Free Answer - District Court of Federal Claims - federal

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS C.R. PITTMAN CONSTRUCTION COMPANY, INC., Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) ) )

No. 08-196C (Senior Judge Smith)

DEFENDANT'S ANSWER AND COUNTERCLAIM For its answer to the complaint, defendant admits, denies, and alleges as follows: 1. Denies the allegations contained in paragraph 1 for lack

of knowledge or information sufficient to form a belief as to their truth. 2. 3. Admits. The allegations contained in paragraph 3 constitute

conclusions of law and plaintiff's characterization of its case, to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 4. The allegations contained in paragraph 4 constitute

conclusions of law and plaintiff's characterization of its case, to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 5. The allegations contained in paragraph 5 constitute

conclusions of law and plaintiff's characterization of its case,

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to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 6. Admits the allegation contained in paragraph 6 that a

period of six months has expired since the presentment of plaintiff's claim. The remaining allegations contained in

paragraph 6 constitute conclusions of law to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 7. The allegations contained in paragraph 7 constitute

conclusions of law to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 8. The allegations contained in paragraph 8 constitute

plaintiff's characterization of its case, to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 9. The allegations contained in paragraph 9 constitute

conclusions of law to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 10. The allegations contained in paragraph 10 constitute

plaintiff's characterization of its case, to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 11. Admits the allegations contained in paragraph 11 to the

extent supported by the contract cited, which is the best

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evidence of its contents; otherwise denies the allegations contained in paragraph 11. 12. Admits the allegations contained in paragraph 12 to the

extent supported by the contract cited, which is the best evidence of its contents; otherwise denies the allegations contained in paragraph 12. 13. Admits the allegations contained in the first sentence

of paragraph 13 to the extent supported by the notice to proceed cited, which is the best evidence of its contents; otherwise denies the allegations contained in the first sentence of paragraph 13. The remaining allegations contained in

paragraph 13 constitute plaintiff's characterization of its case, to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 14. Admits the allegations contained in paragraph 14 to the

extent supported by the contract cited, which is the best evidence of its contents; otherwise denies the allegations contained in paragraph 14. 15. 16. Admits. Admits the allegations contained in paragraph 16 that

after plaintiff purchased the equipment, it stored the items at its storage yard and warehouse at 3021 Franklin Avenue, New Orleans, Louisiana. in paragraph 16. Denies the remaining allegations contained

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17.

Admits the allegation contained in paragraph 17 that

the Corps made progress payments to plaintiff for the purchased stored equipment. The remaining allegations contained in

paragraph 17 constitute conclusions of law and plaintiff's characterization of its case, to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 18. The allegations contained in the second sentence of

paragraph 18 that the equipment was "completed as a unit of work" constitute conclusions of law and plaintiff's characterization of its case, to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. remaining allegations contained in paragraph 18. 19. Admits the allegations contained in the first sentence The allegations contained in the second Admits the

of paragraph 19.

sentence of paragraph 19 constitute plaintiff's characterization of its case, to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 20. Admits the allegations contained in paragraph 20 to the

extent supported by the contract cited, which is the best evidence of its contents; otherwise denies the allegations contained in paragraph 20. 21. Admits the allegations contained in paragraph 21 to the

extent supported by the contract cited, which is the best

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evidence of its contents; otherwise denies the allegations contained in paragraph 21. 22. Admits the allegations contained in the first sentence

of paragraph 22 to the extent supported by the notice to proceed cited, which is the best evidence of its contents; otherwise denies the allegations contained in the first sentence of paragraph 22. The remaining allegations contained in paragraph

22 constitute plaintiff's characterization of its case, to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 23. Admits the allegations contained in paragraph 23 to the

extent supported by the contract cited, which is the best evidence of its contents; otherwise denies the allegations contained in paragraph 23. 24. 25. Admits. Admits the allegations contained in paragraph 25 that

after plaintiff purchased the equipment, it stored the items at its storage yard and warehouse at 3021 Franklin Avenue, New Orleans, Louisiana. in paragraph 25. 26. Admits the allegation contained in paragraph 26 that Denies the remaining allegations contained

the Corps made progress payments to plaintiff for the purchased stored equipment. The remaining allegations contained in

paragraph 26 constitute conclusions of law and plaintiff's

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characterization of its case, to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 27. The allegations contained in the second sentence of

paragraph 27 that the equipment was "completed as a unit of work" constitute conclusions of law and plaintiff's characterization of its case, to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. remaining allegations contained in paragraph 27. 28. Admits the allegations contained in the first sentence The allegations contained in the second Admits the

of paragraph 28.

sentence of paragraph 28 constitute plaintiff's characterization of its case, to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 29. Admits the allegations contained in paragraph 29 to the

extent supported by the contracts cited, which are the best evidence of their contents; otherwise denies the allegations contained in paragraph 29. 30. Admits the allegations contained in the first sentence

of paragraph 30 that "[t]he damaged equipment at issue . . . was already paid for by the Corps . . . and [was] damaged by flood." The remaining allegations contained in paragraph 30 constitute conclusions of law and plaintiff's characterization of its case,

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to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 31. 32. 33. 34. Admits. Admits. Admits. Admits the allegations contained in paragraph 34 to the

extent supported by the notice or notices cited, which are the best evidence of their contents; otherwise denies the allegations contained in paragraph 34. 35. Denies the allegations contained in the first sentence Admits the allegations contained in the second

of paragraph 35.

sentence of paragraph 35. 36. Admits the allegations contained in paragraph 36 to the

extent supported by the final decision cited, which is the best evidence of its contents; otherwise denies the allegations contained in paragraph 36. 37. Admits the allegations contained in paragraph 37 to the

extent supported by the final decision cited, which is the best evidence of its contents; otherwise denies the allegations contained in paragraph 37. 38. Admits the allegations contained in the first sentence

of paragraph 38 to the extent supported by the demands cited, which are the best evidence of their contents; otherwise denies the allegations contained in the first sentence of paragraph 38.

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The allegations contained in the second sentence of paragraph 38 constitute plaintiff's characterization of its case, to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 39. The allegations contained in paragraph 39 constitute

plaintiff's characterization of its case, to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 40. The allegations contained in paragraph 40 constitute

conclusions of law and plaintiff's characterization of its case, to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 41. Admits the allegations contained in the first clause of Admits the allegations

the first sentence of paragraph 41.

contained in the second clause of the first sentence of paragraph 41 to the extent supported by the paragraph cited, which is the best evidence of its contents; otherwise denies the allegations contained in the second clause of the first sentence of paragraph 41. Admits the allegation contained in the second

sentence of paragraph 41 that "[t]he Corps drafted the contract." The remaining allegations contained in the second sentence of paragraph 41 constitute conclusions of law and plaintiff's characterization of its case, to which no answer is required; to

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the extent they may be deemed allegations of fact, they are denied. 42. The allegations contained in paragraph 42 constitute

plaintiff's characterization of its case, to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 43. Admits the allegations contained in paragraph 43 to the

extent supported by the notice cited, which is the best evidence of its contents; otherwise denies the allegations contained in paragraph 43. 44. The allegations contained in paragraph 44 constitute

plaintiff's characterization of its case, to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 45. The allegations contained in paragraph 45 constitute

plaintiff's characterization of its case, to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 46. The allegations contained in paragraph 45 constitute

conclusions of law and plaintiff's characterization of its case, to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 47. The allegations contained in the first sentence of

paragraph 47 constitute conclusions of law and plaintiff's

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characterization of its case, to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. Denies the allegations contained in the second sentence

of paragraph 47 for lack of knowledge or information sufficient to form a belief as to their truth. 48. The allegations contained in paragraph 48 constitute

conclusions of law and plaintiff's characterization of its case, to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 49. The allegations contained in paragraph 49 constitute

conclusions of law and plaintiff's characterization of its case, to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 50. The allegations contained in paragraph 50 constitute

conclusions of law and plaintiff's characterization of its case, to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 51. The allegations contained in paragraph 51 constitute

conclusions of law and plaintiff's characterization of its case, to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 52. The allegations contained in paragraph 52 constitute

conclusions of law and plaintiff's characterization of its case, to which no answer is required; to the extent they may be deemed

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allegations of fact, they are denied.

Denies that plaintiff is

entitled to the relief requested in paragraph 52, or to any relief whatsoever. 53. Defendant incorporates by reference its responses to

paragraphs 1 through 52 of the complaint. 54. The allegations contained in paragraph 54 constitute

conclusions of law and plaintiff's characterization of its case, to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 55. The allegations contained in paragraph 55 constitute

conclusions of law and plaintiff's characterization of its case, to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. Denies that plaintiff is

entitled to the relief requested in paragraph 55, or to any relief whatsoever. 56. The allegations contained in paragraph 56 constitute

conclusions of law, to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 57. The allegations contained in paragraph 57 constitute

conclusions of law and plaintiff's characterization of its case, to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 58. The allegations contained in paragraph 58 constitute

conclusions of law and plaintiff's characterization of its case,

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to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 59. The allegations contained in paragraph 59 constitute

conclusions of law and plaintiff's characterization of its case, to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 60. The allegations contained in paragraph 60 constitute

conclusions of law and plaintiff's characterization of its case, to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 61. Admits the allegations contained in the first sentence

of paragraph 61 that "[n]umerous actions, including class actions, have been brought as a result of this disaster." Admits

the allegation contained in the second sentence of paragraph 61 that the cited action is pending in the district court cited. Denies the allegation contained in the second sentence of paragraph 61 that the Corps is the defendant in the cited action; avers that the United States is the defendant in that action. The remaining allegations contained in paragraph 61 constitute plaintiff's characterization of its case, to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 62. The allegations contained in paragraph 62 constitute

plaintiff's characterization of its case, to which no answer is

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required; to the extent they may be deemed allegations of fact, they are denied. 63. The allegations contained in paragraph 63 constitute

conclusions of law and plaintiff's characterization of its case, to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 64. Admits the allegations contained in paragraph 64 to the

extent supported by the final decision cited, which is the best evidence of its contents; otherwise denies the allegations contained in paragraph 64. 65. Admits the allegations contained in the first sentence The

of paragraph 65 that plaintiff requested a deferment.

remaining allegations contained in the first sentence of paragraph 65 constitute conclusions of law and plaintiff's characterization of its case, to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. Admits the allegations contained in the second sentence

of paragraph 65 to the extent supported by the order cited, which is the best evidence of its contents; otherwise denies the allegations contained in paragraph 65. 66. The allegations contained in paragraph 66 constitute

conclusions of law and plaintiff's characterization of its case, to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. Denies that plaintiff is

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entitled to the relief requested in paragraph 66, or to any relief whatsoever. 67. Denies that plaintiff is entitled to the relief set

forth in the "WHEREFORE" paragraph immediately following paragraph 66, or to any relief whatsoever. 68. Denies each and every allegation not previously

admitted or otherwise qualified. DEFENDANT'S COUNTERCLAIM 69. Jurisdiction for this counterclaim is provided by

28 U.S.C. §§ 1503 and 2508. 70. By decisions dated April 6, 2007, that are Exhibits 4

and 5 to plaintiff's complaint, the contracting officer issued final decisions demanding payment from plaintiff of $1,940,218.62 and $399,890.91, representing the amounts that plaintiff owes the Government for progress payments that the Government made to plaintiff pursuant to Contract Nos. DACW29-00-C-0093 and DACW2902-C-0062, respectively, for equipment that plaintiff has failed to install at pumping stations as those contracts require. 71. As of the filing of this answer, plaintiff has failed

to pay the Government the amounts demanded by the contracting officer's April 6, 2007 decisions. Accordingly, defendant is

entitled to payment in the amounts of $1,940,218.62 and $399,890.91, for a total of $2,340,109.53, plus interest

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commencing from the date of the demand, at rates established by the Secretary of the Treasury pursuant to Public Law 92-41. WHEREFORE, defendant requests that the Court enter judgment in favor of defendant in the amount of $2,340,109.53, plus interest, order that the complaint be dismissed, and grant defendant such other and further relief as the Court may deem just and proper. Respectfully submitted, GREGORY G. KATSAS Acting Assistant Attorney General JEANNE E. DAVIDSON Director s/Mark A. Melnick by s/Donald E. Kinner MARK A. MELNICK Assistant Director s/Timothy P. McIlmail TIMOTHY P. MCILMAIL Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 8th Floor 1100 L Street, N.W. Washington, D.C. 20530 Telephone: (202) 616-0342 Facsimile: (202) 514-7965 OF COUNSEL: WILLIAM G. MEINERS Office of Counsel United States Army Corps Of Engineers May 19, 2008 Attorneys for Defendant -15-

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CERTIFICATE OF FILING I hereby certify that on May 19, 2008, a copy of the foregoing Defendant's Answer And Counterclaim was filed electronically. I understand that notice of this filing will be

sent to all parties by operation of the Court's electronic filing system. system. Parties may access this filing through the Court's

s/Timothy P. McIlmail