Free Response to Motion - District Court of Colorado - Colorado

Case 1:03-cv-02461-MSK-MEH

Document 99

Filed 04/28/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 03-cv-02461-MSK-MEH LEPRINO FOODS COMPANY, Plaintiff, v. FELDMEIER EQUIPMENT, INC., Defendant. PLAINTIFF' RESPONSE IN OPPOSITION TO DEFENDANT' S S MOTION IN LIMINE RE: OVERFLOW RATE (Document 91)

Plaintiff Leprino Foods Company (" Leprino" states as follows in opposition to ) "Defendant' Motion in Limine Re: Overflow Rate" (" s Motion" ): I. INTRODUCTION Defendant's Motion erroneously contends that the doctrine of collateral estoppel somehow rewrites the express contract specifications that required, among other things, the vertical, insulated stainless steel silo storage tank manufactured by Defendant for Leprino's Waverly facility to handle 1000 GPM (gallons per minute) both inward flow and outward flow simultaneously, as well as venting and external ports sized to handle the 1000 GPM flow. Defendant's arguments blatantly misconstrue and attempt to ignore those express contract specifications that required the Waverly silo to handle 1000 gallons per minute of liquid. Defendant's Motion must be denied because it is legally and factually baseless.

Case 1:03-cv-02461-MSK-MEH

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II. ARGUMENT Defendant attempts to blur the distinction between this lawsuit and the State Court Action by improperly asserting that the two cases are nearly identical. The two cases involve different silos and different contracts with different specifications and different requirements. This lawsuit concerns only the Equipment Purchase Agreement entered into between Leprino and Defendant, whereby Defendant was to manufacture and Leprino was to purchase a vertical, insulated stainless steel silo storage tank and related equipment for use in its dairy manufacturing facility in Waverly, New York.1 The State Court Action involved Defendant's manufacture of vertical, insulated stainless steel silo storage tanks and related equipment for other Leprino manufacturing facilities throughout the United States. Contrary to Defendant's mischaracterization in its Motion, the contract for the Waverly silo and the contracts at issue in the State Court Action are not virtually identical. The contract for the Waverly silo contained express specifications that

required the silo "to handle 1000 GPM both inward flow and outward flow simultaneously. This will include venting and external ports sized to handle the 1000 GPM flow." The contracts at issue in the State Court Action contained different

specifications for the inward flow of liquid that the silos were to handle. The findings in the State Court Action (both at the trial and appellate level) have no implication on this case. Any confusion that may have been present in the State Court Action concerning

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The Court has already acknowledged that this case pertains to the Waverly contract as opposed to the separate contracts at issue in the State Court Action in its Order Granting in Part and Denying in Part Motion for Summary Judgment dated February 3, 2006.

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Case 1:03-cv-02461-MSK-MEH

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the required fill rate is absent in this lawsuit because of the explicit specifications requiring both inward flow and outward flow of 1000 GPM (gallons per minute) simultaneously and venting and external ports sized to handle the 1000 GPM flow. Also, Defendant erroneously cites to transcripts from the State Court Action as support for its Motion. Exhibits A and B to Defendant's Motion contain transcripts from the State Court Action which concern completely different venting requirements set forth in the contracts at issue in the State Court Action. Those transcripts do not address the explicit specifications for the Waverly silo, which required 1000 GPM both inward flow and outward flow simultaneously. Defendant misconstrues the doctrine of collateral estoppel, which is inapplicable here and cannot serve to rewrite the express contract specifications for the Waverly silo. Notwithstanding that, Defendant fails to meet the first element of the doctrine of collateral estoppel, which requires "the issue previously decided [be] identical with the one presented in the action in question." B-S Steel of Kansas, Inc. v. Texas Industries, Inc., 439 F.3d 653, 662 (10th Cir. 2006). As detailed above, the contract and design specifications in this action are entirely different than those present in the State Court Action. Since the issues are not identical between the two actions, the doctrine of collateral estoppel does not apply. III. CONCLUSION Defendant's arguments concerning the application of the collateral estoppel doctrine and the relief it seeks with its Motion are complete and utterly without basis in

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Case 1:03-cv-02461-MSK-MEH

Document 99

Filed 04/28/2006

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fact or law. Defendant must not be permitted to rewrite the contract for the Waverly silo. Accordingly, Defendant's Motion must be denied. Respectfully submitted this 28th day of April 2006. CAMPBELL BOHN KILLIN BRITTAN & RAY, LLC

By:

s/ Bret M. Heidemann Michael G. Bohn Bret M. Heidemann 270 St. Paul Street, Suite 200 Denver, Colorado 80206 Telephone: (303) 322-3400 Facsimile: (303) 322-5800 [email protected] [email protected] ATTORNEYS FOR PLAINTIFF LEPRINO FOODS COMPANY

CERTIFICATE OF SERVICE I hereby certify that on the 28th day of April 2006, I electronically filed the foregoing PLAINTIFF' RESPONSE IN OPPOSITION TO DEFENDANT' MOTION IN S S LIMINE RE: OVERFLOW RATE (Document 91) with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following email addresses: Catherine A. Tallerico, Esq. at [email protected]

s/ Cori Atteberry Cori Atteberry, Legal Assistant

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