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

Case 1:04-cv-00163-GMS

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE
DONALD M. DURKIN CONTRACTING INC. Plaintif
vs.

CITY OF NEWARK , et aI. Defendants
and

: CASE NO. 04- 0163-GMS

CITY OF NEWARK Third-Party
vs.

Plaintiff

DONALD M. DURKIN CONTRACTING FEDERAL INSURANCE COMPANY and URS CORPORATION Third-Party Defendants
ST. PAUL FIRE & MARIE INSURANCE COMPANY Intervenor

OPENING BRIEF OF PLAINTIFF IN SUPPORT OF MOTION IN SUPPORT OF ATTORNEYS' FEES, COSTS AND POST- JUDGMENT INTEREST PURSUANT TO 42 U. c. &1988 AND FEDERAL RULE OF CIVIL PROCEDURE 54
POWELL, TRACHTMAN, LOGAN CARRE & LOMBARDO, P. 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
Dated: October 25 , 2006

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TABLE OF CONTENTS
Page

TABLE OF CITATIONS ........................................................................................................... iii
NATURE AND STAGE OF PROCEEDINGS................................................ ................

II.

SUMMARY OF ARGUMENT ......

III.

CONCISE STATEMENT OF FACTS ............................................................................
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 Voluminous and Construction and Design Issues Were Complex ................. 10

Motion Practice and Pre- Trial Submissions Were Extensive......................... 11
IV.

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

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

Durkin is A Prevailng Part in this Litigation .................................... 12

The Attorneys ' Fees Incurred Were Reasonably

Expended............... 12

The Attorneys ' Biling Rates Are Market Rates.................................. 15

Durkin is Entitled to Reimbursement for the Attorneys ' Fees and Costs Incurred in Preparation of this Motion and Other Post Trial
Proceedings.......................................................................................................... 18

Durkin is Entitled to an Enhancement Multiplier on the Lodestar for
Delay in Payment................................................................................................ 18

Durkin is Entitled to Reimbursement for Out of Pocket Litigation
Costs..................................................................................................................... 20
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Durkin is Entitled to Post- Judgment Interest On the Award of Attorneys
CONCLUSION AND RELIEF SOUGHT....

' Fees....................................................................................................

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TABLE OF CITATIONS
Page
CASES
Abrams v.

LightoUer Inc. 50 F. 3d 1204 (3d Cir. 1995) ............

Amico

v.

New Castle County, et aI. 654 F. Supp. 982 , 1987 U. S. Dist. LEXIS 1020 (D. DeI. 1987) ........................................................................................................................ ..
v.

Auman

Muhlenberg School District 2002 U.S. Dist. LEXIS 5652 (E. D. Pa. 2000).................
Beal 606 F.2d 411 (3d Cir. 1979) ................................................................................. .18

Bagby

v.

Blum

v.

Stenson 465 U. S. 886 (1984) .........................................................................
v.

City ofBurUngton

Dague 505 U.S. 557 (1992) ..................................................................

Dowdell

v.

City of Apopka 698 F. 2d 1181 (11 th Cir. 1983) .........................................................
239 F. 3d 527 , 2001 U. S. App. LEXIS 938 (3d Cir. 2001)...........
v. Nu- Tek Electronics

Eaves

v.

County of Cape May,

General Instrument Corp. of Del.

Manufacturing, Inc. 197 F.3d

83 (3d Cir. 1999)............................................................................................................... .
Henry v.

Webermeier 738 F.2d 188 (7th Cir. 1984) .....................................................................
v.

Hensley

Eckerhart

461 U. S.

424 (1983) ........................................................................... passim

Hewit

v.

Helms 482 U.S. 755 (1987) ...........................................................................................

Jones

v.

Diamond 636 F.2d 1364 (5th Cir. 1981)(en banc)......................................................... .20
Inc. of Phila. v. Amer. Radiator

Lindy Brothers Builders,

Standard Sanitary Corp.

487 F. 2d 161 (3d Cir. 1973)...............................................................................................
Missouri v.

Jenkins 491 U. S. 274 (1989)......................................................................................
v.

Northcross

Board of Ed. 611 F.2d 626 (6th Cir. 1979) ............................................................
478 U. S.

Pa.

v.

Del. Valley Citzens ' Council for Clean Air
v. Garrahy,

546 (1986) ................................

, 19

Palmigiano

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

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Planned Parenthood of Central New Jersey

Attorney General of State of New Jersey, 297 F. 3d 253 (3d Cir. 2002)...............................................................................................
v. v.

Rhodes

Stewart

488 U. S.

1 (1988) ............................................................................................
Inc. v. AT&T Bell Laboratory,

Student Public Interest Research Group ofNJ,

842 F.2d

1436 (3d Cir. 1988).................................................................................................... ..
Texas State Teachers Association

, 17

v. Garland Independent Sch. District 489 U.S. 782 (1989) ................................................................................................................................ .

Wiliams

v.

Thomas 692 F.2d 1032 (5th Cir. 1982)..................................................................... .14

STATUTES
42 U. S. C. 91988............................................................................................... ...................... passim
6 DeI. c. 9

2301 ........................................................................................................................... .

RULES
Fed. R. Civ. P. 54( d) ..................................................................................................................... .
Fed. R. Civ. P. 54( d)( 1) ............................................................................................................... ..

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NA TURE 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.
fees ,

Durkin fies this Opening Brief in Support of its Motion for attorneys '
judgment interest 42 U. C. 91988 and Federal Rule of Civil Procedure 54.

costs and post-

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.S. C. 91988. First , Durkin is a prevailing party.

Second ,

the
fees

attorneys ' fees and costs incured were reasonably incured. And , finally, the attorneys '
charged are market rates. See Hensley v.

Eckerhart

461 U. S.

424 (1983).

See also

42 U.

91988.
Durkin recognizes that the jury

verdict and judgment includes some portion of the

attorneys ' fees incurred in this matter (Jury Verdict LA.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. 91988 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 Court 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.

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
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rights violations in the amount of $25 milion. On

October 11 ,

2006 the Court entered judgment

in favor of Durkin in the amount of $36 667 573. 33. (D.!. 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.
Wilful and Calculated Concealment of Documents and Blatant Disregard for Discovery Rules and Court Orders Severely Prejudiced Durkin and Created a Difficult Course of Litigation

The City' s

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 the

Durkins.

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

Paul Logan , Esquire Unsworn Declaration , Appendix (" App. ) A1- A56.

See also

A2

5. Durkin served discovery

requests on the City and each of the individual Councilpersons
See App. A2

on or about September 15 , 2005.

, 8. The City and Council Members did not
App. A2

timely respond to Durkin s requests.

See

1 O.

From November 2005 through

December 2005 ,

Durkin s counsel wrote to the City s counsel in numerous good faith attempts
See

urging that the City comply with its discovery obligations.

App. A2- A3

11 to 14.

When the City finally produced some documents in late December
materially incomplete - and continued to be so even after the close of Durkin
See App. A3

2005 , it was
s case- in-chief.

15. In point of fact , there was not one (1) document produced from any of the
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Councilpersons in the late December 2005 production.

Id.

Durkin s counsel persisted with its

good faith attempts
discovery rules. See

to resolve the discovery issues , seeking the City s compliance with the

App. A3- A4 ~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

App. A1- A56. This Court specifically recognized the City s history of dilatoriness and bad faith

in its September 28 , 2006 Order.

See

Court Order dated September 28 , 2006 , page 6. (D. L 268).

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

three (3) groups of documents: the

first group was produced one week before trial; the 2

group was disclosed in a conference call
rd group was

with the Court on the day trial was originally scheduled to begin; and the 3
to Durkin after

provided

the close of Durkin s case in chief. This led to Durkin filing a succession of four

(4) Memoranda with the Court immediately prior to picking a Jury and during trial , seeking
sanctions for the City s flagrant discovery abuses. (D. L 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
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

is evidence of the City

s bad faith

conduct."

See

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

The City

practices significantly hampered Durkin
in the case.

s retrieval of relevant

source documents bearing upon the central issues
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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 surrounding the termination
of Durkin and the events that followed.

This situation was exacerbated because the
of

Councilpersons had destroyed the " briefing packets " that were provided to them in advance

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

currently 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 I

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).

If Durkin

had been

provided with this document prior to taking the depositions of City personnel , recollections may

have been refreshed and Durkin
streamlined.

s discovery process in

certain areas may well have

been

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). The

January 23 ,

2004 Memorandum is evidence that City Council was in fact

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. (0.1. 246 261 263 and 279). -4KOP:352998v13514-

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discussing termination of Durkin prior to the Februar

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. "

(App. A59).

Not

only is this in direct

contradiction of the

sworn testimony of Assistant City Manager Carol
2 but

Houck and the Councilpersons who uniformly testified that Luft recommended termination

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.

(App. A60)

This appears to be a reference to Durkin s approved pay applications that the City refused to pay.
Most ,
if not all , Councilpersons

stated under oath that they did not know at the time of
This document - to which no

termination that money was being withheld from Durkin.

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

City that was prepared during the course of the Executive

Session ,

and it provided important
minutes

information and insight into the dialogue that was missing from the offcial meeting
from that session.

2 As an aside , Durkin also notes that the reports 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 withholding.

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

Luft mentions in

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. This information
also completely undermines the testimony of Mr. Luft , Joseph Dombrowski , the 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
throughout this lawsuit.
impeachment value to the

litigation positions taken by the City

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 3

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.
appears to be Mr. Luft' s

A62). Also ,

in what

handwriting, there is a note indicating that " I am responsible and would
mistake ,

like to see it through. If there was any

it was that I trusted (and)

believed the experts

who we hired... and so did everyone else for the City. " (App. A63). It stretches the bounds of

logic to believe that events that were unsettling 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 significant expend additional time and resources

searching for information that should have been produced in the normal course of discovery.
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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Not having these documents - and others -

produced as

required by the discovery rules

caused Durkin and its counsel to expend copious 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 the Durkins could have

been avoided.

The City' s Bad Faith Conduct Needlessly Extended and Complicated This

Litigation, Causing Durkin to Incur Additional Legal Fees
Costs

and

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
terminate Durkin
s contract.

infirmities in the steps

taken to

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 filing a Motion for
Preliminary and Permanent Injunction on April 7 , 2004. (D.!. 6).

This is precisely when the
to take the

City began its pattern

of calculated denials , despite

knowing that it had failed

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

4 from litigation counsel Vicky Petrone
Voeller of

to

Assistant City

Administrator Carol Houck , copying third pary Jil

URS. (App. A 72 and Trial

4 The January 20 , 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 1) 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. A 72).
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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 Court recognized this in its September 28 , 2006 Order , in which 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 , arguments 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 declaring 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. L 268). The Court then goes on to list

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

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

5 The January 20 , 2004 Memorandum was produced to Durkin on September 18 , 2006 - just days before

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.

Durkin picked a Jury.

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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 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.
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 of URS 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). This

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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 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).

The City
successful ,

s unjustifiable

means of

conducting this litigation were at least partially
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 twenty-

Voluminous and Construction and Design Issues Were Complex
Discovery in this matter was extensive. (App. A6- A7 ~32- 46. )
one (21) baner s boxes of documents were produced
documents ,
as well as thousands of photographs

- amounting to over 50

000 pages of
drawings.

and several sets of construction

(App. A6 ~33. )

Over twenty (20) individuals were deposed.
days.

(App. A6 ~38. ) Some of

these

individuals were deposed over multiple

Id.

In addition ,

numerous site visits to the

Reservoir needed to be conducted during the various stages of construction and filling.

Not only

was the volume of documents , drawings and photographs extensive , the

construction and design issues were extremely complex.

(App. A6- A

7 ~32- 46.

The

complexity of the case is also demonstrated by the fact that there were seven (7) engineering

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

including soil testing and analysis and stability calculations. (App. A6 ~37.

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Motion Practice and Pre- Trial Submissions Were Extensive
During the course of the litigation , Durkin filed a Motion for Preliminar and Permanent
Injunction (D.!. 5) and a Motion for Partial Summary Judgment (D. L 26). Durkin filed eight (8)

Motions in Limine (D. L

175 , 178 , 181 , 184 , 190 , 193 , 196 and 205), responded to ten

(10)

Motions in Limine fied by parties in this matter (D.!. 208 , 211 , 214 , 215 , 216 , 217 , 218 , 219
220 and 223), fied a

Motion to Strike the City

s Motions in Limine (D. L

203), fied five (5)

Reply Briefs regarding Motions in Limine (D. L

233 ,

234 , 235 , 236 and 237), and fied four (4)

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

263 and 279). Durkin also

fied a Motion to Preclude the

City from offering additional

affirmative defenses (D.!. 271) and an Answering Brief in Opposition to the City s Motion for
Directed Verdict. (D. L

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
(which ultimately Durkin was able to streamline after Motions in Limine were decided to just
over sixty (60) exhibits for trial).

IV.

ARGUMENT
c.

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

1988

Durkin is entitled to recover its reasonable attorneys '
costs under 42 U.S. C.

fees

, post judgment interest and

91988 because it is a prevailing pary. The staring point for determining

the amount of reasonable attorneys ' fees under 42 U.
reasonably expended on the
Burlington v. Dague,

C. 91988

is the number

of hours

litigation multiplied by a
Blum v.

reasonable hourly rate.

See City of

505 U. S. 557 (1992);

Stenson

465 U. S.

886 (1984). This is called

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the " lodestar

Hensley

v.

Eckerhart

461 U. S.

424 (1983).

See also Auman

v.

Muhlenberg

School District,

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

Durkin is A Prevailng Part in this Litigation

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

91988 of whether Durkin is a prevailing pary. Of course ,

that is self evident , as the jury

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

298).
for

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

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 ,
Rhodes 760 (1987), which

on (the) merits of the claim(,

Hewitt

v.

Helms,

affects the

behavior of the defendant toward

the plaintif!')"

v.

Stewart 488 U. S.

1, 4

(1988)(emphasis in original), and which " changes the legal relationship between (the parties)."
Texas State Teachers Ass
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 Court' s definition.

The Attorneys ' Fees Incurred Were Reasonably Expended
Durkin
s attorneys

' fees may be
Hensley,

charged to the City

if the hours were " reasonably

expended Qn 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 Court 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.

Del. Valley Citzens '

Council for Clean Air
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Stenson,

465 U. S. 886 ,

896 (1984);

Student Pub. Interest Research Group of N.J, Inc.

v.

AT&T
Nu- Tek

Bell Lab,

842 F.2d 1436 , 1453 (3d
Mfg., Inc.,

Cir. 1988);

General Instrument Corp. of Del.

v.

Electronics

197 F. 3d 83 , 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.
Timesheets for David T. Bolger ,

Esquire App. A391- A508. Timesheets for Marsha E. Flora

Esquire App. A509- A627.
Timesheets for K.K. Carton ,

Timesheets for MJ. Pedersen , Esquire App. A628- A639.
Jr.

, Esquire App. A640- A644. Timesheets for J. S. 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. All attorney time was adequately documented on contemporaneous time records and
entered into a software program known as Carpe Diem. (App. All
~70. ) The

descriptions for

the phase codes and the task codes referenced on the time sheets is found at App. A100- AI02.

All of the attorneys who worked on this litigation were well- qualified , diligent attorneys.
(App. All- A14

~72- 81.)

The

attorneys spent a reasonable and appropriate amount of time on
especially considering that the case involved

the various tasks as referenced in the timesheets ,

the loss of milions of dollars and the total destruction of Durkin s professional 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 ~68.

Counsel also conserved litigation fees by delegating

work to associates and paralegals , and even to the Durkins when appropriate. (App. A10- All
~65- 67.

Counsel also employed a division of labor to avoid unnecessary duplication of effort.

(App. AI0 ~64. ) The Declaration of Paul A Logan, Esquire details that total lodestar time for
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litigation case assessment , development and evaluation (App. A14- A15 ~82- 89);
time for pre-

total lodestar

trial pleadings and motions (App. A15- A16 ~90- 96);

total lodestar time for

discovery (App. A16 ~97- 103); total lodestar time for trial and trial preparation (App. A17
~107- 111); and total lodestar time for business transactions (App. A16- A17 ~104- 106).

Additionally, in the exercise of billng judgment , counsel has eliminated 38. 5
time. App. A14 ~80.

hours of attorney

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

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.
461 U.S. at 435 (" where a plaintiff obtained excellent results , his attorney

91988. 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 incured reasonably

in a hard fought , highly

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

litigation. (App. AI- A56.

Durkin was forced to spend considerable time

money and resources in certain areas of this litigation that could have been short circuited , if not
eliminated, had the City had fully and faithfully complied with its discovery obligations.

Id.

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

of an attorney fee

the most critical factor is the

461 U. S.

at 436. In this regard , courts have focused on

the " results obtained" and whether the prevailing party " achieve(d) a level of success that makes

the hours reasonably expended a satisfactory basis for making a fee award(.
Certainly, with the level of success evidenced by a Jury Award of $36 667 573.
attorneys ' fees should be viewed as " reasonable
. In fact ,

Id.

at 434.

, Durkin

the Supreme Court has stated that
fully

(w)here a plaintiff has obtained excellent results ,
compensatory fee.
Id.

his attorney should recover a

at 435.
The

Attorneys

Biling

Rates Are Market Rates
91988 ,

To recover attorneys ' fees under 42 U.S. c.

the fees must be market rates. The

calculation of reasonable fees under 42 U. C. 91988 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 prevailng in the

community for similar services by lawyers of reasonably comparable skil ,
reputation.
Id.

experience and

at 895 and n.11.
s biling rate for this fie is

Lead Counsel Paul A. Logan , Esquire

$250 per hour . App.
especially in the

(A12 ~72.

Mr. Logan is familiar with rates charged in many areas ,
Id.

Philadelphia and Wilmington areas.

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

attorney of his reputation , skil 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 ~ 13.
7 Although as
of January 1 , 2005 , Messrs. Logan and Bolger s hourly rates for similar constrction litigation cases has been $275 per hour , due to the financial exigencies facing the Durkins , the rates on this fie were not increased.

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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- AI3~74 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 , skil and experience are not

in excess of the usual and customar

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
prevailing in the

community for representation

before the

District Court of Delaware for

attorneys of their experience. (App A75- A76 ~ 13 and ~ 17.
From time to time , associate level attorneys provided services on the file.
(App. A13

~77- 78. ) The rates for the associates were either $150 per hour or $175 per hour , depending on
the associate

s level of skil and

experience.

Id.

Mr. Logan is familiar with rates charged for
areas. Id.

associates in many areas ,

especially in the Philadelphia and Wilmington

In his

opinion , hourly rates of $150 per hour or $175 per hour for associate
comparable levels of reputation ,
customary rates for similar attorneys.

level attorneys with

skil and experience are not in excess of the usual and

Id.

Additionally, as the tasks permitted , paralegals conducted work on the

fie.

(App.

A13~79. )

The

rate charged for the paralegals was $60 per hour.

Id.

Mr. Logan is familiar with

rates charged for paralegals in many areas , especially in the Philadelphia and Wilmington areas.
Id.

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

usual and customary rates.

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The market rate is usually the attorney s normal biling rate for clients who pay on an
hourly non-contingent basis. See Hensley, 461 Us. at 431 nA.

In Hensley, the Supreme Court
by the same

noted that " (i)t 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(, ) 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

Us. 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
(a)s nearly as possible , market standards should prevail...
Jenkins, Id. at 447. See also Missouri

491 U.S. 274 ,

286 (1989) (" attorney s fee awarded under 91988 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 1436 , 1445 (3d Cir. 1988)(the Court has

consistently relied on biling rates

in determining market rates "

and has only diverged from

applying actual biling rates where " biling 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

bils clients who pay on an hourly, non-contingent basis

. (App. A12 ~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 bils clients who pay on an hourly, non-contingent
A12- A13 ~74 and 76.

basis. (App.

Regarding the associate level attorney rates of $150 per hour and $175
clients

per hour , Mr. Logan testified that those rates are the normal rates that his firm bils

who

pay on an hourly, non-contingent basis. (App. A13 ~78.

Finally, according to Mr. Logan

8 See

footnote 7 infra.
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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 ~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 of less complex areas of law.

(App. A75 ~ 9. )

The

rates charged to Durkin

for this successful representation are reasonable market rates and should be reimbursed under 42
U.S. C.
91988.

Durkin is Entitled to Reimbursement for the Attorneys ' Fees and Costs Incurred in Preparation of this Motion and Other Post Trial Proceedings
Time spent by Durkins ' attorneys in preparing and presenting a petition for counsel fees

is also recoverable under 42
Attorney General of State of New Jersey,

U.

C. 91988.

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

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 wil 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 II)

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

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regarding the City s dilatory discovery

practices. (App. A1- A56.

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. L 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 unnecessary attorneys ' fees.
Under these circumstances , an enhancement multiplier for delay is appropriate to

augment the lodestar.

See e. g.

Pa.

v.

Del. Valley Citzens ' Council for

Clean Air 478 U. S.

546

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

in order to have its day in court.

Durkin suggests that the Court look to 6 Del. C. 92301 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 DeI. C. 92301. Durkin further suggests that the time period

when the interest was due " as set forth in 6 DeI. C. 92301 should be April 7 , 2004 , the date
Durkin filed its Motion for Preliminary and Permanent Injunction , seeking an early resolution of
this matter. (D. L 6).
Compare Amico v. New Castle County, et aI.,

654 F. Supp. 982 , 1987 U.

Dist. LEXIS 1020 (D. Del. 1987) (Court 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).

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Durkin is Entitled to Reimbursement for Out of Pocket Litigation Costs
Under Rule 54( d)(1) Durkin , as the prevailing party, is entitled to " costs...
" Fed. R. Civ. P. 54(d). Section 1988 also has been construed
as of course

to authorize the recovery of a
Costs.

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

See e.

50 F. 3d 1204 , 1225 (3d Cir. 1995);
Palmigiano v. Garrahy,

Henry

v.

Webermeier 738 F.
Dowdell

188

192 (7th Cir. 1984);

707 F.2d 636
Jones

637 (1st Cir. 1983);

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

1181 , 1188- 92
Northcross

(1Ith Cir. 1983);

v.

Diamond,

636 F. 2d 1364

v.

Board of Ed. 611 F. 2d
to fee-

626 ,

639 (6th Cir. 1979).

These are expenses that are normally charged separately

paying clients and that are not

part of the offce overhead incorporated into the attorney s biling rates.
Durkin is seeking reimbursement for out of pocket expenses in the amount of

$52 943.41. A report sumarizing these costs is attached to the Appendix. (App. A666- A714.

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 the firm
and are based on expense vouchers , check records and other similar documentary backup, all of

which are maintained in the ordinary course of the firm s practice. (App. A 19

~ 119. ) All

of the

expenses were reasonably and necessarily incurred in prosecuting this case. (App. A19 ~ 120.

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
attorney

to 28 U.

C. 91961(a), post

judgment interest on an
judgment quantifying the
239 F3d 527

s award runs from the date that the District Court enters
Eaves v.

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

County of Cape May,

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

requests that this Court grant its Motion for Attorneys ' Fees , Costs and Post- Judgment Interest
pursuant to 42 U.S. C. 91988 and

Federal Rule of Civil Procedure 54 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 of this case.

POWELL , TRACHTMAN, LOGAN, CARRE & LOMBARDO, P.
/s/ Paul A. Logan 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
By:

Attorneys for Plaintif and Third Party

Defendant Donald M Durkin Contracting
Dated: October 25 , 2006

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