Free Motion for Attorney Fees - District Court of Delaware - Delaware

Case 1:04-cv-00163-GMS

Document 307

Filed 10/25/2006

Page 1 of 18

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 Plaintif
vs.

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

PLAINTIFF' S MOTION IN SUPPORT OF ATTORNEYS' FEES, COSTS AND POST- JUDGMENT INTEREST 1988 AND FEDERAL RULE OF CIVIL PROCEDURE 54 PURSUANT TO 42 U.
C.

The jury returned a verdict for Plaintiff and Third Party Defendant Donald M.
Durkin Contracting, Inc. (" Durkin
(collectively the " City
October 11
) against

Defendant City of Newark and Councilpersons
and the Court entered

) on October 5 ,

2006 ,

judgment for Durkin on

2006.

Durkin fies this Motion for attorneys ' fees , costs and post-judgment interest 42
c. 91988 and Federal Rule of

Civil Procedure 54.

- 1 -

KOP:353020vI3514-

Case 1:04-cv-00163-GMS

Document 307

Filed 10/25/2006

Page 2 of 18

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 pary. Second , the attorneys ' fees and costs incurred

were reasonably incurred. And ,
Hensley v. Eckerhart, 461 U.S. 424 (1983).

finally, the attorneys

' fees charged are
C. 91988.

market rates.

See

See also

42 U.

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

City'

Blatant

Disreeard for Discoverv

The entire course of this litigation was plagued and unnecessarily protracted by
the City

s 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
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.

-2KOP:353020vI3514-

Case 1:04-cv-00163-GMS

Document 307

Filed 10/25/2006

Page 3 of 18

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

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

See also

A2

The improper and unwarranted withholding of documents continued through the
close of Durkin s case- in-chief.
10.

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 with the
to begin; and the 3

Court on the day trial was originally scheduled
Durkin after

group was provided to

the close of Durkin s case in chief.

11.

This led to Durkin filing a succession

of four (4)

Memoranda with the Court
s flagrant

immediately prior to picking a Jury and during trial , seeking sanctions for the City
discovery abuses. (D. L 246 261 263 and 279).
12.

Not only were the vast majority
but certain

of these

documents not subject to any proper

claim of privilege ,

documents were in fact issue and/or claim- dispositive on the

breach of contract claims made by Durkin.
13.
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
14.
s bad faith conduct." See

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

The City

s discovery

practices significantly hampered Durkin

s retrieval of

relevant source documents bearing upon the central issues in the case.
15.

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.
-3KOP:353020v I 3514-

Case 1:04-cv-00163-GMS

Document 307

Filed 10/25/2006

Page 4 of 18

16.

Below are just some examples of these documents and the effect they could have

had on this litigation I
a.

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 s discovery process in certain areas may well have been streamlined.
b.

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 discussing termination of Durkin prior to
the February 2 2004 meeting where it was voted to terminate Durkin. This is in

direct conflct 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 Houck and the

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:353020vI3514-

Case 1:04-cv-00163-GMS

Document 307

Filed 10/25/2006

Page 5 of 18

Councilpersons who uniformly testified that Luft recommended termination
also confirms that as of that date

2 but

, the City had not provided Durkin with the
as

contractually required 7 day notice of intent to terminate. This document ,

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.
c.

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
pay.

approved pay

applications that the City refused to

Most ,

if not all

Councilpersons stated under oath that they did not know at the time of termination

that money was being withheld from Durkin. This
colorable claim of privilege could conceivable

document -

to which no

attach - was the

only document
Executive

produced by the City that was prepared during the course of the

Session , and it provided important information and insight into the dialogue that

was missing from the offcial meeting minutes from that session.
d.

March 27, 2004 Luft' s

Handwritten Notes from the Executive Session
convincing "

Luft

mentions in his notes that URS is " not

and that URS " needs more

time. " (App. A61). None of this information was reflected in the testimony of
any of the Councilpersons. This
testimony of Mr. Luft ,

information also completely undermines the

Joseph Dombrowski , the former Newark Water Director

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.

-5KOP:353020vI3514-

Case 1:04-cv-00163-GMS

Document 307

Filed 10/25/2006

Page 6 of 18

and others who indicated that there was no reason to question URS' design of the

Reservoir. This is another example of a document that should have been available
to Durkin during discovery, and , if produced as required by the Federal Rules of
Civil Procedure ,

would have provided considerable impeachment value to the

litigation positions taken by the City throughout this lawsuit.
e.

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.

A62). Also ,

in what appears

to be Mr.

Luft' s handwriting, there is a note indicating that " I am responsible and would

like to see it through. Ifthere was any mistake, 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 (I) time that he had tendered his resignation on May 27 , 2004 - or more importantly - that he
felt that he was responsible for what happened.
-6KOP:353020vI3514-

Case 1:04-cv-00163-GMS

Document 307

Filed 10/25/2006

Page 7 of 18

17.

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.

The City Needlesslv Extended and Complicated This Litieation
18.

The most egregious discovery violations committed

by the

City were the

withholding of documents - without any legal basis - that were issue and claim- dispositive.
19.

What these documents reveal is an acute knowledge and awareness on the part of

the City and its attorneys (both its litigation attorneys and its solicitor) of the legal infirmities in
the steps taken to terminate Durkin s contract.
20.
That is , the City knew , certainly by the time Durkin filed its lawsuit , that the City

had terminated Durkin without providing the requisite seven (7) days ' notice.
21.

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. L 6).
22.

This is precisely when the City began its pattern

of calculated denials , despite

knowing that it had failed to take the contractually required steps to properly terminate Durkin
contract.
23.

This is confirmed by the January 20 , 2004 memorandum

4 from litigation counsel

Vicky Petrone to Assistant City Administrator Carol Houck,

copying third party Jil

Voeller of

URS. (App. A 72 and Trial Exhibit DUR- 31),

5 and the memorandum generated 3 days later by

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). 5 The January 20 , 2004 Memorandum was produced to Durkin on September 18 , 2006 - just days before
Durkin picked a Jury.
-7KOP:353020v I 3514-

Case 1:04-cv-00163-GMS

Document 307

Filed 10/25/2006

Page 8 of 18

Carl Luft to City Council announcing that Mr. Cottrell had recommended taking steps to declare
Durkin in default and terminate the contract.
24.

Rather than acknowledge it had erred in terminating Durkin s contract , the City

led Durkin and this Cour 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
and " notice of termination.
25.

of default"

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).
26.

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

case could-and should-have ended shortly after its inception.
The

City' Campaien to Conceal Information

27.

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.
28.

A review of selected documents demonstrates that the City s intent was both long-

standing and far-reaching.

29.

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
-8KOP:353020vI3514-

Case 1:04-cv-00163-GMS

Document 307

Filed 10/25/2006

Page 9 of 18

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.
30.

Ms. Houck' s notes , which appear to be simply her contemporaneous notes of this

telephone call with URS , were not disclosed during discovery.
31.

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

public debate and disclosure of potentially adverse information.
32.
Roger Akin , Esquire , the City Solicitor , 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).
33.

This structured " one-sided" presentation was designed to promote the interests of

the City at the expense of Durkin , and was tantamount to a " gag order
34.

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).
35.

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

-9KOP:353020v I 3514-

Case 1:04-cv-00163-GMS

Document 307

Filed 10/25/2006

Page 10 of 18

that resolution may (or may not) cause Durkin to be more amendable
mediation of certain issues.
36.

to a settlement or a

(App. A69- A71).

The City s unjustifiable means of conducting this litigation were at least parially
in that Durkin had to borrow milions of

successful ,

dollars in order to sustain itself to the

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

Discoverv was Voluminous and Construction and Desien Details Were Complex
37. 38.

Discovery in this matter was extensive. (App. A6- A7 ~32- 46.
Approximately twenty-one (21) baner s boxes of documents
were produced -

amounting to over 50 000 pages of documents , as well as thousands of photographs and several

sets of construction drawings. (App. A6 ~33.
39.

Over twenty (20) individuals were deposed. (App. A6 ~38. ) Some of these
Id.

individuals were deposed over multiple days.

40.

In addition ,

numerous site visits to the Reservoir needed to be conducted during

the various stages of construction and filling.
41.

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.
42.

The complexity of the case is also demonstrated by the fact that there were seven
the completion of construction by two (2) contractors , and multiple

(7) engineering experts ,

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

Motion Practice and Pre- Trial Submissions were Extensive
43.

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

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

- 10KOP:353020vI3514-

Case 1:04-cv-00163-GMS

Document 307

Filed 10/25/2006

Page 11 of 18

44.

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 filed by parties in this matter (D. L
214 215 216 217 218 , 219 ,
220 and 223), fied a Motion to Strike the City

208 211

s Motions in
234 , 235

Limine (D. L 203), filed five (5) Reply Briefs regarding Motions in Limine (D. L

233 ,

236 and 237), and fied four (4) Motions or supplemental briefs for sanctions against the City for
discovery abuses (D. L

246 261

263 and 279). Durkin

also filed a Motion to Preclude the City

from offering additional affrmative defenses (D. L 271) and an Answering Brief in Opposition to
the City s Motion for Directed Verdict. (D.!. 280).
45.

Pre- trial submissions

prepared by Durkin in

this matter were extensive.

For

example , 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).

Durkin is Entitled to Collect Attornevs ' Fees Under Section 42 U.
46.

c. ~1988

Durkin is entitled to recover its reasonable attorneys ' fees , post judgment interest
C. 91988 because it is a prevailing party.

and costs under 42 U.

47.

Durkin s attorneys ' fees may be charged to the City if the hours were " reasonably
Hensley,

expended on the litigation.
48.

461 U. S. at 433.
s attorney

The calculation of Durkin

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.
487 F.2d 161

Builders, Inc. of Phila.

v.

Amer. Radiator &

Standard Sanitary Corp.

167- 68

(3d Cir. 1973).

- 11 -

KOP:353020v I 3514-

Case 1:04-cv-00163-GMS

Document 307

Filed 10/25/2006

Page 12 of 18

49.

The Supreme

Court and

the Third Circuit repeatedly recogmze
civil rights action.

a strong

presumption that the lodestar constitutes a reasonable fee in a
505 U. S.
v.

City of

Burlington

v.

Dague,

at 560- 64;

Pa.

v.

Del. Valley Citizens '

Council for Clean Air, 478

S. 546

565 (1986);

Blum

Stenson

465 U. S. 886

896 (1984);

Student Pub. Interest Research
General Instrument

Group ofNJ
Corp. of Del.

, Inc.

v.

AT&T Bell Lab 842 F. 2d
Mfg., Inc.,

1436 ,

1453 (3d Cir. 1988);

v.

Nu- Tek Electronics

197 F. 3d 83 , 91 (3d Cir. 1999).

50.

Timesheets setting forth the services rendered in this matter , for which

compensation is sought , are found in the Appendix.
51.
All of the attorneys

who worked on this litigation were well- qualified ,

diligent

attorneys. (App. AII- AI4
52.

~72- 81.)

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

tasks as referenced in the timesheets ,

millions of dollars and the total destruction of Durkin s professional business.
53.

The Declaration of Paul A. Logan , Esquire details that total lodestar time for
total lodestar

litigation case assessment , development and evaluation (App. A14- A15 ~82- 89);
time for pre-

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. A 16- A 17 ~ 104- 106).

54.

In the exercise of biling judgment , counsel has eliminated 38. 5

hours of attorney

time. App. A14 ~80.

55.

All of the time spent by Durkin s attorneys surrounded a common nucleus of
inter alia,

operative facts for all counts in the Complaint

the termination of Durkin for default

- 12 -

KOP:353020vI3514-

Case 1:04-cv-00163-GMS

Document 307

Filed 10/25/2006

Page 13 of 18

and the City

s subsequent actions which led to the

deprivation of Durkin s civil rights and

resulting damages.
56.
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
C. 91988. See Hensley,

461 U. S.

at 435 (" where a plaintiff obtained excellent results , his

attorney 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."
Wiliams v. Thomas,

See also

692 F.2d 1032 ,

1036 (5

Cir. 1982) (" A

party 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.
57.

The hours spent by counsel were incurred reasonably

in a hard fought ,

highly

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

difficult course oflitigation. (App. AI- A56.
58.

In determining the " reasonableness " of an attorney fee the most critical factor is
Hensley,

the degree of success obtained.
59.

461 U. S. at 436.
of success evidenced by

Certainly, with the level

Jury Award of

$36 667 573.
60. 61.

, Durkin s attorneys ' fees should be viewed as " reasonable

To recover attorneys ' fees under 42 U.S. C. 91988 , the fees must be market rates.

The calculation of reasonable fees under 42 U. C. 91988 is determined by the
Blum v. Stenson,

prevailing market rates in the relevant community.
62.

465 U. S. 886

895 (1984).

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

App. (A12 ~72.
6 Although as of January
1 2005 , Messrs. Logan and Bolger s hourly rates for similar construction litigation cases , due to the financial exigencies facing the Durkins , the rates on this fie were not increased. has been $275 per hour

- 13 -

KOP:353020vl 3514-

Case 1:04-cv-00163-GMS

Document 307

Filed 10/25/2006

Page 14 of 18

63.

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

especially in the

Philadelphia and Wilmington areas.

64.

In his opinion , an hourly rate of $250 per hour for an attorney of his reputation
Id.

skil and experience is not in excess of the usual and customary rates for similar attorneys.
65.

Sherry Ruggiero Fallon , Esquire has also testified that Mr. Logan s 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.
66.
David T. Bolger ,

Esquire and Marsha E. Flora , Esquire also participated in this

litigation.
67.

The rates for Mr. Bolger and Ms. Flora are $250 per hour and $200 per hour

respectively. (App. AI2- A13~74 and 76.
68.

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.

69.

In his opinion , hourly rates of $250 per hour and $200 per hour for Mr. Bolger
respectively, for attorneys of their reputation , skil and experience are not in

and Ms. Flora ,

excess of the usual and customar rates for similar attorneys.
70.

Id.
and

Sherry Ruggiero Fallon , Esquire has also testified the rates for Mr. Bolger

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.

71.

From time to time ,

associate level attorneys provided services on the fie.

(App.

A13 ~77- 78.
- 14 -

KOP:353020vI3514-

Case 1:04-cv-00163-GMS

Document 307

Filed 10/25/2006

Page 15 of 18

72.

The rates for the associates were either $150
Id.

per hour or $175 per hour

depending on the associate s level of skil and experience.
73.

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

in the Philadelphia and Wilmington areas.

74.

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

attorneys with comparable levels of reputation , skil and experience are not in excess of the usual
and customary rates for similar attorneys.

Id.

75.

Additionally, as the tasks permitted , paralegals conducted work on the file. (App.

A13~79.
76. 77.
The rate charged for the paralegals was $60 per hour.

Id.

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

in the Philadelphia and Wilmington areas.

78.

In his opinion ,

an hourly rate of $60 per hour for paralegal
Id.

services is not in

excess of the usual and customary rates.

79.

Successful representation of Durkin in

this complex construction case, where

wrongful termination was alleged , and where there were allegations of violation of Durkin s civil
rights , required a high degree of competence and dedication ,
as well as a

greater time

commitment than would be required ofless complex areas oflaw.
80.

(App.

A75 ~ 9.

The rates charged to Durkin for this successful
91988.

representation are reasonable

market rates and should be reimbursed under 42 U.S. C.
81.

Time spent by Durkins ' attorneys in preparing and presenting a petition for
c. 91988.

counsel fees is also recoverable under 42 U.S.

Planned Parenthood of Central New

- 15 -

KOP:353020vI3514-

Case 1:04-cv-00163-GMS

Document 307

Filed 10/25/2006

Page 16 of 18

Jersey

v.

Attorney General of State of New Jersey,
(3d Cir. 1979).

297 F. 3d 253 , 268 (3d Cir. 2002);

Bagby

Beal,

606 F. 2d 411 , 415- 16

82.

Time spent defending the verdict also will be compensable as simply part of the

overall prosecution of the case.
83.

Durkin respectfully requests that it be awarded its attorneys ' fees and costs
any

incurred in preparing this Motion and

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.
84.
its discovery

As discussed at length in Dukrin s Opening Brief, the City s blatant disregard for

obligations caused Durkin to expend needless monies on attorneys '

fees

unnecessarily drew out this litigation and wasted judicial resources.

An Enhancement Multiplier for Delav is Appropriate
85.

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.
86.
augment the lodestar.

Under these circumstances , an enhancement multiplier for delay is appropriate to
See e. g.
Pa. v.

Del. Valley Citizens '

Council for Clean Air

478 U.S. 546

(1986) (when there is specific evidence demonstrating that any factor relied on is not subsumed
in the lodestar , a Court may adjust the fee).
87.

Durkin suggests 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. 6 Del. C. 92301.
- 16 -

KOP:353020vI3514-

Case 1:04-cv-00163-GMS

Document 307

Filed 10/25/2006

Page 17 of 18

88.

Durkin further suggests that the time period " when the interest was due "

as set

forth in 6 Del. 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).
v.

Compare Amico
(D. Del. 1987)

New Castle County, et al.

654 F. Supp. 982 , 1987 U. S.

Dist. LEXIS 1020

(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).

Durkin is Entitled to Reimbursement for Out of Pocket Litieation Costs
89.
course... "

Under Rule 54(d)(I) Durkin , as the prevailing party, is entitled to " costs...
Fed. R. Civ. P. 54(d).

as of

90.

Section 1988 also has been construed to authorize the recovery of a broad range
Costs.

of litigation expenses beyond statutory costs proper to a Bil of
Lightolier Inc. 50 F. 3d
91.
1204

See e. g.

Abrams

1225 (3d Cir. 1995).
are for trial exhibits , deposition transcripts , photocopying,

These expenses

electronic research and other items for the case
92.

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

$52 943.41.
93.

A report summarizing these costs is attached to the Appendix. (App. A666-

A714.

Durkin is Entitled to Post- Judement Interest
94.
Eaves v.

Durkin is also entitled to post-judgment interest on the award of attorneys '
239 F3d 527

fees.

County of Cape May,

542 2001 U. S. App. LEXIS 938 (3d Cir. 2001).

WHEREFORE ,

for the reasons set

forth above and in Plaintiff Donald M. Durkin

Contracting, Inc.'s Motion for Attorneys ' Fees , Costs and Post- Judgment Interest pursuant to 42
- 17 -

KOP:353020vl 3514-

Case 1:04-cv-00163-GMS

Document 307

Filed 10/25/2006

Page 18 of 18

C. 91988 and Federal Rule of Civil Procedure 54 ,

Plaintiff

Donald M. Durkin Contracting,

Inc. respectfully requests that this Court grant its Motion for Attorneys ' Fees , Costs and PostJudgment Interest pursuant to 42 U.S. C. 91988 and Federal Rule of Civil Procedure
54 along

with granting an enhancement multiplier to the lodestar for delay.
leave to re- fie

Durkin respectfully requests

a supplemental Motion with appropriate backup documentation as necessary to

reflect all fees and costs incurred in the post- trial activities ofthis 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

- 18 -

KOP:353020vI3514-