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Case 1:03-cv-02461-MSK-MEH Document 91 Filed 04/11/2006 Page1of5 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.
DEFENDANT’S MOTION IN LIMINE RE: OVERFLOW RATE
Defendant, Feldmeier Equipment, Inc. (“Feldmeier”’), by and through undersigned counsel, hereby submits its Motion in Limine re: Overflow Rate, as follows:
RELIEF REQUESTED
Feldmeier seeks an order from the Court precluding Plaintiff, Leprino Foods Company (“Leprino”), from arguing that the requirement in the parties’ contract regarding flow of 1000 gallons per minute (“gpm”) relates to the amount of liquid that can flow through a tank’s overflow system, i.e., “overflow rate”. Such argument is not only contrary to Leprino’s testimony in the prior state court action., it is also barred by the doctrine of collateral estoppel because the state court expressly determined that the requirement in that case related to the amount of air displacement required for filling or emptying a tank, i.e, “fill rate”.
RELEVANT BACKGROUND
Leprino previously sued Feldmeier in Colorado state court (“State Court Action”), asserting essentially the same claims as in this action in regard to tanks purchased from
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Case 1:03-cv-02461-MSK-MEH Document 91 Filed 04/11/2006 Page2of5
Feldmeier and installed at a different facility than the one at issue in this federal court action. In the State Court Action, Leprino’s employees admitted that the contractual requirement for flow of 800 gallons per minute (“‘gpm”) related solely to a tank’s input and output capacity, i.e., “fill rate”, and neither related to a tank’s overflow rate nor constituted a guarantee against implosion. See Exhibit A (State Court Action Transcript vol. VII at 103:1 — 103:8) (testimony of Charles Williams); Exhibit B (State Court Action Transcript vol. VII at 33:11 — 33:21) (testimony of David Dierking). Leprino’s expert in that action, the same expert designated in this action, nevertheless made the same argument now being asserted in this case, i.e., that there was a defect in the tanks’ overflow capacity and that the contract’s reference to 800 gpm was a specified overflow rate.
In its ruling, the trial court in the State Court Action specifically found that the contractual requirement referred to the fill rate, rather than to a tank’s overflow capacity or overflow rate. Exhibit C (Findings and Conclusions dated Jan. 6, 2004), at page 3. “Leprino suggests that this spec was to prevent overfilling even if, as here, their filling equipment malfunctioned. However one cannot conclude that the overflow pipe itself was warranted to discharge liquid at 800 GPM. The specification is a ‘fill rate’ which mentions only the venting
(air) and not the overflow (liquid) pipe, and air displaces at a different rate than liquid. Thus, this “is not a measure [of] discharge capacity.” Jd. The state appellate court affirmed the trial court’s findings on this point, as well as the trial court’s judgment in favor of Feldmeier. Exhibit D (Court of Appeals Judgment dated Nov. 17, 2005), at page 9.
The language of the contract at issue in the State Court Action is virtually identical to the
language of the contract at issue in this action, the only difference being the size of the tanks and
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Case 1:03-cv-02461-MSK-MEH Document91 Filed 04/11/2006 Page3of5
therefore a slightly different gpm requirement (800 instead of 1000). Exhibit E (relevant portion of contract in State Court Action and relevant portion of contract in this action).
ARGUMENT
The doctrine of collateral estoppel bars the re-litigation of essential factual or legal issues actually litigated and determined by a valid and final judgment. E.g., B-S Steel of Kansas, Inc. v. Texas Industries, Inc., 439 F.3d 653, 2006 U.S. App. LEXIS 5109 at *19 (10" Cir. 2006). The doctrine applies where “(1) the issue previously decided is identical with the one presented in the action in question, (2) the prior action has been finally adjudicated on the merits, (3) the party against whom the doctrine is invoked was a party, or in privity with a party, to the prior adjudication, and (4) the party against whom the doctrine is raised had a full and fair opportunity to litigate the issue in the prior action.” /d. at *20.
All four elements of collateral estoppel are present in this case. The issue is identical, 1.e., whether the contractual gpm requirement refers to a tank’s fill rate or refers to an overflow rate. The prior action has been finally adjudicated on the merits, in both the trial court and the court of appeals. The prior action was between the exact same parties. And, finally, Leprino had a full and fair opportunity to litigate the issue both in the trial court and in the Colorado Court of Appeals. Therefore, this Court is precluded from considering Leprino’s argument, and should enter an order precluding Leprino from making the argument at trial or offering any testimony or other evidence in relation to the argument.
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
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April 11, 2006 to discuss these issues. The parties were not able to reach a resolution and Plaintiff opposes this Motion.
WHEREFORE, Feldmeier respectfully requests that the Court enter an order applying the doctrine of collateral estoppel to the overflow rate issue, and precluding Leprino from presenting any testimony or other evidence in relation to that issue.
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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Case 1:03-cv-02461-MSK-MEH Document91 Filed 04/11/2006 Page5of5
CERTIFICATE OF SERVICE
I hereby certify that on this 11th day of April, 2006, I caused a true and correct copy of the foregoing DEFENDANT’S MOTION IN LIMINE RE: OVERFLOW RATE 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 jake@feldmeier.com
s/Michelle Rocke
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PlainSite Cover Page
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Case 1:03-cv-02461-MSK-MEH Document 91 Filed 04/11/2006 Page1of5
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.
DEFENDANT’S MOTION IN LIMINE RE: OVERFLOW RATE
Defendant, Feldmeier Equipment, Inc. (“Feldmeier”’), by and through undersigned
counsel, hereby submits its Motion in Limine re: Overflow Rate, as follows:
RELIEF REQUESTED
Feldmeier seeks an order from the Court precluding Plaintiff, Leprino Foods Company
(“Leprino”), from arguing that the requirement in the parties’ contract regarding flow of 1000
gallons per minute (“gpm”) relates to the amount of liquid that can flow through a tank’s
overflow system, i.e., “overflow rate”. Such argument is not only contrary to Leprino’s
testimony in the prior state court action., it is also barred by the doctrine of collateral estoppel
because the state court expressly determined that the requirement in that case related to the
amount of air displacement required for filling or emptying a tank, i.e, “fill rate”.
RELEVANT BACKGROUND
Leprino previously sued Feldmeier in Colorado state court (“State Court Action”),
asserting essentially the same claims as in this action in regard to tanks purchased from
PDF Page 3
Case 1:03-cv-02461-MSK-MEH Document 91 Filed 04/11/2006 Page2of5
Feldmeier and installed at a different facility than the one at issue in this federal court action. In
the State Court Action, Leprino’s employees admitted that the contractual requirement for flow
of 800 gallons per minute (“‘gpm”) related solely to a tank’s input and output capacity, i.e., “fill
rate”, and neither related to a tank’s overflow rate nor constituted a guarantee against implosion.
See Exhibit A (State Court Action Transcript vol. VII at 103:1 — 103:8) (testimony of Charles
Williams); Exhibit B (State Court Action Transcript vol. VII at 33:11 — 33:21) (testimony of
David Dierking). Leprino’s expert in that action, the same expert designated in this action,
nevertheless made the same argument now being asserted in this case, i.e., that there was a defect
in the tanks’ overflow capacity and that the contract’s reference to 800 gpm was a specified
overflow rate.
In its ruling, the trial court in the State Court Action specifically found that the
contractual requirement referred to the fill rate, rather than to a tank’s overflow capacity or
overflow rate. Exhibit C (Findings and Conclusions dated Jan. 6, 2004), at page 3. “Leprino
suggests that this spec was to prevent overfilling even if, as here, their filling equipment
malfunctioned. However one cannot conclude that the overflow pipe itself was warranted to
discharge liquid at 800 GPM. The specification is a ‘fill rate’ which mentions only the venting
(air) and not the overflow (liquid) pipe, and air displaces at a different rate than liquid. Thus, this
“is not a measure [of] discharge capacity.” Jd. The state appellate court affirmed the trial court’s
findings on this point, as well as the trial court’s judgment in favor of Feldmeier. Exhibit D
(Court of Appeals Judgment dated Nov. 17, 2005), at page 9.
The language of the contract at issue in the State Court Action is virtually identical to the
language of the contract at issue in this action, the only difference being the size of the tanks and
PDF Page 4
Case 1:03-cv-02461-MSK-MEH Document91 Filed 04/11/2006 Page3of5
therefore a slightly different gpm requirement (800 instead of 1000). Exhibit E (relevant portion
of contract in State Court Action and relevant portion of contract in this action).
ARGUMENT
The doctrine of collateral estoppel bars the re-litigation of essential factual or legal issues
actually litigated and determined by a valid and final judgment. E.g., B-S Steel of Kansas, Inc. v.
Texas Industries, Inc., 439 F.3d 653, 2006 U.S. App. LEXIS 5109 at *19 (10" Cir. 2006). The
doctrine applies where “(1) the issue previously decided is identical with the one presented in the
action in question, (2) the prior action has been finally adjudicated on the merits, (3) the party
against whom the doctrine is invoked was a party, or in privity with a party, to the prior
adjudication, and (4) the party against whom the doctrine is raised had a full and fair opportunity
to litigate the issue in the prior action.” /d. at *20.
All four elements of collateral estoppel are present in this case. The issue is identical, 1.e.,
whether the contractual gpm requirement refers to a tank’s fill rate or refers to an overflow rate.
The prior action has been finally adjudicated on the merits, in both the trial court and the court of
appeals. The prior action was between the exact same parties. And, finally, Leprino had a full
and fair opportunity to litigate the issue both in the trial court and in the Colorado Court of
Appeals. Therefore, this Court is precluded from considering Leprino’s argument, and should
enter an order precluding Leprino from making the argument at trial or offering any testimony or
other evidence in relation to the argument.
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
PDF Page 5
Case 1:03-cv-02461-MSK-MEH Document 91 Filed 04/11/2006 Page4of5
April 11, 2006 to discuss these issues. The parties were not able to reach a resolution and
Plaintiff opposes this Motion.
WHEREFORE, Feldmeier respectfully requests that the Court enter an order applying the
doctrine of collateral estoppel to the overflow rate issue, and precluding Leprino from presenting
any testimony or other evidence in relation to that issue.
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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Case 1:03-cv-02461-MSK-MEH Document91 Filed 04/11/2006 Page5of5
CERTIFICATE OF SERVICE
I hereby certify that on this 11th day of April, 2006, I caused a true and correct copy of
the foregoing DEFENDANT’S MOTION IN LIMINE RE: OVERFLOW RATE 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
jake@feldmeier.com
s/Michelle Rocke
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