SCO Grp v. Novell Inc

Filing 671

MEMORANDUM in Opposition re 670 MOTION for Leave to File Reply to SCO's Opposition to Novell's Motion in Limine No. 1 filed by Plaintiff SCO Group. (Attachments: # 1 Exhibit A)(Hatch, Brent)

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] Attorneys for Plaintiff, The SCO Group, Inc.

Stuart Singer (admitted pro hac vice) Sashi Bach Boruchow (admitted pro hac vice) BOIES SCHILLER & FLEXNER LLP 401 East Las Olas Blvd. Suite 1200 Fort Lauderdale, Florida 33301 Telephone: [phone] Facsimile: [phone]

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH THE SCO GROUP, INC., by and through the Chapter 11 Trustee in Bankruptcy, Edward N. Cahn, Plaintiff/Counterclaim-Defendant, vs. NOVELL, INC., a Delaware corporation, Defendant/Counterclaim-Plaintiff. SCO'S OPPOSITION TO NOVELL'S REQUEST TO FILE A REPLY AND ALTERNATIVE REQUEST TO ALLOW SUR-REPLY, IN CONNECTION WITH NOVELL'S MOTION IN LIMINE NO. 1 Civil No. 2:04 CV-00139 Judge Ted Stewart

Novell's request for leave to file a reply effectively recognizes that its motion is not a true motion in limine addressed to the admissibility of evidence, as this Court's trial order provides simply for a 3-page motion and a 3-page response on such motions. Novell now seeks to file leave to file an additional 3-page brief outside of this Court's order. That request should be denied as unauthorized by the Court's trial order. In the alternative, if the request is granted, SCO should be permitted to file the attached 3-page sur-reply in response. First, under the trial court's order, the responding party was given an equal-length response without provision for a reply; a sur-reply would preserve this balance. Second, having expressly moved for summary judgment to dismiss SCO's claim for slander of title, Novell in its reply now ignores that SCO appealed the summary judgment that was granted on slander of title, as well as specific performance, by appealing the copyright ownership determination which was the sole basis for dismissal of both claims. Contrary to its own prior and repeated explicit recognition that the slander of title claim had been reversed on appeal and was back for trial, Novell now pretends that the only claim reversed by the Tenth Circuit was the alternative claim for specific performance, which concerns SCO's right to obtain the copyrights in the future, not whether SCO already is the owner of the copyrights. If the Court entertains Novell's reply, it should also consider SCO's sur-reply, which responds to the points asserted by Novell in its proposed reply.

CONCLUSION
SCO respectfully submits, for the reasons set forth above, that the Court should deny Novell's request to submit a reply, or in the alternative, should also grant leave for SCO to file the sur-reply attached hereto as Ex A.

DATED this 16th day of February, 2010.

By: /s/ Brent O. Hatch HATCH, JAMES & DODGE, P.C. Brent O. Hatch Mark F. James BOIES, SCHILLER & FLEXNER LLP David Boies Robert Silver Stuart H. Singer Edward Normand Sashi Bach Boruchow Counsel for The SCO Group, Inc.

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CERTIFICATE OF SERVICE I, Brent O. Hatch, hereby certify that on this 16th day of February, 2010, a true and correct copy of the foregoing SCO'S OPPOSITION TO NOVELL'S REQUEST TO FILE A REPLY AND ALTERNATIVE REQUEST TO ALLOW A SUR-REPLY, IN CONNECTION WITH NOVELL'S MOTION IN LIMINE NO. 1 was filed with the court and served via electronic mail to the following recipients: Sterling A. Brennan David R. Wright Kirk R. Harris Cara J. Baldwin WORKMAN | NYDEGGER 1000 Eagle Gate Tower 60 East South Temple Salt Lake City, UT 84111 Thomas R. Karrenberg Heather M. Sneddon ANDERSON & KARRENBERG 700 Bank One Tower 50 West Broadway Salt Lake City, UT 84101 Michael A. Jacobs Eric M. Aker Grant L. Kim MORRISON & FOERSTER 425 Market Street San Francisco, CA 94105-2482 Counsel for Defendant and Counterclaim-Plaintiff Novell, Inc. By: /s/ Brent O. Hatch Brent O. Hatch HATCH, JAMES & DODGE, P.C. 10 West Broadway, Suite 400 Salt Lake City, Utah 84101 Telephone: [phone] Facsimile: [phone]

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