Free Answer to Complaint - District Court of Delaware - Delaware

Case 1:07-cv-00346-SLR

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE E.I. DU PONT DE NEMOURS AND COMPANY, Plaintiff, v. MECHANICAL INTEGRITY, INC., Defendant. ) ) ) ) ) ) ) ) ) )

C.A. No.: 07-346 SLR

JURY TRIAL DEMANDED

ANSWER OF DEFENDANT, MECHANICAL INTEGRITY, INC., TO COMPLAINT WITH AFFIRMATIVE DEFENSES 1. Denied. By way of further answer, after reasonable investigation, Answering

Defendant is without sufficient knowledge or information to form a belief as to the truth or falsity of the allegations contained herein and same are deemed denied with strict proof thereof demanded at the time of trial. The allegations contained herein are denied as conclusions of law to which no responsive pleadings are required. 2. 3. 4. 5. Admitted. Admitted. Admitted. The allegations contained herein are denied as conclusions of law to which no

responsive pleadings are required. By way of further answer, the contract is a written document which speaks for itself and Plaintiff's characterization thereof is specifically denied. 6. Denied. The allegations contained herein are denied as conclusions of law to

which no responsive pleadings are required. 7. Admitted, upon information and belief.

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8.

It is admitted that DuPont and Mechanical Integrity, Inc. entered into a contract

for inspection of chloroform piping at the Louisville plant. The contract is a written document which speaks for itself and Plaintiff's characterization thereof is specifically denied. 9. It is admitted that DuPont and Mechanical Integrity, Inc. entered into a contract

for inspection of chloroform piping at the Louisville plant. The contract is a written document which speaks for itself and Plaintiff's characterization thereof is specifically denied. 10. It is admitted that DuPont and Mechanical Integrity, Inc. entered into a contract

for inspection of chloroform piping at the Louisville plant. The contract is a written document which speaks for itself and Plaintiff's characterization thereof is specifically denied. 11. 12. 13. Denied as stated. Admitted. It is admitted that Mechanical Integrity, Inc. issued an inspection report following

its inspection. The report is a written document which speaks for itself and Plaintiff's characterization thereof is specifically denied. 14. Denied. After reasonable investigation, Answering Defendant is without

sufficient knowledge or information to form a belief as to the truth or falsity of the allegations contained herein and same are deemed denied with strict proof thereof demanded at the time of trial. 15. It is admitted that DuPont entered into another contract with Mechanical Integrity,

Inc. in November of 2005. The contract is a written document which speaks for itself and Plaintiff's characterization thereof is specifically denied. 16. Denied as stated.

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17.

Denied. After reasonable investigation, Answering Defendant is without

sufficient knowledge or information to form a belief as to the truth or falsity of the allegations contained herein and same are deemed denied with strict proof thereof demanded at the time of trial. 18. Denied. After reasonable investigation, Answering Defendant is without

sufficient knowledge or information to form a belief as to the truth or falsity of the allegations contained herein and same are deemed denied with strict proof thereof demanded at the time of trial. 19. Denied. By way of further answer, after reasonable investigation, Answering

Defendant is without sufficient knowledge or information to form a belief as to the truth or falsity of the allegations contained herein and same are deemed denied with strict proof thereof demanded at the time of trial. 20. 21. 22. Denied. Denied. Denied. COUNT I 23. Answering Defendant hereby incorporates its responses to paragraphs 1 through

22 herein by reference. 24. Denied. The allegations contained herein are denied as conclusions of law to

which no responsive pleadings are required. 25. Denied. The allegations contained herein are denied as conclusions of law to

which no responsive pleadings are required.

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26.

Denied. After reasonable investigation, Answering Defendant is without

sufficient knowledge or information to form a belief as to the truth or falsity of the allegations contained herein and same are deemed denied with strict proof thereof demanded at the time of trial. By way of further answer, the allegations contained herein are denied as conclusions of law to which no responsive pleadings are required. COUNT II 27. Answering Defendant hereby incorporates its responses to paragraphs 1 through

26 herein by reference. 28. Denied. The contract is a written document which speaks for itself and Plaintiff's

characterization thereof is specifically denied. 29. 30. 31. 32. Denied. Denied. Denied. Denied. The allegations contained herein are denied as conclusions of law to

which no responsive pleadings are required. 33. Denied. After reasonable investigation, Answering Defendant is without

sufficient knowledge or information to form a belief as to the truth or falsity of the allegations contained herein and same are deemed denied with strict proof thereof demanded at the time of trial. By way of further answer, the allegations contained herein are denied as conclusions of law to which no responsive pleadings are required. COUNT III 34. Answering Defendant hereby incorporates its responses to paragraphs 1 through

33 herein by reference.

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35. 36.

Denied. Denied. By way of further answer, the contract is a written document which

speaks for itself and Plaintiff's characterization thereof is specifically denied. 37. 38. 39. Denied. Denied. Denied. The allegations contained herein are denied as conclusions of law to

which no responsive pleadings are required. 40. Denied. After reasonable investigation, Answering Defendant is without

sufficient knowledge or information to form a belief as to the truth or falsity of the allegations contained herein and same are deemed denied with strict proof thereof demanded at the time of trial. By way of further answer, the allegations contained herein are denied as conclusions of law to which no responsive pleadings are required. COUNT IV 41. Answering Defendant hereby incorporates its responses to paragraphs 1 through

40 herein by reference. 42. Denied. The allegations contained herein are denied as conclusions of law to

which no responsive pleadings are required. By way of further answer, the contract is a written document which speaks for itself and Plaintiff's characterization thereof is specifically denied. 43. 44. 45. Denied. Denied. Denied. By way of further answer, the allegations contained herein are denied as

conclusions of law to which no responsive pleadings are required.

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46.

Denied. The allegations contained herein are denied as conclusions of law to

which no responsive pleadings are required. 47. Denied. After reasonable investigation, Answering Defendant is without

sufficient knowledge or information to form a belief as to the truth or falsity of the allegations contained herein and same are deemed denied with strict proof thereof demanded at the time of trial. By way of further answer, the allegations contained herein are denied as conclusions of law to which no responsive pleadings are required. WHEREFORE, Answering Defendant respectfully requests that this cause of action against it be dismissed with prejudice. FIRST AFFIRMATIVE DEFENSE Plaintiff's Complaint fails to state a claim upon which relief can be granted. SECOND AFFIRMATIVE DEFENSE Plaintiff's causes of action are barred in whole or in part by the assumption of a known risk and/or contributory negligence. THIRD AFFIRMATIVE DEFENSE Plaintiff's causes of action are barred in whole or in part by the provisions of the Kentucky Comparative Negligence Statute, KRS §411.182. FOURTH AFFIRMATIVE DEFENSE If Plaintiff sustained the damages as alleged in their Complaint, which is herein strictly denied, then they were caused by the acts or omissions of entities/individuals over which/whom Answering Defendant had no control nor legal duty to control. FIFTH AFFIRMATIVE DEFENSE Plaintiff's claims precluded in whole or in part by the terms of the relevant contract.

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SIXTH AFFIRMATIVE DEFENSE Plaintiff's claims are precluded in whole or in party by the Economic Loss Doctrine. SEVENTH AFFIRMATIVE DEFENSE At all times material hereto, Answering Defendant acted with due care and proper care under the circumstances. EIGHTH AFFIRMATIVE DEFENSE Plaintiff has failed to mitigate their damages. NINTH AFFIRMATIVE DEFENSE Venue is improper for this Court. TENTH AFFIRMATIVE DEFENSE This court lacks jurisdiction over the persons to the within action. ELEVENTH AFFIRMATIVE DEFENSE All allegations pertaining to employment, workmen, servant, agency, supervision and/or control are specifically denied. WHEREFORE, Answering Defendant respectfully requests that this cause of action against it be dismissed with prejudice. REGER RIZZO KAVULICH & DARNALL LLP

/s/ Louis J. Rizzo, Jr., Esquire Louis J. Rizzo, Jr., Esquire Delaware State Bar I.D. No. 3374 1001 Jefferson Plaza, Suite 202 Wilmington, DE 19801 (302) 652-3611 Attorney for Defendant Mechanical Integrity, Inc. Dated: July 25, 2007

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE E.I. DU PONT DE NEMOURS AND COMPANY, Plaintiff, v. MECHANICAL INTEGRITY, INC., Defendant. ) ) ) ) ) ) ) ) ) )

C.A. No.: 07-346

CERTIFICATE OF SERVICE I, the undersigned, do hereby certify on this 25th day of July, 2007 a two true and correct copy of the Answer of Defendant, Mechanical Integrity, Inc., to Complaint with Affirmative Defenses has been served electronically and by first class mail, postage prepaid, upon the following: Kathleen Furey McDonough, Esquire Sarah E. DiLuzio, Esquire Potter Anderson & Corroon LLP Hercules Plaza, 6th Floor 1313 N. Market Street P.O. Box 951 Wilmington, DE 19899 REGER RIZZO KAVULICH & DARNALL LLP

/s/ Louis J. Rizzo, Jr., Esquire Louis J. Rizzo, Jr., Esquire Delaware State Bar I.D. No. 3374 1001 Jefferson Plaza, Suite 202 Wilmington, DE 19801 (302) 652-3611 Attorney for Defendant Mechanical Integrity, Inc. Dated: July 25, 2007

Case 1:07-cv-00346-SLR

(REV. 07/89) The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS OF THE REVERSE OF THE FORM.)

Document 7-2 Filed 07/25/2007 CIVIL COVER SHEET

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I (a) PLAINTIFFS E. I. DUPONT DE NEMOURS AND COMPANY b) COUNTY OF RESIDENCE OF FIRST LISTED PLAINTIFF N ew C astle C ounty
(E XC E P T IN U .S . P LA IN T IFF C A S E S)

DEFENDANTS MECHANICAL INTEGRITY, INC.
C O U N T Y O F R E S ID E N C E O F FIR S T LIS T E D D E F E N D A N T (IN U .S. PLAIN T IF F C A SE S O N LY) N O T E : IN LA N D C O N D E MN A T IO N C A S E S, U S E TH E LO C A T IO N O F T H E T R A C T O F LA N D IN V O LV E D

(c) ATTORNEYS (FIRM NAME, ADDRESS, AND TELEPHONE
NUMBER)

Kathleen Furey McDonough (ID #2395) (302) 984-6000 Sarah E. DiLuzio (ID #4085) Potter Anderson & Corroon P.O. Box 951 Wilmington, DE 19899 II. BASIS OF JURISDICTION
(PLACE AN X IN O NE BO X O NLY)

ATTORNEYS (IF KNOW N) Louis J. Rizzo, Jr., Esquire (ID #3374) (302) 652-3611 Reger Rizzo Kavulich & Darnall LLP 1001 Jefferson Plaza, Suite 202 Wilmington, DE 19801

III. CITIZENSHIP OF PRINCIPAL PARTIES
BOX (For D iversity C ases O nly) DEFENDANT PTF DEF Citizen of This State 91 91 Citizen of Another State Citizen or Subject of a Foreign Country 9 2 92 93 93

(PLACE AN X IN ONE FOR PLAINTIFF AND ONE BOX FOR PTF DEF Incorporated or Pricipal Place : 4 94 Of Business in This State Incorporated and Principal Place 9 5 : 5 Of business in Another State Foreign Nation 9 6 9 6

9 1 U.S. Government 9 2 U.S. Government Defendent

9 3 Federal Question

: 4 Diversity
(Indicated Citizenship of Parties in Item III)

IV. CAUSE OF ACTION Title VII

(CITE THE U S CIVIL STATUE U ND ER W HICH YOU ARE FILING AND W RITE A BRIEF STATEM ENT OF CAU SE D O N OT CITE JU R ISD IC TIO N STATUE S U N LESS D IVER SITY)

V. NATURE OF SUIT (PLACE AN x IN ONE BOX ONLY)
CONTRACT 9 9 9 9 110 Insurance 120 Manne 130 Miller Act 140 Negotiable Instrument PERSONAL INJURY 9 310 Airplane 9 315 Airplane Product Liability 9 320 Assault, Libel & Slander 9 330 Federal Employers' Liability 9 340 Manne 9 345 Manne Product Liability 9 350 Motor Vehicle 9 355 Motor Vehicle Product Liability TORTS PERSONAL INJURY 9 362 Personal Injury-Med Malpractice 9 365 Personal Injury -Product Liability 9 368 Asbestos Personal Injury Product Liability PERSONAL PROPERTY 9 370 Other Fraud 9 371 Truth in Lending 9 380 Other Personal Property Damage 9 385 Property Damage Property Liability FORFEITURE/PENALTY 9 610 Agriculture 9 620 Other Food & Drug 9 625 Drug Related Seizure of Property 21 USC 881 9 630 Liquor Laws 9 640 R.R. & Truck 9 650 Airline Regs 9 660 Occupational Safety/Health 9 690 Other LABOR 9 710 Fair Labor Standards Act 9 7 20 La b or / M g mt . Relations 9 7 30 La b or / M g mt . Reporting & Disclosure Act 9 740 Railway Labor Act 9 790 Other Labor Litigation 9 791 Empl. Security Act Ret. Inc. BANKRUPTCY 9 422 Appeal 28 USC 158 9 423 Withdrawal 28 USC 157 PROPERTY RIGHTS 9 9 9 9 OTHER STATUES 422 State Reapportionment 410 Antitrust 430 Banks and Banking 450 Commerce/ICC Rates/etc.

9 150 Recovery of Overpayment & Enforcement of Judgment 9 151 Midicare Act 9 152 Recovery of Defaulted Student Loans (Excl. Veterans) 9 160 Stockholders Suits : 190 Other Contract 9 195 Contract Product Liability

9 460 Deportation 9 470 Racketeer Influenced and Corrupt Organizations 9 810 Selective Service 9 850 Securities/Commodities/ Exchange 9 875 Customer Challenge 12 USC 3410 9 891 Agricultural Acts 9 892 Economic Stabilization 9 893 Environmental Matters

9 820 Copyrights 9 830 Patent 9 840 Trademark

SOCIAL SECURITY 9 861 HIA (1395ff) 9 862 Black Lung (923) 9 863 DIWC/DIWW (405(g)) 9 864 SSID Title XVI

REAL PROPERTY 9 210 Land Condemnation 9 220 Foreclosure 9 230 Rent Lease & Equipment 9 240 Torts to Land 9 245 Tort Product Liability 9 290 All Other Real Property

CIVIL RIGHTS 9 441 Voting 9 442 Employment 9 443 Housing/ Accommodations 9 444 Welfare 9 440 Other Civil Rights

PRISONER PETITIONS 9 510 Motions to Vacate Sentence Habeas Corpus: 9 530 General 9 535 Dealth Penalty 9 540 Mandamus & Other 9 550 Civil Right

9 865 RSI (405(g)) FEDERAL TAX SUITS 9 870 Taxes (U.S. Plaintiff or Defendant) 9 871 IRS -- Third Party 26 USC 7609

9 894 Energy Allocation Act 9 895 Freedom of Information Act 9 9 0 0 Ap p e a l o f F e e Determination Under Equal Access to Justice 9 950 Constitutionality of State Statues 9 Other Statutory Actions

VI. ORIGIN
: 1 Original Proceeding

(PLACE AN x IN ONE BOX ONLY)
9 2 Removed from 9 3 Remanded from 9 4 Reinstated or State Court Appellate Court Reopened CHECK IF THIS IS A CLASS ACTION Transferred from 9 5 another district (specify)

Appeal to D istrict

9 7 Judge from 9 6 Multidistrict Magistrate Litigation Judgment 9 NO

VII. REQUESTED IN

DEMAND $

Check YES only if demanded in complaint: JURY DEMAND: : YES

COM PLAINT: ___9 UNDER F.R.C.P 23 VIII. RELATED CASE(S) (See instructions) IF ANY
DATE

JUDGE Honorable Sue L. Robinson DOCKET NUMBER 07-346 SIGNATURE OF ATTORNEY OF RECORD

July 25, 2007
UNITED STATES DISTRICT COURT

/s/ Louis J. Rizzo, Jr., Esquire