Free Answer - District Court of Federal Claims - federal

Case 1:05-cv-01044-MMS

Document 15

Filed 12/15/2005

Page 1 of 6

IN THE UNITED STATES COURT OF FEDERAL CLAIMS CHILDRESS SEAFOOD, INC., W. F. CHILDRESS, Plaintiffs, v. UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) )

Civil No. 05-1044C (Chief Judge Damich)

DEFENDANT'S ANSWER For its answer to the complaint, defendant admits, denies, and alleges as follows: 1.01 Denies the allegations contained in paragraph 1.01 for lack of knowledge or

information sufficient to form a belief as to their truth. 1.02 Denies the allegations contained in paragraph 1.02 for lack of knowledge or

information sufficient to form a belief as to their truth. 1.03 The allegations contained in paragraph 1.03 constitute conclusions of law and

plaintiffs' characterization of their case, to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. Avers that the United States Army Corps of Engineers is not a defendant in this action. 2.1 The allegations contained in paragraph 2.1 constitute conclusions of law and

plaintiffs' characterization of their case, to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 2.2 The allegations contained in paragraph 2.2 constitute conclusions of law and

plaintiffs' characterization of their case, to which no answer is required; to the extent they may be deemed allegations of fact, they are denied.

Case 1:05-cv-01044-MMS

Document 15

Filed 12/15/2005

Page 2 of 6

3.01

Denies the allegations contained in paragraph 3.01 for lack of knowledge or

information sufficient to form a belief as to their truth. 3.02 Admits that the United States is a defendant in this action; otherwise denies the

remaining allegations contained in the first sentence of paragraph 3.02. Denies the allegations contained in the second sentence of paragraph 3.02 for lack of knowledge or information sufficient to form a belief as to their truth. Avers that the term "defendants' agents" is undefined. 3.03 The allegations contained in paragraph 3.03 constitute conclusions of law to

which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 3.04 Admits to the extent that the Army Corps of Engineers was involved in various

aspects of a maintenance, dredging, and widening project for the Trinity River, and maintenance dredging of the channel at Smith Point, Texas; otherwise denies the remaining allegations contained in paragraph 3.04. 3.05 3.06 3.07 Denies. Denies. Admits the allegations contained in the first two sentences of paragraph 3.07.

Admits that subsequent to the dredging project in question, it was determined that sediment had had spilled upon one or more of the oyster leases in the area; otherwise, denies the remaining allegations contained in the third sentence of paragraph 3.07. Denies the allegations contained in the fourth and fifth sentences of paragraph 3.07. Denies the allegations contained in the sixth sentence of paragraph 3.07 for lack of knowledge or information sufficient to form a belief as to their truth. 2

Case 1:05-cv-01044-MMS

Document 15

Filed 12/15/2005

Page 3 of 6

4.1

The allegations contained in paragraph 4.1 constitute conclusions of law and

plaintiffs' characterization of their case, to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 4.2 5.1 Denies. The allegations contained in paragraph 5.1 constitute conclusions of law and

plaintiffs' characterization of their case, to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 6.1 The allegations contained in paragraph 6.1 constitute conclusions of law and

plaintiffs' characterization of their case, to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 7.1 The allegations contained in paragraph 7.1 constitute conclusions of law and

plaintiffs' characterization of their case, to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 8.1 The allegations contained in paragraph 8.1 constitute conclusions of law and

plaintiffs' characterization of their case, to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 9.1 The allegations contained in paragraph 9.1 constitute conclusions of law and

plaintiffs' characterization of their case, to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 10.1 The allegations contained in paragraph 10.1 constitute conclusions of law and

plaintiffs' characterization of their case, to which no answer is required; to the extent they may be considered allegations of fact, they are denied.

3

Case 1:05-cv-01044-MMS

Document 15

Filed 12/15/2005

Page 4 of 6

11.1

The allegations contained in paragraph 11.1 constitute conclusions of law and

plaintiffs' characterization of their case, to which no answer is required; to the extent they may be considered allegations of fact, they are denied. 12.1 Defendant denies that plaintiff is entitled to the relief set forth in paragraph 12.1,

or to any relief whatsoever. 13 Denies each and every allegation not previously admitted or otherwise qualified. FIRST DEFENSE 14 Pursuant to clauses 52.236-6, 52.236-7, 52.236-9(b), 52.236-13, as well as the

provisions of sections 01355 and 02482, of contract DACW64-02-C-0034 between the United States Army Corps of Engineers and Weeks Marine, Inc., the contractor is required to indemnify the United States for damage purportedly suffered by plaintiffs. 15 Pursuant to paragraph H.5 of contract DACW64-02-D-0001, between the United

States Army Corps of Engineers and URS Group, Inc., the contractor is liable for damage to persons or property without recourse to the Government. WHEREFORE, defendant requests the Court enter judgment in its favor, order the complaint be dismissed, and grant defendant such other and further relief as the Court may deem just and proper. Respectfully Submitted,

PETER D. KEISLER Assistant Attorney General DAVID M. COHEN Director

4

Case 1:05-cv-01044-MMS

Document 15

Filed 12/15/2005

Page 5 of 6

s/ Todd M. Hughes TODD M. HUGHES Assistant Director

Of Counsel: s/ David D'Alessandris DAVID D'ALESSANDRIS Trial Attorney Commercial Litigation Branch Civil Division U.S. Department of Justice Attn: Classification Unit 8th Floor 1100 L Street, N.W. Washington, D.C. 20530 Tele: (202) 307-1011 Fax: (202) 514-8624 Attorneys for Defendant

P. Alex Petty Ana-Valli Gordon Assistant District Counsel United States Army Corps of Engineers Galveston District 2000 Fort Point Rd. Galveston, TX 77550

December 15, 2005

5

Case 1:05-cv-01044-MMS

Document 15

Filed 12/15/2005

Page 6 of 6

CERTIFICATE OF FILING I hereby certify that on December 15, 2005, a copy of the forgoing "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 D'Alessandris