Opinion
C.A. No. 96C-04-291-JEB
March 7, 2000
Richard L. Horwitz, Esq. Peter L. Tracy, Esq. Hercules Plaza P.O. Box 951 Wilmington, DE 19899
Gary W. Aber, Esq. First Federal Plaza, Suite 600 702 King Street P.O. Box 1675 Wilmington, DE 19899
Dear Counsel:
Envirodyne has moved for re-argument on this Court's decision partially granting summary judgment in favor of DuPont. In support of the motion Envirodyne has submitted excerpts from a deposition taken after DuPont's motion had been submitted to the Court on the briefs but before the Court's decision. In it's decision this Court found that the contract between the parties was unambiguous thus requiring the Court to grant DuPont's motion. The depositions furnish no basis for reconsideration since they relate to negotiations between the parties, an issue rendered irrelevant by the Court's finding of unambiguity. In all other respect the motion for re-argument raises no issues not originally considered by the Court. It is therefore Denied.
Dupont has moved for entry of final judgment pursuant to Rule 54. Since Envirodyne counterclaimed which is in the nature of a set off remains open, this motion will also be Denied.
Finally Envirodyne has moved for leave to amend it's answer to add a second affirmative defense. In reality the pleading denominated affirmative defense appears more to be an amendment to Envirodyne's counterclaim. Envirodyne's motion to add an affirmative defense will be denied; however, Envirodyne may amend its counterclaim within 20 days of the date of this order.
IT IS SO ORDERED .