Doc 400.

INTRODUCTION

e.Digital Corp. ("e.Digital") did not dispute that digEcor, Inc. ("digEcor") paid e.Digital $80,000 for Li-Ion batteries that digEcor never received. In its Memorandum Decision issued March 13, 2009, the Court granted partial summary judgment holding that digEcor is entitled to recover the purchase price amount that it paid for these batteries that were never delivered. At trial digEcor presented uncontested evidence that the purchase price it paid for these batteries was $80,000, and that it never received delivery of the batteries. In the pretrial order, at closing argument, and in its proposed findings and conclusions, digEcor requested that the Court enter judgment awarding a return of this $80,000.

However, neither the Findings of Fact and Conclusions of Law issued on September 10, 2009 (Dkt. 397) ("Findings and Conclusions") nor the Judgment issued on September 14, 2009 (Dkt. 398) (the "Judgment") address this issue. Therefore, pursuant to Rules 52(b) and 59(e) of the Federal Rules of Civil Procedure, digEcor hereby moves this Court (1) to alter and amend the Findings and Conclusions to include a finding that digEcor paid e.Digital $80,000 for batteries it never received and is entitled to a return of that purchase price and (2) to alter and amend the Judgment to include an award to digEcor of $80,000.

FACTS

ARGUMENT

Id. Likewise, Rule 59(e) permits a party to move and the Court to alter or amend the judgment.

A motion under Rule 59(e) is particularly appropriate "if the [C]ourt in the original judgment has failed to give relief on a certain claim on which it has found that the party is entitled to relief." 11 Wright & Miller,

Federal Practice & Proc., Civil § 2810.1; see also Scott v. City of Topeka Police & Fire Civ. Serv. Com’n, 739 F.Supp. 1434, 1437 (D. Kan. 1990) ("A motion to alter or amend judgment [under Rule 59(e)] is particularly appropriate to obtain additional relief to which a party has been found to be entitled.") (citing Wright & Miller). Further, altering or amending a judgment is proper where there is a "need to correct clear error or prevent manifest injustice." Servants of Paracles v. Does , 204 F.3d 1005, 1012 (10th Cir. 2000).

7. However, both the Findings and Conclusions and the Judgment issued by the Court are silent as to whether digEcor is entitled to a judgment for the $80,000 it paid for batteries. (Dkt. 372). digEcor submitted evidence at trial that it paid $80,000 for the batteries (Trans. 815:4-7; 1058:20-22), and included proposed findings and conclusions that it did not receive any batteries. Proposed Findings & Conclusions, ¶ 358 (Dkt. 393). Further, the amendment digEcor requests is not inconsistent with the Court’s rulings at trial. The Court’s holdings that digEcor’s breaches excused, or rendered impracticable, any earlier delivery of the 1,250 digEplayers, do not affect the prior grant of partial summary judgment and do not relieve e.Digital from its obligation to refund the $80,000 that digEcor paid for batteries that were never delivered.

CONCLUSION