Free Answering Brief in Opposition - District Court of Delaware - Delaware

Case 1:04-cv-00163-GMS

Document 265

Filed 09/26/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE
DONALD M. DURIN CONTRACTING
INC.,

Plaintif
vs.

CITY OF NEWAR , et aI. Defendants
and

: CASE NO. 04- 0163-GMS

CITY OF NEWAR Third-Party
vs.

Plaintiff

DONALD M. DURIN CONTRACTING FEDERAL INSURNCE COMPAN and URS CORPORATION Third-Party Defendants
ST. PAUL FIRE & MARIN

INSURCE

COMPAN

Intervenor

ANSWERING BRIEF OF PLAINTIFF DONALD M. DURKIN CONTRACTING, INC. TO CITY OF NEWARK' S MOTION FOR RECONSIDERATION AND RE-ARGUMENT AND LEAVE TO AMEND THE PLEADINGS
TRACHT MAN LOGAN CARRE & LOMBARDO, P. Paul A. Logan
POWELL,

Delaware Supreme Court il #3339

475 Allendale Road , Suite 200 King of Prussia , PA 19406 Telephone: 610- 354- 9700 Telefacsimile: 610- 354- 9760
Attorneys for Plaintif and Third Party

Defendant Donald M Durkin Contracting
Dated: September 26 , 2006

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TABLE OF CONTENTS

Paee

NATUR AND STAGE OF PROCEEDINGS ...................................................................
II.

SUMMARY OF ARGUMENT...........................................................................................
CONCISE STATEMENT OF FACTS ..............................

III.

IV.

ARGUMENT .......................................................................................................................

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TABLE OF CITATIONS

Paee
Cases
Max s Seafood Cafe v. Quinteros 176 F. 3d 669 (3 Cir. 1999) .................................................... 2
Shering Corporation v.

Amgen , Inc. 25 F. Supp. 2d 293 (D. Del. 1998) ..................................... 2

Weissman

v.

Fruchtman 124 F. R.D. 559 (S.

Y. 1989) ........................................................... 2

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NATURE AND STAGE OF PROCEEDINGS
Plaintiff and Third Party Defendant Donald M. Durkin Contracting, Inc. (" Durkin ) fied

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.

September 22 , 2006 , this Court ,

as part of its pretrial

rulings , granted Federal Insurance

Company (" Federal" )'s Motion for Reconsideration and in turn granted Federal' s Motion for
Summary Judgment , as well as Durkin s Motion for Partial Summary Judgment on the notice

requirements for a default termination of the Contract (D.!. 257). The City of Newark has filed a
Motion for Reconsideration and Re-argument and for Leave to Amend its Pleadings.

II.

SUMMARY OF ARGUMENT
or

The City of Newark has failed to bring to the Cour s attention any new facts
decisional law that would provoke reconsideration of its Order dismissing
Federal and granting Durkin s motion for summary judgment.

the claims against

In this instance ,

the Cour

properly took note of the repeated judicial admissions of the City in declaring that the November

, 2003 letter was the prior seven day written notice of intent to terminate
furher concluded

the Contract ,

and

that no reasonable jury could regard that letter as satisfying

the contractual

mandate of prior written notice of the City s intention to terminate under Section 15. 2
Contract.

of the

III.

CONCISE STATEMENT OF FACTS

A recitation of the salient facts has been succinctly set forth in the Court' s September 22
2006 Order ,

and Durkin incorporates those facts for purposes of this Answering Brief.

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IV.

ARGUMENT
outlining the limited

Despite the Court' s

pointed

instructions and legal citations

circumstances and justification for reconsideration

of a prior ruling, the City has

nonetheless

simply reshuffed its deck of facts to present what it now believes is the winning hand in the
debate over whether the City provided the contractually required prior written notice of intent to

terminate under Section 15.2 of the Contract. Measuring the City s Motion for Reconsideration
against the applicable standards , the City s Motion and Brief reflect no " new evidence that was

not available when the Court issued

its order

, no "patent

misunderstanding " of the City

contentions and arguments , and no " overlooking of facts or precedent that reasonable would
have altered the result"
Weissman v. Shering Corporation v.

Amgen, Inc.
Y. 1989);

25 F. Supp. 2d 293 (D. Del. 1998);

Fruchtman 124 F. R.D. 559 (S.
Cir. 1999).

Max

s Seafood Cafe

v.

Quinteros

176 F. 3d 669 (3

The Court' s observation that the City had judicially admitted , through its pleadings , that

it regarded and represented the November 21 , 2003 letter as the prior seven day written notice
was met with the City s contention that preventing them from arguing alternative theories would

violate Rule 8(e)(2).

That argument

is made initially in the City s Answering Brief to the

Motion for Summary Judgment , and simply repeated in the Motion for Reconsideration. The
City s assertion appears to be that the Cour may not foreclose its ability to raise factual issues by
interchanging legal theories of its case. However , this is not a matter of differing legal theories;

the City

s " legal

theory " was that it satisfied the contractual requirements for termination , and

one of the " facts " it asserted was that the November 21 , 2003 letter satisfied the prior written
notice requirement. That " fact" was conclusively established by the judicial admissions , and the

Court has found it to be legally insuffcient as a matter
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of law to

constitute the contractually

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required prior written notice. That judicial

conclusion is not subject to divestiture by the City

belated attempt to substitute the February 3

2004 letter-or any other writing-in its place as an

alternate legal theory

Finally, to permit the City, during the course of the trial , to amend its pleadings to include
alternate theories " in order to capture

whatever defenses it believes may exist or arise from

those new pleadings ,

would once again frustrate the ability of Durkin to properly plan and

prepare for the moving target of the City s arguments. There was no manifest injustice in the
Court' s granting of the motions for sumary judgment by Federal and Durkin , and the City has

offered no grounds for reconsideration of the Cour' s
Motion should be denied in its entirety.

Order and opinion. As such ,

the City

POWELL , TRACHTMAN , LOGAN

CARE & LOMBARO, P.
Isl

Paul A. Logan Paul A. Logan
By:

Delaware Supreme Court il #3339

475 Allendale Road , Suite 200 King of Prussia , PA 19406 Telephone: 610- 354- 9700 Telefacsimile: 610- 354- 9760
Attorneys for Plaintif and Third Party

Defendant Donald M Durkin Contracting
Dated: September 26 , 2006

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