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Case 1:04-cv-OO583—Gl\/IS Document 34-5 Filed O3/16/2005 Page 1 of 4
UNITED STATES DISTRICT COURT
DISTRICT OF DELAWARE
INACOM CORP., et al.
Plaintiffs
v.
LEXMARK INTERNATIONAL, INC. Civil Action No. 04-CV-583 (GMS)
Defendant and Third-Party Plaintiff
v.
COMPAQ COMPUTER CORPORATION I
Third-Party Defendant
REPLY IN SUPPORT OF LEXMARK’S MOTION FOR
THE COURT TO ORDER A TRIAL BY JURY
On February 9, 2005, Defendant and Third-Party Plaintiff Lexmark International, Inc.
("Lexmarl<"), pursuant to Rule 39(b) of the Federal Rules of Civil Procedure, filed its motion
("Lexmark Motion") for the Court to order a trial byjury ofthe issues raised by Plaintiff InaCom
Corp. ("lnaCom") in its complaint against Lexmark, and of the issues raised by Lexmark in its
third-party complaint against Third-Party Defendant Compaq Computer Corporation
(“Compaq"). (Lexmark Motion / D.I. 25, 26). On February 22, 2005, InaCom filed a response
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("InaCom Response") in opposition to the motion.] (InaCom Response / D.I. 29). Compaq did
not file a response to the motion.
lnaCom agrees with Lexmark that the test for whether the Court should exercise its
discretion and grant Lexmark’s motion for ajury trial is set out in SEC v. The Infinity Group Co.,
212 F .3d 180 (3d Cir. 2000). The five factors to be considered in applying the test are
l) whether the issues are suitable for a jury; 2) whether granting the motion would
disrupt the schedule of the Court or the adverse party; 3) whether any prejudice
would result to the adverse party; 4) how long the party delayed in bringing the
motion; and 5) the reasons for the failure to file a timely demand.
Id. at 196. lnaCom disputes that Lexmark has satisfied four of the five factors. lnaCom
indicates that the only factor perhaps satisfied is whether granting the motion disrupts the Court’s
schedule. However, review of Lexmark’s opening memorandum and InaCom’s response
memorandum make clear that Lexmark has satisfied each of the five factors. Accordingly,
Lexmark will only address in this reply the most important factor - whether the adverse parties
would be prejudiced.
ln addressing whether Lexmark has satisfied the most important factor, whether any
prejudice would result to the adverse party, InaCom candidly argues that it will be prejudiced if a
jury trial is held because a jury will be less sympathetic than the Court in considering a
preference claim. (lnaCom Response at 7-9 / D.], 29). Of course, InaCom’s conclusion is highly
speculative. More importantly, even assuming lnaCom is correct in its belief; "having to try a
case before a jury rather than a court is not a factor prejudicial to the non-moving party." EXDS,
Inc. v. RK Electric, Inc., 301 B.R. 436 (Bankr. D. Del. 2003). This is not surprising. "Although
cases have held that the right to ajury trial can be waived due to an untimely request caused by
mere inadvertence or mistake, . . . waiver of a constitutional right should not be made lightly."
' InaCom’s response was served on February 22, 2005, but not received by lead counsel for
Lexmark until February 28, 2005.
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Case 1:04-cv-OO583—Gl\/IS Document 34-5 Filed O3/16/2005 Page 3 oi 4
Truesdale v. State Farm Fire & Casualty C0., 960 F. Supp. 1511, 1521 (N.D. Okla. 1997)
(citations omitted). "[A]bsent strong and compelling reasons to the contrary, a district court
should exercise its discretion under Rule 39(b) and grant ajury trial." Id.
While InaCom has opposed Lexmark’s motion for a jury trial, it will not be prejudiced if
ajury trial is held ofthe claims alleged in its complaint against Lexmark. In addition, Compaq
has not objected to a jury trial of the claims alleged by Lexmark in its third-party complaint
against Compaq. Under the circumstances, Lexmark submits that its motion for a jury trial
should be granted.
Respectfully submitted,
/s/Josegh Greg
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) 425-3307
Fax: (302) 654-5181
and
Culver V. Halliday
Adam T. Goebel
Stoll, Keenon & Park, LLP
2650 AEGON Center
400 West Market Street
Louisville, Kentucky 40202-3377
Tel: (502) 568-9100
Fax: (502) 568-5700
Counsel for Defendant and Third-Party
Plaintiff Lexmark International, Inc.
March 7, 2005
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Case 1:04-cv-OO583—Gl\/IS Document 34-5 Filed O3/16/2005 Page 4 of 4
CERTIFICATE OF SERVICE
I, Joseph Grey, hereby certify that I caused the foregoing Reply In Support Of Lexmark’s
Motion For The Court To Order A Trial By Jury to be served, on March 7, 2005, by first class
United States mail, postage prepaid, addressed for delivery to:
Laura Davis Jones, Esquire William H. Sudell, Jr., Esquire
Sandra McLamb, Esquire Derek C. Abbott, Esquire
Pachulski, Stang, Ziehl, Young, Morris, Nichols, Arsht & Tunnell
Jones & Weintraub P.C. 1201 North Market Street
919 North Market Street, 16th Floor Wilmington, Delaware 19899-1347
Wilmington, Delaware 19899
and
and
Cecily Dumas, Esquire
Andrew W. Caine, Esquire Derrick N. Hansen, Esquire
Jeffrey P. Nolan, Esquire Friedman Dumas & Springwater, LLP
Pachulski, Stang, Ziehl, Young, One Maritime Plaza, Suite 2475
Jones & Weintraub P.C. San Francisco, California 94111
10100 Santa Monica Boulevard, 11th Floor
Los Angeles, California 90067 Counsel for Third—Party Defendant
Compaq Computer Corporation
Counsel for Plaintiff
InaCom Corp.
/s/Josegh Grey
JOSEPH GREY ID 2358
sti 521BBSv1!04907.003

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