Free Motion for Leave to File Excess Pages - 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 Honorable Marcia S. Krieger 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; 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. dbs UNIVERSITY MARELICH MECHANICAL, a California corporation, Third Party Defendant.

MARELICH MECHANICAL CO., INC. dbs 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, FRICK COMPANY, and Roes 20 through 80, inclusive, Counterdefendant/Third Party Defendants.

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DEFENDANTS' UNOPPOSED MOTION FOR RELIEF FROM JUDGE KRIEGER'S PRACTICE STANDARDS FOR RULE 56 MOTION PAGE LIMITATIONS AND FOR CLARIFICATION AS TO THE DEADLINE FOR FILING ITS RESPONSE -ANDCERTIFICATE OF COMPLIANCE WITH DC COLO.L.Civ.R 7.1(a)

GENERAL STATEMENT Defendants Big-D Construction Corp ­ California and Big-D Construction Corp (collectively referred to herein as "BIG-D") respectfully submit this Motion Seeking Additional Pages to Respond to Plaintiff's Motion for Summary Adjudication. Although Big D is reluctant to request this modification to local rules, there are three unique factors in the present situation which require the motion: (1) By using the pages of its Motion as well as its Brief to argue the merits of its motion, LFC has effectively obtained a de facto page extension; (2) although it has utilized more than thirty pages of argument, LFC asserts that Big D has the burden of proof on almost all of the issues raised in its motion, thus necessiting at least as many pages as required to LFC's argument; and (3) the facts of the case are extraordinarily complicated. The motion is based on these factors and on the prejudice BIG-D shall suffer in the event it is prevented additional pages to respond to Plaintiff's motion. Additionally, BIG-D seeks confirmatin as to the deadline by when it has to respond to the Motion for Summary Adjudication, based upon the fact that Leprino filed an Amended Motion for Summary Adjudication on January 10, 2006, following termination of its original Motion for Summary Adjudication.

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BRIEF STATEMENT OF FACTS Pursuant to this Court's scheduling order, the deadline for filing dispositive motions in this matter was January 6, 2006. On January 6, 2006, Plaintiff Leprino Foods Company ("Leprino") filed a Motion for Summary Adjudication. The merits of that Motion, and BIG-D'S opposition thereto, will be thoroughly discussed in BIG-D'S substantive Response. However, for the purposes of this Motion, BIG-D offers the following facts: Leprino's Motion for Summary Adjudication consists of a fifteen (15) page document entitled "Motion for Summary Adjudication", as well as a separate twenty-one (21) page document entitled "Memorandum Brief in Support of Plaintiff's Motion for Summary Adjudication" (hereinafter the "Memorandum Brief"). Leprino's entire 36-page briefing consists of eleven (11) purportedly "Undisputed Facts", and no less than twenty-six (26) other references to the record, pertaining to one of seven (7) separate causes of action for which Leprino seeks Summary Adjudication. Specifically, Leprino seeks Summary Adjudication as to: (1) Leprino's Breach of Contract action; (2) BIG-D'S claim for General Conditions; (3) BIG-D'S mechanics' lien foreclosure action and action on the mechanics' lien release bond; (4) BIG-D'S common law claims for Quantum Meruit and Indebitatus Assumpsit; (5) BIG-D'S claim for declaratory relief; (6) BIG-D'S claim for statutory penalties; and (7) those aspects of BIG-D'S affirmative claims that attempt to "pass-through" the unpaid costs of its subcontractors, including those of Third Party Defendant University Marelich Mechanical.

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Leprino argues that of the 7 causes of action for which it seeks Summary Adjudication, it only has the burden of proving the elements of its breach of contract claim. With respect to the remaining 6 causes of action, Leprino contends that BIG-D bears the burden of proving each of their elements. On January 10, 2006 this Court issued a docket entry stating that Leprino's Motion for Summary Adjudication was terminated for failure to comply with the Colorado District Court's electronic filing procedures. On that same day, Leprino filed an Amended Motion for Summary Adjudication and an Amended Memorandum Brief in Support thereof. Counsel for BIG-D conferred with counsel for Leprino regarding BIG-D'S intent to file the instant motion. Leprino's counsel articulated that Leprino had no objection to BIG-D filing a response brief in excess of the Court's 20-page limitation but no longer than 30 pages. ARGUMENT A. BIG-D Requests Relief for Additional Pages to Respond to Leprino's Motion for Summary Adjudication and Accompanying Memorandum Brief.

BIG-D seeks the right to file a Response that exceeds the 20-page limitation set forth by the Court's local practice standards. The basis for BIG-D'S request is three-fold: First, in light of the fact that Leprino has already filed a Memorandum Brief that exceeds the page limitation set forth by this Court and, further, has no objection to BIG-D filing a response brief in excess of the page limitations set forth in the local practice standards, BIG-D would suffer prejudice were it not granted relief from the 20-page limitation. Second, LFC asserts that Big D has the burden of proof on the issues raised in LFC's

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motion. Third the issues involved in this case, and Leprino's Motion for Summary Adjudication, are numerous and complex and, as such, BIG-D anticipates having to exceed the 20-page limit set forth by this Court in order to properly address each of the factual and legal arguments raised in Leprino's Motion. Second, 1. The Number and Complexity of Issues In This Action Merit the Use of Additional Pages With Which to Respond.

Federal courts have recognized that where a Motion for Summary Judgment contains particularly complex issues of fact or law, a basis exists for relief from briefing page limitations. See Forsythe v. Board of Education, (1997) 956 F.Supp. 927, 929 fn. 3. Courts are more inclined to grant relief if the party seeking additional pages has attempted to "fit' its position within the page-limitations but cannot due to the number and complexity of issues of fact or law. In the present case, the number of issues at the heart of the parties' dispute, in addition to the complexity of many of these issues, merits relief from this Court's 20-page limitation for a brief in response to a Motion for Summary Adjudication. Despite Leprino's insistence that its dispute with BIG-D is a simple and straightforward breach of contract action, the complexity of this matter is readily apparent from a brief review of the facts of the case and this litigation. This matter arises from the construction of a $240 million cheese processing facility, located in Lemoore, California (the "Project"). Leprino, as owner, contracted with BIG-D, as general contractor, to construct the Project's building shell. In turn, BIG-D contracted with numerous subcontractors, including Third-Party Defendant Marelich Mechanical ("UMM"), to perform various work on the Project. In addition to overseeing

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construction of the Project, Leprino was also, at this time, building a wastewater pretreatment facility that would serve to treat the Project's liquid waste. Neither BIG-D nor any of its subcontractors performed work on the wastewater pre-treatment facility. Leprino was also working independently to design and install the Project's cheese processing and packaging equipment. In essence, the scope, cost and duration of the Project far exceeded what the parties had initially anticipated. The parties to this litigation all claim damage resulting from their participation in the construction of the Project. BIG-D has alleged, to date, over $10 million in damages stemming from its unpaid contract balance and the costs it incurred to perform additional, and unforeseen, work on the Project. UMM has claimed, to date, approximately $20 million in damages stemming from delays and additional work it alleges to have incurred during its performance on the Project. And finally, Leprino has asserted a $27 million claim for damages, claiming that BIG-D and its subcontractors delayed the completion of the project and, thus, Leprino's ability to make and sell cheese. The parties' competing claims have led to over two years of arduous discovery. As Leprino mentioned in its brief, to date the parties have collectively taken nearly 50 days of percipient witness depositions, produced nearly 1 million documents and identified nearly 1,000 deposition exhibits. And the parties have yet to disclose their respective expert reports or conduct expert depositions. Despite Leprino's insistence that this is a simple breach of contract dispute, the vast majority of discovery has focused upon the cause(s) of Project delays. As a practical matter, the discovery process has led

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each party to attempt to "reconstruct" a two-year long construction project involving the work of no fewer than 5 design firms and 30 contractors and subcontractors. Leprino's own briefs make obvious the complexity of this litigation. It has taken Leprino 36 pages to articulate an argument in support of a summary adjudication of what it calls a straightforward breach of contract dispute. And, as stated above, Leprino contends that it only has the burden of establishing 1 of the 7 causes of action upon which it seeks summary adjudication. With respect to the remaining 6 causes of action, Leprino punts, contending that it is BIG-D'S burden to establish that they are not subject to disposition. Thus, it has taken Leprino 36 pages to set forth the elements of the one cause of action it concedes it must prove and to state that, with respect to the other 6 causes of action, there are no genuine facts in dispute. In analyzing its response, BIG-D has determined that it will take more than 20 pages to address all 7 causes of action that are the subject of the motion. Without using the present motion to address the substance of Leprino's motion, it is worth noting that with respect to just Leprino's breach of contract claim (and the 5 "undisputed" facts that it provides in support thereof), BIG-D foresees having to address an extensive amount of information pertaining not only to the parties' agreement and circumstances surrounding its execution, but also numerous details regarding the Project. Leprino's argument, as set forth in Undisputed Facts 1 through 5, seems to be that BIG-D "breached" the "agreement" by not "substantially completing" the "Project" or the "Work" by February 2002, that the February 2002 date was never "extended" or "excused" and that "substantial completion" occurred when Big-D removed its "job trailer from the site." Leprino's Motion for Summary Adjudication, pp. 4-5.

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The facts that will be advanced by Big D in response to the first five alleged "undisputed facts", and addressing only one of the five or six elements of "relief" sought by LFC will result in BIG-D setting forth facts for each of the following response: : 1. 2. Leprino extended the Project's completion date by written change orders and paid contractors additional monies to meet the extended completion dates. Even if Leprino had not extended the Project's completion date, Leprino caused the delay to the Project, entitling BIG-D to extensions of time. a. On numerous occasions, Leprino acknowledged that its own design difficulties was a principle cause of delay. b. Leprino issued approximately 600 change orders on the project, and over 300 of these were issued after BIG-D was supposedly to have been done with Project. Big-D complied with the terms of the contract, which incidentally make no mention of the "PCOs" and "AFEs" which are featured to prominently in Leprino's moving papers. a. The contract has no requirement that BIG-D provide written notification within a certain number of days after an event of delay occurs. b. The contract calls for written notification only after the delay had ceased to be effective. Leprino's Project management team demanded that BIG-D and its subcontractors continue to "drive" the Project to recapture lost time, meaning that the effects of the delay were not known until the Project had been completed. c. BIG-D provided numerous written notifications of the delay and requests for extensions of time. Notification was given in the innumerable schedules shown to Leprino, the meeting minutes, emails, Leprino's internal communications and change orders that were signed by Leprino and which extended the Project's completion date. Even if Big-D had not complied with the contractual requirements, it is excused from complying by reason of waiver and estoppel. a. Leprino, orally and in writing, repeatedly confirmed that the dates on the contract were to be kept in place only as a means of driving the subcontractors to finish their work as quickly as possible. b. Leprino specifically advised BIG-D in writing to "finish strong" and that issues of additional payment would be resolved at the end of the Project. The procedural provisions of the contract are ineffective because the conduct of Leprino during the Project constituted an abandonment of the contract under Colorado and California law. Leprino could not make cheese until after its processing and packaging equipment became operational and the wastewater pre-treatment plant was

3.

4.

5. 6.

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completed. These aspects of the Project were run independently of BIG-D and, under the rules of concurrent delay, Leprino cannot escape their own culpability for the Project delays. This outline does not even begn to address the issues on which LFC claims Big D has the burden of proof on the remaining 6 causes of action that are the subject of Leprino's motion. Indeed, an analysis of Leprino's request for summary adjudication as to BIGD'S claims for declaratory relief and the "pass through" of its subcontractors' claims, have produced similar outlines, each with considerable factual and legal references. . 2. In Light of the Fact that Leprino Has Already Exceeded This Court's Page-Limitation In Its Own Briefing And, Further, Has No Objection To BIG-D Using Additional Pages In Its Response, BIG-D Would Be Prejudiced In the Event It Is Required To Limit Its Response to 20 Pages.

Pursuant to Judge Krieger's Practice Standards on Rule 56 (Summary Adjudication) procedure, absent prior leave of court, all motions, opening briefs and response briefs shall not exceed twenty (20) pages in length. MSK, CIV. Practice Standards, V.H.3(a). Despite the clear guidelines set forth by the Practice Standards, Leprino's Memorandum Brief in Support of Summary Adjudication exceeds the 20-page limit. Moreover, Leprino failed to request relief from the Court, as it was required to, before filing a Memorandum that exceeds the required page limitations. BIG-D is not requesting herein that Leprino's Motion be stricken for failure to comply with the Court's clearly-defined rules pertaining to page limitations. Rather, BIG-D merely seeks equal footing. In all, Leprino has presented a 36-page argument in support of its Motion for Summary Adjudication. As explained above, Leprino's Motion and Memorandum Brief in support thereof, contain numerous factual allegations that Leprino relies upon as a basis for but one of the seven (7) causes of action it seeks to

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have adjudicated. It is now BIG-D'S burden to not only address those facts articulated in Leprino's Motion, but to also present those facts in support of its counterclaim. From a practical approach, the onus is on BIG-D to set forth all of the facts and legal arguments that Leprino took 36 pages to basically say do not exist. Counsel for BIG-D met and conferred with counsel for Leprino regarding BIGD'S intent to file the present motion. Counsel for Leprino articulated that it had no objection to BIG-D using 30 pages to respond to the motion. Thus, Leprino will not be prejudiced should this Court permit BIG-D to use additional pages. In contrast, in the event this motion is denied, BIG-D will not have sufficient space to respond to a motion that seeks to not only determine BIG-D'S liability on a $27 million breach of contract claim but also to eliminate the majority of BIG-D'S affirmative claims. Because of the number and complexity of issues that BIG-D must address in its response and, further, in light of the fact that Leprino has no objection, BIG-D respectfully requests that it be allowed thirty (30) pages to respond to Leprino's Motion for Summary Adjudication. B. BIG-D Seeks Confimration as to the Deadline By Which Time It Has to File Its Brief in Response to Leprino's Motion for Summary Adjudication.

In addition to seeking relief from the Court's page limitations, BIG-D also seeks confimration as to the date when its response brief is due, in light of the fact that Leprino's original Motion for Summary Adjudication was terminated and an amended Motion was re-filed on January 10, 2006. The Federal Rules of Civil Procedure specifically require that written motions must be signed by a party or its attorney of record or risk being stricken. Federal Rule of Civil Procedure, Rule 11(a) states, in pertinent part:

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"Every pleading, written motion, and other paper shall be signed by at least one attorney of record ... An unsigned paper shall be stricken unless omission of the signature is corrected promptly after being called to the attention of the attorney or party." FRCP, R. 11(a). As previously discussed, pursuant to this Court's Scheduling Order, the dispositive motion deadline in this case was January 6, 2006. Leprino initially filed its Motion for Summary Adjudication on January 6th, however the Court terminated the motion on January 10, 2006 for failure to comply with Colorado District Court electronic filing procedures. See Docket Entry No. 181. Evidently, Leprino failed to sign its motion and the accompanying Memorandum Brief in compliance with the ECF guidelines for electronic signatures, which caused the Court to strike the motion for failure to comply with either the Court's electronic filing procedures, FRCP Rule 11, or both. On January 10th, and after the Court had stricken its original motion, Leprino filed an amended Motion for Summary Adjudication that presumably complied with the ECF electronic signature guidelines. Pursuant to Colorado District Court local rules a party's Response brief shall be filed within 20 days of the filing of the Motion for Summary Adjudication. D.C.COLO.L.Civ.R. 56.1(A). Leprino's original brief was stricken from the record and BIG-D seeks clarification as to what date its response brief is due to be filed. If the Court determines that the time for when BIG-D'S response is due begins to run on the date Leprino filed its original motion (January 6, 2006) then BIG-D has until January 26, 2006 to file its response. However, if the Court decides that the time begins to run from the date Leprino filed its amended motion (January 10, 2006) then BIG-D would have until January 30, 2006 to respond. While FRCP Rule 11 is clear that a motion filed with an

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improper signature should be stricken unless timely corrected, BIG-D merely seeks clarification as to whether the Court's act of striking Leprino's original Motion for Summary Adjudication caused BIG-D'S deadline to change from January 26th to January 30th. CONCLUSION For the aforementioned reasons, BIG-D respectfully requests relief from the Court's 20-page limitation for briefs pertaining to Motions for Summary Adjudication. Specifically, BIG-D requests that it be allowed to file up to a 30-page brief in response to Leprino's motion. Additionally, BIG-D requests confirmation that its response is due, as a result of Leprino filing an amended Motion for Summary Adjudication on January 10, 2006.

Respectfully submitted this 14th day of January, 2006 s/Daniel Nevis _______________________________________ Daniel J. Nevis Miller Morton Caillat & Nevis, LLP 25 Metro Drive, 7th Floor San Jose, CA 95110 Phone: (408) 292-1765 Facsimile: (408) 436-8272 Attorney for Big-D Construction Corp ­ California and Big-D Construction Corp.