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; 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. THIRD PARTY DEFENDANT AND COUNTERCLAIMANT MARELICH MECHANICAL CO., INC. dba UNIVERSITY MARELICH MECHANICAL MOTION IN LIMINE NO. 1 OF 1: TO PRECLUDE AND LIMIT EVIDENCE OF UNRELATED CLAIMS AND/OR LITIGATION

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

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Third Party Defendant and Counterclaimant University Marelich Mechanical Co., Inc. da n e i Ma lh cai l" MM"m vsh C uto a O dr limine to b U i rt r i Mehn a( v sy ec c U ) oe t s orfrn rein i preclude the parties, their witnesses and their attorneys from referring to, or attempting to offer evidence of, any claims and/litigation asserted by or against UMM relating to projects other than the project at issue in this action. CERTIFICATE OF COMPLIANCE WITH D.C.COLO.LCivR 7.1A Pursuant to D.C.COLO.LCivR 7.1A, counsel for UMM participated in a conference call with counsel for Pa tf er o od C m ay " er o)n D f dn ad h d a y ln fL pi F os o pn ( pi "ad e natn T i Pr ii n L n e r t Plaintiff Big-D Construction Corp. ­ afri( i "ia e oto eo eh d pt C lon " g )n n f rtr l t i u i a B -D f sv e s e addressed in this Motion. A resolution was not reached at the conclusion of that abovereferenced conference call, i.e., both Big-D and Leprino object to the relief requested through this Motion. I. INTRODUCTION It is anticipated that either Leprino or Big-D, or both, will attempt to introduce evidence that UMM has on past or current projects (other than the project at issue in this action) engaged in disputes that resulted in negotiating settlements, change orders and/or litigation. The intended purpose of such evidence will be to unfairly depict UMM is a "claims-oriented" contractor, and, by doing so, improperly undermine the validity and merits of the damages claimed by UMM in the instant litigation. The unfair prejudice, confusion and waste of time that would be caused by the introduction of evidence concerning claims involving UMM that are unrelated to this action

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significantly outweighs the complete lack of probative value of such evidence. For these reasons and the reasons stated below, an order should be granted in limine precluding the introduction of such evidence pursuant to Rules 403 and 702 of the Federal Rules of Evidence. II. ARGUMENT 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 consideration of undue delay, waste of time, or needless presentation of cumulative evidence. (See Federal Rules of Evidence, Rules 403 and 702; see also, City of Aurora ex rel. Utility Enterprise v. Colorado 105 P.3d 595, 612 (Colo. 2005).) The number of claims UMM has been involved in on other projects is not probative with r pctt vl i o U e etoh ad y f MM'claims in this action. Nevertheless, it is anticipated that s e it s Leprino and/or Big-D will attempt introduce evidence o U f MM'ur a d lm , which were s ne t c i s le a asserted in unrelated projects, to unfairly depict UMM as a litigious and/or claims-oriented contractor. The absence of any probative value of such evidence requires its exclusion during trial; particularly when weighed against: (1) the unfair prejudice to UMM; (2) the needless lengthening of trial; (3) the likelihood of jury confusion. In order to rebut any negative characterization argued by Leprino or Big-D based on UMM'unrelated claims, UMM would be required to submit evidence justifying each claim, s dispute, litigation, settlement, etc., that is introduced by Leprino or Big-D. For example, UMM will be forced to discuss in detail each claim and/or dispute, including the surrounding facts and the contract provisions in each project relating to such claims. UMM might also be required to

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produce attorney-client information in order to explain the legal reasons for each claim, dispute, settlements, etc. Esn aya ea t" i -ta w u b r u e iodro U s tl, spr e m n r l ol ee i dn refr MM t e il a i i" d qr o address the allegations or inferences based on claims that have to relationship to the instant action. Thus, not only would the introduction of unrelated claims extend the current trial, the jury would be required hear evidence having no relationship to the underlying issues in the instant litigation, which would very likely lead to confusion with respect to the claims at issue in this action versus unrelated claims. As such, for the reasons stated in this Motion, an order should be granted in limine precluding the introduction of such evidence pursuant to Rules 403 and 702 of the Federal Rules of Evidence. Similarly, to the extent either Leprino or Big-D intend to show that U MM'epr s xe t witness, Mark Berry, has been retained by UMM on previous projects both as a project scheduler and retained expert, that inquiry should be limited to Mr. Berry'retention by UMM for work on s other projects. Further inquiry should not be permitted concerning details of his work on other project on behalf of UMM, since to permit this evidence would require the same " i -ta mn rl i i" described above. (See Federal Rules of Evidence, Rule 702; see also State v. Pearson 943 P.2d 1347, 1353 (Utah 1997).) III. CONCLUSION For the reasons stated above, UMM respectfully requests that this Court exclude evidence of claims and/or litigation involving UMM and arising from projects that are unrelated to this action.

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Fr e U ut r MM r pc u y eus t th qet n g f MM'epr Ma B r , h, e et l r et h t usoi o U s fl q s a e i n s xe , r e y t k r concerning his previous retention by UMM, should be limited to: (1) the name of the project; and (2) the capacity in which he was retained, e.g., scheduler, expert, etc.

Dated: March 1, 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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CERTIFICATE OF SERVICE I hereby certify that on March 1, 2006, I electronically filed the foregoing Third-Party D f dnad on r a at r i Mehn aC . n' d /U i rtMa lh e natn C ut c i n Ma lh cai l o Ic ./ a n e i e e lm ec c , s b v sy r i ec Mechanical Motion in Limine No. 1 of 1: To Preclude and Limit Evidence of Unrelated Claims and/or Litigation 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-parc at nm : ti n s a e ip ' Kevin A. Coles (via U.S. Mail) 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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