Free Status Report - District Court of Delaware - Delaware

Case 1 :04-cv-01228-GIVIS Document 37 Filed 05/1 1/2006 Page 1 of 3
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
MPI MECHANICAL, INC., :
Plaintiff,
: Case No. 04-1228 GMS
FEDERAL/INSURANCE COMPANY, JURY TRIAL DEMANDED
Defendant.
STATUS REPORT OF PLAINTIFF, MPI MECHANICAL, INC.
Plaintiff, MPI Mechanical, Inc. hereby submits to the Court the following Status Report,
pursuant to the Court’s letter dated April 27, 2006 requesting the same.
l. Jurisdiction and Service. The parties have previously agreed that this Court
properly has jurisdiction. Jurisdiction of this Court is based upon diversity. Although a partial
settlement after the filing of the Complaint brought the amount claimed below the jurisdictional
limits, at the time of the filing of the Complaint, the jurisdictional limits of the Court were met.
Defendant does not allege there was any improper service.
2. Substance 0f the Action. Plaintiff s claim is based upon a Construction Payment
Bond, designated as Bond No. 8128-39-26 (hereinafter “Payment Bond"), to the City of Newark
(hereinafter "Newark") as obli gee, in connection with Contract No. 02-02-Construction of a
Water Supply Reservoir (the "Constmction Contract"). This case is part of a broader construction
contract dispute, between Daniel M. Durkin Contracting, Inc. (hereinafter "Durkin") and
Newark, which itself is in litigation before this Court. Plaintiff’s initial demand in this litigation
was $90,255.05. A partial settlement paid by the City of Newark directly to Plaintiff in the sum

Case 1 :04-cv-01228-GIVIS Document 37 Filed 05/1 1/2006 Page 2 of 3
of $58,986.83 left a balance due of $31,268.22, together with a claim for interest and actual
attorney’s fees.
3. Identification of Issues. The principal issue in this litigation is the contention of
Defendant that the conditions precedent of the bond and construction contract have not been
satisfied. Defendant contends that no payment is currently due under the Performance Bond
because Durkin, as principal of the Payment Bond, is not obligated to make a final payment to
Plaintiff until Durkin receives payment from Newark and Newark accepts Plaintiffs work.
Plaintiff contends the contract does not require ultimate payment from Newark to Durkin, before
payment is due to Plaintiff.
4. Narrowing of Issues. Not applicable.
5. Relief. Plaintiff seeks judgment in the amount of $31,268.22, together with
interest and actual attorney’s fees and court costs. It is not believed that the actual amount due to
Plaintiff under the contract with Durkin is in dispute.
6. Amendment of Pleadings. None anticipated.
7. J oinder of Parties. It is anticipated that Durkin may wish to join as an additional
party to this litigation.
8. Discovery. Subject to the Court’s approval, the Plaintiff proposes the following
discovery deadlines if settlement cannot be reached:
Rule 26(a) Initial Disclosure: Already submitted
Factual Discovery Cut-Off: August 1, 2006
Exchange of Expert Reports: September 1, 2006
Cut-Off for Expert Discovery: October 1, 2006
9. Estimated Length of Trial. Plaintiff would estimate that the time necessary to
present its case will be ten hours, and that most facts should be submitted to the Court by

Case 1 :04-cv-01228-GIVIS Document 37 Filed 05/1 1/2006 Page 3 of 3
Stipulation or by Admissions. Defendant previously believed it would need ten to fifteen hours
for its witnesses and testimony.
10. Jury Trial. Plaintiff had demanded a jury trial in this matter.
1 1. Settlement. Plaintiff, together with Defendant and Durkin, is in the process of
negotiating a resolution of the instant matter that is tied to the resolution of the Durkin v. Newark
matter. Although the parties have reached a settlement in principle, a final settlement agreement
has not been accepted by all parties. However, Plaintiff is confident that this matter is nearing
resolution. While Plaintiff was hopeful that the settlement agreement would be executed on May
11, 2006, the parties were unable to coordinate such execution. Due to scheduling conflicts, it
was not possible for the parties to create a Joint Status Report in full compliance with this
Court’s instructions dated April 27, 2006.
COHEN, SEGLIAS, PALLAS, GREENHALL
& FURlVIAN, P.C.
Edward Seglias, Esq. (1. D. N0. 2822)
Robert K. Beste, Jr., Esq. (LD. No. 154)
1007 Orange St., Nemours Building, Suite 205
Wilmington, DE 19801
(302) 425-5089
Attorneys for Plaintiff
Date: /1*05