Is Stewart biased against Novell?

El Corton

December 3, 2009

Dark insinuations are being made on Groklaw, and perhaps here as well, based on Judge Stewart's reported "grumpy" behavior toward Novell's counsel in his five-minute appearance at the status conference. Somebody on Groklaw, maybe it was PJ herself, warned solemnly that Stewart was "appointed by Orrin Hatch," whatever that means. Federal judges are appointed by the President, not by senators.

Let's assume that the reports of selective judicial grumpiness are accurate. Is it a sign that this court has already been bought by Microsoft; that this judge, like all his kind, just loves SCO for its own sake; or is there another explanation?

Stewart was quoted to the effect of, "This court can act only on motions, not notices." He could only have been referring to docket 600, Novell's "Notice of Related Proceedings," which is oddly not styled as a motion even though it requests relief from the court. Novell's request for consolidation with the IBM case should have been made as motion under Fed.R.Civ.P. 42(a) ("Consolidation"):

If actions before the court involve a common question of law or fact, the court may:

(1) join for hearing or trial any or all matters at issue in the actions;

(2) consolidate the actions; or

(3) issue any other orders to avoid unnecessary cost or delay.

Federal Rules of Civil Procedure - Rule 42 [ http://www.law.cornell.edu/rules/frcp/Rule42.htm ]

As to the request for the same judge to hear both cases, I'm not sure which Rule covers that, or whether there even is one. Perhaps that's why Novell filed this strange document. It's almost certainly why Stewart was pissed off, if indeed he was. I don't agree with those who suggest that he's already manifesting bias against Novell. But Novell had better get its shit together, or it's going to have problems in this case, just as it did in the appeal with the ludicrous "implied license" theory of Amendment 2.

2:10:41 AM


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