Free Stipulation - District Court of Colorado - Colorado

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

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Filed 12/02/2005

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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; and 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. STIPULATED MOTION TO VACATE DECEMBER 9, 2005 SETTLEMENT CONFERENCE TO PURSUE FURTHER MEDIATION PURSUANT TO 28 U.S.C. section 652 and D.C.COLO.LCivR 16.6

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Plaintiff Leprino Foods Company, Defendants Big-D Construction Corp., Big-D Construction Corp-California, Big-D Corporation and Big-D Capital Corp., and Third-Party Defendant Marelich Mechanical Co., Inc. dba University Marelich Mechanical (hereinafter collectively referred to as the "Parties"), each through their respective attorneys of record, hereby stipulate and respectfully request that the Court vacate the December 9, 2005 Settlement Conference in lieu of the Parties' desire, pursuant to 28 U.S.C. section 652, to pursue mediation. This Stipulated Motion is based upon the following facts and circumstances: 1. This litigation is a complex construction delay case involving Leprino Foods

Company ("Leprino"), the owner; Big-D Construction Corp.-California, the general contractor; and Marelich Mechanical Co., Inc. ("UMM"), the mechanical subcontractor. The action also names certain entities related to Big-D Construction Corp.-California (Big-D Construction Corp., Big-D Corporation and Big-D Capital) which are alleged to be alter egos of Big-D Construction Corp.California. For purposes of this Stipulation, Big-D Construction Corp.-California and its related entities shall be collectively referred to as "Big-D". 2. Leprino, Big-D and UMM are all seeking affirmative recovery. Leprino is seeking

more than $27 million for delays to the completion of the construction project that Leprino claims were caused by Big-D. UMM is seeking from Big-D more than $16 million for claimed extra work, inefficiency, delay and other damages. In turn, Big-D is attempting to "pass through" any damages actually awarded to UMM to Leprino. Additionally, Big-D is seeking its unpaid contract balance of approximately $4 million, an additional $3 million for claimed additional project supervision costs, and indemnity from UMM for the damages sought by Leprino.

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3.

This action originated in December, 2003, upon Leprino's filing of its Complaint

against Big-D. In May 2005, UMM was added to this litigation by way of motion by Big-D. Over the course of the past two years, the Parties have participated in extensive written discovery, exchanged hundreds of thousands of documents, and taken nearly 50 days of fact witness depositions. Further, pursuant to the Court's most recent Scheduling Order, the Parties are scheduled to conclude expert discovery in February 2006. 4. The Parties already have participated in a full day of mediation (including more than

4 hours of presentations by Big-D and UMM) with Randy Wulff, Esq., a mediator with the law firm of Wulff Quimby and Sochynsky in Oakland, California. The Parties desire to convene a second mediation before a Colorado mediator, this time in Denver where the matter is venued. 5. Consequently, the Parties request that the Settlement Conference currently scheduled

for December 9, 2005 be vacated so that the Parties may engage in further alternative dispute resolution proceedings pursuant to 28 U.S.C. section 652. 6. The Parties represent to the Court that, upon vacatur of the settlement conference, the

Parties will have concluded their second mediation no later than February 6, 2006 in Denver, Colorado, before a mutually-acceptable Colorado mediator. Each party shall have in attendance at the mediation a person with authority to negotiate and settle the case, which person would have been required to appear at the court's mandatory settlement conference. 7. UMM. The cost of the mediation shall be borne one-third each by Big D, Leprino, and

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8. stipulation.

Each of the undersigned counsel are authorized by their clients to enter into this

Respectfully submitted this 2nd day of December 2005. LEPRINO FOODS COMPANY BIG-D CONSTRUCTION CORP.CALIFORNIA, BIG-D CONSTRUCTION CORP., BIG-D CORPORATION, BIG-D CAPITAL CORP., and FEDERAL INSURANCE COMPANY

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 (303) 322-3400 (phone) (303) 322-5800 (fax) [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]

s/ Daniel J. Nevis Francis J. Hughes Daniel J. Nevis Miller, Morton, Caillat & Nevis, LLP 50 West San Fernando St., Ste. 1300 San Jose, California 95113-2413 (408) 292-1765 (phone) (408) 292-4484 (fax) [email protected] [email protected] Patrick Q. Hustead John D. Mereness The Hustead Law Firm 4643 S. Ulster Street, Suite 1250 Denver, Colorado 80237 Telephone: (303) 721-5000 [email protected] [email protected]

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MARELICH MECHANICAL CO., INC. dba UNIVERSITY MARELICH MECHANICAL

s/ Peter J. Ippolito Peter J. Ippolito McKenna Long & Aldridge, LLP 750 B Street, Suite 3300 San Diego, California 92101 Telephone: (619) 595-5400 Facsimile: (619) 595-5450 [email protected] Richard C. Kaufman McKenna Long & Aldridge, LLP 1875 Lawrence Street, Suite 200 Denver, Colorado 80202 Telephone: (303) 634-4000 Facsimile: (303) 634-4400 [email protected]

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