Free Answer - District Court of Federal Claims - federal

Case 1:08-cv-00286-EJD

Document 12

Filed 08/20/2008

Page 1 of 8

IN THE UNITED STATESCOURT OF FEDERAL CLAIMS D'ANDREA BROTHERSLLC
Plaintiffs, v. THE UNITED STATES Defendants.

No. 08-286C (ChiefJudgeDamich)

REPLY TO COUNTERCLAIM D'Andrea Brothers LLC ("plaintiff' or Comes now the plaintiff counter-defendant, of counsel,and files this Reply to the Counterclaim "D'Andrea") by and through its undersigned as the defendant follows: 1 2. 53 set Plaintiff admitsthe allegations forth in paragraph of the Counterclaim. 54 of Plaintiff admits the allegationscontainedin the first sentence paragraph of

the Counterclaim,to the extent supportedby the CRADA referredto in paragraph54, which is the best evidenceof its contents;otherwisedeniesthe allegationscontainedin the first sentence 54. ofparagraph 3. of Plaintiff deniesthe allegationscontainedin the first sentence paragraph5a(a)

of the Counterclaim. Plaintiff avers that the CRADA is the best evidenceof its contentsand that paragraph4.12 of the CRADA states: Books and Records. D'Andrea shall keep true and completerecordsrelating to salesof PRODUCTS sold underthis Agreement. Suchrecordsshall be made available for audit once per year on the anniversary date of the effective date of this CRADA . . .". (CRADA n4.2) "The audit shall be carried out by NATICK representatives,

Case 1:08-cv-00286-EJD

Document 12

Filed 08/20/2008

Page 2 of 8

and paid for by NATICK . . .". The recordshave alwaysbeen availableto NATICK. designated an never set a time for an audit, never scheduled audit, or ever showed NATICK representatives any interest in conducting an audit. 4. of 54(a)(i) containedin the hrst sentence paragraph Plaintiff deniesthe allegations

of the Counterclaim. Plaintiff aversthat the CRADA is the best evidenceof its contentsand that paragraph4.12 of the CRADA states: Books and Records. D'Andrea shall keep true and completerecordsrelating to salesof PRODUCTS sold underthis Agreement. Suchrecordsshall be made available for audit once per year on the anniversary date of the effective date of this CRADA . . .". (CRADA \4.12) "The audit shall be carried out by NATICK representatives, designated and paid for by NATICK . . .". The recordshave always been availableto NATICK. an never set a time for an audit, never scheduled audit, or ever showed NATICK representatives any interest in conducting an audit. 5. Plaintiff denies the allegations contained in the first sentenceof paragraph

5a(aXii) of the Counterclaim. 6. of Plaintiff admits the allegationscontainedin the first sentence paragraph54(b)

of the Counterclaim,to the extent supportedby the CRADA referred to in paragraph54(b), which is the best evidenceof its contents;otherwisedeniesthe allegationscontainedin the first of sentence paragraph54(b). 7. Plaintiff admits the allegations contained in the first sentenceof paragraph

54(bxi) of the Counterclaim, to the extent supported by the CRADA referred to in paragraph in 54(bxi), which is the best evidenceof its contents;otherwisedeniesthe allegationscontained of the first sentence paragraph54(bxi).

Case 1:08-cv-00286-EJD

Document 12

Filed 08/20/2008

Page 3 of 8

8.

Plaintiff admits the allegations contained in the first sentenceof paragraph

54(bxii) of the Counterclaim, to the extent supportedby the CRADA referred to in paragraph in contained 54(bxii), which is the best evidenceof its contents;otherwisedeniesthe allegations of the first sentence paragraph54(bxii). 9. Plaintiff denies the allegations contained in the first sentenceof paragraph

(54(bXiii).
10. Plaintiff denies the allegations contained in the first sentenceof paragraph

(sa(b)(iv).
11. of Plaintiff admits the allegationscontainedin the first sentence paragraph54(c)

of the Counterclaim,to the extent supportedby the CRADA refered to in paragraph54(c), which is the best evidenceof its contents:otherwisedeniesthe alleeationscontainedin the first 54(c). of sentence paragraph 12. Plaintiff admits the allegations contained in the first sentenceof paragraph

5a(cXi) of the Counterclaim, to the extent supported by the CRADA referred to in paragraph in 54(c)(i), which is the best evidenceof its contents;otherwisedeniesthe allegationscontained ofparagraph 5a(c)(i). the first sentence 13. Plaintiff admits the allegations contained in the first sentenceof paragraph

5a(c)(ii) of the Counterclaim,to the extent supportedby the CRADA refered to in paragraph in contained 54(c)(ii), which is the best evidenceof its contents;otherwisedeniesthe allegations of the first sentence paragraph5a(c)(ii). 14. Plaintiff admits the allegations contained in the first sentenceof paragraph

sa(c)(iii) of the Counterclaim,to the extent supportedby the CRADA referredto in paragraph

Case 1:08-cv-00286-EJD

Document 12

Filed 08/20/2008

Page 4 of 8

contained in otherwisedeniesthe allegations 54(c)(iii), which is the best evidenceof its contents; of the first sentence paragraph5a(c)(iii). 15. Plaintiff denies the allegations contained in the first sentenceof paragraph

(sa(c)(iv).
16. Plaintiff denies the allegations contained in the first sentenceof paragraph

(sa(c)(v).
17. of 54(d) Plaintiff admits the allegationscontainedin the first sentence paragraph

of the Counterclaim, to the extent supported by the CRADA referred to in paragraph 54(d), which is the best evidenceof its contents;otherwisedeniesthe allegationscontainedin the first 54(d). sentence paragraph of 18. Plaintiff admits the allegations contained in the first sentenceof paragraph

54(dxi) of the Counterclaim,to the extent supportedby the CRADA referred to in paragraph in 54(dxi), which is the best evidenceof its contents;otherwisedeniesthe allegationscontained of the first sentence paragraph54(dxi). 19. Plaintiff admits the allegations contained in the first sentenceof paragraph

54(dxii) of the Counterclaim,to the extent supportedby the CRADA referredto in paragraph contained in 54(dxii), which is the best evidenceof its contents;otherwisedeniesthe allegations of the first sentence paragraph54(dxii). 20. (54(dXiii). 21. Plaintiff denies the allegations contained in the first sentenceof paragraph Plaintiff denies the allegations contained in the first sentenceof paragraph

(sa(dXiv).

Case 1:08-cv-00286-EJD

Document 12

Filed 08/20/2008

Page 5 of 8

22.

54(e) of Plaintiff admits the allegationscontainedin the first sentence paragraph

of the Counterclaim,to the extent supportedby the CRADA refered to in paragraph54(e), which is the best evidenceof its contents;otherwisedeniesthe allegationscontainedin the first 54(e). of sentence paragraph 23. Plaintiff admits the allegations contained in the first sentenceof paragraph

5a(e)(i) of the Counterclaim, to the extent supportedby the CRADA referred to in paragraph in 54(e)(i),which is the best evidenceof its contents;otherwisedeniesthe allegationscontained ofparagraph sa(e)(i). the first sentence 24. Plaintiff denies the allegations contained in the first sentenceof paragraph

(sa(e)(ii).
25. Plaintiff denies the allegations contained in the first sentenceof paragraph

(sa(eXiii).
26. of 54(f) of in contained the ftrst sentence paragraph Plaintiff deniesthe allegations

the Counterclaim. To the extent that the first sentenceof paragraph54(f) refers to the CRADA, plaintiff aversthat the CRADA is the bestevidenceof its contents. 27. Plaintiff denies each and every other allegation of the Counterclaim not specifically

admitted.

PLAINTIFF'S AFFIRMATIVE l.

DEFENSE

Defendant'scauseof action for Breach of Contract is barred due to defendant's

failure to exhaustits administrativeremediesprovided by the CRADA, which is a precondition both to the suit and to the iurisdiction of this Court. 2. Defendant'sCounterclaimis bared by the doctrineof waiver.

Case 1:08-cv-00286-EJD

Document 12

Filed 08/20/2008

Page 6 of 8

a -).

Defendant'sCounterclaimis bared by the doctrineof equitablerelief. Defendant's Counterclaim is barred by their own lack of performance

4.

materialbreachof the contract(failure of a conditionprecedent).

PRAYER FOR RELIEF WHEREFORE, plaintiff requeststhat judgment be entered in its favor and against the on United States Defendant'sCounterclaim. Datedthis 20th day of August, 2008 COIINSEL OF RECORD FOR PLAINTIFF: lsl Paul A. Traina Paul A. Traina,Esq. CaliforniaStateBarNo. 155805 ptraina(@elllaw.com ENGSTROM,LIPSCOMB & LACK B M 1 0 1 0 0 a n t a o n i c a . l v d . .l 6 ' l ' F l o o r S Los Angeles,CA 90067 No. Telephone (310)552-3800 Facsimile No. (3l0) 552-9434

OF COUNSEL:

Walter J. Lack, Esq. CaliforniaStateBar No. 57550 wlack(@elllaw.com JaredW. Beilke,Esq. CaliforniaStateBar No. 195698 jbeilke(Delllaw.com ENGSTROM,LIPSCOMB & LACK Floor Monica,Blvd., I 6th 10100 Santa Los Angeles,CA 90067 No. (310)552-3800 Telephone FacsimileNo. (3 l0\5 52-9434

#304589

Case 1:08-cv-00286-EJD

Document 12

Filed 08/20/2008

Page 7 of 8

CERTIFICATE OF SERVICE STATEOF CALIFORNIA COI.INTY LOS ANGELES OF
)

)ss.
)

I am employedin the County of Los Angeles,Stateof California. I am over the ageof l8 address 10100SantaMonica Boulevard,16th is and not apafty to the within action; my business August 20,2008, I servedthe foregoing Floor, Los Angeles, California 90067-4107. On by placing a true copy thereof document describedas REPLY TO COUNTERCLAIM as in a sealedenvelopeaddressed follows: enclosed ** SEEATTACHED MAILING LIST ** (BY MAIL) I deposited such envelope in the mail at Los Angeles, California. The _ envelopewas mailed with postagethereonfully prepaid. I am "readily familiar" with the fltrm's for practice of collection and processingcorrespondence mailing. It is depositedwith U.S. Postal Serviceon that samedate in the ordinary courseof business. I am aware that on motion of dateor postagemeter dateis more party served,serviceis presumedinvalid if postalcancellation than one day after date of depositfor mailing in affidavit. (BY PERSONAL SERVICE) I causedsuch envelopeto be delivered by hand to the _ offi cesof the addressee(s). x (BY ELECTRONIC TRANSFER) I caused all of the pages of the above-entitled documents(PDF copy) to be transmittedto the recipientsnoted on the attachedmailing list via electronic transfer (EMAIL). This document was transmittedby electronic transmissionand reportedwithout error. for suchenvelopeto be deliveredto FederalExpress x (BY FEDERAL EXPRESS) I caused overnightcourier serviceto the offices ofthe addressee(s). STATE: I declare under penalty of perjury under the laws of the State of California that the above is true and correct. X FEDERAL: I declarethat I am employedin the office of a member of the bar of this court at whosedirectionthe servicewas made. I declare under penalty of perjury under the laws of the State of California that the foregoingis true and correct. Executedon August 20,2008, at Los Angeles,California. /s/ BerthaL. Jara

BERTHAL. JARA

Case 1:08-cv-00286-EJD

Document 12

Filed 08/20/2008

Page 8 of 8

SERVICELIST Attorney
VIA ELECTRONIC: PH: (202) 307-0282 GregoryG. Katsas,Esq. FX: (202) s14-8624 gov o-vd@usdoj. EM: Sheryl.fl E. Jeanne Davidson,Esq. SherylL. Floyd,Esq. CommercialLitigation Branch Civil Division Departmentof Justice Unit Attn: Classification I 100L Street, N.W., 8'hFloor D.C. 20530 Washington,

Parfy
Attorneys for Defendants

VIA FEDERAL EXPRESS: Capt.LisaM. Satterfield Department the Army of Suite437 901N. Stuart Street, VA 22203 Arlington,

Of Counselfor Defendants