Free Respone to Objections - District Court of Delaware - Delaware

Case 1:04-cv—00582-G|\/IS Document 41 Filed 05/26/2005 Page 1 of 4
UNITED STATES DISTRICT COURT
DISTRICT OF DELAWARE
In re: Chapter 11
INACOM CORP., et al., Bankruptcy Case No. 00-2426(PJW)
Debtors
INACOM CORP., et al.
Plaintiffs
v. Civil Action No. 04-CV-582 (GMS)
DELL COMPUTER CORP.
Defendants
REPLY IN SUPPORT OF DELL, INC.’S REQUEST FOR JURY TRIAL
Defendant, Dell, Inc. f7k/a/ Dell Computer Corp. ("Dell") files this Reply in Support of
Dell, Inc.’s Request for Jury Trial. In support hereof, Dell respectfully shows the Court as
follows.
l. On May ll, 2005, Dell filed its Request for Jury Trial, seeking that the Court
exercise its discretion under Rule 39(b) to grant Dell a jury trial as to Plaintiffs claims in the
above-captioned adversary proceeding. In Plaintiffs Opposition to Defendant’s Request for Jury
Trial ("Plaintiff’ s Response"), Plaintiff contends that Dell has "lost" its right to a jury trial
because it did not make a jury demand within ten (10) days after service of the last pleading
directed to such issue, as provided under Rule 38 of the Federal Rules of Civil Procedures. In
Plaintiffs view, this apparently ends the inquiry and definitively deprives Dell of a right to trial
byiurr
2. Plaintiff, however, entirely ignores Rule 39(b), which is the basis for Dell’s
Request for Jury Trial. Rule 39(b) provides as follows:
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(b) By the Court. Issues not demanded for trial by jury as
provided in Rule 38 shall be tried by the court; but
notwithstanding the failure of a party to demand a jury in an
action in which such a demand might have been made of right,
the court in its discretion upon motion may order a trial by a
jury of any or all issues.
Fed. R. Civ. P. 39(b) (emphasis added).
3. Because Dell has not tiled or otherwise submitted a proof of claim to lnacom’s
bankruptcy estate, Dell has not waived its Seventh Amendment right to a jury trial as to
Plaintiffs claims asserted against Dell. Therefore, under Rule 39(b), the Court can order a trial
by jury as to Plaintiffs claims against Dell.
4. For the reasons set forth in Dell’s Request for Jury Demand, pursuant to Rule
39(b), the Court should exercise its discretion and grant Dell a jury trial on all claims asserted by
Inacom against Dell in the above-captioned proceeding.
5. Furthermore, as Dell pointed out in its Request for Jury Trial, where two or more
cases are consolidated and one is accompanied by a right to a jury trial, the Court may properly
grant a jury trial in both cases. Cedars-Sinai Med. Ctr. v. Revlon, Inc. lll F.R.D. 24, 32 (D. Del.
1986).
6. On May 10, 2005, Defendants, Lexmark Intemational, Inc.; Dell, Inc.; Tech Data
Corp.; and Ingram Entertaimnent, Inc. filed their Joint Motion for the Court to Consolidate for
Trial ("Motion to Consolidate"). On May 20, 2005, Plaintiffs filed their Memorandum in
Opposition to Defendant’s Motion to Consolidate for Trial ("Plaintiffs’ Response to Motion to
Consolidate"). In Plaintiffs’ Response to Motion to Consolidate, Plaintiffs stated that they agree
"that a joint evidentiary hearing on the insolvency issue will serve convenience and economy and
avoid conflicting rulings without prejudice." (Plaintiff s Response to Consolidation, at 1] 12).
Accordingly, Plaintiffs appear to agree to consolidation on the issue of solvency.
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7. Therefore, to the extent the Court consolidates the actions and to the extent the
Court grants Lexmark’s Motion for Jury Trial, Dell would also be entitled to a jury trial in the
consolidated action. See Cedars-Sinai Med. Ctr 111 F.R.D. at 32.
8. Finally, Dell objects to Plaintiff s reservation of its right to file a sur-reply in
connection with Dell’s Request for Jury Trial. (See, Plaintiff s Response at 1[5) Local Rule 7.1.2
govems the applicable briefing of motions and provides only for opening, answering and reply
papers. See, L.R. 7.l.2(b). Additional papers, including sur-replies, are expressly prohibited
absent prior approval of the Court. See, L.R. 7.l.2(c).
WHEREFORE, Dell prays that this Court grant its Request for Jury Trial and grant Dell
such other and further relief to which it is justly entitled.
Seitz, Van Ogtrop & Green, P.A.
/s/ Patric` P. nigle
Patri a . 0 gle, Esq.
Dela are S ate Bar No. 3126
222 Delaware Avenue, Suite 1500,
Wilmington, Delaware 19899
(302) 888-0600
FAX (302) 888-0606
and
Sabrina L. Streusand, Esq.
Texas State Bar No. 11701700
G. James Landon, Esq.
Texas State Bar No. 24002445
Hughes & Luce, L.L.P.
111 Congress Avenue, Suite 900
Austin, Texas 78701
(512) 482-6800
FAX: (512) 482-6859
ATTORNEYS FOR DELL, INC.
Dated: May 26, 2005
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CERTIFICATE OF SERVICE
I, Patricia P. McGonigle, hereby certify that on this 26th day of May 2005, a copy
of the foregoing Defendant Dell, Inc. ’s Reply in Support of Dell ’s Inc. ’s Request for
Jury Trial was served on counsel of record as follows:
Wa First Class Mail
Elio Battista, Jr., Esquire
Blank Rome LLP
1201 Market Street, Suite 800
Wilmington, DE 19801
Via First Class Mail
Earl M. Forte, Esquire
Blank Rome, LLP
One Logan Square
Philadelphia, PA 19103-6998
Wa First Class Mail
Laura Davis Jones, Esquire
Pachulski, Stang, Ziehl, Young, Jones
& Weintraub, P.C.
919 North Market Street, Suite 1600
P. O. Box 8705
Wilmington, DE 19899-8705
/s/ Patricia P. McG0nigle
PATRICIA P. MCGON 126)
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