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

Case 1:04-cv—00148-G|\/IS Document 106 Filed 10/19/2005 Page 1 of 3
v UNITED STATE-S DISTRICT COURT
DISTRICT OF DELAWARE
In re:
Civil Action N0. l:04-cv—00148—GMS
INACOM CORPORATION, etal., _
Debtors.
/ Bankr. Case No. 00-02426 (PIW)
INACOM CORPORATION, etc., Adv. Pro. No. 02-03496 (PJW)
Plaintiff, `
v. ·
TECH DATA CORPORATION,
Defendant and
Third—Party Plaintiff,
v.
HEWLETT-PACKARD COMPANY, A
Third—Party Defendant.

DEFENDANT TECH DATA’S MOTION FOR JUDGMENT PURSUANT TO
RULE 52(c) OF THE FEDERAL RULES OF CIVIL PROCEDURE FOR
FAILURE TO PRESENT A PRIMA FACIE CASE UNDER ll U.S.C. § S4'7gb)g1)
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
l. On June 28, 2004, the court’s order was entered withdrawing the reference to the
United States Bankruptcy Court for the District of Delaware ("Bankn,1ptcy Court") of a number
of adversary proceedings brought by Inacom in its bankruptcy case. .
I {210246.000z/N0s69170_1}

Case 1:04-cv—00148-G|\/IS Document 106 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. U
RELIEF REQ QUESTED AND REASONS THEREFOR A
7. Tech Data requests entry of judgment in its favor and against the plaintiff Inacom.
8. To avoid a transfer under ll U.S.C. § 547(b)(l), Inacom must prove by a preponderance
of the evidence that Tech Data, for purpose of those transfers to be avoided, was a creditor at the time of
the transfers, and that the transfers were made to or for the benefit of Tech Data.
9. The evidence presented in the Plaintiff’s case shows that a novation arose as a result of
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.
10. At the time of the transfers, Tech Data was not an entity that had a claim against Inacom
that arose at the time of or before the order for relief concerning the debtor, and, therefore, does not meet
the definition of creditor as supplied by 11 U.S.C. § l01(l0).
ll. Inacom failed to establish that the allegedly preferential transfers were to or for the
benefit of a creditor as required by 11 U.S.C. § 547(b)(l), and, thus, incapable of establishing a prima
I facie preference case under 11 U.S.C. § 547(b).
p {2102%.0002/N0s69170_i} 2

Case 1:04-cv—00148-G|\/IS Document 106 Filed 10/19/2005 Page 3 of 3
12. In the absence of the proof of a prima facie case, this action cannot be maintained and is
ripe for judgment pursuant to Rule 52(c).
WHEREFORE, Tech Data respectfully requests that the Court enter an Order granting judgment
in its favor and against the Plaintiff, and for such other and further relief as the Court may 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 Pro Hac Vice)
Stephen C. Hunt (Admitted Pro 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 Corporation
—and—
HERLIHY, HARKER & KAVANAUGH
James F. Harker (Bar No. 255)
1400 North Market Street, Suite 200
Wilmington, Delaware 19899
Telephone: 302-654-311 1
Local Counsel for Defendant,
Tech Data Corporation
{2103460002/N0569170_l i 3

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