Free Motion for Hearing - District Court of Delaware - Delaware

Case 1 :04-cv—00593-GIVIS Document 26 Filed 05/26/2005 Page 1 of 4
i IN THE UNITED STATES DISTRICT COURT V
I _ . FOR THE DISTRICT OF DELAWARE _
A l _In re ) _ ·
V ) Chapter 11 -
INACOM CORP, etal., )
Dcbtorso i g Case No. 00-2426 (PJW)
· . ) —
INACOM CORP., on behalf of all affiliated ) Civil Action N0_ 94-593 (GMS)
' Debtors, ) I . p
4 Plaintiffs, ` · g
. V ) V `
• , ) `
INGRAM ENTERTAINMENT, INC., as
successor in interest to NASHVILLE ) _ ~
COMPUTER LIQUIDATORS, )
. V Defendant. ) _
DEFENDANT INGRAM ENTERTAINMENT INC.’S ·
MOTION FOR JURY TRIAL _
Defendant Ingram Entertainment Inc., as successor in interest to Nashville
Computer Liquidators, L.P., ("Ingram Entertainment") files this Motion for Jury Trial
(the "Motion"). In support of this Motion, Ingram Entertainment respectfully sets forth
the following:
Background _ ‘ i _
1. On February 9, 2005, in the action entitled Inacom Corp. v. Lexmark
International, Inc. (Civil Action No. 04-583), Lexmark International, Inc. ("Lexmark”)
, filed its Motion for the Court to Order a Trial By Jury ("Lexrnarl and its Opening Memorandum in support of that motion. As set forthnin Lexmark’s Jury

’ Case 1 :04-cv—00593-GMS Document 26 Filed 05/26/2005 Page 2 of 4
I Trial Motion and its Opening Memorandum in support thereof, Lexmark is entitled to a
` jury trial on Plaintiff Inacom ·Corp.’s ("Inacom”) claims asserted against Lexmark
because: (i) Lexmark has not submitted a proof of claim against Inacom’s bankruptcy
estate and thus has not waived its Seventh Amendment right to a jury trial and (ii)
Lexmark has satisfied the five factor test set forth in SEC v. The Infinity Group Company,
212 F.3d 180, 196 (3d Cir. 2000) supporting this Court’s ordering a jury trial. I
2. On May 12, 2005, in theaction entitled Inacom Corp. v. Dell Computer
Corp. (Civil Action No. 04-582), Dell, Inc. ("De1l") filed its Request for Jury Trial
("Dell’s Jury Trial Motion"). As set forth in Dell’s Jury Trial Motion, Dell is entitled to a
‘ jury trial on Inacom’s claims asserted against Dell for the same reasons that Lexmark is
entitled to a jury trial. ·
— 3. On May 10, 2005, Lexmark, Dell, Ingram Entertainment and Tech Data
Corp. ("Tech Data") filed a Joint Motion for the Court to Consolidate for Trial (*°Joint p
Motion to Consolidate"), along with the Opening Memorandum in support of that I .
U motion, seeking that the Court consolidate for trial the following actions currently »
pending before this Court: (i) Case No. 04-148 (Inacom Corp. v. Tech Data Corp.), (ii)
in 4 Case No. 04-582 (Inacom Corp. v. Dell Computer Corp.), (iii) Case No. 04-583 (Inacom .
Corp. v. Lexmark International, Inc.), and (iv) Case No. 04-593 (Inacom Corp. v. Ingram
· Entertainment, Inc.). j
Ingram E11tertainment’s Reguest For Jury Trial
4. Ingram Entertainment has not filed or otherwise submitted a proof of
claim to Inacom’s bankruptcy estate. Therefore, Ingram Entertainment has not waived its
Seventh Amendment right to a jury trial as to Inacom’s claims asserted against Ingram
Entertainment. For the same reasons Lexmark and Dell are entitled to a jury trial, as set
forth in their respective Jury Trial Motions and Lexmark’s Opening Memorandum in
. V 2 · _

Case 1 :04-cv—00593-GIVIS Document 26 Filed 05/26/2005 Page 3 of 4
_ support of its Jury Trial Motion, Ingram Entertainment moves this Court to order a trial I
I by jury on all claims asserted by Inacom against Ingram Entertainment.
5. Additionally, as set forth in detail in the Opening Memorandum in support
_ ofthe Joint Motion to Consolidate, where two or more cases are consolidated and one is ‘ A
1 accompanied by a right to a jury trial, the Court may properly grant a jury trial in both
cases. Cedc;rs—Sim1i Med. Chev. Revlon, Inc., lll F.R.D. 24, 32`(D. Del. 1986). To the
extent Lexmark’s or Dell’s Jury Trial Motions are granted and the cases are consolidated,
I Ingram Entertainment is entitled to a jury trial as to Inacom’s claims against Ingram
` Entertainment. V I
6. In support of this Motion, Ingram Entertainment expressly adopts and
incorporates by reference: (i) Lexmark’s Jury Trial Motion and its supporting Opening U
Memorandum, (ii) Oell’s Jury Trial Motion, and (iii) the Joint Motion to Consolidate and L
I its supporting Opening Memorandum. Ingram Entertainment relies on the foregoing J
motions and briefs in support of this Motion, and waives, pursuant to Local Rule 7.1.2, its l
j - right to file an opening brief in support hereof. Ingram Entertainment, however,
expressly reserves its right to file- a reply brief to respond to any and all arguments that
lnacom may assert in response hereto.1
1 Since Inacom has already filed oppositions to Lexmark’s Jury Trial Motion and Dell’s
Jury Trial Motion, counsel for Ingram Entertainment has not attempted to reach an
agreement with counsel for Inacom, pursuant to Local Rule 7.l .1., before filing this
Motion. 4
l 3

Case 1 :04-cv—00593-GIVIS Document 26 Filed 05/26/2005 Page 4 of 4
WHEREFORE, Ingram Entertainment respectfully requests for this Court to enter
an order granting a trial by jury of all of Inacom’s claims against Ingram Entertainment in
» this action and grant to Ingram Entertaimnent such other relief as is just.
Dated: May 26, 2005 ·
Wilmington, Delaware ZUCKERMAN SPAEDER LLP
A N Thomas G. Macauley (ID No. 3411) A
I Elizabeth D. Power (ID No. 4135) ·
919_Marl V P.O. Box 1028
Wilmington, Delaware 19899-1028
t ‘ Tel.: (302) 427-0400
Fax: (302) 427-8242
` -and-
» l A Jonathan P. Hersey A
. (CA Bar No. 189240 - not admitted in
Delaware)
BINGHAM McCUTCHEN LLP
_ 600 Anton Blvd., 18th Floor
_ Costa Mesa, California 92626
Tel.: (714) 830-0600
Fax: (714) 830-0700 _
‘ Attorneys for Defendant
INGRAM ENTERTAINMENT INC., as
successor in interest to NASHVILLE
` · COMPUTER LIQUIDATORS, L.P.
.

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