Free Response to Motion - District Court of Delaware - Delaware

Case 1 :04-cv-00583-GI\/IS Document 48 Filed 07/18/2005 Page 1 of 3
U UNITED STATES DISTRICT COURT
DISTRICT OF DELAWARE
INACOM CORP., et al.
Plaintiffs
v.
LEXMARK INTERNATIONAL, INC.
Defendant and Third-Party Plaintiff Civil Action No. 04-CV-583 (GMS)
v.
_ COMPAQ COMPUTER CORPORATION
Third-Party Defendant
LEXMARK’S RESPONSE TO HP’S MOTION FOR A SEPARATE TRIAL OF
LEXMARK’S AND TECH DATA’S THIRD-PARTY COMPLAINTS AGAINST IT
I. INTRODUCTION
Pending on the Court’s docket are four actions brought by Plaintiff InaCom Corp.
("InaCom") against Defendants Lexmark Intemational, Inc. (“Lexmark"), Tech Data Corp.
("Tech Data"), Dell Computer Corp. ("Dell") and Ingram Entertainment Inc. ("Ingram").l
I Lexmark and Tech Data have each tiled a third—party complaint against Third-Party Hewlett-
Packard Company ("HP"). HP has moved the Court to order that, pursuant to Rule 42(a) ofthe
I I The actions against Tech Data, Dell and Ingram are styled InaC0m Cmp., et al. v. Tech Data
Carp., Civil Action No. 04-CV-148 (GMS), !naC0m Corp., et al. v. Dell Computer Corp., Civil Action No. 04-CV-
582 (GMS) and InaC0m Cmp., et al. v. Ingram Entertainment Inc., Civil Action No. 04-CV -593 (GMS).
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Federal Rules of Civil Procedure ("Fed.R. Civ. P."), Lexmark’s a11d Tech Data’s claims against
it be tried separately from InaCom’s claims against Lexmark, Tech Data, Dell and Ingram. (D.I.
45). Because granting the motion will simplify the ruling on the motions to consolidate and for a
jury trial, Lexmark does not obj ect to the motion for a separate trial of the third—party claims.
II. DISCUSSION
InaCom has filed separate complaints against Lexmark, Tech Data, Dell and Ingram to
recover allegedly preferential payments made to them before InaCom tiled for bankruptcy.
Because the claims therein are identical, Lexmark, Tech Data, Dell and Ingram tiled a motion for
the Court to consolidate the claims for trial pursuant to Fed. R. Civ. P. 42(a). (D.I. 36).
Ir1aCom and HP obj ect to the motion to consolidate on several grounds including that third-party
complaints against HP are alleged in only two of the actions. (D.I. 38; D.I. 39). Lexmark does
not object to HP’s motion fora separate trial of the third-party complaints as granting the motion
eliminates one of the grounds InaCom and HP contend weighs against consolidation.
Lexmark, Tech Data, Dell and Ingram have also filed a motion for the Court to order a
trial by jury of InaCom’s claims against them, and of Lexmark and Tech Data’s claims against
HP, pursuant to Fed. R. Civ. P. 39(b). (D.I. 25). InaCom has objected to the motion but HP has
not. (D.I. 29). Lexmark does not object to HP’s motion for a separate trial of the third-party
claims as HP has not opposed Lexmark’s and Tech Data’s motion for a jury trial of the third-
` party claims.
The Court has set the trials of the four actions brought by InaCom against Lexmark, Tech
Data, Dell and Ingram, and of Lexmark’s and Tech Data’s third-party complaints against HP, to
begin on October 17, 2005. Assuming that the four actions brought by InaCom are consolidated
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for trial, the third-party complaints may be tried immediately after that trial concludes. The five
days allotted by the Court for the trials should be more than sufficient.
III. CONCLUSION
For the foregoing reasons, HP’s motion for a separate trial of the third-party complaints
against it should be granted.
Dated: July 18, 2005 Respecttiilly submitted,
/.9/ Thomas G. Whalenlfr.
Joseph Grey (No. 2358)
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
Adam T. Goebel
Stoll, Keenon & Park, LLP
2650 AEGON Center 1
400 West Market Street
Louisville, Kentucky 40202-3377
Tel: (502) 568-9100
Fax: (502) 568-5700
Counsel for Defendant and T hird—Par{y
Plaintrf Lexmark International, Inc.
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