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

Case 1 :04-cv-00163-GIVIS Document 214 Filed 08/22/2006 Page 1 of 3
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
DONALD M. DURKIN CONTRACTING, CASE NO. 04-0163-GMS
INC., Plaintw
VS- JURY TRIAL DEMANDED
l CITY OF NEWARK, et al., Defendants
and
CITY OF NEWARK, T hird-Party Plaintw
vs.
DONALD M. DURKIN CONTRACTING
and FEDERAL INSURANCE COMPANY,
T hird-Party Defendants
ANSWERING BRIEF OF DONALD M. DURKIN CONTRACTING, INC.
TO THE CITY OF NEWARK’S MOTIONS RESPECTING THE CIVIL RIGHTS
CLAIMS
The City notes that in Delaware, there is no "liberty interest in reputation", citing Helman
v. State, 784 A.2d 1058, 1071-1072 (Del. 2001). Helman has no real application to this case and
the statement of the City respecting the law of Delaware is wrong.
Helman is a case that addressed a sex offender's liberty interest inthe possible damage to
the offender’s reputation cases by the community notification scheme of Del. Code Ann. tit. 11,
§§ 4120, 4121 (Act) registration and notification requirements. The Delaware Supreme Count
found that the Act offended neither the state nor federal constitutions generally, or as applied to
juveniles.
The Supreme Court did not hold that there is no "1iberty interest in reputation" as the City
suggests. Indeed, what the Supreme Court said was consistent with a constitutionally protected
right to maintain one’s reputation. The Supreme Court wrote:
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Reputation alone, apart from some more tangible interest such as employment, is [not] 'liberty' or
'property' by itself sufficient to invoke the procedural protection of the Due Process Clause."
Paul v. Davis, 424 U.S. 693, 701, 47 L. Ed. 2d 405, 96 S. Ct. 1155 (1976). The plaintiff in Paul
argued unsuccessfully that he was entitled to due process before law enforcement officials were
permitted to distribute to local businesses a flyer that contained his name and photograph on a
list of "active shoplifters." In rejecting this claim the Supreme Court ruled that the damage to
one's reputation resulting from disclosure of negative information does not by itself give rise to a
constitutional claim. See also Siegert v. Gilley, 500 U.S. 226, 233-34, 114 L. Ed. 2d 277, 111 S.
Ct. 1789 (1991). Rather, the government conduct that has the effect of stigmatizing an individual
must be accompanied by the alteration of a "right or status previously recognized by state law" to
trigger due process rights. Paul, 424 U.S. at 712. This has come to be known as the "stigma plus
test." See Sturm v. Clark, 3d Cir., 835 F.2d 1009, 1012 (1987).
Helman v. State, 784 A.2d 1058, 1071-1072 (Del. 2001)
The evidence in this case assembled during discovery is that at least one member of City
Council knew at the time termination that Durkin’s reputation would be adversely affected by the
termination. [Deposition of City Councilman Osbourne]. The testimony by the City’s designee,
Ms. Houck, confirmed that a "handouts" given to Durkin’s competitors at the time of the re-bid
was false and overstated Durkin’s misconduct. When combined by the additional facts that as of
December, 2003, the City had withheld in excess of $200,000 in payments due to Durkin (even
though URS had certified the payments to be due), that after termination, the City went to all of
Durkin’s suppliers and subcontractors and made statement to the suppliers and subcontractors
that Durkin had not properly paid them (which resulted in Durkin being sued by suppliers and
subcontractors), the fact that since be declared in default, Durkin has not been able to obtain
bonding or procure another contract and the fact that Durkin was provided no notice under the
contract of any declaration of default, the "stigma plus test" is more than satisfied. Indeed, the
F ox Fuel case reflect the "liberty" interest of a public contractor in its reputation as a responsible
bidder.
Turning to the other legal predicate upon which the City grounds its theories, as its initial
legal premise, the City points to the decision of the United States Third Circuit Court of Appeals
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in Linon-Faye Construction, Inc. v. Housing Authority ofthe City of Camden, 49 F.3rd 915
(Third Cir. 1995). The Linczn-Faye decision has little application in Delaware; the Court in
Linan-Faye applied the law of the State of New Jersey, not Delaware. 49 F.3rd at 920. Further,
the City’s contention that federal procurement practice provides for transforming improper
terminations for default into terminations for convenience is not embraced within any federal
"common law" doctrine, but is expressly provided for in the Federal Acquisition Regulations that
contain sample contract provisions that are inserted into government contracts. See FAR
§52.249. As in the case for all federal procurement agencies, it is the specific language of the
contract that is determinative, and there is simply no interpretation or construction of the plain
language of the Contract that displaces Durkin’s right to the full measure of damages in the event
it is determined that the City breached the Contact by wrongfully terminating Durkin.
IV. CONCLUSION
The City’s Motion in Limine respecting the right of Durkin to pursue civil rights damages
must be dismissed and denied.
Powell, Trachtman, Logan,
Carrle & Lombardo, P.C.
By:
Paul A. Logan
Delaware Supreme Court ID #3339
475 Allendale Road, Suite 200
King of Prussia, PA 19406
Telephone: 610-354-9700
Telefacsimile: 610-354-9760
Attorneys for Plaintiff
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