Free Reply to Response to Motion - District Court of Delaware - Delaware

Case 1 :05-cv-00176-GIVIS Document 60 Filed 11/14/2007 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
INSTITUTE FOR DISABILITIES *
RESEARCH AND TRAINING, INC.
*
Plaintiff,
*
- v. Case N0. 05-176-GMS
*
WAL-MART STORES, INC.
*
Defendant.
* * 4 * * >¤· * * * * * *
PLAINTIFF’S REPLY TO DEF ENDANT’S RESPONSE TO
PLAINTIFF’S MOTION TO AIVIEND OR ALTER JUDGMENT OR
RELIEF OF JUDGMENT; AND MOTION FOR ENLARGEMENT OF TIME
l. On October 25, 2007, the Plaintiff, IDRT, filed a pleading entitled
"Motion to Amend or Alter Judgment or, Alternatively, Motion for Relief of
J udgment" (hereinafter "Motion"); and a Motion to Enlarge Time for filing the
foresaid motion under Federal Rule of Civil Procedure 6(b)(2).
2. The aforesaid Motion addresses the Court’s Judgment of
September 25, 2007 and requests the Court to quantify the amount of the judgment,
consistent with the Court’s Memorandum, page 19, that concluded as follows:
IDRT is entitled to recover additional
compensation for Phase II based on the
"Phase Contract Price," reduced by the
$28,292.01 credit owed by IDRT to Wal-
Mart.
3. The aforesaid Motion requested relief, altematively, pursuant to
Federal Rule of Civil Procedure 59(e) or Federal Rule of Civil Procedure 60(b).

Case 1 :05-cv-00176-GIVIS Document 60 Filed 11/14/2007 Page 2 of 4
4. Also, on October 25, 2007, the Defendant, Wal-Mart, tiled a
Notice of Appeal of the Court’s Judgment of September 25, 2007 and that appeal
has been docketed in the United States Circuit Court of Appeals for the Third
Circuit, Case No. 07-4160 (CMH).
5. On October 29, 2007, the U.S. Court of Appeals for the Third
Circuit issued a letter directive requiring the parties to respond by November 8,
2007 to the issue of whether the appeal is premature because it was taken from an
order (i.e. September 25, 2007 Judgment) which is not iinal within the meaning of
28 U.S.C. §l29l and which is not otherwise appealable at this time because the
"amount of damages have not been quantitied." (Copy of letter directive attached
as Exhibit 1.)
6. The Appellee (IDRT) responded to the Third Circuit’s letter
directive on November 8, 2007, asserting the Judgment was incomplete, the appeal
was premature, and the case should be remanded to the United States District Court
for amendment or supplementation. (Copy of IDRT’s submission, attached as
Exhibit 2.)
7. By letter dated November 7, 2007 (received by IDRT’s counsel
l 1/13/07), Wal-Mart responded to the Third Circuit’s directive and asserted it was
not opposed to a dismissal of the appeal on the grounds stated in the Third Circuit’s
letter directive of October 29, 2007. (Copy of Wal-Ma1t’s submission attached as
Exhibit 3.)
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Case 1 :05-cv-00176-GIVIS Document 60 Filed 11/14/2007 Page 3 of 4
8. In the meantime, on November 8, 2007, Wal-Mart filed a response
to Plaintiff’ s post-trial motions in this Court, asserting therein this Court does not
have jurisdiction to entertain the aforesaid Plaintiff s Post-Trial Motion in light of
Wal-Mart’s Notice of Appeal.
9. This Court has yet to Rule on IDRT’s post-trial motions, including
the Rule 6(b)(2) Motion for Enlargement of Time to File the Rule 59(e) Motion.
l0. As a practical matter, IDRT submits that resolution of this Court’s
consideration of IDRT’s post-trial motions be suspended while the Third Circuit
decides whether it will dismiss the appeal as premature.
ll. In the event Wal-Mart’s appeal is dismissed, IDRT will so advise
the Court and request this Court to consider and rule on its post-trial motions.
12. In the event the Third Circuit does not dismiss the appeal at the
present time, IDRT will so advise the Court and request this Court to consider and
rule on its Rule 60(b) motion.
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Case 1:05-cv-00176—GI\/IS Document 60 Filed 11/14/2007 Page 4 of 4
MORRIS JAMES LLP
éncia R. Uhlenbrock 1#40l 1)
Jason C. Jowers (#4721)
500 Delaware Avenue, Suite 1500
P.O. Box 2306
Wilmington, DE 19899-2306
(302) 888-6880
_1;[email protected]
].]-OW€I`S(@,Il'1OI'1`1S]·3,1'1'1€S.CO1'I`1
Attorneys for PlaintM{
Institute f0r Disabilities Research
and Training Inc.
OF COUNSEL:
Harvey Greenberg, Esquire
29 W. Susquehanna Avenue — Suite 700
Towson, MD 21204
(410) 823-2277
DATED: November 14, 2007
1633096/1
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