SUPERIOR COURT
OF THE

STATE OF DELAWARE

MEGHAN A. ADAMS LEONARD L. WILLIAMS JUSTICE CENTER
JUDGE 500 NORTH KING STREET, SUITE 10400
WILMINGTON, DELAWARE 19801

(302) 255-0634

January 6, 2020

Josiah R. Wolcott, Esq. Chad S.C. Stover, Esq.
Connolly Gallagher Barnes & Thornburg LLP
1000 West St., Suite 1400 1000 N. West St., Suite 1500
Wilmington, DE 19801 Wilmington, DE 19801

RE: TIBCO Software Inc. v. NThrive Revenue Systems, LLC
C.A. No.: N18C-08-072 MAA

Dear Counsel:

The Court has reviewed Defendant nThrive Revenue Systems, LLC’s
(“nThrive”) Motion for Reconsideration and Plaintiff TIBCO Software, Inc.’s
(“TIBCO”) Opposition thereto. For the reasons stated herein, the Motion for
Reconsideration is DENIED.

On November 21, 2019, the Court issued its decision denying nThrive’s
Motion for Summary Judgment (the “Opinion”). As discussed in greater detail in
the Opinion, prior to issuing its decision, the Court reviewed two rounds of summary

judgment briefing and heard oral argument.

On December 2, 2019, nThrive filed its Motion for Reconsideration

pursuant to Superior Court Civil Rule 59(e). nThrive’s sole argument in its Motion
for Reconsideration is that the Court failed to apply the contract interpretation
principle of contra proferentem.'

The case law regarding Rule 59(e) is well-established. A proper motion for
reargument will establish that the Court “overlooked a controlling precedent or legal
principles, or the Court has misapprehended the law or facts such as would have
changed the outcome of the underlying decision.”* A “motion for reconsideration
or reargument is not an opportunity to rehash arguments already decided by the
Court, or to present new arguments that were not previously raised.”* Pursuant to
Rule 59(e), the “movant must demonstrate newly discovered evidence, a change in
the law, or manifest injustice.’

nThrive’s Motion for Reargument does not meet the standard under Rule
59(e) because it presents a new argument not previously raised (regarding contra
proferentum) which was not raised during the two rounds of summary judgment
briefing. Therefore, nThrive’s Motion can be denied on that basis alone.

nThrive also fails to prove that even if the Court were to determine that it

“overlooked” controlling precedent or legal principles “such as would have changed

 

I Motion at 2.

2 Bd. of Managers of the Del. Criminal Justice Info. Sys. v. Gannet Co., 2003
WL 1579170, at *1 (Del. Super. Jan. 17, 2003).

3 Patterson-Woods & Associates, LLC v. Independence Mall, Inc., 2019 WL
6329069, at *1 (Del. Super. Nov. 26, 2019) (citations omitted).

4 Id. (citation omitted).
the outcome of the underlying decision.”° The “rule of contra proferentum is one of
last resort, such that a court will not apply it if a problem in construction can be

6 Defendant has not

resolved by applying more favored rules of construction.”
attempted to provide any other method of interpretation of the Agreement at issue —
in either its summary judgment briefing or its Motion for Reconsideration — before
jumping to the “last resort” of contra proferentum.

nThrive has not demonstrated that the Court overlooked controlling precedent
or legal principles, or misapprehended the law or the facts. nThrive has also failed
to demonstrate newly discovered evidence, a change in the law, or manifest injustice.
Rather, nThrive only raises a new argument, which is improper pursuant to Rule
59(e).

NOW THEREFORE, for the foregoing reasons, Defendant nThrive

Revenue Systems, LLC’s Motion for Reconsideration is DENIED.

Neda

J /
Meghan A. Adams, Judge

IT IS SO ORDERED.

cc: Prothonotary

 

: Radius Serv., LLC v. Jack Corrozi Construction, Inc., 2010 WL 703051, at *1

(Del. Super. Feb. 26, 2010) (citation omitted).
6 E.L. du Pont de Nemours and Co., Inc. v. Shell Oil Co., 498 A.2d 1108, 1114

(Del. 1985) (citations omitted).
