Free Appendix - 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. DURIN CONTRACTING
INC.,

Plaintif
vs.

CITY OF NEWAR , et aI. Defendants
and

: CASE NO. 04- 0163- GMS

CITY OF NEW AR Thirdvs.

Party Plaintif

DONALD M. DUR CONTRACTING FEDERAL INSURNCE COMPAN and URS CORPORATION Third-Party Defendants
ST. PAUL FIR

& MARIN INSURCE

COMPAN

Intervenor

SUPPLEMENTAL APPENDIX TO APPENDIX DOCKETED AT D. I. 309 TO OPENING BRIEF OF PLAINTIFF IN SUPPORT OF MOTION IN SUPPORT OF ATTORNEYS' FEES, COSTS AND POST-JUDGMENT INTEREST PURSUANT TO 42 U. c. 1988 AND FEDERA RULE OF CIVIL PROCEDURE 54 (D. I. 308)
(A 715 -

A891)

POWELL , TRACHTMAN, LOGAN, CARE & LOMBARDO, P.
Paul A. Logan Delaware Supreme Court ID #3339 475 Allendale Road , Suite 200 King of Prussia , PA 19406 Telephone: (610) 354- 9700 Facsimile: (610) 354- 9760

TYBOUT , REDFEAR & PELL
David G. Culley
Delaware Supreme Court il #2141

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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TABLE OF CONTENTS

Document

Paee

Supplemental Unsworn Declaration of Paul A. Logan , Esquire in Support of Plaintiffs Motion for Attorneys ' Fees , Costs and Post- Judgment Interest Pursuant to 42 U. c. Section 1988 and Federal Rule of Civil Procedure 54 .......................... .................... .................. ........................ A- 715

Paul A. Logan , Esquire Timesheets for Post Trial Activities """""'''''''''''''''''''''''''''''''''''''' ADavit T. Bolger, Esquire Timesheets for Post- Trial Activities """""""""'''''''''''''''''''''''''''' A-

736
755

Marsha E. Flora, Esquire Timesheets for Post Trial Activities ............................................. A- 776
Expense Report dated January 22 , 2007 ................ .................................... .......... ......... ......... A- 846

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE
DONALD M. DURIN CONTRACTING
INC. Plaintiff
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 INSURNCE COMPANY and URS CORPORATION Third-Party Defendants

ST. PAUL FIR & COMP ANY

, Intervenor

MAR INSURCE

SUPPLEMENTAL UNSWORN DECLARTION OF PAUL A. LOGAN, ESQUIRE IN SUPPORT OF PLAINTIFF' S MOTION (D. I. 307) FOR ATTRONEYS' FEES, COSTS AND POST- JUDGMENT INTEREST PURSUANT TO 42 U. c. ~1988 AND FEDERA RULE OF CIVIL PROCEDURE 54
, Paul A. Logan , Esquire , being oflegal age , do herby certify as follows:

I am an attorney for Plaintiff and Third Pary Defendant
Contracting, Inc. (" Durkin

Donald M. Durkin

) in the above referenced matter , and as such , I have personal

knowledge of the facts and circumstances of this case and of the matter contained within this

Supplemental Declaration. If called as a witness , I am competent to testify as to the facts set
forth herein.

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I previously submitted a Declaration (D. I. 309 at Appendix (" App. ) A- A19) in
support of Durkin s Motion for Attorneys ' Fees , Costs and Post- Judgment Interest pursuant to 42
C.

1988 and Federal Rule of Civil Procedure 54 (D. I. 307) filed on October 25 2006.
I make this Supplemental Declaration in support of Durkin

s Motion for

Attorneys ' Fees , Costs and Post- Judgment Interest pursuant to 42 U.

c.

1988 and Federal Rule

of Civil Procedure 54 to supplement the attorneys ' fees and costs incurred.

City' s Blatant Disre2ard of Discoverv Rules Created a Difficult Course of Liti2ation

The City of Newark (" City )'s blatant disregard of its discovery obligations under

the Federal Rules of Civil Procedure caused great prejudice and injury to Durkin and created an
unnecessarily diffcult course of litigation.
The City s continued discovery violations up through and including the time of

trial caused Durkin to incur needless attorneys ' fees.
The City obstructed the discovery process from the inception of this case.

Durkin served each member of City Council with a Request for Production of
Documents. See

Request for Production of Documents directed to Athey attached as Exhibit

A" to my October 25 , 2006 Declaration (D. I. 309) (hereinafter " October Declaration ) at Ato A- 25.

On or about
Documents on the City. See

September 15 ,

2005 Durkin served

a request for Production of

Exhibit " B" to October Declaration at A- 26 to A- 31.

The Requests asked for inter alia all documents relating to the Reservoir Project
and Durkin , and all documents relied upon when voting to terminate Durkin.
10.

Id.

The City and Council did not timely respond to the Requests.

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11.

On November 22 , 2005 I wrote to counsel

for the City indicating

that it is

imperative that the documents in response to the Request for Production be produced so that
depositions could be scheduled. See

Correspondence from Paul A. Logan ,

Esquire to Paul

Cottrell , Esquire dated November 22 2005 attached as Exhibit " c"
32 to A- 33.
12. On November 29 , 2005 ,

to October Declaration at A-

I wrote to counsel

for the City again requesting the

documents from the Members of the City Council and the

Mayor.

See

Correspondence from

Paul A. Logan , Esquire to Paul Cottrell , Esquire dated November 29 , 2005 attached as Exhibit
D" to October Declaration at A- 34 to A- 36.
13.
On December 5 , 2005 ,

I indicated that due to the discovery schedule , and with an

expectation that the requested documents would be received " next week" , counsel for the City
was to confirm the depositions for December 19 and 20 , 2005.
See

Correspondence from Paul

A. Logan , Esquire to Paul Cottrell , Esquire dated December 5 , 2005 attached as Exhibit " E" to
October Declaration at A- 37 to A- 38.
14.

In another good faith attempt to encourage the City to comply with its discovery

obligations , I wrote to Paul Cottrell , Esquire on December 21 , 2005 , indicating that Durkin must
receive the

documents next week; otherwise ,
See

I indicated that I would need to seek Court

intervention.

Correspondence from Paul A. Logan , Esquire to Paul Cottrell , Esquire dated

December 21 ,

2005 attached as Exhibit " F" to October Declaration at A- 39 to A- 41.

15.

Late in December 2005 , the City produced documents. However , the production
In fact

was , and continued to be deficient , even up through the close of Durkin s case- in-chief.

there has not been one (1) Project-related document that has ever been produced by City CounciL

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16.

Upon reviewing the documents produced in late December 2005 , I immediately

emailed counsel for the City on December 29 ,
produced contained a single document from any of the Council Members.

2005 indicating that none of the materials
See

Email from Paul

A. Logan , Esquire to Paul Cottrell , Esquire dated December 29 , 2005 attached as Exhibit " G" to
October Declaration at A- 42 to A- 43.
17.
I followed up

my email on December

30 , 2005 , again confirming that even

though the Council Members were served with discovery on September 15 , 2005 , they stil had
not produced a single document. See

Correspondence from Paul A. Logan , Esquire to Paul

Cottrell , Esquire dated December 30 2005 attached as Exhibit " H" to October Declaration at A-

44 to A- 46.
18.

On January 8 2006 , I emailed counsel for the City, explaining in detail my review

of the documents and the fact that the City' s responses were deficient in that they stil did not
produce a single document from any of the Council Members. See

Email from Paul A. Logan
to October

Esquire to Paul Cottrell , Esquire dated January 8 , 2006 attached as Exhibit " I"

Declaration at A- 47 to A- 48.
19.

On February 6 , 2006 , Council Member Kalbacher was deposed and for the first

time Durkin learned that the City provided its Council Members with "briefing packets
20.
February 7 ,

My offce immediately

followed up with an email to

counsel for the City on
so

2006 requesting the immediate production and delivery of the "briefing packets "

that they would be available for the next deposition that was scheduled for February 10 , 2006.
See

Email from David T. Bolger , Esquire to Paul Cottrell , Esquire dated February 7 , 2006

attached as Exhibit "J" to October Declaration at A- 49 to A- 52.

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21.

Paul Cottrell ,

Esquire , counsel for the City responded on February 9 , 2006

indicating that " we are gathering (the ' briefing packets ) now and hope to be able to provide you
with copy sets next week." See

Email from Paul Cottrell , Esquire to David T. Bolger , Esquire

dated February 9 , 2006 attached as Exhibit "K" to October Declaration at A- 53 to A- 56.

22.

Durkin learned during the depositions of former Council Member Kalbacher and
destroy the " briefing

current Mayor Funk that both Kalbacher and Fun

packets "

and other

information provided to them in advance ofthe City Council Meetings.
City' s Late Production of Si2nifcant Documents
23.

The City produced three (3) groups

of documents that were previously (and

improperly) withheld during the entire discovery phase of this matter. The 1 st group was

produced approximately a week before trial; the 2
originally scheduled to begin; and the 3
chief.
24.
group was produced

group was produced on the day trial was
after

the close of Durkin s case- in-

Documents contained in these three (3) groups could have streamlined this matter

and saved Durkin hundreds of thousands of dollars in attorneys ' fees and costs.
25.

One problem Durkin faced in preparng this matter for trial was that most of the

Council Members (as well as the City Manager Carl Luft) testified that they were unable to recall
much information surrounding the termination of Durkin and the events that followed.
26.

Some of these documents that were improperly withheld by the City could have

been used to streamline the process , save attorneys ' fees and time , refresh recollections or

impeach sworn testimony.

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27.

Durkin was forced to spend time , money and resources in certain areas of this

litigation that could have been short circuited , if the City had just fully and faithfully complied
with its discovery obligations.
28.

The City s withholding of documents frustrated Durkin s discovery efforts , trial

preparation and caused Durkin to incur additional attorneys ' fees.
29.

Durkin sought a prompt resolution to its dispute with the City by filing a Motion

for Preliminary and Permanent Injunction on April 7 , 2004. (D. I. 6).
30. 31.

The City withheld certain documents that were issue and/or claim- dispositive.
For example ,

the City withheld a January 20 , 2004 memorandum (NW16304)

that indicated that the City was well aware of the legal infirmities in the steps it took to terminate
Durkin.
32.

Durkin and its surety spent two (2) years - and countless legal fees -

attempting

to pin down the City s position on the alleged " notice of default" and " notice

of termination

which the January

20 ,

2004 document would have conclusively refuted the arguments

and

positions taken by the City in its pleadings.
Discoverv Was Voluminous and the Construction and DesieD Issues Were Complex
33. 34.

Discovery in this matter was extensive.

Approximately twenty one (21) baner

s boxes of documents were produced

which included over 50 000 pages of documents , thousands of photographs and several sets of
construction drawings.
35.

My firm had to thoroughly

review and analyze these documents to conduct

discovery in this matter and adequately prepare for trial.

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36.

Myself, and attorneys David T. Bolger and Marsha E. Flora had to master the
sets of construction

extensive documents produced , thousands of photographs and multiple

drawings , select documents for depositions and ultimately for trial exhibits.
37.

Not only was the volume of documents , drawings and photographs extensive , the

construction and design issues were extremely complex.
38.

The complexity of the case is also demonstrated by the fact there were seven (7)
analysis of the performance of two (2)

engineering experts ,

separate prime contractors ,

and

multiple types and manner of testing performed , including soil testing and analysis and stability
calculations.
39.

Over twenty (20) individuals were deposed - sometimes expanding multiple days.

40.
not limited to ,

There were many legal issues that had to be researched and briefed , including, but

notice issues , breach of contract issues , civil rights violations ,

liberty interests

judicial admissions , expert testimony, sharing of experts , spoliation , joint defense , attorney client
privilege , attorney work product , discovery abuses and sanctions.
41.

During the course of the litigation , Durkin fied a Motion for Preliminar and

Permanent Injunction (D. I. 5) and a Motion for Partial Summary Judgment (D. I. 26).
42.

Durkin filed eight (8) Motions in Limine (D. I. 175 , 178 ,

181 ,

184, 190 , 193 , 196

and 205).
43.

Durkin fied four (4) Motions or supplemental briefs for sanctions against the City

for discovery abuses. (D. I. 246 261 263 and 279).

44. 45.

Durkin also fied a Motion to Strike the City s Motions in Limine. (D. I. 203).

Durkin responded to ten (10) Motions in Limine filed by paries in

this matter.

(D. l. 208 211 214 215 216 217 218 219 220 and 223).

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46.

Durkin filed five (5) Reply Briefs regarding Motions in Limine. (D. I. 233 , 234

235 , 236 and 237).
47.

Durkin also filed a Motion

to Preclude the City from offering additional

affirmative defenses (D. I.

271) and an Answering Brief in Opposition to the City s Motion for

Directed Verdict. (D. I.

280).

The Goals of this Liti2ation and the Jurv Verdict
48.

In the litigation ,

Durkin sought , as set forth in its Complaint , compensatory

damages for the City' s breach of contract , including compensatory damages for unpaid cost of

work as of the date

of termination , post termination costs and expenses , including

interest.

Durkin also sought compensatory

damages for the City s violation of Durkin

s civil rights

including interest. (D. I.
49.

1).

After an eight (8) day trial and after several hours of deliberation ,

the Jury

returned a Verdict in the amount of$36 667 573. 33 for Durkin and against the City. (D. I. 298).
50.

Specifically, the Jur found that Durkin was entitled to: compensatory damages
in the amount of $5,492

from the City for work performed

666. 55 (Jury Verdict Form LA. 1 ):

compensatory damages for post termination incured expenses in the amount of $6 174 905.
(Jury Verdict Form I.A.2); and $25 000 000. 00 for violation of civil rights (Jury Verdict Form
I.B.1 ).

Mv Back2round and the Back2round of Attornevs David T. Bol2er and Marsha E. Flora
51.
I graduated from the University of Ilinois in 1973 with

a Bachelor of Science in

engineering and business.
52.

I received my law degree from the University of Toledo School of Law in 1979

with honors. I have been practicing law for twenty seven (27) years.

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53.

From 1979 until 1981

I served as

Assistant Attorney General for the

Commonwealth of Pennsylvania , Department of Transportation.
54.

In 1981 I entered private practice ,

focusing on the representation of contractors

and businesses which deal with local , state and federal governents.
55.

I am licensed to practice in Delaware , Pennsylvania , New Jersey, Maryland , and

North Carolina.
56.

I am also admitted to practice in the following Courts: United States Supreme
Eastern

Cour; United States Third Circuit Court of Appeals; United States District Court ,

District of Pennsylvania; United States District Cour , Middle District of Pennsylvania; United
States District Court , Western District of Pennsylvania; United States District Court , District of
New Jersey; United States District Court , District of Maryland; United States District Court

District of Delaware; United States Tax Court; and United States Court of Federal Claims.
57.

I am a Founding Partner of Powell , Trachtman , Logan , CarrIe & Lombardo , P.

in King of Prussia , Pennsylvania.
58.

I am currently the Township Solicitor for Solebury Township in Bucks County,

Pennsylvania.
59.
For 2005 and 2006 I
have received

Philadelphia Magazine

designation of

Super Lawyer: Construction Litigation.
60. 61. 62.

I have also been qualified as an expert witness in construction litigation cases.

I am Durkin s lead counsel in this matter.

David T. Bolger , Esquire and Marsha E. Flora , Esquire assisted me in preparng

this case for trial and in tryng this case.

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63.

David T. Bolger , Esquire is a partner with Powell , Trachtman , Logan , CarIe &
has been

Lombardo ,

practicing law for twenty (20) years and has extensive construction

litigation experience. He graduated from Delaware School of Law of Widener University in

1986. Mr. Bolger has served as an adjunct counsel to a multi- disciplinary contracting firm with
offces throughout the

country. In that capacity, Mr. Bolger has provided all maner of legal

services to the varous subsidiary organizations , to include advice on estimating and budgeting

procedures , contract review and administration , proj ect management and supervision , contractor
licensing and registration ,
labor and

employment issues ,

claims review and prosecution

litigation management , and the sale of corporate assets.

Mr. Bolger is licensed to practice in

Pennsylvania , North Carolina , Third Circuit Court of Appeals and the United States Court of
Federal Claims. This Court admitted Mr. Bolger pro hac vice

for this case.
et al

64.

Marsha E. Flora , Esquire is a former parner with Lavin , O' Neil , Ricci

Philadelphia , Pennsylvania. Ms. Flora has been practicing law for fourteen
graduated from Dickinson School of Law in

(14) years.

She

1992. She has extensive

litigation experience

focusing on complex litigation , including construction litigation. Ms. Flora is an experienced

litigator with experience in coordinating and managing national litigation for General Motors
Corporation ,
General Motors of Canada , Suzuki , American Suzuki and

CAMI.

She has

represented clients in complex litigation in over twenty (20) states. She is licensed to practice in
Pennsylvania , New Jersey and the Third Circuit Court of Appeals. This Court admitted Ms.
Flora pro hac vice

for this case.

65.

While David T. Bolger, Esquire , Marsha E. Flora, Esquire and I each handled

numerous issues in this matter , we employed a division of labor to avoid unecessary duplication

of effort. I concentrated on the depositions , trial and overall case management and trial strategy.

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David T. Bolger, Esquire and Marsha E. Flora , Esquire concentrated on motions , briefing, pre-

trial fiings , trial preparation and extensive document management. David T. Bolger , Esquire
oversaw most of the final work product in all the briefing and pre- trial submissions. David T.
Bolger , Esquire helped to prepare witnesses for triaL He concentrated on the preparation and

presentation of expert witness Thomas Ramsey and fact witness Archie Filshill at triaL Marsha
E. Flora ,

Esquire mastered and organized all of the evidence

used at triaL She

conducted the

majority ofthe research and drafted the majority ofthe pre-trial motions and submissions. David

T. Bolger , Esquire and Marsha E. Flora , Esquire are also concentrating on all of the post- tral
submissions.
66.

From time to time throughout the course of this litigation , I have used the services
to conduct

of several associates in my firm

associate related tasks.

The associates who

performed tasks on this file from time to time for which my firm is seeking compensation are:
J. Pedersen; K.K. Carton , Jr; and J. S. Bainbridge.
67.

Also for appropriate tasks I used the services of paralegals. The paralegals who

performed tasks on this fie from time to time were D. Pierson , S. M. Goss and AM. Detitto.
68.

Also from time to time I enlisted the help of the Durkins in order to save money

in attorneys ' fees. For example ,

the Durkins conducted various Reservoir site visits to obtain

photographs for review and use during this matter. The Durkins also helped in analyzing certain

of the documents produced and in organizing and collecting documentation in support of the
damages claimed.

69.

To the best of my ability, I endeavored to limit the time expended on discovery,

briefing and trial , consistent with my professional obligation to my clients and the high financial
losses they were suffering.

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70.

I believe I achieved these goals and the services for which my firm

requests

compensation as set forth herein were reasonable and necessary to the prosecution of this action.

Time Keepin2 Records
71.

My offce

s normal practice of keeping time for biling

puroses consists of

recording electronically time , the date , a timekeeping code , and a brief description of the services

rendered into a softare

program

called Carpe Diem. The information can then be collated and

retrieved. A document setting forth descriptions for the Carpe Diem Phase Codes and the Task
Codes referenced on my firm s timesheets is found at App. A100- A102 (D. I. 309).
72.

The timesheets for the attorneys and paralegals who did work on this fie

for

which my firm is seeking payment are found in the Appendix. Timesheets for Paul A Logan
Esquire App. A103- A390 (D. I. 309) and App. A- 736 to A- 754. Timesheets for David T. Bolger

Esquire App. A391- A508 (D. I. 309) and App. A- 755 to A- 775. Timesheets for Marsha E. Flora

Esquire App. A509- A627 (D. I. 309) and App. A- 776 to A- 845.

Timesheets

for M. J. Pedersen

Esquire App. A628- A639 (D. I. 309). Timesheets for KK Carton , Jr. , Esquire App. A640- A644
(D. I. 309). Timesheets for J. S. Bainbridge , Esquire App. A645- A654 (D. I. 309). Timesheets for
Paralegal S. M.

Goss App. A655- A656 (D. I. 309). Timesheets for Paralegal D. R. Pierson App.

A657- A662 (D. I. 309). Timesheets for Paralegal AM. Detitto App. A663- A665 (D. I. 309).
Reasonable Hourly Rates

73.

During the course of this litigation my hourly rate was $250 per hour. My rate of

$250 per hour is the normal rate I regularly bill clients who pay on an hourly, non-contingent

basis. I am familiar with the hourly rates charged in many areas , especially Philadelphia and
Wilmington. In my opinion , my rate of $250 per hour is not excess of the usual and customary

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rates for Philadelphia or Wilmington attorneys who enjoy comparable reputations ,
expenence.
74.
My normal billing rate as of January 2005

skil and

was $275 per hour. However , based

on the financial constraints of Durkin , I have never increased my rate from $250 for this
litigation.
75.

During the course of this litigation David T. Bolger , Esquire s hourly rate was

$250 per hour. Mr. Bolger

s rate of $250 per hour is the normal rate my firm regularly bils

clients who pay on an hourly, non-contingent basis. I am familiar with the hourly rates charged

in many areas , especially Philadelphia and Wilmington. In my opinion , Mr. Bolger s hourly rate

of $250 per hour is not excess of the usual and customar rates for Philadelphia or Wilmington
attorneys who enjoy comparable reputations , skill and experience.
76.
Mr. Bolger s biling rate as of January 1 ,

2005 was $275 per hour. However

based on the financial constraints of Durkin , our firm has never increased his rate from $250 for
this litigation.

77.

During the course of this litigation Marsha E. Flora , Esquire s hourly rate was

$200 per hour. Ms. Flora

s rate of $200 per hour is the normal rate my firm regularly bils

clients who pay on an hourly, non-contingent basis. I am familiar with the hourly rates charged

in many areas , especially Philadelphia and Wilmington. In my opinion , Ms. Flora s hourly rate

of $200 per hour is not excess of the usual and customary rates for Philadelphia or Wilmington
attorneys who enjoy comparable reputations , skill and experience.
78.

During the course of this litigation three (3) associates

did work on this fie

for

which my firm is seeking reimbursement. These associates , their hourly rates and experience is
listed in the chart below:

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J. Pedersen
K.K. Carton ,

$175

Practicing for approximately 9 years Practicing for approximately 7 years
Practice for approximately 6 years

Jr.

$175

S. Bainbridge

$150

79.

The hourly rates for the associates listed above of $150 per hour and $175 per

hour are the normal rates my firm regularly bills clients who pay on an hourly, non-contingent
basis for associates with the relative experience listed above. I am familiar with the hourly rates

charged in many areas , especially Philadelphia and Wilmington for associates. In my opinion

the associate hourly rates of $150 per hour and $175 per hour are not excess of the usual and

customary rates for Philadelphia or Wilmington attorneys who enjoy comparable reputations
skill and experience.
80.

During the course of this litigation the hourly rate for Paralegals D. Pierson , S.

Goss and AM. Detitto was $60 per hour. The Paralegal' s rate of $60 per hour is the normal rate

my firm regularly bils clients who pay on an hourly, non-contingent basis. I am familiar with
the hourly rates charged in many areas , especially Philadelphia and Wilmington. In my opinion
the Paralegal hourly rate of $60 per hour is not

excess of the usual and customar rates

for

Philadelphia or Wilmington Paralegal who enjoy comparable reputations , skill and experience.
81.

In the exercise of billing judgment I have eliminated

38. 5 hours

representing

117. 50.

1 The 38. 5 hours eliminated representing $7
i'.. ..Attorrieyi Crawley Star

117. 50 consists of the following:

Hours
4.4

.Rate
175

'rotal
$245 $660

$150

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82.

The time set forth in this declaration is taken from my offce records.

I believe

that this time accurately reflects the time and services for this case and for which my firm is
seeking payment.

Total Lodestar Time for Liti2ation Case Assessment. Development and Evaluation
83.
Litigation case assessment

development and

evaluation includes fact

investigation and development , analysis/strategy, work with experts and consultants , document
and fie management ,

budgeting, settlement (and non-binding ADR ,

if applicable),

and other

case assessment , development and evaluation.

84.

I spent 908. 1 hours at $250 per hour for $227

025. 00

on litigation

case

assessment , development and evaluation.
85.

See

App. A103- A285 (D.!. 309).

David T. Bolger, Esquire spent 336.3 hours at $250 per hour for $84 075. 00 on
See

litigation case assessment , development and evaluation.
86.

App. A391- A446 (D. I. 309).

Marsha E. Flora , Esquire spent 42. 5

hours at $200 per hour for $8

000. 00 on

litigation case assessment , development and evaluation.
87.

See

App. A509- A517 (D. I. 309).

Associate M. J. Pedersen , Esquire spent 12. 5 hours at $175 per hour for $2 187.
See

on litigation case assessment , development and evaluation.

App. A628- A632 (D. I. 309).

Ginsberg Herbert Koller Nofer Jacobson Logan Flora . TOTAL..

8.1

$150 $175 $150 $175 $250 $250 $200

$795 $630 $585 $1,452. $125 025 $600
LS7;t'1j:i$Q:

38;S\

2 Litigation Case Assessment , Development and Evaluation is reflected on my firm

s timesheets with the

Phase Code " LIOO"

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Document 344

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88.

Associate KK Carton ,

Jr. ,

Esquire spent 15. 6

hours at $175 per hour for
See

730. 00 on litigation
(D. I. 309).
89.

case assessment ,

development and evaluation.

App. A640-A644

Associate J. S. Bainbridge , Esquire spent 1.8 hours at $150 per hour for $270 on
See

litigation case assessment , development and evaluation.
90.
is seeking is

App. A645- A646 (D. I. 309).

The total for litigation case assessment , development and evaluation that my firm
$324.288.

Total Lodestar Time for Pre- Trial Pleadines and Motions
91.

Pre- trial

pleadings
court

and

motions

includes

pleadings

preliminar

injunction/provisional relief,
motions and submissions.
92.
motions. See

mandated conferences , dispositive motions , other wrtten

I spent 296.4 hours at $250 per hour for $74 100. 00 on pre- trial pleadings and
App. A286- A318 (D. I. 309).

93.

David T. Bolger, Esquire spent 98.2 hours at $250 per hour for $24 550. 00
See

on

pre- trial pleadings and motions.
94.

App. A447- A454 (D. I. 309).

Associate M. J. Pedersen , Esquire spent 36. 8 hours at $175 per hour for $6 440.
See

pre- trial pleadings and motions.
95.

App. A633- A639 (D. I. 309).

Associate IS. Bainbridge ,

Esquire spent 5. 2 hours at $150 per hour for $780 on

pre- trial pleadings and motions.
96.
pleadings and motions.

See

App. A647- A648 (D. I. 309).

Paralegal S.

M. Goss spent 4. 2 hours at $60 per hour for $312 on pre- tral
App. A655- A656 (D. I. 309).

See

3 Pre-

Trial Pleadings and Motions is reflected on my firm s timesheets with the Phase Code " L200"

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97.

The total for pre- trial pleadings and motions

that my firm is seeking is

$106. 182.

Total Lodestar Time for Discovery
98.

Discovery includes written discovery, document production , depositions , expert

discovery, discovery motions , and other discovery.
99.
I spent 489. 8 hours at $250 per hour for $122,450. 00
on discovery. See

App.

A319- A368 (D. I. 309).
100.
discovery. See

David T. Bolger , Esquire spent 243. 8 hours at $250 per hour for $60 950. 00 on
App. A455- A481 (D. I. 309).

101.
discovery. See

Marsha E. Flora ,

Esquire spent 36. 1 hours at $200 per hour for $7

220. 00 on

App. A518- A523 (D. I. 309).

102.

Associate J. S.
See

Bainbridge , Esquire spent 31.1 hours

at $150 per hour for

665. 00 on discovery.
103.
See

App. A649- A654 (D. I. 309).

Paralegal A. M. Detitto spent 11.7 hours at $60 per hour for $702 on discovery.

App. A663- A665 (D. I. 309).
104.
The total for discovery that my firm is seeking is

$195. 987.

Total Lodestar Time for Business Transactions
105. 106.

Business transactions includes miscellaneous time spent on the fie by Paralegals.
Paralegal D. R. Pierson

spent 3. 8 hours at $60 per hour for $228. 00 on
App. A657- A662 (D. I. 309).

miscellaneous business transactions.

See

107.

The total for business transactions that my firm is seeking is

$228.

Total Lodestar Time for Trial and Trial Preparation
4 Discovery is reflected on my firm s timesheets with the Phase Code " L300" 5 Discovery is reflected on my firm s timesheets with the Phase Code " B200"

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108.

Trial and trial preparation includes fact witnesses , expert witness , written motions

and submissions ,

other trial preparation

and support ,

trial and hearing

attendance ,

post trial

motions and submissions and enforcement.
109.
preparation. See

I spent 302. 8 hours

7 at $250 per hour for $75

700. 00 on trial time and trial

App. A369- A390 (D. I. 309).

110.

David T. Bolger, Esquire spent 479 hours at $250 per hour for $119 750. 00
See

on

trial and trial preparation.

App. A482- A508 (D. I. 309).

111.

Marsha E. Flora , Esquire spent 1 116. 30 hours 8 at $200 per hour for $223 260.
See

on trial time and trial preparation.

App. A524- A627 (D. I. 309).

112.

The total for trial time and trial preparation that my firm is seeking up to and
2006 is

including October 5 ,

$418. 710.

Total Lodestar Time for Post Trial
113.

Up until January 19 , 2007 I have spent 51.8 hours at $250 per hour for $12 950.
See

on post trial activities.

App. A- 736 to A- 754.

114.

Up until December 20 2006 David T. Bolger, Esquire spent 155. 8 hours at $250
See

per hour for $38 950. 00 on post trial activities.
115.

App. A- 755 to A- 775

Up until January 19 2007 Marsha E. Flora , Esquire spent 403.4 at $200 per hour
See

for $80 680. 00 on post trial activities.
116.
January 19 ,

App. A- 776 to A- 845.

The total for post trial activities that my firm is seeking (a) up to and including
2007 for me and Marsha E. Flora , Esquire is $93 630. 00 and (b) up to and including
2006 for David T. Bolder, Esquire is $38 950. 00 for a total of is
$132. 580. 00.

December 20

6 Discovery is reflected on my firm s timesheets with the Phase Code " L400" 7 This number of hours reflects the reduction of 8. 1 hours discussed above. 8 This number of hours reflects the reduction of 3 hours discussed above.

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117.

My firm wil also be seeking reimbursement for all additional post trial activities

not included herein. All post trial activities from January 20 , 2007 forward for me and Marsha
E. Flora, Esquire and from December 21 2006 for David T. Bolger, Esquire wil be provided by
a supplemental Motion.
Total Lodestar Value
118.

The total lodestar value for which my firm is currently seeking reimbursement is

$1. 177.975.

My firm wil provide

a supplemental Motion discussing the fees for

all

additional post trial activities for which we will be seeking reimbursement and which are not
included herein.

Enhancement Multiplier for Delay is Appropriate
119.

As discussed

at length above , the City s blatant disregard for its discovery

obligations caused Durkin to expend needless monies on attorneys ' fees , unnecessarily drew out
this litigation and wasted judicial resources.
120.

Accordingly, I believe that an enhancement multiplier for delay is appropriate to

augment the lodestar. I suggest that the Cour look to 6 Del. C. ~2301 and apply a multiplier of
5% over the Federal Reserve discount rate including any surcharge as of the time from which
interest is due " to the lodestar.
121.

!d.

I suggest that the time period " when the interest was due " as set forth in 6 Del. C.

~2301 should be April 7 , 2004 when Durkin filed its Motion for Preliminary and Permanent
Injunction , seeking an early resolution of this matter. (D. l. 6). In my opinion , at that time if the

City came forward with the information that it was well aware of regarding the legal infirmities
in the steps that it took to terminate Durkin (as evidenced in the January 20 2004 Memorandum

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(NW16304) discussed above), much ,
avoided.

if not all

, of this extended litigation could have been

Costs
122.

Durkin has incured out of pocket expenses of
22

$63. 147.

in connection with the

prosecution of the case up to and including Januar

2007 which are not covered by the bill of

costs. A report summarizing these costs is attached in the Appendix to Plaintiffs Supplemental
Memorandum for Attorneys '
Fees , Costs and Post- Judgment

Interest Pursuant to 42 U.S.

~1988 and Federal Rule of Civil Procedure 54 App. A- 846 to A- 891.
123.

My firm wil provide a supplemental Motion for the additional costs incured

the post trial phase from January 23 2007 forward for which we are seeking reimbursement.
124.

These expenses are reflected in the books and records of my firm and are based

on expense vouchers ,

check records and other similar documentary backup, all of which are

maintained in the ordinary course of our practice.
125.
All of the expenses

referenced in the report at App. A- 846 to A- 891

were

reasonably and necessarly incurred in prosecuting this case.

Conclusion
126.

My firm is seeking compensation for attorneys ' fees incurred (a) up to and

including January 19 , 2007 for me and Marsha E. Flora , Esquire and (b) up to and including
December 20 2006 for David T. Bolder ,
of

Esquire at normal billng rates resulting in the amount

$1. 177. 975.

as reflected above 10 plus an enhancement multiplier for delay.

9 This is the amount reflected under the heading " Recorded Value
(App. A- 891).
Pursuant to 42 V.

" on page 46 of the Expense Report

reserve the right to supplement our Motion for Attorneys ' Fees , Costs and Post Judgment Interest C. g 1988 and Federal Rule of Civil Procedure 54 as additional attorneys ' fees and costs are incured in the post-trial phase of this matter which are not included herein.

10 We

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127.

Accordingly, I believe that an attorneys

' fee

award of

$1. 177.975. 00

lus an

enhancement multiplier for delay is reasonable and appropriate in this case for my offices ' work

as indicated above , plus post-judgment
through January 22

interest.

An award of

$63. 147.

for costs incured

2007 plus post-judgment interest also should be made.

128.

I declare under penalty of peljury that the foregoing is true and correct. Executed

on 26

January, 2007.

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 Telefacsimile: 610- 354- 9760
Attorneys for Plaintif and Third Party

Defendant Donald M Durkin Contracting

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