MOTION for Leave to File Surreply to Defendant Feldmeier Equipment, Inc.'s Reply in Support of Motion for Summary Adjudication by Plaintiff Leprino Foods Company. (Attachments: # (1) Proposed Document Surreply of Plaintiff to Defendant's Reply in Support of Motion for Summary Adjudication# (2) Exhibit 5# (3) Exhibit 6 (Part 1 of 2)# (4) Exhibit 6 (Part 2 of 2)# (5) Exhibit 7)(Heidemann, Bret)
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Case 1:03-cv-02461-MSK-MEH
Document 81
Filed 11/17/2005
Page 1 of 6
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.
MOTION OF PLAINTIFF TO FILE SURREPLY TO DEFENDANT FELDMEIER EQUIPMENT, INC.’S REPLY IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION (DOCUMENT 78)
- AND CERTIFICATE OF COMPLIANCE WITH D.C.COLO.LCivR 7.1A
Plaintiff Leprino Foods Company (“Leprino” or “Plaintiff”), through its counsel, respectfully moves this Court for leave to file a Surreply to address evidence and arguments raised for the first time in Defendant Feldmeier Equipment, Inc.’s Reply in Support of Motion for Summary Adjudication. As grounds therefor, Leprino states as follows:
CERTIFICATE OF COMPLIANCE WITH D.C.COLO.LCivR 7.1A After receiving and evaluating Defendant Feldmeier Equipment, Inc.’s Reply in Support of Motion for Summary Judgment (“Reply Brief”) filed on September 14, 2005, Leprino intended to seek leave of the Court to file a surreply to address evidence and arguments Defendant Feldmeier Equipment, Inc. (“Feldmeier”) raised for the first time in
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Case 1:03-cv-02461-MSK-MEH
Document 81
Filed 11/17/2005
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its Reply Brief. At about that time, on September 16, 2005, Feldmeier filed its Motion to Supplement its Previously Filed Reply in Support of Motion for Summary Judgment (“Motion to Supplement”), and Leprino then decided to address those other issues in its response to the Motion to Supplement, which would have been due on October 6, 2005. However, on October 3, 2005, the Court issued its order denying Feldmeier’s Motion to Supplement without prejudice for its failure to comply with D.C.COLO.LCivR 7.1 A. That same day, Feldmeier’s counsel sent counsel for Leprino, Michael G. Bohn, an electronic mail message requesting his position on Feldmeier refiling its Motion to Supplement. Leprino’s counsel responded on October 5, 2005, by stating that Leprino did not object to Feldmeier refiling its Motion to Supplement provided that Leprino could fully respond to the arguments and information in that motion and the supplemental information itself.
In an October 6, 2005 electronic mail message to Leprino’s counsel concerning other issues with this case, Feldmeier’s counsel, Catherine A. Tallerico, stated that she would be in trial the week of October 10th and that she would not be able to address those other issues with the case until the week of October 17th.
Based on that
statement, Leprino reasonably concluded that Feldmeier’s Motion to Supplement would not be filed until sometime after October 17, 2005. However, Leprino’s counsel did not receive any contact from Feldmeier’s counsel until receiving a letter from Ms. Tallerico dated October 26, 2005, which was unrelated to the Motion to Supplement. A recent review of the PACER system revealed that Feldmeier has not yet refiled its Motion to Supplement.
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Case 1:03-cv-02461-MSK-MEH Document 81 Filed 11/17/2005 Page 3 of 6 Although Leprino did not receive any indication from Feldmeier that it does not intend to refile its Motion to Supplement, Leprino does not want any more time to pass before filing this Motion for Leave to File Surreply and the Surreply itself. Accordingly, pursuant to D.C.COLO.LCivR 7.1 A, Leprino’s counsel sent correspondence on November 7, 2005, by U.S. Mail and by facsimile transmission, which sought Feldmeier’s position on the relief requested herein. On November 8, 2005, Leprino’s counsel received an electronic mail message from Ms. Tallerico stating that Feldmeier objects to Leprino filing its Surreply. However, noticeably absent from that message was any indication from Ms. Tallerico that Feldmeier does not intend to refile its Motion to Supplement.
MOTION FOR LEAVE TO FILE SURREPLY
1.
When a moving party advances, in a reply brief, new evidence and new legal arguments in support of its motion for summary judgment, the nonmoving party should be given an opportunity to respond. Green v. New Mexico, 420 F.3d 1189, 1196 (10th Cir. 2005). Importantly, the new material raised for the first time in a reply brief can be either new evidence or new legal arguments.
Doebele v. Sprint/United Management Co., 342 F.3d 1117, 1139 Fn. 13 (10th Cir. 2003). It does not affect the Court’s analysis if it is new evidence that supports arguments already made by the moving party; the nonmoving party must still be given an opportunity to respond to that new material.
Id.
The converse of that, i.e., new arguments being supported by evidence already presented by the moving party in its opening motion, would likewise be true.
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Case 1:03-cv-02461-MSK-MEH 2.
Document 81 Filed 11/17/2005 Page 4 of 6 Fed. R. Civ. P. 56(c) requires that if a court relies on new materials or arguments in a reply brief, it may not forbid the nonmovant from responding to those new materials. Beaird v. Seagate Technology, Inc., 145 F.3d 1159, 1165 (10th Cir. 1998). Conversely, if the trial court does not rely on the new material in reaching its decision, it does not abuse its discretion by precluding a surreply. Green v. New Mexico, 420 F.3d at 1196. The grant or denial of a motion for leave to file a surreply is reviewed under an abuse of discretion standard. Id.
3.
As detailed more fully in the “Surreply of Plaintiff to Defendant Feldmeier Equipment, Inc.’s Reply in Support of Motion for Summary Adjudication (Document 78)” (“Surreply”) filed contemporaneously herewith, Feldmeier raised new evidence and arguments for the first time in its Reply Brief, some of which are set forth below. 4.
Feldmeier’s Motion for Summary Adjudication (“Summary Judgment Motion”) only focused on the delivery dates of the subject silo, it never addressed when Leprino would have become aware, or should have become aware, of the defects in the subject Feldmeier silo. Feldmeier knew from the pleadings and discovery in this case that the delivery dates of the subject silo are not the issue. Yet, Feldmeier never raised the issue of Leprino’s discovery of the defect in the subject silo, forcing Leprino to raise and discuss the issue in its Response Brief. Feldmeier apparently proceeded in that fashion so that it could assert new evidence and new arguments in its Reply Brief and, at the same time, attempt to deprive Leprino of the opportunity to respond to those new materials.
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Case 1:03-cv-02461-MSK-MEH 5.
Document 81 Filed 11/17/2005 Page 5 of 6 Because of the new evidence and arguments raised in the Reply Brief, the Court should and must allow Leprino the opportunity to respond to those new materials. WHEREFORE, Leprino respectfully requests that the Court grant this motion and accept Leprino’s Surreply as filed.
Respectfully submitted this 17th day of November, 2005. CAMPBELL BOHN KILLIN BRITTAN & RAY, LLC By:
s/ Bret M. Heidemann 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
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Case 1:03-cv-02461-MSK-MEH
Document 81
Filed 11/17/2005
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CERTIFICATE OF SERVICE
I hereby certify that on the 17th day of November, 2005, I electronically filed the foregoing MOTION OF PLAINTIFF TO FILE SURREPLY TO DEFENDANT FELDMEIER EQUIPMENT, INC.’S REPLY IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION (DOCUMENT 78) - AND - CERTIFICATE OF COMPLIANCE WITH D.C.COLO.LCivR 7.1A 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
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Case 1:03-cv-02461-MSK-MEH
Document 81
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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.
MOTION OF PLAINTIFF TO FILE SURREPLY TO DEFENDANT FELDMEIER
EQUIPMENT, INC.’S REPLY IN SUPPORT OF MOTION FOR
SUMMARY ADJUDICATION (DOCUMENT 78)
- AND CERTIFICATE OF COMPLIANCE WITH D.C.COLO.LCivR 7.1A
Plaintiff Leprino Foods Company (“Leprino” or “Plaintiff”), through its counsel,
respectfully moves this Court for leave to file a Surreply to address evidence and
arguments raised for the first time in Defendant Feldmeier Equipment, Inc.’s Reply in
Support of Motion for Summary Adjudication. As grounds therefor, Leprino states as
follows:
CERTIFICATE OF COMPLIANCE WITH D.C.COLO.LCivR 7.1A
After receiving and evaluating Defendant Feldmeier Equipment, Inc.’s Reply in
Support of Motion for Summary Judgment (“Reply Brief”) filed on September 14, 2005,
Leprino intended to seek leave of the Court to file a surreply to address evidence and
arguments Defendant Feldmeier Equipment, Inc. (“Feldmeier”) raised for the first time in
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Case 1:03-cv-02461-MSK-MEH
Document 81
Filed 11/17/2005
Page 2 of 6
its Reply Brief. At about that time, on September 16, 2005, Feldmeier filed its Motion to
Supplement its Previously Filed Reply in Support of Motion for Summary Judgment
(“Motion to Supplement”), and Leprino then decided to address those other issues in its
response to the Motion to Supplement, which would have been due on October 6, 2005.
However, on October 3, 2005, the Court issued its order denying Feldmeier’s
Motion to Supplement without prejudice for its failure to comply with D.C.COLO.LCivR
7.1 A. That same day, Feldmeier’s counsel sent counsel for Leprino, Michael G. Bohn,
an electronic mail message requesting his position on Feldmeier refiling its Motion to
Supplement. Leprino’s counsel responded on October 5, 2005, by stating that Leprino
did not object to Feldmeier refiling its Motion to Supplement provided that Leprino could
fully respond to the arguments and information in that motion and the supplemental
information itself.
In an October 6, 2005 electronic mail message to Leprino’s counsel concerning
other issues with this case, Feldmeier’s counsel, Catherine A. Tallerico, stated that she
would be in trial the week of October 10th and that she would not be able to address
those other issues with the case until the week of October 17th.
Based on that
statement, Leprino reasonably concluded that Feldmeier’s Motion to Supplement would
not be filed until sometime after October 17, 2005. However, Leprino’s counsel did not
receive any contact from Feldmeier’s counsel until receiving a letter from Ms. Tallerico
dated October 26, 2005, which was unrelated to the Motion to Supplement. A recent
review of the PACER system revealed that Feldmeier has not yet refiled its Motion to
Supplement.
2
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Case 1:03-cv-02461-MSK-MEH
Document 81
Filed 11/17/2005
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Although Leprino did not receive any indication from Feldmeier that it does not
intend to refile its Motion to Supplement, Leprino does not want any more time to pass
before filing this Motion for Leave to File Surreply and the Surreply itself. Accordingly,
pursuant to D.C.COLO.LCivR 7.1 A, Leprino’s counsel sent correspondence on
November 7, 2005, by U.S. Mail and by facsimile transmission, which sought
Feldmeier’s position on the relief requested herein. On November 8, 2005, Leprino’s
counsel received an electronic mail message from Ms. Tallerico stating that Feldmeier
objects to Leprino filing its Surreply. However, noticeably absent from that message
was any indication from Ms. Tallerico that Feldmeier does not intend to refile its Motion
to Supplement.
MOTION FOR LEAVE TO FILE SURREPLY
1.
When a moving party advances, in a reply brief, new evidence and new
legal arguments in support of its motion for summary judgment, the nonmoving party
should be given an opportunity to respond. Green v. New Mexico, 420 F.3d 1189, 1196
(10th Cir. 2005). Importantly, the new material raised for the first time in a reply brief
can be either new evidence or new legal arguments.
Doebele v. Sprint/United
Management Co., 342 F.3d 1117, 1139 Fn. 13 (10th Cir. 2003). It does not affect the
Court’s analysis if it is new evidence that supports arguments already made by the
moving party; the nonmoving party must still be given an opportunity to respond to that
new material.
Id.
The converse of that, i.e., new arguments being supported by
evidence already presented by the moving party in its opening motion, would likewise
be true.
3
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Case 1:03-cv-02461-MSK-MEH
2.
Document 81
Filed 11/17/2005
Page 4 of 6
Fed. R. Civ. P. 56(c) requires that if a court relies on new materials or
arguments in a reply brief, it may not forbid the nonmovant from responding to those
new materials. Beaird v. Seagate Technology, Inc., 145 F.3d 1159, 1165 (10th Cir.
1998). Conversely, if the trial court does not rely on the new material in reaching its
decision, it does not abuse its discretion by precluding a surreply.
Green v. New
Mexico, 420 F.3d at 1196. The grant or denial of a motion for leave to file a surreply is
reviewed under an abuse of discretion standard. Id.
3.
As detailed more fully in the “Surreply of Plaintiff to Defendant Feldmeier
Equipment, Inc.’s Reply in Support of Motion for Summary Adjudication (Document 78)”
(“Surreply”) filed contemporaneously herewith, Feldmeier raised new evidence and
arguments for the first time in its Reply Brief, some of which are set forth below.
4.
Feldmeier’s Motion for Summary Adjudication (“Summary Judgment
Motion”) only focused on the delivery dates of the subject silo, it never addressed when
Leprino would have become aware, or should have become aware, of the defects in the
subject Feldmeier silo. Feldmeier knew from the pleadings and discovery in this case
that the delivery dates of the subject silo are not the issue. Yet, Feldmeier never raised
the issue of Leprino’s discovery of the defect in the subject silo, forcing Leprino to raise
and discuss the issue in its Response Brief. Feldmeier apparently proceeded in that
fashion so that it could assert new evidence and new arguments in its Reply Brief and,
at the same time, attempt to deprive Leprino of the opportunity to respond to those new
materials.
4
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Case 1:03-cv-02461-MSK-MEH
5.
Document 81
Filed 11/17/2005
Page 5 of 6
Because of the new evidence and arguments raised in the Reply Brief, the
Court should and must allow Leprino the opportunity to respond to those new materials.
WHEREFORE, Leprino respectfully requests that the Court grant this motion and
accept Leprino’s Surreply as filed.
Respectfully submitted this 17th day of November, 2005.
CAMPBELL BOHN KILLIN BRITTAN & RAY, LLC
By:
s/ Bret M. Heidemann
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
5
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CERTIFICATE OF SERVICE
I hereby certify that on the 17th day of November, 2005, I electronically filed the
foregoing MOTION OF PLAINTIFF TO FILE SURREPLY TO DEFENDANT
FELDMEIER EQUIPMENT, INC.’S REPLY IN SUPPORT OF MOTION FOR
SUMMARY ADJUDICATION (DOCUMENT 78) - AND - CERTIFICATE OF
COMPLIANCE WITH D.C.COLO.LCivR 7.1A 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
6
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