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Case 1:03-cv-02461-MSK-MEH Document 75 Filed 09/08/2005 Page 1 of 11 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.
FINAL PRETRIAL ORDER
1. DATE AND APPEARANCES
A final pretrial conference was held on September 9, 2005. The parties were represented as follows:
Leprino Foods Company Feldmeier Equipment, Inc.
Michael G. Bohn Bret M. Heidemann Campbell Bohn Killin Brittan & Ray, LLC 270 St. Paul Street, Suite 200 Denver, Colorado 80206
(303) 322-3400 (phone)
(303) 322-5800 (fax) Timothy J. Flanagan Catherine A. Tallerico Fowler, Schimberg & Flanagan, P.C. 1640 Grant Street, Suite 300 Denver, Colorado 80203
(303) 298-8603 (phone)
(303) 298-8748 (fax)
2. JURISDICTION Plaintiff Leprino Foods Company, a Colorado corporation (“Plaintiff” or “Leprino”) filed its Complaint and Jury Demand on November 4, 2003, in the District Court for the City and County of Denver, which was docketed as Case. No. 02-CV-8489. Defendant Feldmeier
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Case 1:03-cv-02461-MSK-MEH Document 75 Filed 09/08/2005 Page 2 of 11 Equipment, Inc., a New York corporation (“Defendant” or “Feldmeier”) removed the action to this Court pursuant to 28 U.S.C. § 1332, on December 4, 2003, asserting the diversity of citizenship of the parties and an amount in controversy in excess of $75,000.00.
3. CLAIMS AND DEFENSES
a.
Plaintiff's Statement of Claims.
Leprino entered into an Equipment Purchase Agreement with Defendant, under which Defendant was to provide certain equipment that was installed in Leprino’s manufacturing facility in Waverly, New York. The equipment supplied to Leprino included a vertical stainless steel silo that is used to store dairy products. Leprino contends that the equipment supplied by Defendant is, among other things, not fit for the purposes intended since the silo is designed and fabricated with a defective venting/overflow arrangement.
Leprino’s Amended Complaint asserts claims which include breach of contract, negligence, breach of express and implied warranties, negligent misrepresentation, and strict product liability. Additionally, by submitting this Pretrial Order, Leprino does not stipulate or agree with Defendant’s statement of the case or defenses.
Leprino’s damages include, but are not limited to, the contract price and/or replacement and/or repair and/or modification of the subject equipment, attorneys’ fees, costs and interest as permitted by law.
b.
Defendant’s Statement of Defenses.
Defendant denies all of Plaintiff's claims and specifically asserts that the single vertical stainless steel silo storage tank at issue in this case was delivered and installed at a Leprino
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Case 1:03-cv-02461-MSK-MEH
Document 75
Filed 09/08/2005
Page 3 of 11
cheese manufacturing facility in Waverly, New York in October 2000. The silo has been in use ever since. Leprino concedes that it has had absolutely no problems with the same. The parties previously entered a settlement agreement. All claims regarding the Waverly facility "whether known or unknown" at the time of the agreement were released. Accordingly, Leprino's claims are barred by the doctrine of release. Further, all of Plaintiff's theories are barred by either a two or three-year statute of limitation. Additionally, the issues in this case are identical to issues previously litigated between these parties. The Denver District Court has previously determined that Leprino failed to prove that the vent and overflow arrangements on similar silos was defective in any manner. The doctrines of collateral estoppel and res judicata therefore prohibit the assertion of the claims within this lawsuit.
Additional affirmative defenses include: failure to state a claim against Defendant upon which relief may be granted; failure to mitigate damages; acceptance, waiver, estoppel and laches; failure to satisfy conditions precedent including failure to provide adequate and/or timely notice; failure of consideration and lack of reliance; injuries or losses, if any, may be caused in whole or in part by Plaintiff’s own comparative negligence or fault for which Defendant is not liable; Plaintiff's claims are barred by the terms of the Equipment Purchase Agreement; Plaintiff’s claims are barred by the economic loss rule; Plaintiff’s claims are barred by its misuse of the equipment at issue; Plaintiff’s claims are barred as it has altered/modified the product; Plaintiff’s claims are barred for failing to implement safety features; the equipment was state-ofthe-art and in compliance with all governmental standards at the time of manufacture; assumption of risk.
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Case 1:03-cv-02461-MSK-MEH Document 75 Filed 09/08/2005 Page 4 of 11 Defendant seeks its attorneys’ fees, costs and interest pursuant to the Agreements between the parties and as permitted by law.
4. STIPULATIONS
None.
5. PENDING MOTIONS
a.
Defendant Feldmeier Equipment, Inc.’s Motion for Summary Adjudication was filed on August 1, 2005. Leprino filed its response in opposition to Defendant Feldmeier Equipment, Inc.’s Motion for Summary Adjudication on August 29, 2005. Defendant intends to file a Reply in Support of its Motion for Summary Adjudication.
6. WITNESSES
a.
List the nonexpert witnesses to be called by each party. List separately: (1) witnesses who will be present at trial (see Fed. R. Civ. P. 26(a)(3)(A)); (A) (B) Plaintiff:
(i) Thurman Blanchard. Mr. Blanchard is a Plant Engineering Manager for Leprino and is expected to testify consistent with his deposition, and concerning the subject contract, contract specifications, and contract negotiations, and the modifications to protect the silo from catastrophic failure. (ii) Ritch Swetland. Mr. Swetland is a Project Engineer for Leprino and is expected to testify consistent with his deposition, and concerning the subject contract, contract specifications, and contract negotiations, and the modifications to protect the silo from catastrophic failure. Defendant:
(i) Jake Feldmeier.
Mr. Feldmeier is the President of Feldmeier Equipment and will testify regarding the design and manufacturer of the silos; course of action with Leprino, delivery dates, compliance with industry standards, specifications, intent of parties, consistent with
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Case 1:03-cv-02461-MSK-MEH Document 75 Filed 09/08/2005 Page 5 of 11 previous testimony, rebuttal to Leprino, and relating to affirmative defenses.
(2) witnesses who may be present at trial if the need arises (see Fed. R. Civ.
P. 26(a)(3)(A)); and (A) (B) Plaintiff:
(i) Robert Delong. Mr. Delong is the Senior Vice President of Production and Technical Services and is expected to testify concerning the production process, the purchasing and sale of equipment, and modifications to protect the silo against catastrophic failure.
(ii) Steve Pearce. Mr. Pearce is involved with the purchasing and sale of equipment for Leprino and is expected to testify concerning those areas.
(iii) Bruce Dye. Mr. Dye is a Sales Manager for Feldmeier and is expected to testify consistent with his deposition, and concerning the subject contract and the specifications of the Feldmeier silo delivered to Leprino’s facility in Waverly, New York.
(iv) Jake Feldmeier.
Mr. Feldmeier is the President of Feldmeier and is expected to testify consistent with his deposition.
(v) Any witness endorsed at any time by Defendant, or that became known through discovery.
(vi) Any witness necessary for the purpose of impeachment and/or rebuttal.
(vii) Any witness necessary to authenticate or lay a foundation for any exhibit.
Defendant:
(i) Robert Feldmeier. Mr. Feldmeier is the founder of Feldmeier and may testify regarding the design and manufacturer of the silos; specifications, intent of parties,
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Case 1:03-cv-02461-MSK-MEH Document 75 Filed 09/08/2005 Page 6 of 11 settlement, compliance with industry standards, consistent with previous testimony and in rebuttal to Mr. Mott. (ii) Kyle Brown. Mr. Brown is an engineer who may testify regarding the design and manufacturer of the silos; compliance with industry standards, consistent with previous testimony and in rebuttal to Mr. Mott. (iii) Bruce R. Dye. Mr. Dye is expected to testify concerning the course of dealing with Leprino, delivery dates, statute of limitations, and other affirmative defenses. (iv) Ritch Swetland. Mr. Swetland is expected to testify for cross-examination.
(v) Thurman Blanchard. Mr. Blanchard is expected to testify for cross-examination.
(vi) Ron Nowak. Mr. Nowak is expected to testify for crossexamination. (vii) Jon B. Alby. Mr. Alby is expected to testify for crossexamination regarding settlement issues and the previous lawsuit.
(viii) Rick Angerhoffer. Mr. Angerhoffer is an engineer who may testify regarding industry standards; specifications, consistent with previous testimony, and in rebuttal to Mr. Mott.
(ix) Steve Pearce. Mr. Pearce is expected to testify for crossexamination and consistent with previous testimony. (x) Chuck Williams. Mr. Williams is expected to testify for cross-examination and consistent with previous testimony. (xi) Cullen Cooper. Ms. Cooper is expected to testify for crossexamination and consistent with previous testimony. (xii) Dave Dierking. Mr. Dierking is expected to testify for cross-examination and consistent with previous testimony.
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Case 1:03-cv-02461-MSK-MEH (3) b.
Document 75 Filed 09/08/2005 Page 7 of 11 (xiii) Reed Acevedo. Mr. Acevedo is expected to testify for cross-examination and consistent with previous testimony. (xiv) Any witness endorsed by any party to this action at any time.
(xv) Any witness needed for rebuttal or impeachment.
(xvi) Any witness needed to authenticate comments.
witnesses where testimony is expected to be presented by means of a deposition and, if not taken stenographically, a transcript of the pertinent portions of the deposition testimony. See Fed. R. Civ. P. 26(a)(3)(B).
(A)
Plaintiff: Bruce Dye, Jake Feldmeier.
(B)
Defendant: Chuck Williams, David Dierking, Reed Acevedo, and Cullen Cooper.
List the expert witnesses to be called by each party. List separately: (1) witnesses who will be present at trial (see Fed. R. Civ. P. 26(a)(3)(A)); (A) Plaintiff:
(i) (B) (2) L.J. Mott, G.E.S. Tech Group, Inc. Mr. Mott is expected to testify consistent with his report dated October 1, 2004, and his deposition taken in Denver District Court Case No. 02CV-8036, and his trial testimony in the Denver case. Defendant: None witnesses who may be present at trial (see Fed. R. Civ. P. 26(a)(3)(A)); and (A) Plaintiff:
(i) One or more representatives of Leprino Foods Company who possess skill, knowledge and experience to testify concerning certain matters in the case including, but not limited to, quality control standards in the manufacture of dairy/food products, manufacturing equipment operation, specification, etc.
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Case 1:03-cv-02461-MSK-MEH (B) (3) Document 75 Filed 09/08/2005 Page 8 of 11 Defendant:
(i) John Daily. Consistent with his expert report, Mr. Daily will testify that the silo was designed and manufactured in a non-defective manner, and in rebuttal to Mr. Mott. (ii) Robert Feldmeier. Mr. Feldmeier will testify regarding industry standards, specifications and meaning of the same, intent of parties, consistent with previous testimony, and in rebuttal to Mr. Mott.
(iii) Jake Feldmeier. Mr. Feldmeier will testify regarding silo standards, general course of conduct within the industry, specifications and meaning of the same, intent of parties, consistent with previous testimony, and in rebuttal to Mr. Mott.
witnesses where testimony is expected to be presented by means of a deposition and, if not taken stenographically, a transcript of the pertinent portions of the deposition testimony. See Fed. R. Civ. P. 26(a)(3)(B).
(A)
Plaintiff: None.
(B)
Defendant: None.
7. EXHIBITS
a.
List the exhibits to be offered by each party and identify those to be stipulated into evidence.
(1) Plaintiff:
Brief Description Stipulation Yes / No Equipment Purchase Agreement #03273 Feldmeier drawings No. E-391-00 (LFC 0017-0021 and LFC 0119-0123) Elmira Structures, Inc. July 25, 2000 Invoice (LFC 0052) Cole Inc. July 13, 2000 Invoice (LFC 0053) Southern Tier Crane Service July 12, 2000 Invoice (LFC 0054) Letter from Ritch Swetland to Jake Feldmeier, July 11, 2000 (LFC 0038) Photographs of damaged silo (LFC 0039-0040) Fax from Jake Feldmeier to Ritch Swetland, June 6, 2000 (0021-0024) Letter from Jon Alby to Jake Feldmeier, August 1, 2000 (LFC 0045-06)
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Case 1:03-cv-02461-MSK-MEH Document 75 Filed 09/08/2005 Page 9 of 11 Documents regarding modifications to the Feldmeier silo delivered to Leprino’s facility in Waverly, New York (LFC 0152-0200) Photographs of the subject Feldmeier silo at Leprino’s facility in Waverly, New York Documents regarding removal/installation costs to replace subject Feldmeier silo (including crane rigging, contractor costs, etc.)
Fax from Bruce Dye to Ritch Swetland, May 19, 2000 (0018-0020) Report by L.J. Mott dated October 1, 2004, along with all supporting documentation All documents produced, identified, designated or endorsed by any party to this action Any document necessary for impeachment and/or rebuttal Leprino is still awaiting Feldmeier’s tender of certain discovery required by the Court’s August 23, 2005 Minute Order and, upon receipt and review thereof, Leprino may designate and offer additional exhibits. Also, depending on the Court’s rulings concerning the admissibility of certain of Feldmeier’s exhibits, Leprino may designate and offer additional exhibits. (2) Defendant: See attached exhibit list marked as Exhibit A. Feldmeier is waiting for Leprino to comply with the court’s July 11, 2005 Order compelling the production of certain discovery. Upon receipt therefore, Feldmeier may designate additional exhibits.
(3) Other parties: Not applicable.
b.
Copies of listed exhibits must be provided to opposing counsel and any pro se party no later than five days after the final pretrial conference. The objections contemplated by Fed. R. Civ. P. 26(a)(3) shall be filed with the clerk and served by hand delivery or facsimile no later than 11 days after the exhibits are provided.
8. DISCOVERY
Some limited discovery is still being exchanged pursuant to the Court’s August 23, 2005 Minute Order and the Court’s July 11, 2005 Minute Order.
9. SPECIAL ISSUES
None.
10. SETTLEMENT
Undersigned counsel for the parties certify that:
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Case 1:03-cv-02461-MSK-MEH Document 75 Filed 09/08/2005 Page 10 of 11 a.
Counsel for the parties have met in person and by telephone on multiple occasions during the course of this litigation, including during the month of August 2005, to discuss in good faith the settlement of the case.
b.
During the settlement discussions, the parties were represented by their attorneys; however, a settlement of this case could not be reached.
c.
The parties were promptly informed of all offers of settlement.
d.
Counsel for the parties do not intend to hold future settlement conferences. e.
settlement.
It appears from the discussion by all counsel that there is little possibility of f.
The date of the next settlement conference before the magistrate judge or other alternative dispute resolution method.
g.
Counsel for D.C.COLO.LCivR.16.6.
the parties considered ADR in accordance with
11. OFFER OF JUDGMENT Counsel acknowledge familiarity with the provision of rule 68 (Offer of Judgment) of the Federal Rules of Civil Procedure. Counsel have discussed it with the clients against whom claims are made in this case.
12. EFFECT OF FINAL PRETRIAL ORDER
Hereafter, this Final Pretrial Order will control the subsequent course of this action and the trial, and may not be amended except by consent of the parties and approval by the court or by order of the court to prevent manifest injustice. The pleadings will be deemed merged herein. This Final Pretrial Order supersedes the Scheduling Order. In the event of ambiguity in any provision of this Final Pretrial Order, reference may be made to the record of the pretrial conference to the extent reported by stenographic notes and to the pleadings.
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Case 1:03-cv-02461-MSK-MEH Document 75 Filed 09/08/2005 Page 11 of 11
13. TRIAL AND ESTIMATED TRIAL TIME; FURTHER TRIAL PREPARATION PROCEEDINGS 1.
Trial of this case is to a jury. 2.
Estimated trial time is five (5) days. 3.
Situs of the trial is in the United States District Court for the District of Colorado, Courtroom 12, 9th Floor, Alfred A. Arraj U.S. Courthouse, 901 19th Street, Denver, Colorado 80294.
DATED this _____ day of _____________ 2005.
BY THE COURT:
____________________________________ United States Magistrate Judge APPROVED:
s/ Bret M. Heidemann Michael G. Bohn Bret M. Heidemann Campbell Bohn Killin Brittan & Ray, LLC 270 St. Paul Street, Suite 200 Denver, Colorado 80206
(303) 322-3400 (phone)
(303) 322-5800 (fax) Attorneys for Plaintiff s/ Catherine A. Tallerico Timothy J. Flanagan Catherine A. Tallerico Fowler, Schimberg & Flanagan, P.C. 1640 Grant Street, Suite 300 Denver, Colorado 80203
(303) 298-8603 (phone)
(303) 298-8748 (fax) Attorneys for Defendant
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