Free Objections - District Court of Delaware - Delaware

Case 1 :O4—cv-00583-GI\/IS Document 1 12 Filed O9/30/2005 Page 1 of 3
· IN THE UNITED STATES DISTRICT COURT
. FOR THE DISTRICT OF DELAWARE
1 In re INACOM CORP., et al., Bankruptcy Case No. 00-2426 (PJW)
INACOM CORP., on behalf of all affiliated Civil Action No. 04-583 GMS
Debtors, Adversary Case No. 02-3500 (PJW)
Plaintiff,
v.
[Related to Docket No. 111]
LEXMARK INTERNATIONAL, INC.,
Defendant.
PLAINTIFF’S OB.IECTION TO DEFENDANT’S "NOTICE OF CORRECTION OF
ERROR IN THE PROPOSED FINAL PRETRIAL ORDER"
Plaintiff Inacom Corp. ("Inacom") objects to Defendant’s "Notice Of Correction
of Error in the Proposed Final Pretrial Order" (D.I. 111) (the "Notice"), which purports to amend
the parties’ Final Pretrial Order by removing a factual stipulation, less than three(3) weeks prior
to trial.
1. Proposed amendments to final pretrial orders are disfavored, and should
not be taken lightly. See Advisory Committee Note to Fed. R. Civ. P. 16(e), as cited in Leonen v.
Johns-Manville Corporation, Civ. No. 8202684, 1989 WL 5819, at * 2 (D.N.J. Jan. 23, 1989).
"In the case of Final Pretrial Orders, the standard is even more stringent, and final pretrial orders
are binding on the parties in the absence of a showing of manifest injustice." Id. at pg. 2. e
Accord, Petree v. Victor Fluid Power, Inc., 831 F.2d 1191, 1194 (3rd Cir. 1987); Ely v. Reading
Co., 424 F.2d 758, 763 (3rd Cir. 1970).
42125-00l\DOCS_DE:l11943.1

A I Case 1 :04-cv-00583-GI\/IS Document 1 12 Filed O9/30/2005 Page 2 of 3
- 2. Defendant’s Notice fails to set forth (or provide evidentiary support for)
. any "manifest injustice" arising from the implementation of the Final Pretrial Order as negotiated
and executed by the parties. This is not a case of mistake, clerical error, or unforeseen
circumstances. The Final Pretrial Order is in the form and substance negotiated bythe parties
between July 15, 2005, and its execution and filing on August 15, 2005. The Final Pretrial Order
g is an accurate memorialization of the remaining issues in the case following years of discovery.
Equity and fairness is not served in entertaining an off the cuff request to inject a material issue
in the case, previously conceded, on the eve of trial. Lexmark simply desires to adopt an
argument raised by Defendant Tech Data (in one of the consolidated actions). Defendant’s
Notice ineffectively references its "error" without further explanation or support (Notice, ‘][6).
3. Defendant has had over three (3) years to flush out its theories on the case.
Its decision to wait until the eve of trial, and 6 weeks after the narrowing of the issues as
documented in the parties’ Final Pretrial Order, is a matter of strategy and does not rise to the
level of a "manifest injustice." See Jennings v. Boenning & C0., 388 F.Supp. 1294, 1303 (D.C.
Pa. 1975) (plaintiff had ample opportunity to list all the theories of liability on which it would 9
rely at trial, and the exclusion of a theory advanced only prior to the court's charge to the jury did
not result in "manifest injustice").
4212s-001xoocs_DE;111943.1 2

Case 1:O4—cv-00583-GI\/IS Document 112 Filed O9/30/2005 Page 3 of 3
· Plaintiff respectfully objects to Defendant’s Notice as procedurally and
- substantively defective, and requests that the Court reject the Notice in its entirety.
- Dated: September @0 , 2005 PACI·IULSKI, STAN G, ZIEHL, YOUNG, JONES
& WEINTRAUB P.C.
Q cig . \/\lU(l(,·Vl€lg·Q9l/ CDE HW/llc. 37 $5)
Laura Davis Jones (DE Bar No. 2436)
Sandra G. McLamb (DE Bar No. 4283)
919 North Market Street, 16th Floor
Wilmington, Delaware 19899-8705 (Courier 19801)
Telephone: (302) 652-4100
Andrew W. Caine (CA Bar No. 110345)
Jeffrey P. Nolan (CA Bar No. 158923)
10100 Santa Monica Blvd., 11th Floor
Los Angeles, Califomia 90067-4100
Telephone: (310) 277-6910
Counsel for Plaintiff, INACOM CORP
42125-001\DOCS__DE:l11943.1 3

Case 1:04-cv-00583-GMS

Document 112

Filed 09/30/2005

Page 1 of 3

Case 1:04-cv-00583-GMS

Document 112

Filed 09/30/2005

Page 2 of 3

Case 1:04-cv-00583-GMS

Document 112

Filed 09/30/2005

Page 3 of 3