Free Reply - 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; FRICK COMPANY, and Roes 20 through 80, inclusive, Counterdefendant/Third Party Defendants. REPLY OF PLAINTIFF TO DEFENDANTS'RESPONSE TO PLAINTIFF' S OBJECTION TO MAGISTRATE JUDGE' NOVEMBER 1, 2005 ORDER S (Docket No. 158)

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Plaintiff Leprino Foods Company (" Leprino" or " Plaintiff" through its counsel, ), respectfully submits the following reply to " Defendants'Response to Plaintiff' Objection s to Magistrate Judge' November 1, 2005 Order" (" s Response" ). 1. Leprino timely filed its Objection to Magistrate Judge' November 1, 2005 s

Order (" Objection" in which Leprino conclusively showed that Magistrate Judge ), Patricia A. Coan' " s Courtroom Minutes / Minute Order" (doc. 152) (the " November 1, 2005 Minute Order" entered on November 1, 2005, was clearly erroneous and contrary ) to law. Defendants' Response does not even respond to the substance of Leprino' s Objection, other than to reference their previous response to Leprino' Second Motion s to Compel, which Leprino previously addressed. Instead, Defendants make procedural arguments that are frivolous and completely without merit. As explained below, Leprino timely filed its Objection on November 16, 2005. 2. As the Court is aware, Fed. R. Civ. P. 72(a) controls objections to written

orders by Magistrate Judges on nondispositive issues and states, in part, as follows: Within 10 days after being served with a copy of the magistrate judge' order, a party may serve and file s objections to the order . . . . The district judge to whom the case is assigned shall consider such objections and shall modify or set aside any portion of the magistrate judge' s order found to be clearly erroneous or contrary to law. Fed. R. Civ. P. 72(a) (emphasis added). 3. However, when computing any period of time prescribed or allowed by the

Federal Rules of Civil Procedure, one must turn to Fed. R. Civ. P. 6(a), which states in pertinent part as follows:

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[T]he day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday . . . . When the period of time prescribed or allowed is less than 11 days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation. As used in this rule . . . " legal holiday" includes . . . Veterans Day . . . . Fed. R. Civ. P. 6(a) (emphasis added). 4. The November 1, 2005 Minute Order was served on the parties by

electronic means on November 1, 2005. Thus, by operation of Fed. R. Civ. P. 6(a), the first day for computing the time for filing Leprino' Objection was November 2, 2005. s However, Saturday November 5th, Sunday November 6th, Veterans Day Friday November 11th, Saturday November 12th, and Sunday November 13th were excluded from the computation pursuant to Fed. R. Civ. P. 6(a). Thus, the tenth day after the November 1, 2005 Minute Order was served was November 16, 2005. Plaintiff' filing of its Objection on November 16, 2005, was timely. s 5. In actuality, Leprino filed its Objection five days early, since the deadline Clearly,

for filing Plaintiff' Objection was not until Monday, November 21, 2005. Not only did s Defendants' Response fail to consider Fed. R. Civ. P. 6(a), but it also failed to apply Fed. R. Civ. P. 6(e), which states as follows: Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon the party and the notice or paper is served upon the party under Rule 5(b)(2)(B), (C), or (D), 3 days shall be added to the prescribed period.

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Fed. R. Civ. P. 6(e) (emphasis added).

Service under Fed. R. Civ. P. 5(b)(2)(D)

includes service by any electronic means, including service through the Court' s transmission facilities. Since the November 1, 2005 Minute Order was served through the Court' electronic filing system and the prescribed period in Rule 72(a) is based s upon the service of the November 1, 2005 Minute Order, Leprino had an additional three days after November 16, 2005, to file its Objection. Adding three days to

November 16, 2005, would have made November 19, 2005, the due date. However, since November 19, 2005, was a Saturday, the deadline actually moved to Monday, November 21, 2005, by operation of Fed. R. Civ. P. 6(a). Therefore, Leprino' s

Objection, filed on November 16, 2005, was filed five days earlier than was required. 6. The calendar below illustrates the computation of the deadline for the filing

of Leprino' Objection based on the foregoing analysis. Only the bold, italicized and s underlined dates in the calendar are properly included in the deadline computation. NOVEMBER 2005 T W T 1
Order Served

S

M

F 4 11
Veterans Day

S 5 12 19 26

2 9 16
Objection Filed

3 10 17 24

6 13 20 27

7 14 21
Objection Due Date

8 15 22 29

18 25

23 30

28

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7.

Defendants' Response also incorrectly contends that Leprino' Objection s

did not comply with D.C.COLO.LCivR 7.1A and MSK Civ. Practice Standards V.B.1 and 3. Again, Defendants' contention is completely without merit. By their express language, D.C.COLO.LCivR 7.1A and MSK Civ. Practice Standards V.B.1 and 3 apply to motions. Leprino did not file a motion on November 16, 2005; Leprino filed an objection pursuant to Fed. R. Civ. P. 72(a). Thus, D.C.COLO.LCivR 7.1A and MSK Civ. Practice Standards V.B.1 and 3 are inapplicable to Leprino' Objection. s 8. Defendants'Response is so blatantly lacking in legal foundation that it can

only be characterized as frivolous, groundless and vexatious. As such, the Court must properly award Leprino its attorneys'fees and costs incurred in filing this reply.

WHEREFORE, Leprino respectfully requests the following of this Court: (i) reverse the November 1, 2005 Minute Order of Magistrate Judge Patricia A. Coan, which denied Plaintiff' Second Motion to Compel and denied Plaintiff' request for s s sanctions; (ii) order Big-D California, Big-D Construction, Big-D Corporation and Big-D Capital Corp. to produce all of the types, nature and extent of the discovery sought through the Second Motion to Compel and that are detailed in Leprino' Objection; and s (iii) award Plaintiff its attorneys' fees and costs incurred in prosecuting its Second Motion to Compel, the objection and this reply.

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Respectfully submitted this 6th day of December 2005. LEPRINO FOODS COMPANY

By:

s/ Bret M. Heidemann One of Its Attorneys 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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CERTIFICATE OF SERVICE I hereby certify that on the 6th day of December 2005, I electronically filed the foregoing REPLY OF PLAINTIFF TO DEFENDANTS' RESPONSE TO PLAINTIFF' S OBJECTION TO MAGISTRATE JUDGE' NOVEMBER 1, 2005 ORDER (Docket No. S 158) with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following email addresses: Francis (Frank) J. Hughes at [email protected] Patrick Quinn Hustead at [email protected] Peter J. Ippolito at [email protected] Richard Carl Kaufman [email protected] John David Mereness at [email protected] C. Michael Montgomery at [email protected] Daniel James Nevis at [email protected] Laurence R. Phillips at [email protected] N. Kathleen Strickland at [email protected]

/s/ Jing Yeng Lim Jing Yeng Lim, Paralegal

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