Free Motion in Limine - District Court of Colorado - Colorado

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

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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' MOTION IN LIMINE TO PRECLUDE REFERENCE TO THE S STATE COURT ACTION AND THE FINDINGS AND CONCLUSIONS OF LAW IN THE STATE COURT ACTION

Plaintiff Leprino Foods Company (" Leprino" or " Plaintiff" 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, the State Court Action (as defined below) and the findings and conclusions of law in the State Court Action, in the presence of the jury. CERTIFICATE OF COMPLIANCE WITH D.C.COLO.LCivR 7.1A Pursuant to D.C.COLO.LCivR 7.1A., undersigned counsel discussed the content of this motion with counsel for Feldmeier Equipment, Inc. (" Feldmeier" or " Defendant" ), who objects to the relief requested herein.

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I. INTRODUCTION This action arises from Feldmeier' failure to construct a stainless steel vertical s silo that meets the express specifications contained in the contract between Leprino and Feldmeier. Leprino filed this action on November 4, 2003. The need for this motion originates from an unrelated lawsuit filed by Leprino against Feldmeier in the District Court of the City and County of Denver on November 11, 2002, docketed as Case No. 02 CV 8036 and styled as Leprino Foods Company v. Feldmeier Equipment, Inc. (" State Court Action" That case involved three different contracts for several different silos, all ). of which had different contract specifications than the silo that is at issue in this litigation. Defendant' breach of the specifications in this case is wholly unrelated to the s claims litigated in the State Court Action. While Leprino prevailed on one of the

contracts breached by Feldmeier in the State Court Action, the January 6, 2004 Findings and Conclusions of the trial court in the State Court Action, as well as the fact that the State Court Action ever existed, are irrelevant and unfairly prejudicial to Leprino primarily because the contractual provisions and specifications applicable to the silos involved in the State Court Action differ from the contractual provisions and specifications at issue in this case. Leprino believes that Feldmeier will attempt to unfairly prejudice the jury against Leprino referring to the Findings and Conclusions in the unrelated State Court Action.

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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 a motion in limine is ordinarily reviewed for an abuse of s 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. The State Court Action Is Irrelevant To Feldmeier' Breach Of s Contract In This Case.

Pursuant to Fed. R. Evid. 401, evidence is relevant only if it has a " tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." It is within the discretion of the trial court to make a determination regarding relevance. Beacham v. Lee-Norse, 714 F.2d 1010, 1014 (10th Cir. 1983). Further, the significance of evidence must be explained before it is introduced. Thus, " the attorney fails to adequately if explain the significance, that is, the effect the evidence will have on the probability of the proposition to be established, the court may properly sustain an objection to its introduction." 2-401 Weinstein' Federal Evidence § 401.01. s

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The trial court' Findings and Conclusions in the State Court Action and the mere s existence of the State Court Action itself do not make it more or less probable that Feldmeier breached a different contract with different specifications in this case. Thus, under Fed. R. Evid. 401, reference to the State Court Action and the Findings and Conclusions of the trial court in that case are irrelevant. C. The Unfair Prejudice Of References To The State Court Action And The Findings And Conclusions Of The Trial Court In The State Court Action Would Substantially Outweigh Any Probative Value.

If this Court determines that testimony regarding the existence of the State Court Action and/or the Findings and Conclusions of the trial court in the State Court Action are somehow relevant, the Court must also evaluate whether the unfair prejudice to Leprino outweighs the probative value of the evidence. According to Fed. R. Evid. 403: Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. " Unfair prejudice" can be defined as " undue tendency to suggest decision on an an improper basis, commonly, though not necessarily, an emotional one." Fed. R. Evid. 403 advisory committee' note (emphasis added). Furthermore, " s prejudice is also unfair if the evidence was designed to elicit a response from the jurors that is not justified by the evidence." 2-403 Weinstein' Federal Evidence § 403.04(a)(b) (emphasis added). s Exclusion of evidence based upon its prejudicial effect is a matter determined by the trial court, and that determination will not be disturbed on appeal " absent a showing of clear abuse of discretion." Beacham, 714 F.2d at 1014. See also Texas Eastern

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Transmission Corp. v. Marine Office-Appleton & Cox Corp., 579 F.2d 561 (10th Cir. 1978), citing Rigby v. Beech Aircraft Co., 548 F.2d 288 (10th Cir. 1977). Allowing any reference to the existence of the State Court Action or the Findings and Conclusions of the trial court in the State Court Action would result in unfair prejudice to Leprino that would substantially outweigh any probative value the reference might have. Informing the jury about the State Court Action and the different contracts for different silos in that case would cause the jury to " lose sight of the essential issue" in this case." See Hicks v. Mickelson, 835 F.2d 721, 726 (8th Cir. 1987). The purpose of presenting such evidence or commentary before the jury could only be to gain an unfair advantage by drawing the jury' attention away from the contract and silo at issue s in this case. III. CONCLUSION Allowing any reference to the existence of the State Court Action or the Findings and Conclusions of the trial court in the State Court Action would be improper and would contravene Fed. R. Evid. 401 and 403. The danger of unfair prejudice posed to Leprino by reference to the existence of the State Court Action or the Findings and Conclusions of the trial court in the State Court Action at trial would substantially outweigh any arguable probative value of such a reference. Accordingly, Defendant and its attorneys and witnesses should be ordered to refrain from making any reference to the existence of the State Court Action and the Findings and Conclusions of the trial court in the State Court Action at trial before the jury.

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Respectfully submitted this 11th day of April 2006. CAMPBELL BOHN KILLIN BRITTAN & RAY, LLC By: s/ Michael G. Bohn 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 11th day of April 2006, I electronically filed the foregoing PLAINTIFF' MOTION IN LIMINE TO PRECLUDE REFERENCE TO THE S STATE COURT ACTION AND THE FINDINGS AND CONCLUSIONS OF LAW IN THE STATE COURT ACTION 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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