Free Answer - District Court of Federal Claims - federal

Case 1:07-cv-00228-MMS

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS MILLER CONSTRUCTION CO., LTD., Plaintiff, vs. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) )

No. 07-228 C (Judge Sweeney)

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

knowledge sufficient to form a belief as to the truth of the matters asserted. 2. The allegations contained in paragraph 2 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. 3. The allegations contained in paragraph 3 constitute conclusions of law, to which

no answer is required; to the extent they may be deemed allegations of fact, they are denied. 4. 5. 6. 7. 8. Admits. Admits. Admits. Admits. Admits.

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9.

Denies the allegation contained in the first sentence of paragraph 9. Avers that

Martha DeFreest and Tom Ginger "walked the site" on November 1, 2004. Denies the allegations contained in the second sentence of paragraph 9. 10. Denies the allegation contained in the first sentence of paragraph 10. Admits the

allegation contained in the second sentence of paragraph 10. Denies the allegation contained in the third sentence of paragraph 10 that "[s]he further instructed and approved for plaintiff MCC to construct the project in all material respects," for lack of knowledge and information sufficient to form a belief as to the truth of the matters asserted. Denies the remainder of the allegations contained in paragraph 10. Denies the allegation contained in the fourth sentence of paragraph 10. 11. The allegation contained in paragraph 11 that "MCC, in good faith proceeded to

construct the rockery wall in conformance with the contract specifications" constitutes a legal conclusion, to which no answer is required; to the extent it may be deemed an allegation of fact, it is denied. Denies the allegation contained in paragraph 11 that MCC constructed the rockery wall in conformance with "Ms. DeFreest's instructions." 12. Admits the allegations contained in paragraph 12 to the extent supported by the

work order cited, which is the best evidence of its contents; otherwise, denies the allegations contained in paragraph 12. 13. Admits that in his letter dated May 13, 2005, Timothy A. Miller, MCC's General

Manager, responded to Ms. DeFreest's May 5, 2005 work order and stated in his letter that MCC would not remove in-place rockery walls for the reasons identified in paragraph 13(a-d) of the complaint.

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14.

Admits that in his letter to Ms. DeFreest dated May 13, 2005 Timothy A. Miller,

MCC's General Manager stated that "if you want MCC to do as demanded, then you must hold MCC harmless for discharging a gravel fill into a wetlands area, and then, you must pay for the work, because the additional work falls outside the scope of the contract." 15. 16. 17. Admits. Admits. The allegation contained in paragraph 17 constitutes a conclusion of law, to which

no answer is required; to the extent it may be deemed allegations of fact, it is denied. 18. The allegations contained in paragraph 18 constitute conclusions of law, to which

no answer is required; to the extent they may be deemed allegations of fact, they are denied. 19. The allegations contained in paragraph 19 constitute conclusions of law, to which

no answer is required; to the extent they may be deemed allegations of fact, they are denied. 20. Defendant denies that plaintiff is entitled to the relief requested in the

"Wherefore" clause following paragraph 19 of the complaint or to any other relief whatsoever. 21. Denies each and every allegation not previously admitted or otherwise qualified.

Respectfully submitted, PETER D. KEISLER Assistant Attorney General JEANNE E. DAVIDSON Director

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s/ Steven J. Gillingham STEVEN J. GILLINGHAM Assistant Director s/ David M. Hibey DAVID M. HIBEY Trial Attorney Commercial Litigation Branch Civil Division Department of Justice 1100 L Street, N.W. Attn: Classification Unit 8th Floor Washington, D.C. 20530 Tel: (202) 307-0163 Fax: (202) 514-8624 Attorneys for Defendant

:

June 8, 2007

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CERTIFICATE OF FILING I hereby certify that on this 8th day of June, 2007, a copy of the foregoing "Defendant's Answer" 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. Parties may access this filing through the Court's system. s/ David M. Hibey