Free Motion in Limine - District Court of Colorado - Colorado

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

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Filed 03/01/2006

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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. PLAINTIFF' RENEWED AND PARTIALLY UNCONTESTED S MOTION IN LIMINE NUMBER 4: TO PRECLUDE EVIDENCE RELATED TO SETTLEMENT NEGOTIATIONS

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

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Plaintiff Leprino Foods Company ("LFC") moves the Court for an Order in limine to preclude the parties, their witnesses, and their attorneys from referring to, and/or presenting before the jury evidence of settlement communications or negotiations between the parties, including evidence of offers, conduct or statements made in compromise negotiations. CERTIFICATE OF COMPLIANCE WITH D.C.COLO.LCivR 7.1A Pursuant to D.C.COLO.LCivR 7.1A., counsel for the parties participated in a conference call on February 28, 2006. Counsel for Big-D Defendants has no objection to the relief requested herein, except as it may relate to an August 15, 2003 letter from Robert Delong. Leprino does not agree to that exception. Counsel for Third-Party Defendant Marelich Mechanical Co., Inc. objects to the relief requested herein. I INTRODUCTION This action arises from delays in the construction of a cheese manufacturing and dairy storage facility in Lemoore, California ("Project"). LFC, as owner, entered into a general contract on September 1, 2000, with Defendant Big-D Construction Corp.-California, a subsidiary/affiliate of other Big-D entities ("Big-D") to construct the Project ("Contract"). Third-Party Defendant Marelich Mechanical Co., Inc. d/b/a University Marelich Mechanical ("UMM") was a mechanical subcontractor to Big-D on the Project. Pursuant to Fed. R. Evid. 408, the Court should preclude all evidence of settlement negotiations and conduct therein.

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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 Prac. Guide: Federal Civil Trials & Evidence (TRG), § 4.322. A district court' grant of a s motion in limine is ordinarily reviewed for an abuse of discretion. U.S. v. Gutierrez-Gonzalez, 184 F.3d 1160, 1164 (10th Cir. 1999). The timing of motions in limine "should be left to the discretion of the trial court with a reminder that advance planning helps both parties and the court." U.S. v. Cook, 608 F.2d 1175, 1186 (9th Cir. 1979), overruled on other grounds, Luce v. U.S., 469 U.S. 38 (1984). B. All evidence of offers and conduct in settlement negotiations is inadmissible.

Prior to and during the course of this litigation, LFC, Big-D and UMM have had multiple discussions in an effort to explore prospects of resolving this controversy short of trial. Those settlement discussions included multiple telephone conferences and written correspondence as well as two private mediation conferences. One mediation conference took place in California, the other in Denver. Fed. R. Evid. 408 specifically provides that all evidence of offers of compromise and other conduct in settlement negotiations is inadmissible at trial: Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible.

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

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III CONCLUSION Allowing any reference at trial to settlement negotiations, or to offers, statements or conduct made in those settlement negotiations, would be improper. Accordingly, the parties and their attorneys and witnesses should be ordered to refrain from making any reference before the jury to communications, offers and conduct in settlement negotiations. Respectfully submitted this 1st 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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Case 1:03-cv-02669-MSK-PAC

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CERTIFICATE OF SERVICE I hereby certify that on the 1st day of March 2006, I electronically filed the foregoing PLAINTIFF' RENEWED AND PARTIALLY UNCONTESTED MOTION IN LIMINE S NUMBER 4: TO PRECLUDE EVIDENCE RELATED TO SETTLEMENT NEGOTIATIONS 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] Daniel James Nevis of [email protected] Laurence R. Phillips of [email protected] C. Michael Montgomery of [email protected] N. Kathleen Strickland of [email protected]

/s/ Cori Atteberry Cori Atteberry, Legal Assistant

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