UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
At the October 9, 1996 pretrial conference, the court represented that it would attempt to rule on the now-pending issues by the first of the year so as to permit time for informed ADR efforts. A number of factors, including the raising of a new, non-damages related argument that should have been made long ago; the late filing of the contemplated motion and response; and the parties' unwillingness to rely on their initial submissions, have complicated the court's task. In order to expedite matters for purposes of ADR, the court will address the questions before it with minimal exegesis.
1. Out of left field, Kobelco argues that the so-called "third agreement" was binding on the parties and necessitates an award of summary judgment in its favor on plaintiff's claim under Delaware's Equipment Dealer Contracts Statute (Count I) (hereinafter "the Dealer Statute") and plaintiff's claim for breach of the second agreement (Count II). Kobelco's argument appears to run as follows:
I. The third agreement superseded all previous agreements between the parties (including the second agreement);II. The third agreement was governed by Texas law;III. Under Texas law, agreements intended by parties to be immediately effective are binding and enforceable notwithstanding the fact that some "formality" attendant to the agreement remains "unexecuted" (citing Vick
, 360 S.W.2d 866
, 868 (Tex. Civ. App. 1962) and Hegar
, 274 S.W.2d 752
, 754 (Tex. Civ. App. 1955));IV. By operation of Texas law, the third agreement came into force and effect notwithstanding the unexecuted formality of a Kobelco representative (Mr. Komori);
V. The second agreement was therefore superseded and cannot ground a breach of contract claim; and
VI. Plaintiff's claim under Delaware's Dealer Statute cannot proceed, as applicability of that statute in this case depends necessarily on the viability of the second agreement (which is governed in all relevant respects by Delaware law).
There are two reasons for rejecting this argument out of hand.
First, this is not an in limine argument for the exclusion of evidence; it is a merits-based argument for the dismissal of claims. It is, in other words, an argument that should have been made when Kobelco filed its dispositive motions pertaining to Counts I and II. It therefore is untimely in the extreme. See Judge McAuliffe's February 5, 1996 Endorsed Order (implicitly extending the date for filing dispositive motions to April 15, 1996). And as Kobelco has not even acknowledged this to be so -- let alone petitioned the court to raise the ...