-1-

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

TIBCO SOFTWARE, INC.,

Plaintiff,

v.

NTHRIVE REVENUE SYSTEMS,

LLC,

Defendant.

)

)

) C.A. No. N18C-08-072 MAA

)

)

)

)

)

)

)

ORDER DENYING PLAINTIFF’S REQUEST

FOR LEAVE TO FILE A MOTION FOR SUMMARY JUDGMENT

1. On November 21, 2019, the Court issued a Memorandum Opinion 

denying defendant nThrive Revenue Systems (“nThrive”), LLC’s Motion for 

Summary Judgment. Dkt. 53. nThrive subsequently moved for reconsideration of 

the Court’s Memorandum Opinion, which this Court denied on January 6, 2020. 

Dkt. 59.

2. The Court issued a trial scheduling order on January 17, 2020 after 

discussion with counsel regarding trial and pre-trial matters. Dkt. 60. During this 

conference, the Court indicated that it was not likely to permit another round of 

dispositive briefing prior to trial, but that it would be willing to permit the parties to 

file a letter to the Court no later than September 10, 2020 requesting to file a motion 

for summary judgement. Id. The letter was required to “include the undisputed facts 
-2-

and legal bases for such motion.” Id. Any letter in opposition was required to “[s]et 

forth the factual disputes (with record citations) and legal bases for opposing such 

motion.” Id. The September 10 deadline was moved to September 21, 2020 in an 

amended scheduling order. Dkt. 81.

3. Per its September 21, 2020 letter to the Court, Dkt. 83, plaintiff TIBCO 

Software, Inc. (“TIBCO”) now seeks leave to move for summary judgment.

4. Under Superior Court Rule 56, summary judgment “shall be rendered 

forthwith” if “there is no genuine issue as to any material fact and ... the moving 

party is entitled to judgment as a matter of law.” Super. Ct. Civ. R. 56(c). The 

moving party bears the initial burden of demonstrating that, even with the evidence 

construed in the light most favorable to the non-moving party, there are no issues 

genuine issues of material fact. Brown v. Ocean Drilling & Expl. Co., 403 A.2d

1114, 1115 (Del. 1979). If the moving party meets this burden, then, to avoid 

summary judgment, the non-moving party must adduce “some evidence showing a 

dispute of material fact.” Szczerba v. American Cigarette Outlet, Inc., 2016 WL 

4703513 (Del. Super. Sept. 2, 2016) (citing Phillips v. Del. Power & Light Co., 216 

A.2d 281, 285 (Del. 1966)); accord Brzoska v. Olsen, 668 A.2d 1355, 1364 (Del. 

1995). 

5. When a party attempts to resolve issues involving substantial and 

material factual disputes, “summary judgment proceedings are apt to waste, rather 
-3-

than conserve, the resources of the parties and the court.” Orloff v. Shulman, 2007 

WL 1862742, at *1 (Del. Ch. June 20, 2007). The Court finds that any additional 

summary judgment briefing in this matter would be a waste of the resources of the 

parties and the Court. In the Court’s Memorandum Opinion denying nThrive’s

motion for summary judgment, it found that “genuine issues of material fact exist 

on whether nThrive had the authority to terminate [the MedAssets Order Form]” as 

well as “the meaning of the termination provisions [in the MedAssets Order Form].”

Dkt. 53, at 1; see also id., at 12-14. Though TIBCO tries to refashion its previous 

arguments from its opposition to nThrive’s motion for summary judgment, an 

additional summary judgment ruling from the Court would not resolve the above 

factual disputes, nor others that were previously addressed by the Court in its 

November 21, 2019 opinion. See id.

6. More generally, in its response to TIBCO’s request for leave to file a 

motion for summary judgment, nThrive points out that “TIBCO’s request fails to 

identify any new facts or evidence that calls into question this Court’s previous 

rulings.” Dkt. 84, at 2. The Court agrees. 

7. TIBCO’s request to file a motion for summary judgment is DENIED.

IT IS SO ORDERED.

Dated: October 22, 2020