Free Answer to Counterclaim - District Court of Delaware - Delaware

Case 1:08-cv-00017-SLR-LPS

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Filed 03/24/2008

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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 LGS GROUP, LLC Plaintiff, vs. ODYSSEY INTERNATIONAL, INC., et al. Defendant(s). Case No. 08-017

ANSWER TO DEFENDANT ODYSSEY INTERNATION, INC.'S COUNTERCLAIM Now comes the United States of America, for the use and benefit of the Plaintiff LGS Group, LLC (hereinafter "LGS"), by and through counsel Shawn C. Whittaker and William W. Erhart, and submits this Answer to Defendant Odyssey International, Inc.'s (hereinafter "Odyssey") Counterclaim, and in support thereof

states the following: 1. LGS admits the allegations contained paragraph 1 of

the Counterclaim. 2. LGS admits the allegations contained paragraph 2 of

the Counterclaim. FACTS RELEVANT TO ALL COUNTS OF THE COUNTERCLAIM 3. LGS admits the allegations contained paragraph 3 of

the Counterclaim.

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4.

LGS states that the document speaks for itself and

therefore paragraph 4 of the Counterclaim does not require a response. 5. LGS denies the allegations contained paragraph 5 of

the Counterclaim. 6. LGS states that the document speaks for itself and

therefore paragraph 6 of the Counterclaim does not require a response. 7. LGS denies the allegations contained paragraph 7 of

the Counterclaim. 8. LGS denies the allegations contained paragraph 8 of

the Counterclaim. 9. LGS states that the document speaks for itself and

therefore paragraph 9 of the Counterclaim does not require a response. 10. LGS denies the allegations contained paragraph 10 of

the Counterclaim. 11. LGS states that the document speaks for itself and

therefore paragraph 11 of the Counterclaim does not require a response. 12. LGS denies the allegations contained paragraph 12 of

the Counterclaim.

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13.

LGS denies the allegations contained paragraph 13 of

the Counterclaim. 14. LGS denies the allegations contained paragraph 14 of

the Counterclaim. 15. LGS denies the allegations contained paragraph 15 of

the Counterclaim. 16. LGS denies the allegations contained paragraph 16 of

the Counterclaim. 17. LGS states that the document speaks for itself and

therefore paragraph 17 of the Counterclaim does not require a response. 18. LGS denies the allegations contained paragraph 18 of

the Counterclaim. 19. LGS denies the allegations contained paragraph 19 of

the Counterclaim. 20. LGS states that the document speaks for itself and

therefore paragraph 20 of the Counterclaim does not require a response. 21. LGS denies the allegations contained paragraph 21 of

the Counterclaim. 22. LGS denies the allegations contained paragraph 22 of

the Counterclaim.

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23.

LGS denies the allegations contained paragraph 23 of

the Counterclaim. 24. LGS denies the allegations contained paragraph 24 of

the Counterclaim. 25. LGS denies the allegations contained paragraph 25 of

the Counterclaim. 26. LGS denies the allegations contained paragraph 26 of

the Counterclaim. 27. LGS denies the allegations contained paragraph 27 of

the Counterclaim. 28. LGS states that the document speaks for itself and

therefore paragraph 28 of the Counterclaim does not require a response. FIRST CAUSE OF ACTION ­ BREACH OF CONTRACT 29. response. 30. LGS admits the allegations contained paragraph 30 of Paragraph 29 of the Counterclaim does not require a

the Counterclaim. 31. LGS states that the document speaks for itself and

therefore paragraph 31 of the Counterclaim does not require a response.

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32.

LGS states that the document speaks for itself and

therefore paragraph 32 of the Counterclaim does not require a response. 33. LGS denies the allegations contained paragraph 33 of

the Counterclaim. 34. LGS denies the allegations contained paragraph 34 of

the Counterclaim. 35. LGS denies the allegations contained paragraph 35 of

the Counterclaim. 37. LGS states that the document speaks for itself and

therefore paragraph 37 of the Counterclaim does not require a response. 38. LGS denies the allegations contained paragraph 38 of

the Counterclaim. 39. LGS denies the allegations contained paragraph 39 of

the Counterclaim. 40. LGS states that the document speaks for itself and

therefore paragraph 40 of the Counterclaim does not require a response. 41. LGS denies the allegations contained paragraph 41 of

the Counterclaim. 42. The allegation contained in paragraph 42 is merely a

conclusion of law to which no responsive pleading by LGS.

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43.

LGS denies the allegations contained paragraph 43 of

the Counterclaim. ADDITIONAL DEFENSES LGS hereby give notice that they may rely on the following defenses in opposing the Odyssey's Counterclaim. LGS does not

hereby assume any burden of proof that would otherwise rest on Odyssey. LGS, by listing such defenses, also does not concede,

explicitly or implicitly, that any or all of the listed defenses are affirmative defenses under the State of Delaware or other applicable law. LGS, by listing its defenses (here or elsewhere

in the Answer), also does not limit its ability to present any defense that LGS does not need to identify by the Answer or otherwise. 1. Odyssey is barred from recovery, in whole or in part,

by the defense of assumption of risk. 2. Odyssey is barred from recovery, in whole or in part,

by Odyssey's own fraud. 3. Odyssey's Counterclaim fails to state a cause of

action on which relief can be granted. 4. Odyssey's Counterclaim is barred, in whole or in

part, by release, waiver, and/or estoppel.

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5.

Odyssey is barred from recovery, in whole or in part,

to the extent that Odyssey has not performed its obligations under the subcontract. 6. Odyssey's Counterclaim is barred, in whole or in

part, by the defense of prior breach. 7. hands. 8. Odyssey is barred from recovery because Odyssey Odyssey is barred because of the doctrine of unclean

failed to mitigate damages. 9. that may LGS reserves the right to assert any other defenses be available to it and/or which are subsequently

discovered. WHEREFORE, having fully answered the Counterclaim, LGS

demands that the same be dismissed, with prejudice, or denied and LGS be awarded its costs of suit incurred herein (including, but not limited to, attorneys' fees), together with such other relief as may be just and proper. Respectfully submitted, /S/ William W. Erhart William W. Erhart (ID # 2116) 800 King Street Suite 302 Wilmington, DE 19801 (302) 651-0113

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/S/ Shawn C. Whittaker Shawn C. Whittaker pro hac vice 1010 Rockville Pike, Suite 607 Rockville, MD 20852 (301)838-4502 Attorneys for LGS Group, LLC