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

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Honorable Marcia S. Krieger Case No. 03-cv-02669-MSK-PAC LEPRINO FOODS COMPANY, Plaintiff, v. BIG-D CONSTRUCTION CORP. - CALIFORNIA, a Utah corporation, et al. Defendants/Counterclaimants, ________________________________________________________________________ BIG-D CONSTRUCTION CORP. - CALIFORNIA, a Utah corporation; BIG-D CONSTRUCTION CORP., a Utah corporation; and Does 1 - 1 00, 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, et al. Counterdefendant/Third Party Defendants.

DEFENDANTS BIG-D CONSTRUCTION CORP - CALIFORNIA, BIG-D CONSTRUCTION CORP., BIG-D CORPORATION AND BIG-D CAPITAL CORP.'S REPLY TO OPPOSITION OF THEIR MOTION IN LIMINE NO. 1 RE: PRECLUDING REFERENCE TO EXTRAMARITAL AFFAIR

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I.

INTRODUCTION Big-D's Motion in limine No. 1 seeks to preclude reference to an extramarital affair that

allegedly transpired between two Big-D employees during the course of the Project. Leprino opposes this Motion on the basis of pure speculation that the affair caused Big-D to somehow mismanage the Project. Leprino's arguments in opposition are as follows: (1) A Leprino employee, Jack Towle, is of the opinion that the alleged extramarital affair had a negative effect on Big-D's management of the Project; (2) Extramarital affairs obviously adversely impact the ability of the people involved in the affair and their co-workers to competently do their jobs; and (3) Prevailing law universally permits the admission of extramarital affairs. As discussed below, Leprino's arguments are based entirely on speculation and the subjective opinions of a Leprino employee who is not qualified to testify as to Project delays, was not involved in Big-D's handling of the incident, and admittedly did not discuss the incident with Big-D. Moreover, even supposing that Mr. Towle had any basis for linking the alleged affair to Big-D's purported "mismanagement" of the Project, the fact remains that the evidence of the affair is irrelevant. Indeed, the only relevant information is perhaps the fact that one of Big-D's employees (the husband) ended up leaving the Project. While this employee's absence could have arguably contributed to the Project delay, Leprino has failed to produce any evidence to this effect and has further failed to demonstrate that the employee left as a result of the alleged affair. Finally, the cases that Leprino cites do not even remotely pertain to the issue at bar. In essence, Leprino's opposition is entirely without merit and serves to illustrate Leprino's desperation to introduce irrelevant and prejudicial information at the mere hopes of portraying Big-D in a negative light. As such, Leprino's opposition should be given absolutely no weight.

1.

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II.

ARGUMENT Of the numerous Motions in limine filed by the parties in this matter, Big-D's Motion in

limine No. 1 seeking to preclude reference to an alleged extramarital affair would seem the easiest to balance. On the one hand, you have a party, Big-D, that seeks to preclude reference to an irrelevant and highly prejudicial bit of speculation that an alleged affair between two of its employees indirectly caused Big-D to either mismanage or delay the Project. On the other hand, you have a party, Leprino, who seeks to introduce speculative hearsay regarding an alleged extramarital affair in the hopes of establishing that the affair led to substantial delays to the completion of the Project. Leprino bases its position on unfounded and unsubstantiated conjecture that extramarital affairs necessarily prevent individuals who were not even involved in the affair from competently performing their work. Leprino further argues the prevailing case law routinely permits the introduction of such prejudicial evidence. Because Leprino's arguments are baseless and without merit, its opposition must fail. A. Leprino's Contention that Big-D Somehow "Mishandled" the Alleged Extramarital Affair Is Purely Speculative

Leprino first contends that Big-D mishandled the alleged affair between two of its employees and that, as a result, the Project was delayed. While Leprino states that it has no interest in "fomenting scandal" it claims that the affair is highly relevant to Leprino's argument that Big-D's mismanagement delayed the Project. In support of this position, Leprino offers the following: "Certainly, whenever a personal relationship occurs in the workplace, productivity ­ even on the part of those not involved in the relationship ­ is adversely impacted. Much time is wasted on

2.

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gossip and speculation of the affair. This situation may have been worse, given the close physical proximity of the on-site Big-D employees and the relatively small number of Big-D employees who were on the site. Further, this relationship, whether or not it was known to be sexual, must have been a particularly titillating source of gossip given that it was being conducted under the wronged husband's nose." Docket No. 256, Leprino's Opposition to Motion in limine No. 1, pp. 3-4 [Emphasis added]. Where to begin. Leprino's entire argument is based upon speculation. Leprino provides absolutely no evidence, other than the opinions of a man, Jack Towle, who was not directly involved and did not interview or question the persons involved, in support of this position. Leprino cannot legitimately claim to know whether gossip or speculation of the alleged affair occurred. Nor can Leprino even attest for certain as to whether any Big-D employee was even aware of the alleged affair, aside from those directly involved. Further, Leprino cannot produce any evidence that the Big-D employee who ultimately left the Project left because of the alleged affair. Leprino's entire theory rests upon the shakiest of foundations. Ultimately, the facts of this case do not support Leprino's position, save but one. Admittedly, Big-D employees left the Project at various times. If Leprino has evidence that the husband's absence from the Project caused disruption or delay, then it is entitled to offer it. While Big-D believes that even that position would be purely speculative, there can be no question that the reasons that this particular employee left are entirely irrelevant. Further, the effect of the alleged affair on any of Big-D's employees is not based on fact and should not be admitted at trial. // // // 3.

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B.

The Case Law Upon Which Leprino Relies Does Not Apply to the Case at Bar and Should be Disregarded

As stated in Big-D's Motion, the law pertaining to the introduction of evidence related to an extramarital affair could not be clearer. Evidence of extramarital affairs is highly prejudicial under Federal Rule of Evidence 403. Doran v. Priddy (Dist. Kansas 1981) 538 F.Supp. 454, 455. Moreover, under Colorado law, a statement that a person has engaged in an extramarital affair is considered an allegation of serious sexual misconduct and has been held to be defamatory per se. Gordon v. Boyles (2004) 99 P.3d 75, 79. Leprino seeks to refute this clearly defined law by presenting two cases, Elliot v. Aspen Brokers, Ltd. (D. Colo. 1993) 811 F.Supp. 586, and Quark Inc. v. Harley (10th Cir. 1998) 1998 U.S. App-LEXIS 3864, wherein evidence of a personal relationship was partly admissible at trial. Not surprisingly, neither of the cases relied upon by Leprino specifically deals with the highly prejudicial nature of extramarital affairs. Further, in both cases the court was adamant that the nature and details of the relationship were not admissible. For instance, in Elliot, supra, the Court determined that evidence pertaining to a sexual relationship between defendant's sales agent and a man who held an option to purchase the subject property was relevant. 811 F.Supp at 588-598. This evidence was relevant because it tended to show that the sales agent acted with bias in certain dealings with plaintiff. Id. Essentially, the Court found that the evidence demonstrated the sales agent's motive to misrepresent certain details about the property for the benefit of her lover. Id. Although the Court found that evidence of the relationship between the sales agent and the option holder was relevant, the Court ruled that details of the relationship were not relevant and therefore inadmissible. Id.

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The present case is clearly distinguishable from Elliot, supra. For instance, as stated above, Elliot did not involve an extramarital affair, as does the case at bar. Furthermore, in Elliot, the Court determined that the relationship tended to establish that the sales agent's representations were made with the intent of aiding her lover. In essence, it showed that defendant was biased. Here, the alleged extramarital affair has absolutely no bearing on whether the Project was delayed and would not tend to establish whether Big-D's employees improperly performed their work. The next case Leprino cites is Quark, supra, a copy of which is attached hereto as Exhibit "A." Leprino, which fails to properly cite to this unpublished opinion and, further, fails to attach a copy of the case for the Court's and opposing counsel's review, relies upon the case to show that evidence of a relationship between plaintiff's former general counsel and an employee of a company that previously sued plaintiff was admissible. Leaving aside Leprino's blatant disregard for this Court's rules for citing to unpublished cases, the fact of the matter is that Quark actually demonstrates that evidence of the affair should not be admitted in the case at bar. Although the facts in Quark are sparse, it appears that the defendant objected to a reference made during trial that he was a "close friend" of a man that worked for a company that previously sued plaintiff company. The Tenth Circuit opined that such a reference was not prejudicial because it omitted any details concerning the relationship, which was actually romantic in nature. The Tenth Circuit agreed with the District Court's estimation that evidence of a homosexual relationship was highly prejudicial and therefore inadmissible. The relevant inquiry seems to be that defendant had a relationship with an employee of a competing company //

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and that he may have leaked information about his company to the employee. The underlying nature of the relationship was irrelevant and prejudicial. As previously explained, an allegation of an extramarital affair, much like the homosexual affair discussed in Quark, is highly prejudicial and irrelevant. Big-D has conceded that Leprino should be permitted to introduce evidence that the absence of Big-D's employees supposedly caused delay. However, the reason for his delay, the extramarital affair, should not be discussed in front of the jury. Unlike in Quark, where evidence of defendant's close relationship with an employee from a competing company was relevant to demonstrate the source by which sensitive information passed from one company to the other, here the link between the alleged affair and the alleged Project delay is attenuated and speculative. Leprino's reliance on these cases is simply unfounded. Because Leprino has no evidence of the effect that the alleged affair had on Big-D personnel, no reliable evidence that the affair caused delays and indeed no evidence that the affair even transpired, it should not be permitted to discuss the alleged affair in front of the jury. // // // // // // // //

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III.

CONCLUSION For the aforementioned reasons, Leprino's opposition to Big-D's Motion in limine No. 1

must fail. Leprino should be precluded from referencing or introducing evidence related to the alleged extramarital affair involving Big-D's employees. Respectfully submitted this 30th day of March, 2006.

S/ Daniel J. Nevis Daniel J. Nevis Miller, Morton, Caillat & Nevis, LLP 25 Metro Drive, 7th Floor San Jose, California 95110 Telephone: (408) 292-1765 FAX: (408) 436-8272 E-mail: [email protected] Attorneys for Defendant Big-D Construction Corp.- California and Big-D Construction Corp.

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on March 30, 2006 I electronically filed the foregoing named document: DEFENDANTS BIG-D CONSTRUCTION CORP ­ CALIFORNIA, BIG-D CONSTRUCTION CORP., BIG-D CORPORATION AND BIG-D CAPITAL CORP.'S REPLY TO OPPOSITION OF THEIR MOTION IN LIMINE NO. 1 RE: PRECLUDING REFERENCE TO EXTRAMARITAL AFFAIR -ANDCERTIFICATE OF COMPLIANCE with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Michael Gerard Bohn [email protected] [email protected] Bret Matthew Heidemann [email protected] [email protected] Francis (Frank) J. Hughes [email protected] [email protected] Patrick Quinn Hustead [email protected] Peter J. Ippolito [email protected] Richard Carl Kaufman [email protected] [email protected] Patrick T. Markham [email protected] [email protected] John David Mereness [email protected] C. Michael Montgomery [email protected] [email protected] [email protected] Daniel James Nevis [email protected] [email protected] N. Kathleen Strickland [email protected] [email protected] Laurence R. Phillips [email protected] [email protected]

s/ Joan R. Kester
Joan R. Kester