Case 1:04-cv-00163-GMS
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE
DONALD M. DURIN CONTRACTING
INC.,
Plaintif
vs.
CITY OF NEWAR , et aI. Defendants
and
: CASE NO. 04- 0163-GMS
CITY OF NEWAR Third-Party
vs.
Plaintiff
DONALD M. DURIN CONTRACTING FEDERAL INSURNCE COMPAN and URS CORPORATION Third-Party Defendants
ST. PAUL FIRE & MARIN
INSURCE
COMPAN
Intervenor
ANSWERING BRIEF OF PLAINTIFF DONALD M. DURKIN CONTRACTING, INC. TO CITY OF NEWARK' S MOTION FOR RECONSIDERATION AND RE-ARGUMENT AND LEAVE TO AMEND THE PLEADINGS
TRACHT MAN LOGAN CARRE & LOMBARDO, P. Paul A. Logan
POWELL,
Delaware Supreme Court il #3339
475 Allendale Road , Suite 200 King of Prussia , PA 19406 Telephone: 610- 354- 9700 Telefacsimile: 610- 354- 9760
Attorneys for Plaintif and Third Party
Defendant Donald M Durkin Contracting
Dated: September 26 , 2006
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TABLE OF CONTENTS
Paee
NATUR AND STAGE OF PROCEEDINGS ...................................................................
II.
SUMMARY OF ARGUMENT...........................................................................................
CONCISE STATEMENT OF FACTS ..............................
III.
IV.
ARGUMENT .......................................................................................................................
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TABLE OF CITATIONS
Paee
Cases
Max s Seafood Cafe v. Quinteros 176 F. 3d 669 (3 Cir. 1999) .................................................... 2
Shering Corporation v.
Amgen , Inc. 25 F. Supp. 2d 293 (D. Del. 1998) ..................................... 2
Weissman
v.
Fruchtman 124 F. R.D. 559 (S.
Y. 1989) ........................................................... 2
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NATURE AND STAGE OF PROCEEDINGS
Plaintiff and Third Party Defendant Donald M. Durkin Contracting, Inc. (" Durkin ) fied
an action against Defendant City of Newark and members of City Council (collectively "the
City
) arising out of the City
s improper termination of Durkin
s Contract for
default.
September 22 , 2006 , this Court ,
as part of its pretrial
rulings , granted Federal Insurance
Company (" Federal" )'s Motion for Reconsideration and in turn granted Federal' s Motion for
Summary Judgment , as well as Durkin s Motion for Partial Summary Judgment on the notice
requirements for a default termination of the Contract (D.!. 257). The City of Newark has filed a
Motion for Reconsideration and Re-argument and for Leave to Amend its Pleadings.
II.
SUMMARY OF ARGUMENT
or
The City of Newark has failed to bring to the Cour s attention any new facts
decisional law that would provoke reconsideration of its Order dismissing
Federal and granting Durkin s motion for summary judgment.
the claims against
In this instance ,
the Cour
properly took note of the repeated judicial admissions of the City in declaring that the November
, 2003 letter was the prior seven day written notice of intent to terminate
furher concluded
the Contract ,
and
that no reasonable jury could regard that letter as satisfying
the contractual
mandate of prior written notice of the City s intention to terminate under Section 15. 2
Contract.
of the
III.
CONCISE STATEMENT OF FACTS
A recitation of the salient facts has been succinctly set forth in the Court' s September 22
2006 Order ,
and Durkin incorporates those facts for purposes of this Answering Brief.
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IV.
ARGUMENT
outlining the limited
Despite the Court' s
pointed
instructions and legal citations
circumstances and justification for reconsideration
of a prior ruling, the City has
nonetheless
simply reshuffed its deck of facts to present what it now believes is the winning hand in the
debate over whether the City provided the contractually required prior written notice of intent to
terminate under Section 15.2 of the Contract. Measuring the City s Motion for Reconsideration
against the applicable standards , the City s Motion and Brief reflect no " new evidence that was
not available when the Court issued
its order
, no "patent
misunderstanding " of the City
contentions and arguments , and no " overlooking of facts or precedent that reasonable would
have altered the result"
Weissman v. Shering Corporation v.
Amgen, Inc.
Y. 1989);
25 F. Supp. 2d 293 (D. Del. 1998);
Fruchtman 124 F. R.D. 559 (S.
Cir. 1999).
Max
s Seafood Cafe
v.
Quinteros
176 F. 3d 669 (3
The Court' s observation that the City had judicially admitted , through its pleadings , that
it regarded and represented the November 21 , 2003 letter as the prior seven day written notice
was met with the City s contention that preventing them from arguing alternative theories would
violate Rule 8(e)(2).
That argument
is made initially in the City s Answering Brief to the
Motion for Summary Judgment , and simply repeated in the Motion for Reconsideration. The
City s assertion appears to be that the Cour may not foreclose its ability to raise factual issues by
interchanging legal theories of its case. However , this is not a matter of differing legal theories;
the City
s " legal
theory " was that it satisfied the contractual requirements for termination , and
one of the " facts " it asserted was that the November 21 , 2003 letter satisfied the prior written
notice requirement. That " fact" was conclusively established by the judicial admissions , and the
Court has found it to be legally insuffcient as a matter
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of law to
constitute the contractually
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required prior written notice. That judicial
conclusion is not subject to divestiture by the City
belated attempt to substitute the February 3
2004 letter-or any other writing-in its place as an
alternate legal theory
Finally, to permit the City, during the course of the trial , to amend its pleadings to include
alternate theories " in order to capture
whatever defenses it believes may exist or arise from
those new pleadings ,
would once again frustrate the ability of Durkin to properly plan and
prepare for the moving target of the City s arguments. There was no manifest injustice in the
Court' s granting of the motions for sumary judgment by Federal and Durkin , and the City has
offered no grounds for reconsideration of the Cour' s
Motion should be denied in its entirety.
Order and opinion. As such ,
the City
POWELL , TRACHTMAN , LOGAN
CARE & LOMBARO, P.
Isl
Paul A. Logan Paul A. Logan
By:
Delaware Supreme Court il #3339
475 Allendale Road , Suite 200 King of Prussia , PA 19406 Telephone: 610- 354- 9700 Telefacsimile: 610- 354- 9760
Attorneys for Plaintif and Third Party
Defendant Donald M Durkin Contracting
Dated: September 26 , 2006
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