Free Motion in Limine - District Court of Delaware - Delaware

Case 1 :04-cv-00163-GIVIS Document 162 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, et al., )
Defendants, )
)
and )
)
CITY OF NEWARK, )
Third-Party Plaintiff )
)
v. )
)
FEDERAL INSURANCE COMPANY, )
Third-Party Defendant. )
FEDERAL’S MOTION IN LIMINE TO EXCLUDE EVIDENCE
OF THE DECEMBER 9, 2003 SETTLEMENT MEETING
Third-Party Defendant, Federal Insurance Company ("Federal"), moves in limine
to exclude any evidence referencing the December 9, 2003 meeting between Federal, Defendant
City of Newark (the "City"), and Plaintiff, Donald M. Durkin Contracting, Inc. ("Durkin"), and,
in support thereof avers as follows:
1. On November 21, 2003, the City sent a letter to Federal, in which the City
stated that it was "considering dec1aring" Durkin in default and requested a conference to take
place within fifteen days of the letter to discuss Durkin’s methods for the completion of the
project.
2. While the November 21, 2003 letter appeared to be an attempt by the City
to track the language of Subparagraph 3.1 of the Performance Bond, the conference required by
the bond never took place.

Case 1 :04-cv—00163-GIVIS Document 162 Filed 08/22/2006 Page 2 of 3
3. Instead, on December 9, 2003, representatives of the City, Federal and
Durkin held an "off the record" settlement meeting. The meeting was so designated as being
"off the record" by the City’s attorney, Paul Cottrell, at the inception of the meeting.
4. An agenda provided by Mr. Cottrell for the December 9, 2003 settlement
meeting expressly states that "All conversations during the meeting shall be in the nature of
settlement negotiations, and shall be inadmissible in any future proceeding."
5. The City’s Agenda preventing the use of any discussions &om the
December 9, 2003 settlement meeting "in any future proceeding" clearly establishes that the
meeting was in the nature of a Federal Rule of Evidence 408 settlement conference, in which the
parties attempted to negotiate a compromise of their claims.
6. In point of fact, the parties never discussed methods of completing the
Construction Contract at the meeting, as required by the bond. The parties only discussed the
pending disputes.
7. Thus, any evidence of or reference to the December 9, 2003 settlement
meeting is inadmissible at trial.
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Case 1 :04-cv—00163-GIVIS Document 162 Filed 08/22/2006 Page 3 of 3
WHEREFORE, Federal respectfully requests that, for the foregoing reasons and
those set forth in the Opening Brief in support of this motion which is incorporated herein by
reference, any evidence or reference to the December 9, 2003 settlement meeting among Federal,
the City and Durkin should be excluded Hom evidence at trial.
Respectfully submitted,
/s/
Kevin W. Goldstein, Esquire
Delaware Bar No. 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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