Free MEMORANDUM in Support - District Court of Delaware - Delaware

Case 1:04-cv-00163-GMS

Document 263

Filed 09/25/2006

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF

DELAWAR

DONALD M. DURIN CONTRACTING
INC.

Plaintif
vs.

CITY OF NEWAR , et aI. Defendants
and

: CASE NO. 04- 0163- GMS

CITY OF NEWAR Thirdvs.

Party Plaintif

DONALD M. DUR CONTRACTING FEDERAL INSURNCE COMPANY and URS CORPORATION Third-Party Defendants

ST. PAUL FIRE &

MAR INSURNCE

COMPAN

Intervenor

FURTHER SUPPLEMENTAL BRIEF OF PLAINTIFF IN SUPPORT OF MOTION FOR SANCTIONS UNDER FEDERA RULE OF CIVIL PROCEDURE 37(b). (c) and (d)
POWELL, TRACHTMAN, LOGAN CARE & LOMBARDO, P. Paul A. Logan
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 25 , 2006

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TABLE OF CONTENTS
Pae:e

NATURE AND STAGE OF PROCEEDINGS................................................................

II.

SUMMARY OF ARGUMENT.........................................................................................

III.
IV.

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

The Recently " Found" Documents Provide Additional Support For Durkin s Position that it is Entitled to Have Severe Sanctions Imposed Against the City....................................................................
CONCLUSION AND RELIEF SOUGHT

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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. Durkin

files this Further Supplemental Brief in support of its Motion for sanctions under Federal Rule of
Civil Procedure 37(b), (c) and (d).

II.

SUMMARY OF ARGUMENT
s attention after it fied its

Additional information has come to Durkin

Supplemental

Brief in support of its Motion for sanctions under Federal Rule of Civil Procedure 37(b), (c) and

(d) as requested by the Court. The additional documents produced by the City and identified on

the conference call of today s date with the Court as the "recently found documents "

provide

further support for Durkin s proposition that it is entitled to have severe sanctions imposed
against the City under Rule 37(b), (c) and (d).

III.

CONCISE STATEMENT OF FACTS

Durkin incorporates the Certification of Paul Logan , Esquire and its Opening Brief (D.

247) and its Supplemental Brief in support of its Motion for sanctions under Federal Rule of
Civil Procedure 37(b), (c) and (d) (D. I. 261) previously filed with the Court.
IV.

ARGUMENT

The Recently " Found" Documents Provide Additional Support For Durkin Position that it is Entitled to Have Severe Sanctions Imposed Against the City
Subsequent to fiing

its Supplemental

Brief in Support of its Motion for Sanctions

counsel had the opportunity to review the recently " found" documents identified by the City in
the conference call with the Court today. Based on that review , Durkin is compelled to bring one
(1) of those documents to the Court' s attention by way of this Further Supplemental Brief. That

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document is the City s Rule 30(b)(6) designee , Carol Houck' , notes from a conference call with
URS personnel dated September 11 , 2003 - which is just several days after the Zone IV failure

and one (1) day after Durkin s notice of probable design problems as required to be given under
Section 3. 3.2 of the Contract.
First and foremost , the proposition that this document was found in a fie
containing

design documents from the year 2000 is beyond all bounds of reason , logic and candor. There is

no reason whatsoever for Ms. Houck or anyone else at the City to be canvassing its circa 2000
files for purposes of the claims and defenses it has asserted in this litigation , and certainly not for

a meeting with counsel on the eve of triaL It is , however, far more plausible that Ms. Houck was
intent on using this document to " refresh her recollection " on specific conversations she believed

would provide substantial

benefit to the City

s position at trial , and that this document was

sufficiently similar in character

, content and date of origin to other recently produced nonmantle of "joint defense

privileged documents-especially those withheld under the
agreement"

that its " discovery " and production was neither coincidental nor inadvertent. What

it conclusively establishes is that the City s repeated representations that it has made a diligent
and thorough search of its records, and that all relevant and discoverable documents have been
disclosed and produced , is entitled to no weight at all.

The document of most significance and moment in today

s production contains Ms.

Houck' s handwritten notes from a phone conference with Joe Dombrowski , and URS personnel

Jill Voeller and Mark Prouty-and thus would have been extremely probative and useful in each

of their deposition examinations , as well as the City Manager and members of City CounciL
Written one day after the City received Durkin s initial notice of potential design problems in the

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Zone IV embankent , it is a catalogue of the issues and commentary in that conference call , but the dialogue carred a sinister tone and impugning of Durkin s motives and intentions:
Durkin doesn t know what he s doing. " Mark P.
Doesn t know if it' s Durkin who wil
be finishing
the job.

" (emphasis supplied)

Does he want to get thrown off the job?

Mark P. " Got a feeling they are running out of $.

(App. AI- A3).

The notes also refer to a conversation regarding the bid documents and slope protection

and confirm that armoring the side slopes and other alternatives were then raised as potential
measures to be considered to address the problems in the field.

Finally, there was a discussion regarding a time extension due to weather and Durkin

inability to work due to the weather. This was characterized by one of the participants on the
call as an " unforeseen condition " (which under the Contract the City would have to pay) and is

consistent with the contention by Durkin that the claims submitted by Durkin were one of the
driving factors in the decision to terminate Durkin at the Executive Session Council Meeting on
February 2 ,

2004. (App. A2). At the Executive

Session ,

litigation counsel Mr. Cottrell indicated

that (1) "the dispute dealt with the fact that (Durkin) was losing money on the project" and (2)
the only way (Durkin) could make money was through change orders. "
(App. A5).

The recent productions by the City have confirmed a case- long purposeful pattern and
policy of selective disclosure designed to shield from view those internally generated materials
which bear directly upon the motives and means by which the City terminated the Contract with

Durkin. While there have been excuses tendered for the improper withholdings , none have risen
to the level of excusable conduct , and yet the City persists in steadfast objection to any form of
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sanction for these abusive practices. Not only is Durkin faced with the unreasonable perils of
taking discovery during the trial proceedings , the City witnesses clearly gain the advantage
of

concealed superior knowledge from any documents that remain undisclosed. On the evening
before trial ,
Durkin is confronted with the impossible and fundamentally

unfair choice of

proceeding with its case without having the materials to which it is entitled , and the City taking
full benefit and advantage of its misconduct in pursuing its claims for breach of contract against

Durkin. At this juncture , the only appropriate measures of relief for Durkin is for the Court to
apply the admitted harsh ,

but eminently equitable sanctions listed below in order to provide

redress and relief for the extreme continuing prejudice created by the City s conduct.

CONCLUSION AND RELIEF SOUGHT

For the reasons

set forth above , Defendant Donald

M. Durkin Contracting, Inc.

respectfully requests that this Court grant its Motion for Sanctions Under Federal Rule of Civil
Procedure 37 (b), (c) and (d) either: (1) enter an Order of a judgment by default against the City
on the claims by Durkin, dismissing the City Counterclaim against Durkin , and award Durkin its
attorney s fees and costs; or in the alternative (2) dismissing the City s Counterclaim against

Durkin , prohibit the City from callng Houck , Luft , any Member of City Council , Dombrowski

and any other person (including URS personnel) who authored or were recipients on any

documents that the City withheld from discovery without proper basis , and award Durkin its
attorney s fees and costs , together with any such additional relief as this Court deems necessary
or appropriate.

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POWELL, TRACHTMAN, LOGAN,

CARRE & LOMBARO, P.
Paul A. Logan Paul A. Logan
By: Isl

Delaware Supreme Court il #3339

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

Defendant Donald M. Durkin Contracting

Dated: September 25

2006

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