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The Honorable Gregory M. Sleet
J. Caleb Boggs Federal Building
844 North King Street
Room 4324, Lockbox 19
Wilmington, DE 19801
Re: Donald M Durkin Contracting, Inc. v. City of Newark, et al.
No. 04-0163-GMS
Dear Judge Sleet:
Please accept this letter as joint status report by the parties and a request with respect to the
Pre—Trial Conference with the Court scheduled for September 8, 2005.
By way of a brief summary, the origin of this litigation is the City of Newark’s termination of
the contract to construct a reservoir it had with Donald M. Durkin Contracting, lnc. On September
24, 2004, following a conference with counsel, the Court issued the case Scheduling Order. That
Order provided for a pretrial conference on September 8, 2005, and a trial date of September 19,
2005.
As Your Honor will recall, at the September, 2004, scheduling conference with the Court, it
was suggested that the parties attempt to resolve the matter through private mediation. The parties
selected Mr. Howard Venzie, Esquire, as the mediator and the first mediation proceeded on
November 30 and December 1, 2004. That mediation was not successful.
KOP:320225v5 3514-04
Case 1 :04-cv-00163—GI\/IS Document 92 Filed 08/29/2005 Page 2 of 3
The Honorable Gregory M. Sleet
August 26, 2005
Page 2
In a status conference call with the Court, the parties reported to Your Honor the status of
their efforts and suggested that although some progress may have been made at the mediation with
Mr. Venzie, the matter had not settled. It was agreed by the parties that the lack of success may have
resulted from a misunderstanding of the mediator of the respective positions of the parties. All
agreed that there was yet an opportunity to possibly resolve the matter.
With the Court’s assistance, Judge Joshua Martin agreed to assume the role of mediator. The
parties mediated the issues with Judge Martin on June 15, 2005, and thereafter, have had several
separate discussions. The last discussions among counsel occurred last week; all parties believe that
we have again reached an impasse and that an additional mediation session with Judge Martin will
not be productive, at this time. Therefore, counsel have discussed the restunption of discovery and
trial preparation.
In the conference call with the Court that preceded the mediation with Judge Martin, counsel
requested that the Court issue a revised Scheduling Order. The Court did not issue a revised
Scheduling Order pending the outcome of the mediation with Judge Martin. However, as discussed
with Your Honor, and with Your Honor’s permission, all depositions and expert discovery were held
in abeyance during the continued mediation efforts by the parties.
The recent discussions among counsel have focused on discovery and trial issues. Donald M.
Durkin Contracting, Inc., has circulated among counsel a Fed. R.C.P. 4l(a)(l) stipulation to dismiss
URS Corporation as an original defendant. There are no other claims pending against URS
Corporation by any other party.
In light of the dismissal of URS by Donald M. Durkin Contracting, Inc., as an original
defendant, however, the City of Newark will request leave to file claims against URS based on the
allegations of the Complaint.
Counsel for the City of Newark, Federal Insurance Company and Donald M. Durkin
Contracting, Inc., have also discussed the identity of prospective deponents and other discovery
matters in anticipation of discussing a proposed revised Scheduling Order. We believe there is
general agreement as to the identity of the deponents based on the currently available information,
but leave open the possibility that additional depositions may be needed.
Counsel respectfully request that the conference with Your Honor on September 8, 2005,
address a new Scheduling Order, and fix revised dates for the completion of discovery, the exchange
of expert reports and trial date. If helpful to the Court, in advance of the conference, counsel will
prepare a proposed revised Scheduling Order for Your Honor’s consideration.
KOP:320225v5 3514-04
Case 1:04-cv-00163—GI\/IS Document 92 Filed 08/29/2005 Page 3 of 3
The Honorable Gregory M. Sleet
August 26, 2005
Page 3
All counsel look forward to receiving the Cou1t’s guidance respecting the upcoming
conference.
Respectfu , ),{·e‘ ’
P l AJLogan
PAL:drp
c: Paul Cottrell, Esquire/Victoria K. Petrone, Esquire
James S. Green, Esquire
Samuel J. Arena, Jr., Esq./Patrick R Kingsley, Esq./David M. Burkholder, Esq.
KOF’:320225v5 3514-04
Case 1:04-cv-00163-GMS
Document 92
Filed 08/29/2005
Page 1 of 3
Case 1:04-cv-00163-GMS
Document 92
Filed 08/29/2005
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Case 1:04-cv-00163-GMS
Document 92
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