Free Reply to Response to Motion - District Court of Colorado - Colorado

Case 1:04-cv-01099-JLK-DW

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No.: 04-cv-1099-JLK-DLW WOLF CREEK SKI CORP., INC., Plaintiff, v. LEAVELL-McCOMBS JOINT VENTURE, d/b/a THE VILLAGE AT WOLF CREEK, Defendant. DEFENDANT'S REPLY IN SUPPORT OF MOTIONS IN LIMINE TO EXCLUDE EVIDENCE, TESTIMONY OR ARGUMENT STATING OR SUGGESTING: (1) THAT THE JOINT VENTURE'S EFFORTS TO OBTAIN ACCESS TO ITS PROPERTY VIA LOBBYING EFFORTS OR LEGISLATIVE MEANS VIOLATED THE SURP AGREEMENT OR FEDERAL LAW; AND (2) THAT THE LAND EXCHANGE BETWEEN THE JOINT VENTURE AND THE FEDERAL GOVERNMENT WAS TAINTED BY CORRUPTION, ILLEGALITY OR IMPROPER INFLUENCE. Defendant Leavell-McCombs Joint Venture, d/b/a The Village at Wolf Creek hereby replies in support of its Motions in Limine to Exclude Evidence, Testimony or Argument Stating or Suggesting: (1)That the Joint Venture's Efforts to Obtain Access To Its Property Via Lobbying Efforts or Legislative Means Violated the SURP Agreement or Federal Law; and (2)That the Land Exchange Between the Joint Venture and the Federal Government Was Tainted by Corruption, Illegality or Improper Influence as follows:

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I.

DEFENDANT'S MOTION IN LIMINE TO EXCLUDE EVIDENCE, TESTIMONY OR ARGUMENT STATING OR SUGGESTING THAT THE JOINT VENTURE'S EFFORTS TO OBTAIN ACCESS TO ITS PROPERTY VIA LOBBYING EFFORTS OR LEGISLATIVE MEANS VIOLATED THE SURP AGREEMENT OR FEDERAL LAW
Plaintiff Improperly Blurs the Distinction Between Discoverable and Admissible Evidence Throughout its Response, Plaintiff argues that Defendant has, "injected the

A.

evidence and arguments at issue in these motions into this case . . . " and that the parties conducted discovery on these issues and, "the Joint Venture failed to object on the grounds of relevance." Response, p. 4, 8. However, the scope of discovery is naturally intended to be far broader than the limitations of trial evidence, and Fed.R.Civ.P. 26(b)(1) allows discovery of information even if it is not necessarily admissible at trial. Fed.R.Civ.P. 26(b)(1); see also Shoen v. Shoen, 5 F.3d 1289, 1292 (9th Cir. 1993)(holding that discovery is accorded a broad and liberal treatment). Thus, Defendant did not waive any of its evidentiary objections to this evidence, simply by allowing discovery on it. Here, Defendant has provided clear arguments for why the contested evidence is inadmissible pursuant to Fed.R.Evid. 401, 402, 403 and 404, and Defendant's arguments will not be rehashed here. Nonetheless, Plaintiff cannot overcome those arguments simply by referring back to the broad discovery process. In fact, had Defendant objected to discovery on these issues, Plaintiff certainly would have argued that discovery should be allowed, due to its breadth, and due to the likelihood of leading to other admissible evidence.

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B.

Plaintiff's Lobbying Activities are Admissible, While Defendant's Lobbying Activities are Not Plaintiff seeks to apply a "what's good for the goose is good for the gander"

analysis to the admissibility of evidence, however that is not the test. Rather, relevancy is the test. This is why the issue of Plaintiff's lobbying efforts is admissible, while

Defendant's is not. 1. Plaintiff is accused of breaching the Agreement by interfering with Defendant's lawful attempts to obtain an access road. Defendant's breach of contract claim is premised upon the fact that Plaintiff had a specific contractual duty to use its best efforts to obtain approval for an access road to the Village. Defendant has specifically alleged that Plaintiff did not use its best efforts and, in fact, lobbied directly against Defendant. As a result, evidence that Plaintiff actually interfered with Defendant's lawful lobbying actions, is directly relevant to Defendant's claim of breach of contract. 2. Defendant, on the other hand, had no duty to avoid using all lawful means to obtain the access road. Defendant's Motion in Limine carefully sets out in detail how its lobbying efforts were neither unlawful, nor a violation of the SURP Agreement. In response, Plaintiff entirely avoids this issue, thus admitting that Defendant is correct. As a result, Plaintiff should be estopped from trying to taint the jury by unfairly inferring that there was something wrong with Defendant's lobbying efforts.

C.

The Motivation for Plaintiff's Conduct is Irrelevant Plaintiff makes further nonsensical arguments why these lobbying efforts are

relevant. For example, Plaintiff states, "[i]n this case, there can be no doubt that

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evidence of the Joint Venture's lobbying activities are highly probative of Wolf Creek's conduct and reactions, as well as the Joint Venture's compliance with the terms of the SURP Agreement." Response, p. 10. First of all, no extrinsic evidence is necessary to prove Plaintiff's "conduct and reactions"; Plaintiff's actions are what they are. Either Plaintiff breached its duties, or it did not; motivation is not an element of a breach of contract claim and Plaintiff does not refer to any affirmative defenses. Motive, is not itself an ultimate issue. Charles Alan Wright & Kenneth W. Graham, Jr., 22 FED. PRAC. & PROC. EVID. § 5240 (2008 update). "[P]roof of motive must always be directed at some other fact that is an ultimate issue in the case." Id. "[C]ourts must be on guard to prevent the motive label from being used to smuggle forbidden evidence of propensity to the jury." Id.

D.

Plaintiff's Response Brief Proves the Need for An F.R.E. 403 Limitation Fed.R.Evid. 403 prevents the introduction of minimally relevant evidence, with

the high potential for unfair prejudice. Interestingly, Plaintiff's Response Brief does little to explain any necessary relevance for the evidence in question, while at the same time reveals the exact manner in which Plaintiff intends to abuse the potential for undue prejudice of this evidence. Specifically, Plaintiff consistently uses the following

inflammatory terms throughout its Response: "flex its political muscle" (Response, p. 7), "attempted power plays" (Response, p. 7), "display of power" (Response, p. 7), "attempted manipulation of the local USFS officials" (Response, p. 7), "what was going on behind closed doors" (Response, p. 8) and "politically explosive process" (Response, p. 8). Of course Plaintiff has the right to advocate for itself with strong and convincing

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language, however it merely proves the key point, that without such theatrics, this evidence has little if any useful relevance to the jury.

II.

DEFENDANT'S MOTION IN LIMINE TO EXCLUDE EVIDENCE, TESTIMONY OR ARGUMENT STATING OR SUGGESTING THAT THE LAND EXCHANGE BETWEEN THE JOINT VENTURE AND THE FEDERAL GOVERNMENT WAS TAINTED BY CORRUPTION, ILLEGALITY OR IMPROPER INFLUENCE Plaintiff Admits That it Intends to Mislead the Jury Regarding the Land Exchange Plaintiff amazingly states, "Wolf Creek intends to rely on such evidence not to

A.

establish whether the land exchange actually was, in fact, proper or improper ­ and neither party has designated experts on the legal issue of illegality ­ but to explain the Pitcher's belief, the relationship between the parties, and bases for the concerns relating to the EIS for which the Joint Venture seeks damages." Response, p. 10-11. In other words, Plaintiff is admitting that although it has no idea whatsoever whether the land exchange was improper, it still wants to somehow try to convince the jury that it was a suspicious transaction. Such an admittedly baseless allegation is a clear violation of Fed.R.Evid. 403 and 602.

B.

Plaintiff Has Provided No Reasonable Explanation for the Relevance of Information Relating to the Land Exchange Plaintiff provides a variety of disjointed and unsupported explanations for its

desire to introduce entirely speculative suspicions regarding the land swap, none of which support its admission. First, Plaintiff states, "evidence related to the propriety of the land exchange is relevant to Wolf Creek's defenses." Response, p. 10. However, Plaintiff does not explain which affirmative defenses it is referring to. In fact, Plaintiff's

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"Statement of Claims and Defenses" in the Pretrial order contains no affirmative defenses. Plaintiff then argues that this information is necessary to show that, "Davey and Kingsbury Pitcher's actions were also driven in part by their understanding of what actually occurred in the land exchange . . . " and to provide "vital context to the Pitcher's reaction to the Joint Venture's conduct." Response. p. 11. First, Plaintiff has already admitted that it does not truly know "what actually occurred in the land exchange." Thus it is entirely improper for Plaintiff to introduce speculations thereof. Second, Plaintiff has not explained how its agents' subjective reactions to certain events either prove or disprove any significant facts in this case. Plaintiff then argues, "[t]his evidence is relevant not only to the Pitcher's understanding of what the SURP Agreement meant, but also as to their perception of the power and influence of Red McCombs and the Joint Venture, and why the Pitchers believed that the Joint Venture's reliance upon Congress would result in a major compromise of their interests under the Agreement." This explanation, quite simply, is incomprehensible. First, the SURP agreement, which was negotiated by a team of

lawyers, has its own intrinsic and ordinary meaning, regardless of a separate and distinct land swap 14 years earlier. Second, if Plaintiff's agents were so suspicious of

Defendants' actions related to the land swap, then clearly they should have included protective language in the SURP Agreement to allay their concerns; they did not, and they should not now be allowed to unfairly taint the jury with baseless and damaging allegations of corruption.

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C.

Plaintiff Admits That its Allegations are Based Upon Speculation Plaintiff's Response contains no citations to documents, depositions or any

exhibits challenging the validity of the land exchange1. Instead, Plaintiff has created its own smoking gun by using vague terms regarding its own suspicions, such as, "to explain the Pitchers' belief . . . and bases for concerns . . .their understanding of what actually occurred . . .their perception of the power and influence of Red McCombs . . .the Pitcher's state of mind . . . . Response. pp. 10-11. Such purely speculative bootstrapping by Plaintiff cannot make this highly prejudicial evidence relevant or admissible.

WHEREFORE, Defendant respectfully requests this Honorable Court to grant Defendants respective Motions in Limine.

Respectfully submitted this 16th day of April 2008.

s/ David W. Krivit David W. Krivit (#25916) MORIARTY LEYENDECKER ERBEN PC 1123 Spruce Street, Suite 200 Boulder, CO 80302 (303) 495-2658 Tel (713) 528-1390 Fax Attorney for Defendant

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Defendant directly challenged Plaintiff on this point in its initial Motion in Limine when it stated, "[r]egardless of the true facts, and even after prolonged discovery, including FOIA requests to the Forest Service, the Ski Corp. has not identified, produced, or disclosed any real evidence in support of these spurious allegations, nor does the Ski Corp. make these allegations formally in any pleadings." Motion in Limine, p. 10. Plaintiff's Response entirely ignored this crucial point. 7

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CERTIFICATE OF SERVICE I hereby certify that on this 16th day of April 2008, I electronically filed and served the foregoing DEFENDANT'S REPLY IN SUPPORT OF MOTIONS IN LIMINE TO EXCLUDE EVIDENCE, TESTIMONY OR ARGUMENT STATING OR SUGGESTING : (1)THAT THE JOINT VENTURE'S EFFORTS TO OBTAIN ACCESS TO ITS PROPERTY VIA LOBBYING EFFORTS OR LEGISLATIVE MEANS VIOLATED THE SURP AGREEMENT OR FEDERAL LAW; AND (2)THAT THE LAND EXCHANGE BETWEEN THE JOINT VENTURE AND THE FEDERAL GOVERNMENT WAS TAINTED BY CORRUPTION, ILLEGALITY OR IMPROPER INFLUENCE to the following: Andrew Ryan Shoemaker Hogan & Hartson, LLP-Boulder 1470 Walnut Street, #200 Boulder, CO 80302 Cynthia A. Mitchell Hogan & Hartson, LLP-Boulder 1470 Walnut Street, #200 Boulder, CO 80302 Denise D. Riley Hogan & Hartson, LLP-Denver 1200 Seventeenth Street, #1500 Denver, CO 80202 Jacqueline S. Cooper Hogan & Hartson, LLP-Denver 1200 Seventeenth Street, #1500 Denver, CO 80202 Kim Arquette Tomey Berg Hill Greenleaf & Ruscitti, LLP 1712 Pearl Street Boulder, CO 80302 Melissa M. Heidman Berg Hill Greenleaf & Ruscitti, LLP 1712 Pearl Street Boulder, CO 80302 Attorney for Plaintiff

Attorney for Plaintiff

Attorney for Plaintiff

Attorney for Plaintiff

Attorney for Defendant

Attorney for Defendant

s/ Christina J. Kim Christina J. Kim, Paralegal MORIARTY LEYENDECKER ERBEN PC

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CM/ECF - U.S. Case 1:04-cv-01099-JLK-DW District Court:cod

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Responses and Replies
1:04-cv-01099-JLK-DW Wolf Creek Ski Corp v. Leavell-McCombs Jt ALLMTN, MAGR

U.S. District Court District of Colorado Notice of Electronic Filing The following transaction was entered by Krivit, David on 4/16/2008 at 3:53 PM MDT and filed on 4/16/2008 Case Name: Wolf Creek Ski Corp v. Leavell-McCombs Jt Case Number: 1:04-cv-1099 Filer: Leavell-McCombs Joint Venture Document Number: 317 Docket Text: BRIEF in Support re [297] MOTION in Limine re Land Exchange filed by Defendant Leavell-McCombs Joint Venture, Counter Claimant Leavell-McCombs Joint Venture. (Krivit, David) 1:04-cv-1099 Notice has been electronically mailed to: George Vernon Berg , Jr Jacqueline S. Cooper Robert D. Erben [email protected], [email protected] [email protected], [email protected], [email protected]

[email protected], [email protected], [email protected] [email protected], [email protected]

Melissa M. Heidman David W. Krivit

[email protected], [email protected], [email protected] [email protected]

Michael Edward McLachlan Cynthia A. Mitchell

[email protected], [email protected], [email protected] [email protected], [email protected], [email protected] [email protected], [email protected], [email protected]

James Robert Moriarty Andrew Ryan Shoemaker Kim Arquette Tomey

[email protected], [email protected]

1:04-cv-1099 Notice has been mailed by the filer to: The following document(s) are associated with this transaction: Document description:Main Document Original filename:n/a Electronic document Stamp: [STAMP dcecfStamp_ID=1071006659 [Date=4/16/2008] [FileNumber=1475288-0 ] [6bc2ae1ab1cf1cf234778540efb0686f801a9457c025de92c5f1e70695c21a8ed47 a21e0cc0c8e91fe96aa5f3221bcb48461e42434f5e1df2ff78ee1b6f2e2dc]]

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