Free Reply to Response to Motion - District Court of Colorado - Colorado

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

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Filed 05/05/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 03-cv-2461-MSK-MEH

LEPRINO FOODS COMPANY, Plaintiff, v. FELDMEIER EQUIPMENT, INC., Defendant. DEFENDANT'S REPLY IN SUPPORT OF MOTION IN LIMINE RE: OVERFLOW RATE (DOCUMENT 91) Defendant, Feldmeier Equipment, Inc. ("Feldmeier"), by and through undersigned counsel, hereby submits its Reply in Support of Motion in Limine re: Overflow Rate, as follows: REPLY Leprino provides no support whatsoever for its repeated assertion that the issue regarding the interpretation of the contract in this federal case is any different than the issue of contract interpretation decided in the State Court Action. Leprino used its standard contract forms to order the same type of product from the same manufacturer in both cases. The issue of contract interpretation is the same issue in both cases, i.e., whether the contract specification for flow relates to the rate by which liquid runs through the overflow system if and when the tank is overfilled by the operator [Leprino's position] or the rate for filling and emptying the tank under ordinary, non-overflow conditions [Feldmeier's position]. Leprino does not dispute that the tank at issue in this federal action is the same kind of tank, only slightly larger than the tanks at issue

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

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in the State Court Action. Nor does Leprino demonstrate that the contract language at issue is different in any significant way than that construed by the state courts. Although somewhat unclear, Leprino's argument seems to be that collateral estoppel would only apply if the contract in this case is the same contract construed in the State Court Action. Leprino is applying an incorrect standard for determining whether the issue in this case is identical to the issue already determined in the State Court Action. Under Colorado law, applicable in this diversity action to determine whether collateral estoppel effect should be given to the Colorado state court judgment, the general principles of res judicata/collateral estoppel apply to material issues or facts previously determined: regardless of the form the issue may take in the subsequent action, whether the subsequent action involves the same of a different form of proceeding, or whether the second action is upon the same or a different cause of action, subject matter, claim or demand, as the earlier action. In such cases it is also immaterial that the two actions are based on different grounds, or tried on different theories, or instituted for different purposes, and seek different relief. If the existence, validity, or construction of a contract or other obligation has been adjudicated in an action it is res judicata when it comes again in issue in another action between the same parties, though the immediate subject matter of the two actions is different. Green v. Chaffee Ditch Co., 150 Colo. 91, 371 P.2d 775, 779-80 (1962) (cite to Am.Jur. omitted). Thus, collateral estoppel applies where the issue is really the same, even if the context of the issue is somewhat different in the subsequent action. See also In re. John Scott Hamilton, No. 94-1173, 1994 U.S. App. LEXIS 35999 (10th Cir. Dec. 20, 1994) (Virginia jury's finding of "willful and wanton" conduct was substantially identical, for purposes of collateral estoppel, to finding of "willful and malicious" conduct required to make debt nondischargeable under 11 USC 523(a)(6)).

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

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WHEREFORE, Feldmeier respectfully requests that the Court enter an order applying the doctrine of collateral estoppel to the overflow rate issue, and precluding Leprino from presenting any testimony or other evidence in relation to that issue. Respectfully submitted this 5th day of May, 2006. FOWLER, SCHIMBERG & FLANAGAN, P.C.

s/Catherine A. Tallerico Catherine A. Tallerico Timothy J. Flanagan 1640 Grant Street Denver, Colorado 80203 Telephone: 303.298.8603 ATTORNEYS FOR DEFENDANT

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CERTIFICATE OF SERVICE I hereby certify that on this 5th day of May, 2006, I caused a true and correct copy of the foregoing DEFENDANT'S REPLY IN SUPPORT OF MOTION IN LIMINE RE: OVERFLOW RATE (DOCUMENT 91) to be was filed with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to the following email addresses:

Michael G. Bohn, Esq. [email protected] Mr. Jake Feldmeier [email protected]

s/Michelle Rocke

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