Free Motion to Stay - District Court of Delaware - Delaware

Case 1:04-cv-00163-GMS

Document 316

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE ) ) Civil Action No.: 04-0163 GMS ) ) ) JURY TRIAL DEMANDED ) )

DONALD M. DURKIN CONTRACTING, INC. Plaintiff, vs. CITY OF NEWARK et al.

CITY OF NEWARK'S RENEWED MOTION TO STAY EXECUTION OF THE JUDGMENT COMES NOW, Defendant City of Newark, and moves this Honorable Court for an order staying execution of the judgment against Newark which is filed contemporaneously with its Motion for Relief from Supersedeas Bond and in support thereof offers the following, to wit: 1. Newark filed its F.R.C.P. 50(b) and Rule 59 motions (D.I. 303 and 304) within

ten days of the entry of judgment as dictated by those Rules. Newark did not file opening briefs in support of the Motions pursuant to the Court's direction to do so in accordance with a briefing schedule to be approved by the Court after the trial transcript became available. 2. 3. Newark also filed a Motion to Stay Execution of the Judgment (D.I. 302) On October 31, 2006 the Court entered an Order striking Newark's three motions

(as well as motions and opening briefs filed by Durkin) (D.I. 310). As a result, the docket currently reflects no pending motions, therefore, it has become necessary for Newark to file its appeal within the 30 day post-judgment deadline. 4. Newark will file notices of appeal of the judgment and the Court's Order striking

its Rule 50(b) and Rule 59 motions. Newark requests that judgment be stayed during the pendency of the appeal. 5. 10 Del. C. §568(c) provides that execution may be stayed and F.R.C.P. 62(f)

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provides that a stay provided by state law is applicable. 6. If execution upon the judgment is permitted by the Court and Durkin attaches City

funds, Newark's payroll will be implicated which would cause immediate and potentially devastating harm to 30,000 City residents including 19,000 University of Delaware students because City services will cease. The City payroll covers police services, trash pickup, operation of the water and sewer utilities, street maintenance, maintenance of the City fleet, building and fire inspections, City Aldermans' Court, bill collections, parks and recreation which includes facility maintenance efforts, tree removal, before- and after-school programs, City preschool and other soft services. See City of Newark's Motion for Relief from Supersedeas Bond, Exhibits A and B thereto. WHEREFORE, Defendant City of Newark requests that this Honorable Court enter an Order staying execution on the judgment during the pendency of the appeal.

By: /s/ Thomas C. Gallagher Thomas C. Gallagher, Esquire (Pro Hac Vice) Deasey, Mahoney & Bender Ltd. 1800 John F. Kennedy Boulevard, Suite 1300 Philadelphia, PA 19103-2978 P: (215) 587-9400 email: [email protected]

By: /s/ Victoria K. Petrone Victoria K. Petrone (Delaware I.D. No. 4210) Logan & Associates, LLC 704 N. King Street, Suite 100 P.O. Box 89 Wilmington, DE 19899 P: (302) 655-8000 email: [email protected] and

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By: /s/ Paul Cottrell Paul Cottrell (Delaware I.D. No. 2391) Tighe, Cottrell & Logan, P.A. 704 N. King Street, Suite 500 P.O. Box 1031 Wilmington, DE 19899 P: (302) 658-6400 email: [email protected] Attorneys for Defendant City of Newark Dated: November 9, 2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE ) Civil Action No.: 04-0163 GMS ) Plaintiff, ) vs. ) ) CITY OF NEWARK, HAROLD F. GODWIN, ) JOHN H. FARRELL, IV, JERRY CLIFTON, ) KARL G. KALBACHER, DAVID J. ATHEY, ) FRANK J. OSBORNE, JR., CHRISTINA REWA ) AND URS CORPORATION, ) ) Defendants, ) ) vs. ) ) FEDERAL INSURANCE COMPANY, ) ) Third-Party Defendant. ) ---------------------------------------------------------------CITY OF NEWARK, ) ) Third-Party Plaintiff, ) ) vs. ) ) URS CORPORATION, ) ) Third-Party Defendant. ) ORDER AND NOW, the Court, having considered the request of Defendant City of Newark to stay execution of the judgment, the Court does hereby FIND and ORDER, Newark's Motion is GRANTED and execution upon the judgment shall be stayed during the pendency of the appeal. DONALD M. DURKIN CONTRACTING, INC.

___________________________________ The Honorable Gregory M. Sleet