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-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.

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

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PLAINTIFF' MOTION IN LIMINE NUMBER 7: S TO PRECLUDE EVIDENCE RELATED TO BIG-D' GENERAL CONDITIONS CLAIM S OR, ALTERNATIVELY, TO STRIKE GENERAL CONDITIONS CLAIM 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 evidence of, any claim based upon Big-D' Untimely Proposed Change Order No. 1390 ("PCO S 1390") before the jury, or in the alternative, to strike said claim. CERTIFICATE OF COMPLIANCE WITH D.C.COLO.LCivR 7.1A Pursuant to D.C.COLO.LCivR 7.1A., in an effort to confer prior to filing this motion, undersigned counsel emailed a copy of this motion to counsel for the Big-D Defendants and Third-Party Defendant Marelich Mechanical Co., Inc. and requested their position. As of the filing of this motion, undersigned counsel has not received any responses from counsel for the Big-D Defendants and Third-Party Defendant Marelich Mechanical Co. 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.

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Big-D is expected to seek damages for added and extended general conditions costs. However, that claim is untimely under the express terms of the Contract. Because such damages are precluded and evidence of them would only confuse the jury without being relevant. Big-D must not be allowed to present such evidence to the jury. 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 s a 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. Big-D cannot prevail on the general conditions claim because Big-D failed to timely assert it. Big-D

Big-D is a general contractor that undertook no actual construction work. contracted with subcontractors and suppliers to do the work.

LFC paid Big-D the

subcontractor/supplier costs, plus a fee equal to 4.5% of such direct costs. Additionally, Big-D contracted to be reimbursed its project overhead, which is generally in a contract feature called "general conditions costs." One of Big-D' two claims seeks added and extended general s condition (commonly referred to as GC) costs. Big-D asserts these costs were incurred because

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the Project was larger and Big-D managed more construction than it contracted to manage. However, the Contract requires as a condition precedent to payment of any claim that all claims must be submitted within 7 days of the occurrence causing the claimed expense. See, Plaintiff's Motion in Limine Number 5 for the relevant Contract provisions. It is undisputed that Big-D billed its guaranteed maximum price on the GCs in August of 2002. Big-D demobilized and left the site on December 8, 2002. Big-D submitted PCO 1390 (attached hereto as Exhibit 1) to exceed its general conditions on February 22, 2003. PCO 1390 was well beyond the 7-day requirement since the alleged "condition" must have ceased by the time Big-D left the job. As a matter of law, Big-D cannot prove it met the condition precedent for payment of the added GC expense based on PCO 1390. If the Court permits evidence on PCO 1390, the jury will likely be confused about its force and effect. Since it was untimely, PCO 1390 is irrelevant. The notice requirements in the Contract are quite common in construction contracts and are routinely enforced by the courts. "An obvious purpose of such a provision is to avoid subsequent disagreement. . . Such a provision is a wise, and not an unusual one, in building contracts, and it is held by the authorities to be obligatory upon the parties, and not to be disregarded." Service Steel Erectors Co. v. SCE, Inc., 573 F. Supp. 177, 178 (D.C. Va. 1983), quoting Atlantic & Danville RY v. Delaware Construction Co., 375 E. 13, 16 (1900). "The notice requirement protects important concerns of the [Owner] by permitting early investigation of the validity of a claim when evidence is still available, by allowing the [Owner] to compile records of the contractor' costs, and by allowing the [Owner] to consider alternate s methods of construction to prevent unnecessary expenditures." Byron' Constr. Co. v. State s

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Highway Dept., 448 N.W.2d 630, 633 (N.D. 1989). Cases are legion upholding and strictly enforcing such notice requirements. See, e.g., Perini Corp. v. City of New York, 18 F. Supp. 2d 287 (S.D.N.Y. 1998), aff' 182 F. 3d 901 (2nd Cir. 1999) (granting partial summary judgment in d, favor of owner after contractor failed to comply with contract' notice and documentation s requirements prior to asserting claim for $16 million); Westates Constr. Co. v. City of Cheyenne, 775 P.2d 502, 504 (Wyo. 1989) (affirming summary judgment in favor of owner based upon contractor' forfeiture of claim for additional compensation due to failure to adhere to s contractually-mandated claim procedures). III CONCLUSION Big-D' contractually precluded general conditions (PCO 1390) claims should be s precluded or stricken in limine because Big-D cannot satisfy its burden of establishing that its claims are sanctioned under the Contract and because allowing Big-D to present to the jury evidence of damages that are contractually precluded would only confuse the jury with irrelevant evidence in this complex case. Evidence of the precluded damages should not be allowed, pursuant to Fed. R. of Evid. 401, because it is irrelevant, and pursuant to Fed. R. of Evid. 403, because it is confusing and unfairly prejudicial. The confusion of the jury and prejudice to LFC posed by the evidence of contractually precluded claims can only be avoided by striking the claims or precluding evidence of the claims at the threshold. Accordingly, Defendants and their attorneys and witnesses should be ordered to refrain from making any reference before the jury to claims by Big-D against LFC for damages that Big-D is precluded by contract from recovering because they were untimely submitted, or, in the alternative, such claims by Big-D should be stricken.

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Respectfully submitted this 21st day of February 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]

CERTIFICATE OF SERVICE I hereby certify that on the 21st day of February 2006, I electronically filed the foregoing PLAINTIFF' MOTION IN LIMINE NUMBER 7: TO PRECLUDE EVIDENCE S RELATED TO BIG-D' GENERAL CONDITIONS CLAIM OR, ALTERNATIVELY, S TO STRIKE GENERAL CONDITIONS CLAIM 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 6