Free Answering Brief in Opposition - District Court of Delaware - Delaware

Case 1:04-cv-00163-GMS

Document 275

Filed 10/03/2006

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TIGHE, COTTRELL & LOGAN, P.A. Attorneys at Law
704 NORTH KING STREET, SUITE 500 P.O. BOX 1031 WILMINGTON, DELAWARE 19899
Telephone Number: (302) 658-6400 Telecopier Number: (302) 658-9836 WRITER'S EM AIL: p.cottrell@ lawtcl.com NEW JERSEY OFFICE: 13 WEST AVENUE P.O. BOX 303 WOODSTOWN , NJ 08098
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October 3, 2006 The Honorable Gregory M. Sleet U.S. District Court for the District of Delaware 844 North King Street Room 4209, Lock Box 19 Wilmington, DE 19801 Re: Donald M. Durkin Contracting, Inc. v. City of Newark, et al. C.A. No. 04-163-GMS Dear Judge Sleet: I offer the following as City of Newark's response to URS Corporation's Memorandum In Support of Its Motion for Summary Judgment. In URS's memorandum, URS argues that there is no right to contribution under 42 U.S.C. § 1983. In support of this argument, URS cites Northwest Airlines, Inc. v. Transport Workers Union, 451 U.S. 777 (1981) and claims that "most cases decided since Northwest Airlines have held that there is no right of contribution under §1983." This is an incorrect statement of the law in the Third Circuit. "Courts within the Third Circuit often recognize a right to contribution in § 1983 cases as a matter of federal common law." Klaitz v. New Jersey, 2006 WL 1843115, C.A. No. 04-529, (Dist. Ct. N.J. 2006). In Miller v. Apartment & Homes of New Jersey, Inc,, 646 F.2d 101 (3rd Cir. 1981), the court held that a federal right to contribution exists for § 1983 claims. Fishman v. DeMeo, 604 F. Supp. 873, 875-877 (E.Dist. P.A. 1985) held that Miller's statement that a federal right to contribution exists under § 1983 was dicta, but the district court was still compelled to follow Miller and find that a federal right to contribution for claims brought under §1983 exists. Post Miller, some courts outside of the Third Circuit have refused to recognize a right of contribution under §1983. "However, it is clear that Miller has never been overturned in the Third Circuit." Klaitz v. New Jersey, 2006 WL 1843115, C.A. No. 04-529, (Dist. Ct. N.J. 2006). In Fishman, the Court examined the viability of Miller in light of the Supreme Court decision in Northwest Airlines. The Court found that despite the Supreme Court's holding in

Case 1:04-cv-00163-GMS

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Filed 10/03/2006

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Northwest, Miller continues to be binding on district courts in the Third Circuit. Fishman held that the decision in Northwest failed "to resolve the question whether contribution ought to be available as a matter of federal law in actions brought under section 1983." The court in Alexander v. Hargrove, 1994 WL 4444728, No. Civ. 93-5510 (E.Dist. P.A. 1994), agreed with "Fishman's analysis on the binding effect that Miller has on the Court." URS's reliance on Northwest is inaccurate, as the recent 2006 Klaitz decision affirms that Miller remains good law in the Third Circuit. Therefore, Newark has a proper-third party contribution claim against URS as to Durkin's civil rights claim.
Respectfully,

TIGHE, COTTRELL & LOGAN, P.A. By: /s/ Paul Cottrell Paul Cottrell

cc:

James S. Green, Esquire Paul Logan, Esquire David Bolger, Esquire