Free 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' RESPONSE IN OPPOSITION TO DEFENDANT' S S MOTION IN LIMINE TO EXCLUDE EVIDENCE RELATING TO A PREVIOUSLY SETTLED MATTER BY PLAINTIFF (Document 88)

Plaintiff Leprino Foods Company (" Leprino" states as follows in opposition to ) Defendant' " s Motion in Limine to Exclude Evidence Relating to a Previously Settled Matter by Plaintiff"(" Motion" ): I. INTRODUCTION Defendant incorrectly argues that the doctrine of release requires the preclusion of certain evidence (including seven exhibits listed by Plaintiff in the Final Pretrial Order) concerning the actual delivery date of the subject dairy silo. Defendant's Motion must be denied because it is premature and because it is legally and factually baseless. II. ARGUMENT This lawsuit arises, in part, from an Equipment Purchase Agreement entered into between Leprino and Defendant, whereby Defendant was to manufacture and Leprino

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

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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 silo arrived at the Waverly facility in a damaged condition on or about July 7, 2000, but was subsequently repaired by Defendant. On or about September 25, 2000, Defendant and Leprino entered into a limited Settlement Agreement to resolve certain specifically defined " Disputes" between them. The only Disputes the Settlement Agreement

resolved between the parties concerning the Waverly facility, were those matters related to Defendant' delay in manufacturing and delivering the silo. Pursuant to the express s terms of the Settlement Agreement, Defendant still was required to fully perform under the Equipment Purchase Agreement and deliver a silo to the Waverly facility that met all contract specifications. Defendant purported to deliver a silo that complied with all contract specifications to the Waverly facility on or about October 16, 2000. In this lawsuit, Leprino is not making a claim for Defendant' delay in s manufacturing and delivering the silo, which were the subject of the prior limited Settlement Agreement between the parties. Thus, the doctrine of release is

inapplicable to the evidence pertaining to the damaged silo and the delay in its delivery to Leprino. While the parties did enter into a binding agreement to settle certain defined disputes, evidence regarding the actual date of delivery, October 16, 2000, is relevant and admissible for a variety of reasons. Evidence and testimony concerning the damage to the silo and the resulting delay in its delivery to Leprino are relevant to establishing the actual date Defendant delivered the silo to Leprino's Waverly facility. In its summary judgment motion,

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Defendant incorrectly argued that Defendant delivered the subject silo to Leprino' s Waverly, New York facility on or about July 7, 2000. However, since the subject silo was damaged prior to its arrival at the Waverly facility, the actual delivery of the silo was delayed until Defendant fixed the damage and delivered the silo to Leprino on or about October 16, 2000. So, if Defendant continues to misstate the delivery date of the silo, the exhibits identified in Defendant' Motion, as well as all other evidence concerning s the actual delivery date of October 16, 2000, are relevant and admissible. Defendant' contention that such evidence would be unfairly prejudicial is s completely without merit. If Defendant concedes that the delivery date of the silo was October 16, 2000, it is possible that Leprino will not need to present the evidence Defendant seeks to preclude with its Motion. However, as stated above, Defendant' s Motion is premature since it is unknown as to whether Defendant will concede the delivery date of the silo to Leprino was October 16, 2000. III. CONCLUSION Defendant misapprehends the doctrine of release and its reliance on that doctrine renders its motion legally and factually baseless. Likewise, Defendant' s

requested relief is premature since admission of the subject evidence is, in part, dependent upon the arguments presented by Defendant itself at trial concerning the delivery date of the silo. Accordingly, Defendant' Motion must be denied. s

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

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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 TO EXCLUDE EVIDENCE RELATING TO A PREVIOUSLY SETTLED MATTER BY PLAINTIFF (Document 88) 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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