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Leprino Foods Co. v. DCI, Inc.

United States District Court, District of Colorado

January 9, 2015

LEPRINO FOODS COMPANY, Plaintiff,
v.
DCI, INC., Defendant.

ORDER

Raymond P. Moore, Judge

This matter is before the Court on Defendant DCI, Inc.’s (“DCI”) motion to consolidate[1](“Motion”) (ECF No. 68) case numbers 13-CV-02430 (the “Lenmoore West Case”) and 14-CV-02731 (the “Greeley Case”). Plaintiff Leprino Foods Company (“Leprino”) opposes the Motion.

For the following reasons, the Court GRANTS, in part, Defendant’s motion to consolidate.

I. BACKGROUND

A. Lenmoore West Case

On September 6, 2013, Plaintiff brought the Lenmoore West Case “for damages for breach of contract, negligent misrepresentation, negligent nondisclosure and products liability arising from DCI’s design, fabrication and sales to Leprino of 26 defective, 10, 000-gallon steel crystallizer tanks. . . .” (ECF No. 1 ¶ 1 in 13-CV-2430.) In this action, Plaintiff alleges that in 2001, it and Defendant “executed a written contract” in which Defendant warranted that “under Section 6.3 of the 2001 Agreement that: ‘[a]ll goods, materials and equipment furnished under this Agreement will be fit for the purpose intended as specified in the Agreement, of good quality, new, free from faults and defects (whether patent or latent) in material or workmanship….” (ECF No. 1 ¶ 9 in 13-CV-2430.) Further, in this action, Defendant’s “warranties expressly extend to future performance of the goods.” (ECF No. 1 ¶ 9 in 13-CV-2430.) In this action, Plaintiff alleges that in 2007, it and Defendant “executed a second written contract” through which the Defendant made the “same express warranties, guarantees and representations extending to the future performance of the goods as contained in the 2001 Agreement.” (ECF No. 1 ¶ 12 in 13-CV-2430.) In this action, Plaintiff informed Defendant that it discovered that the tanks were failing and that the tanks did not conform with Defendant’s “warranties, guarantees and representations” under the 2001 and 2007 agreements. (ECF No. 1 ¶ 14 in 13-CV-2430.) In this action, Defendant informed Plaintiff “that it would not honor any of its warranties, guarantees and representations” under the 2001 and 2007 agreements. (ECF No. 1 ¶ 16 in 13-CV-2430.)

In the Lenmoore West Case, Plaintiff brings the following causes of action:

(1) breach of contract under the 2001 agreement between the parties (ECF No. 1 ¶¶ 17-23 in 13-CV-2430);
(2) breach of contract under the 2007 agreement between the parties (ECF No. 1 ¶¶ 24-30 in 13-CV-2430);
(3) negligent nondisclosure in 2001 (ECF No. 1 ¶¶ 31-37 in 13-CV-2430);
(4) negligent nondisclosure in 2007 (ECF No. 1 ¶¶ 38-44 in 13-CV-2430); and
(5) negligent misrepresentation (ECF No. 1 ¶¶ 45-50 in 13-CV-2430). In the Lenmoore West Case, dispositive motions are due January 21, 2015 and the discovery cutoff was December 17, 2014. (ECF No. 62 in 13-CV-2430.)

B. Greeley Case

On October 6, 2014, Plaintiff brought the Greeley Case “for damages for breach of contract, negligent misrepresentation and negligent nondisclosure arising from DCI’s design, fabrication and sales to Leprino of 10 defective, 10, 000-gallon steel crystallizer tanks. . . .” (ECF No. 1 ¶ 1 in 14-CV-2731.) In this action, Plaintiff alleges that in 2010, it and Defendant “executed a written contract” in which Defendant warranted that “under Section 6.3 of the Agreement that: ‘[a]ll goods, materials and equipment furnished under this Agreement will be fit for the purpose intended as specified in the Agreement, of good quality, new, free from faults and defects (whether patent or latent) in material or workmanship….” (ECF No. 1 ¶ 9 in 14-CV-2731.) Further, in this action, Defendant’s “warranties expressly extend to future performance of the goods.” (ECF No. 1 ¶ 9 in 14-CV-2731.) In this action, Plaintiff informed Defendant that it discovered that the tanks were ...


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