Free Motion for Leave to File - District Court of Delaware - Delaware

Case 1:04-cv-01416-JJF

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Filed 05/03/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

UNITED STATES OF AMERICA for the Use and Benefit of JERSEY SHORE AUTOMATION, INC. Plaintiff, vs. CHUGACH SUPPORT SERVICES, INC., et al. Defendants

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C. A. No. 04-1416 (JJF)

MOTION OF DEFENDANTS CHUGACH SUPPORT SERVICES, INC. AND SAFECO INSURANCE COMPANY OF AMERICA FOR LEAVE TO FILE ACCOMPANYING MOTION TO DISMISS IN PART, OR IN THE ALTERNATIVE FOR PARTIAL SUMMARY JUDGMENT Pursuant to Local Rules 7.1.1, 7.1.2 and 7.1.3 and ¶ 7 of Court's April 19, 2005 Rule 16 Scheduling Order, Defendants Chugach Support Services, Inc. and Safeco Insurance Company of America, by undersigned counsel, respectfully move for leave to file the accompanying Motion of Defendants Chugach Support Services, Inc. And Safeco Insurance Company of America To Dismiss in Part, dismissing Plaintiff's claims arising out of and with respect to (i) Chugach's alleged mistakes in calculating, and incorrect calculations of, wage rates and (ii) Chugach's allegedly failing to process invoices in a timely fashion and failing to issue change orders, on the grounds that such allegations fail to state a claim upon which relief can be granted or, in the alternative, there are no genuine disputes of material fact and Defendants are entitled to judgment as a matter of law with respect to such claims.

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This matter is a construction dispute between Defendant Chugach as contractor with the United States of America under the Simplified Acquisition of Base Engineering Requirements Contract F07603-03-D-0002 for construction projects at Dover Air Force Base, Delaware and Plaintiff Jersey Shore as subcontractor to Chugach under the Master Subcontract Agreement dated May 13, 2003. In its Complaint, Jersey Shore claims that Chugach breached its contract with Jersey Shore by, inter alia, (i) incorrectly calculating the wage rates used in pricing the construction projects, (ii) failing to pay for completed work, (iii) failing to process invoices in timely fashion and (iv) failing to issue change orders. In its Counterclaim, Chugach claims that Jersey Shore (i) failed to undertake, proceed with and complete the construction for which Jersey Shore was contractually obligated and (ii) wrongfully suspended its work and vacated its construction projects at DAFB on July 14, 2004, leaving Chugach to complete the work. The pleadings are closed, subject to motions, if any, to amend the pleadings which must be filed by June 30, 2005. The parties exchanged initial disclosures on April 22, 2005 and are entitled to engage in discovery. Pursuant to ¶ 7 of the Rule 16 Scheduling Order, Defendants must seek leave of court to file this motion more than 10 days from January 30, 2006, the dispositive motions deadline. Defendants respectfully submit that their dispositive motion is warranted and important at this time for the reasons set forth in the accompanying Brief in Support of Motion of Chugach Support Services, Inc. And Safeco Insurance Company of America For Leave to File Accompanying Motion To Dismiss in Part, or in the Alternative For Partial Summary Judgment. Pursuant to Local Rule 7.1.1, undersigned counsel Harvey A. Levin represents to the Court that he spoke with James D. Heisman, counsel for Jersey Shore. Mr. Levin is authorized to represent 2

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that Jersey Shore neither consents to nor opposes this motion for leave to file the accompanying dispositive motion.

Dated: May 3, 2005 Wilmington, Delaware

THE LYONS LAW FIRM

_/s/ Edmund Daniel Lyons_____ Edmund Daniel Lyons (No. 0881) 1526 Gilpin Avenue P.O. Box 579 Wilmington, DE 19806 Phone (302) 777-5698 Fax (302) 777-5051 Email: [email protected] -andBIRCH, HORTON, BITTNER AND CHEROT

_/s/ Harvey A. Levin___ Harvey A. Levin 1155 Connecticut Avenue, N.W., Suite 1200 Washington, DC 20036 Phone (202) 659-5800 Fax (202) 659-1027 Email: [email protected]

Counsel for Chugach Support Services, Inc. and Safeco Insurance Company of America

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CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing Motion and accompanying Brief were served by first class mail, postage prepaid this 3d day of May 2005 on:

James D. Heisman, Esquire M. Edward Danberg, Esquire Connolly Bove Lodge & Hutz LLP The Nemours Building 1007 North Orange Street P.O. Box 2207 Wilmington, DE 19899

_/s/ Harvey A. Levin___

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