Free Answer - District Court of Federal Claims - federal

Case 1:07-cv-00160-EGB

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS J.O.A. CONSTRUCTION CO., INC., A Michigan Corporation, Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) )

No. 07-160C (Senior Judge Bruggink)

DEFENDANT'S ANSWER For its answer to the complaint, defendant admits, denies, and alleges as follows: 1. The allegations contained in paragraph 1 constitute conclusions of law to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 2. Denies the allegations contained in paragraph 2 for lack of knowledge or information sufficient to form a belief as to the truth of the matters asserted. 3. Admits the allegations contained in paragraph 3 only to the extent supported by the contract cited, which is the best evidence of its contents; otherwise, denies the allegations in paragraph 3. 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 admitted only to the extent supported by the contract cited, which is the best evidence of its contents; otherwise, denies the allegations in paragraph 4. 5. Admits the allegations contained in paragraph 5 only to the extent supported by the contract cited, which is the best evidence of its contents; otherwise, denies the allegations in paragraph 5.

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6. Denies the allegations contained in paragraph 6 for lack of knowledge or information sufficient to form a belief as to the truth of the matters asserted. 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 conclusions of law 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. COUNT I 10. Defendant's responses to paragraph 1through 9 are incorporated by reference. 11. Admits the allegations contained in paragraph 11 only to the extent supported by the notice cited, which is the best evidence of its contents; otherwise, denies the allegations in paragraph 11. 12. Admits the allegations contained in paragraph 12 only to the extent supported by the document cited, which is the best evidence of its contents; otherwise, denies the allegations in paragraph 12. 13. Denies. 14. Denies. 15. Denies the allegations contained the first sentence of paragraph 15. Denies the allegations contained in the second sentence of paragraph 15 for lack of knowledge or information sufficient to form a belief as to the truth of the matters asserted. 16. Denies the allegations contained in paragraph 16 for lack of knowledge or

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information sufficient to form a belief as to the truth of the matters asserted. 17. Denies. 18. Denies. 19. Denies the allegations contained in paragraph 19 for lack of knowledge or information sufficient to form a belief as to the truth of the matters asserted . 20. Denies the allegations contained in paragraph 20 for lack of knowledge or information sufficient to form a belief as to the truth of the matters asserted. 21. Denies. 22. Denies. Denies that plaintiff is entitled to the relief set forth in the prayer for relief immediately following paragraph 22, including that contained in subparagraphs (a), (b), (c) and (d), or to any relief whatsoever. COUNT II 23. Defendant's responses to paragraphs 1 through 22 are incorporated by reference. 24. Admits the allegations contained in paragraph 24 only to the extent supported by the documents cited, which are the best evidence of their contents, otherwise, denies the allegations in paragraph 24. 25. Admits the allegation contained in paragraph 25 only to the extent supported by the document cited, which is the best evidence of its content, otherwise, denies the allegation in paragraph 25. 26. The allegations contained in paragraph 26 constitute conclusions of law to which no answer is required; to the extent they may be deemed allegations of fact, they are admitted only to the extent supported by the document cited, which is the best evidence of its contents.

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27. Denies. 28. Denies. Denies that plaintiff is entitled to the relief set forth in the prayer for relief immediately following paragraph 28, or to any relief whatsoever. Defendant avers that liquidated damages continue to be assessed against the plaintiff, pursuant to the terms of the contract, until the project is completed. COUNT III 29. Defendant's responses to paragraphs 1 through 28 are incorporated by reference. 30. Admits the allegations contained in paragraph 30 only to the extent supported by the documents cited, which are the best evidence of their contents; otherwise, denies the allegations in paragraph 30. 31. Admits the allegations contained in paragraph 31 only to the extent supported by the document cited, which is the best evidence of its contents; otherwise, denies the allegations in paragraph 31. 32. Denies. 33. Denies. 34. Denies. Denies that plaintiff is entitled to the relief set forth in the prayer for relief immediately following paragraph 34, or to any relief whatsoever. COUNT IV 35. Defendant's responses to paragraph 1 through 34 are incorporated by reference. 36. Admits the allegations contained in paragraph 36 only to the extent supported by the documents cited, which are the best evidence of their contents; otherwise, denies the allegations in paragraph 36.

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37. Admits the allegations contained in paragraph 37 only to the extent supported by the document cited, which is the best evidence of its contents; otherwise, denies the allegations in paragraph 37. 38. Denies. 39. Denies. 40. Denies. Denies that plaintiff is entitled to the relief set forth in the prayer for relief immediately following paragraph 40, or to any relief whatsoever. COUNT V 41. Defendant's responses to paragraph 1 through 40 are incorporated by reference. 42. Admits the allegations contained in paragraph 42 only to the extent supported by the documents cited, which are the best evidence of their contents; otherwise, denies the allegations in paragraph 42. 43. Admits the allegations contained in paragraph 43 only to the extent supported by the document cited, which is the best evidence of its contents; otherwise, denies the allegations in paragraph 43. 44. Denies. 45. Denies. 46. Denies. Denies that plaintiff is entitled to the relief set forth in the prayer for relief immediately following paragraph 46, or to any relief whatsoever. COUNT VI 47. Defendant's responses to paragraph 1 through 46 are incorporated by reference. 48. Admits the allegations contained in paragraph 48 only to the extent supported by the

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documents cited, which are the best evidence of their contents; otherwise, denies the allegations in paragraph 48. 49. Admits the allegations contained in paragraph 49 only to the extent supported by the document cited, which is the best evidence of its contents; otherwise, denies the allegations in paragraph 49. 50. Denies. 51. Denies. 52. Denies. Denies that plaintiff is entitled to the relief set forth in the prayer for relief immediately following paragraph 52, or to any relief whatsoever. COUNT VII 53. Defendant's responses to paragraph 1 through 52 are incorporated by reference. 54. Admits the allegations contained in paragraph 54 only to the extent supported by the documents cited, which are the best evidence of their contents; otherwise, denies the allegations in paragraph 54. 55. Admits the allegations contained in paragraph 55 only to the extent supported by the documents cited, which are the best evidence of their contents; otherwise, denies the allegations in paragraph 55. 56. Denies. 57. Denies. 58. Denies. Denies that plaintiff is entitled to the relief set forth in the prayer for relief immediately following paragraph 58, or to any relief whatsoever.

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COUNT VIII 59. Defendant's responses to paragraph 1 through 58 are incorporated by reference. 60. Admits the allegations contained in paragraph 60 only to the extent supported by the documents cited, which are the best evidence of their contents; otherwise, denies the allegations in paragraph 60. 61. Admits the allegations contained in paragraph 61 only to the extent supported by the documents cited, which are the best evidence of their contents; otherwise, denies the allegations in paragraph 61. 62. Denies. 63. Denies. 64. Denies. Denies that plaintiff is entitled to the relief set forth in the prayer for relief immediately following paragraph 64, or to any relief whatsoever. 65. Denies each and every allegation not previously admitted or otherwise qualified. AFFIRMATIVE DEFENSES 66. Plaintiff fails to state a cause of action upon which relief can be granted as to the relief requested in Count I regarding purported loss of business income and indemnification of its bonding company. 67. Count II is barred by the statute of limitations. Respectfully submitted,

PETER D. KEISLER Assistant Attorney General JEANNE E. DAVIDSON Director

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s/ MARTIN F. HOCKEY, JR. Assistant Director

s/ ARMANDO A. RODRIGUEZ-FEO Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit, 8th Floor 1100 L St., NW Washington, D.C. 20530 Tele: (202) 307-3390 Fax: (202) 514-8624 Attorneys for Defendant OF COUNSEL: Lieutenant Colonel Kevin Robitaille, JAGC, USA J. Mackey Ives Department of the Army Litigation Division 901 N. Stuart St., Suite 400 Arlington, VA 22203 July 6, 2007

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CERTIFICATE OF FILING I hereby certify that on this 6th day of July, 2007, a copy of the foregoing "DEFENDANT'S ANSWER AND FIRST 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. The parties may access this filing through the Court's system.

s/ Armando Rodriguez-Feo