Free Motion for Judgment on the Pleadings - District Court of Delaware - Delaware

Case 1:04-cv—00148-G|\/IS Document 108 Filed 10/19/2005 Page 1 of 3
UNITED STATES DISTRICT COURT
DISTRICT OF DELAWARE I
In re:
Civil Action No. 1:04-cv—00l48-GMS
INACOM CORPORATION, etal.,
Debtors.
/ Bankr. Case No. 00-02426 (PJW)
INACOM CORPORATION, etc., Adv. Pro. No. 02-03496 (PJW)
Plaintiff,
v.
TECH DATA CORPORATION, ‘
Defendant and
Third—Party Plaintiff,
l v.
HEWLETT-PACKARD COMPANY,
Third-Party Defendant. ‘
;;___________________/
DEFENDANT TECH DATA’S MOTION FOR JUDGMENT PURSUANT TO r I
RULE 52(c) OF THE FEDERAL RULES OF CIVIL PROCEDURE FOR
FAILURE TO PRESENT A PRIMA FACIE CASE UNDER 11 U.S.C. § 547gb)g2[
TECH DATA CORPORATION, the Defendant and Movant herein ("Tech Data") by and
through its undersigned counsel, hereby moves pursuant to Rule 52 of the Federal Rules of Civil
Procedure (the "Rules") for entry of judgment in its favor and against Plaintiff Inacom Corporation
("Inacom") on the following grounds:
STATEMENT OF MATERIAL FACTS
I. On June 28, 2004, the court’s order was entered withdrawing the reference to the
United States Bankruptcy Court for the District of Delaware ("Bankn1ptcy Court") of a number
of adversary proceedings brought by Inacom in its bankruptcy case.
{210346.000;/Nos692a5_1; ‘

Case 1:04-cv—00148-G|\/IS Document 108 Filed 10/19/2005 Page 2 of 3
2. On or about May 10, 2005, four defendants in these adversary proceedings (Tech
Data, Dell Computer Corporation, Lexmark International, Inc., and Ingram Entertainment Inc.)
requested and subsequently received from this Court an Order granting consolidation.
3. The trial of this case began on October 17, 2005.
4. The Plaintiff has rested its case.
5. The Plaintiff has failed to prove that Tech Data was a creditor of Inacom at the
time of the claimed voidable transfers.
RELIEF REQ QUESTED AND REASONS THEREFOR
7. Tech Data requests entry of judgment in its favor and against the Plaintiff Inacom.
8. To avoid a transfer under 11 U.S.C. § 547(b)(2), Inacom must prove by a preponderance
of the evidence that the alleged preferential transfers were made for or on account of an antecedent debt
owed by Inacom before the transfers were made. l
9. The evidence shows that a novation arose as a result of both the Asset Purchase
Agreement and the Assignment and Assumption Agreement between Inacom and Compaq Computer
Corporation ("Compaq"). As a result, Inacom was no longer obligated to Tech Data, said debt having
been assumed by Compaq. l
10. Inacom failed to establish that the allegedly preferential transfers were for or on account
of an antecedent debt owed by the debtor as required by ll U.S.C. § 547(b)(2), and, thus, incapable of
establishing a prima facie preference case under section 547(b),
ll. In the absence of the proof of a prima facie case, this action is ripe for judgment pursuant
to Rule 52(c).
WHEREFORE, Tech Data respectfully requests that the Court enter an Order granting partial
judgment in its favor and against the Plaintiff, and for such other and further relief as the Court may
{210;+46.0002/1~i0s692t;s_i 1 2

Case 1:04-cv—00148-G|\/IS Document 108 Filed 10/19/2005 Page 3 of 3
determine to be just and equitable under the circumstances, including but not limited to attorney’s fees
and costs.
DATED: October __, 2005
Respectfully submitted,
/s/
ADORNO & YOSS LLP
Charles M. Tatelbaum (Admitted Pre Hac Vice)
Stephen C. Hunt (Admitted Pr0 Hac Vice)
350 E. Las Olas Boulevard, Suite 1700
Fort Lauderdale, FL 33301
Telephone: (954) 763-1200
Facsimile: (954) 766-7800
Attorneys for Defendant,
Tech Data C0rp0rati0n
-and-
HERLIHY, HARKER & KAVANAUGH
James F. Harker (Bar No. 255)
1400 North Market Street, Suite 200
Wilmington, Delaware 19899
Telephone: 302-654-3111
Local Counselfar Defendant,
4 Tech Data C0rp0rati0n
{2103460002/NO569285_l 1 3

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