Free Letter - District Court of Delaware - Delaware

Case 1 :05-cv-00176-GIVIS Document 62 Filed 01/23/2008 Page 1 of 3
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O1°1`1S]31Tl€S LLP
Patricia R. Uhlenbrock
$02.8886897
[email protected]
January 23, 2008
The Honorable Gregory M. Sleet
U.S. District Court for the District of Delaware
844 North King Street, Room 4209
Lockbox 18
Wilmington, Delaware 19801
Re: Institute for Disabilities Research and Training, Inc.
v. Wal-Mart Stores, Inc., C.A. No. 05-176-GMS
Dear Judge Sleet:
The Court has before it several matters pertaining to the above case. As the Court will
recall, on September 25, 2007, a Memorandum and corresponding Judgment was filed with
respect to a portion of the above case. The Judgment entered was in favor of the Plaintiff
Institute for Disabilities Research and Training, Inc. ("IDRT") and against Defendant Wal-Mart
Stores, Inc. ("Wa1-Mart") on Plaintiffs contract claim. The contract claim concerned the amount
due for compensation for the alternate payment of what was called the Phase II Contract Price.
On or about May 22, 2006, to simplify or actually, to reduce the contested issues of work
done, payments made, and balances due by one party to the other under the Development
Agreement at issue, the parties signed and filed a Stipulation and Order (docket entry 47), which
Stipulation and Order was signed and filed by the Court on or about May 26, 2006. A copy of
that Stipulation and Order is attached. That Stipulation and Order provided that the principal
issue was whether IDRT was entitled to compensation for Phase II of the contract over and
above interim invoices paid by Wal-Mart (paragraph 1). In paragraph 2, the parties stipulated
and the Court ordered that as a result of a ntunber of smaller amounts of claims, payments,
credits and adjustments owed by one party or the other, the net result was IDRT owed
$28,292.01 to Wal-Mart. The third paragraph of the Stipulation and Order provided that the
amotmt of $28,292.01 owed by IDRT to Wal-Mart would be set-off against any amount found
owing by Wal-Mart to IDRT or, if none, that amount would be awarded to Wal-Mart on its
counterclaim. In paragraph number 2 of the Court’s Conclusion in its Memorandum of
9/25/2007, it reiterated the stipulated amount as a credit to Wal-Mart and held "IDRT is entitled
to recover additional compensation for Phase II based on the ‘Phase II Contract Price’ reduced
by the $28,292.01 credit owed by IDRT to Wal-Mart."
500 Delaware Avenue, Suite 1500 | Wilmington, DE 19801-1494 T $02.888.6800 F $02.571.175O
Mailing Address P.O. Box 2306 | Wilmington, DE 19899-2306 www.morrisjames.c0m

Case 1 :05-cv-00176-GIVIS Document 62 Filed 01 /23/2008 Page 2 of 3
The Honorable Gregory M. Sleet
January 23, 2008
Page 2 of 3
It was anticipated that when the Court decided the issues in this case, it would determine
the amount of the "Phase II Contract Price” then subtract from it the stipulated credit and reduce
that amount to a money judgment. The 9/25/07 Judgment did not do that.
The parties tried to resolve the amount due on their own, but they were unable to do so
and on the 30th day after the Court's Judgment, Wal-Mart filed a "Protective" appeal. On the
SGIIIC date (10/25/2007), IDRT filed a Motion to Amend or Alter Judgment (Federal Rule of
Civil Procedures 59(e)) and altematively, a Motion for Relief of Judgment (Federal Rule of Civil
Procedures 60). Along with the Rule 59(e) motion, IDRT filed a Motion for enlarging time for
filing the Rule 59(e) motion. IDRT also filed a Bill of Costs on the same date.
On or about November 8, 2007, Wal-Mart filed a response to IDRT's Motion to Alter or
Amend Judgment and for Enlargement of Time, stating that the Court lacked jurisdiction in that
it appealed the Court's 9/25/07 Judgment; and Wal-Mart filed an objection to IDRT’s Bill for
Costs. On November 14, 2007, IDRT filed a reply to Wal-Mart’s response to its Motion to Alter
or Amend Judgment or Relief of Judgment and Motion for Enlargement of Time. There has
been no proceeding and no ruling on any of these matters.
In the meantime, the U.S. Court of Appeals for the Third Circuit on October 29, 2007
submitted a letter Order to the parties stating that it appeared the Notice of Appeal was taken
from an Order which was not final within the meaning of 28 USC §l29l and was not otherwise
appealable in that it appeared the amount of damages had not been quantified. The Third Circuit
directed the parties to submit their position and they did so.
We just received a l/9/2008 Order from the U.S. Court of Appeals for the Third Circuit
which stated that in its review of the District Court record, it found that the parties "stipulated to
the amount of damages which was approved by the District Court in an Order entered May 26,
2006." It further noted that there was a motion pending before the U.S. District Court to Alter or
Amend Judgment and it decided to Stay the Order of Appeal "until such time the District Court
disposes of the Motion." The parties were directed to inform the Third Circuit when the District
Court entered an Order disposing of the motion.
We respectfully submitted that the 1/ 9/2008 Order from the U.S. Court of Appeals for the
Third Circuit was incorrect. The Stipulation, which was referred to above, was not a Stipulation
to the "arnount of damages," but was the Stipulation which we have outlined above. In other
words, still to be decided is the amount of damages based on the Phase II Contract Price, reduced .
by the stipulated credit. In addition, the Third Circuit’s Order did not reflect that there were two
(2) motions pending before the U.S. District Court; that is, the Motion to Alter or Amend
Judgment and as indicated above, altematively, a Motion for Relief of Judgment.

Case 1 :05-cv-00176-GIVIS Document 62 Filed 01 /23/2008 Page 3 of 3
The Honorable Gregory M. Sleet
January 23, 2008
Page 3 of 3
IDRT has tiled a Motion for Reconsideration of the Third Circuit's 1/9/2008 Order.
However, at this point, the case has been remanded to this Court for consideration of the post-
trial motion(s).
There is no need for trial on the amount of damages because all of the evidence
concerning the Phase Il Contract Price, CBL modules, amounts invoiced and payments made for
development of CBL modules was submitted at trial. lf the Court would like to have written
submissions based on the evidence at trial and/or oral argument, IDRT, of course, will be willing
- and anxious - to comply. We respectfully suggest that a Scheduling Conference between
counsel and the parties’ respective representatives may be in order and may help resolve this
matter in an expeditious and efficient manner.
We thank the Court for its consideration of these matters and these issues.
Respectfully submitted,
Patricia R. Uhlenbrock (#401 1)
PRU/dar
Enclosures
cc: Gregory A. Inskip, Esquire (via e-filing)
Harvey R. Greenberg, Esquire (via e—mail)
Clerk of the Court (via e-tiling)
1675219/1