WALTER A. WINSHALL, in his capacity as the Stockholders' Representative for former Harmonix Stockholders. Plaintiff,
VIACOM INTERNATIONAL INC., a Delaware Corporation. Defendant.
ORDER DENYING PLAINTIFF'S CORRECTED MOTION FOR
REARGUMENT AND SETTING A HEARING ON DEFENDANT VIACOM
INTERNATIONAL INC.'S MOTION FOR REARGUMENT
M. DAVIS, JUDGE
consideration of Defendant Viacom International Inc.'s
Motion for Reargument (the "Viacom Motion") filed
by Defendant Viacom International Inc. ("Viacom")
on March 4, 2019; Plaintiff's Corrected Motion for
Reargument (the "Plaintiff's Motion") filed by
Plaintiff Walter A. Winshall, in his capacity as the
Stockholders' Representative for former Harmonix On March
7, 2019; Plaintiff's Answer in Opposition to Defendant
Viacom International Inc.'s Motion for Reargument (the
"Plaintiff's Opposition") filed by Mr. Winshall
on March 11, 2019; Defendant's Opposition to
Plaintiff's Corrected Motion for Reargument (the
"Viacom Opposition") filed by Viacom on March 11,
2019; the Court's February 25, 2019 Memorandum Opinion
Denying Plaintiff Walter A. Winshall's Motion for Partial
Summary Judgment and Granting in Part Defendant Viacom
International Inc.'s Motion for Summary Judgment (the
"Opinion"); Superior Court Civil Rule 59(e); the
entire record of this civil proceeding; and having determined
that no hearing is necessary on the Plaintiff's Motion,
1. Superior Court Civil Rule 59(e) ("Rule 59(e)")
provides that a party may file a motion for reargument
"within 5 days after the filing of the Court's Order
or decision." Rule 6(b) states that "the Court . .
. may not extend the time for taking any action under Rules .
. . 59(b), (d) and (e) . . . except to the extent and under
the conditions stated in them."  Rule 59(e) does not allow
for an extension.
standard for a Rule 59(e) motion is well defined under
Delaware law. A motion for reargument will be denied
unless the Court has overlooked precedent or legal principles
that would have controlling effect, or misapprehended the law
or the facts such as would affect the outcome of the
decision. Importantly, motions for reargument should
not be used merely to rehash the arguments already decided by
the court,  or to present new arguments not previously
raised. In other words, a motion for reargument is
"not a device for raising new arguments or stringing out
the length of time for making an
argument." Such tactics frustrate the efficient use
of judicial resources, place the opposing party in an unfair
position, and stymie "the orderly process of reaching
closure on the issues."
the Plaintiff's Motion, Mr. Winshall asserts that the
Court improperly entered judgment against him on his claim
that Viacom must indemnify the Harmonix Shareholders for the
personal income taxes that they incurred as a result of their
profits from the merger. Mr. Winshall argues that the
Court's entry of judgment was improper because: (1) the
Court misconstrued CertainTeed Corp. v. Celotex
Corp. and overlooked the common law accrual
rule, and (2) the Court misconstrued LaPoint v.
Amerisource Bergen Corp.
Court issued the Opinion on February 25, 2019. Under Rule
59(e), the deadline for filing a motion for reargument was
March 4, 2019. Mr. Winshall filed a motion for reargument on
March 4, 2019 which did not comply with the requirements for
a motion for reargument. After Viacom filed a motion to
strike, Mr. Winshall then filed the "corrected"
Plaintiff's Motion on March 7, 2019. The Court finds that
the Plaintiff's Motion is untimely because it was filed
after the March 4, 2019 deadline. Accordingly, the Court must
deny the Plaintiff's Motion. Alternatively, the Court has
reviewed the substantive claims made in the Plaintiff's
Motion and will deny it for the reasons set forth below.
and the Common Law Accrual Rule
the Opinion, the Court cited Certainteed Corp. v. Celotex
Corp. for the proposition that claims for
contractual indemnification accrued at the time of the
underlying breach of contract. The Court held that Mr.
Winshall's claim for indemnification for personal income
taxes arose from the Merger Agreement and so was a claim for
contractual indemnification. In accordance with the
Certainteed case, the Court found that these claims
accrued at the time Viacom breached the Merger Agreement,
which occurred in or before 2011. The Court concluded that
Mr. Winshall's claims were barred by both the three-year
statute of limitations and res judicata.
Winshall claims that the Court improperly entered judgment
against him on his personal income taxes claim as untimely.
Mr. Winshall alleges that the Court erred by misconstruing
CertainTeed Corp. v. Celotex Corp. and
overlooking the common law accrual rule. Mr. Winshall argues
that if the Court has applied these authorities then the
Court would have treated this claim as a common law claim for
third-party indemnification and found that the claim was
timely. As a common law claim for third-party
indemnification, Mr. Winshall contends that the claim would
be timely as it would not accrue until after the payment of
Mr. Winshall's and the Harmonix Shareholders'
personal income taxes on profits from the merger to
third-party taxing authorities.
response, Viacom contends that Mr. Winshall's argument
about the common law accrual rule is completely new. As such,
Viacom claims that this new argument is an improper basis for
a motion for reargument. Next, Viacom asserts that Mr.
Winshall's classification of a claim for personal income
taxes as a common law claim for third-party indemnification
lacks merit. This is because obligations to pay income taxes
to the government are not "claims" brought by
"third-parties." Finally, Viacom cites the Opinion,
in which the Court found that Mr. Winshall's
indemnification claim for personal income taxes is precluded
by the terms of the Merger Agreement. In the Opinion, the
Court found that the Merger Agreement sets forth the types of
"Taxes" that fall within Viacom's
indemnification obligation, and personal income taxes are not
Court finds that it did not overlook legal precedent or
misapprehend the law or facts in the Opinion. As Viacom
notes, Mr. Winshall raises a new argument about the common
law accrual rule that he did not present, but could have
presented, in his initial briefing before the Court. In
addition, the Court discussed and addressed the
Certainteed case in depth in the Opinion.
Accordingly, the Court holds that there is no basis for
the Opinion, the Court cited LaPoint v. Amerisource
Bergen Corp. for the proposition that a claim for
indemnification for attorneys' fees first accrues only
after a court issues a final determination that the plaintiff
is entitled to indemnification and the defendant has failed
to indemnify the plaintiff. As in LaPoint, the Court
held that Mr. Winshall's claim for indemnification for
attorney's fees was not barred by the statute of
limitations. This was because Mr. Winshall's
attorney's fees claim became ripe after the Delaware
Supreme Court issued its final determination in 2013 that Mr.
Winshall was entitled to indemnification and Viacom failed to
indemnify Mr. Winshall. But, as noted above, the Court found
that Mr. Winshall's indemnification claim for personal
income taxes was governed by Certainteed, not
Winshall claims that the holding in LaPoint v.
AmerisourceBergen Corp.should not be limited to
indemnification claims for attorneys' fees and costs. Mr.
Winshall is presumably arguing that the Court should apply
LaPoint to Mr. Winshall's claim for
indemnification for personal income taxes and find that this
claim is not barred by the statute of limitations. In
response, Viacom contends that this argument is irrelevant
because claims for personal income taxes are not claims for
common law indemnification. In addition, Viacom asserts that
Mr. Winshall is rehashing arguments that the Court has
already decided. So, Viacom argues Mr. Winshall's
argument is not appropriate for a motion for reargument.
Court again finds that it did not overlook legal precedent or
misapprehended the law or facts in the Opinion. In fact, the
Court decided in the Opinion that the LaPoint case
does not apply to Mr. Winshall's claim for