Free Opening Brief in Support - District Court of Delaware - Delaware

Case 1:04-cv-00163-GMS

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWAR
DONALD M. DUR
INC.

CONTRACTING

Plaintif
vs.

CITY OF NEWAR , et aI. Defendants
and

: CASE NO. 04- 0163- GMS

CITY OF NEWAR Third-Party
vs.

Plaintiff

DONALD M. DUR CONTRACTING FEDERAL INSURCE COMPAN and URS CORPORATION Third-Party Defendants

ST. PAUL FIR &

COMPAN

MAR INSURCE

Intervenor

OPENING BRIEF OF PLAINTIFF IN SUPPORT OF MOTION TO AMEND JUDGMENT TO ADD INTEREST (Docketed at D. I. 305) PURUSANT TO FEDERA RULE OF CIVIL PROCEDURE 59(e)
POWELL, TRACHTMAN , LOGAN
TYBOUT, REDFEAR & PELL
David G. Culley
Delaware Supreme Court il #2141

CARE & LOMBARO, P.
Paul A. Logan
475 Allendale Road , Suite 200 King of Prussia, P A 19406 Telephone: (610) 354- 9700 Facsimile: (610) 354- 9760

Delaware Supreme Court il #3339

750 S. Madison Street , Suite 400 Wilmington , DE 19899- 2092
Telephone: (302) 658- 6901 Facsimile: (302) 658- 4018
Attorneys for Plaintif and Third Party

Defendant Donald M Durkin Contracting
Dated: January 26 , 2007

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. . . .. .. . .. . .. . .. . . . . .. . . .. ... . . . . .. .. .. . . . . . . . . . .. .. .. . . .. . . . . .. ... . .. . .. . .. . . . . .. . . . .. . . .. . . .. . . . . . . . .. ... . . .. ... ...

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TABLE OF CONTENTS
Pa2;e

TABLE OF CITATIONS

.............................................................................................................. 11

NATUR AN STAGE OF PROCEEDINGS ...................................................................
II.
III.

SUMMARY OF ARGUMENT........................................................................................ ... CONCISE STATEMENT OF FACTS ................................................................................

IV.

ARGUMENT ......................................................"""""""""""""""""""""""""""...........
Durkin is Entitled to Collect Pre- Judgment Interest.............................................. 3

Durkin is Entitled to Collect Pre- Judgment Interest at a Rate of 5% Per Anum on Pay Applications Nos. 18 , 19 , 20 , 21 and 23........... 4
Durkin is Entitled to Collect Pre- Judgment Interest for the Compensatory Damages for Unpaid Cost of Work As Provided Under 6 Del. 92301(a) ................................................................................ 6 Durkin is Entitled to Collect Pre- Judgment Interest for the Damages Awarded for Civil Rights Violations As Provided Under 28 US. C. 91961

Durkin is Entitled to Collect Post- Judgment Interest ............................................. 8
CONCLUSION AN RELIEF SOUGHT """""""'"''''''''''''''''''''''''''''''''''''''''''''''''''.......

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............ .......... ................... ......... ..... ....... ....... ..................................................

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TABLE OF CITATIONS
Pa2;e

CASES
Brandywine 100 Corporation v.

New Castle County, et al. 541 A.2d 598 , 1988 Del.

LEXIS 120 (Del. Sup. Ct. 1988).... ..............................................................
Chrysler Corporation v.

Chaplake Holdings, Ltd. , et al. 822 A.2d 1024 2003 Del.

LEXIS 269 (Del. Sup. Ct. 2003) ....................................................................................
Citadel Holding Corp. v.

Roven 603 A.2d 818 (Del. 1992) ...........................................................

Citrin

v.

International Airport Centers LLC, et al. 2006 Del. Ch. LEXIS 166 (Del. Ct.
Ch. 2006)............................................................................................................................

DeLaCruz

v.

Pruitt 590 F. Supp. 1296 , 1984 U.S. Dist. LEXIS 20675 (N. D. Ind. 1984) .............
v.

Golden State Transit Corp.

Los Angeles 773 F. Supp. 204 , 1991 U.S. Dist. LEXIS 11798 (C. D. Cal. 1991).......... ........ ............................................. ........
v.

Jackson

Madric 2006 Del. Super. LEXIS 49 (Del. Supr. Ct. 2006)...........................................
Royal MacCabees Life Insurance Company,

McCalla

v.

269 F. 3d 1128 , 2004 U.S. App.

LEXIS 10796 (9th Cir. 2004) ..............................................................................................
Metropolitan Mutual Fire and Insurance Co. v. Carmen Holding Co. 220 A.2d 778 (Del. 1966)..........................................................................................................................

Miner

v.

City of Glens Falls 999 F.2d 655 , 1993 U.S. App. LEXIS 19416 (2d Cir. 1993) ...........
v.

Moskowitz

Mayor and Council of Wilmington 391 A.2d 209 1978 Del. LEXIS 784

(Del. Sup. Ct. 1978)........................................................................................................ ....

Savarese, et al. v. Agriss, et a!. 883 F.2d 1194 , 1989 U.S. App. LEXIS 12983 (3d. Cir. 1989)...................................................................................................................... 7
Springer v.

Henry, et. aI 2004 WL 2127172 (D. Del. Sept. 16 2004) ................................... , 7 , 8
v.

State Farm Mutual Automobile Insurance Company, et al. c.P. LEXIS 66 (Del. Ct. Com. Pis. 2002) .........

Baron , et a!. 2002 Del.

United States of America et al. v. Star Bright Construction Company, et a!. 848 F. Supp. 1161 , 1994 U.S. Dist. LEXIS 4240 (D. Del. 1994)....................................

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Pa2;e

STATUTES
6 Del. C. 9 2301 ..............................................................................................................................
6 Del. C. 9 230 1
(a)..................................................................................................................... ..

,6

28 U .

C. 91961............................................................................. ......................................... , 2 , 8

28 U . S. C. 91961 (a) .......................................................................................................................... 8
28 U .

C. 91961 (b) ..........................................................................................................................

42 U .

C. 91983................ ............................................................................................................... 7

RULES
Fed. R. Civ. P. 59( e) .......................................................................................................................

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NATURE AND STAGE OF PROCEEDINGS

The jury returned a verdict for Plaintiff and Third Party Defendant Donald M. Durkin
Contracting, Inc. ("Durkin ) against Defendant City of Newark and Councilpersons (collectively
the " City

) on October 5 , 2006. The Cour entered judgment for Durkin based upon the verdict

on October 11 ,

2006. Durkin fied a Motion to Amend Judgment to Add Interest Pursuant to

Federal Rule of Civil Procedure 59(e) (D. I. 305) and an Opening Brief in support thereof (D.!.
306) on October 25 ,

2006. Durkin files this Brief pursuant

to Rule 59(e) to supplement the

interest post-judgment calculation from October 25 2006 until Januar 26 2007.

II.

SUMMARY OF ARGUMENT

Under Delaware law , Durkin is entitled as a matter of right to interest in the following

categories of the award on contract amounts: (1) pre-judgment interest on the pay applications
submitted by Durkin , but not paid by the City and (2) unpaid cost of work due to Durkin as of
the date of termination. Chrysler Corporation v.

Chaplake Holdings,

Ltd. , et al.

822 A. 2d

1024 , 2003 Del. LEXIS 269 (Del.
interest on the civil rights award.

Sup. Ct. 2003). Durkin is also
Springer v.

entitled to

pre-judgment

See e. g.

Henry, et. aI 2004 WL 2127172 (D. Del.

Sept. 16 ,

2004) (Appendix (" App. ) AI- AI6 (D. I. 306)). Finally, Durkin is entitled to receive

post-judgment interest on the entire judgment amount , which includes compensatory damages

for work performed (Jury Verdict Form I.A.l), post termination expenses (Jury Verdict Form
I. A. 2) and
306)). See

damages for civil rights violation (Jury Verdict Form I. B). (App. AI7- A24 (D.
28 U.
C. 91961.

Each of the foregoing categories has been carefully segregated to avoid any duplication
or overlap in claimed costs , and the appropriate rate of interest has been applied to each category.

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III.

CONCISE STATEMENT

OF

FACTS
amount of

On October
$36 667 573. 33. On

5 , 2006

the jury returned

a

verdict for Durkin in the

October 11 ,
(D. I.

2006 the Court entered judgment in favor of Durkin in the

amount of$36 667 573. 33.

298).
18 , 19

The jury awarded Durkin monies it billed the City in payment applications Nos.

, 21 and 23 included as part of the compensatory damages awarded. (Trial Exhibit DUR-

(Jury Verdict Form I.A.l) (App. A17- A24 (D. I. 306)). Durkin is entitled to receive interest on
each of these payment applications as provided for in the contract between the City and Durkin.
(Trial Exhibit DUR-

, Ar. 6 , Bates no. cc- 1232). (App. A25 (D. I. 306)).
666. 55 for compensatory damages for unpaid cost of

The jury awarded Durkin $5,492

work as of the date

of termination. (Jury Verdict

Form I.A. 1 and Trial Exhibit DUR- 68).

Durkin is entitled to receive pre-judgment interest on this amoune pursuant to 6 Del. C. 92301
from the date of termination - February 3 2004 - until the date judgment was entered - October
2006. (D. I. 298).

The jury awarded Durkin $25 000 000. 00 for civil rights violations. (Jury Verdict Form

I.B. App. AI7- A24).

Durkin

is entitled to pre-judgment interest on the violation of civil rights

award from the date of termination - February 3 , 2004 - until the date judgment was entered October 11 ,

2006. (D. I. 298).

Payment Application No. 22 was a credit of ($47 912. 90) due to the City. (Trial Exhibit DUR- 9).

2 The $5,492 666. 55 award for compensatory damages includes $275 837. 79 for the amount of unpaid Payment Applications , which is entitled to interest as provided under the Contract. (Trial Exhibit DUR, Ar. 6 , Bates no. CC- 1232). Accordingly, the amount of compensatory damages that is entitled to interest pursuant to 6 Del. C. 92301 is $5 216 828. 76 ($5,492 666. 55 - $275 837. 79).
3 Council voted to terminate Durkin immediately on February 2 , 2004 (Trial Exhibit DUR-

Durkin of the termination by correspondence dated February 3 , 2004. A69 (D. I. 306).
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See

Complaint

6) and notified 127 App. A26-

g.,

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Durkin is also entitled
$36 667

to

post-judgment interest on the entire jury verdict award of
Durkin is entitled to receive interest from the date of

573.33. Under 28 U.S. c. 91961 ,

judgment - October 11

2006 - until the judgment is paid in full.
IV.

ARGUMENT

Durkin is Entitled to Collect Pre- Jud2;ment Interest
Rule 59(e) permits a party to file a Motion to amend the judgment if the Motion is fied

no later than ten (10) days after entry of the judgment. Federal courts have noted that motions

under Rule 59(e)
interest.

are permitted to

amend judgments to add pre-judgment and post-judgment
269 F. 3d 1128 , 2004

See e. g.

McCalla

v.

Royal MacCabees Life Insurance Company,
cir. 2004) (and cases cited

S. App. LEXIS 10796 (9

therein).
See

Delaware law recognizes the right to collect
Chrysler Corporation v.

pre-judgment interest on a debt.

Chaplake Holdings, Ltd. , et aI"
v.

822 A. 2d 1024

2003 Del. LEXIS 269
391 A. 2d

(Del. Sup. Ct. 2003).

See also Moskowitz

Mayor and Council of Wilmington
Citadel Holding Corp. v.

209
826
781

1978 Del. LEXIS 784 (Del. Sup. ct. 1978);
(Del. 1992);

Roven

603 A.2d 818 ,

Metropolitan Mutual Fire and Ins. Co.

v.

Carmen Holding Co.

220 A.2d 778 ,

(Del. 1966). Pre-judgment

interest is awarded as a matter of right ,

not by judicial discretion.

Moskowitz

v.

Mayor and Council of Wilmington 391 A.2d 209 , 1978 Del. LEXIS 784 (Del. Sup.
v.

ct. 1978).

See also Citrin

International Airport Centers LLC, et al. 2006 Del. ch. LEXIS 166
v.

(Del. Ct. ch. 2006); and

Jackson

Madric 2006 Del. Super. LEXIS 49 (Del. Supr. Ct. 2006).

Delaware federal courts have applied Delaware law recognizing the right to collect pre-

judgment

interest.

See.

g. United

States of America et al.

v.

Star Bright Construction

Company, et al. 848 F. Supp. 1161 , 1994 U.S. Dist. LEXIS 4240 (D. Del. 1994). The interest is
calculated from the date when the payment was due. !d.

When the underlying obligation arises

out of a contract ,

the court should look to the contract to determine to determine when the
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interest begins to accrue.

Id. See also State

Farm Mutual Automobile Insurance Company, et

al.

v.

Baron , et al. 2002 Del. C. P. LEXIS 66 (Del. ct. Com. Pis. 2002). When the contract does

not specify an interest rate , 6 Del. Code 92301(a) states " the legal rate of interest shall be 5%
over the Federal Reserve discount rate including any surcharge as ofthe time from which interest
is due. "
6 Del.

Code 92301(a).

While pre-judgment interest is awarded as a matter of right , the right to pre-judgment

interest is not

self-executing.

Brandywine 100 Corporation

v.

New Castle County, et a!. ,

541

A2d 598 , 1988 Del. LEXIS 120 (Del. Sup. ct. 1988).
be requested in the pleadings or raised at tral.

The request for pre-judgment interest must

Id.

Durkin requested interest in its Complaint
See

and is accordingly, entitled to have the judgment amended to include pre-judgment interest.

Complaint Count I and Count VII , App. A26- A69.

Durkin is Entitled to Collect Pre- Judgment Interest at a Rate of 5% Per Annum on Pay Applications Nos. 18. 19. 20. 21 and 23
The contract between Durkin and the City provides that " (a)ll monies not paid when due

as provided in Aricle 14 of the General Conditions shall bear interest at a rate of five percent per

anum.

(See

Contract at Trial Exhibit DUR-

, Aricle 6 , App. A25. )

Aricle 14 of

the General

Conditions sets forth the process for payment applications to be submitted by Durkin, reviewed

by the Engineer (US
(D. I. 306)).

Corporation) and paid by the City. (Contract ,

Aricle 14 , App. A70- A74.

Under the contract , within ten (10) days after Durkin submits a payment application, the

Engineer will either recommend the payment application to the City for payment or retur it to

Durkin with written reasons for the refusal. (Contract , Aricle 14 , Section 14.4 , App. A70- A74.
(D. I. 306)). If the Engineer approves the payment application for payment , it is presented to the

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City.

Id.

Payment is due to Durkin ten (10) days after the Engineer presents the payment
Id.

application to the City for payment.

Payment applications Nos. 18 , 19 20 and 21 were approved for payment by the Engineer
on December 29 ,
2003. See

Trial Exhibit DUR- , Engineer

s Certificate for

Payment. The

aggregate amount of these payment applications was $210 834. 62.

Payment was then

due from

the City on January 8 2004. (Contract Aricle 14 , Section 14.4 , App. A70- A74. (D. I. 306)).

Durkin is entitled to pre-judgment interest on these monies at a rate of 5% per annum
from January 8 2004 until October 11

2006 - the date of Judgment - for payment applications

Nos. 18 , 19 ,

20 and 21. The total pre-judgment interest due for payment applications Nos. 18

20 and 21 is $29 083. 62.

Payment application No. 23 was approved for payment by the Engineer on January 22
2004. See

Trial Exhibit DUR- , Engineer

s certification for

payment. The total amount

of

payment application No. 23 was $65 003. 17. Payment was then due from the City on February
2004. (Contract , Aricle 14 , Section 14.4 , App. A70-A74. (D. I. 306)). Consequently, Durkin

is entitled to pre-judgment interest at a 5% per annum from February 1 , 2004 until October 11
2006 for Application No. 23 , yielding the total pre-judgment interest due for payment application

No. 23 is $8 753. 17.

In summary, the total amount of pre-judgment interest due on payment applications nos.
, 19
21 & 23 is

$37, 836.

4 The calculation is as follows: 5% per annum interest on $210

834. 62 from 1/8/04 to 1/8/05 = $10 541.73 + 5% per anum interest 1/8/05 to 1/8/06 = $10 541.73 + 5% per annum interest 1/8/06 to 10/11/06 = $8 000. 16. $10 541.73 + $10 541.73 + $8 000. 16 = $29 083. 62. 5 The calculation is as follows: 5% per annum interest on $65
003. 17
from 2/1/04 to 2/1/05 = $3

250. 16 +

5% per annum interest 2/1/05 to 2/1/06 = $3 250.16 + 5% per annum interest 2/1/06 to 10/11/06 =
252. 85. $3 250. 16 + $3 250. 16 + $2 252. 85= $8 753. 17. 6 The calculation is as follows: $29 083. 62 + $8 753. 17 = $37 836. 79.

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Durkin is Entitled to Collect Pre- Judgment Interest for the
Compensatory Damages for Unpaid Cost of Work

As Provided Under

6 Del. &2301(a)

The jury awarded Durkin $5,492 666. 55 as the unpaid cost of work performed as of the

date of termination. (Jur

Verdict

Form I.A. 1 and Trial Exhibit DUR- 68).
19

Since

this amount

includes the amounts in payment application nos. 18 ,

, 20 , 21 and 23 ($275 837. 79), which

pre-judgment interest was already computed per the terms of the contract , and the contract does

not provide for any pre-judgment rate of interest Durkin is entitled to statutory pre-judgment
interest on the balance of $5 216 828. 76
($5,492

666. 55 - $275 837. 79) pursuant to 6 Del. Code

92301(a), which indicates that the rate shall be 5% over the Federal Reserve discount rate

including any surcharge as of the time from which interest is due.

The unpaid cost of the work was due to be paid to Durkin as of the date of termination February 3 ,
2004. See

Trial Exhibit No. DUR- 6 and Complaint

127 App. A50 (D. I. 306). The
See

Federal Reserve discount rate including any surcharge as of February 3 , 2004 was 2. 5%.

http://ww. frbdiscountwindow. orglistoricalrates. cfi ?hdrID=20&dtlID=5 2.

Under 6 Del.
of

Code 92301(a), the appropriate interest rate for the unpaid cost of work in the amount

216 828. 76 is 7. 5% per anum (2. 5% + 5%). Thus , the total pre-judgment interest for the
unpaid cost of work is

$1,050,512. 10.

7 Article 6 of the Contract provides for interest on " all monies not paid when due as provided in Article
14 of the General Conditions... " , which relates only to progress payments on approved applications for

payment. Excepting the amounts in payment applications

18 , 19 , 20 , 21 & 23 , the amounts for

compensatory damages awarded by the jur were not derived from Aricle 14 pay applications , but from computations pursuant to Aricle 11 , for which there is no interest rate on late payments specified.

8 The calculation is as follows: 7. 5% interest on $5 216 828. 76

from 2/3/04 to 2/3/05 = $391

5% interest from 2/3/05
$267 987. 78.
$391

262. 16 +

to 2/3/06 = $391

262.16 + 7. 5% interest from 2/3/06
= $1

to 10/11/06 =

262. 16 + $391 262. 16 + $267 987. 78

050 512.10.

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(p

).

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Durkin is Entitled to Collect Pre- Judgment Interest for the Damages Awarded for Civil Rights Violations As Provided Under 28 U.
&1961
The jury awarded Durkin $25

000 000. 00 for damages due to civil

rights violations.

Durkin is entitled to collect pre-judgment interest on this damage award.

There is no reference in 42 U. C. 91983 as to the award of pre-judgment interest.
Where a federal statute is silent as to the availability of pre-judgment interest , the Court has
discretion to award such interest.

See e. g.

Savarese, et a!.

v.

Agriss, et a!.

883 F. 2d 1194 , 1989
pre-judgment

S. App. LEXIS 12983 (3d. Cir. 1989) (and cases cited therein) (awarding
interest is left to the discretion of the district court).

Most federal courts that addressed the issue of awarding pre-judgment interest in Section

1983 cases have concluded that pre-judgment interest should be awarded.

For example ,

the

District Court for the Central District of California awarded pre-judgment interest on a Section
1983 claim , indicating,
inter alia

that a Section 1983 plaintiff should

recover pre-judgment

interest because " (t)he purose of a 91983 damages award is to compensate the plaintiff for

injuries caused by the deprivation of constitutional rights "
element of compensation , not a penalty.
Golden State Transit Corp.

and "

)rejudgment interest is an
v.

Los Angeles

773 F.

Supp. 204 , 1991 U.S. Dist. LEXIS 11798 (C.D. Cal. 1991) (internal citations omitted). Other
federal courts have echoed this analysis in awarding pre-judgment interest. DeLaCruz v.

Pruitt
pre-

590 F. Supp. 1296 , 1309 , 1984 U.S.

Dist. LEXIS 20675 (N. D.

Ind. 1984) (awarding

judgment interest to a successful Section 1983 plaintiff, the Court noted that " prejudgment

interest serves to further the congressional purposes underlying 91983... "
Glens Falls

Miner

v.

City of

999 F. 2d 655 , 662 , 1993 U.S. App. LEXIS 19416 (2d Cir. 1993) (court affrmed
in a

award of pre-judgment interest
damages incurred.
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91983 case " to fully compensation plaintiff for actual

This Cour has also awarded pre-judgment interest in a Section 1983 case.
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See e. g.

Springer

v.

Henry, et. aI 2004 WL 2127172 (D. Del. Sept. 16 , 2004) (App. AI- AI6

(D. I. 306)).

Durkin suggests that this Cour utilize 28 U. C. 91961 to determine the proper amount
pre-judgment interest that should be awarded. This would be consistent with this Court' s prior
determination of the proper amount of pre-judgment interest to award in a Section 1983 case.
Springer v.

Henry, et. aI 2004 WL 2127172 (D. Del. Sept. 16 2004) (App. AI- AI6 (D. I. 306)).

Accordingly, Durkin is entitled to pre-judgment interest calculated " at a rate equal to the

weekly average I- year constant maturity Treasury yield, as published by the Board of Governors
of the Federal Reserve System.

28 U.

C. 91961(a).

9 The interest shall be compounded

anually.

See

28 U.

C. 91961(b). The total pre-judgment interest for the $25 000 000. 00 award

is

$2,370,491.

Durkin is Entitled to Collect Post- Jud2ment Interest
A party is entitled to recover interest on any money judgment in a civil case recovered in
a district cour. See

28 U.S. c. 91961. The

interest is to be "calculated from the date of the entry

of the judgment , at a rate equal to the weekly average I- year constant maturity Treasury yield , as
published by the Board of

Governors of the Federal Reserve System ,

for the calendar

week

preceding the date of the judgment." 28 U.
be compounded anually. See

C. 91961(a). The post-judgment interest shall also

28 U.

C. 91961(b).

9 Refer to htt://ww. frbdiscountwndow. org/historicalrates. cfm?hdrID=20&dtlID=52.
The ca1culation is as follows: Anual date week ending 2/6/04 to 1/28/05 average interest is 2. 0194% * 000 principal = $504, 855. . Anual date week ending 2/4/05 to 1/27/06 average interest is 7452% * $25 504 855. 77 principal and compounded interest = $955.205. . Anual date week ending 2/3/06 to 10/6/06 average interest is 4. 9700% * $26 460 061. 67 principal and compounded interest = 910.429. Total pre-judgment interest on civil rights award = $504 855. 77 + $955 205. 90 + $910,429. 66 = $2.370.491.33
$25 000
10

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Judgment was entered for Durkin in the amount of $36 667 573. 33
(D. I. 298)
. Accordingly, the appropriate

on October 11

2006.

interest rate under 28 U.

C. 91961 is 4. 90%. 12 The

daily interest for the post-judgment interest award is $4 922. 50 per day. The yearly interest for
the post-judgment interest award is $1 796 711.09 , which is compounded annually

CONCLUSION AND RELIEF SOUGHT
For the reasons set forth above , Plaintiff Donald M. Durkin Contracting, Inc. respectfully

requests that this Court grant its Motion to Amend the Judgment to Add Interest Pursuant to
Federal Rule of Civil Procedure Rule 59(e) in the amount of $3 985 547. 71 which includes prejudgment interest and post-judgment interest up to and including January 26 2007 (which is the
date of the fiing of this Motion). 14 Accordingly, the Judgment should be amended to reflect a
Judgment of

$40.653. 121.04 .
a

Plaintiff

Donald M. Durkin Contracting, Inc. respectfully requests

leave to re- fie

supplemental Motion to calculate the entire post-judgment interest at the time of

payment of the judgment by the City.

Durkin reserves the right to amend the amount of unpaid counsel fees to include fees that were incured after October 2 2006 as indicated in Trial Exhibit DUR- , item 6 , and accordingly amend the amount of post-judgment interest that Durkin is entitled to collect. Durkin recognizes that should the Cour grant its Motion for attorneys ' fees , costs and post-judgment interest pursuant to 42 U.S. C. 91988 and Federal
Rule of Civil Procedure 54 (D. I.

11

307), the amount of the judgment upon which Durkin is seeking to
reduced by attorneys '

recover post-judgment interest wil need to be avoid a double recovery on the attorneys ' fees.
12

fees represented in the judgment to

Refer to htt://ww. frbdiscountwndow. orglhistoricalrates. cfm?hdrID=20&dtlID=52.

Durkin reserves the right to supplement the post-judgment interest calculation at the time of payment of the judgment by the City.

13

The calculation is as follows: $37 836. 79 (pre-judgment interest on Pay Applications) + $1 050 512. (pre-judgment interest on compensatory damages for unpaid cost of work) + $2 370,491.33 (pre-judgment interest on civil rights damages) + $526 707.50 (107 days (10/11/06 to 01/26/07) of post-judgment daily
interest of $4 922. 50)
= $3

14

985 547. 71.

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Dated: January 26

2007

TYBOUT, REDFEAR & PELL
/s/ David G. Culley David G. Culley
By:

Delaware Supreme Court il #2141

750 S. Madison Street , Suite 400 Wilmington , DE 19899- 2092
Telephone: (302) 658- 6901
Facsimile: (302) 658- 4018

POWELL, TRACHTMAN , LOGAN,

CARE & LOMBARO, P.

/s/ Paul A. Logan Paul A. Logan
By:

Delaware Supreme Court il #3339

475 Allendale Road , Suite 200 King of Prussia , PA 19406 Telephone: (610) 354- 9700 Facsimile: (610) 354- 9760
Attorneys for Plaintif and Third Party

Defendant Donald M Durkin Contracting

- 10KOP:359684v1 3514-