SCO v. Novell: Trial Court Denies Novell’s Motion in Limine, Preserving SCO’s Slander of Title Claims for the Jury

Jury trial in the case of SCO v. Novell is set to begin March 8, 2010. Among other things, SCO claims:

• SCO owns the UNIX software copyrights; and
• Novell slandered SCO’s title in the UNIX software copyrights by publicly claiming ownership of the copyrights, even though Novell actually knew copyright ownership was held by SCO. 

Under a ruling issued today by the trial court, Judge Ted Stewart, these questions will be decided by the jury.

In its most recent effort to dismiss the slander of title claim before trial, Novell filed a motion in limine to disallow evidence or argument by SCO on slander of title under the “mandate rule.”  Judge Stewart denied this motion.

The “mandate rule” was already discussed by Judge Stewart in an earlier decision that denied Novell’s motion for summary judgment.   According to Judge Stewart:

The mandate rule is an important corollary to the law of the case doctrine. The mandate rule is a “discretion-guiding rule” that generally requires trial court conformity with the articulated appellate remand, subject to certain recognized exceptions.

While a district court is bound to follow the mandate, and the mandate controls all matters within its scope, a district court on remand is free to pass upon any issue which was not expressly or impliedly disposed of on appeal. Further, the Court may decide issues that were necessarily implied by the mandate. 

However, the mandate rule prevents a court from considering an argument that could have been, but was not, made on appeal.

Before the case was appealed to the Tenth Circuit, Judge Dale Kimball’s opinion found that Novell was sole owner of the UNIX copyrights.  Judge Kimball entered summary judgment in favor of Novell on various of SCO’s claims that depended on ownership, including the slander of title claim.

As Judge Stewart explained in his Memorandum Decision today, “copyright ownership issue was the sole basis” for the Judge Kimball’s earlier ruling on SCO’s slander of title claim.

Because the sole basis for Judge Kimball’s earlier summary judgment ruling against SCO on slander of title was lack of copyright ownership, and because the Tenth Circuit Court reversed that decision and remanded for trial, the Tenth Circuit Court’s opinion necessarily remanded for trial the claims whose resolution turned on the sole issue of copyright ownership– including slander of title.

Also see related article: Trial Judge Removes Final Obstacles to Trial in SCO v. Novell Slander of Copyright Title Case.