Free Response to Motion - District Court of Colorado - Colorado

Case 1:04-cv-01263-REB-KLM

Document 98

Filed 04/04/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 04-cv- 1263- PSF- MEH

ROBERT M. FRIEDLAND
Plaintiff,

TIC - THE INDUSTRIAL COMPANY and GEOSYNTEC CONSULTANTS , INC. f/k/a GEOSERVICES , INC.
Defendants.

GEOSYNTEC' S RESPONSE TO PLAINTIFF' S MOTION TO SUBSTITUTE NEW EXHIBIT 10 TO BRIEF IN RESPONSE TO GEOSYNTEC' S MOTION FOR SUMMARY JUDGMENT
Defendant GeoSyntec Consultants , Inc. f/k/a GeoServices , Inc. (" GeoSyntec ), through
its undersigned counsel , responds to the " Motion to Substitute New Exhibit 10 to Plaintiffs

Brief in Response to GeoSyntec s Motion for Summary Judgment" filed by Plaintiff Robert M.
Friedland (" Friedland" ) as follows:
On November 18 , 2005 ,

GeoSyntec filed a Motion for Summary Judgment

arguing that it lacked sufficient control over construction or leaching operations at the
Summitville Mine (the " Mine ) to be liable as an " operator"
Mot. for Summ. 1. , Doc. No. 41 filed 11/18/05 at 20- 29.
or "

arranger" under CERCLA.

(See

In support of its motion , among other undisputed facts , GeoSyntec stated that

Friedland represented to state regulators. . . that (the company of which Friedland was
president) controlled the disposal of hazardous waste from, and operation of, the Mine.

,"

" (

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(Mot. for Summ. 1.

at 8

, ~ 12. )

In support of

this statement , GeoSyntec quoted from a letter in

which Friedland stated I have directed management (of SCMCI) to immediately proceed to add
a senior management level compliance officer on site to oversee every aspect of the project and
ensure compliance with all permit terms and applicable regulations.
Id.
citing Ex.

Motion. ) As this letter reflected , Friedland had full control over operations at the Mine

including the power to direct the hiring of an officer to " oversee every aspect of the project" and
ensure environmental compliance at the Mine.

In his Response in Opposition to Defendant GeoSyntec s Motion for Summary
Judgment (the " Response Brief' ), Friedland objected to the statement cited above , and argued
that "

SCMCI relied exclusively on its contractors , including GeoSyntec , to ensure environmental

compliance until September 1986 , when SCMCI first hired an environmental manager/director
of environmental projects. "
(Response

Brief, Doc. No. 50 filed 1/10/06 at 7 , ~ 12. )

As his sole

evidentiary support for this statement , Friedland cited two " Summitville Organization Charts
which were attached to the Response Brief as

Exhibit 1

In its Reply to Plaintiff s Response in Opposition to Motion for Summary
Judgment (the " Reply ), GeoSyntec cited a number of unsupported assertions made by Friedland
in his Response Brief. (See

Reply, Doc. No. 75 filed 2/22/06 , Ex.

Among those

assertions was the statement quoted above , as the Organization Charts said nothing about
SCMCI's reliance on contractors.

(Id.

citing

Response Brief,

Ex. 10 ) In fact ,

the absence of

any reference to GeoSyntec on the charts is compelling evidence supporting

GeoSyntec

position , that it had no place in the chain of command at the Mine and certainly, no control over
construction or mining activities.

).
Case 1:04-cv-01263-REB-KLM Document 98 Filed 04/04/2006 Page 3 of 6

On March 13 ,

2006 , Friedland filed a Notice of Errata and Motion to Substitute

New Exhibit 10 to Plaintiffs Brief in Response to GeoSyntec s Motion for Summary Judgment
(the "

Motion to Substitute

Through the Motion to Substitute , Friedland seeks to withdraw the

Organization Charts as an exhibit and replace them with an Affidavit by W. Jack Clark , who was

hired as SCMCI's environmental manager in September 1986. (Motion to Substitute , Doc.
No. 86 filed 3/13/06 at 2GeoSyntec objects to Friedland'
s withdrawal of

Exhibit 10

to the Response Brief
support

because , although the charts provide no support for Friedland' s position , they

GeoSyntec s position , as they are relevant evidence of GeoSyntec ' s lack of authority at the Mine.

While GeoSyntec filed a Motion to Strike Certain Exhibits to Plaintiff s Response in Opposition
to Motion for Summary Judgment , Doc. No. 76- 1
move to strike

(the "

Motion to Strike ), GeoSyntec did not

Exhibit 10

(See

Ex. 1

to Motion to Strike.

GeoSyntec also opposes Friedland' s attempt to substitute the Affidavit ofW. Jack

Clark for the Organization Charts , as Mr. Clark' s testimony - that he was hired as SCMCI's

Environmental Coordinator in 1986 - is irrelevant to any of the issues raised in the summary
judgment motion. (See

Affidavit ofW. Jack Clark , Proposed Substitute

Exhibit 10

to Plaintiffs

Response in Opposition to Motion for Summary Judgment , attached to Motion to Substitute.
The fact that Mr. Clark was hired at the Mine says

nothing about SCMCI's prior reliance on

contractors , nor anything about GeoSyntec s role in particular. If anything, the Affidavit only

serves to prove GeoSyntec s assertion , that Friedland had the authority to deliver on his promise
to the MLRD and direct the hiring of an environmental compliance officer for SCMCI.

(See

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Letter from Robert M. Friedland to Mined Land Reclamation Board dated 7/23/86 Ex. AMot. for Summ. 1.)

Exhibits to summary judgment motions may be stricken if, even offered in the
proper form , the evidence would not be admissible at trial.
American Commodity Exchange , Inc. 546 F.2d 1361 ,

See Securities Exchange Comm '

1369 (10th Cir. 1976). Because Mr.

Clark' s averments have no relevance to the issues raised in GeoSyntec ' s Motion for Summary

Judgment, or to any fact at issue in this case , GeoSyntec requests that Friedland not be permitted

to substitute the Clark Affidavit for the Summitville Organization Charts previously attached to
the Response Brief as

Exhibit 10.

WHEREFORE , Defendant GeoSyntec Consultants , Inc. respectfully requests that the
Court enter an order denying Plaintiffs

Motion to Substitute New Exhibit 10 to Plaintiffs Brief

in Response to GeoSyntec s Motion for Summary Judgment , and that it grant such other and
further relief as it may deem proper.

Respectfully submitted this 4th day of April , 2006.

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s/

Marian L. Carlson

Marian L. Carlson
Terence M. Ridley Wheeler Trigg Kennedy LLP 1801 California Street , Suite 3600 Denver , CO 80202- 2617 Telephone No. : 303- 244- 1800 Telecopier No. : 303- 244- 1879 Mail: carlson~wtklaw. com
Paul 1. Sanner
Hanson , Bridgett , Marcus , Vlahos & Rudy LLP

333 Market Street , Suite 2100 San Francisco , CA 94105- 2122 Telephone No. : 415- 995- 0517 Telecopier No. : 415- 541- 9366 Mail: psanner~hansonbridgett. com

Attorneys for Defendant
GeoSyntec Consultants , Inc

()
( )

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CERTIFICA TE OF SERVICE
I hereby certify that on April 4 , 2006 , I electronically filed the foregoing Geosyntec Response to Plaintiff s Motion to Substitute New Exhibit 10 to Brief in Response to Geosyntec Motion for Summary Judgment with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following email addresses:
Lauren C. Buehler lbuehler~fognanilaw. com cvega~fognanilaw. com

Steven Matthew Kelso kelso~wtklaw. com hand~wtklaw. com
Richard Kirk Mueller

Marian Lee Carlson
carlson~wtklaw. com carpenter~wtklaw. com
Colin Christopher Deihl
cdeihl~faegre. com j sullivan~faegre. com

rmueller~fognanilaw. com cvega~fognanilaw. com
Terence M. Ridley

Michael Stephen Freeman
mfreeman~faegre. com cdaniels~faegre. com dcopeland~faegre. com

ridley~wtklaw. com norris~wtklaw. com

Kristina I. Mattson
kmattson~fognanilaw. com cvega~fognanilaw. com

and I hereby certify that a copy of the document has been served to the following non- CM/ECF
participant in the manner indicated by the non- participant's name:
Paul 1. Sanner Hanson, Bridgett , Marcus , Vlahos & Rudy, LLP 333 Market Street , #2100 San Francisco , CA 94105- 2122
Mail Hand Delivery Facsimile Overnight Delivery (X) E- Mail
( ) First Class

s/

Marian L. Carlson by Cindy Carpenter

Marian L. Carlson
Wheeler Trigg Kennedy LLP 1801 California Street , Suite 3600 Denver , CO 80202- 2617 Telephone No. : 303- 292- 2525 Mail: carlson~wtklaw. com

Attorney for Defendant GeoSyntec Consultants , Inc.