Leprino Foods Co v. Feldmeier Equip Inc Document 84: Reply to Response to Motion

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Case 1:03-cv-02461-MSK-MEH Document 84 Filed 12/09/2005 Page 1 of 4 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 03-cv-02461-MSK-OES LEPRINO FOODS COMPANY, Plaintiff, v.

FELDMEIER EQUIPMENT, INC.,

Defendant.

REPLY OF PLAINTIFF TO “OPPOSITION TO PLAINTIFF’S MOTION TO FILE SURREPLY TO DEFENDANT FELDMEIER EQUIPMENT, INC.’S REPLY IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION” (DOCUMENT 81) Plaintiff Leprino Foods Company (“Leprino” or “Plaintiff”), through its counsel, respectfully submits the following as its reply in further support of its Motion to File Surreply to Defendant Feldmeier Equipment, Inc.’s Reply in Support of Motion for Summary Adjudication.

1.

Feldmeier’s Opposition to Plaintiff’s Motion to File Surreply to Defendant Feldmeier Equipment, Inc.’s Reply in Support of Motion for Summary Adjudication (“Response”) fails to offer any substantive objection that would prevent the Court from properly granting Leprino leave to file its surreply. As set forth in its initial motion and this reply, Leprino’s Motion to File Surreply to Defendant Feldmeier Equipment, Inc.’s Reply in Support of Motion for Summary Adjudication (“Motion to File Surreply”) must be granted.

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Case 1:03-cv-02461-MSK-MEH 2.

Document 84 Filed 12/09/2005 Page 2 of 4 First, Feldmeier incorrectly argues that the Federal Rules of Civil Procedure do not allow for a surreply. Fed. R. Civ. P. 56(c) implicitly provides the authority for the nonmoving party to file a surreply by requiring 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). Surreplies are properly recognized by the Tenth Circuit when the circumstances so warrant. See, e.g., Green v. New Mexico, 420 F.3d 1189, 1196 (10th Cir. 2005); Doebele v. Sprint/United Management Co., 342 F.3d 1117, 1139 Fn. 13 (10th Cir. 2003).

3.

Second, despite claiming that a surreply is not allowed by the Federal Rules of Civil Procedure, Feldmeier contends that Leprino’s Motion to File Surreply is untimely. That assertion is incorrect. While there is no rule that identifies a timeframe for the filing of surreplies, any delay in filing the Motion for Leave to File Surreply is attributable to Feldmeier, not Leprino. Additionally, in the case of Green v. New Mexico, 420 F.3d 1189, 1196 (10th Cir. 2005), the nonmoving party did not move for leave to file a surreply until twenty-one days after the movant's reply brief was filed. Green v. New Mexico, 420 F.3d at 1196.

While that motion was denied, it was not denied for timeliness issues. Id. As set forth in the Motion to File Surreply, if it were not for the conduct of Feldmeier's counsel, Leprino's Motion to File Surreply would have been filed sometime around October 6, 2005.

4.

Third, as detailed in Leprino's Motion to File Surreply, any delay in the filing of that motion was the direct result of the conduct of Feldmeier's counsel, which

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Case 1:03-cv-02461-MSK-MEH Document 84 Filed 12/09/2005 Page 3 of 4 resulted in the denial of Feldmeier's Motion to Supplement. On September 14, 2005, Leprino intended to seek leave of the Court to file its surreply; however, on September 16, 2005, Feldmeier filed its 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.

After the denial of Feldmeier's Motion to Supplement, Leprino’s counsel made clear to Feldmeier's counsel on October 5, 2005, that Leprino intended to fully respond to the arguments and information contained in Feldmeier's Motion to Supplement as well as the supplemental information itself when Feldmeier refiled its Motion to Supplement. Even as of the date of this reply, Feldmeier has not refiled its Motion to Supplement and has still given no indication to Leprino that it no longer intends to file its Motion to Supplement.

5.

Fourth, contrary to the unsupported statements in Feldmeier's Response, Leprino does not concede that it was aware the possibility of negligence was involved on or before December 14, 2000. Rather, as Leprino has consistently maintained, it did not know of the defect in the Feldmeier silo until Mr. Mott issued his October 13, 2003 report.

WHEREFORE, Leprino respectfully requests that the Court grant Leprino’s Motion to File Surreply and accept Leprino’s Surreply as filed.

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Case 1:03-cv-02461-MSK-MEH Document 84 Filed 12/09/2005 Page 4 of 4 Respectfully submitted this 8th day of December, 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 CERTIFICATE OF SERVICE I hereby certify that on the 8th day of December, 2005, I electronically filed the foregoing REPLY OF PLAINTIFF TO “OPPOSITION TO PLAINTIFF’S MOTION TO FILE SURREPLY TO DEFENDANT FELDMEIER EQUIPMENT, INC.’S REPLY IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION” (DOCUMENT 82) 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/ Jing Lim Jing Lim, Legal Assistant