Free Motion in Limine - District Court of Delaware - Delaware

Case 1:04-cv-00163—Gl\/IS Document 193 Filed 08/22/2006 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
DONALD M. DURKIN CONTRACTING, l
Il\lC.,PIaint§f j
vs. i .
CITY OF NEWARK, et al., Defendants Q CASE NO. 04-0163-GMS
and l
CITY OF NEWARK, Third-Party Plaintiff E
vs. E
DONALD M. DURKIN CONTRACTING, E
FEDERAL INSURANCE COMPANY and g
URS CORPORATION, T hird-Party I
Defendants E
PLAINTIFF’S MOTION IN LIMINE
TO PRECLUDE THE CITY FROM OFFERING EVIDENCE
THAT THE METHOD FOR PAYMENT FOR INCOMPLETE WORK
IS OTHER THAN ON A TIME AND MATERIAL BASIS
l. Plaintiff and Third Party Defendant Donald M. Durkin Contracting, Inc.
("Durkin") tiled 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.
2. Durkin files this Motion in Limine to preclude the City from offering
evidence of any computational method for paying for incomplete work under the
Contract other than what was testified to by the City’s Rule 30(b)(6) designee.
3. The City designated and produced- Carol Houck, Assistant City
Administrator, as its Rule 30(b)(6) witness. (Selected portions Carol Houck 3/23/06
Deposition, page 183, lines l l-19, App. A 3). I
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4. During the deposition, Houck was asked how under the Contract the City
was to pay for incomplete work up to the date of termination. (Selected portions Carol
Houck 3/30/06 Deposition, App. A 6, page 668-669, lines 24-11). i
5. In response, Houck testified that all incomplete work is to be paid for on a ‘
time and materials basis up through the date of termination. (App A6, Page 668-669, lines g
24-11). -
6. Houck, as the City’s 30(b)(6) designee, is not testifying as to her personal
opinions but rather she is testifying as to the City’s “positi0n" on the topic. See eg. ‘
America v. Taylor, et al., 166 F.R.D. 356 (M.D. N.C. 1996). _ -
7. Accordingly, the City is bound by its designee’s testimony. Iemrdi v.
Lorillard, 1991 U.S. Dist. LEXIS 1320 (ED. Pa. 1991).
8. The City cannot proffer new or different allegations or testimony at the
time of trial that could have been made at the Rule 30(b)(6) deposition. See Rainey v.
Amer. Forrest & Paper Ass 'n, 26 F. Supp 2d 82 (D. D.C. 1998).
9. Subsequent to the 30(b)(6) deposition, Houck prepared deposition errata
sheets with extensive changes and "clarifications” to her deposition testimony. (App. A7-
A13).
10. Neither Houck nor the City changed or clarified her testimony on the
method of payment for incomplete work under the Contract.
11. The City did not designate present a different 30(b)(6) designee to clarify
or change the City’s position. i
12. ln the event the City desired to advance a different interpretation of
payment for imcomplete work, the City had an affirmative duty under Rule 26(e)(2) to
amend its response. Fed. R. Civ. P. 26(e)(2)(B).
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13. Durkin concurs with I-Iouck’s interpretation of the Contract language in -
that regard, namely that regardless of whether the City breached the Contract, all
incomplete work is to be paid for on a time and materials basis.
14. Because the City’s interpretation and admission concerning the Contract
terms governing payment for incomplete work is consistent with Dtu·kin’s understanding
of that portion of the Contract, Durkin did not retain the services of a construction l
contract expert to provide an opinion on contract interpretation for payment for
incomplete work. _
. I5. It would be highly prejudicial, and contrary to the Federal Rules of Civil
Procedure and applicable caselaw, to permit the City to argue or present evidence of a
method for payment for incomplete work that differs from what was testified to by its
3_0(b)(6) designeel.
' Under Delaware Rule of Civil Procedure Rule 30(b)(6) (which is similar to Federal Rule
30(b)(6)) the Delaware Supreme Court affirmed the lower oourt’s ruling prohibiting testimony
that was contrary to the 30(b)(6) designee’s testimony on two bases. See Saudi Basic Industries
Corp. v. Mobil Yanbu Petrochemical Comp., Inc., et al.866 A. 2d- l, 2005 Del. LEXIS 41 (Del.
Sup. Ct. 2005). First, the new proffered testimony would reverse all prior positions on the issue
and second, the reversal in position would be highly prejudicial. Id.
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WHEREFORE, for the reasons set forth above, Defendant Donald M. Durkin I
Contracting, Inc. respectfully requests that this Court grant its Motion in Limine and
preclude the City from presenting evidence or arguments of a method for calculating
payment for incomplete work other than on a time and materials basis.
i POWELL, TRACHTMAN, LOGAN,
CARRLE & LOMBARDO, P.C.
By: /s/ Paul A. Logan
Paul A. Logan
Delaware Supreme Court ID #3339
475 Allendale Road, Suite 200
King of Prussia, PA 19406
i Telephone: 610-354-9700 i
Telefacsimile: 610-354-9760
Attorneys for Plaintyf and Third Party
Defendant Donald M Durkin Contracting
Dated: August 16, 2006
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