Free Response to Motion - District Court of Colorado - Colorado

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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.

PLAINTIFF' OPPOSITION TO MOTION TO TRANSFER OR STAY PROCEEDINGS S

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Plaintiff Leprino Foods Company ("Leprino"), through its attorneys, respectfully submits the following as its response in Opposition to the "Motion to Transfer or Stay Proceedings and Modify Scheduling Order ­ And ­ Certificate of Compliance with Local Rule 7.1A" ("Motion to Transfer"). I. INTRODUCTION Despite the fact that this litigation has been pending in Colorado since December 2003 and trial is set to begin in approximately two months, Big-D now seeks to transfer this dispute to California or to stay the case pending a ruling by the Ninth Circuit Court of Appeals. The Court may recall that Big-D already filed a motion to stay in March of 2005, but withdrew that motion, obviating the need for Leprino to respond. The arguments raised by Big-D in its first motion are identical to those raised in Big-D' most recent motion. s Third-Party Defendant Marelich Mechanical Co., Inc. dba University Marelich Mechanical ("UMM") also previously sought to stay this case and the Court denied that request. s s s (See UMM' motion, Docket No. 72; Leprino' Response, Docket No. 78; and the Court' Order denying UMM' motion, Docket No. 87). The motive for Big-D' and UMM' motions to stay s s s become clear in light of a surreptitious written agreement between Big-D and UMM entered into no later than April 2004. That agreement is titled "Interim Agreement for Consent to

Jurisdiction and Venue" and will be referred to herein as the Jurisdiction and Venue Agreement. The reason it is described as "surreptitious" is because it was not disclosed to Leprino until it was attached to Big-D' reply brief in support of its motion to amend pleadings to join UMM, s which was filed April 5, 2005. A copy of the Jurisdiction and Venue Agreement is attached

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hereto as Exhibit 1. In essence, the Jurisdiction and Venue Agreement is a conspired effort by Big-D and UMM to join forces to "file those motions in [the] Colorado Action to transfer that Action to California which [Big-D' California counsel] believes are in good faith and with s reasonable chance of success." See, Jurisdiction and Venue Agreement at ¶ 1(b). Even though Big-D and UMM made that Agreement nearly two years ago, neither party has attempted to transfer the case until the eve of trial. Instead, Big-D and UMM, among other things, agreed to various scheduling orders, conducted discovery in this proceeding, participated in court hearings, sought pretrial relief in the Court, and signed a final pretrial order. It is apparent that Big-D' s last minute Motion to Transfer is simply a tactic to delay trial of this controversy. Big-D argues this action is "a mirror image" of the lawsuit it filed in California. A

California District Court dismissed the California action based on the parties contract to litigate any dispute in Colorado.1 Big-D filed an appeal to the Ninth Circuit Court of Appeals. At both the trial and appellate court in California, Big-D argued, in part, that the California District Court erred because the California forum was more convenient ­ the same arguments Big-D is making here. The Motion to Transfer, seeks to effectuate reversal of both the California District Court and to preempt the Ninth Circuit Court of Appeals. For the reasons set forth herein, the Motion to Transfer should be denied.

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Big-D contends the California Court "declined to consider § 1404(a) fairness factors by reasoning that because it was dismissing the action as to Leprino, rather than transferring the action for improper venue, a section 1404(a) analysis was necessary." Big-D Mot., p. 5. Leprino moved to dismiss under the forum selection clause pursuant to Federal Rule of Civil Procedure 12(b)(3) ("Rule 12(b)(3)) or for transfer for improper venue under 28 U.S.C. section 1406(a) ("§ 1406(a)). The California Court relied on Ninth Circuit case law which found Stewart inapplicable to motions to dismiss under Rule 12(b)(3) and § 1406. Manetti-Farrow, Inc. v. Gucci America, Inc., 858 F.2d 509, 512 n.2 (9th Cir. 1988); Shute v. Carnival Cruise Lines, 897 F.2d 377, 388 n. 9 (9th Cir. 1990), reversed on other grounds in 499 U.S. 585 (1991). Thus, the California Court rejected Big-D' contention that it s must independently consider forum non conveniens factors when ruling on whether to grant Leprino' motion s under Rule 12(b)(3) and § 1406.

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Finally, with respect to Big-D' motion to increase the trial time, it is unopposed. s However, Leprino contends the reason the additional time is requested is: (1) to convince the court to grant the stay cause of the trial length; and (2) to allow time to inefficiently try the case. This case can be tried by all sides within 20 days. If this Court denies Big-D' request to spend s two of its planned ten trial days flying the jury to California and trying its other time consuming, but meritless claims, this case can and should be tried by all parties within the 14 days in the scheduling order. Leprino has pending a motion for summary judgment that, if granted, will reduce trial time by at least six trial days. Officially, Leprino does not object to the motion to extend trial time, but contends it is not needed and that it need not be considered until this court rules on Leprino' pending motions for summary adjudication. s II. LEGAL ARGUMENT A. The Enforceability of the Forum Selection Clause Has Been Litigated.

The California District Court already considered and denied the arguments Big- D makes here. Although Big-D is correct that the California court heard and dismissed the action there based on Fed. R. Civ. P. 12(b)(3), the import of this motion is Big-D is asking this Court to transfer to California a case the California court already dismissed. Normally, the transferee

court will not reexamine the decision of the transferor court. See Hatch v. Reliance Ins. Co., 758 F2d 409, 413 (9th Cir. 1985); Hayman Cash Reg. Co. v Sarokin, 669 F2d 162, 166 (3rd Cir. 1982). Although the California dismissal order is not a transfer, it had the same effect and the decision should not be re-examined.

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B.

Big-D' Motion to Transfer is Devoid of any Facts Warranting a Transfer to s California.

As discussed below, there are no facts for the Court to consider here because arguments of counsel (without an affidavit) are not facts. Thus, the Motion to Transfer should be

summarily denied. Moreover, Big-D expressly chose the Colorado forum when it negotiated and executed the Prime Contract with Leprino. Now it seeks to negate its own agreement by moving to transfer this case pursuant to 28 U.S.C. § 1404(a) ("§ 1404(a)"). Section 1404(a) provides: "For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought." "Section 1404(a) is intended to place discretion in the district court to adjudicate motions for transfer according to an ` individualized, case-by-case consideration of convenience and fairness.' Stewart Org. v. Ricoh Corp., 487 U.S. 22, 29 (1988) (quoting Van Dusen v. Barrack, " 376 U.S. 612, 622 (1964)). The movant bears the burden of establishing that the suit should be transferred. Chrysler Credit Corp. v. County Chrysler, Inc., 928 F.2d 1509, 1514 (10th Cir. 1991). Unless the evidence and circumstances of the case are strongly in favor of the transfer, the plaintiff' choice of forum should rarely be disturbed. Scheidt v. Klein, 956 F.2d 963, (10th s Cir. 1992) (citing William A. Smith Contracting Co. v. Travelers Indem. Co., 467 F.2d 662, 664 (10th Cir. 1972)); Texas Gulf Sulphur Co. v. Ritter, 371 F.2d 145, 147 (10th Cir. 1967). Examples of factors to be considered in a § 1404(a) analysis include "the plaintiff's choice of forum; the accessibility of witnesses and other sources of proof, including the availability of compulsory process to insure attendance of witnesses; [and] the cost of making the necessary proof . . ." An additional factor to weigh is the existence and effect of a forum selection clause in any contract between the parties. Stewart Organization, Inc. v. Ricoh Corp.,

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487 U.S. 22 (1988). In most instances involving a forum selection clause and a § 1404(a) motion to transfer, the moving party seeks to transfer the action to the venue specified in the forum selection clause. The Supreme Court states "[t]he existence of a choice of venue provision figures centrally in the district court's calculus." Id. at 29. The instant motion is unique because the moving party seeks to transfer the case out of the contractually agreed-upon forum. In arguing that the fairness factors of § 1404(a) compel venue in California, Big-D glosses over the importance of the Prime Contract' choice of venue provision in its analysis. s Big-D concedes the existence of a forum selection clause is a factor to consider in a § 1404(a) inquiry, but affords the forum selection clause no consideration at all in its moving papers. Because Big-D does not assign any weight to what should be a "central figure in the calculus" of a § 1404(a) balancing test, its argument that "on balance, the fairness factors of section 1404(a) compel venue in California" fails. Stewart Organization, Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988). The subsequent history of the Stewart case is also instructive. On remand, the district court performed a § 1404(a) analysis and denied the motion to transfer, finding respondent' s evidence did not overcome the presumption in favor of the plaintiffs' choice of forum. Stewart Org. v. Ricoh Corp., 696 F. Supp. 582, 591 (N.D. Ala. 1988). However, on writ of mandate, the Eleventh Circuit found the district court had abused its discretion. The district court had focused on the convenience of the Alabama forum rather than "the convenience of a [New York] forum given the parties' expressed preference for that venue, and the fairness of transfer in light of the forum selection clause and the parties' relative bargaining power" as the Supreme Court had

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directed. In re Ricoh Corp., 870 F.2d 570, 572 (11th Cir. 1989) (citing Stewart, supra, 487 U.S. at 29). The Eleventh Circuit explained: In so concluding, we adhere to the reasoning advanced by the Supreme Court. . . [which] stated that when weighing whether transfer is justified under section 1404(a), a choice of forum clause is ` significant factor that figures centrally in a the District Court' calculus.' Thus, while other factors might ` s conceivably' militate against a transfer, the clear import of the Court' opinion is that the venue s mandated by a choice of forum clause rarely will be outweighed by other 1404(a) factors. In Re Ricoh, supra, 870 F.2d at 573. The Court of Appeals concluded the case "[did] not present the type of ` exceptional' situation in which judicial enforcement of a contractual choice of forum clause would be improper." Id. at 574. The Court found plaintiff had failed to satisfy its burden that New York was inconvenient to justify retention of the dispute in Alabama. Id. In so holding, the Court noted four specific factors weighing in favor of enforcing the forum selection clause. These four factors apply equally to this action. First, the parties' Prime Contract was freely and fairly negotiated by experienced business professionals. Id. at 573. Second, the parties' choice of a Colorado forum was and is reasonable given that Leprino is a Colorado corporation with its main offices in Colorado. A California forum is no more convenient for Big-D than a Colorado forum is because Big-D is a Utah corporation, whose primary place of business is in Salt Lake City. Third, the presence of fraud, duress, misrepresentation, or other misconduct that would bar the clause's enforcement was neither alleged nor shown. Id. at 574. The same is true in this case, where no allegations of fraud have been asserted.

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Fourth, there was no evidence of intervening and unexpected occurrences between the contract's formation and the filing of suit, which would frustrate the contract' purpose if the s case were transferred to the contracted forum. Id. Here, the case is already venued in the forum specified in the Prime Contract, and Big-D seeks transfer from the forum specified in the Prime Contract. No unexpected or intervening events have occurred since the contract' formation s which would frustrate the purpose of the Prime Contract. Therefore, under the criteria set forth above, Big-D' request that this Court set aside the Prime Contract' forum selection clause does s s not remotely "present the type of ` exceptional' situation in which judicial enforcement of a contractual choice of forum clause would be improper." In re Ricoh Corp., 870 F.2d 570, 574 (11th Cir. 1989). As such, the Court should assign significant weight to forum selection clause in the Court' § 1404(a) analysis. s C. Other Fairness Factors Defeat the Motion to Transfer.

Although Big-D fails to consider the central effect of the forum selection clause in its § 1404(a) analysis, it asserts that "[o]n balance, the fairness factors of section 1404(a) compel venue in California." These factors include: 1) the controversy arose in California; 2) judicial economy; 3) inaccessibility of witnesses and other sources of proof in Colorado. As the moving party, Big-D bears the burden of establishing that the Colorado forum is inconvenient. Chrysler Credit Corp. v. County Chrysler, Inc., 928 F.2d 1509, 1514 (10th Cir. 1991). Big-D has failed to carry its burden because it has made only conclusory assertions demonstrating inconvenience but did not provide any supporting evidence in an affidavit or otherwise. Scheidt v. Klein, 956 F.2d 963, 966 (11th Cir. 1992). "Unsupported assertions do not

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merit a transfer of venue." Id.; Wolf v. Gerhard Interiors, Ltd, 399 F. Supp. 2d 1164, 1168 (D. Colo. 2005). This Court recently decided a case which, like the instant action, involved a § 1404(a) Motion to Transfer from the District Court in Colorado to one in California. Wolf v. Gerhard Interiors, Ltd, 399 F. Supp. 2d 1164 (D. Colo. 2005). Plaintiffs, Colorado residents, filed suit in Colorado state court against defendant, a California corporation with whom plaintiffs had contracted for design services on plaintiff' home. Id. at 1166. After defendant removed the s case to federal court, it filed a Motion to Transfer Venue to California pursuant to 28 U.S.C. § 1404(a). Id. at 1166. The witnesses and documents relevant to the litigation were located in both Colorado and California. Id. at 1516. Defendant claimed out-of-state witnesses would be inconvenienced because they would have to travel to Colorado. Id. at 1516. Defendant also claimed that documents needed to litigate the case were in California and s could only be acquired through subpoena by a California court. Id. at 1516. The defendant' affidavit in support of its motion did not list, describe or in any way identify for the Court the documents and their materiality. As a result, the Court found defendant' assertion s regarding the documents speculative and not persuasive. Id. at 1168. The Court ultimately concluded that defendant' affidavit did not suffice as a foundation s to support a transfer of venue. Id. at 1168. Here, Big-D did not even file an affidavit in support of the instant motion. Big-D' § 1404(a) analysis is based upon conclusory and s unsupported allegations. First, Big-D contends "the controversy arose in California where the project is located" which it claims "alone strongly supports transfer of venue to the Eastern District of California."

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This is an action for breach of the Prime Contract due to the fact the project was completed ten months after the promised delivery date. The parties seek recovery of a money judgment. The location of the project is irrelevant to determining whether Big-D or Leprino breached the contract' terms and thus is due or not due money damages. Furthermore, at the time Big-D s negotiated and executed the Prime Contract, it understood the project for which it contracted was located in California and nevertheless agreed to litigate any dispute arising out of the contract in Colorado, not California. Big-D provides no facts or argument to explain why venue is better in California because the subject of the parties' agreement is located there. Therefore, Big-D has not carried its burden, and this factor carries no weight in the § 1404(a) analysis. Second, Big-D argues that judicial economy will be served by transferring the case to California "because a mirror image case is proceeding in the Eastern District of California." The California case is not proceeding because it was dismissed. Third, Big-D contends that no party, other than Leprino, has any ties to Colorado and therefore witnesses and other sources of proof will not be accessible to Big-D in Colorado. Big-D asserts such proof would be available to it in California, noting it is "licensed in California." Big-D fails to mention, however, that it is not a California corporation but is in fact a Utah corporation headquartered in Salt Lake City and advertising itself as an construction expert currently serving markets in 21 states, including Colorado.2 Its witnesses reside in Utah. Specifically, Big-D argues that all non-Leprino and third-party witnesses are located outside Colorado. It notes that a Colorado court would have no power to subpoena witnesses
2

These markets include: Arizona, Arkansas, California, Colorado, Georgia, Hawaii, Idaho, Montana, Nevada, New Mexico, New York, North Carolina, North Dakota, Oklahoma, Oregon, South Dakota, Tennessee, Texas, Utah and Washington. See http://www.big-d.com/frames/fs_body.php?direct=fs_about.htm.

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who live outside of the state and therefore Big-D will be unable to compel any witnesses to testify in Colorado. Big-D also notes that all of the party and voluntary witnesses would have to travel for trial to Colorado, thus incurring substantial cost. What Big-D conveniently omits is that most of these witnesses are also located outside California, making travel necessary even if this case were transferred to the Eastern District of California. This court permitted over 75 total deposition days, and most of the depositions are on video tape. To demonstrate the requisite inconvenience to its witnesses, "it is necessary that some factual information relative to the materiality of witness testimony . . .be supplied to the [trial court]." Scheidt v. Klein, 956 F.2d 963, 966 (11th Cir. 1992) (citing ROC, Inc. v. Progress Drillers, Inc., 481 F. Supp. 147, 152 (W.D. Okla. 1979). Big-D has not submitted evidence "to indicate the quality or materiality of the testimony of the inconvenienced witnesses. . . to show that such witnesses were unwilling to come to trial in [Colorado], that deposition testimony would be unsatisfactory, or that the use of compulsory process [would] be necessary." Id. The parties deposed a total of 47 witnesses during the course of discovery. These depositions took place in Colorado, Utah, California, Oregon and Tennessee. Only five of the 47 depositions took place in California, and they were employees of UMM, a third party defendant. Additionally, the parties have exchanged lists of witnesses each expects to call at trial. Leprino disclosed 23 direct witnesses. Eleven reside in Colorado, five in Utah, three in California (UMM employees who will appear by video), two in Oregon and one each in Nevada and Tennessee. All of Leprino' witnesses have agreed to appear voluntarily at trial in Colorado. s Big-D

disclosed 22 direct witnesses. Fifteen reside in Utah, two in California and one each in Nevada,

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Tennessee and Kansas. Therefore, all but two of Big-D' witnesses are also outside of the s California court' subpoena power. s In the absence of any supporting evidence, the Court must conclude that litigating in either California or Colorado will be equally burdensome for Big-D. Transferring the case to California would, however, be much less convenient for Leprino. This alone is insufficient to support Big-D' transfer request. "Merely shifting the inconvenience from one side to the other. s . . obviously is not a permissible justification for a change in venue. Scheidt v. Klein, 956 F.2d 963, 966 (11th Cir. 1992). Therefore, Big-D' argument on this point fails as it cannot show s venue in California would be any more convenient for trial witnesses than venue in Colorado. As such, this factor carries no weight in the § 1404(a) analysis. Big-D also claims that all of the documents relevant to the lawsuit are located in California and therefore "the action will be vastly more expensive if it proceeds to trial in Colorado." The documents are not identified nor has Big-D offered proof to substantiate the materiality of such documents and why they would be unavailable at trial. See Scheidt v. Klein, 956 F.2d 963, 966 (11th Cir. 1992). Big-D has not offered an affidavit providing "requisite detail regarding witness materiality, evidence materiality, or volume of evidence." Wolf v. Gerhard Interiors, Ltd, 399 F. Supp. 2d 1164, 1168 (D. Colo. 2005). Finally, Big-D claims if the case is not transferred to California, "members of the court and jurors will have to fly from Colorado to California and back" to inspect Leprino' Lemoore s plant. However, Big-D has not explained nor proved that such an inspection is necessary to resolve this dispute.3

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In balancing fairness factors in a § 1404(a) analysis, a plaintiff' choice of forum is given considerable weight. s

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IV. THE MOTION TO STAY SHOULD BE DENIED A. A Stay of Proceedings Is Not Warranted Because The "First-Filed" Rule Is Not Applicable Under The Circumstances And The Decision Whether To Stay Proceedings Is Within The Sound Discretion Of The Court.

This court already denied UMM' motion to stay. The determination of whether to stay s proceedings generally lies within the discretion of the district court. Pet Milk Company v. Ritter, 323 F.2d 586, 588 (10th Cir. 1963). Interestingly, in Pet Milk the Tenth Circuit upheld the denial of a stay of proceedings on the basis that there was a pending appeal involving the same parties.4 "Stays pending appeal are an extraordinary and disfavored remedy." Gerald Metals Inc. v. U.S., 22 C.I.T. 1009, 1012, FN 6, 27 F. Supp. 2d 1351, 1354 (1998). As the court in Gerald Metals noted the "Court cannot assume anything about what will happen on appeal, and for the lower court to refrain from acting based on any suppositions about future events would be both presumptuous and improper." Gerald Metals, 22 C.I.T. at 1012, 27 F. Supp. 2d at 1354. Big-D relies on the application of the so called "First-Filed Rule" to support its motion to stay this proceeding pending appeal of the California district court' ruling on jurisdiction under s the forum selection clause in the prime contract between Leprino and Big-D. UMM' reliance s on this rule is misplaced. The first-filed rule generally permits a district court to decline

jurisdiction when the same issues against the same party are already pending in another federal

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Scheidt v. Klein, 956 F.2d 963, 965 (11th Cir. 1992). In fact, the Tenth Circuit has held that "unless the balance is strongly in favor of the movant, the plaintiff' choice of forum should rarely be disturbed." Scheidt v. Klein, 956 s F.2d 963, 965 (11th Cir. 1992) (quoting William A. Smith Contracting Co. v. Travelers Indem. Co., 467 F.2d 662, 664 (10th Cir. 1972)). In this case, the balance of § 1404(a) factors is strongly in favor of Leprino' choice of s forum. Pet Milk had initiated litigation against several competitors in Utah and verdicts were returned against the defendants. Pet Milk then filed additional actions against the same defendants alleging continued violation of the same anti-trust violations raised in the earlier cases. The defendants then moved for a stay of the new litigation pending appeal of the verdicts in the earlier matters.

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district court. "The principle underlying the rule is to avoid duplicative litigation, but it is not a hard and fast rule." Ed Tobergte Associates, Inc. v. Zide Sport Shop of Ohio Inc., 83 F. Supp.2d 1197, 1198 (D. Kansas, 1999) (emphasis added). The first-filed rule is "not entitled to mechanical application." Hospah Coal Co. v. Chaco Energy Co., 673 F.2d 1161, 1164 (10th Cir. 1982). In Hospah the Tenth Circuit ultimately resolved a dispute over which of two federal courts should make the determination on the issue of venue. The Hospah court relied heavily on the U.S. Supreme Court case of Kerotest Mfg. Co. v. C-0-Two Co. 342 U.S. 180, 72 S.Ct. 219, 96 L.Ed. 200 (1952) in reaching its decision. The Tenth Circuit stated that: "Kerotest stands for the proposition that simply because a court is the first to obtain jurisdiction does not necessarily mean that it should decide the merits of the case. ... Kerotest is in line with our view that the court which first obtains jurisdiction should be allowed to first decide the issues of venue." Hospah, 673 F.2d at 1164. In this case the California district court, wherein the action was first filed, determined that it did not have jurisdiction over Leprino and dismissed it from the action. In so ruling the California court took into consideration the effect such a ruling might have on other parties. Simply put, just because the action was commenced in California does not mean that the firstfiled rule warrants a stay of the proceedings in this court, at this late date, particularly when a Federal Court in California has clearly stated that it does not have jurisdiction over Leprino and has entered a "with prejudice" Dismissal Order. B. Factors Of Judicial Economy Militate Against A Stay Of This Action.

As noted above a decision to stay proceedings is generally discretionary with the court and requires the court to balance "competing interests on both sides." Commodity Futures

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Trading Commission v. Chilcott Portfolio Management, Inc. 713 F.2d 1477, 1484 (10th Cir. 1983). In Chilcott the Tenth Circuit reversed a stay issued by the district court for Colorado finding that there was insufficient justification for the rule. Id. at 1487. In so ruling the court stated "[t]he underlying principle clearly is that the right to proceed in court should not be denied except under the most extreme circumstances." Chilcott, 713 F.2d at 1484. In another case the Colorado District Court declined to stay proceedings pending an appeal of a preliminary ruling on the basis that "public policy dictates the timely conclusion of legal disputes." Desktop Images Inc. v. Ames, 930 F. Supp. 1450, 1451 (D. Colo. 1996). If this case is stayed, trial will be in limbo. The matter may not go to trial for another two years, and the only motivation to closing the case (a trial date) will disappear. The motion should be denied. V. A 30-DAY TRIAL IS NOT NECESSARY Leprino does not oppose the motion to extend the trial time, but believes it is not necessary. Big-D claims, without factual support, that it needs 2 trial days (presuming it will use 10 of the 30) to take the jury to visit the cheese plan in California. This is a contract case. The project was either timely completed or not. No evidence to support a field trip (apparently at Big-D' expense in both trial time and money) is needed. Another planned waste of time by s Big-D is the calling of witnesses. All parties have many of the same witnesses on their lists. Leprino suggests that each witness be called once for all purposes, and the allocation of direct and cross-examination be worked out with the Court' permission. Big-D refused and qualified s its approach. If the parties call each witness once for all times, certainly each party can reduce their trial time by a day, resulting in trial within 20 days. Such an order would force parties to

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present a succinct case. There is no reason the parties cannot try this case within 20 days. As a practical matter, the request for additional time is premature. A ruling favorable to Leprino on its pending motion for summary adjudication may significantly reduce the days needed for trial. 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' OPPOSITION TO MOTION TO TRANSFER OR STAY PROCEEDINGS S 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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