IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
ADCHEMY, INC.,

Plaintiff,

v. C.A. No. N15C-03-096 MMJ CCLD
PLATEAU DATA SERVICES, LLC,
and ZETA lNTERACTIVE, formerly
known as XL MARKETING CORP.,

Defendants.

Submitted: January 9, 2018
Decided: January 18, 2018

On Defendants’ Motion for Reargument on the
Court’s December 19, 2017 Opinion on
Plaintiff Adchemy’s Motion in Lz`mine
to Preclude Evidence Relating to Damages EXcluded by Contract
DENIED

ORDER

JOHNSTON, J.

By 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 specifically excluded.”

Defendants have moved for reargument Defendants contend that the Court
committed two clear errors of law, resulting in manifest injustice against
Defendant Zeta:

o 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.

0 The Court’s failure to allow an ambiguous contract
interpretation issue to be decided by a jury.

Although 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.

Additionally, 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 limitations.

Briefing 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 j udicial
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 f`or trial (and any potential
settlement negotiations). Defendants have failed to set forth any prejudice aside
from vague contentions that they needed full briefing.

Defendants 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.

In its 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.

The purpose of moving for reargument is to seek reconsideration of findings
of fact, conclusions of law, or judgment of law.l 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.2 “A motion for reargument should not be used merely to rehash the
arguments already decided by the court.”3 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 reargument4

The 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 the facts in a manner affecting the outcome of the

decision.

 

'Hessler, Inc. v. Farrell, 260 A.2d 701, 702 (Del. 1969).
2Ferguson v. Vakili, 2005 WL 628026, at *l (Del. Super.).
3VI/'ilmingz‘on Trust Co. v. Nix, 2002 WL 356371, at *l (Del. Super.).
4Oliver v. Boston University, 2006 WL 4782232, at *1 (Del. Ch.).

3

THEREFORE, 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 is hereby DENIED.

IT IS SO ORDERED.

 
    

ary M. Johnston

