Free Motion for Joinder - District Court of Colorado - Colorado

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

Document 287

Filed 03/20/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Case No. 03-cv-02669-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' LIMITED JOINDER IN MOTION IN LIMINE NO. 6 FILED BY S DEFENDANTS BIG-D CONSTRUCTION CORP.- CALIFORNIA, BIG-D CONSTRUCTION, BIG-D CORP., AND BIG-D CAPITAL CORP.

Plaintiff Leprino Foods Company (" Leprino" through its attorneys, respectfully ), joins certain motions in limine filed by Defendants Big-D Construction Corp.- California, Big-D Construction, Big-D Corp., and Big-D Capital Corp. (" Big-D Defendants" ). 1. On March 1, 2006, Big-D Defendants filed various motions in limine and

numerically designated those motions (one through twelve), just as Leprino did when it filed its motions in limine. 2. One of Big-D Defendants motions in limine is titled as follows: a. Defendants' Big-D Construction Corp.-California, Big-D

Construction, Big-D Corp., and Big-D Capital Corp.' Motion in s Limine No. 6 to Preclude Inclusion of Attorneys'Fees as Part of a Party' Claim for Damages. s 3. Leprino does not agree with the specific factual and legal basis advanced

by Big-D in the above motion, but Leprino agrees generally that attorney fees in claims where the fees are dependent on a finding of liability should not be an element of proof. Motions for fees and costs shall be reserved and made at the conclusion of the case. 4. stipulation. Leprino believes there is one exception that may be handled by Leprino contends Big-D breached the contract by filing an action in

California after agreeing to litigate in Colorado. The damages caused by the breach are fees and costs. In California litigation, Big-D contended such fees were recoverable in the Colorado action. Accordingly, Leprino seeks those fees here. If Big-D and Leprino 2

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stipulate to such fees and costs and stipulate the court can determine the amount of such damages after trial, then proof of the fees and costs need not be made. However, these fees are Leprino' damages for that breach and are an element of proof. s Respectfully submitted this 20th day of March 2006. LEPRINO FOODS COMPANY

By:

s/ Michael G. Bohn One of Its Attorneys 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, Esq. 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 20th day of March 2006, I electronically filed the foregoing PLAINTIFF' LIMITED JOINDER IN MOTION IN LIMINE NO. 6 FILED BY S DEFENDANTS BIG-D CONSTRUCTION CORP.CALIFORNIA, BIG-D CONSTRUCTION, BIG-D CORP., AND BIG-D CAPITAL CORP. 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 at [email protected] Francis (Frank) J. Hughes at [email protected] Patrick Quinn Hustead at [email protected] Peter J. Ippolito at [email protected] Richard Carl Kaufman at [email protected] John David Mereness at [email protected] C. Michael Montgomery at [email protected] Daniel James Nevis at [email protected] Laurence R. Phillips at [email protected] N. Kathleen Strickland at [email protected]

s/ Cori Atteberry Cori Atteberry, Legal Assistant

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