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

Case 1:03-cv-02669-MSK-PAC

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Case No. 03-cv-2669-MSK-PAC LEPRINO FOODS COMPANY, Plaintiff, v. BIG-D CONSTRUCTION CORP. - CALIFORNIA, a Utah corporation; BIG-D CONSTRUCTION CORP., a Utah corporation; BIG-D CORPORATION, a Utah corporation; BIG-D CAPITAL CORP., a Wyoming corporation; and Does 1-100, inclusive, Defendants/Counterclaimants, BIG-D CONSTRUCTION CORP. - CALIFORNIA, a Utah corporation; BIG-D CONSTRUCTION CORP., a Utah corporation; and Does 1-100, inclusive, Third Party Plaintiffs, v. MARELICH MECHANICAL CO., INC. dba UNIVERSITY MARELICH MECHANICAL, a California corporation, Third Party Defendant. MARELICH MECHANICAL CO., INC. dba UNIVERSITY MARELICH MECHANICAL, a California corporation, Third Party Plaintiff/Counterclaimant, v. BIG-D CONSTRUCTION CORP. - CALIFORNIA, a Utah corporation; FEDERAL INSURANCE COMPANY, an Indiana corporation; and Roes 20 through 80, inclusive, Counterdefendant/Third Party Defendants.

Case 1:03-cv-02669-MSK-PAC

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PLAINTIFF' REPLY TO "DEFENDANT BIG-D CONSTRUCTION CORPS CALIFORNIA, BIG-D CONSTRUCTION, BIG-D CORP., AND BIG-D CAPITAL CORP.' OPPOSITION TO LEPRINO FOOD (sic) COMPANY' MOTION IN LIMINE S S NO. 7 TO PRECLUDE EVIDENCE RELATED TO BIG-D' GENERAL CONDITIONS S CLAIM" (DOCUMENT 277) Plaintiff Leprino Foods Company ("LFC") states as follows for its reply in support of its Motion in Limine No. 7 to Preclude Evidence Related to Big-D' General Conditions Claim s ("Motion"): I Introduction Big-D concedes that LFC was correct when it anticipated that Big-D intends to present evidence of a claim for additional and extended general conditions. Each argument Big-D presents in its Opposition to LFC' Motion in Limine No. 7 ("Response") to allow evidence of general conditions s damages fails, as explained below. II Argument A. LFC' Motion is not premature or duplicative. s Big-D argues that LFC' Motion is premature and duplicative because the issue of Big-D' s s general conditions damages claim has been addressed in the briefs submitted on LFC' pending s Motion for Summary Adjudication. The overlap in issues between the summary judgment motion and this Motion, however, does not render either premature or duplicative. The Court may dispose of Big-D' general conditions damages claim pursuant to this Motion, the Motion for Summary s Adjudication, or both.

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B.

The Contract imposes a guaranteed maximum price on Big-D' general conditions. s Contrary to the express terms of the Contract, Big-D contends that the Contract does not

impose a 24-month limit on its general conditions costs. Big-D' interpretation is incorrect, as LFC s has explained in its Reply in Support of Motion for Summary Adjudication ("Summary Judgment Reply") (Docket No. 215), at 10-11, which LFC incorporates herein by reference. C. Big-D failed to comply with the written notice requirement for its general conditions claim. Big-D asserts that it complied with the contractual requirement for written notice for its general conditions claim. Response, at 6. As LFC explained in its Summary Judgment Reply, at 12, the communications upon which Big-D now relies for its "written notice" of the claim were deficient for various reasons. D. LFC did not waive the notice requirement for Big-D' general conditions claim. s Big-D argues that LFC waived the contractual 7-day notice requirement for additional general conditions claims by issuing internal communications within LFC regarding LFC' intent to evaluate s certain issues later for its own purposes. Response, at 8. However, as LFC explained in its Summary Judgment Reply, at 13, the LFC actions relied upon by Big-D do not amount to an express intent to waive Big-D contractual obligations. E. PCO 1390 is not relevant and should be precluded. Contrary to Big-D' argument, PCO 1390 is not relevant to anything but the extended general s conditions claim is purports to substantiate. If Big-D is allowed to present PCO 1390 to the jury for any other reason, after the Court has precluded Big-D' general conditions claim, it will only confuse s the jury.

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III Conclusion For the reasons stated herein and in LFC' opening Motion, Big-D' contractually precluded s s general conditions (PCO 1390) claims should be precluded or stricken in limine because Big-D cannot satisfy its burden of establishing that its claims are sanctioned under the Contract and because allowing Big-D to present to the jury evidence of damages that are contractually precluded would only confuse the jury with irrelevant evidence in this complex case. Respectfully submitted this 30th day of March 2006. LEPRINO FOODS COMPANY

By:

/s/ Michael G. Bohn Michael G. Bohn Bret M. Heidemann Campbell Bohn Killin Brittan & Ray, LLC 270 St. Paul Street, Suite 200 Denver, Colorado 80206 Telephone: (303) 322-3400 Facsimile: (303) 322-5800 [email protected] [email protected] Patrick T. Markham Jacobson & Markham 8880 Cal Center Drive, #100 Sacramento, California 95826 Telephone: (916) 854-5969 Facsimile: (916) 854-5965 [email protected]

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CERTIFICATE OF SERVICE I hereby certify that on the 30th day of March 2006, I electronically filed the foregoing PLAINTIFF' REPLY TO "DEFENDANT BIG-D CONSTRUCTION CORP-CALIFORNIA, S BIG-D CONSTRUCTION, BIG-D CORP., AND BIG-D CAPITAL CORP.' OPPOSITION S TO LEPRINO FOOD (sic) COMPANY' MOTION IN LIMINE NO. 7 TO PRECLUDE S EVIDENCE RELATED TO BIG-D' GENERAL CONDITIONS CLAIM" (DOCUMENT S 277) with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following email addresses: Christopher J. Hersey of [email protected] Francis (Frank) J. Hughes of [email protected] Patrick Quinn Hustead of [email protected] Peter J. Ippolito of [email protected] Richard Carl Kaufman of [email protected] John David Mereness of [email protected] Daniel James Nevis of [email protected] Laurence R. Phillips of [email protected] C. Michael Montgomery of [email protected] N. Kathleen Strickland of [email protected] /s/ Cori Atteberry Cori Atteberry, Legal Assistant

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