Free Motion for Leave to File - District Court of Federal Claims - federal

Case 1:03-cv-00289-FMA

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Filed 07/21/2003

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS UNITED MEDICAL SUPPLY, COMPANY, INC Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) ) )

No. 03-289C (Judge Allegra)

DEFENDANT'S UNOPPOSED MOTION FOR LEAVE TO FILE AN AMENDED ANSWER TO PLAINTIFF'S AMENDED COMPLAINT Pursuant to Rules 8(c) and 15 (a) of the Rules of the Court of Federal Claims ("RCFC"), defendant, the United States, respectfully requests leave to file an amended answer to include the affirmative defense of accord and satisfaction. Counsel for

the plaintiff has indicated that plaintiff does not opposes this motion. Defendant has electronically lodged a copy of our

proposed amended answer with the Clerk of the Court for filing upon the granting of this motion.1 RCFC 8(a) requires that all affirmative defenses be pled by the Government in its answer to the complaint. RCFC 15(a) allows

for amendment of a pleading "by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires." RCFC 15(a). Consistent with the

plain language of RCFC 15(a), this Court and its predecessor, the

Paragraphs 1 through 145 of our amended answer are identical to paragraphs 1 through 145 of our answer filed June 23, 2003. The new material is contained in paragraph 146.

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Case 1:03-cv-00289-FMA

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Court of Claims, have recognized that leave to amend a defendant's answer should be freely granted. See e.g., Cities Service Helex, Inc. v. United States, 211 Ct. Cl. 222, 234 n.14 (1976). In this case, defendant's affirmation defense of accord and

satisfaction relates to plaintiff's assertion within paragraph 110 of plaintiff's amended complaint that defendant's actions violated the Prompt Payment Act. Because this assertion was not

set forth as an independent count of plaintiff's cause of action, defendant inadvertently omitted the affirmative defense of accord and satisfaction in its answer filed June 23, 2003. 2
For this reason, we respectfully request that the Court grant our unopposed motion for leave to file an amended answer. Respectfully submitted,

PETER D. KEISLER Assistant Attorney General

s/David M. Cohen DAVID M. COHEN Director s/Alan J. Lo Re ALAN J. LO RE Senior Trial Counsel

Plaintiff's original complaint filed, September 19, 2002, in the United States Bankruptcy Court in Fort Worth Texas, included an alleged violation of the Prompt Payment Act as an independent count.

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Commercial Litigation Branch Department of Justice Attn: Classification Unit 8th Floor 1100 L Street, N.W. Washington, D.C. 20530 Tele: (202) 307-0226 Attorneys for Defendant JULY 21, 2003

Case 1:03-cv-00289-FMA

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