Free Answer - District Court of Federal Claims - federal

Case 1:05-cv-00881-VJW

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS COMMERCE FUNDING CORPORATION, ) ) Plaintiff, ) ) v. ) ) THE UNITED STATES, ) ) Defendant. )

No. 05-881C (Judge Wolski)

DEFENDANT'S AMENDED ANSWER TO PLAINTIFF'S FIRST AMENDED COMPLAINT Pursuant to the Court's order dated September 1, 2006, defendant, the United States, admits, denies and alleges as follows in its amended answer to Plaintiff's First Amended Complaint: 1. The allegations contained in Paragraph 1 constitute legal conclusions and plaintiff's characterizations of its case to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 2. The allegations contained in Paragraph 2 constitute legal conclusions and plaintiff's characterizations of its case to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 3. Denies the allegations contained in the first sentence of Paragraph 3 for lack of knowledge or information sufficient to form a belief as to the truth of the matters asserted. The allegations contained in the second sentence of Paragraph 3 constitute legal conclusions and plaintiff's characterizations of its case to which no answer is required; to the extent they may be deemed allegations of fact, they are denied.

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4. The allegations contained in Paragraph 4 constitute legal conclusions and plaintiff's characterizations of its case to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 5. Denies the allegations contained in Paragraph 5 for lack of knowledge or information sufficient to form a belief as to the truth of the matters asserted. 6. The allegations contained in Paragraph 6 constitute legal conclusions and plaintiff's characterizations of its case to which no answer is required. 7. Denies the allegations contained in Paragraph 7 for lack of knowledge or information sufficient to form a belief as to the truth of the matters asserted. 8. Admits. 9. Admits the allegations contained in Paragraph 9 to the extent supported by the referenced contract, which is the best evidence of its contents; otherwise denies the allegations contained in Paragraph 9. 10. Admits the allegations contained in Paragraph 10 to the extent supported by the referenced contract, which is the best evidence of its contents; otherwise denies the allegations contained in Paragraph 10. 11. Admits the allegations contained in the first sentence of Paragraph 11 to the extent supported by the referenced Instrument of Assignment, which is the best evidence of its contents; otherwise denies the allegations contained in the first sentence of Paragraph 11. The allegations contained in the second and third sentences of Paragraph 11 constitute legal conclusions and plaintiff's characterizations of its case to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 2

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12. Admits. 13. Admits that Mr. Coulewicz received the Notice of Assignment; otherwise denies the allegations contained in the first two sentences of Paragraph 13. Admits the allegations contained in the third sentence of Paragraph 13 to the extent supported by the referenced documents, which are the best evidence of their contents; otherwise denies the allegations contained in the third sentence of Paragraph 13. 14. Denies the allegations contained in Paragraph 14 for lack of knowledge or information sufficient to form a belief as to the truth of the matters asserted. 15. Denies the allegations contained in the first sentence of Paragraph 15 for lack of knowledge or information sufficient to form a belief as to the truth of the matters asserted. Admits the allegations contained in the second sentence of Paragraph 15. 16. Admits that Commerce Funding was paid for invoices 16 through 19; admits the remaining allegations contained in Paragraph 16 to the extent supported by the referenced documents, which are the best evidence of their contents; otherwise denies the allegations contained in Paragraph 16. 17. Admits the allegation contained in the first sentence of Paragraph 17 that invoice number 20 was paid to ICES; otherwise denies the allegations contained in the first sentence of Paragraph 17. Admits the allegation contained in the second sentence of Paragraph 17. 18. Admits the allegation contained in the first sentence of Paragraph 18; avers that Ms. Katzen took no further action because she was subsequently informed that Commerce Funding had received the payment from ICES. The allegations contained in the second sentence of Paragraph 18 constitute legal conclusions and plaintiff's characterizations of its own case, to 3

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which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 19. Admits the allegation contained in Paragraph 19 to the extent supported by the referenced documents, which are the best evidence of their contents; otherwise denies the allegations contained in Paragraph 19. 20. Admits the allegation contained in Paragraph 20 to the extent supported by the referenced documents, which are the best evidence of their contents; otherwise denies the allegations contained in Paragraph 20. 21. Admits. 22. Admits. 23. The allegations contained in Paragraph 23 constitute legal conclusions and plaintiff's characterization of its case, to which no response is required; to the extent they may be deemed allegations of fact, they are denied for lack of knowledge or information sufficient to form a belief as to their truth. 24. Denies the allegation contained in Paragraph 24 for lack of knowledge or information sufficient to form a belief as to its truth. 25. Denies the allegations contained in Paragraph 25 for lack of knowledge or information sufficient to form a belief as to their truth. 26. Denies the allegation contained in the first sentence of Paragraph 26, that a "secret agreement" existed between ICES and the United States; denies the remaining allegation contained in the first sentence of Paragraph 26 for lack of knowledge or information sufficient to form a belief as to its truth. Denies the allegation contained in the second sentence of Paragraph 4

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26 for lack of knowledge or information sufficient to form a belief as to its truth. 27. Denies the allegations contained in Paragraph 27 for lack of knowledge or information sufficient to form a belief as to their truth. 28. Denies the allegations contained in Paragraph 28 for lack of knowledge or information sufficient to form a belief as to the truth of the matters asserted. 29. Admits the allegations contained in the first sentence of Paragraph 29 to the extent supported by the letter cited, which is the best evidence of its contents; otherwise denies the allegations contained in the first sentence of Paragraph 29. Denies the allegation contained in the second sentence of Paragraph 29. Admits the allegation contained in the third sentence of Paragraph 29 to the extent supported by the exhibit cited, which is the best evidence of its contents; otherwise denies the allegation contained in the third sentence of Paragraph 29. 30. Denies the allegations contained in Paragraph 30 for lack of knowledge or information sufficient to form a belief as to the truth of the matters asserted. 31. Denies the allegations contained in Paragraph 31 for lack of knowledge or information sufficient to form a belief as to the truth of the matters asserted. 32. The allegations contained in the first sentence of Paragraph 32 constitute legal conclusions and plaintiff's characterization of its case, to which no response is required; to the extent they may be deemed allegations of fact, they are denied. The allegation contained in the second sentence of Paragraph 32, that the wire transfers were not in accordance with the ACA is a legal conclusion, to which no response is required; to the extent it may be deemed an allegation of fact, it is denied. Admits the remaining allegation contained in the second sentence of Paragraph 32 to the extent supported by the exhibit cited, which is the best evidence of its 5

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contents; otherwise denies the remaining allegation contained in the second sentence of Paragraph 32. Denies the allegations contained in the third sentence of Paragraph 32, that the payments were issued to the wrong payee, and that "Commerce Funding received approximately only 1 percent of the total amount of each invoice payment due." Denies the remaining allegation contained in the third sentence of Paragraph 32 for lack of knowledge or information sufficient to form a belief as to its truth. 33. Denies; avers that the defendant agency has paid the invoices in question, but the such payments either have been paid to Commerce Funding by ICES or have been subject to a Treasury Department offset. 34. Denies. 35. Denies. 36. Denies. 37. Denies. 38. Denies. 39. Denies the allegations contained in Paragraph 39 for lack of knowledge or information sufficient to form a belief as to the truth of the matters asserted. 40. Denies. 41. Denies. 42. Denies that the plaintiff is entitled to the relief set forth in the Prayer for Relief following Paragraph 41 or to any relief whatsoever. 43. Denies each and every allegation not previously admitted or otherwise qualified.

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AFFIRMATIVE DEFENSES 44. Plaintiff has failed to state a claim upon which relief may be granted with regards to invoices 21 through 23. 45. Plaintiff's claims have already been satisfied by payments by ICES.

WHEREFORE, defendant requests that the Court enter judgment in its favor, that the complaint be dismissed, and that defendant be granted 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 s/ Patricia M. McCarthy PATRICIA M. McCARTHY Assistant Director

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s/ Lauren S. Moore LAUREN S. MOORE Trial Attorney Department of Justice Civil Division Commercial Litigation Branch Attn: Classification Unit 8th Floor 1100 L Street, NW Washington, D.C. 20530 Tel: (202) 616-0333 Fax: (202) 514-8640 October 2, 2006 Attorneys for Defendant

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CERTIFICATE OF SERVICE I hereby certify that on this 2nd day of October, 2006, a copy of the foregoing DEFENDANT'S AMENDED ANSWER TO PLAINTIFF'S FIRST AMENDED COMPLAINT was filed electronically. I understand that notice of this filing will be sent to all parties of record by operation of the Court's electronic filing system, and that the parties may access this filing through the Court's system.

s/ Lauren S. Moore