Free Answer - District Court of Federal Claims - federal

Case 1:08-cv-00196-LAS

Document 7

Filed 06/06/2008

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

C.R. PITTMAN CONSTRUCTION COMPANY, INC., Plaintiff

v.

No. 1:08-cv-00196-LAS

THE UNITED STATES, Defendant

ANSWER AND AFFIRMATIVE DEFENSES TO THE UNITED STATES' COUNTERCLAIM NOW INTO COURT, through undersigned counsel, comes petitioner, C.R. Pittman Construction Co, Inc. (hereinafter "CRPCCI"), and submits the following Affirmative Defenses and Answer to defendant's, The United States (collectively referred to hereinafter as "Corps"), Counterclaim and avers as follows: AFFIRMATIVE DEFENSES FIRST DEFENSE Granting the relief sought by the Corps would result in unjust enrichment. SECOND DEFENSE To the extent that the Corps has not taken steps to minimize the loss, then such failure to mitigate will bar or reduce any recovery herein. THIRD DEFENSE The Corps' damages, if any, must be offset by the amount of damages to which CRPCCI is entitled as Set-Off, Recoupment, and/or Compensation pursuant to La. C.C. art. 1893 arising

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Case 1:08-cv-00196-LAS

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out of the fault of the Corps, as it relates to the damaged equipment that the Corps asserts, in this action, CRPCCI is responsible to replace. FOURTH DEFENSE The Corps' claims are barred by estoppel, waiver or by the doctrine of laches. FIFTH DEFENSE The Corps' Counterclaim improperly seeks to impair the obligation of contracts in contravention of rights guaranteed to CRPCCI by the Constitutions of the United States and the State of Louisiana. SIXTH DEFENSE The Corps' Counterclaim improperly seeks to effect a taking without just compensation in contravention of rights guaranteed to CRPCCI by the Constitutions of the United States and the State of Louisiana. SEVENTH DEFENSE CRPCCI specifically incorporates, repleads, reasserts, reavers, and reaffirms all claims, causes of action, defenses and relief set forth in its Complaint. ANSWER AND NOW, responding to each allegation set forth in The United States' Counterclaim, CRPCCI states as follows: 69. The allegations of Paragraph 69 of the Counterclaim seek a legal conclusion for which no response is required of CRPCCI. To the extent that an answer is required, the allegations are denied for lack of sufficient knowledge and/or information to justify a reasonable belief therein.

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70. The allegations of Paragraph 70 of the Counterclaim seek a legal conclusion for which no response is required of CRPCCI. To the extent that an answer is required, the allegations are denied. 71. The allegations of Paragraph 71 of the Counterclaim seek a legal conclusion for which no response is required of CRPCCI. To the extent that an answer is required, the allegations are denied. 72. CRPCCI denies that The United States is entitled to the relief set forth in the "Wherefore" paragraph immediately following Paragraph 71 of the Counterclaim, or to any relief whatsoever. 73. CRPCCI denies each and every allegation not previously admitted or otherwise qualified.

WHEREFORE, petitioner, C.R. Pittman Construction Company, Inc., prays that its Answer and Affirmative Defenses be deemed good and sufficient and that, after due proceeding had, this Honorable Court render judgment in its favor, with all costs and fees assessed against defendant, The United States, and for all other just and equitable relief to which it is entitled and this Honorable Court is competent to grant. SIGNED this 6th __, day of June, 2008.

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Respectfully submitted: /s/ Gerald A. Melchiode __________________________________________ GERALD A. MELCHIODE, T.A. (La. Bar #22525) Email: [email protected] WILLIAM J. PERRY (La. Bar #19100) Email: [email protected] JASON J. MARKEY (La. Bar #29722) Email: [email protected] GALLOWAY, JOHNSON, TOMPKINS, BURR & SMITH One Shell Square 701 Poydras Street, 40th Floor New Orleans, Louisiana 70139 Telephone: (504) 525-6802 Facsimile: (504) 525-2854 Attorneys for Petitioner, C.R. Pittman Construction Company, Inc.

CERTIFICATE OF SERVICE I hereby certify that on June 6, 2008, I electronically filed the foregoing with the Clerk of Court by using the CM/ECF system, which will send a notice of electronic filing to all participating counsel of record. /s/ Gerald A. Melchiode

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