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.

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PLAINTIFF' REPLY TO "DEFENDANTS 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. 1 TO PRECLUDE REFERENCE TO 9/11" (DOCUMENT 281) Plaintiff Leprino Foods Company ("Leprino" or "Plaintiff"), through its counsel, submits the following as its Reply to "Defendants Big-D Construction Corp-California, Big-D Construction, BigD Corp., And Big-D Capital Corp.' Opposition To Leprino Food Company' Motion In Limine s s No. 1 To Preclude Reference To 9/11" ("Response"): The first issue for the Court to consider is whether the re-bid process was actually the cause of the delay of the Project. Only if the re-bidding process actually caused the delay, should the Court bother to ascertain whether the reason for the re-bidding is relevant to the issue of the delay in the completion of the project. Big-D Construction Corp.-California and the other Big-D entities ("Big-D") and Marelich Mechanical Co., Inc. d/b/a University Marelich Mechanical ("UMM") offer no evidence that the rebidding and/or re-pricing of any AFEs for the Project resulted in any delay whatsoever. Similarly, their contention that Leprino tried to re-price a Project expenditure (referred to as "Authorization for Expenditure" or "AFE") to obtain lower pricing that it anticipated would follow from 9/11' effect on s the national economy, and that this withholding of approval of an AFE somehow resulted in a delay to the Project completion fails for lack of evidence. Despite lengthy attachments to its Response, Big-D fails to offer any evidence that shows the re-bidding delayed the Project at all. The only evidence offered by Big-D that addressed the issue of the delay of the Project, the "September Project Summary," actually shows the delay was attributable entirely to Big-D. (See, Response at p. 5.) Although the September Project Summary mentions the postponement of certain AFE' Big-D s,

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presents no evidence that the AFE postponement was the cause of the delay to the Project. Big-D' s failure to offer any evidence that the re-bidding process delayed the Project requires the granting of Leprino's Motion in Limine No. 1. If Big-D or UMM actually have evidence that the re-pricing really caused delay to the Project, it can be presented without the inflammatory reference to 9/11. The parties simply need to provide evidence of how re-pricing the AFE affected the schedule, if at all. Putting the re-pricing of the AFE in the context of 9/11 does not make it more probable that the re-pricing caused delay to the Project. The events of 9/11 are irrelevant because they do not tend to make the delay effect of re-pricing more probable than not. Even if Big-D and UMM had evidence of a connection between 9/11 and the AFE re-pricing or of any improper motivation of Leprino in re-pricing the AFE, which they do not, Leprino' motivation in re-pricing, other than an obvious interest in saving money, is not relevant to s the ultimate allegation that the re-pricing caused delay. Allowing any reference to 9/11 would result in unfair prejudice to Leprino that would substantially outweigh any probative value the reference might have. Contending or alluding that Leprino demanded re-pricing only to take monetary advantage of a national tragedy is simply untrue and inflammatory and would cause the jury to "lose sight of the essential issue in the case." See Hicks v. Mickelson, 835 F.2d 721, 726 (8th Cir. 1987). Despite Big-D' attempt to downplay the s tragedy of 9/11 and the intense emotion it will no doubt ignite in the jury members, 9/11 remains a horrific, defining moment in the history of this country. (See, Response at p. 6.) The unfair prejudice to Leprino from references to 9/11, along with the unsubstantiated claims of profiteering that would likely be lodged against Leprino, far outweigh any arguable probative value that information may have. As such, references to 9/11 must be prohibited in the trial of this case. 3

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Big-D' attempts at distinguishing the case of United States v. Fulmer, 108 F.3d 1486 (1st s Cir. 1997) are unpersuasive. In United States v. Fulmer, the court held that the trial court abused its discretion by denying a motion in limine and allowing certain references to the 1995 Oklahoma City bombing. The court' analysis in balancing probative value and prejudice is well taken. In that case, s as in this one, the tragedy has no rational relationship to the real issue and, thus, is properly excluded. s Id. at 1497-1498. Similarly, Big-D' reliance on Diesel Machinery, Inc. v. B.R. Industries, Inc., 418 F.3d 820 (8th Cir. 2005) is misplaced. The identity of a business, which was at issue in the Diesel Machinery case, is much different than evaluating the nuances of corporate decision making and financing. Moreover, it is Leprino's understanding that there will be limited voir dire and little chance to explore 9/11 related issues with prospective jurors. Big-D' arguments for the necessity of raising 9/11 related issues are mere pretext so that Bigs D and UMM can enflame the jury and attempt to cast Leprino in a negative light. Similarly, there are few events, if any, in American history that evoke more highly charged emotions and opinions today than the tragic events of 9/11. To suggest that Leprino somehow took advantage of 9/11 to obtain lower pricing for the Project is not only unsubstantiated and irrelevant to delay issues, but also highly inflammatory. WHEREFORE, the danger of unfair prejudice to Leprino by referencing 9/11 related issues at trial would substantially outweigh any arguable probative value of such references. Accordingly, Defendants, Third-Party Defendants and their attorneys and witnesses must be ordered to refrain from making any reference to 9/11 at trial before the jury.

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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]

CERTIFICATE OF SERVICE I hereby certify that on the 30th day of March 2006, I electronically filed the foregoing PLAINTIFF' REPLY TO "DEFENDANTS BIG-D CONSTRUCTION CORPS CALIFORNIA, BIG-D CONSTRUCTION, BIG-D CORP., AND BIG-D CAPITAL CORP.' S OPPOSITION TO LEPRINO FOOD (sic) COMPANY' MOTION IN LIMINE NO. 1 TO S PRECLUDE REFERENCE TO 9/11" (DOCUMENT 281) 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]

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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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