BMI V. Minicom: Materials for the Advocates

98 Pages·1997·39.53 MB·English

by  Anthony J. Bocchino

BUSINESS MACHINES, INC. V. MINICOM, INC.
U CCIC ommercial
Case File
BlJSINESS J\tiACHINES, INCORPORATED
v ..
MINICOM, INCORPORATED
UCC/Commercial
Seventh Edition
i\nthony J .. Bocchino
Jack E. ·Feinberg Professor of Litigation
Temple University Beasley School of Law
Donald H .. Beskind
t\ttorney at La\v
Twiggs, Beskind, Strickland & Rabenau, P .A ..
Raleigh, North Carolina
NATIONAL INSTITlJTE FOR TRIAL ADVOCACY
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by
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Bocchino, Anthony J. and Donald H. Beskind, Business Machines, Incorporated v. Minicom, Incorporated,
7th ed. (NITA, 2002).
ISBN 1-55681-730-4
Table of Contents
Page
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..... 1
SPECIAL INSTRUCTIONS FOR USE AS A FULL TRIAL ......................... 3
PRETRIAL RULINGS AND STIPULATIONS . . . . . . . . . . . ....................... 5
COJVIPLAINl'................ . .............................................. 9
ANSWER AND COUNTERCLAIIVl ............................................ 13
REPI-" Y TO COUNTERCLAilVI ............................................... 17
REQUEST FOR ADMISSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 19
RESPONSE TO REQUEST FOR ADMISSION .................................. 21
DEPOSITIONS
Christopher Kay .......................................................... .
Virginia Young ........................................................... 29
Milstein . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............. .
Michael Lubell . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............. 41
TABLE OF EXHIBITS . . . . . . . . . . . . . . ........................................ .
NITA JURY INSTRUCTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... .
VERDICT FORMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ......................... .
··'V-
INTRODUCTION
This is a contract action between Business Machines, Inc. (BMI), plaintiff, and Minicom, Inc.,
the defendant. B.rvn that it entered a contract to sell 100 of integrated chip platforms
(known as ICP-73s) to Minicom $500,000 plus shipping costs. BMI asse1ts the parts were
shipped to Minicom by National Parcel Service (NPS) and the shipment was lost while it was in the
possession of It is B MI' s position that once the were put in the hands of NPS, B MI had
complied contractual obligations and the risk of loss had to Minicom. BMI is
claiming that Minicom, failing to pay for the parts, breached the contract and is seeking damages
in the amount $500,000, plus and costs.
Minicom defends by that the contract included a term requiring BMI to insure the
shipment lCP- Minicom SU!!l:!ests that the term was upon in one or more the
foUowing ways:
1. Michael LubeH and Virginia as agents Minicom and BMI, respectively,
entered into a verbal contract that required BMJ to the goods insured for full
.,...,. .
Michael Lubell and Virginia Young had a con venmtion in which Lube Ut old Young
that he to buy the goods and have them shipped fully Ms.
told him to conflrm this request in an order by fax or , which Both of
these acts were within the scope of her agency. Lubell sent an order by fax
followed by a letter that incorporated the conversation.
3. Michael Lubell sent an by followed by a letter that made to the
prior course of dealing between the parties (a prior had been sent insured)
and asked that the new transaction handled the same way.
Minicom asserts that BMI's failure to insure the shipment oflCPs breached the contract and forced
Mini com to purchase cover goods at a cost of $50,000 over the contract price. Mini com also
....w ._..._,_,J that BMI' s failure to deliver a contract would have
a profit of $100,000. Mini com has arnount of S 150.000.
B!VH replied to s counterclaim by alleging Minicom talled to
BMI also denied Virginia Young was its in dealing with and Minicon1 for purposes of
contracting it on behalf BMI.
Pretrial discovery complerecL applicable taw is contained the Pretrial Rulings at page
5 and the Proposed Jury fnstructions at oa2:c J 41.
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BMI v. Minicom
All years these are stated the following
YR-0 indicates actual in which the case is being tried present year);
1 indicates next preceding year (please use the actual year);
(please use actual year); etc.
When referring to sure that you and your use the year, 2003,
instead the designator.
All roles this case file be played by a woman or a man. The facts should
be to be consistent with witness if someone is pregnant).
BMI v. Minicom
SPECIAL INSTRUCTIONS FOR USE AS A FULL TRIAL
When this case file is used as the basis for a full trial, the following witnesses may be called by the
parties:
Plaintiff: Christopher Kay
Virginia Young
Defendant: Elliot Milstein
Michael Lubell
A party need not call all of the witnesses listed as its witnesses. Any or all of the witnesses can be
called by either party. However, if a witness is to be called by a party other than the one for whom
he or she is listed above, the party for whom the witness is listed will provide and prepare the
witness.
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BMI v. Minicom
PRETRIAL RULINGS AND STIPULATIONS
Assume that the calendar for September, YR-2 through June, YR-1, on page 7 is correct. It will be
judicially noticed by the trial judge upon request.
In a pretrial ruling, the court ruled that parol evidence will be permitted concerning the contract (e.g.,
the conversation between Michael Lubell and Virginia Young is admissible to prove the terms and
conditions of any contract between the parties). These rulings are not subject to an interlocutory
appeal.
The parties have agreed to the following stipulations:
1. All of the documents in the case file are authentic. They are what they purport to
be.
2. BMI and Minicom have had one previous dealing involving the sale of ICP-73s.
On that occasion, BMI insured the shipment at Minic om's request, and Minicom
paid for the shipment.
3. Chris Kay is an employee and agent ofBMI.
4. Elliot Milstein and Michael Lubell are employees and agents of Minicom.
5. BMI did not insure the shipment of ICP-73s that is the subject of this litigation.
6. NPS lost the shipment.
7. BMI has demanded payment for the shipment but has not been paid.
8. All parties were properly served with valid process, and are properly before the court.
9. All pleadings and papers were properly served.
10. Jurisdiction and venue are proper.
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BMI v. Minicom
YR-2
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BMI v. Minicom