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 DELAWARE
DONALD M. DURKIN CONTRACTING
INC. Plaintiff
vs.

CITY OF NEWARK , et aI. Defendants
and

: CASE NO. 04- 0163- GMS

CITY OF NEWARK Third-Party Plaintif
vs.

DONALD M. DURKIN CONTRACTING FEDERAL INSURANCE COMPANY and URS CORPORATION Third-Party Defendants

ST. PAUL FIRE & MARINE INSURANCE COMPANY

Intervenor

UNSWORN DECLARATION OF PAUL A. LOGAN, ESQUIRE IN SUPPORT OF PLAINTIFF' S MOTION FOR ATTRONEYS' FEES, COSTS AND POST -JUDGMENT INTEREST PURSUANT TO 42 U. AND FEDERAL RULE OF CIVIL PROCEDURE 54
C. 1988

Paul A. Logan , Esquire , being of legal age , do herby certify as follows:

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

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

I make this Declaration in support of Durkin s Motion for Attorneys ' Fees, Costs
and Post- Judgment Interest pursuant to 42 U.

C. 91988 and Federal Rule of Civil Procedure 54.

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City' s Blatant Disre2ard of Discoverv Rules Created a Diffcult 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" .

On or about
Documents on the City. See

September 15 ,

2005 Durkin served a request for Production of

Exhibit "

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.
Id.

The City and Council did not timely respond to the Requests.
10.

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 "
11.

On November 29, 2005 , I wrote to counsel
Council and the Mayor.

for the City again requesting the

documents from the Members of the City

See

Correspondence from

Paul A. Logan , Esquire to Paul Cottrell , Esquire dated November 29 , 2005 attached as Exhibit
D" .

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12.

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 "
13.

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 "

14.

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.
15.

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

emailed counsel for the

City on December

29 ,

2005 indicating that none of the materials
See

produced contained a single document from any of the Council Members.

Email from Paul

A. Logan, Esquire to Paul Cottrell , Esquire dated December 29 2005 attached as Exhibit "
16.

I followed up my email on December

30 , 2005 ,

ag ain 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 "
17.

On January 8 , 2006 , I emailed counsel for the City, explaining in detail my review
not

of the documents and the fact that the City s responses were deficient in that they stil did

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produce a single document from any of the Council Members.

See

Email from Paul A. Logan

Esquire to Paul Cottrell , Esquire dated January 8 , 2006 attached as Exhibit "
18.

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
19.
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 "
20.

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 "

21.

Durkin learned during the depositions of former Council Member Kalbacher and
packets " and other

current Mayor Fun that both Kalbacher and Funk destroy the " briefing
information provided to them in advance of the City Council Meetings.
City' s Late Production of Si2nificant Documents
22.

The City produced three (3) groups of documents that were previously
matter. The 1 sl group

(and

improperly) withheld during the entire discovery phase of this

was

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

group was produced on the day trial was
after

the close of Durkin s case- in-

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23.

Documents contained in these three (3) groups could have streamlined this matter
of dollars in attorneys ' fees and costs.

, and saved Durkin hundreds of thousands

24.

One problem Durkin faced in preparing 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.
25.

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.

26.

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.
27.

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

preparation and caused Durkin to incur additional attorneys ' fees.
28.

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.!. 6).
29.
30.

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

the City withheld a January 20 , 2004 memorandum (NEWI6304)

that indicated that the City was well aware of the legal infirmities in the steps it took to terminate
Durkin.
31.

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
positions taken by the City in its pleadings.

and

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Discoverv Was Voluminous and the Construction and Desi2n Issues Were Complex
32. 33.

Discovery in this matter was extensive.

Approximately twenty one (21) banker

s boxes of documents were produced

which included over 50 000 pages of documents , thousands of photographs and several sets of
construction drawings.
34.

My firm had to thoroughly

review and analyze these documents to conduct

discovery in this matter and adequately prepare for trial.
35.

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

extensive documents produced , thousands of photographs and multiple sets

drawings , select documents for depositions and ultimately for trial exhibits.
36.

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

construction and design issues were extremely complex.
37.

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.
38. 39.
not limited to ,

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

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.
40.

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

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

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41.
and 205).

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

181 ,

184 , 190 , 193 , 196

42.

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

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

43. 44.

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

Durkin responded to ten (10) Motions in Limine fied

by parties in this matter.

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

45.

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

235, 236 and 237).
46.

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).
Goals

The

of this Liti2ation and the Jurv Verdict
Durkin sought , as set forth in its Complaint, compensatory

47.

In the litigation ,

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.
48.

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).
49.

Specifically, the Jury found that Durkin was entitled to: compensatory damages

from the City for work performed in the amount of $5,492, 666. 55 (Jury Verdict Form LA. 1):
compensatory damages for post termination incured expenses in the amount of $6 174 905.

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(Jury Verdict Form 1.A.2); and $25 000 000. 00 for violation of civil rights (Jury Verdict Form
LB. 1).

My Back2round and the Back2round of Attornevs David T. Bol2er and Marsha E. Flora
50.
I graduated from the University of Ilinois in 1973 with a

Bachelor of Science in

engineering and business.
51.

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.
52.

From 1979 until 1981

I served as

Assistant Attorney General for the

Commonwealth of Pennsylvania , Department of Transportation.
53.

. 1981 I entered private practice ,

focusing on the representation of contractors

and businesses which deal with local , state and federal governents.
54.

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

North Carolina.
55.

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

Court; 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 Cour , 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.
56.

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

in King of Prussia , Pennsylvania.
57.

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

Pennsylvania.

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58.

For 2005 and 2006 I

have received

Philadelphia Magazine

designation of

Super Lawyer: Construction Litigation.
59.

I have also been qualified as an expert witness in construction litigation cases.
I am Durkin s lead counsel in this matter.

60. 61.

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

this case for trial and in trying this case.
62.

David T. Bolger , Esquire is a partner with Powell , Trachtman , Logan , Carrie &
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
offices throughout the country. In that capacity, Mr. Bolger has provided all manner of legal
services to the various subsidiary organizations , to include advice on estimating and budgeting

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

employment issues ,

claims review and prosecution

litigation management , and the sale of corporate assets.
Pennsylvania ,
admitted Mr. Bolger

Mr. Bolger is licensed to practice in
Court of Federal Claims.

North Carolina ,

and the United States
for this case.

This Court

pro hac vice

63.

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

et al

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

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represented clients in complex litigation in over twenty (20) states. She is licensed to practice in
Pennsylvania and New Jersey. This Court admitted Ms. Florapro hac vice

for this case.

64.

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.
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 Filshil at trial. Marsha
E. Flora ,

Esquire mastered and organized all of the evidence used at trial. She conducted the

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

T. Bolger , Esquire and Marsha E. Flora , Esquire are also concentrating on all of the post-trial
submissions.
65.

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:
MJ. Pedersen; K. K. Caron , Jr.; and lS.
66.
Bainbridge.

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.
67.

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

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of the documents produced and in organizing and collecting documentation in support of the
damages claimed.
68.

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.
69.

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
70.

My office

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 software 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 time sheets is found at App. AI00- AI02.
71.

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. AI03- A390.

Timesheets for David T. Bolger , Esquire App. A391- A508.
for MJ. Pedersen

Timesheets for Marsha E. Flora , Esquire App. A509- A627. Timesheets
Esquire App. A628- A639.
Timesheets for K. K. Carton ,
Jr. ,

Esquire App. A640- A644.

Timesheets for lS. Bainbridge ,

Esquire App. A645- A654. Timesheets for Paralegal S. M. Goss

App. A655- A656.

Timesheets for Paralegal D. R. Pierson App. A657- A662. Timesheets for

Paralegal AM. Detitto App. A663- A665.

Reasonable Hourly Rates

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72.

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

$250 per hour is the normal rate I regularly bil 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

rates for Philadelphia or Wilmington attorneys who enjoy comparable reputations ,
expenence.
73.
My normal biling rate as of January 2005

skil and

was $275 per hour. However , based

on the financial constraints of Durkin ,
litigation.
74.

I have

never increased my rate from $250 for this

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 customary rates for Philadelphia or Wilmington
attorneys who enjoy comparable reputations , skil and experience.
75.
Mr. Bolger
s biling rate as of January

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.

76.

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

$200 per hour. Ms. Flora s rate of $200 per hour is the normal rate my firm regularly

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

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of $200 per hour is not excess of the usual and customar rates for Philadelphia or Wilmington
attorneys who enjoy comparable reputations , skil and experience.
77.

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 char below:

Associa te
MJ. Pedersen

Rate
$175
$175

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

K. Carton , Jr.
lS. Bainbridge

$150

78.

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

hour are the normal rates my firm regularly bils 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
skil and experience.

79.

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 customary rates for

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

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80.
117. 50.

In the exercise of biling

judgment I have eliminated

38. 5 hours representing

81.

The time set forth in this declaration is taken from my office 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
82.
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.
83.
I spent 908.1 hours at $250 per hour for $227 025. 00
See

on litigation

case

assessment , development and evaluation.
84.

App. AI03- A285.

David T. Bolger , Esquire spent 336. 3 hours at $250 per hour for $84 075. 00 on
See

litigation case assessment , development and evaluation.

App. A391- A446.

I The 38. 5 hours eliminated representing $7 117. 50 consists of the following:

Attornev
Crawley Star Ginsberg Herbert Koller Nofer Jacobson Logan Flora

Hours
1.4

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

Total
$245 $660 $795 $630 $585 452. $125 025 $600 $7, 117.

4.4
5.3

8.3
8.1

TOTAL

38.

2 Litigation Case Assessment , Development and Evaluation is reflected on my firm s timesheets with the Phase Code " Ll 00"

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85.

Marsha E. Flora , Esquire spent 42. 5

hours at $200 per hour for $8

000. 00 on

litigation case asse sment , development and evaluation.
86.

See

App. A509- A517.

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

on litigation case assessment , development and evaluation.
87.
Associate K.K. Carton ,
Jr. ,

App. A628- A632.

Esquire spent 15. 6

hours at $175 per hour for
See

730. 00 on litigation case assessment , development and evaluation.
88.
Associate lS. Bainbridge ,

App. A640- A644.

Esquire spent 1.8 hours at $150 per hour for $270 on
See

litigation case assessment , development and evaluation.
89.
is seeking is

App. A645- A646.

The total for litigation case assessment , development and evaluation that my firm
$324. 288.

Total Lodestar Time for Pre- Trial Pleadin2s and Motions
90.

Pre- trial

pleadings
court

and

motions

includes

pleadings

preliminary
other written

injunction/provisional relief,
motions and submissions.
91.
motions. See

mandated conferences , dispositive motions ,

I spent 296.4 hours at $250 per hour for $74 100. 00 on pre- trial pleadings and
App. A286- A318.
David T. Bolger ,

92.

Esquire spent 98.2 hours at $250 per hour for $24 550. 00
See

on

pre- trial pleadings and motions.
93.

App. A447- A454.

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

pre- trial pleadings and motions.
94.

App. A633- A639.

Associate lS. Bainbridge ,
See

Esquire spent 5.2 hours at $150 per hour for $780 on

pre- trial pleadings and motions.

App. A647- A648.

3 Pre-

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

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95.
pleadings and motions.

Paralegal S.

M. Goss spent 4. 2
App. A655- A656.

hours at $60 per hour for $312 on pre- trial

See

96.

The total for pre- trial pleadings and

motions that my firm is seeking is

$106. 182.
Total Lodestar Time for Discoverv

97.

Discovery includes written discovery, document production , depositions , expert

discovery, discovery motions , and other discovery.
98.
I spent 489. 8 hours at $250 per hour for $122

450. 00 on discovery.

See

App.

A319- A368.
99.
discovery. See

David T. Bolger , Esquire spent 243. 8 hours at $250 per hour for $60 950. 00
App. A455- A481.

on

100.
discovery. See

Marsha E. Flora , Esquire spent 36. 1 hours at $200 per hour for $7 220. 00 on
App. A518- A523.

101.

Associate J. S.
See

Bainbridge , Esquire spent 31.1 hours

at $150 per hour for

665. 00 on discovery.
102.
See

App. A649- A654.

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

App. A663- A665.
103.
The total for discovery that my firm is seeking is

$195. 987.

Total Lodestar Time for Business Transactions
104. 105.

Business transactions includes miscellaneous time spent on the file by Paralegals.
Paralegal D.

R. Pierson spent 3. 8
See

hours at $60 per hour for $228. 00 on

miscellaneous business transactions.

App. A657- A662.

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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106.

The total for business transactions that my firm is seeking is

$228.

Total Lodestar Time for Trial and Trial Preparation
107.

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.

108.
preparation. See

I spent 302. 8 hours

7 at $250 per hour for $75

700. 00

on trial time and trial

App. A369- A390.
David T. Bolger ,
See

109.

Esquire spent 479 hours at $250 per hour for $119 750. 00

on

trial and trial preparation.

App. A482- A508.

110.

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

on trial time and trial preparation.

App. A524- A627.
up to and

111.

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

including October 5 ,

$418. 710.

Total Lodestar Time for Post Trial
112.

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

trial activities from October 6 , 2006 forward (which includes , but is not limited to preparing this
Motion for attorneys ' fees) wil be provided by a supplemental Motion.
Total Lodestar Value
113.
October 5 ,

The total lodestar value for which my firm is seeking reimbursement up until
$1. 045. 395.

2006 is

My firm will provide a supplemental Motion discussing the
be seeking reimbursement.

fees for all post trial activities for which we wil

Enhancement Multiplier for Delav is Appropriate
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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114.

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.
115.

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

augment the lodestar. I suggest that the Court look to 6 Del. C. 92301 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.
116.
Id.

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

92301 should be April 7 , 2004 when Durkin fied its Motion

Injunction , seeking an early resolution of this matter. (D. I. 6). In my opinion , at that time ifthe

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

(NEWI6304) discussed above), much ,
avoided.

if not all

, of this extended litigation could have been

Costs
117.
Durkin has incurred out of pocket expenses of

$52. 943.41 in connection with the

prosecution of the case up to and including October 23 2006 which are not covered by the bil

costs. A report summarizing these costs is attached in the Appendix to Plaintiff s Motion for
Attorneys ' Fees , Costs and Post- Judgment Interest Pursuant to 42 US. C.
91988 and

Federal

Rule of Civil Procedure 54 App. A666- A 714.
118.

My firm wil provide a supplemental Motion for the additional costs incurred in

the post trial phase from October 24 , 2006 forward for which we are seeking reimbursement.
9 This is the amount reflected under the heading " Recorded
(A713).

Value "

on page 48 of the Expense Report

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119.

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.
120.

All of the expenses referenced in the report at App. A666- A714 were reasonably

and necessarily incurred in prosecuting this case.

Conclusion
121.

My firm is seeking compensation for attorneys ' fees incurred up to
$1, 045, 395.

October 5
plus

2006 at normal billing rates resulting in the amount of

as reflected above lO

enhancement multiplier for delay.
122.
Accordingly, I believe that an attorneys ' fee
award of

$1,045,395.

plus an

enhancement multiplier for delay is reasonable and appropriate in this case for my offces ' work
through October 5 ,

2006 , plus post-judgment interest. An award of

$52,943.41 for costs incurred

through October 23 ,

2006 plus post-judgment interest also should be made.

123.

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

on - October , 2006.

POWELL, TRACHTMAN, LOGAN,

CARRE &
By:

LOMBARDO,

Paul A. Logan Delaware Supreme Court ID #3339 475 Allendale Road, Suite 200 King of Prussia , P A 19406 Telephone: 610- 354- 9700 Telefacsimile: 610- 354- 9760
Attorneys for Plaintif

and Third Party

Defendant Donald M Durkin Contracting
10 We reserve the right to supplement our Motion for Attorneys ' Fees , Costs and Post Judgment Interest
Pursuant to 42 V.
C.

1988 and Federal Rule of Civil Procedure 54 as additional

attorneys '

fees and

costs are incurred in the post- trial phase ofthis matter.

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EXHIBIT A

Case 1:04-cv-00163-GMS

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Page 21 of 25

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELA W

DONALD M. INC. Plaintif
vs.

DUR CONTRACTING,

CITY OF NEW AR
and

, et aI.,

Defendants
I CASE NO. 04-0163-

GMS

CITY OF NEW AR Third-Party
vs.

Plaintif

CONTRACTING DONALD M. and FEDERAL INSURCE COMPANY, Third-Part Defendants

DUR

REOUEST FOR PRODUCTION OF DOCUMENTS

(SET I) DIRECTED TO DAVI J. ATHEY
Pursuant to Federal Rules of Civil Procedure 26 and 34 , you are hereby requested to produce the below. listed documents. for inpection and copying within thrt (30) days, at the Law Offces of Powell, Trachtman , Logan, CarIe & Lombardo , P. , 475 Allendale Road, Suite 200 , K.ng of Prusia, Pennsylvana, 19406 , or at such other convenient location as otherwse

agreed in wrting.

DEFINITIONS
For the puroses ofthese Requests , the following definitions shall apply:

appropriate.
the subject of the Constrction
Contract

and all Council Members of and for the City of Newark, individually and/or collectively, as

1.

The " City of Newark" shall mean the City of Newark , the Mayor of the City of Newark

. 2. The " City of Newark Reservoir Project" shall mean the Water Supply Reservoir that is
at issue in this action.

You " and " your " shall mean the par responding to these Requests.
Document" means , unless otherwise stated, all wrtten , printed, tyed or recrded
KOP:322581v1 3514-04

Page 22 of 25 electronicaliy, graphic or photographic material of any kind or character and non-duplicate copies now or at any time relevant to this action in your possession , custody or control , including,
among other things and without limitation, wrtings , drawings, graphs, chars, photographs phonorecords, and other data compilations from which inormation can be obtained, translated , if
necessar, by you through detection devices into reasonably
usable fonn.

Case 1:04-cv-00163-GMS

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known to you , including all drafts and marked up copies located or discovered by you through reasonably dilgent efforts.

of document as above 5. " All documents" means the original and all copiesandaevery such,documentdefined and , that can be

6.

All references to the parties also encompass their agents , employees , attorneys or

representati ves.

7. "Relating to" or "

" shall mean referrng to , alluding to, responding to concerning, connected with, commenting on, in respect of, about or regarding.
related to

INSTRUCTIONS
The following Instructions shall govern these Requests:
Each Request is to be answered separately and completely.

2. 3.

Requests that canot be answered in full shall be answered as completely as possible and shaH specify the reasons for the incompleteness.
You are hereby requested to supplement seasonably your responses to these Requests thir (30) day pursuant to Rule 26( e) of the Federal Rules of Civil Procedure at the end of each period immediately following the filing of your initial responses hereto based on the requirements of Rule 26(e). For the purose of Rule 26(e), these Requests are deemed to be a new " request for each thirt (30) day period prior to the time ofthe fial pretral order.

4. If, after reasonable investigation, you lack documents responsive to any Request, state so
expressly, and describe in detail the investigation that you made to obtai
knowledge of

documents responsive to that Request.

If you have responsive documents, some of which you are providing in an answer and some of which you are withholding, state so expressly, and state in detail the exact grounds upon which responsive documents are being witheld.

5.

6.

For wrtings to which you have had access but which are not now in your possession, custody or control , state the circumstances under which you had access to such documents and the identity of the individual(s) or entity that now has them in their possession, custody or

control.
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To the extent that you object to any Request or portion thereof, you shall:
(a)
(b)

identify the portion to which such objection is made; state specifically each and every ground upon which you rely for your

objection; and
(c)

answer all pars to which no objection exists.

To the extent that you object to any Request on the basis of privilege, you shall:
(a)

identify the portion to which such objection is made; state specifically each and every ground upon which you rely for your

(b)

objection; and
(c)

answer all pars to which no objection exists.

DOCUMENTS TO BE PRODUCED
All documents in the possession of the Defendants on the date of or prior to the date of termination ofthe contract of Donald M. Durkin Contracting, Inc. (Le. on February 2 2004), relating to the contract between the City of Newark and Donald M. Durkin Contracting, Inc. (" Contract" ) for the constrction of the Reservoir for the City of Newark and the performance by Donald M. Durkin Contracting, Inc.

1.

. All communications between the Defendant and any other person or entity (excluding only asserted privileged docwnents) relatig to the performance by Donald M. Durkin Contracting, Inc. of the Contract for the constrction of the Reservoir for the City of Newark.

2.

All documents received by the Defendant relied upon in makng the decision terminate the Contract and all documents received after the Februar 2 , 2004 vote to termate Durkin , which documents originated from , or were copied to , URS or any other thrd pary.

3.

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Case 1:04-cv-00163-GMS

All documents relied upon by the individual Defendant in determining hislher . vote to terminate the contract of Donald M. Durkin Contracting.

4.

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Page 24 of 25

. Logan Delaware Supreme Cour il #3339 475 Allendale Road , Suite 200 King of Prussia, P A 19406 Telephone: 610- 354- 9700 Telefacsimile: 610- 354- 9760 Attorneys for Plaintiff

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CERTIFICATE OF SERVICE
I, Paul A. Logan , counsel for Plaintiff certify that on September 15 , 2005, a tre and

correct copy of the foregoing Request for Production of Documents (Set 1) Directed to David J.
Athey was served upon the following by U. S. Mail , postage prepaid, at the addresses below.

Paul Cottrell , Esquire Victoria K. Petrone , Esquire

TIGHE, COTTRELL & LOGAN, P.
First Federal Plaza Suite 500 P. O. Box 1031 Wilmington , DE 19899 Attorneys for City of Newark , Harold F. Godwin , John H. Farell , Jerr Clifton, Karl G. Kalbacher , David 1. Athey, Fran J. Osborne , Jr. and Chrstina Rewa
Samuel 1. Arena, Jr. , Esquire Patrick R Kingsley, Esquire Stradley Ronon Stevens & Young LLP 2600 One Commerce Square Philadelphia , P A 19103- 7098 Attorneys for Third- Pary Defendant Federal Insurance Company

James S. Green, Esquire Seitz , Van Ogtrop & Green, P. 222 Delaware Avenue Suite 1500 , P. O. Box 68 Wilmington, DE 19899 Attorneys for UR Corporation

Powell , Trachtman, Logan,

CarrIe & ardo, P.

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