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 ANSWER TO PLAINTIFF'S FIRST AMENDED COMPLAINT Subject to our accompanying Partial Motion to Dismiss, which concerns any claims based upon invoices 21 through 23, defendant, the United States, admits, denies and alleges as follows in its 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. These allegations are subject to our partial motion to dismiss. 22. These allegations are subject to our partial motion to dismiss. 23. These allegations are subject to our partial motion to dismiss. 24. These allegations are subject to our partial motion to dismiss. 25. These allegations are subject to our partial motion to dismiss. 26. These allegations are subject to our partial motion to dismiss. 27. These allegations are subject to our partial motion to dismiss. 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. These allegations are subject to our partial motion to dismiss. 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. 4

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32. These allegations are subject to our partial motion to dismiss. 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. DEFENSES AND 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.

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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 Deputy Director s/ James D. Colt JAMES D. COLT 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) 305-7576 Fax: (202) 305-7643 April 6, 2006 Attorneys for Defendant

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Case 1:05-cv-00881-VJW

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CERTIFICATE OF SERVICE I hereby certify that on this 6th day of April, 2006, a copy of the foregoing DEFENDANT'S 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. Parties may access this filing through the Court's system.

s/ James D. Colt