Defendant e.Digital Corporation submits this Memorandum in Opposition to digEcor’s Motion to Alter or Amend Findings and Conclusions and Judgment. e.Digital is largely in agreement with the contentions set forth by digEcor in its motion. In fact, after the Judgment was issued by the Clerk of Court, counsel for e.Digital contacted digEcor’s counsel to discuss how best to resolve the question of the outstanding $80,000. e.Digital’s counsel indicated that e.Digital would consider a stipulated motion requesting inclusion of the $80,000 payment in an amended judgment. digEcor’s counsel agreed to contact e.Digital’s counsel about the stipulation, but never did so. Instead, digEcor opted to forego a stipulation and filed its motion unilaterally. Regardless, e.Digital stands by the position it has long taken in this case: that it received payment for the batteries, but ultimately could not deliver the batteries because digEcor refused to accept them.

If the Court refused to award the $80,000 to digEcor based on its own analysis, (i.e., due to digEcor’s refusal to accept the batteries) e.Digital accepts the Court’s decision and opposes digEcor’s motion. However, if the omission of the award for the batteries from the judgment was inadvertent, e.Digital willingly agrees that a modification may be made to the judgment, provided that such modification does not introduce any ambiguity regarding the party who prevailed in the action. Given that e.Digital prevailed on all of the disputed issues at trial and on the vast bulk of claims in the case, the judgment should make clear that it is entered in favor of e.Digital, and that e.Digital remains the prevailing party. See Roberts v. Madigan, 921 F.2d 1047, 1058 (10th Cir. 1990) (upholding award of costs to defendant who prevailed on “vast majority of issues and on the issues truly contested at trial,” and basing holding on “broad discretion” of the district court to determine prevailing party). e.Digital also requests that these clarifications be made to the Court’s Findings of Fact and Conclusions of Law as well, if that document is altered to reflect the award of the purchase price of the batteries. In an effort to assist the Court in amending the judgment, e.Digital submits herewith a proposed form of Amended Judgment, attached as Exhibit A.