Free 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' RESPONSE IN OPPOSITION TO BIG-D DEFENDANTS' MOTION IN S LIMINE NO. 1: TO PRECLUDE REFERENCE TO EXTRAMARITAL AFFAIR Plaintiff Leprino Foods Company ("LFC") states as follows in opposition to the Big-D Defendants'("Big-D") Motion in Limine No. 1 ("Motion"): I INTRODUCTION Big-D' Motion requests the Court to enter an Order in limine precluding reference to s and/or the presentation of evidence of an extramarital affair between two of Big-D' on-site s project employees (a male project superintendent and a female secretary), and the effect the affair had on the project (particularly after the female secretary' husband, who was also a Big-D s on-site employee, left the project after learning of the affair). The superintendent and the secretary now are married to each other. Big-D argues that "the only possible relevant information regarding Project delays is whether the absence of [the female secretary' husband] impacted the completion of the project. s The reasons for his absence are irrelevant to this inquiry and, in light of Leprino' theory, are s highly prejudicial to Big-D. Big-D believes that Leprino might attempt to elicit testimony regarding the affair in order to improperly invoke negative emotion from the jury against Big-D and its employees." (Big-D Motion in Limine No. 1, at 3-4.) Big-D' Motion attempts to preclude the introduction of significant relevant evidence. s This case involves the 10-month delay in completion of Leprino' cheese processing plant. A s core issue is the extent to which Big-D' mismanagement of the project caused the delay. The s jury is entitled to consider whether Big-D' employees suffered impaired productivity on the s

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project not only due to the departure of the secretary' husband but also due to the existence of s the personal relationship between the project superintendent and the secretary. As has been determined by Colorado federal courts in the past, such personal relationships are relevant and admissible, without reference to the sexual dimension of such relationships. II ARGUMENT The core issue in this case is Big-D' delayed completion of Leprino' cheese processing s s plant. The plant was completed some ten (10) months later than its contractually-required completion date. Much of Leprino' focus at trial will include presentation of evidence on Bigs D' mismanagement of the project and its consequent delayed completion. The manner in which s Big-D mishandled the relationship between its on-site employees and its aftermath is part of that equation. Leprino has no interest in fomenting scandal or embarrassing the Big-D employees in question. However, the fact that the relationship occurred, and the manner in which Big-D handled the consequent personnel issues, is highly relevant to Leprino' argument that Big-D s mismanaged this project and that Big-D' mismanagement led to the project' delayed s s completion. 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 gossip and speculation about 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 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

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conducted under the wronged husband' nose. Thus, the jury should be allowed to take into s consideration the relevant outgrowth of the personal relationship ­ its impact on workplace productivity-- even if the sexual aspect of the relationship is not presented to the jury. Similar types of issues have been presented in the past to the Colorado federal courts, and they have been handled in a common-sensical manner, weighing the interests of both sides. In Elliott v. Aspen Brokers, Ltd., 811 F. Supp. 586 (D. Colo. 1993), the plaintiff, a prospective purchaser of a ski lodge, sued a real estate brokerage firm for its sales agent' false and s misleading representations that the ski lodge contained 26 units when it fact it contained only 16 units. The defendant brokerage firm sought an Order in limine that the plaintiff should not be allowed to present evidence of the sexual relationship between the defendant' female sales s agent and a male who held an option to purchase the lodge. Similar to Big-D' argument in the s instant Motion, the defendant brokerage firm argued that "the only purpose such evidence would serve would be to offend the morals of the jury in hopes of prejudicing Defendant' case." The s plaintiff responded that she had no intention of embarrassing the sales agent or the option-holder, but instead that evidence of the relationship was relevant because the plaintiff would have been much more skeptical of the information provided by the sales agent had the plaintiff known that the sales agent was intimately involved with the option-holder. The District Court stated that the fact that the sales agent and the option-holder were romantically involved was relevant evidence, while the fact or extent of their sexual relations was not. The personal relationship made it more likely that the sales agent knew that the lodge contained only 16 units instead of the 26 units represented in materials provided by the defendant brokerage firm. The personal relationship also made it more likely that the sales agent would

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prevent the plaintiff from learning this, to assist the option-holder. The sales agent' knowledge s of the true number of the units in the lodge was essential to the plaintiff' claim for fraudulent s misrepresentation. Thus, evidence of the relationship was relevant. On the other hand, said the District Court, the fact that the couple had sexual relations did not add much to the calculation. The sales agent' potential allegiance to the option-holder could easily be inferred from evidence s that they were romantically involved, and further detail as to the physical aspects of their relationship was unnecessary and not particularly probative. Therefore, the District Court denied the defendant brokerage firm' motion in limine as to evidence of the evidence of the couple' s s romantic involvement while precluding the plaintiff from delving into issues regarding sexual relations. A very similar result obtained in Quark, Inc. v. Harley, No. 96-1046, 96-1048, 96-1061, 1998 U.S. App. LEXIS 3864 (10th Cir. Mar. 4, 1998). In Quark, the plaintiff corporation had developed a desktop publishing program. Two years after the program was released for sale, the plaintiff corporation was sued by another company claiming copyright infringement of its own desktop publishing program. After settling that suit, the plaintiff corporation sued its former General Counsel in the U.S. District Court for the District of Colorado, claiming that the defendant had improperly communicated with the company that had brought suit for copyright infringement. An issue raised on appeal was whether the plaintiff corporation should have been allowed to present evidence on the defendant' homosexual relationship with an employee of the s company that had brought suite for copyright infringement. Concluding that sexual preference "may be a big deal to the jury and I don' want to have that prejudice," the District Court t disallowed reference to the homosexual nature of the relationship, but did allow the litigants to

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describe the relationship as "close" or with "other synonyms." On appeal, the Tenth Circuit found this ruling not to be a clear abuse of discretion, "as it was not arbitrary, capricious, whimsical, or manifestly unreasonable." Slip op. at *12. A similar ruling should be made here. The existence of the personal relationship between the Big-D employees is relevant, as is the reaction of secretary' husband upon learning of the s relationship, as is Big-D' decision to allow the participants to remain together on the project s after their relationship came to light and the secretary' husband left the project. This is all s relevant evidence that the jury should be allowed to take into account as it considers the delayed completion of this project and the extent to which such delayed completion is attributable to BigD' management or mismanagement of the project. Nothing more than the sexual dimension of s the relationship should be kept from the jury. III CONCLUSION Big-D by its Motion attempts to keep from the jury the existence of a personal relationship between two of its on-site employees and argues that only the absence from the project of one of the participants' spouses is the only evidence that the jury should be allowed to consider as it determines the cause of the delayed completion of this project. In fact, the personal relationship of the two on-site employees, and the other employees' knowledge of and reaction to this relationship is highly relevant to the issue of Big-D' management or s mismanagement of the project and its delayed completion. The only evidence that might be kept from the jury, under relevant authority, is the sexual dimension of the relationship. Accordingly, Big-D' Motion in Limine No. 1 should be denied. s

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

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Respectfully submitted this 20th 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 20th day of March 2006, I electronically filed the foregoing PLAINTIFF' RESPONSE IN OPPOSITION TO BIG-D DEFENDANTS' MOTION IN S LIMINE NO. 1: TO PRECLUDE REFERENCE TO EXTRAMARITAL AFFAIR 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] C. Michael Montgomery of [email protected] Daniel James Nevis of [email protected] Laurence R. Phillips of [email protected] N. Kathleen Strickland of [email protected] s/ Cori Atteberry Cori Atteberry, Legal Assistant

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