Free Motion in Limine - District Court of Delaware - Delaware

Case 1 :04-cv-00163-GIVIS Document 165 Filed 08/22/2006 Page 1 of 3
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
DONALD M. DURKIN CONTRACTING, INC. )
Plaintiff, )
)
v. ) CIVIL ACTION NO. 04-0163
)
CITY OF NEWARK, etal., )
Defendants, )
)
and )
)
CITY OF NEWARK, )
Third—Party Plaintiff, )
)
v. )
)
FEDERAL INSURANCE COMPANY, I)
Third-Party Defendant. )
FEDERAL’S MOTION IN LIMINE
TO EXCLUDE THE FEBRUARY 4, 2004 LETTER AND ANY REFERENCE THERETO
Third-Party Defendant, Federal Insurance Company ("Federal"), moves in limine
to exclude from admission into evidence at trial any reference to and the February 4, 2004 letter
(the "Feb1uary 4 Letter") from counsel for Third-Party Plaintiff, City of Newark (the "City"), to
Plaintiff, Donald M. Durkin Contracting, Inc. ("Durkin"), and Federal. In support thereof,
Federal avers as follows:
I. On February 2, 2004, at a meeting of City Council and without any prior
notice to Federal and Durkin, the City imanimously approved a resolution to "immediately
terminate" Durkin’s right to complete the Construction Contract.
2. The next morning, on February 3, 2004, the City notified Federal and
Durkin of the City’s immediate termination of Durkin’s right to complete the Construction
Contract and demanded that Federal undertake efforts to provide the City with coverage under
the performance bond.

Case 1 :04-cv—00163-GIVIS Document 165 Filed 08/22/2006 Page 2 of 3
3. Following Durkin’s default termination, the City was notified that Durkin
and Federal disputed the adequacy and propriety of the City’s termination of Durkin. The City
had fundamentally breached the Construction Contract by failing to give Federal and Durkin
seven days’ advance notice ofthe termination, but, in any event, the City unequivocally
tenninated the Construction Contract.
4. In response to this notice, on February 4, 2004, the City’s litigation
counsel, Paul Cottrell, Esquire, sent the February 4 Letter to Federal and Durkin, in which Mr.
Cottrell set forth a proposed offer to compromise the issues disputed among the parties.
5. The February 4 Letter is irrelevant because it was issued after the City’s
termination of the Construction Contract. Notwithstanding the impropriety ofthe termination,
the Construction Contract was at an end, rendering any offer to provide an additional cure period
irrelevant.
6. Further, the February 4 Letter plainly constitutes inadmissible evidence of
an offer to compromise the parties’ claims pursuant to Fed. R. E. 408.
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Case 1 :04-cv—00163-GIVIS Document 165 Filed 08/22/2006 Page 3 of 3
VVHEREFORE, for these reasons and those set forth in the accompanying
Opening Brief, which is incorporated herein by reference, the February 4 Letter should be
excluded Hom evidence at trial.
Respectfully submitted,
/s/
Kevin W. Goldstein, Esquire
Delaware Bar N0. 2967
STRADLEY, RONON, STEVENS & YOUNG, LLP
300 Delaware Avenue
Suite 800
Wilmington, DE 19801
(302) 576-5850
(302) 576-5858 Fax
Samuel J. Arena, Jr., Esquire (pro hac vice)
Patrick R. Kingsley, Esquire (pro hac vice)
David M. Burkholder, Esquire (pro hac vice)
STRADLEY, RONON, STEVENS & YOUNG, LLP
2600 One Commerce Square
Philadelphia, PA 19103-7098
(215) 564-8000
(215) 564-8120 Fax
Attorneys for Third-Party Defendant,
Federal Insurance Company
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Case 1:04-cv-00163-GMS

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