BRIEF in Opposition re [81] MOTION for Leave to File Surreply to Defendant Feldmeier Equipment, Inc.'s Reply in Support of Motion for Summary Adjudication OPPOSITION TO PLAINTIFF'S MOTION TO FILE SUR-REPLY TO DEFENDANT FELDMEIER EQUIPMENT, INC.'S REPLY IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION filed by Defendant Feldmeier Equipment, Inc.. (Tallerico, Catherine)
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Case 1:03-cv-02461-MSK-MEH Document 82 _ Filed 11/23/2005 Page1 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.
FELDMEIER EQUIPMENT, INC.,
Defendant.
OPPOSITION TO PLAINTIFF’S MOTION TO FILE SUR-REPLY
TO DEFENDANT FELDMEIER EQUIPMENT, INC.’S REPLY IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION (DOCUMENT 81)
Defendant Feldmeier Equipment, Inc., by and through its counsel, Fowler, Schimberg & Flanagan, P.C., respectfully submits its Opposition to Plaintiff's Motion to File Sur-Reply to Defendant Feldmeier Equipment, Inc.’s Reply in Support of Motion for Summary Adjudication. As grounds therefore, Feldmeier states as follows:
l. Feldmeier objects to the filing of the Sur-Reply as the Rules do not provide for such a motion. Additionally, the Sur-Reply is untimely. Feldmeier filed its Reply in Support of Motion for Summary Judgment on September 15, 2005. Leprino filed its Sur-Reply two months later, November 17, 2005.
2. Leprino’s delay in filing its Motion to File Sur-Reply was not caused by Feldmeier. Leprino did not seek Feldmeier’s position on such a filing until November 7, 2005, 53 days after Feldmeier’s Reply in Support of Motion for Summary Judgment was filed.
3. Should the Court accept the Sur-Reply, the statements and evidence presented therein support Feldmeier’s Summary Judgment Motion. Colorado law is clear that once a
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Case 1:03-cv-02461-MSK-MEH Document 82 Filed 11/23/2005 Page 2of3 plaintiff determines the possibility that negligence is involved, the statute of limitations begins to run. Housing Authority of the Town of Limon y. Leo A. Daly Co., 35 Colo. App. 244, 533 P.2d 937 (1975); Boyd v. A.O. Smith Harvestore Products, Inc., 776 P.2d 425 (Colo. App. 1989) (a claim arises when plaintiff becomes aware of some damage, and the possibility that negligence was involved. “It is not necessary to know the exact cause of the damage, just the possibility that a defect was involved.’’)
4. Leprino concedes it was aware that the possibility of negligence was involved on or before December 14, 2000. As such, it has failed to comply with the two-year statute of limitations.
WHEREFORE, Feldmeier request that the Court strike the late-filed Sur-Reply and/or grant Defendant’s Motion for Summary Judgment on the statute of limitations and the release issues.
Respectfully submitted this < day of November, 2005.
FOWLER, SCHIMBERG & FLANAGAN, P.C.
\ “es EE AMA vd Lb lee) elo /s/ Catherine A. Tal erico 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 82 Filed 11/23/2005 Page3of3 CERTIFICATE OF SERVICE “3 oF 3 & I hereby certify that on this mA 2 day of November, 2005, I caused a true and correct copy of the foregoing OPPOSITION TO PLAINTIFF’S MOTION TO FILE SUR-REPLY TO DEFENDANT FELDMEIER EQUIPMENT, INC.’2S REPLY IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION (DOCUMENT 81) to be filed by US.D.C. ECF and/or U.S. First Claim 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
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Case 1:03-cv-02461-MSK-MEH Document 82 _ Filed 11/23/2005 Page1 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.
FELDMEIER EQUIPMENT, INC.,
Defendant.
OPPOSITION TO PLAINTIFF’S MOTION TO FILE SUR-REPLY
TO DEFENDANT FELDMEIER EQUIPMENT, INC.’S REPLY IN SUPPORT OF
MOTION FOR SUMMARY ADJUDICATION (DOCUMENT 81)
Defendant Feldmeier Equipment, Inc., by and through its counsel, Fowler, Schimberg &
Flanagan, P.C., respectfully submits its Opposition to Plaintiff's Motion to File Sur-Reply to
Defendant Feldmeier Equipment, Inc.’s Reply in Support of Motion for Summary Adjudication.
As grounds therefore, Feldmeier states as follows:
l. Feldmeier objects to the filing of the Sur-Reply as the Rules do not provide for
such a motion. Additionally, the Sur-Reply is untimely. Feldmeier filed its Reply in Support of
Motion for Summary Judgment on September 15, 2005. Leprino filed its Sur-Reply two months
later, November 17, 2005.
2. Leprino’s delay in filing its Motion to File Sur-Reply was not caused by
Feldmeier. Leprino did not seek Feldmeier’s position on such a filing until November 7, 2005,
53 days after Feldmeier’s Reply in Support of Motion for Summary Judgment was filed.
3. Should the Court accept the Sur-Reply, the statements and evidence presented
therein support Feldmeier’s Summary Judgment Motion. Colorado law is clear that once a
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Case 1:03-cv-02461-MSK-MEH Document 82 Filed 11/23/2005 Page 2of3
plaintiff determines the possibility that negligence is involved, the statute of limitations begins to
run. Housing Authority of the Town of Limon y. Leo A. Daly Co., 35 Colo. App. 244, 533 P.2d
937 (1975); Boyd v. A.O. Smith Harvestore Products, Inc., 776 P.2d 425 (Colo. App. 1989) (a
claim arises when plaintiff becomes aware of some damage, and the possibility that negligence
was involved. “It is not necessary to know the exact cause of the damage, just the possibility that
a defect was involved.’’)
4. Leprino concedes it was aware that the possibility of negligence was involved on
or before December 14, 2000. As such, it has failed to comply with the two-year statute of
limitations.
WHEREFORE, Feldmeier request that the Court strike the late-filed Sur-Reply and/or
grant Defendant’s Motion for Summary Judgment on the statute of limitations and the release
issues.
Respectfully submitted this < day of November, 2005.
FOWLER, SCHIMBERG & FLANAGAN, P.C.
\ “es EE AMA vd Lb lee) elo
/s/ Catherine A. Tal erico
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 82 Filed 11/23/2005 Page3of3
CERTIFICATE OF SERVICE
“3
oF
3 &
I hereby certify that on this mA 2 day of November, 2005, I caused a true and correct
copy of the foregoing OPPOSITION TO PLAINTIFF’S MOTION TO FILE SUR-REPLY
TO DEFENDANT FELDMEIER EQUIPMENT, INC.’2S REPLY IN SUPPORT OF
MOTION FOR SUMMARY ADJUDICATION (DOCUMENT 81) to be filed by US.D.C.
ECF and/or U.S. First Claim 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
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