Free Motion in Limine - District Court of Delaware - Delaware

Case 1:04-cv-00163-GI\/IS Document 205 Filed 08/22/2006 Paget of 4
IN THE UNITED STATES DISTRICT COURT n
FOR THE DISTRICT OF DELAWARE
DONALD M. DURKIN CONTRACTING, E
INC., Plaintyff g
vs.
CITY OF NEWARK, et al., Defendants Q CASE NO. 04-0163-GMS
and
CITY OF NEWARK, T Iz ird—Partjy Plaintrjf E
vs. E
DONALD M. DURKIN CONTRACTING,
FEDERAL INSURANCE COMPANY and g
URS CORPORATION, T hird-Party I
Defendants E
PLAINTIFF’S MOTION IN LIMINE
TO EXCLUDE EVIDENCE OF TRESPASSING, ALLEGED INTERFERENCE
WITH CONSTRUCTION ACTIVITIES, AND ARRESTS FOR
CRIMINAL TRESPASS OF MICHAEL 1). DURKIN AND JAMES W. DURKIN
l. Plaintiff and Third Party Defendant Donald M. Durkin Contracting, Inc.
("Durkin") iiled 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. ‘
2. Durkin tiles this Motion in Limine to preclude the City from presenting
evidence of trespass, including alleged interference with construction activities, and
evidence of Michael D. Durkin and James W. Durkin (the "Durkins") being arrested for
criminal trespass at the Newark Reservoir site (t.he "Site"). ·‘
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3. Durkin believes that the City will attempt at trial to present evidence of the
Durkins being arrested for criminal trespass and other incidents of trespassing including
alleged interference with ongoing construction activities at the Site.
4. Any evidence or allegations of trespassing and/or interfering with
construction activities, and arrests for criminal trespass are not relevant to the facts of this
case and will only serve to prejudice Durkin in violation of Federal Rules of Evidence
401, 402 and 403. H
5. On or about June 20, 2005, the Durkins entered the Site to more closely
observe the condition of the embankment work perfonned by George & Lynch, Inc.1 -
aiter rain events. _
6. The Durkins were arrested for trespassing. (Police Report, App. Al-A2).
(Aftidavits of Michael and James Durkinz, 119 App. A4, 1]9 App. A7).
7. Subsequent to the arrests, the City tiled a Motion for Protective Order to
prohibit Durkin from entry and trespass on the Site. (Motion for Protective Order App. A9-
A28).
8. This Court denied the City’s Motion. (Court Order, '//29/05 App. A29).
9. In its Motion the City raised unsubstantiated allegations of "spying,”
“careful and calculated changes" of grade stakes, men in "camouflage c1othing" and
"sabotage". (App.10).
I George & Lynch, Inc. was the contractor hired by the City to finish the Reservoir after
terminating Durkin and after receiving no bids on the re-bid to finish the Project.
2 These Afiidavits were executed in support of Durkin’s Answer to the City’s Motion for
Protective Order. _
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10. All of these allegations were raised in an apparent attempt to suggest or
insinuate that Durkin was either endorsing or conducting criminal activity designed to
interfere or otherwise frustrate the City’s construction of the Reservoir.
ll. At their depositions, both Durkins were also questioned by the City’s
counsel about being arrested at the Site. (Selected portions Michael Durkin 5/11/06
Deposition, p. 17, App. A32 and James Drukin 5/11/06 Deposition, p. 13, App. A35).
g 12. Durkin believes that the City will attempt to present at trial, either through
oral argument and/or evidence, that the Durkins being arrested for criminal trespass.
13. There is absolutely no relevancy between trespassing, the arrests and
unsubstantiated incidents of "interference with construction activities" with the facts of
this matter.
14. Durkin respectfully asks this Court to grant this Motion in Limine and
preclude this evidence from trial.
15. Under the Federal Rules of Evidence, only evidence that is relevant may
be admitted. See Fed. R. Evid. 402.
16. Evidence which is not relevant is not admissible. See Fed. R. Evid. 402.
17. Any reference to or evidence of trespassing, including unfounded
allegations of "interference with construction activities" during the construction work
performed by George & Lynch, is completely irrelevant to the issues and facts of this
case.
18. The only possible reason or purpose for the City to attempt to introduce
this material is to impugn the character and reputation of Durkin. I
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19. Even if evidence is deemed to be relevant, it may be excluded at the time
of trial if the probative value of such evidence is outweighed by the danger of unfair
prejudice. See United States v. Gatto, et ul., 995 F.2d 449 (3d Cir. 1993).
20. Courts have held that evidence should be excluded under Rule 403 if it '
» may cause a jury to base its decision on something other than the established propositions
in the case. See Advisory Committee Notes, Fed. R. Evid. 403 (courts should exclude evidence
that risks "an undue tendency to suggest decision on an improper basis ..."). U
2l. Not only is there no probative value associated with the arrests of James ‘
and Michael Durkin, but the introduction of any evidence or argument by counsel would
mislead and distract the jury from fairly evaluating the breach of contract claims on
liability, and thereby unfairly prejudice Durkin.
WHEREFORE, for the reasons set forth above, Defendant Donald M. Durkin
Contracting, Inc. respectfully requests that this Court grant its Motion in Limine and
preclude the City from making reference to and/or presenting evidence at trial of
trespassing at the Newark Reservoir Site, including any allegations of interference with
construction activities, and the arrests for criminal trespass of Michael and James Durkin.
POWELL, TRACHTMAN, LOGAN, -
CARRLE & LOMBARDO, P.C.
By: /s/ Paul A. Logan
Paul A. Logan
Delaware Supreme Court H) #3339
475 Allendale Road, Suite 200
King of Prussia, PA 19406
Telephone: 610-354-9700
Telefacsimilez 610-354-9760
Attorneys for Plaintyfand Third Party
Defendant Donald M Durkin Contracting
Dated: August 16, 2006
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