Free Reply to Response to Motion - 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'S REPLY TO DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO PRECLUDE REFERENCE TO THE STATE COURT ACTION AND THE FINDINGS AND CONCLUSIONS OF LAW IN THE STATE COURT ACTION (Document 94)

Plaintiff Leprino Foods Company ("Leprino" or "Plaintiff") submits the following as its reply to "Defendant Feldmeier Equipment, Inc.'s Response to Plaintiff's Motion to Preclude Reference to the State Court Action and the Findings and Conclusions of Law in the State Court Action" ("Response"). I. INTRODUCTION Defendant Feldmeier Equipment, Inc. ("Defendant" or "Feldmeier") continues to misunderstand the nature of this lawsuit, and again tries 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.

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

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This lawsuit concerns an 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. 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." Defendant failed to manufacture and tender to Leprino a silo for its Waverly facility that could handle both inward flow and outward flow of 1000 gallons per minute of liquid simultaneously. 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. 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 the required fill rate is absent in this lawsuit because of the explicit specifications for the Waverly silo that required both inward flow and outward flow of 1000 GPM (gallons per minute) simultaneously and venting and external ports sized that would handle the 1000 GPM flow.

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II. ARGUMENT A. Feldmeier's Defense Of Collateral Estoppel Fails And Reference To The State Court Action Must Not Be Made To The Jury. In its Response, Defendant essentially attempts to reargue its Motion in Limine Re: Tort Claims and Parol Evidence (Document 87) and its Motion in Limine Re: Overflow Rate (Document 91), both of which are improper and without merit. Plaintiff refers the Court to Plaintiff's responses to those motions, filed on April 28, 2006, which are incorporated as if fully set forth herein. The use of collateral estoppel must be confined to situations where the matters raised in the second suit are identical in all respects with that decided in the first proceeding and where the controlling facts and applicable legal rules remain unchanged. Estate of True v. C.I.R. 390 F.3d 1210, 1232 (10th Cir. 2004), citing, C.I.R. v. Sunnen, 333 U.S. 591, 599-600 (1948). As clearly detailed above, as well as in the above-referenced Responses filed by Leprino, this action and the State Court Action are not identical and the controlling facts are different. Accordingly, Feldmeier's defense of collateral estoppel fails. Since it is within the Court's purview to rule on the viability of claims and defenses, the Court must preclude Defendant from making any reference to the existence of the State Court Action or the Findings and Conclusions of the trial court in the State Court Action before the jury. B. Evidence From The State Court Action, To The Extent It Is Otherwise Admissible, Can Be Utilized In The Trial Of This Matter Without Reference To The State Court Action. Feldmeier unpersuasively argues that it will need to refer to the State Court Action to present some of its defenses at trial. Any evidence that Feldmeier believes it

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may want to present to the jury, to the extent it is otherwise admissible, can be presented without any reference to the State Court Action. First, Defendant argues that it will need to present the trial testimony of certain witnesses in the State Court Action in the trial of this case. However, if Defendant

wants to present testimony from witnesses that testified in the State Court Action, Defendant needs to subpoena those witnesses for trial. A transcript of trial testimony from the State Court Action is not admissible in the trial of this case just because Defendant does not wish to subpoena witnesses. Defendant has not even attempted to assert that any of those witnesses would be unavailable for the trial of this case. Even if Defendant could lay the necessary foundation to present a transcript of such prior testimony, and could otherwise demonstrate that the testimony is relevant to this case, it is not necessary for Feldmeier to reference the State Court Action. Second, Feldmeier argues that it may present other evidence or exhibits that were used in the State Court Action in this trial. Again, to the extent such other

evidence and/or exhibits are otherwise admissible and a proper foundation can be laid for their admission, such evidence can be presented to the jury without reference to the State Court Action. Third, Defendant erroneously asserts that Leprino's maintenance of t e silos in h the State Court Action is somehow relevant to one of Feldmeier's defenses in this case and that reference to the State Court Action will thus have to be made. Leprino's

maintenance of the silos at issue in the State Court Action is completely irrelevant to Feldmeier's purported defense in this case. Notwithstanding that such irrelevant

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evidence should not be admitted, specific instances of Leprino's maintenance of completely different silos could be presented to the jury without referring to t e State h Court Action. Fourth, after having its summary judgment motion on its defense of the expiration of the statute of limitations denied by the Court because of disputed questions of fact, Defendant erroneously claims that it will have to refer to the State Court Action in connection with that defense. Any evidence that Defendant asserts must be presented at trial in support of that defense, to the extent it is otherwise admissible, can be presented without referring to the State Court Action. Fifth, Feldmeier further contends that reference to the State Court Action will be necessitated by its rebuttal and impeachment of witnesses. Defendant is wrong.

Feldmeier's Response alludes to potential exhibits for rebuttal and actually lists persons that Defendant may attempt to impeach at trial. However, any such evidence can be presented without referring to the State Court Action. Sixth, contrary to Defendant's assertion in the footnote of its Response, there is a significant disagreement as to whether the Waverly silo, as designed by Feldmeier, could handle 1000 gallons per minute as required by the subject contract's specifications. Leprino has maintained throughout this litigation that the Waverly silo, as designed by Feldmeier, cannot handle the simultaneous inward and outward flow of 1000 gallons per minute of liquid as required by the subject contract. Therefore, with regard to Feldmeier's presentation of its defenses, reference to the State Court Action is irrelevant and unfairly prejudicial to Leprino. Any relevant

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evidence that Feldmeier may need to present to the jury can be presented without reference to the State Court Action. granted. 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. Therefore, 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. Respectfully submitted this 1st day of May 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 As such, Leprino's motion should properly be

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CERTIFICATE OF SERVICE I hereby certify that on the 1st day of May 2006, I electronically filed the foregoing PLAINTIFF'S REPLY TO DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO PRECLUDE REFERENCE TO THE STATE COURT ACTION AND THE FINDINGS AND CONCLUSIONS OF LAW IN THE STATE COURT ACTION (Document 94) 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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