MOTION to Supplement [69] MOTION for Summary Judgment Defendant Feldmeier Equipment, Inc.'s Motion to Supplement its Previously Filed Reply in Support of Motion for Summary Adjudication (Document 69) by Defendant Feldmeier Equipment, Inc.. (Attachments: # (1) Exhibit H# (2) Exhibit I# (3) Exhibit J)(Tallerico, Catherine)
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Case 1:03-cv-02461-MSK-MEH Document 79 _~ Filed 09/16/2005 Page 1 of3 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 03-cv-2461-MSK-OES LEPRINO FOODS COMPANY, Plaintiff, Vv.
FELDMEJER EQUIPMENT, INC.,
Defendant.
DEFENDANT FELDMEIER EQUIPMENT, INC.’S MOTION TO SUPPLEMENT ITS PREVIOUSLY FILED REPLY IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION (DOCUMENT 69)
Defendant Feldmeier Equipment, Inc. hereby submits its Motion to Supplement its Previously Filed Reply in Support of Motion for Summary Adjudication against Plaintiff as follows:
1. Feldmeier filed its Reply in Support of its Motion for Summary Adjudication on September 14, 2005. Feldmeier desires to supplement that Reply with the attached Exhibits.
2. In the Reply Brief, Feldmeier explained that Leprino was first informed of a "design flaw" in the Feldmeier silos in December 2000. That month Mr. Eric Merritt of Mueller Silos told Chuck Williams, Leprino's Lemoore, California Plant Engineer, that there was a design flaw in the Feldmeier silos and that “the vent and overflow configuration weren't large enough to handle fill rates.” See Reply Brief.
3. The attached exhibits demonstrate that another company, SFI, rendered a similar opinion to Leprino on or around August 13, 2001. SFI's Brian Mills specifically advised Cullen Cooper, Leprino Engineer, that the 4-inch vent/overflow combination was inadequate but that a
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Case 1:03-cv-02461-MSK-MEH Document 79 _~ Filed 09/16/2005 Page 2of3
6-inch line would have been adequate. See Exhibit H (email from Mills to Cooper) and Exhibit I (calculation performed by Mills). Mr. Cooper's testimony authenticating these documents is attached as Exhibit J, Cooper Deposition, p. 48, Il. 16-23; p. 51, Il. 2-15.
4. The attached evidence demonstrates that after consultant Mr. Eric Merritt opined that the Feldmeier tanks contained a design defect in the vent/overflow system, on August 13, 2001, SFI provided a second opinion advising Leprino regarding the same alleged defect that is at issue in this litigation. The statute of limitations provides two years after learning of the possibility of a design defect, for Leprino to conduct tests and determine what theory it would assert against Feldmeier. Leprino, however, failed to bring suit until November 4, 2003, well after the time allowed by the statute.
Wherefore, Feldmeier requests that the Court consider the attached exhibits when evaluating the statute of limitations issues addressed in Feldmeier’s Reply in Support of Motion for Summary Adjudication.
Respectfully submitted this 16" day of September, 2005.
FOWLER, SCHIMBERG & FLANAGAN, P.C.
s/ Catherine A. Tallerico Catherine A. Tallerico 1640 Grant Street Denver, Colorado 80203 Telephone: 303.298.8603
ATTORNEYS FOR DEFENDANT
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Case 1:03-cv-02461-MSK-MEH Document 79 Filed 09/16/2005 Page 3of3
CERTIFICATE OF SERVICE
Thereby certify that on this 16" day of September, 2005, I caused a true and correct copy of the foregoing DEFENDANT FELDMEIER EQUIPMENT, INC.S MOTION TO SUPPLEMENT ITS PREVIOUSLY FILED REPLY IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION (DOCUMENT 69) to be delivered to the following via U.S.D.C. ECF and/or U.S. First Class mail:
Michael G. Bohn, Esq.
Campbell Bohn Killin Brittan & Ray, LLC 270 St. Paul Street, Ste. 200
Denver, CO 80206
Mr. Jake Feldmeier Feldmeier Equipment, Inc.
6800 Townline Road Syracuse, NY 13211
s/ Michelle Rocke Michelle Rocke, Legal Assistant
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Case 1:03-cv-02461-MSK-MEH Document 79 _~ Filed 09/16/2005 Page 1 of3
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 03-cv-2461-MSK-OES
LEPRINO FOODS COMPANY,
Plaintiff,
Vv.
FELDMEJER EQUIPMENT, INC.,
Defendant.
DEFENDANT FELDMEIER EQUIPMENT, INC.’S MOTION TO SUPPLEMENT ITS
PREVIOUSLY FILED REPLY IN SUPPORT OF MOTION FOR SUMMARY
ADJUDICATION (DOCUMENT 69)
Defendant Feldmeier Equipment, Inc. hereby submits its Motion to Supplement its
Previously Filed Reply in Support of Motion for Summary Adjudication against Plaintiff as
follows:
1. Feldmeier filed its Reply in Support of its Motion for Summary Adjudication on
September 14, 2005. Feldmeier desires to supplement that Reply with the attached Exhibits.
2. In the Reply Brief, Feldmeier explained that Leprino was first informed of a
"design flaw" in the Feldmeier silos in December 2000. That month Mr. Eric Merritt of Mueller
Silos told Chuck Williams, Leprino's Lemoore, California Plant Engineer, that there was a
design flaw in the Feldmeier silos and that “the vent and overflow configuration weren't large
enough to handle fill rates.” See Reply Brief.
3. The attached exhibits demonstrate that another company, SFI, rendered a similar
opinion to Leprino on or around August 13, 2001. SFI's Brian Mills specifically advised Cullen
Cooper, Leprino Engineer, that the 4-inch vent/overflow combination was inadequate but that a
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Case 1:03-cv-02461-MSK-MEH Document 79 _~ Filed 09/16/2005 Page 2of3
6-inch line would have been adequate. See Exhibit H (email from Mills to Cooper) and Exhibit I
(calculation performed by Mills). Mr. Cooper's testimony authenticating these documents is
attached as Exhibit J, Cooper Deposition, p. 48, Il. 16-23; p. 51, Il. 2-15.
4. The attached evidence demonstrates that after consultant Mr. Eric Merritt opined
that the Feldmeier tanks contained a design defect in the vent/overflow system, on August 13,
2001, SFI provided a second opinion advising Leprino regarding the same alleged defect that is
at issue in this litigation. The statute of limitations provides two years after learning of the
possibility of a design defect, for Leprino to conduct tests and determine what theory it would
assert against Feldmeier. Leprino, however, failed to bring suit until November 4, 2003, well
after the time allowed by the statute.
Wherefore, Feldmeier requests that the Court consider the attached exhibits when
evaluating the statute of limitations issues addressed in Feldmeier’s Reply in Support of Motion
for Summary Adjudication.
Respectfully submitted this 16" day of September, 2005.
FOWLER, SCHIMBERG & FLANAGAN, P.C.
s/ Catherine A. Tallerico
Catherine A. Tallerico
1640 Grant Street
Denver, Colorado 80203
Telephone: 303.298.8603
ATTORNEYS FOR DEFENDANT
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Case 1:03-cv-02461-MSK-MEH Document 79 Filed 09/16/2005 Page 3of3
CERTIFICATE OF SERVICE
Thereby certify that on this 16" day of September, 2005, I caused a true and correct copy
of the foregoing DEFENDANT FELDMEIER EQUIPMENT, INC.S MOTION TO
SUPPLEMENT ITS PREVIOUSLY FILED REPLY IN SUPPORT OF MOTION FOR
SUMMARY ADJUDICATION (DOCUMENT 69) to be delivered to the following via
U.S.D.C. ECF and/or U.S. First Class mail:
Michael G. Bohn, Esq.
Campbell Bohn Killin Brittan & Ray, LLC
270 St. Paul Street, Ste. 200
Denver, CO 80206
Mr. Jake Feldmeier
Feldmeier Equipment, Inc.
6800 Townline Road
Syracuse, NY 13211
s/ Michelle Rocke
Michelle Rocke, Legal Assistant
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