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

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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 NEWAR Third-Party
vs.

Plaintiff

DONALD M. DURIN CONTRACTING FEDERAL INSURNCE COMPAN and URS CORPORATION Third-Party Defendants

ST. PAUL FIR &

MAR INSURCE

COMPAN

Intervenor

OPENING BRIEF OF PLAINTIFF IN SUPPORT OF MOTION IN SUPPORT OF ATTORNEYS' FEES, COSTS AND POST-JUDGMENT INTEREST (D. I. 307) PURSUANT TO 42 U. C. &1988 AND FEDERAL RULE OF CIVIL PROCEDURE 54

POWELL , TRACHTMAN, LOGAN,

CARE & LOMBARO, P.
Paul A. Logan
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

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
Pal!e

TABLE OF CITATIONS .............................................................................................................. iii

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

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

III.

The City s Wilful and Calculated Concealment of Documents and Blatant Disregard for Discovery Rules and Court Orders Severely Prejudiced Durkin and Created a Diffcult Course of Litigation """"'''''''''''''''''''''''''''''''''''''' 2

The City s Bad Faith Conduct Needlessly Extended and Complicated This Litigation , Causing Durkin to Incur Additional Legal Fees and Costs................... 7

The City Engaged in a Campaign to Conceal Information in an Effort to Destroy Durkin........................................................................................................ 9
Despite the City s Continued Discovery Violations , Discovery Was
V oluminous and Construction and Design Issues Were Complex ....................... 10

Motion Practice and Pre- Trial Submissions Were Extensive...............................
IV.

ARGUMENT.................................................................................................................... .

Durkin is Entitled to Collect Attorneys ' Fees Under Section 42 U.
1988. . ..
"'" 12

Durkin is A Prevailing Party in this Litigation ........................................ 12
The Attorneys ' Fees Incurred Were Reasonably Expended..................... 13

The Attorneys ' Biling Rates Are Market Rates....................................... 16

Durkin is Entitled to Reimbursement for the Attorneys ' Fees and Costs Incurred in Preparation of this Motion and Other Post Trial Proceedings ""'"'''' 19

Durkin is Entitled to an Enhancement Multiplier on the Lodestar for Delay in Payment............................................................................................................ 19

Durkin is Entitled to Reimbursement for Out of Pocket Litigation Costs............ 20

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,......,...,.,.,..........,.......,............. ........ ...................... ........... ...

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Pal!e

Durkin is Entitled to Post-Judgment Interest On the Award of Attorneys
Fees ........... ..........."........ .,..,...,
...... ......... ......, 21

CONCLUSION AN RELIEF SOUGHT............................... .....

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"'"'''''''''' .......... ""'"'' ............................... ........ ......... ... ................. ................ ....................................... ..

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TABLE OF CITATIONS
Pal!e

CASES
Abrams v.

Lightolier Inc. 50 F. 3d 1204 (3d Cir, 1995) ................................................................

Amico v. New Castle County, et al. 654 F. Supp. 982 , 1987 U.S. Dist. LEXIS 1020 (D. Del. 1987) .....................................,......................................................................,............ ,
Auman v.

Muhlenberg School District

2002 U. S.

Dist. LEXIS 5652 (E.D, Pa. 2000).................

Bagby v. Beal 606 F.2d 411 (3d Cir, 1979) ..................................................................................
Blum v.

Stenson 465 U.S. 886 (1984) .............................................................................. .12 , 13 , 16
, 13

City of Burlington v. Dague 505 U. S. 557 (1992) ..................................................................

Dowdell v. City of Apopka 698 F. 2d 1181 (11th Cir. 1983) ............................................,............
Eaves v. County of Cape May,

239 F. 3d 527 , 2001 U.S. App. LEXIS 938 (3d Cir. 2001)...........
v.

General Instrument Corp. of Del.

Nu- TekElectronics Manufacturing, Inc. 197 F.3d 83 (3d Cir. 1999).............................................................................................................. ..

Henry v. Webermeier 738 F. 2d 188 (7th Cir. 1984) ......................................................,..............
Hensley v. Eckerhart 461 U. S. 424 (1983) ............................................................... ............ passim

Hewitt v. Helms 482 U. S. 755 (1987)......
Jones v.

Diamond 636 F.2d 1364 (5th Cir. 1981)(en banc)..........................................................
Inc. of Phila. v. Amer. Radiator
Standard Sanitary Corp.
487 F . 2d

Lindy Brothers Builders,

161 (3d Cir. 1973).....................

Missouri v. Jenkins 491 U.S. 274 (1989)................................. ..........,................................... ...... .
Northcross v.

Board of Ed. 611 F.2d 626 (6th Cir. 1979) ............................................................
Clean Air

Pa. v. Del. Valley Citizens ' Council for
Palmigiano v. Garrahy,

478 U.S. 546 (1986)................................

, 19

707 F.2d 636 (1st Cir. 1983)...................................................................

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''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''..... ... .. .,... . . . . .. .. . . .. ...... . .. . . .. .. .. .. .. .. .. . . ... . . .. . . .. ... .. .. .. ... . . .. .. .. . .. .. .. .. .. ..""""""'''''''''''''''''''''''''''''''''''''''' .. .. .... .. .. .. .. . . .. . .. . .. . ... .. ................",..,. . ... . . . .

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Planned Parenthood of Central New Jersey v. Attorney General of State of New Jersey,
297 F . 3d

253 (3d Cir. 2002)............................................................................................. ..

Rhodes v. Stewart 488 U. S. 1 (1988) ............................................................................................

Student Public Interest Research Group ofNJ., Inc. v. AT&T Bell Laboratory,
1436 (3d Cir. 1988)........... ........................ .........

842 F.2d
, 18

Texas State Teachers Association v. Garland Independent Sch. District 489 U.S. 782
(1989) .

Wiliams v. Thomas 692 F.2d 1032 (5th Cir. 1982)......................................................................

STATUTES
42 U.
C. ~ 1988.............. ..,.. ,.,.", ,................ ...........
... ............. ................... ... passim

6 Del. C. ~ 2301 ...............,.,......................................................................................................... .

RULES
Fed. R. Civ. P. 54( d)

Fed. R. Civ. P. 54( d)(l) ...,...................................................................,................................. ...... ..

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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 , and the Cour entered judgment for Durkin on October

11

2006.

Durkin fied a Motion for attorneys ' fees , costs and post-judgment interest pursuant to 42 U,
~ 1988 and Federal Rule of Civil Procedure 54 (D. 1. 307) and an Opening Brief in support thereof

(D. 1. 308) on October 25 2006. Durkin fies this Opening Brief pursuant to 42 U. C. ~1988 and

Federal Rule of Civil Procedure 54 to supplement the attorneys ' fees and costs claimed.

II.

SUMMARY OF ARGUMENT

Durkin is entitled to recover its attorneys ' fees , costs and post-judgment interest (as well

as an enhancement multiplier on its fees due to delay) because it has met all of the requirements

for reimbursement under 42 U. c. ~1988. First , Durkin is a prevailing party. Second , the
attorneys ' fees and costs incurred were reasonably incured. And , finally, the attorneys '
charged are market rates. See Hensley v.

fees

Eckerhart

461 U.S, 424 (1983).

See also

42 U.

~ 1988.

Durkin recognizes that the jury verdict and judgment includes some portion of the
attorneys ' fees incurred in this matter (Jury Verdict 1.A.3). To the extent that the City attempts

to reduce or seek disallowance of any of those fees , Durkin submits that its Motion for attorneys
fees , costs and post-judgment interest 42 U. C. ~ 1988 and Federal Rule of Civil Procedure 54

sets forth an entirely independent basis for an award of

attorneys

' fees and

costs. Durkin

respectfully requests that this Cour either hold this Motion in abeyance , depending on the final
determination of all post- trial motions , or respectfully allow Durkin to timely renew this Motion
if and when it becomes appropriate to do so.

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III.

CONCISE STATEMENT OF FACTS

On October 5 , 2006 the jury returned a verdict in favor of Durkin in the amount of
$36 667 573.

, which includes contract damages of $11 667 573. 33 and an award on the civil
October 11 ,
(D. 1.

rights violations in the amount of $25 milion, On

2006 the Court entered judgment

in favor of Durkin in the amount of $36 667 573. 33.

298). As the prevailing party, Durkin

is filing this Opening Brief in support of its Motion to recover its attorneys ' fees , costs and postjudgment interest.

The City' s Wilful and Calculated Concealment of Documents and Blatant Disregard for Discovery Rules and Court Orders Severely Prejudiced Durkin and Created a Difficult Course of Litil!ation
The entire course of this litigation was plagued and unnecessarily protracted by the City
blatant violation and disregard
for the discovery rules

, with the most crucial and damaging

documents being disclosed as the trial proceeding took place. Had these materials been made
available when originally requested , they would have unquestionably abbreviated the litigation

and saved Durkin and the Court a great deal of time , money and resources in resolving the key
issues in the case , and likely avoided a considerable amount of the injuries suffered by Durkin.

The City commenced its obstructive discovery practices right from the star of
litigation.
See

this

Paul Logan , Esquire

Unsworn Declaration filed on October
) A1- A56

25 ,

2006 (the

October Declaration

Appendix (" App.
735.

(D. 1. 309) and Logan

s Supplemental

Declaration at App. A- 715 to A-

See also

A2 (D, 1. 309)

5. Durkin served discovery

requests on the City and each of the individual Councilpersons on or about September 15 , 2005.
See

App. A2 (D. 1. 309)
s requests. See

, 8. The City and Council Members did not timely respond to
App. A2 (D. 1. 309)

Durkin

1O. From November 2005 through December 2005

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Durkin

s counsel wrote to the City

s counsel in numerous good faith attempts , urging that the
See

City comply with its discovery obligations.

App. A2- A3 (D. 1. 309) ~ 11 to 14.
2005

When the City finally produced some documents in late December
materially incomplete - and continued to be so even after the close of Durkin
See

, it was

s case- in-chief.

App. A3 (D, 1. 309) ~ 15. In point of

fact

, there was not one (1) document produced from any
2005 production. Id.

of the Councilpersons in the late December

Durkin

s counsel persisted

with its good faith attempts to resolve the discovery issues ,

seeking the City s compliance with

the discovery rules.

See

App. A3- A4 (D. 1. 309) ~ 16 to 18.

The City

s flagrant violations of the

Rules frustrated the entire

discovery process

including, but not limited to , the scheduling and conducting of depositions in this matter,

See
s history of dilatoriness

App. A1- A56 (D. 1. 309). This Court specifically recognized the City

and bad faith in its September 28 , 2006 Order,
6. (D. 1. 268).

See

Court Order dated September 28 , 2006 , page

The improper and unwaranted withholding of documents continued through the close of
Durkin s case- in-chief.
The belated productions consisted of

three (3) groups of documents: the

first group was produced one week before trial; the second group was disclosed in a conference

call with the Court on the day trial was originally scheduled to begin; and the third group was
provided to Durkin after

the close of Durkin

s case in chief. This led

to Durkin filing a

succession of four (4) Memoranda with the Cour immediately prior to picking a Jury and durng
trial , seeking sanctions for the City s flagrant discovery abuses. (D. 1. 246 , 261 , 263 and 279).

In addition to the disruptive effect of the last-minute disclosures , far more egregious was

the enormous legal and factual import of these documents. Not only were the vast majority of
these documents not subject to any proper claim of privilege , but certain documents were in fact
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issue and/or claim- dispositive on the breach of contract claims made by Durkin, Addressing

some of the withheld documents , this Court found that the City wrongfully withheld documents

without a tenable basis of privilege or work product
conduct." See

is evidence of the City

s bad faith

Court Order dated September 28 2006 , page 7, (D. 1. 268).
s discovery

The City

practices significantly hampered Durkin

s retrieval of relevant

source documents bearing upon the central issues in the case.

As an example , a recurrent

problem Durkin confronted was that most of the Councilpersons (as well as the City Manager

Carl Luft) testified that they were unable to recall much information surounding the termination
of Durkin and the events that followed.

This situation was exacerbated because the

Councilpersons had destroyed the " briefing packets " that were provided to them in advance of
Council meetings. Durkin was told by the City during the discovery phase of this case that there

was no way to recreate the Project-related information in the briefing packets from records

curently available to the Council and the City. This information " void" frustrated Durkin
pretrial efforts to properly prepare its case , and left Durkin s proofs subject to attack for lack of
foundation and substantiation.

As it turned

out ,

having seasonable

access to the

documents in question would have

completely changed the legal and factual landscape of this case in Durkin s favor from the onset.

Below are just some examples of these documents and the effect they could have had on this
litigation 1

December 9, 2003 Memo from Luft to Council : Although no one can be certain , this
certainly seems to be the type of document that was provided to City Council in advance of City

Council Meetings in the destroyed " briefing

packets. "

(App. A57- A58

(D. 1. 309)). If Durkin

I Durkin incorporates by reference its Opening Briefs in support of its Motions for Sanctions for a more
detailed review and analysis of the prejudice Durkin suffered and the attorney time , resources and money expended due to the City' s discovery violations. (D. I. 246 261 263 and 279). -4KOP:359686vl 3514-

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had been provided with this document prior to taking

the depositions of City personnel

recollections may have been refreshed and Durkin s discovery process in certain areas may well
have been streamlined.

January 23, 2004 Memorandum from Luft to City Council: This is another document

that would likely have been provided

to City Council in advance of City Council Meetings.

(App. A59 (D. 1. 309)). The January 23 2004 Memorandum is evidence that City Council was in

fact discussing termination of Durkin prior to the February 2 , 2004 meeting where it was voted

to terminate Durkin. This is in direct conflict with the sworn testimony from Councilpersons all of whom testified that they were unaware or not informed of the intent to terminate Durkin

prior to the February 2 , 2004 Council Meeting. Of far greater significance , this memorandum
indicates that Paul Cottrell , Esquire - the City s litigation counsel - "recommended that Durkin

be declared in default of this contract and that their services be terminated.
309)). Not only

(App. A59 (D.

is this in direct contradiction of the sworn testimony of Assistant City Manager
Counci1persons

Carol Houck and the

who uniformly testified that Luft recommended

termination 2 but also confirms that as of that date , the City had not provided Durkin with the

contractually required 7 day notice of intent to terminate. This document , as much or more so
than any other ,

demonstrates that the City was aware , from the commencement of this litigation

that there was no good faith basis for contending that the termination for default was proper.
February 2. 2004 Luft' s Handwritten Notes from the Executive Session : There
is a

specific mention in Luft' s handwritten notes from the Executive Session on February 2 , 2004
(where it was decided to terminate Durkin) of " $276 000 holding from Durkin. "
309)) This appears

(App.

A60 (D,

to be a reference to Durkin s approved pay applications that the City refused

attached to the January 23 , 2004 Memorandum have never been produced by the City - even though there does not appear to be even a colorable basis for their
continued witholding.

2 As an aside , Durkin also notes that the reports

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to pay. Most , if not all , Councilpersons stated under oath that they did not know at the time of

termination that money was being withheld from Durkin,

This document - to which no

colorable claim of privilege could conceivably attach - was the only document produced by the

City that was prepared during the course of the Executive Session, and it provided important
information and insight into the dialogue that was missing from the offcial meeting
from that session.
minutes

March 27. 2004 Luft' s Handwritten Notes from the Executive Session :

Luft

mentions in
(D.!, 309)),
This
the

his notes that URS is " not convincing " and that URS " needs more time. "

(App. A61

None of this information was reflected in the testimony of any of the Councilpersons.

information also completely undermines the testimony of Mr. Luft , Joseph Dombrowski ,

former Newark Water Director, and others who indicated that there was no reason to question

URS' design of the Reservoir. This is another example of a document that should have been
available to Durkin during discovery, and , if produced as required by the Federal Rules of Civil
Procedure , would have provided considerable impeachment value to the litigation positions taken
by the City throughout this lawsuit.

May 24. 2004 Memorandum from Luft to City Council : Mr, Luft testified under oath that

he was unable to recall many of the events surrounding the termination of Durkin and the events

that followed. However ,

in the City

s third and last set of documents produced there is a

memorandum from Mr. Luft to Council tendering his resignation at the request of City Council
apparently over Reservoir issues and the termination of Durkin. (App. A62 (D. 1. 309)). Also , in

what appears to be Mr. Luft' s handwriting, there is a note indicating that " I am responsible and

would like to see it through. If there was any mistake , it was that 1 trusted (and) believed the
experts who we hired...
and so did everyone else for the City.

(App. A63 (D. 1. 309)).

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stretches the bounds of logic to believe that events that were unsettlng enough to cause Mr. Luft

to draft his resignation could be forgotten by the time of his deposition just a year later. 3 The

City was able to capitalize upon this information " void" by allowing witness after witness to
retreat behind a professed lack of recollection , all of which caused Durkin to expend significant

additional time and resources searching for information that should have been produced in the
normal course of discovery.

Not having these documents - and others -

produced as

required by the discovery rules

caused Durkin and its counsel to expend significant amounts of time , money and resources
searching for answers that lay within the body of these materials.

If the City had complied with

its discovery obligations , much of this litigation and resulting injury to Durkin could have been

avoided.

The City' s Bad Faith Conduct Needlessly Extended and Complicated This Litigation Causing Durkin Incur Additional Legal Fees and Costs

to

The most egregious discovery violations committed by the City were the withholding of
documents -

without any legal

basis - that

were issue and claim- dispositive.

What these

documents reveal is an acute knowledge and awareness on the part of the City and its attorneys

(both its litigation attorneys and its solicitor) of the legal

infirmities in the steps

taken to

terminate Durkin s contract. That is , the City knew , certainly by the time Durkin fied its

lawsuit , that the City had terminated Durkin without providing the requisite seven (7) days
notice.

Durkin sought a prompt resolution to its dispute

with the City by fiing a

Motion for

Preliminary and Permanent Injunction on April 7 , 2004. (D. 1.

6).

This is precisely when the

3 It is also hard to believe that during Luft's approximately eight (8) hour deposition he did not reveal even one (1) time that he had tendered his resignation on May 27 , 2004 - or more importantly - that he
felt that he was responsible for what happened.

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City began its pattern

of calculated denials ,

despite knowing that it had failed

to take the

contractually required steps to properly terminate Durkin s contract. This is confirmed by the
Januar 20 , 2004 memorandum

4 from litigation counsel Vicky Petrone
Voeller

to

Assistant City

Administrator Carol Houck , copying third party Jil

ofURS. (App. A72 (D. 1. 309) and

Trial Exhibit DUR- 31), 5 and the memorandum generated 3 days later by Carl Luft to City
Council announcing that Mr. Cottrell had recommended taking steps to declare Durkin in default
and terminate the contract.
Rather than acknowledge it had

erred in terminating Durkin

s contract , the City led

Durkin and this Court on a two year odyssey of obfuscation and delay, with Durkin and its surety

spending hundreds of thousands of dollars pursing the elusive alleged " notice of default" and

notice of termination. The Cour recognized this in its September

28 ,

2006 Order , when it

found that the City did not have a basis to withhold the document and stated that:

Ms. Petrone s representations to her client and URS , are contrary to the City pleadings , arguents and requests of the court. Indeed , juxtaposing Ms. Petrone s communication prior to litigation with the City s representations during litigation brings the City dangerously close to a Rule 11 violation. (Citations omitted). In Ms. Petrone s own words , as of January 20 , 2004 , the City had not
formally taken the

step of declarng Durkin in default

and terminating the

contract. This contradicts statements and

argument made by the City suggesting

otherwise.
See

Court Order dated September 28 2006 , pages 7- 8. (D. 1. 268). The Court then goes on to list

areas in the record where the Cour believed that the City s statements and arguments made to

, 2004 Memorandum indicates: " Please find the following report from the Surety and the independent engineer. I direct your attention to Paragraph 3 of the letter from the Surety, in which she states that the Surety is under no obligation to take action. This is correct. The Surety' s obligation arises after I) the Surety is notified regarding a default and 2) after meeting with the Surety, declaring a default and terminating the contract. You satisfied step 1 in November. We have not formally taken Step 2 since we were waiting for this report. On Thursday we can discuss this option. " (App. An (D. I. 309)). 5 The January 20 2004 Memorandum was produced to Durkin on September 18 2006 - just days before Durkin picked a Jury. -8KOP:359686vl 3514-

4 The January 20

. "
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the Court contradicts the representations in the January 20 , 2004 Memorandum.
Order dated September 28 , 2006 , page 8. (D. I. 268).

See

Court

Had these memoranda been disclosed in candor to Durkin and to the Court , this case

could-and should-have ended shortly after its inception. Instead , Durkin and its surety were
forced to exonerate their rights and claims in a lengthy and expensive litigation , much of which
focused upon ferreting out the information that was contained in the documents being improperly
withheld by the City.

The City Engaged in a Campaign to Conceal Information in an Effort to
Destroy Durkin

What became equally clear with each succeSSIve

disclosure of

documents near the

inception of trial was that the City had a conscious intent to prolong the litigation to the point
where Durkin lacked the financial wherewithal to continue. A review of selected documents

demonstrates that the City' s intent was both long-standing and far-reaching.

It appears that as early as September 2003 , the City believed that Durkin was in financial
trouble. One (1) day

after Durkin provided notice of probable errors in the Contract documents

(Trial Exhibit DUR- 52), as it was required to do under the Contract , (Trial Exhibit DUR- 3) Ms.
Houck , Mr. Dombrowski , Mark Prouty and Jil
Voeller

from URS had a telephone conversation

during which Ms. Houck took notes. (App. A64- A66 (D.!. 309) and Trial Exhibit DUR- 61),

These notes reflect a disturbing reaction to Durkin s contractually mandated notification , to wit:
Mark P. " Got a feeling they (Durkin) are running out of$. "*Consider/ask solicitor create letter that copies bonding company. Doesn t know if it's Durkin who wil be finishing this job. Id.

6 As an aside , Durkin notes that the City has never produced its copy of the January 20 , 2004 Memorandum , nor has it produced the twelve (12) pages that were attached to the January 20 , 2004
Memorandum.
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Ms. Houck' s notes , which appear to be simply her contemporaneous

notes of this

telephone call with URS , were not disclosed during discovery.

The strategies of the City during litigation included a concerted effort to avoid public

debate and disclosure
Solicitor,

of potentially adverse information.

Roger Akin ,

Esquire , the City

expressly stated to

initial litigation counsel for URS that City Council would be

strongly encouraged not to ask any questions ofURS regarding the reservoir design in the public

session or take questions from the floor , but rather all such questions should be reserved for an

Executive Session out of the hearing of the public - and Durkin.

(App. A67- A68

(D.!. 309)).

This structured " one-sided" presentation was designed to promote the interests of the City at the
expense of Durkin , and was tantamount to a " gag order

Perhaps the clearest example of the City s calculated approach to impoverish Durkin is

found in Mr. Akin s May 27 , 2004 memorandum to City Council. (App. A69- A71 (D.!, 309)
and Trial Exhibit DUR- 37).

In that memorandum , Akin advises City Council that " (w)e

perceived that Durkin would like early resolution of the wrongful termination question. Hence
some delay in getting that resolution may (or may not) cause Durkin to be more amendable to a
settlement or a mediation of certain issues,
(App. A69- A
71 (D. I.

309)).

The City
successful ,

s unjustifiable

means of

conducting this litigation were at least parially
dollars in order to sustain itself to the

in that Durkin had to borrow milions of

conclusion of trial , which includes well in excess of $1 milion in legal fees.

Despite the City'

Continued Discovery Violations, Discovery Was
Approximately

Voluminous and Construction and Desil!n Issues Were Complex

Discovery in this matter was extensive. (App. A6-A7 (D. 1. 309)~32- 46. )

twenty-one (21) baner s boxes of documents were produced - amounting to over 50 000 pages

of documents , as well as thousands of photographs and several sets of construction drawings.

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(App. A6 (D. 1. 309) ~33. ) Over twenty (20) individuals were deposed. (App. A6 (D. 1. 309)
~38. ) Some of
these individuals were deposed over multiple days. Id.

In addition ,

numerous

site visits to the Reservoir needed to be conducted during the various stages of construction and

fillng.

Not only was the

volume of documents , drawings and photographs extensive , the

construction and design issues were extremely complex, (App. A6- A7 (D. 1. 309) ~32- 46, ) The
complexity of the case is also demonstrated by the fact that there were seven (7) engineering

experts , the completion of constrction by two (2) contractors , and multiple types of testing,

including soil testing and analysis and stability calculations. (App. A6 (D. 1. 309) ~37.

Motion Practice and Pre- Trial Submissions Were Extensive
Durng the course of the litigation , Durkin fied a Motion for Preliminar and Permanent
Injunction (D. 1.

5) and a Motion for Partial Summary Judgment (D. 1. 26). Durkin filed eight (8)
175 , 178 , 181 , 184 , 190 , 193 , 196 and 205), responded to ten

Motions in Limine (D. 1.

(10)

Motions in Limine fied by paries in this matter (D. 1. 208 , 211 , 214 , 215 , 216 , 217 , 218, 219

220 and 223), filed a Motion to Strike the City s Motions in Limine (D.!. 203), filed five (5)
Reply Briefs regarding Motions in Limine (D. 1. 233 , 234 , 235 , 236 and 237), and filed four (4)

Motions or supplemental briefs for sanctions against the City for discovery abuses (D. I. 246
261 ,

263 and 279). Durkin also

fied a Motion to Preclude

the City from offering additional

affirmative defenses (D. 1.

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

Directed Verdict. (D. 1.

280),
For example

Pre- trial submissions prepared by Durkin in this matter were extensive.

Durkin drafted a Statement of Uncontested Facts with over 300 facts proposed as uncontested

(including citations in the record) and an Exhibit List with over 900 proposed trial exhibits
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(which ultimately Durkin was able to streamline to just over sixty (60) exhibits for trial after

Motions in Limine were decided),

IV.

ARGUMENT

Durkin is Entitled to Collect Attornevs ' Fees Under Section 42 U. C. &1988

Durkin is entitled to recover its reasonable attorneys '

fees

, post judgment interest and

costs under 42 U. C. ~1988 because it is a prevailing party. The starting point for determining

the amount of reasonable attorneys ' fees under 42 U.
reasonably expended on the

C. ~1988

is the number of hours
See City of

litigation multiplied by a

reasonable hourly rate.

Burlington v. Dague 505 U. S. 557 (1992);
the " lodestar

Blum v. Stenson 465 U.S. 886 (1984). This is called
461 U.S. 424 (1983).

Hensley v. Eckerhart

See also Auman v. Muhlenberg

School District 2002 U.S. Dist. LEXIS 5652 (E. D, Pa. 2000).

Durkin is A Prevailnl! Party in this Litil!ation

A condition precedent to determining the lodestar is a determination under 42 U.S.

~1988 of whether Durkin is a prevailing

party.

Of course ,

that is self evident , as the

jur

retured a verdict for Durkin in the full amount of contract damages it was seeking, together with
an award of $25 millon for the civil rights claims. (D, !. 298).

The Supreme Court has held that parties may be considered " prevailing parties "

for

attorneys ' fees purposes if they succeed on any significant issue in litigation that advances all or
some of the benefits they seek to achieve, Hensley,

461 U.S. at 433. This includes " some relief
482 U. S. 755 ,
760 (1987), which

on (the) merits of the claim(,)"

Hewitt v. Helms

affects the
488 U. S. 1 , 4

behavior of the

defendant toward the plaintif!.)" Rhodes v. Stewart

(1988)(emphasis in original), and which " changes the legal relationship between (the parties)."
Texas State Teachers Ass n v. Garland Indep. Sch. Dist. 489 U. S. 782 , 792 (1989), There can be

no doubt that Durkin is a prevailing pary under the Supreme Cour' s definition.
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The Attornevs ' Fees Incurred Were Reasonablv Expended
Durkin
s attorneys

' fees may be
Hensley,

charged to the City if the hours

were " reasonably

expended on the litigation.

461 U.S. at 433. The calculation of Durkin s attorney s fees

begins with the computation of a " lodestar " representing the product of the reasonable number of
hours spent on the case times a reasonable hourly rate.

Id. See also Lindy Bros. Builders, Inc. of
487 F. 2d 161 ,
167- 68

Phila. v. Amer. Radiator

Standard Sanitary Corp.

(3d Cir. 1973), The

Supreme Cour and the Third Circuit repeatedly recognize a strong presumption that the lodestar
constitutes a reasonable fee in a civil rights action. City of Burlington v. Dague,

505 U, S. at 560565 (1986); Blum

64; Pa. v.
Stenson

Del. Valley Citizens ' Council for Clean Air

478 U.S. 546 ,

465 U.S. 886 ,

896 (1984);

Student Pub. Interest Research Group ofNJ.
Cir. 1988); General Instrument Corp. of Del.

, Inc.

v.

AT&T
Nu- Tek

Bell Lab 842 F. 2d
Electronics

1436 , 1453 (3d
197 F.3d 83 ,

v.

Mfg. , Inc.

91 (3d Cir. 1999).

Timesheets setting forth the services rendered in this matter , for which compensation is
sought , are found in the Appendix. Timesheets for Paul A. Logan , Esquire App. A103- A390
(D. 1. 309) and App. A736 to A- 754. Timesheets for David T. Bolger , Esquire App. A391-A508
(D. 1. 309) and App. A- 755 to A- 775. Timesheets for Marsha E. Flora, Esquire App. A509-A627

(D. 1. 309) and App. A- 776 to A- 845. Timesheets for MJ. Pedersen , Esquire App. A628- A639 (D. 1.

309). Timesheets for K.K. Carton , Jr. , Esquire App. A640- A644 (D. 1. 309). Timesheets

for J. S. Bainbridge , Esquire App. A645- A654 (D. 1. 309). Timesheets for Paralegal S. M. Goss
App. A655- A656 (D. 1.

309). Timesheets for Paralegal D. R. Pierson App. A657- A662 (D.!.

309). Timesheets for Paralegal A.M. Detitto App. A663- A665 (D. I. 309). All attorney time was

adequately documented on contemporaneous time records and entered into a softare

program

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known as Carpe Diem. (App.

All (D. 1.

309) ~70. ) The descriptions for the phase codes and

the task codes referenced on the time sheets is found at App. A100-A102 (D. 1. 309).

All of the attorneys who worked on this litigation were well- qualified , diligent attorneys.
(App. A11- A14 (D. I. 309) ~72- 81. ) The attorneys spent a reasonable and appropriate amount of

time on the varous tasks

as referenced in the timesheets ,

especially considering that the case
s professional

involved the loss of millons

of dollars and the total destruction of Durkin

business.
In litigating this case , counsel endeavored to limit the time

expended on discovery,

briefing and trial , consistent with the professional obligation to Durkin and the high financial

losses it was suffering. (App. All

(D. 1.

309) ~68.

Counsel also conserved litigation fees by

delegating work to associates and paralegals , and even to the Durkins when appropriate, (App.
A10- A11 (D. I. 309) ~65- 67.

Counsel also employed a division of labor to avoid unnecessary

duplication of effort. (App. AlO (D. I. 309) ~64. ) The Declaration of Paul A. Logan , Esquire
details the total lodestar time for litigation case assessment , development and evaluation (App.
A14- A15 (D. 1. 309) ~82- 89); total lodestar time for pre- trial pleadings and motions (App. A15A16 (D. 1. 309) ~90- 96); total lodestar time for discovery (App. A16 (D. I. 309) ~97- 103); total

lodestar time for trial and trial preparation (App. A17 (D, 1. 309) ~ 107- 111); total lodestar time
for business transactions (App, A16-A17 (D. 1. 309) ~ 104- 106); and total lodestar time for post
trial activities (App. A- 715 to A- 735). Additionally, in the exercise of biling judgment , counsel
has eliminated 38. 5

hours of attorney time. App. A14 (D. 1. 309) ~80.

All of the time spent by Durkin s attorneys surrounded a common nucleus of operative
facts for all counts in the Complaint
inter alia

the termination of Durkin for default and the
s civil rights and resulting

City s subsequent actions which led to the deprivation of Durkin

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)"

Page 20 of 27

damages, All of the claims raised , investigated and litigated by Durkin were closely, and indeed
inextricably related

, and accordingly all of the attorney time is reimbursable under 42 U.S.
461 U.S. at 435 (" where a plaintiff obtained excellent results , his attorney

~1988.

See Hensley,

should recover a fully compensatory fee " and that "the fee award should not be reduced simply
because plaintiff failed to prevail on every contention raised in the lawsuit."
v.

See also Wiliams

Thomas 692 F. 2d 1032 , 1036 (5 Cir. 1982) (" A pary prevailing on a substantial claim that is

pendent to a civil rights claim is entitled to a recovery of attorney s fees when the civil rights
claim and the pendent claim arise out of a common nucleus of operative facts.

The hours spent by counsel were incurred

reasonably in a hard fought , highly

complicated matter where the City s blatant disregard for its discovery obligations created a

difficult course of litigation.

(App. A1- A56

(D. I.

309).

Durkin was forced

to spend

considerable time , money and resources in certain areas of this litigation that could have been

short circuited ,
discovery obligations,

if not eliminated

, had the City had fully and faithfully complied with its

Id.
of an attorney fee

In determining the " reasonableness "
degree of success obtained.
Hensley,

the most critical factor is the

461 U.S. at 436. In this regard , cours have focused on
d) a level of

the " results obtained" and whether the prevailing party " achieve(

success that makes
Id.

the hours reasonably expended a satisfactory basis for making a fee

award(.

at 434,

Certainly, with the level of success evidenced by a Jury Award of
attorneys ' fees should be viewed as " reasonable
(w)

$36

667 573.33 , Durkin

. In fact

, the Supreme Court has stated that
fully

here a plaintiff has obtained excellent results ,
Id.

his attorney should recover a

compensatory fee.

at 435.

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The Attorneys ' Bilinl! Rates Are Market Rates
To recover attorneys ' fees under 42 U.
C. ~1988 ,

the fees must be market rates. The

calculation of reasonable fees under 42 U. C. ~1988 is determined by the " prevailing market
rates in the relevant community. Blum v. Stenson 465 U.S. 886 , 895 (1984). The prevailing

market rates for attorneys for the successful party are broadly defined as " those prevailing in the

community for similar services by lawyers of reasonably
reputation.
!d.

comparable skil , experience and

at 895 and n. 11.
. App.

Lead Counsel Paul A. Logan , Esquire s billing rate for this fie is $250 per hour

(A12 (D. I. 309) ~72. ) Mr. Logan is familiar with rates charged in many areas , especially in the
Philadelphia and Wilmington areas.

Id.

In his opinion , an hourly rate of $250 per hour for an

attorney of his reputation , skill and experience is not in excess of the usual and customary rates
for similar attorneys.

Id.

Sherr Ruggiero Fallon ,

Esquire has also testified that Mr. Logan

hourly rate of $250 per hour is well within the range of rates prevailing in the community for
representation before the District Court of Delaware. (App. A75 (D.I. 309) ~ 13. David T. Bolger, Esquire and Marsha E. Flora, Esquire also participated in this litigation.

The rates for Mr. Bolger and Ms. Flora are $250 per hour and $200 per hour respectively. (App.
A12- A13(D. 1. 309) ~74 and 76. ) Mr. Logan is familiar with charged in many areas , especially

in the Philadelphia and Wilmington areas for attorneys having the experience exhibited by Mr.
Bolger and Ms. Flora. Id.

In his opinion , hourly rates of $250 per hour and $200 per hour for

Mr. Bolger and Ms. Flora , respectively, for attorneys of their reputation , skill and experience are
not in excess of the usual and customary rates for similar attorneys. Id.

Sherry Ruggiero Fallon

Esquire has also testified the rates for Mr. Bolger and Ms, Flora are well within the range of rates
1 2005 , Messrs. Logan and Bolger s hourly rates for similar construction litigation cases has been $275 per hour , due to the financial exigencies facing the Durkins , the rates on this fie were not increased.

7 Although as of January

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prevailing in the

community for representation

before the

District Cour of Delaware for

attorneys of their experience. (App. A75- A76 (D. 1. 309) ~ 13 and ~ 17.
From time to time , associate level attorneys provided services on the file.
(D. 1. 309) ~77- 78.

(App. A13

The rates for the associates were either $150 per hour or $175 per hour
Id.

depending on the associate s level of skil and experience.

Mr. Logan is familiar with rates
Id.

charged for associates in many areas , especially in the Philadelphia and Wilmington areas,

his opinion , hourly rates of $150 per hour or $175 per hour for associate level attorneys with

comparable levels of reputation ,
customary rates for similar attorneys.

skill and experience
Id.

are not in excess of the usual and

Additionally, as the tasks permitted , paralegals conducted work on the fie,
(D. 1. 309)~79.

(App.

Al3

The rate charged for the

paralegals was $60 per hour.

Id.

Mr. Logan is
and

familiar with rates charged for paralegals in many areas ,
Wilmington areas. !d.

especially in the Philadelphia

In his opinion , an hourly rate of $60 per hour for paralegal services is not
Id.

in excess of the usual and customary rates.

The market rate is usually the attorney s normal biling rate for clients who pay on an
hourly non-contingent basis. See Hensley, 461 u.s.

at 431 nA. In Hensley, the Supreme Cour
by the same

noted that " (iJt is intended that the amount of fees awarded. . . be governed

standards which prevail in other types of equally complex Federal litigation , such as antitrust
cases(,J and not be reduced because the rights involved may be non pecuniary in nature. . , In
computing the fee , counsel for a prevailing party should be paid , as is traditional with attorneys

compensated by a fee-paying client. . . . " 461

u.s. at

431

n.4

(citations omitted). The

Hensley

Court went on to clearly state that attorneys representing successful civil rights litigants should
receive the same compensation as those attorneys would receive for handling other matters. That
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(aJs nearly as possible ,

market standards should prevail".

Id. at

447.

See also Missouri

Jenkins

491 U. S. 274 ,

286 (1989) (" attorney s fee awarded under ~1988 is to yield the same

level of compensation that would be available from the market" See also Student Pub. Interest

Research Group v. AT&T Bell Labs. 842 F. 2d
consistently relied on biling
rates in determining

1436 , 1445 (3d

Cir. 1988)(the Cour has

market rates "

and has only diverged from

applying actual billing rates where " billing rates alone fail to tell the full story

Mr. Logan has testified that his hourly rate of $250 per hour is the normal rate that he
bills clients who pay on an hourly, non-contingent basis
. (App.

A12 (D. 1. 309) ~72. ) He has

also testified that Mr. Bolger s hourly rate of $250 per hour and Ms. Flora s hourly rate of $200
are the normal rates that his firm bills clients who pay on an hourly, non-contingent basis. (App.
A12- A13 (D. 1. 309) ~74 and 76. )
Regarding

the associate level attorney rates of$150 per hour

and $175 per hour, Mr. Logan testified that those rates are the normal rates that his firm bills

clients who pay on an hourly, non-contingent

basis. (App.

A13 (D. 1. 309) ~78.

Finally,

according to Mr. Logan s Declaration , the hourly rate of $60 for paralegals is also the normal

rate that his firm bils clients who pay on an hourly, non-contingent basis. (App. A13 (D. 1. 309)
~79.

Successful representation of Durkin in this complex construction case , where wrongful
termination was alleged , and where there were allegations of violation of Durkin
s civil rights

required a high degree of competence and dedication , as well as a greater time commitment than
would be required ofless complex areas oflaw.

(App. A75 (D. 1. 309) ~ 9. )

The rates charged to

Durkin for this successful representation are reasonable market rates and should be reimbursed
under 42 C.

~1988.

8 See

footnote 7 ina.
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Durkin is Entitled to Reimbursement for the Attorneys ' Fees and Costs
Incurred in Preparation of this Motion and Other Post
Trial Proceedinl!s

Time spent by Durkins ' attorneys in preparing and presenting a petition for counsel fees
is also recoverable under 42 U.
C. ~1988.

Planned Parenthood of Central New Jersey v.
297 F.3d 253 ,
268 (3d Cir. 2002); Bagby v.

Attorney General of State of New Jersey,

Beal, 606

F.2d 411 , 415- 16 (3d Cir. 1979). Time spent defending the verdict also will be compensable as

simply part of the overall prosecution of the case. Durkin respectfully requests that it be awarded
its attorneys ' fees and costs incurred in preparing

this Motion and any other fees and costs

incurred in the post-

trial proceedings. After any briefing on the present issues and other post

trial matters are concluded , Durkin will supplemental its Motion in this regard to complete the
record with time and costs incur and provide backup documentation as necessary.

Durkin is Entitled to an Enhancement Multiplier on the Lodestar for Delay in Payment
As discussed at length above (Section III) 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.

Durkin

s lead counsel has testified in detail

regarding the City s dilatory discovery practices. (App. A1- A56 (D. 1. 309). )

This

Court has also
See

specifically recognized the City s history of dilatoriness in its September 28 , 2006 Order.

Court Order dated September 28 2006 , page 6. (D. 1. 268). From the City' s continued bad faith

discovery practices - which continued even after the close of Durkin s case in chief - it appears
that the City was motivated to drive Durkin to financial destitution , and in the process cause it to
accumulate unecessary attorneys ' fees.
Under these circumstances , an enhancement multiplier for delay is appropriate to
augment the lodestar,

See e. g. Pa. v. Del. Valley Citizens ' Council for Clean Air 478 U.S, 546

(1986) (when there is specific evidence demonstrating that any factor relied on is not subsumed
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in the lodestar

, a Court may adjust the fee). The City was responsible for needlessly extending

this litigation , while Durkin s business was brought to a standstil and forced to borrow millons
in order to have its day in court.

Durkin suggests that the Cour look to 6 Del. C. ~2301 and apply a multiplier of "
over the Federal Reserve discount rate ,
including any surcharge as of the time from which

interest is due " to the lodestar. 6 Del. C. ~2301. Durkin further suggests that the time period

when the interest was due " as set forth in 6 Del. C. ~2301 should be April 7 , 2004 , the date
Durkin filed its Motion for Preliminary and Permanent Injunction, seeking an early resolution of
this matter. (D. 1. 6).
Compare Amico v. New Castle County, et al. 654 F. Supp, 982 , 1987 U.

Dist. LEXIS 1020 (D. Del. 1987) (Cour allowed a percentage multiplier to account for the delay
in payment based on an appropriate rate - the rate assessed in

Delaware for pre-judgment

interest).

Durkin is Entitled to Reimbursement for Out of Pocket

Litil!ation

Costs
as of course

Under Rule 54( d)(l) Durkin , as the prevailing party, is entitled to " costs...
" Fed. R. Civ. P. 54(d). Section 1988 also has been construed

to authorize the recovery of a
Costs.

broad range of litigation expenses beyond statutory costs proper to a Bil of
Abrams v.

See e.
738 F.2d

Lightolier Inc. 50 F. 3d

1204 ,

1225 (3d Cir. 1995);

Henry

v.

Webermeier

188 , 192 (7th Cir. 1984);

Palmigiano v. Garrahy,

707 F. 2d 636 , 637 (1st Cir. 1983);
(11th Cir. 1983);

Dowdell

City of Apopka 698 F. 2d
1382 (5th Cir. 1981)(en banc);

1181 , 1188- 92

Jones v. Diamond 636 F. 2d 1364

Northcross v. Board of Ed. 611 F. 2d 626 , 639 (6th Cir. 1979).

These are expenses that are normally charged separately to fee-paying clients and that are not
part of the offce overhead incorporated into the attorney s biling rates.

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Durkin is seeking reimbursement for out of pocket expenses in the amount of

$63 147. 07. A report summarzing these costs is attached to the Appendix. (App. A- 846 to A891.) These

expenses are for trial exhibits ,

deposition transcripts ,

photocopying, electronic

research and other items for the case.

These expenses are reflected in the books and records of
check records and other similar documentary

the firm and are based on expense vouchers ,

backup, all of which are maintained in the ordinary course of the firm s practice. (App. A19
(D. 1. 309)~119 and A- 715 to A- 735.
All of the expenses

were reasonably and necessarily

incurred in prosecuting this case. (App. A19 (D.!. 309) ~120 and A- 715 to A- 735.

Durkin is Entitled to Post- Judgment Interest On the Award of Attorneys
Fees

Durkin is also entitled to post-judgment interest on the award of attorneys ' fees. The

Third Circuit has held that "pursuant

to 28 U.S, C. ~1961(a), post

judgment interest on an

attorney s fee award runs from the date that the District Court enters judgment quantifying the

amount of fees owed to the prevailing party...
542 2001 U.S. App. LEXIS 938 (3d Cir. 2001),

Eaves

v.

County of Cape May,

239 F3d 527

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

requests that this Cour grant its Motion for Attorneys ' Fees , Costs and Post- Judgment Interest
pursuant to 42 U,

C. ~1988 and Federal Rule of Civil Procedure 54 along with granting an
Durkin respectfully requests leave to re- file a

enhancement multiplier to the lodestar for delay.

supplemental Motion with appropriate backup documentation as necessary to reflect all fees and
costs incurred in the post- trial activities ofthis case that are not included herein.

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Dated: January 26 , 2007

TYBOUT, REDFEARN & PELL
David G. Culley David G. Culley
By: Isl

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.
Paul A. Logan Paul A. Logan
By: Isl

Delaware Supreme Court il #3339

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

Defendant Donald M Durkin Contracting

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