Leprino Foods Co v. Feldmeier Equip Inc Document 88: Motion in Limine

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 03-cv-2461-MSK-MEH LEPRINO FOODS COMPANY, Plaintiff, Vv.

FELDMEIER EQUIPMENT, INC.,

Defendant.

MOTION IN LIMINE TO EXCLUDE EVIDENCE
RELATING TO A PREVIOUSLY SETTLED MATTER BY PLAINTIFF

Defendant Feldmeier Equipment, Inc., by and through counsel, Fowler, Schimberg & Flanagan, P.C., hereby move to exclude evidence relating to a previously settled matter by Plaintiff, and state as follows:

RELIEF REQUESTED

Feldmeier seeks an Order from the Court precluding Plaintiff, Leprino Foods Company (“Leprino”) from introducing evidence relating to shipping damage the tank incurred. Such evidence is barred by the doctrine of release, F.R.E. 402 and 403.

ARGUMENT

In the Final Pretrial Order, the Plaintiff listed seven exhibits relating to the shipment of the Feldmeier silo to thc Waverly facility and the damage that occurred during the course of that shipment. These exhibits include the following:

(a) Elmira Structures, Inc. July 25, 2000 invoice (LFC 0052);

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(b) Cole, Inc. July 13, 2000 invoice (LFC 0053);

(c) Southern Tier Crane Service July 12, 2000 invoice (LFC 0054),

(d) Letter from Ritch Swetland to Jake Feldmeier, July 11, 2000 (LFC 0038);

(e) Photographs of damaged silo (LFC 0039-0040);

(f) Fax from Jake Feldmeier to Ritch Swetland, June 6, 2000 (LFC 0021- 0024); and

(g) Letter from John Alby to Jake Feldmeier, August 1, 2000 (LFC 0045-46). The Court has previously determined that claims relating to the damaged silo (which Feldmeier fixed) and delay in delivery were released. See Order Granting in Part and Denying in Part Summary Judgment dated February 3, 2006. As such, the items listed are inadmissible pursuant to the doctrine of release.

Additionally, such evidence is not relevant to the issue in the case. Relevant evidence is that evidence that has a tendency to make the existence of fact that is of consequence to the determination of the action more probable or less probable. F.R-E. 401. All evidence relating to the damaged silo which was subsequently fixed and then all issues relating thereto resolved by the parties, are not relevant to the case.

To the extent any such evidence may be admissible, such evidence is unfairly prejudicial ~ and confusing under F.R.E. 402 and 403.

CERTIFICATE OF COMPLIANCE

Pursuant to D.C.Colo.LCivR. 7.1, the undersigned has conferred with opposing counsel to resolve the disputed matter. The undersigned and opposing counsel had a conference call on April 11, 2006 to discuss these issues. The parties were not able to reach a resolution and

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Plaintiff opposes this Motion.

WHEREFORE, Defendant requests that the Court Order that Plaintiff be precluded from introducing into evidence testimony or exhibits that relate to the damage the silo underwent in transport, and damages incurred due to the accident.

Respectfully submitted this 11" day of April, 2006.

FOWLER, SCHIMBERG & FLANAGAN, P.C.

s/Catherine A. Tallerico Catherine A. Tallerico Timothy J. Flanagan

1640 Grant Street Denver, Colorado 80203 Telephone: 303.298.8603

ATTORNEYS FOR DEFENDANT

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CERTIFICATE OF SERVICE

I hereby certify that on this 11th day of April, 2006, I caused a true and correct copy of the foregoing MOTION IN LIMINE TO EXCLUDE EVIDENCE RELATING TO A PREVIOUSLY SETTLED MATTER BY PLAINTIFF to be was filed with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to the following email addresses:

Michael G. Bohn, Esq.

mbohn@campbellbohn.com

Mr. Jake Feldmeier iakeofeldmeier.com

s/Michelle Rocke