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.

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PLAINTIFF' RESPONSE IN OPPOSITION TO BIG-D DEFENDANTS' MOTION IN S LIMINE NO. 4: TO PRECLUDE REFERENCE TO THE LOCATION OF THE PARTIES' PRINCIPAL PLACE OF BUSINESS AND/OR TIES TO THE COMMUNITY Plaintiff Leprino Foods Company ("LFC") states as follows in opposition to the Big-D Defendants'("Big-D") Motion in Limine No. 4 ("Motion"): I INTRODUCTION Big-D' Motion should be denied because it is factually and legally baseless, the relief s requested therein is unworkable, and any valid concerns Big-D may have about local bias against it in this Court are more than adequately remedied by standard procedures. II ARGUMENT A. Big-D fails to present any legal authority for its request.

Big-D entirely fails to present any legal authority for the proposition that a non-resident litigant is somehow exposed to unfair jury bias simply due to its non-resident status which entitles it to an in limine order precluding reference at trial to facts as fundamental and innocuous as the home town locations of the parties. In fact, the only case law Big-D cites is Zukowski v. Howard, Needles, Tammen & Bergendoff, 115 F.R.D. 53 (D. Colo. 1987), which does not actually support Big-D' s argument. The language Big-D quotes from the Zukowski court merely expresses that there is no meaningful difference in composition of jurors between federal and state courts that sit in the same locality because both courts select juries from the same geographic section. The Zukowski decision does not establish that jurors from one section are predisposed or biased against parties from another

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section. The court did not even speak of any specific type of juror bias in Zukowski. It spoke merely of hypothetical "local prejudices and sectional views" in its discussion of the purposes of diversity jurisdiction, which, in turn, was merely background for the issue before that court, i.e., a party' s challenge to the rule that diversity jurisdiction cases have the lowest priority on the trial calendar. Id. at 56. B. Big-D fails to present any factual basis for its supposed fear of prejudice.

Big-D accuses LFC of already attempting to "gain favor with the jury based upon the fact that it is a Colorado-based company, located in Denver," but offers no evidence of any improper or unusual actions by LFC that causes Big-D to fear prejudice by the jury. The only example of supposed bias-mongering Big-D offers is a sentence from LFC' Motion for Summary Adjudication in s which LFC introduces itself ­ as would any normal person in conversation or any party in court ­ by explaining that it hails from Denver. See Motion at 2. Such statements, even in front of a jury, are mere background that any jury would expect to hear, just as it would expect to learn other basic background information, such as the company' name, industry, number of years in the business, s number of employees, and geographic scope of business. Big-D has no basis for fearing prejudice from the jury or for accusing LFC of somehow exploiting such prejudice. Even if hometown bias were a valid fear for Big-D, Big-D agreed to take that risk when it signed its contract with LFC, in which it agreed to jurisdiction in Colorado. C. The "gag order" directive Big-D seeks would be unworkable and confusing to the jury.

Big-D argues that a Fed. R. Evid. 403 analysis need not apply because principal places of business are "wholly irrelevant." Motion at 5. It would be more accurate to state that a Rule 403

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relevance vs. prejudice analysis does not apply because references to offices, facilities, suppliers and meetings in California, Utah and Colorado (the headquarters locations of the three major players in this case) will be frequent and unavoidable, while the prejudicial effect of such references will be nonexistent. The applicability of Rule 403 here lies in that rules' concern for the confusion of the jury, undue delay and waste of time. Big-D' requested order precluding references to the home towns of s the respective parties would require an inordinate effort by all parties to remove all signs of their hometown origins from the documentary evidence and from witnesses' testimony. By way of example only, the parties would have to redact from all pleading captions in this case the references to "California corporations" and "Utah corporations." Then, the parties would have to redact all sending and receiving addresses from correspondence used in evidence. With just those beginning efforts, the jury would already be left to wonder and guess why the contents of documents have been so marked up and obfuscated. One can only imagine the circus that would ensue during testimony when attorneys interrupt witnesses mid-sentence to remind the Court there is an in limine order precluding references to specific cities, after a witness merely said something as innocent and automatic as, "After that project meeting, I headed straight back to Denver to . . . ," followed by the Court instructing the jury to disregard that statement and admonishing the witness to answer again without mentioning the city or state to or from which he or she was traveling. The unwieldy testimony, confusing effect on the jury and inefficiency flowing from the order Big-D seeks is much more detrimental to justice than any possible prejudice that could result from references to geographic locations.

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D.

The Court already has adequate safeguards in place to care for any possible jury prejudice due to parties' non-resident status.

LFC does not concede there is any risk of jury prejudice to parties just because they are nonresidents of Colorado. However, to the extent Big-D is genuinely concerned, it rightfully will be allowed to examine the issue of hometown bias in voir dire. The very purpose of voir dire is "to seat an impartial jury and to facilitate the appropriate exercise of peremptory challenges." Neely v. Newton, 149 F.3d 1074, 1084 (10th Cir. 1998). Discussing the purpose of voir dire, the United States Supreme Court has explained: [A] suitable inquiry is permissible in order to ascertain whether the juror has any bias, opinion, or prejudice that would affect or control the fair determination by him of the issues to be tried. That inquiry is conducted under the supervision of the court, and a great deal must, of necessity, be left to its sound discretion. This is the rule in civil cases, and the same rule must be applied in criminal cases. Mu' v. Virginia, 500 U.S. 415, 422 (1991), quoting Connors v. United States, 158 U.S. 408, 413 Min (1895). Big-D can put questions to the potential jurors to reveal bias or prejudice and to determine their abilities to remain objective and impartial without favoring LFC just because it is a local company. The Court is entitled to give considerable weight to the juror's assurances that he or she can be fair and impartial. People v. Veloz, 946 P.2d 525, 531 (Colo. App. 1997). In addition to interviewing the jury for bias, the Court can issue an instruction to the jury that it is not to favor any parties on the basis of where parties are from or where their principal places of business are located. Big-D, again without any basis in fact, predicts a "bombardment by Leprino of evidence pertaining to its long-established presence in the city and state." Motion at 5. LFC, of course, has no such plans to exploit its resident status. However, even if such a "bombardment" tactic were used at

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trial, a simple objection and ruling from the Court on the grounds of cumulative evidence (Fed. R. Evid. 403) would resolve Big-D' concern. s III CONCLUSION Big-D' declared fear of LFC' exploitation of juror prejudice against non-residents is s s factually and legally baseless, and an order precluding references to cities of origin and business would be unworkable and confusing. Further, any such prejudice can be avoided in the jury selection process and through the use of instructions. Accordingly, Big-D' Motion in Limine No. 4 should be s denied. 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]

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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. 4: TO PRECLUDE REFERENCE TO THE LOCATION OF THE PARTIES' PRINCIPAL PLACE OF BUSINESS AND/OR TIES TO THE COMMUNITY 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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