Free Response to Motion - District Court of Colorado - Colorado

Case 1:03-cv-01973-PSF-MJW

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Filed 10/11/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 03-F-1973 (MJW)

J. E. H. KNUTSON, Plaintiff, v. THE WALKER GROUP, INC., Defendant

THE WALKER GROUP, INC. Plaintiff, v. FIRST LAYER COMMUNICATIONS, INC. and J.E.H. KNUTSON Defendants.

WALKER GROUP'S RESPONSE TO PLAINTIFF'S MOTION IN LIMINE RELATING TO SECOND AMENDMENT TO GUARANTY

Defendant Walker Group, Inc. ("Walker Group"), through counsel, respectfully submits this memorandum of law in opposition to Plaintiff J.E.H. Knutson's ("Plaintiff") Motion In Limine Relating to Second Amendment to Guaranty. For the reasons stated below, Plaintiff's Motion should be denied.

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I.

Plaintiff Admits Having Signed a Second Amendment to His Guaranty. Consequently, Evidence of the Document's Existence and Its Terms Is Relevant and Will Not Confuse or Mislead the Jury. Evidence regarding Plaintiff's Second Amendment to his Guaranty is relevant because it

proves that Plaintiff executed the amendment, the terms of which are not in dispute. Contrary to Plaintiff's suggestion, neither the existence of the Second Amendment to Plaintiff's Guaranty nor Plaintiff's execution of it are in doubt. Plaintiff admitted that he executed a Second

Amendment to the Guaranty on or about September 18, 2001 (Pl.'s Resp. to Def. Walker Group's 1st Set Reqs. for Admission No. 7 (Dec. 27, 2004)) and further stipulated in the Final Pretrial Order that he executed a Second Amendment to the Guaranty1 (Minute Order, Final Pretrial Order, Stipulation f. (Apr. 28, 2005)). The existence of Plaintiff's Second Amendment to his Guaranty also is not in doubt.2 Thus, Plaintiff's argument that Walker Group cannot prove the existence of the Second Amendment or that Plaintiff did not enter into it is simply wrong. Plaintiff has stipulated to the contrary. Plaintiff's reliance on Carolina Mills Lumber Co., Inc. v. Huffman, 386 S.E.2d 437 (N.C. App. 1989), is misplaced for the same reason. Although it is true that under North Carolina law Walker Group "must first establish the existence of the [guaranty] agreement," id. at 438, Plaintiff has admitted and stipulated to the existence of the Second Amendment to his Guaranty. In Carolina Mills, the court refused to consider the alleged guaranty because there was significant evidence that the signed agreement proffered by plaintiff was unreliable. Id. at 439. Not only did the defendant deny signing any guaranty, the physical state of the document
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The Final Pretrial Order erroneously lists the date of Plaintiff's execution as September 18, 2002, rather than September 18, 2001. 2 In the very first paragraph of his motion seeking to exclude any evidence relating or referring to the Second Amendment, Plaintiff again admits that he signed a Second Amendment to his Guaranty.

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itself suggested that it had been pieced together. Id. In contrast, in the present case, Plaintiff admits that he signed a Second Amendment to his Guaranty. Because neither the existence nor Plaintiff's execution of a Second Amendment are in doubt, Plaintiff's motion to exclude any evidence relating or referring to the Second Amendment to his Guaranty should be denied.

II.

Evidence That Walker Group Will Offer to Prove the Terms of Plaintiff's Second Amendment to His Guaranty Is Relevant and Will Not Confuse or Mislead the Jury. To the extent that Plaintiff's motion claims this evidence should be excluded because

Plaintiff has not admitted the terms of the Second Amendment, such argument also fails. As an initial matter, all of the potential exhibits identified and produced by both parties that relate to the Second Amendment to Plaintiff's Guaranty contain identical terms. Plaintiff produced in discovery the first page of a Second Amendment to his Guaranty, which contains all of the material terms, and both Plaintiff and Walker Group designated this document as a potential exhibit for trial. (Final Pretrial Order, Pl.'s. Ex. 11, Walker Group's proposed Ex. 1 (KNUTSON 00009) (attached as Exhibit A)). In addition, Walker Group produced in discovery a complete, unsigned copy of a Second Amendment to Plaintiff's Guaranty, with terms identical to those on the page Plaintiff produced. (Walker Group's proposed Ex. 155 (WALKER 005503-5504) (attached as Exhibit B)). Likewise, Walker Group's proposed Exhibit 114 is an email

communication from Jeff Sauter, First Layer's CFO, to Doug Leckie, Walker Group's CFO, on which Plaintiff was copied, attaching a copy of the Second Amendment to the Guaranty and indicating that he sent a personalized version to Plaintiff for his signature. (Walker Group's proposed Ex. 114 (WALKER 002545-002547) (attached as Exhibit C)). Consistent with the documents produced by the parties, the material terms of the document attached to Mr. Sauter's

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email are identical to the other copies of the Second Amendment produced by the parties. Significantly, Plaintiff has neither identified nor produced any document containing alternate terms nor has he alleged that the terms are different from the ones in any of the copies produced. Walker Group may use the above-described, consistent evidence to prove the terms of the Second Amendment to the Guaranty that Plaintiff signed because secondary evidence of a writing's contents is admissible if the executed writing has been lost. Townsend v. Petersen, 21 P. 619, 620 (Colo. 1889); see also Joseph E. Seagram & Sons, Inc. v. Shaffer, 310 F.2d 668, 674-75 (10th Cir. 1962) (applying Oklahoma law). Likewise, under Federal Rule of Evidence 1004, because the original, signed Second Amendment to Plaintiff's Guaranty is lost, destroyed, not obtainable or is in the possession of Plaintiff, other evidence if the contents of the writing is admissible. F. R. Evid. 1004; see also Murphy v. Glenn, 964 P.2d 581, 585 (Colo. App. 1998) (applying Colorado Rule of Evidence 1004).

CONCLUSION For these reasons, Walker Group respectfully contends that the Court should deny Plaintiff's Motion in limine to exclude evidence relating or referring to the Second Amendment to the Guaranty.

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Respectfully submitted, this the 11th day of October, 2005.

/s/ Richard S. Gottlieb Richard S. Gottlieb Laura A. Greer Kilpatrick Stockton LLP 1001 West Fourth Street Winston-Salem, North Carolina 27101-2400 Telephone: (336) 607-7300 Attorneys for Defendant Walker Group, Inc. Joshua Maximon, Esq. The Maximon Law Firm, LLC 12202 Airport Way, Suite 170 Broomfield, Colorado 80021 Telephone: (303) 991-3344
02560-207219 WINLIB01:1151719.3

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on October 11, 2005, I electronically filed the foregoing WALKER GROUP'S RESPONSE TO PLAINTIFF'S MOTION IN LIMINE RELATING TO SECOND AMENDMENT TO GUARANTY with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following email addresses: [email protected] [email protected], and I hereby certify that I have mailed or served the document or paper to the following non CM/ECF participants by first class mail addressed as follows: none.

/s/ Richard S. Gottlieb Richard S. Gottlieb Attorney for Defendant Walker Group, Inc. Kilpatrick Stockton LLP 1001 West Fourth Street Winston-Salem, North Carolina 27101-2400 Telephone: (336) 607-7300 [email protected]
02560-207219 WINLIB01:1151719.3

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