Free Answering Brief in Opposition - District Court of Delaware - Delaware

Case 1 :04-cv-00583-GI\/IS Document 66 Filed 08/15/2005 Page 1 of 3
UNITED STATES DISTRICT COURT
DISTRICT OF DELAWARE
INACOM CORP., et al.
Plaintiffs
v. Civil Action No. 04-CV-583 (GMS)
LEXMARK INTERNATIONAL, INC.
Defendant
LEXMARK ’S RESPONSE TO HEWLETT-PACKARD COMPANY’S MOTION IN
LIMINE T0 EXCLUDE EVIDENCE RELATED TO LEXMARICS
CLAIMS AS A TI-HRD-PARTY BENEFICIARY
Lexmark Intemational, Inc. (the "Defendant" or "Lexmark") states as follows for its
response to Hewlett-Packard Company’s ("HP”) Motion In Limine to Exclude Evidence Related
to Lexmark’s Claims as a Third-Party Beneficiary under the Asset Purchase Agreement between
InaCom Corp. (“InaCom") and Compaq.
STATEMENT OF FACTS
Lexmark hereby incorporates by reference the facts as set forth in its Proposed Findings
of Fact and Conclusions of Law as to Its Third Party Complaint.
ARGUMENT
I. Hewlett-Packard Has Failed to Show Cause as to Why Evidence of
Lexmark as a Third—·PaLty Beneiiciagy Should Be Excluded
HP has presented no legal authority sufficient to preclude Lexmark’s presentation of
evidence of its status as a third—party beneficiary to the Asset Purchase Agreement. New York
law is clear that, "it is just and practical to permit the person for whose benefit the contract is
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made to enforce it against one whose duty it is to pay." Seaver v. Ransom, 120 N.E. 639, 640
(N .Y. 1918). Lexmark stands as an intended third-party beneficiary to the Asset Purchase
Agreement and, notwithstanding HP’s protests, is entitled to present evidence in support of that
conclusion at trial.
HP contends that the provision perhaps best characterized as a non-assignment clause is
"controlling” of Lexmark’s status as a third-party beneficiary. And yet, the Southern District of
New York has had occasion to reject such a notion, stating that, "[With] the proposition that the
existence of a non-assignment clause alone suffices to preclude assertion of intended third-party
beneficiary status, the Court cannot agree. After all, it is possible for parties to intend that a third
party enjoy enforceable rights while at the same time intending to limit or preclude
assigmnents." Piccoli A/S v. Calvin Klein Jeanswear Co., 19 F. Supp. 157, 164 (S.D.N.Y.
1998). Accordingly, Lexmark’s status as third-party beneficiary is a matter best decided by the
trier of fact at a trial upon those facts, rather than as presented by HP as a fait accompli without
regard for the full extent of New York law upon the subject.
II. Dismissal Based Upon Hewlett-Packard’s Pending Motion Would Be
Premature and Unduly Harsh
However the Court may rule upon the pending motion in limine, a resulting involuntary
dismissal of any of Lexmark’s claims would be both a premature and unduly harsh result. See
generally Atkinson v. Way, 2004 U.S. Dist. LEXIS 16933 (D. Del. 2004).* The outcome of HP’s
motion in limine notwithstanding, none of Lexmark’s claims should be dismissed without further
and adequate proceedings to that effect.
1 A copy of Atkinson is attached at l.
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CONCLUSION
For the foregoing reasons, Lexmark respectfully requests that this Court deny HP’s
motion in limine seeking to preclude introduction of evidence supporting or for dismissal of
Lexmark’s status as a third-party beneticiary to the Asset Purchase Agreement.
Dated: August 15, 2005
Respectfully submitted,
Thomas G. Whalen Jr. (No. 4034)
Stevens & Lee, P.C.
1105 North Market Street, 7th Floor
Wilmington, Delaware 19801
Tel: (302) 425-3304
Fax: (302) 654-5181
and
Culver V. Halliday
Emily L. Pagorski
Stoll, Keenon & Park, LLP
2650 AEGON Center
400 West Market Street
Louisville, Kentucky 40202-3377
Tel: (502) 568-9100
Fax: (502) 568-5700
Attorneys for Defendant
Lexmark International, Inc.
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