SCO-Novell Hearing Set for September 15 & Motion to Dismiss - as text

Tuesday, August 31 2004 @ 01:31 AM EDT

Contributed by: PJ

Pacer indicates that the SCO-Novell hearing on Novell's motion to dismiss is going to be held on September 15 at 2 PM before Judge Kimball:

8/30/04 44 Notice of Hearing filed : Motion hearing set for 2:00 9/15/04 for [35-1] motion to dismiss the Amended Complaint and motion for summary jgm To be held before Judge Kimball cc:atty ( Ntc generated by: KJ) (blk) [Entry date 08/30/04]

That's not only the same day as the SCO v. IBM hearing on IBM's 10th Counterclaim, it's the same time. I have no idea what it means. It could mean someone goofed, or it could mean Judge Kimball is an efficient person and has an idea of how to wrap some things up. Or he may have some questions he wishes addressed before he decides one case and needs everyone there at once to make his decision.

If you wish to review, all the PDFs the motion is based on can be found here, and the Memorandum in Support of their motion is here. And here's Novell's Motion to Dismiss as text. It looks like September 15 is going to be quite a day.

**************************

MORRISON & FOERSTER LLP
Michael A. Jacobs (pro hac vice)
Matthew I. Kreeger (pro hac vice)
David E. Melaugh (pro hac vice)
[address, phone, fax]

ANDERSON & KARRENBERG
Thomas R. Karrenberg, #3726
John P. Mullen, #4097
Heather M. Sneddon, #9520
[address, phone, fax]

Attorneys for Defendant Novell, Inc.

____________________________

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION

________________________________

THE SCO GROUP, INC.,

a Delaware corporation,

Plaintiff,

vs.

NOVELL, INC.,

a Delaware corporation,

Defendant.

__________________________________

NOVELL, INC.'S MOTION TO DISMISS

Case No. 2:04CV00139

Judge Dale A. Kimball

_____________________________

Defendant Novell, Inc. ("Novell"), by and through its attorneys of record, hereby moves this Court to dismiss the Amended Complaint filed by The SCO Group, Inc. ("SCO"), pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief may be granted.

The basis for SCO's single cause of action against Novell for slander of title is that Novell made ten "false oaths," "misleading public representations" and "wrongful assertions" concerning Novell's ownership of UNIX copyrights. (Am. Compl. 19.) However, given the context in which Novell's statements were made and the public controversy surrounding the ownership of UNIX copyrights, SCO cannot prevail on its slander of title claim against Novell because (1) Novell has a privilege to publicly assert a rival claim to the UNIX copyrights; (2) Novell has a privilege to publish its rival claim to parties with a common interest in the UNIX copyrights; and (3) SCO cannot allege malice sufficient to ground a claim for slander of title given the Court's June 9, 2004 Order.

The grounds for this Motion are more fully set forth in the supporting memorandum filed concurrently herewith.

DATED: August 6, 2004.

ANDERSON & KARRENBERG

___[signature]_____
Thomas R. Karrenberg
John P. Mullen
Heather M. Sneddon
Attorneys for Defendant Novell, Inc.


CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on the 6th day of August, 2004, I caused a true and correct copy of the foregoing NOVELL, INC.'S MOTION TO DISMISS to be served via first class mail, postage prepaid, to the following:

Brent O. Hatch
Mark R. Clements
HATCH JAMES & DODGE, P.C.
[address]

Kevin P. McBride
[address]

Stephen N. Zack
Mark J. Heise
BOIES, SCHILLER & FLEXNER LLP
[address]

____[signature]_____

624 comments



http://www.groklaw.net/article.php?story=2004083101315067