Submitted: January 9, 2018
Defendants' Motion for Reargument on the Court's
December 19, 2017 Opinion on Plaintiff Adchemy's Motion
in Limine to Preclude Evidence Relating to Damages
Excluded by Contract DENIED
Memorandum Opinion dated December 19, 2017, the Court granted
Plaintiff Adchemy's Inc.'s Motion in Limine
to Preclude Evidence Relating to Damages Excluded by
Contract. The Court held that "all remaining
counterclaims are in essence claims for breaches of
representations and warranties. Thus, Article VII
Indemnification controls as the defined Exclusive Remedy.
Damages in the form of consequential, opportunity cost, loss
of anticipated or future business, and profits, are
have moved for reargument. Defendants contend that the Court
committed two clear errors of law, resulting in manifest
injustice against Defendant Zeta:
• The Court's treatment of a motion in
limine as a late-filed motion for summary judgment,
without affording Zeta a full briefing and hearing on the
merits, as required by Rule 56.
• The Court's failure to allow an ambiguous contract
interpretation issue to be decided by a jury.
Zeta requested reargument on the basis that it should have
been entitled to full briefing and oral argument, Zeta has
failed to identify any substantive argument it would have
made in more extensive submissions to the Court. Instead,
Zeta uses over 4 pages of its Motion for Reargument asserting
that it should have had more pages.
the parties were granted the opportunity to present their
positions twice - as part of the motion in limine
process, and through supplemental briefing requested by the
Special Master. Defendants did not seek an extension of page
and oral argument, while generally subject to the rules of
procedure, are entirely within the discretion of the Court.
In this circumstance, the Court could have declined
altogether to address the Motion in Limine as an
untimely summary judgment motion. However, in the interest of
judicial economy, the Court determined that the Motion in
Limine presented a substantial legal issue that would
have to be resolved before the case is presented to the jury.
Rather than wait until the eve of trial, the Court decided
the issue in order to inform the parties and streamline their
preparations for trial (and any potential settlement
negotiations). Defendants have failed to set forth any
prejudice aside from vague contentions that they needed full
also argue that the jury was deprived the opportunity of
deciding ambiguous contract terms governing damages. This
argument contradicts Defendants' earlier position that
the relevant contract terms were defined and no extrinsic
evidence exists to assist in interpreting the contract.
December 19, 2017 Memorandum Opinion, the Court found as a
matter of law that the contract was unambiguous on the issues
of the nature of Defendants' counterclaims; and
derivatively, Defendant's entitlement to lost profits
damages on the counterclaims. The damages issues left for
jury resolution are: whether Defendants are entitled to
damages as a result of Plaintiff s transfer of encumbered
subject domain names to purchasers in violation of the
contract; and if so, the proper measure of damages.
purpose of moving for reargument is to seek reconsideration
of findings of fact, conclusions of law, or judgment of
Reargument usually will be denied unless the moving party
demonstrates that the Court overlooked a precedent or legal
principle that would have a controlling effect, or that it
has misapprehended the law or the facts in a manner affecting
the outcome of the decision. "A motion for reargument
should not be used merely to rehash the arguments already
decided by the court." To the extent Defendants asserted
issues that were not raised in the submissions in support of
its motion, new arguments may not be presented for the first
time in a motion for reargument.
Court has reviewed and considered the parties' written
submissions and arguments. The Court did not overlook a
controlling precedent or legal principle, or misapprehend the
law or ...