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Novell Motion in Limine No. 1 - Let's All Live by the Mandate Rule, Shall We?

By Pamela Jones et al.

Novell has filed its first motion in limine [PDF], the full title of which is Motion in Limine No. 1 to Exclude Evidence and Argument Concerning Claims Not Included in SCO's Appeal or the Tenth Circuit's Limited Mandate. It's making me chuckle.

Ah! The mandate rule. Since the judge, the Hon. Ted Stewart, highlighted it in one of his recent orders, as had Judge Cahn before him, Novell's response is, Fine. Let's all live by the mandate rule. Judge Stewart denied one of Novell's summary judgment motions, holding that the Tenth Circuit "remanded this matter to the Court for trial on those four specific issues identified in the mandate," and that "[b]ecause of the specific nature of the mandate, the Court is not free to explore matters outside of it."

So what's good for the goose should be good for the gander. Obviously, we'll find out now what Judge Stewart is made of, since it was his order that brings this motion in limine's argument to the fore. To deny Novell's motion, Judge Stewart has to more or less admit he goofed in his order on Novell's summary judgment motion on the slander of title special damages claim (or alternatively that he was too strict about the mandate rule), which I earlier said I thought he had. What to do? What to do?

Now, judges are used to acknowledging their own errors, as it's part of their job to be reviewed by their superiors in the chain if not always by their betters. So that isn't likely to be a problem. I discern, then, that unless the fix is in, as they say, this motion in a normal universe would be granted. In short, I think we are about to find out if we are in a normal universe in Utah for the upcoming SCO v. Novell trial, beginning on March 8, or not.

Full post as published by Groklaw on February 07, 2010 (boomark / email).