Free Answer - District Court of Federal Claims - federal

Case 1:07-cv-00326-RHH

Document 19

Filed 02/08/2008

Page 1 of 5

IN THE UNITED STATES COURT OF FEDERAL CLAIMS HILLIAN BROS. & SONS, INC. Plaintiff/Counter-Defendant, vs. UNITED STATES OF AMERICA Defendant/Counter-Plaintiff. HILLIAN BROS. & SONS, INC.'S ANSWER TO COUNTERCLAIM Plaintiff/Counter-Defendant, Hillian Bros. & Sons, Inc., by counsel, in accordance with Federal Rules of Civil Procedure, in answer of the Counterclaim of Defendant/Counter-Plaintiff, The United States, hereby respectfully submits its answers and affirmative defenses: 1. Paragraph 18. 2. Paragraph 19. 3. Hillian Bros. submits that the Contract and change orders speak for themselves Hillian Bros. admits the allegations contained in Defendant's Counterclaim, Hillian Bros. admits the allegations contained in Defendant's Counterclaim, Case No: 1:07-cv-00326-RHH (Judge Hodges)

and on that basis denies the allegations contained in Defendant's Counterclaim, Paragraph 20. 4. Hillian Bros. admits to receiving a stop work order and payments of $291,562.00

for the interior work, but denies the remaining allegations contained in Defendant's Counterclaim, Paragraph 21. 5. Hillian Bros. admits to receiving the September 25, 2006 letter but submits that

the contents of such letter speaks for itself. Hillian Bros. denies the remaining allegations contained in Defendant's Counterclaim, Paragraph 22. 6. Hillian Bros. admits the allegations contained in Defendant's Counterclaim,

Case 1:07-cv-00326-RHH

Document 19

Filed 02/08/2008

Page 2 of 5

Paragraph 23. 7. Paragraph 24. 8. Hillian Bros. admits that Defendant made the determination as alleged in Hillian Bros. admits the allegations contained in Defendant's Counterclaim,

Defendant's Counterclaim, Paragraph 25, but denies that the determination is correct. 9. Paragraph 26. 10. Paragraph 27. 11. Hillian Bros. admits that its claims included a credit for damage to plants but Hillian Bros. admits the allegations contained in Defendant's Counterclaim, Hillian Bros. admits the allegations contained in Defendant's Counterclaim,

denies any liability for the remaining allegations contained in Defendant's Counterclaim, Paragraph 28. 12. Hillian Bros. admits that its scaffolding affected the garbage pick-up and agreed to

help with the garbage pick-up. Hillian Bros. denies the remaining allegations contained in Defendant's Counterclaim, Paragraph 29. 13. Paragraph 30. 14. Paragraph 31. 15. Hillian Bros. admits that its concrete subcontractor accidently set off the sprinkler Hillian Bros. denies the allegations contained in Defendant's Counterclaim, Hillian Bros. denies the allegations contained in Defendant's Counterclaim,

system and agrees that Defendant was damaged $650.00 as a result. Hillian Bros. denies the remaining allegations contained in Defendant's Counterclaim, Paragraph 32. 2

Case 1:07-cv-00326-RHH

Document 19

Filed 02/08/2008

Page 3 of 5

16.

Hillian Bros. asserts that the terms of the agreement speaks for itself and on that

basis denies the allegation characterizing the agreement related to dust. Hillian Bros. denies the remaining allegations contained in Defendant's Counterclaim, Paragraph 33. 17. Paragraph 34. 18. Hillian Bros. asserts that the terms of the agreement speaks for itself and on that Hillian Bros. denies the allegations contained in Defendant's Counterclaim,

basis denies the allegation characterizing the agreement related to submittals. Hillian Bros. denies the remaining allegations contained in Defendant's Counterclaim, Paragraph 35. 19. above. GENERAL DENIAL Hillian Bros. denies that Defendant/Counter-Plaintiff, has sustained any damages recoverable under law by reason of any act or omission on the part of Hillian Bros. Hillian Bros. denies that Defendant/Counter-Plaintiff is entitled to any recovery from Hillian Bros. in any amount whatsoever on any basis. AFFIRMATIVE DEFENSES Hillian Bros. asserts, separately and/or alternatively, even if inconsistent, the following affirmative defenses: First Affirmative Defense (Failure to State a Claim) The Counterclaim fails to state a claim upon which relief may be granted as against Hillian Bros. Hillian Bros. denies any and all allegations not specifically admitted or denied

3

Case 1:07-cv-00326-RHH

Document 19

Filed 02/08/2008

Page 4 of 5

Second Affirmative Defense (Waived, Excused or Prevented) Hillian Bros. completed all work required by the Contract except where same may have been waived, excused or prevented by Defendant/Counter-Plaintiff. Third Affirmative Defense (Failure to Pay) Any default by Hillian Bros. is excused by Defendant/Counter-Plaintiff's previous failure to pay. Fourth Affirmative Defense (Estoppel) The relief requested in the Counterclaim should be denied pursuant to the legal doctrine of estoppel. Fifth Affirmative Defense (Waiver) The relief requested in the Counterclaim should be denied pursuant to the legal doctrine of waiver.

RESERVATION OF CLAIMS AND DEFENSES Hillian Bros. reserves the right to assert any other claims or defenses as may be available, or may become available to it during the course of these proceedings. WHEREFORE, Plaintiff/Counter-Defendant, Hillian Bros. & Sons, Inc., respectfully request that this Court dismiss with prejudice each and every cause of action contained within the Defendant's Counterclaim and grant such other and further relief as the Court may deem just and proper, together with costs, disbursements and attorney's fees incurred in this proceeding.

4

Case 1:07-cv-00326-RHH

Document 19

Filed 02/08/2008

Page 5 of 5

Respectfully submitted, GREENBURG, SPENCE & TAYLOR, LLC

Dated: February 8, 2008

By: /s/ MPM Donald H. Spence, Jr., Esq. Michael P. Marchetti, Esq. 51 Monroe Place, Suite 707 Rockville, Maryland 20850-2406 301-610-0010 301-610-0021 fax Email: [email protected] Attorneys for Hillian Bros. & Sons, Inc.

CERTIFICATE OF FILING I hereby certify that on this 8th day of February, 2008, a copy of the foregoing was filed electronically. I understand that the notice of this filing will be sent to all parties by operation of the Court's electronic filing system. The parties may access this filing through the Court's system.

/s/ MPM Michael P. Marchetti, Esq.

5