Free Objections - District Court of Delaware - Delaware

Case 1 :04-cv—00582-GIVIS Document 38 Filed 05/20/2005 Page 1 of 4
IN THE UNITED STATE DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
In re: )
) Chapter 11
INACOM CORP., et al., )
) Case No. O0-2426 (PJW)
Debtors. )
)
. )
INACOM CORP., on behalf of affiliated )
Debtors, ) Civil Action No. 04-582-GMS
) Adv. No. 02-3499
Plaintiff, )
)
v. )
)
DELL COMPUTER CORPORATION, )
)
Defendant. )

PLAINTIFF’S OPPOSITION TO DEFENDANT’S REQUEST FOR A ,|URY TRIAL
Since this case was filed on May 16, 2002, Dell Computer Corporation has never before
made a jury demand. It is now too late. Dell waived its right to a jury trial almost three years
ago when it decided not to make a jury demand within ten days after service of the last pleading;
its Answer to the Complaint. Dell offers no excuse for this extremely long delay and therefore
its request should be denied.
I. Background
1. Dell relies on the motion seeking a jury trial filed by Lexmark International, Inc.
("Lexmark") in Civil Action No. 04-583 (the "Lexmark Motion") to support its request in this
case. The plaintiff in Civil Action No. 04-583, InaCom Corp. and affiliated Debtors
("InaCom"), has filed an opposition to the Lexmark Motion. The Lexmark Motion has not yet
been decided. For the reasons stated in InaCom’s opposition to the Lexmark Motion, Plaintiff
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opposes Dell’s request for a jury trial and incorporates Inacom’s opposition to the Lexmark _
Motion by reference.
2. Lexmark, Dell, and the Defendants in Civil Action Nos. 04-148 and 04-593, Tech
Data Corporation ("Tech Data") and Ingram Entertainment, Inc. ("Ingram"), respectively, have
recently filed a motion seeking to consolidate all four actions into one proceeding for trial (the
"Consolidation Motion"). Plaintiff and InaCom have filed a joint opposition to the
Consolidation Motion.
II. Dell’s Reguest for A ,|ury Trial
3. Dell is not entitled to a jury trial. Dell is simply wrong when it states that it has
not lost its right to a jury. Federal Rule of Civil Procedure 38 applies to this adversary
proceeding through Fed. R. Bankr. P. 9015. Under subsection (b) of Rule 38, a party such as
Dell is required to make a jury demand no later than ten days after service of the last pleading. If
a party fails to make a jury demand within this ten-day period, the party waives its jury trial
right, as clearly stated in subsection (d) of Rule 38. The last pleading served in this case was
Dell’s Answer to the Complaint, which Dell filed and served on June 11, 2002. Hence, the ten-
day deadline in Rule 38(b) expired on June 21, 2002, almost three years ago. Dell never made a
jury demand by June 21, 2002 and therefore waived its jury trial right at that time. On December
29, 2004, after obtaining leave of Court, Dell filed and served an Amended Answer to add one
new defense. Even assuming arguendo that Dell’s ability to make a jury demand was resurrected
by service of its Amended Answer, which the Plaintiff denies, the ten-day period in Rule 38(b)
still expired on January 10, 2005, over four months ago. Again, Dell chose not to make a jury
demand at that time. Dell’s unexplained (or opportunistic) delay should not be rewarded now.]
‘ It should also be noted that Dell had over two years before the reference of this and the other three lnacom actions
was withdrawn to assert a timely jury demand and to seek withdrawal of the reference on its own under 28 U.S.C. §
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4. Nor should Dell be permitted to "end run" its waiver of the right to a jury trial and
obtain a jury trial to which it is not entitled by relying on Lexmark’s or another litigant’s jury
demand. Since Lexmark’s and Dell’s jury trial requests suffer from the same deficiencies, they
should both be denied and the Court relieved of the need to address this aspect of the jury trial
issue.
5. Plaintiff opposes the request of Dell and Lexmark for a jury trial, as well as the
Defendants’ collective request for consolidation and relies on the briefs previously filed in
opposition to those motions to supplement its arguments here. For this reason, under Local Rule
7.1.2, Plaintiff will not submit a separate memorandum of law. Plaintiff reserves the right to file
a sur-reply to any reply brief submitted by Dell.
WHEREFORE, De1l’s request for a jury trial should be denied and the Court should grant
Plaintiff such other and further relief as may be just and proper.
BLANK L
Dated: May 19, 2005 .
onnie antz Fa ll ( E No. 3809)
Steven L. Caponi (DE No. 3484)
Elio Battista, Jr. (DE No. 3814)
1201 Market Street, Suite 800
Wilmington, DE 19801
Tel: (302) 425-6400
Fax: (302) 425-6464
- and —
157(d). Such a course of action is common practice in bankruptcy litigation, where it is well settled that a party’s
right to a jury trial constitutes cause for withdrawal of the reference under 28 U.S.C. § 157(d). In re: NDEP, Corp.,
203 B.R. 905, 913 (D. Del. 1996) citing In re: Pruitt, 910 F.2d 1160, 1168 (3d. Cir. 1990) and Hatzel & Buehler,
Inc. v. Central Hudson Gas & Electric, Corp., 106 B.R. 367, 360 (D. Del. 1989).
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Earl M. Forte
Regina Stango Kelbon
One Logan Square
Philadelphia, PA 19103
Tel: (215) 569-5500
Fax: (215) 569-5555
Attomeys for Plaintiff, Executive Sounding Board
Associates, Inc., as Plan Administrator for Plaintiff
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