MOTION to Compel Entry Upon Land by Defendant Feldmeier Equipment, Inc.. (Attachments: # (1) Exhibit A# (2) Exhibit B# (3) Proposed Order (PDF Only))(Tallerico, Catherine)
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Case 1:03-cv-02461-MSK-MEH Document62 _ Filed 07/01/2005 Page 1 of 4 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 03-cv-2461-MSK-OES LEPRINO FOODS COMPANY, Plaintiff, Vv.
FELDMEIER EQUIPMENT, INC.,
Defendant.
F.R.C.P. RULE 37 MOTION FOR AN ORDER COMPELLING ENTRY UPON LAND
The Defendant, Feldmeier Equipment, Inc., by its attorneys, Fowler, Schimberg & Flanagan, P.C., presents the following F.R.C.P. Rule 37 Motion for an Order Compelling Entry upon land as follows:
L D.C. Colo. L. Civ. R. 7.1(A) Certification Defendant has requested Plaintiff's permission to allow Feldmeier representatives to enter the Waverly facility and observe various tanks and pumps at Leprino’s plant. See Exhibits A and B, attached hereto. Plaintiff refused the request.
I. Legal Analysis l. On June 29, 2005, Defendant took the depositions of Project Manager Ritch Swetland and Plant Engineer ‘Thurman Blanchard. Mr. Swetland testified that Leprino had 15-20 silos at the Waverly facility. He was unsure of the makes of the silos and thought most silos did not have a tri-clover vacuum breaker device included on them. Contradicting Mr. Swetland’s testimony, Mr. Thurman testified to a different number of silos and that most of the silos had the tri-clover breaker on them. Determining the number of silos, types of venting arrangements and
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Case 1:03-cv-02461-MSK-MEH Document62 _ Filed 07/01/2005 Page 2of4
existence of the tri-clover breaker 1s imperative to this case. The discrepancy in Mr. Swetland’s and Mr. Blanchard’s deposition testimony necessitates a site inspection of the Waverly plant by Feldmeier representatives. Defendant sought permission from Plaintiff to enter the Waverly facility and inspect the premises, in a letter, served via facsimile transmission, dated June 29, 2005. Attached as Exhibit A is a copy of Defendant’s June 29, 2005 letter. Defendant followed this request with an email to Plaintiff{ on June 30, 2005. Attached as Exhibit B is a copy of Defendant’s June 30, 2005 email.
2. Plaintiff has designated its expert, Larry Mott, G.E.S., who contends that external venting with a tri-clover breaker is the only adequate safety system for dairy tanks. The ambiguity of Mr. Swetland’s and Mr. Blanchard’s testimony regarding the aforementioned items has the potential to impact Mr. Mott’s expert report. It also has bearing on Defendant’s Affirmative Defenses, and as well as the inherent nature of Plaintiffs claims against the Defendant. It is respectfully submitted that the only way to confirm the number of silos, types of venting arrangements and the existence of tri-clover breakers is to actually visit the plant for an on-site inspection. Since the side inspection will not be intrusive, and will not interfere with productivity, to reject Defendant’s request is unreasonable.
3. Accordingly, Feldmeier seeks permission to inspect the Waverly facility to determine how many silos Waverly has, the make of the silos, the venting arrangements of each silo and how many externally vented silos have the tri-clover device.
4. Additionally, Feldmeier would like to look at the various pumps in the facility to determine pumping capacities, as the testimony in that regard is also somewhat at odds.
5. If the Defendant is prohibited from entering the Waverly facility for a site
inspection, it will suffer material prejudice. Defendant has tried several times throughout the
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Case 1:03-cv-02461-MSK-MEH Document62 Filed 07/01/2005 Page3of 4 pretrial discovery process to obtain answers to the issues raised in this motion, through Requests for Interrogatories and Production of Documents, a Motion for an Order Compelling Discovery, served and filed on May 28, 2005, and by attempting to ascertain the same during the depositions of Mr. Swetland and Mr. Blanchard. As stated in Defendant’s June 29, 2005 letter to Plaintiff, Feldmeier is willing accommodate Waverly personnel in terms of timing. The site inspection would not be intrusive: the Defendant does not require inspection of the inside of the tanks, the inspection would last no more than four hours and it will not impact production. Since the side inspection will not be intrusive, and will not interfere with productivity, to reject Defendant’s request is unreasonable. Furthermore, this information must be ascertained so that Defendant may fairly and properly defend this lawsuit.
6. On the other hand, Plaintiff will not suffer any prejudice if a site inspection of the Waverly Plant is permitted. Trial is not scheduled until June, 2006. Given the date that the site inspection was requested is nearly one year before trial is set to commence, Plaintiff will not be prejudiced by the aforementioned site inspection.
WHEREFORE, Defendant Feldmeier Equipment, Inc. respectfully requests the Court enter an Order directing Plaintiff Leprino Foods Company allow it entry to the Waverly facility. Respectfully submitted this 1“ day of July, 2005.
/s/ Catherine A. Tallerico Catherine A. Tallerico, Esq.
Timothy J. Flanagan, Esq.
FOWLER, SCHIMBERG & FLANAGAN, P.C
1640 Grant Street, Suite 300 Denver, CO 80203
(303) 298-8603 ATTORNEYS FOR DEFENDANT FELDMEIER EQUIPMENT, INC.
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Case 1:03-cv-02461-MSK-MEH Document62 Filed 07/01/2005 Page 4of4
CERTFICATE OF SERVICE
I hereby certify that on this 1“ day of July, 2005, I caused a true and correct copy of the foregoing F.R.C.P. RULE 37 MOTION FOR AN ORDER COMPELLING ENTRY UPON LAND to be served via the U.S. District Court filing service upon:
Michael G. Bohn, Esq.
Campbell Bohn Killin Brittan & Ray, LLC 270 St. Paul Street, Ste. 200
Denver, CO 80206
/s/ Angela Rose
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Case 1:03-cv-02461-MSK-MEH Document62 _ Filed 07/01/2005 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 03-cv-2461-MSK-OES
LEPRINO FOODS COMPANY,
Plaintiff,
Vv.
FELDMEIER EQUIPMENT, INC.,
Defendant.
F.R.C.P. RULE 37 MOTION FOR AN ORDER COMPELLING ENTRY UPON LAND
The Defendant, Feldmeier Equipment, Inc., by its attorneys, Fowler, Schimberg &
Flanagan, P.C., presents the following F.R.C.P. Rule 37 Motion for an Order Compelling Entry
upon land as follows:
L D.C. Colo. L. Civ. R. 7.1(A) Certification
Defendant has requested Plaintiff's permission to allow Feldmeier representatives to
enter the Waverly facility and observe various tanks and pumps at Leprino’s plant. See Exhibits
A and B, attached hereto. Plaintiff refused the request.
I. Legal Analysis
l. On June 29, 2005, Defendant took the depositions of Project Manager Ritch
Swetland and Plant Engineer ‘Thurman Blanchard. Mr. Swetland testified that Leprino had 15-20
silos at the Waverly facility. He was unsure of the makes of the silos and thought most silos did
not have a tri-clover vacuum breaker device included on them. Contradicting Mr. Swetland’s
testimony, Mr. Thurman testified to a different number of silos and that most of the silos had the
tri-clover breaker on them. Determining the number of silos, types of venting arrangements and
PDF Page 3
Case 1:03-cv-02461-MSK-MEH Document62 _ Filed 07/01/2005 Page 2of4
existence of the tri-clover breaker 1s imperative to this case. The discrepancy in Mr. Swetland’s
and Mr. Blanchard’s deposition testimony necessitates a site inspection of the Waverly plant by
Feldmeier representatives. Defendant sought permission from Plaintiff to enter the Waverly
facility and inspect the premises, in a letter, served via facsimile transmission, dated June 29,
2005. Attached as Exhibit A is a copy of Defendant’s June 29, 2005 letter. Defendant followed
this request with an email to Plaintiff{ on June 30, 2005. Attached as Exhibit B is a copy of
Defendant’s June 30, 2005 email.
2. Plaintiff has designated its expert, Larry Mott, G.E.S., who contends that external
venting with a tri-clover breaker is the only adequate safety system for dairy tanks. The
ambiguity of Mr. Swetland’s and Mr. Blanchard’s testimony regarding the aforementioned items
has the potential to impact Mr. Mott’s expert report. It also has bearing on Defendant’s
Affirmative Defenses, and as well as the inherent nature of Plaintiffs claims against the
Defendant. It is respectfully submitted that the only way to confirm the number of silos, types of
venting arrangements and the existence of tri-clover breakers is to actually visit the plant for an
on-site inspection. Since the side inspection will not be intrusive, and will not interfere with
productivity, to reject Defendant’s request is unreasonable.
3. Accordingly, Feldmeier seeks permission to inspect the Waverly facility to
determine how many silos Waverly has, the make of the silos, the venting arrangements of each
silo and how many externally vented silos have the tri-clover device.
4. Additionally, Feldmeier would like to look at the various pumps in the facility to
determine pumping capacities, as the testimony in that regard is also somewhat at odds.
5. If the Defendant is prohibited from entering the Waverly facility for a site
inspection, it will suffer material prejudice. Defendant has tried several times throughout the
PDF Page 4
Case 1:03-cv-02461-MSK-MEH Document62 Filed 07/01/2005 Page3of 4
pretrial discovery process to obtain answers to the issues raised in this motion, through Requests
for Interrogatories and Production of Documents, a Motion for an Order Compelling Discovery,
served and filed on May 28, 2005, and by attempting to ascertain the same during the depositions
of Mr. Swetland and Mr. Blanchard. As stated in Defendant’s June 29, 2005 letter to Plaintiff,
Feldmeier is willing accommodate Waverly personnel in terms of timing. The site inspection
would not be intrusive: the Defendant does not require inspection of the inside of the tanks, the
inspection would last no more than four hours and it will not impact production. Since the side
inspection will not be intrusive, and will not interfere with productivity, to reject Defendant’s
request is unreasonable. Furthermore, this information must be ascertained so that Defendant
may fairly and properly defend this lawsuit.
6. On the other hand, Plaintiff will not suffer any prejudice if a site inspection of the
Waverly Plant is permitted. Trial is not scheduled until June, 2006. Given the date that the site
inspection was requested is nearly one year before trial is set to commence, Plaintiff will not be
prejudiced by the aforementioned site inspection.
WHEREFORE, Defendant Feldmeier Equipment, Inc. respectfully requests the Court
enter an Order directing Plaintiff Leprino Foods Company allow it entry to the Waverly facility.
Respectfully submitted this 1“ day of July, 2005.
/s/ Catherine A. Tallerico
Catherine A. Tallerico, Esq.
Timothy J. Flanagan, Esq.
FOWLER, SCHIMBERG & FLANAGAN, P.C
1640 Grant Street, Suite 300
Denver, CO 80203
(303) 298-8603
ATTORNEYS FOR DEFENDANT FELDMEIER
EQUIPMENT, INC.
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Case 1:03-cv-02461-MSK-MEH Document62 Filed 07/01/2005 Page 4of4
CERTFICATE OF SERVICE
I hereby certify that on this 1“ day of July, 2005, I caused a true and correct copy of the
foregoing F.R.C.P. RULE 37 MOTION FOR AN ORDER COMPELLING ENTRY UPON
LAND to be served via the U.S. District Court filing service upon:
Michael G. Bohn, Esq.
Campbell Bohn Killin Brittan & Ray, LLC
270 St. Paul Street, Ste. 200
Denver, CO 80206
/s/ Angela Rose
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