Leprino Foods Co v. Feldmeier Equip Inc Document 65: Response to Motion

Page 1

Case 1:03-cv-02461-MSK-MEH Document 65 Filed 07/11/2005 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, v.

FELDMEIER EQUIPMENT, INC.,

Defendant.

PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT’S

“F.R.C.P. RULE 37 MOTION FOR AN ORDER COMPELLING ENTRY UPON LAND” (Docket No. 62, filed July 1, 2005) Plaintiff Leprino Foods Company (“Leprino” or “Plaintiff”), through its counsel, states the following as its response in opposition to Defendant’s “F.R.C.P. Rule 37 Motion for an Order Compelling Entry Upon Land” (“Motion to Compel Inspection”). The Motion to Compel Inspection must be denied for the reasons set forth herein. 1.

First, Defendant’s Motion to Compel Inspection is not properly before this Court. A motion to compel entry upon land or for inspection is governed by Fed. R. Civ.

P. 34, which provides the responding party thirty days within which to respond to such a request.

The deadline for completion of discovery in this case was July 1, 2005. However, Defendant did not even serve a proper request for entry and/or inspection pursuant to Fed. R. Civ. P. 34, but instead only faxed Plaintiff’s counsel a letter on June 29, 2005, requesting an inspection of Leprino’s facility in Waverly, New York just two

Page 2

Case 1:03-cv-02461-MSK-MEH Document 65 Filed 07/11/2005 Page 2 of 4 days before discovery closed. (See, Defendant’s Motion to Compel Inspection, at ¶ 2). Throughout the course of this case, Defendant never before requested an inspection of any of Leprino’s facilities. Because Defendant did not comply with the requirements of Fed. R. Civ. P. 34 by serving a timely request for inspection, its Motion to Compel Inspection is not properly before the Court and, thus, it must be denied. 2.

Second, Defendant would have the Court believe that it only became aware of issues with the flow rates and venting arrangements at the June 29, 2005 depositions of Mr. Swetland and Mr. Blanchard.

That implication is disingenuous.

Defendant has known that flow rates and venting arrangements were central issues in this litigation from its inception. Despite this case pending for over one and one-half years, Defendant waited until June 29, 2005, to bring up the idea of inspecting Leprino’s facility in Waverly, New York.

Defendant could have served a proper request for inspection many months ago, but failed to do so.

3.

Defendant’s Motion to Compel Inspection appears to assert the following two reasons for the site inspection: (a) to determine how many silos are at the Waverly facility, the make of the silos, the venting arrangements of each silo and how many externally vented silos have tri-clover breakers; and (b) to look at various pumps in the Waverly facility to determine pumping capacities. (See, Defendant’s Motion to Compel Inspection, at ¶¶ 3 and 4). All of the information that Defendant now seeks through a site inspection could have been requested in written discovery to Leprino, but Defendant failed to do so. Moreover, Defendant’s Motion to Compel Inspection fails to offer any justification, let alone good cause, for its significant delay in asking for an

Page 3

Case 1:03-cv-02461-MSK-MEH Document 65 Filed 07/11/2005 Page 3 of 4 inspection of the Waverly facility, which would allow such an inspection after the close of discovery.

4.

Third, without any stated basis or foundation, Defendant asserts that the site inspection will not take more than four hours, will not be intrusive and will not interfere with production at the Waverly facility. (See, Defendant’s Motion to Compel Inspection, at ¶¶ 2 and 5). Defendant has failed to articulate the particulars of how it proposes to conduct the “inspection” it now seeks. Depending on how Defendant would choose to conduct its inspection, there could be a significant and detrimental impact on productivity at the Waverly facility.

WHEREFORE, Leprino respectfully requests that Defendant’s Motion to Compel Inspection be denied.

Respectfully submitted this 11th day of July, 2005.

CAMPBELL BOHN KILLIN BRITTAN & RAY, LLC

By:

s/ Michael G. Bohn Michael G. Bohn Bret M. Heidemann 270 St. Paul Street, Suite 200 Denver, Colorado 80206 Telephone: (303) 322-3400 Facsimile: (303) 322-5800 mbohn@campbellbohn.com bheidemann@campbellbohn.com ATTORNEYS FOR PLAINTIFF LEPRINO FOODS COMPANY

Page 4

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

Document 65

Filed 07/11/2005

Page 4 of 4

CERTIFICATE OF SERVICE

I hereby certify that on July 11, 2005, I electronically filed the foregoing PLAINTIFF’S RESPONSE TO DEFENDANT’S “F.R.C.P. RULE 37 MOTION FOR AN ORDER COMPELLING ENTRY UPON LAND” (Docket No. 62, filed July 1, 2005) 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 c_tallerico@fsf-law.com

s/ Cori Atteberry Cori Atteberry, Legal Assistant