Free Motion in Limine - 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, et al. Defendants/Counterclaimants, ________________________________________________________________________ BIG-D CONSTRUCTION CORP. - CALIFORNIA, a Utah corporation; BIG-D CONSTRUCTION CORP., a Utah corporation; and Does 1 - 1 00, 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, et al. Counterdefendant/Third Party Defendants.

DEFENDANTS BIG-D CONSTRUCTION CORP.--CALIFORNIA, BIG-D CONSTRUCTION, BIG-D CORP., AND BIG-D CAPITAL CORP.'S MOTION IN LIMINE NO. 4 TO PRECLUDE REFERENCE TO THE LOCATION OF THE PARTIES' PRINCIPAL PLACE OF BUSINESS AND/OR TIES TO THE COMMUNITY -ANDCERTIFICATE OF COMPLIANCE WITH LOCAL RULE 7.1A

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Defendants Big-D Construction Corp ­ California, Big-D Construction Corp, BigD Capital Corp. and Big-D Corp. (collectively referred to herein as "Big-D") respectfully move the Court for an Order in limine to preclude the parties, their witnesses and their attorneys from referring to and/or presenting evidence of each of the parties' principal place of business, and orgin of business, including the state in which it is incorporated in. This motion is supported by the Declaration of Frank J. Hughes, attached herein. CERTIFICATE OF COMPLIANCE WITH D.C.COLO.LCivR 7.1A Pursuant to D.C.COLO.LCivR 7.1A, the parties have met and conferred with respect to the contents of this Motion In Limine and, after having met and conferred, it is Big-D's understanding that Plaintiff Leprino Foods Company ("Leprino") and ThirdParty Defendant Marelich Mechanical Co. ("UMM") object to the relief requested herein. I. INTRODUCTION This action arises from a series of disputes stemming from the construction of a cheese processing facility located in Lemoore, California (the "Project.") Leprino, as owner, entered into a general contract with Big-D to construct the Project. In turn, Big-D contracted with numerous subcontractors, including UMM, to perform various works on the Project. Leprino contends that Big-D and its subcontractors delayed completion of the Project and seeks damages which it claims to have suffered as a result of the Project delays. Big-D and UMM deny that they are responsible for causing the Project delays. In addition, Big-D seeks its remaining contract balance and its additional and extended

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general conditions, while UMM seeks additional compensation for its work on the Project. The basis for this motion in limine stems from a perceived attempt by Leprino to gain favor with the jury based upon the fact that it is a Colorado-based company, located in Denver and the other two parties are both based and incorporated out of the State of Colorado. For example, in its Motion for Summary Adjudication, Leprino makes notable reference to the fact that it is based in Denver, Colorado: "Plaintiff Leprino Foods Company is a Colorado corporation with its origins and headquarters in the same Colorado neighborhood in Denver, at 1830 W.38th Street." Leprino's Amended Memorandum Brief In Support of Motion for Summary Adjudication, p. 2. (Docket No. 183). Although the parties' respective principal place of business and/or origin of business (including where they are incorporated) are not relevant to any issue in dispute, Big-D believes that Leprino's emphasis on its hometown origins and long-time operations in Denver may improperly invoke sentimental or sympathetic emotions from a jury comprised of Denver-based residents. II. ARGUMENT A. The Court has the authority to issue pre-trial orders barring evidence.

Although not expressly authorized by the Federal Rules of Civil Procedure or the Federal Rules of Evidence, "motions in limine are well recognized in practice and by case law." Rutter Group Practice Guide: Federal Civil Trials & Evidence (TRG), section 4.322. As with all rulings on evidence, a ruling on a motion in limine is given wide

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deference and will typically only be reviewed for an abuse of discretion. Den Hartog v. Wasatch Academy, (10th Cir. 1997) 129 F.3d 1076, 1092. B. Evidence of the parties' principal place of business or hometown origins is irrelevant to the issues at trial.

Pursuant to Federal Rule of Evidence, Rule 401, evidence is relevant only if it has a "tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." A trial court has broad discretion to determine whether evidence is relevant or not, and its decision will not be reversed absent a clear showing of abuse of that discretion. Marshall v. El Paso Natural Gas Co., (10th Cir 1989) 874 F.2d 1373, 1380. For purposes of this case, the location of the parties' principal place of business, business origin (including the state in which the party is incorporated in) and/or ties to a particular community is wholly irrelevant to the issues the parties anticipate presenting to the jury at trial. The trial shall center upon the construction of a cheese processing facility located in Lemoore, California. The main issues are: (1) the cause(s) of delay to the completion of the Project; (2) the terms and obligations under the contracts between Big-D and Leprino and Big-D and UMM, respectively; and (3) the alleged damages that each of the parties claims to have suffered as a result of either the other parties' performance on the Project or the Project delays. Of all the facts the jury will be asked to consider with respect to determining the aforementioned issues, the location of where the parties conduct their business is not a substantial, nor even a remotely, important fact. Indeed, the only fact that this evidence illustrates is that Big-D and UMM are out-of-state parties whereas Leprino is a hometown company with well-established ties to the Denver community. In essence,

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Leprino desires to use this information to gain favor with the jury in a manner which, as explained below, is highly prejudicial to both Big-D and UMM. In the event this Court determines that the parties' principal place of business or origin of business is relevant to any of the issues anticipated to be raised at trial, Big-D is prepared to stipulate that the parties' principal place of business and/or state of incorporation can be read once to the jury. C. The prejudice of references to the parties' principal place of business and/or origin of business would substantially outweigh any probative value.

If this Court determines that evidence regarding the parties' respective principal place of business, business origins (including the state in which it is incorporated) and/or ties to a particular community are at all relevant to the issue of delay, it must also evaluate whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice to Big-D under Federal Rule of Evidence, R. 403: "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Fed. R. Evid. 403.

"Unfair prejudice" within the context of Fed. R. Evid. 403 is defined as "an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one." Fed. R. Evid. 403, Advisory Committee Notes, 1972 Proposed Rules. Exclusion of evidence based upon its prejudicial effect is a matter determined by the trial court and will only reversed upon a clear showing of abuse of discretion. Marshall v. El Paso Natural Gas Co., (10th Cir 1989) 874 F.2d 1373, 1380.

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Because evidence concerning the parties' principal place of business, business origins (including the state in which a party is incorporated in) and ties to a particular community are wholly irrelevant to the facts of this case, a balancing analysis under Fed. R. Evid. 403 need not necessarily be applied. However, even assuming that this evidence presents an iota of probative value, the fact remains that its value is substantially outweighed by the danger of unfair prejudice to Big-D and UMM. As previously explained, Leprino desires to use this information to make clear to the jury that it is one of them. If allowed to present evidence of the fact that Big-D and UMM are out-of-state parties and also of the fact that it serves as a long-time employer and community service provider to the Denver, Colorado region, Leprino will attempt to invoke an improper emotional response from the jury. In particular, Leprino will use this evidence to gain favor and sympathy from a Denver-based jury to side with it against outof-towners. While Big-D certainly has faith that the jury will be otherwise impartial, bombardment by Leprino of evidence pertaining to its long-established presence in the city and state may mislead the jury into placing an unnecessary emphasis on where the parties typically do business. It is important to note that this Court has recognized the importance of avoiding local prejudices and has acknowledged that, despite the fact that the federal judicial system lessens the threat of local prejudice, federal and state juries are selected from the same pool of residents: "Plaintiffs argue, however, that the purpose of diversity jurisdiction is to provide a forum free of local prejudices and sectional views. Since judges and juries are selected from the same geographic section and required to apply the same law, it is difficult to see how any difference would occur between the federal and

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state courts." Zukowski v. Howard, Needles, Tammen & Bergendoff (Dist. Colo, 1987) 15 F.R.D. 53, 56. Because the potential exists for a jury to favor local parties over outof-state parties, Big-D and UMM would certainly be prejudiced if Leprino was allowed to play up its local ties to the jury.

III CONCLUSION Reference to the parties' principal place of business, business origins and ties to a particular community is not only irrelevant to the parties' dispute, but would elicit an improper and unfounded emotional response from the jury to the prejudice of Big-D. Accordingly the parties should be ordered to refrain from making any reference to the locations of the parties' principal place of business or ties to a particular community. Respectfully submitted this 1st day of March, 2006

BIG-D CONSTRUCTION CORP ­ CALIFORNIA By: /s/Daniel J. Nevis Daniel J. Nevis Miller Morton Caillat & Nevis, LLP 25 Metro Drive, 7th Floor San Jose, CA 95110 Telephone: (408) 292-1765 Facsimile: (408) 436-8272 [email protected]

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on March 1, 2006, I electronically filed the foregoing named document: DEFENDANTS BIG-D CONSTRUCTION CORP.-CALIFORNIA, BIG-D CONSTRUCTION, BIG-D CORP., AND BIG-D CAPITAL CORP.'S MOTION IN LIMINE NO. 4 TO PRECLUDE REFERENCE TO THE LOCATION OF THE PARTIES' PRINCIPAL PLACE OF BUSINESS AND/OR TIES TO THE COMMUNITY -ANDCERTIFICATE OF COMPLIANCE WITH LOCAL RULE 7.1A with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Michael Gerard Bohn [email protected] [email protected] Bret Matthew Heidemann [email protected] [email protected] Francis (Frank) J. Hughes [email protected] [email protected] Patrick Quinn Hustead [email protected] Peter J. Ippolito [email protected] Richard Carl Kaufman [email protected] [email protected] Patrick T. Markham [email protected] [email protected] John David Mereness [email protected] C. Michael Montgomery [email protected] [email protected] [email protected] Daniel James Nevis [email protected] [email protected] N. Kathleen Strickland [email protected] [email protected] Laurence R. Phillips [email protected] [email protected]

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And, I hereby certify that I have mailed or served the document or paper to the following non CM/ECF participants in the manner (mail, hand-delivery, etc.) indicated by the nonparticipant's name: s/ Kathleen Marie Dolce Kathleen Marie Dolce
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