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

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

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Filed 03/30/2006

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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

Document 321

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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. 5 TO PRECLUDE EVIDENCE OF CLAIMS THAT ARE UNTIMELY UNDER THE TERMS OF THE CONTRACT" (DOCUMENT 291) Plaintiff Leprino Foods Company ("LFC") states as follows for its reply in support of its Motion in Limine No. 5 ("Motion") to preclude evidence of claims that are untimely under the terms of the contract between LFC and Defendant Big-D Construction Corp.-California in the presence of the jury: A. LFC' Motion is not premature or duplicative. s Big-D argues that LFC' Motion is premature and duplicative because the issue of UMM' s s CE claims has been addressed in the briefs submitted on LFC' pending Motion for Summary s 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 UMM' CE s claims pursuant to this Motion, the Motion for Summary Adjudication, or both. B. UMM' CE claims must not be allowed without proper foundation. s LFC has legitimately called into question the contractual propriety of $7,409,428.00 worth of UMM' $8,260,600.00 in CE claims. Big-D purports to present various factual issues regarding s UMM' and Big-D' compliance with the notice requirements for the CE claims, but Big-D has not s s established with admissible evidence that every CE listed on the chart in LFC' Motion satisfied the s various contractual prerequisites for such claims. To be valid and recoverable claims, each CE claim must meet the definition of reimbursable Costs of Work under the Contract and must comply with the Contract' notice requirements under Article 43.3 of the Contract. Because of the significant amount s

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of the CE claims that have been called into reasonable doubt, and because the burden is on UMM and Big-D to establish the contractual propriety of each CE claim asserted, LFC is entitled to an in limine order that no evidence or information concerning any CE claims be presented to the jury until the proponent of the claim has established adequate foundation that the claim meets the requirements of the Contract for types of claims that are recoverable and procedural requirements for such claims, such as proper notice. Big-D' argument that the notice requirements of Article 43.3 do not apply to UMM' CE s s claims because UMM, not Big-D, asserts those claims, overlooks the facts that Big-D is asserting those very claims against LFC, albeit as pass-through claims. 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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Case 1:03-cv-02669-MSK-PAC

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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. 5 TO PRECLUDE S EVIDENCE OF CLAIMS THAT ARE UNTIMELY UNDER THE TERMS OF THE CONTRACT" (DOCUMENT 291) 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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