COURT OF CHANCERY

OF THE

STATE OF DELAWARE

TAMIKA R. MONTGOMERY-REEVES

VICE CHANCELLOR

Leonard L. Williams Justice Center

500 N. King Street, Suite 11400

Wilmington, Delaware 19801-3734

Date Submitted: October 14, 2016

Date Decided: November 18, 2016

Thad J. Bracegirdle, Esquire

Andrea S. Brooks, Esquire

Wilks, Lukoff & Bracegirdle LLC

1300 N. Grant Avenue, Suite 100

Wilmington, DE 19806

Jeffrey L. Moyer, Esquire

Travis S. Hunter, Esquire

Arun J. Mohan, Esquire

Richards Layton & Finger, P.A.

One Rodney Square

920 N. King Street

Wilmington, DE 19801

RE: inTEAM Associates, LLC v. Heartland Payment Systems, Inc.

Civil Action No. 11523-VCMR

Dear Counsel:

This Letter Opinion addresses both parties‟ motions for reargument. For the 

reasons stated herein, both motions are denied.

I. BACKGROUND1

On September 30, 2016, this Court issued its Memorandum Opinion (the 

“Opinion”)2enforcing plaintiff inTEAM‟s (“Plaintiff”) and defendant Heartland‟s

(“Defendant”) non-competition agreement, as well as enforcing counterclaim 

 

1

Terms not otherwise defined have the same meaning as in the Opinion.

2

inTEAM Associates, LLC v. Heartland Payment Systems, Inc., 2016 WL 5660282 

(Del. Ch. Sept. 30, 2016). 
inTEAM v. Heartland 

C.A. No. 11523-VCMR

November 18, 2016 

Page 2 of 7

plaintiff Heartland‟s and counterclaim defendant Goodman‟s non-solicitation 

agreement. On October 7, 2016, Plaintiff filed its motion for reargument 

(“Plaintiff‟s Motion”). On October 10, 2016, Defendant filed its motion for 

reargument (“Defendant‟s Motion”). On October 14, 2016, both Plaintiff and 

Defendant filed their oppositions to the motions. 

II. ANALYSIS

In order for the Court to grant a motion for reargument, the moving party 

must establish either that the court has overlooked a controlling decision or 

principle of law, or that the court has misapprehended the facts or the law.3 In 

order for the movant to succeed in reargument, the misapprehension of fact or law 

must be material and affect the outcome of the case.

4

 Additionally, “[r]eargument 

under Court of Chancery Rule 59(f) is only available to re-examine the existing 

record; therefore, new evidence generally will not be considered on a Rule 59(f) 

motion.” 5The motion must be denied if a party is merely restating its prior 

 

3

See, e.g., Medek v. Medek, 2009 WL 2225994, at *1 (Del. Ch. July 27, 2009); 

Reserves Dev. LLC v. Severn Sav. Bank, FSB, 2007 WL 4644708, at *1 (Del. Ch. 

Dec. 31, 2007); Nevins v. Bryan, 2006 WL 205064, at *2 (Del. Ch. Jan. 20, 2006).

4

See, e.g., Aizupitis v. Atkins, 2010 WL 318264, at *1 (Del. Ch. Jan. 27, 2010); 

Medek, 2009 WL 2225994, at *1; Serv. Corp. of Westover Hills v. Guzzetta, 2008 

WL 5459249, at *1 (Del. Ch. Dec. 22, 2008).

5

Reserves Dev. LLC, 2007 WL 4644708, at *1; Nevins, 2006 WL 205064, at *3.
inTEAM v. Heartland 

C.A. No. 11523-VCMR

November 18, 2016 

Page 3 of 7

arguments.6

A. Plaintiff’s Motion For Reargument

Plaintiff argues that the Court should reconsider its decision not to shift 

inTEAM‟s fees to Heartland. In the Opinion, the Court held that, although feeshifting is permitted under Section 6.5 of the Co-Marketing Agreement, Section 

11.2 limits the liability of either party to the total amount of fees paid by the other 

party under the Co-Marketing Agreement.7 The exception, under Section 11.3, 

states that the limitation does not apply if the damages are caused by the “willful 

misconduct” of the other party.8 inTEAM admitted it had not paid any fees under 

the agreement, and the Court found that inTEAM failed to prove willful 

misconduct on the part of Heartland.

In its motion, inTEAM states it “argued consistently that Section 11.2 of the 

CMA does not limit [Heartland]‟s liability because [Heartland]‟s breaches of the 

CMA resulted from willful misconduct.”9 First, inTEAM presented this argument 

 

6 Guzzetta, 2008 WL 5459249, at *1; Reserves Dev. LLC, 2007 WL 4644708, at *1; 

Nevins, 2006 WL 205064, at *3.

7

inTEAM, 2016 WL 5660282, at *27. 

8 Co-Marketing Agreement § 11.3.

9

Pl.‟s Mot. for Reargument 4.
inTEAM v. Heartland 

C.A. No. 11523-VCMR

November 18, 2016 

Page 4 of 7

in support of its claim for damages, not fee-shifting.

10 In that argument, inTEAM 

stated that “the record proves that [Heartland] intentionally and maliciously 

refused to honor its obligations.” 11 inTEAM pointed to no specific facts or 

evidence in the record to support its conclusory statement. Second, inTEAM 

identifies no fact or law that the Court misapprehended. Instead, inTEAM points 

to evidence of the partnership between Heartland and Colyar as proof of 

Heartland‟s willful misconduct, as well as an e-mail discussing a product, 

Nutrikids, that is not subject to the Co-Marketing Agreement and, therefore, not 

relevant to the issue of damages for breach of the Co-Marketing Agreement. The 

Court considered all evidence presented at trial and determined that inTEAM did 

not meet its burden of proving willful misconduct in Heartland‟s breach of the CoMarketing Agreement. As inTEAM‟s motion only discusses evidence the Court 

already examined and found did not show willful misconduct, inTEAM‟s motion 

for reargument is denied.

B. Defendant’s Motion For Reargument

Heartland‟s motion presents two grounds for reargument: (1) the Court 

incorrectly calculated the time period of the injunction against Goodman by not 

 

10 Pl.‟s Opening Post-Trial Br. 69-71.

11 Id.at 69; see also Pl.‟s Opening Pre-Trial Br. 46-47.
inTEAM v. Heartland 

C.A. No. 11523-VCMR

November 18, 2016 

Page 5 of 7

incorporating Section 11(f) of the Consulting Agreement; and (2) the Court 

incorrectly calculated the length of the injunction against Heartland by beginning 

the calculation on the date a Colyar executive contacted Heartland. 

In regards to the injunction against Goodman, Heartland points the Court to 

a tolling provision in the Consulting Agreement, which states the time periods 

discussed in the non-solicitation provision “shall not include any period(s) of 

violation or period(s) of time required for litigation to enforce the covenants set 

forth herein.”12 Heartland did not mention this provision or make this argument at 

any time prior to the motion for reargument.13 A party may not present a new 

argument for the first time in a motion for reargument.14 Thus, the argument is 

waived, and the motion for reargument is denied. 

In regards to the injunction against Heartland, Heartland argues that one email from a Colyar executive should not trigger the beginning of Heartland‟s 

breach of the Co-Marketing Agreement based on the Court‟s analysis of 

 

12 JX-22 § 11(f).

13 See Def.‟s Pre-Trial Opening Br. 52-53; Def.‟s Post-Trial Opening Br. 49-51.

14 Oliver v. Boston Univ., 2006 WL 4782232, at *1 (Del. Ch. Dec. 8, 2006) (“„[N]ew 

arguments that have not previously been raised cannot be considered for 

reargument.‟” (quoting Lane v. Cancer Treatment Ctrs. of Am., Inc., 2000 WL 

364208, at *1 (Del. Ch. Mar. 16, 2000))); see also Sunrise Ventures, LLC v. 

Rehoboth Canal Ventures, LLC, 2010 WL 975581, at *1 (Del. Ch. Mar. 4, 2010).
inTEAM v. Heartland 

C.A. No. 11523-VCMR

November 18, 2016 

Page 6 of 7

inTEAM‟s alleged breach of the Co-Marketing Agreement. Specifically, the Court 

held that one e-mail stating inTEAM was “looking at adding a POS feature” to its

software was not enough to prove by a preponderance of the evidence that 

inTEAM had begun a “running start” on the point-of-sale software.

15

 Heartland 

argues the Court nevertheless used one e-mail to find inTEAM met its burden to 

prove a breach on Heartland‟s side. In determining whether Heartland breached

the Co-Marketing Agreement, however, the Court did not rely on one e-mail alone;

rather there was systemic behavior that led the Court to its conclusion.

16 The email served as an element, among others, to inform the Court of when this breach

began, not whether it occurred.17 Heartland‟s argument does not point to any 

misapprehension of law or facts. The Court reviewed the entire trial record and 

used its “broad flexibility and discretion” in determining the length of the 

injunction.18 Therefore, Heartland‟s motion for reargument is denied.

 

15 inTEAM, 2016 WL 5660282, at *25. 

16 Id. at *17-18.

17 Id. at *17-18, *27.

18 Id. at *26.
inTEAM v. Heartland 

C.A. No. 11523-VCMR

November 18, 2016 

Page 7 of 7

III. CONCLUSION

For the aforementioned reasons, inTEAM‟s motion for reargument is 

DENIED, and Heartland‟s motion for reargument is DENIED. 

IT IS SO ORDERED.

Sincerely,

/s/Tamika Montgomery-Reeves

Vice Chancellor

TMR/jp