision.

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The requested dismissal will complete resolution of all claims in this case: · All of SCO's unstayed claims, as well as the portions of SCO's stayed claims based on pre-APA copyrights, were dismissed by the Summary Judgment Order. · · Several of Novell's counterclaims were dismissed by motion or stipulation. All of Novell's other counterclaims were resolved by the Summary Judgment and Trial Orders, except the issue of the amount of the constructive trust. Subsequently, the parties stipulated to that amount. · Therefore, the only claims that remain open are the stayed claims based on post-APA copyrights and other UNIX technology indisputably owned by SCO.1 The dismissal of SCO's pending claims with prejudice will thus resolve the only issues pending before the Court. If the motion for voluntary dismissal is granted, there will be nothing left for the Court to do but execute judgment. Accordingly, SCO respectfully requests expedited consideration of its Motion for Voluntary Dismissal of Its Unresolved Stayed Claims and Motion for Entry of Final Judgment. CONCLUSION For the foregoing reasons, SCO respectfully requests that the Court permit SCO voluntarily to dismiss its unresolved stayed claims with prejudice and moves the Court to enter Final Judgment in this action.

Novell states (at 9, 10, and 13) that unresolved "aspects of the case" include "any issues still outstanding in Bankruptcy Court" which allegedly "remain to be resolved in Bankruptcy Court." These vague assertions contradict Novell's plain statements (in its responses to the Court's order to submit a proposed Final Judgment) that the only two matters that remained open were the unresolved stayed claims and the amount of the constructive trust. Both of those issues are now fully resolved: the first, by this motion, and the second, by stipulation.

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DATED this 20th day of October, 2008. HATCH, JAMES & DODGE, P.C. Brent O. Hatch Mark F. James BOIES, SCHILLER & FLEXNER LLP David Boies Robert Silver Stuart H. Singer Edward Normand DORSEY & WHITNEY LLP Devan V. Padmanabhan

By:

/s/ Edward Normand

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CERTIFICATE OF SERVICE Plaintiff/Counterclaim-Defendant, The SCO Group, Inc., hereby certifies that on this 20th day of October, 2008, a true and correct copy of the foregoing Reply Memorandum in Support of SCO's Motion for Entry of Final Judgment was electronically filed with the Clerk of Court and delivered by CM/ECF to:

Thomas R. Karrenberg John P. Mullen Heather M. Sneddon ANDERSON & KARRENBERG 700 Bank One Tower 50 West Broadway Salt Lake City, UT 84101 Michael A. Jacobs Matthew I. Kreeger MORRISON & FOERSTER 425 Market Street San Francisco, CA 94105-2482

By:

/s/ Edward Normand