Free Motion for Order - 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-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.

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

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THIRD PARTY DEFENDANT AND COUNTERCLAIMANT MARELICH MECHANICAL CO., INC. dba UNIVERSITY MARELICH MECHANICAL MOTION TO ENLARGE TIME FOR TRIAL -ANDCERTIFICATE OF COMPLIANCE WITH LOCAL RULE 7.1A Third Party Defendant and Counterclaimant Marelich Mechanical Co., Inc., dba U i rtMa lh cai l" MM"r pc u y oe t C uto a odrx ni n ei v sy r i Mehn a( ec c U )e et l m vsh orfrn reet d g s fl e e n the time for trial from fourteen days to minimum of thirty days, given the number of witnesses and exhibits expected to be offered at trial and the complexity of this matter. CERTIFICATE OF COMPLIANCE WITH D.C.COLO.LCivR 7.1A Pursuant to D.C.COLO.LCivR 7.1A, counsel for UMM has met and conferred with cuslo bt Pa tf er o od C m ay " er o)n T i -Party Plaintiff Big-D onefr o ln fL pi F os o pn ( pi "ad h d h ii n L n r Construction Corp.- C lon ( i "wt r a so h m t n n ia e oto se a afri " g ) i e r t t s o o adn n f rt acr i i a B -D h gd i i f tn t pre'epcv psi a t t i us n r us freestot below. It is h a i r et e oio so h s e ad e et o r i efr e ts s i tn es q s lf h cusl udrad ght er o od C m ay os o object to the court considering one s ne t i t L pi F os o pn de nt ' sn n a n increasing the number of days for trial, while counsel for Big-D joins in, and stipulates to, all of the relief requested in this motion. I. INTRODUCTION After nearly two years and the completion of approximately 80 days of deposition and the exchange of over one million documents, discovery in this action is drawing to a close. Pending before this Court is Big-D sMo o t Tas r r t Poed g adMoi Shdl g ' t n o r f o Sa rcei s n i ne y n d y ceu n f i Order. In the event this Court does not transfer or stay this action, due to the sheer volume of witnesses (over 90 have been identified in the proposed Pretrial Order), exhibits, related parties

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and complexity of issues involved in this action, an increase in the number of days allotted for trial from fourteen to thirty is warranted. II. FACTUAL BACKGROUND This dispute arises from the construction of a large (approximately 475,000 square foot) ces m nf t i p ni Lm oeC lon ( e Po c ) In 2000, Leprino, as owner, hee aua u n l tn e or afri t "rj t . c rg a , i ah e" and Big-D, as the general contractor, entered into a written agreement to construct the Project ( e Pi e ot c ) t "r C n at . h m r " Soon after entering into the Prime Contract, Big-D engaged a number of subcontractors, including UMM, to perform varying scopes of work on the Project. Big-D entered into a subcontract with UMM, pursuant to which UMM agreed to provide certain equipment, labor and materials associated with the mechanical systems at the Project. Most of Big-D s ucn at s 'sbot c r r o, including UMM, were California corporations working primarily in California. The completion of the Project was delayed. However each of the parties contends that the delays were the result of conduct by the other parties. As a result, the parties have competing claims against one another for more than $50 million in additional costs, unpaid contract balances, and lost profits. As set forth above, after nearly two years and the completion of approximately 80 days of deposition and the exchange of over one million documents, discovery in this highly complex construction dispute is drawing to a close. Given the technical nature of the various claims and

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the sheer number of witnesses and exhibits each party intends to produce in support of their respective claims and defenses, the currently time allotted for trial, i.e., fourteen days, is extremely unrealistic. UMM respectfully requests that the time for trial be extended to at least thirty court days. III. IF THE COURT DECLINES TO TRANSFER THE ACTION TO CALIFORNIA THE ACTION TO CALIFORNIA, IT SHOULD EXTEND TO TIME FOR TRIAL FROM FOURTEEN DAYS TO THIRTY DAYS A i e m shdl g re "ot lt sbeuncus o t at n n n r ceu n odrcn o h usqetor fh co unless modified ti i rs e e e i by a subsequent order. Fd R Cv Po 1( ( pai add. In deciding whether to " e. . i r. 6e e hs de) . ) m s modify a pretrial order, courts generally consider (1) the degree of prejudice to parties; (2) the timeliness of the request; (3) the impact of the modification on the orderly conduct of the proceedings; and (4) whether any willfulness, bad faith or inexcusable neglect is involved. Davey v. Lockheed Martin Corp., 301 F.3d 1204, 1210-1211 (10th Cir. 2002). In the event that the Court denies Big-D s o o t t nf o s yt s co adt ' m t n o r s r r t h at n n h i a e a i i e Leprino Action continues forward, the currently allotted fourteen days for trial will not be near sufficient time for trial. Rather, at least thirty days will be necessary. In their original Pre-Trial disclosures, Big-D estimated thirty days for this trial, while Leprino estimated twenty days. In its Trial Prep Order dated April 12, 2004, however, the Court provided for a fourteen-day trial. On or about September 1, 2004 Big-D and Leprino filed a stipulated motion to amend the Scheduling Order wherein Big-D requested that the parties be given thirty days for trial and Leprino requested twenty days for trial. On or about November 24, 2004, the Court grantedt pre' t u t m t nt a edt shdl godrhw vr h a i sple o o o m n h ceu n re o ee e ts i a d i e i , with respect to the number of days requested for trial, the Court reaffirmed that trial would be calendared for only fourteen days. Big-D based its request for a thirty day trial on the complex 4

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

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nature of this case, the significant number of exhibits and witnesses and the likelihood of traveling to California to view the Project during the course of trial. As stated below, the events o d cvr hv a i e U f i oe ae fr d MM' adBg ' epc tion that trial will take longer than s y fm s n i s xet -D a fourteen days and, as such, UMM now formally seeks an additional sixteen days for trial. Such an extension is necessary here to prevent manifest injustice to the parties. This trial centers upon a two-year, $300 million construction project involving numerous parties, thirdparty witnesses and a staggering amount of physical evidence. Based upon their experience during discovery, during which approximately one million documents were exchanged and 80 days of deposition taken, the parties anticipate testimony from at least fifty percipient and expert witnesses regarding a myriad of complex issues. More than 1,000 exhibits were marked during deposition, and a substantial number of these documents will likely be offered at trial. For example, the Plaintiff Leprino Foods Company is claiming that the Project experienced more than eight months of construction delays. In response, Big-D and UMM contend that these delays were the result of inadequate and untimely design decisions. In order to address these competing claims, the law requires that the parties offer both percipient and expert evidence to prove and/or disprove the element of causation, such that testimony regarding both the cause and effect of each potential day of delay experienced on the Project must be elicited. In essence-- adi ad i t cm en t t oyr a i t i e r ao o t pre' epcv n n dio o o pt g e i n e r n h n r e t n f h a i r et e tn i sm g d g e t p ti e ts s i written agreements--t wt s s i b ui t cn m oaeu po cdcm n t " h i es wl e s g h ot pr os rj t ou et o r e n e l n e e n e s e buil t Po cfrh j ys t tah fh ds n n/ cnt co i ushtlgd d h rj to t u ,o h ec o t ei ad r osut n s e t aeel " e e e r a e g o r i s a l y impacted the Project schedule can be considered and appropriately evaluated. On a $300 million construction project that spanned more than 3 years from design to completion, those issues are technically complex, multitudinous, and cannot realistically be presented to the jury within the fourteen day period allotted by the Court, especially given the time required for jury selection, opening and closing statements, and jury instruction. Moreover,

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

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through the course of discovery, including the exchange of expert reports, it has become apparent that the parties also disagree as to which of the specific design and construction issues may have impacted the Project schedule. Thus, it cannot even be said that the parties agree on the same set of issues that they intend to present to the jury as the cause of the alleged delays. Denying each of the three parties sufficient opportunity to present their claims to the finder of fact by limiting the total trial time to fourteen days will therefore prejudice the litigants by undermining the ability of the jury to make an informed judgment. Further, a modification will have no negative impact on the conduct of the proceedings. Discovery is already complete and the parties are in the process of preparing the necessary pretrial documents, including final witness lists, exhibit lists, and jury instructions in accordance wt t s ors r i s re .E l g gt ta time will not affect this process. Nor is i h C ut pe o odr n ri h r l h i ' vu s a n e i there any concern that bad faith or inexcusable neglect is at issue. The parties have previously alerted the Court to their belief that fourteen days was insufficient trial time. Given that UMM is submitting this motion as requested by the Court during the March 3, 2006 Pretrial Conference, and in light of the prejudice to the parties that will ensue without an increase in the number of days allotted for trial, the Court has ample cause to modify the trial schedule to permit an additional sixteen days for trial, for a total of thirty days. IV. CONCLUSION For these reasons, UMM respectfully requests that this Court increase the number of days designated for trial from fourteen to thirty.

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

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Dated: March 7, 2006

McKENNA LONG AND ALDRIDGE LLP Respectfully submitted,

s/ Peter J. Ippolito Peter J. Ippolito Laurence R. Phillips MCKENNA LONG & ALDRIDGE LLP 750 B Street, Suite 3300 San Diego, CA 92101 Telephone: (619) 595-5400 Facsimile: (619) 595-5450 Email: [email protected] Email: [email protected] Richard C. Kaufman Lino S. Lipinsky de Orlov John H. Tatlock McKenna Long & Aldridge LLP 1875 Lawrence Street, Suite 200 Denver, CO 80202 Telephone: (303) 634-4000 Facsimile: (303) 634-4400 [email protected] [email protected] [email protected]

Attorneys for Counter-Defendant UNIVERSITY MARELICH MECHANICAL

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

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CERTIFICATE OF SERVICE I hereby certify that on March 7, 2006, I electronically filed the foregoing Third-Party Defendant and Counterclaimant Marelich Mechanical Co., Inc. d/b/a University Marelich Mechanical Motion to Enlarge Time for Trial ­ ­ and Certificate of Compliance with Local Rule 7.1.A with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Michael G. Bohn at [email protected] Bret Matthew Heidermann at [email protected] Francis (Frank) J. Hughes at [email protected] Christopher J. Hersey at [email protected] Patrick Q. Hustead at [email protected] Patrick T. Markham at [email protected] John D. Mereness at [email protected] Daniel J. Nevis at [email protected] C. Michael Montgomery at [email protected] fcharnow@mkadlawcom; [email protected] [email protected]; [email protected] Paul R. Flick at [email protected] N. Kathleen Strickland at [email protected] and I hereby certify that I have mailed or served the document or paper to the following nonCM/ECF participants in the manner indicated by the non-prc at nm : a ipn s a e ti ' Kevin A. Coles Coles Baldwin & Craft, LLC 1261 Post Road P.O. Box 577 Fairfield, CT 06824 s/Richard C. Kaufman Richard C. Kaufman Attorney for Third-Party Defendant Marelich Mechanical Co. MCKENNA LONG & ALDRIDGE LLC 1875 Lawrence Street, Suite 200 Denver, CO 80202 Telephone: (303) 634-4000 Fax: (303) 634-4400 e-mail: [email protected]
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