Parties often try to expressly reserve, preserve, and/or avoid waiver of arguments or the right to seek relief, often in a paper filed or served on the deadline to make the argument or seek the relief. It may not always work—but it's not very costly to give it a shot, either.
Last week, in Aqua Connect, Inc. v. TeamViewer US, Inc., C.A. No. 18-01572-MN (D. Del.), Judge Noreika rejected an attempt by a plaintiff who prevailed at trial to avoid having to raise its arguments regarding post-trial interest during post trial briefing.
After plaintiff won a $5.7m verdict in a jury trial earlier this month, the parties filed a proposed form of judgment and a status report regarding post-trial motions. In both, plaintiff added statements aimed at preserving its right to later argue post-trial interest.
In the proposed form of judgment, apparently without objection, it added a line stating "[t]his judgment does not include . . . post-judgment interest or costs, which are reserved." And, in the joint status report, plaintiff said "For avoidance of doubt, Aqua Connect reserves post-judgment interest and costs."
It's not clear when plaintiff intended to address post-trial interest if not in the post-trial motions.
Even though plaintiffs' statements were not objected two, Judge Noreika took notice, and specifically rejected the idea that plaintiff could defer briefing on post-trial interest until some indeterminate time after post-trial briefing:
ORAL ORDER re 272 Status Report - Aqua Connect's assertion that it "reserves on post-judgment interest" is unsupported by citation to any law. IT IS HEREBY ORDERED that before Aqua Connect files its post-trial motion, the parties shall meet and confer to determine whether there is any dispute as to (1) the rate of post-judgment interest to be used in this case if the verdict is upheld and (2) when such post-judgment interest begins to accrue. If there are no such disputes as to post-judgment interest, the parties shall stipulate to that. If there are disputes, Aqua Connect shall include its arguments on post-judgment interest in its opening post-trial brief (i.e., with pre-judgment interest). ORDERED by Judge Maryellen Noreika on 8/22/2022. (dlw) (Entered: 08/22/2022)
In other words, the Court ordered the parties to meet-and-confer and either stipulate or brief the issue with post-trial motions.
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