Free Motion for Leave - District Court of Colorado - Colorado

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

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Filed 11/17/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 03-cv-2461-MSK-OES LEPRINO FOODS COMPANY, Plaintiff, v. FELDMEIER EQUIPMENT, INC., Defendant.

MOTION OF PLAINTIFF TO FILE SURREPLY TO DEFENDANT FELDMEIER EQUIPMENT, INC.'S REPLY IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION (DOCUMENT 78) - AND CERTIFICATE OF COMPLIANCE WITH D.C.COLO.LCivR 7.1A

Plaintiff Leprino Foods Company ("Leprino" or "Plaintiff"), through its counsel, respectfully moves this Court for leave to file a Surreply to address evidence and arguments raised for the first time in Defendant Feldmeier Equipment, Inc.'s Reply in Support of Motion for Summary Adjudication. As grounds therefor, Leprino states as follows: CERTIFICATE OF COMPLIANCE WITH D.C.COLO.LCivR 7.1A After receiving and evaluating Defendant Feldmeier Equipment, Inc.'s Reply in Support of Motion for Summary Judgment ("Reply Brief") filed on September 14, 2005, Leprino intended to seek leave of the Court to file a surreply to address evidence and arguments Defendant Feldmeier Equipment, Inc. ("Feldmeier") raised for the first time in

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its Reply Brief. At about that time, on September 16, 2005, Feldmeier filed its Motion to Supplement its Previously Filed Reply in Support of Motion for Summary Judgment ("Motion to Supplement"), and Leprino then decided to address those other issues in its response to the Motion to Supplement, which would have been due on October 6, 2005. However, on October 3, 2005, the Court issued its order denying Feldmeier's Motion to Supplement without prejudice for its failure to comply with D.C.COLO.LCivR 7.1 A. That same day, Feldmeier's counsel sent counsel for Leprino, Michael G. Bohn, an electronic mail message requesting his position on Feldmeier refiling its Motion to Supplement. Leprino's counsel responded on October 5, 2005, by stating that Leprino did not object to Feldmeier refiling its Motion to Supplement provided that Leprino could fully respond to the arguments and information in that motion and the supplemental information itself. In an October 6, 2005 electronic mail message to Leprino's counsel concerning other issues with this case, Feldmeier's counsel, Catherine A. Tallerico, stated that she would be in trial the week of October 10th and that she would not be able to address those other issues with the case until the week of October 17th. Based on that

statement, Leprino reasonably concluded that Feldmeier's Motion to Supplement would not be filed until sometime after October 17, 2005. However, Leprino's counsel did not receive any contact from Feldmeier's counsel until receiving a letter from Ms. Tallerico dated October 26, 2005, which was unrelated to the Motion to Supplement. A recent review of the PACER system revealed that Feldmeier has not yet refiled its Motion to Supplement.

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Although Leprino did not receive any indication from Feldmeier that it does not intend to refile its Motion to Supplement, Leprino does not want any more time to pass before filing this Motion for Leave to File Surreply and the Surreply itself. Accordingly, pursuant to D.C.COLO.LCivR 7.1 A, Leprino's counsel sent correspondence on November 7, 2005, by U.S. Mail and by facsimile transmission, which sought Feldmeier's position on the relief requested herein. On November 8, 2005, Leprino's counsel received an electronic mail message from Ms. Tallerico stating that Feldmeier objects to Leprino filing its Surreply. However, noticeably absent from that message was any indication from Ms. Tallerico that Feldmeier does not intend to refile its Motion to Supplement. MOTION FOR LEAVE TO FILE SURREPLY 1. When a moving party advances, in a reply brief, new evidence and new

legal arguments in support of its motion for summary judgment, the nonmoving party should be given an opportunity to respond. Green v. New Mexico, 420 F.3d 1189, 1196 (10th Cir. 2005). Importantly, the new material raised for the first time in a reply brief can be either new evidence or new legal arguments. Doebele v. Sprint/United

Management Co., 342 F.3d 1117, 1139 Fn. 13 (10th Cir. 2003). It does not affect the Court's analysis if it is new evidence that supports arguments already made by the moving party; the nonmoving party must still be given an opportunity to respond to that new material. Id. The converse of that, i.e., new arguments being supported by

evidence already presented by the moving party in its opening motion, would likewise be true.

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2.

Fed. R. Civ. P. 56(c) requires that if a court relies on new materials or

arguments in a reply brief, it may not forbid the nonmovant from responding to those new materials. Beaird v. Seagate Technology, Inc., 145 F.3d 1159, 1165 (10th Cir. 1998). Conversely, if the trial court does not rely on the new material in reaching its decision, it does not abuse its discretion by precluding a surreply. Green v. New

Mexico, 420 F.3d at 1196. The grant or denial of a motion for leave to file a surreply is reviewed under an abuse of discretion standard. Id. 3. As detailed more fully in the "Surreply of Plaintiff to Defendant Feldmeier

Equipment, Inc.'s Reply in Support of Motion for Summary Adjudication (Document 78)" ("Surreply") filed contemporaneously herewith, Feldmeier raised new evidence and arguments for the first time in its Reply Brief, some of which are set forth below. 4. Feldmeier's Motion for Summary Adjudication ("Summary Judgment

Motion") only focused on the delivery dates of the subject silo, it never addressed when Leprino would have become aware, or should have become aware, of the defects in the subject Feldmeier silo. Feldmeier knew from the pleadings and discovery in this case that the delivery dates of the subject silo are not the issue. Yet, Feldmeier never raised the issue of Leprino's discovery of the defect in the subject silo, forcing Leprino to raise and discuss the issue in its Response Brief. Feldmeier apparently proceeded in that fashion so that it could assert new evidence and new arguments in its Reply Brief and, at the same time, attempt to deprive Leprino of the opportunity to respond to those new materials.

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5.

Because of the new evidence and arguments raised in the Reply Brief, the

Court should and must allow Leprino the opportunity to respond to those new materials. WHEREFORE, Leprino respectfully requests that the Court grant this motion and accept Leprino's Surreply as filed. Respectfully submitted this 17th day of November, 2005. 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

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CERTIFICATE OF SERVICE I hereby certify that on the 17th day of November, 2005, I electronically filed the foregoing MOTION OF PLAINTIFF TO FILE SURREPLY TO DEFENDANT FELDMEIER EQUIPMENT, INC.'S REPLY IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION (DOCUMENT 78) - AND - CERTIFICATE OF COMPLIANCE WITH D.C.COLO.LCivR 7.1A 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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