Free Answer to Complaint - District Court of Delaware - Delaware

Case 1:05-cv-00800-GMS

Document 7

Filed 01/31/2006

Page 1 of 7

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE UNITED STATES OF AMERICA for the Use and Benefit of CASSIDY PAINTING, INC. Plaintiff, v. CHUGACH SUPPORT SERVICES, INC., et al. Defendants. : : : : : : : C.A. No. 05-800(GMS) : : : : :

ANSWER TO COMPLAINT AND ANSWER TO CROSS-CLAIM OF DEFENDANT MPI MECHANICAL, INC. Defendant MPI Mechanical ("MPI"), by undersigned counsel, as and for its answer, affirmative defenses, and answer to crossclaim, state as follows: 1. MPI admits that the United States of America for the use

and benefit of Cassidy Painting, Inc. ("Cassidy") is a nominal plaintiff, denies that the United States of America for the use and benefit of Cassidy is a proper plaintiff against MPI, admits that Cassidy is a plaintiff against MPI, admits that Cassidy is a plaintiff, and admits the balance of this averment. 2. 3. 4. 5. Admitted. Admitted. Admitted. In response to Paragraph 5 of the Complaint, MPI admits

that the Miller Act, 40 U.S.C. §3133 et seq., provides for federal

Case 1:05-cv-00800-GMS

Document 7

Filed 01/31/2006

Page 2 of 7

court jurisdiction in certain circumstances set forth therein, admits that the Complaint purports to plead a claim under the Miller Act, denies that the Complaint pleads a Miller Act claim against MPI and denies the remainder of Paragraph 5. 6. 7. 8. 9. Denied. Admitted. Admitted. MPI is without sufficient information to affirm or deny

the averments of this Paragraph. 10. MPI is without sufficient information to affirm or deny

the averments of this Paragraph. 11. 12. 13. Admitted. Admitted. Admitted that Cassidy was requested by the Government to By way of further response, Cassidy

install a Neogard System.

initially accepted such proposal within the context of the scope of the Intermediate Subcontract, and agreed to install the Neogard System at no additional cost. themselves. 14. 15. The attached documents speak for

The balance of this averment is denied.

Denied. Denied that Cassidy completed all of the work under the Admitted that MPI has not paid Cassidy

Intermediate Subcontract. the amount demanded. 16. In response

to

Paragraph

16,

MPI

realleges

and

incorporates herein by reference to Paragraphs 1-15 above.

Case 1:05-cv-00800-GMS

Document 7

Filed 01/31/2006

Page 3 of 7

17.

MPI is without sufficient information to affirm or deny

the averments of this Paragraph. 18. MPI is without sufficient information to affirm or deny

the averments of this Paragraph. 19. In response to Paragraph 19, MPI realleges and

incorporates herein by reference to Paragraphs 1-18 above. 20. MPI is without sufficient information to affirm or deny

the averments of this Paragraph. 21. MPI is without sufficient information to affirm or deny

the averments of this Paragraph. 22. MPI is without sufficient information to affirm or deny

the averments of this Paragraph. 23. MPI is without sufficient information to affirm or deny

the averments of this Paragraph. 24. MPI is without sufficient information to affirm or deny

the averments of this Paragraph. 25. MPI is without sufficient information to affirm or deny

the averments of this Paragraph. 26. MPI is without sufficient information to affirm or deny

the averments of this Paragraph. 27. MPI is without sufficient information to affirm or deny

the averments of this Paragraph. 28. In response to Paragraph 28 of the Complaint, MPI

realleges and incorporates herein by reference to Paragraphs 1-27 above.

Case 1:05-cv-00800-GMS

Document 7

Filed 01/31/2006

Page 4 of 7

29.

Denied

that

Cassidy

performed

all

work

under

the

Intermediate Subcontract in a professional and workmanlike manner. The balance of this averment is admitted 30. 31. 32. Admitted. Denied. In response to Paragraph 32 of the Complaint, MPI

realleges and incorporates herein by reference Paragraphs 1-31 above. 33. Paragraph 33 of the Complaint states a legal conclusion

to which no responsive pleading is required. 34. Denied. FIRST AFFIRMATIVE DEFENSE The Complaint fails to state a claim upon which relief can be granted. SECOND AFFIRMATIVE DEFENSE The Complaint is barred by waive, estoppel and/or accord and satisfaction. THIRD AFFIRMATIVE DEFENSE The Complaint is barred by Cassidy's own fault, default, breach of warranty, breach of contract, negligence and/or other acts or omissions. FOURTH AFFIRMATIVE DEFENSE Venue is improper. FIFTH AFFIRMATIVE DEFENSE Cassidy has failed to mitigate damages.

Case 1:05-cv-00800-GMS

Document 7

Filed 01/31/2006

Page 5 of 7

SIXTH AFFIRMATIVE DEFENSE Cassidy failed to pursue and exhaust required contract and administrative remedies before filing suit. SEVENTH AFFIRMATIVE DEFENSE Cassidy has no right of action against MPI under 40 U.S.C. § 270 et seq. or otherwise, and Cassidy may not sue MPI in an action as United States of America for the Use and Benefit of Cassidy Painting, Inc. EIGHTH AFFIRMATIVE DEFENSE MPI is entitled to a set-off of damages claimed by Cassidy for expenses incurred by MPI to complete work Cassidy was required to perform under the Intermediate Subcontract and which Cassidy failed to perform. WHEREFORE, MPI prays that the Court dismiss the Complaint with prejudice, award MPI its costs, expenses, attorney's fees and grant such other relief as is appropriate. ANSWER TO CROSS-CLAIM 1. This averment states a legal conclusion to which no

responsive pleading is required. 2. 3. Admitted. MPI is without sufficient information to affirm or deny

the averments of this Paragraph. 4. 5. 6. Admitted. Admitted. Admitted.

Case 1:05-cv-00800-GMS

Document 7

Filed 01/31/2006

Page 6 of 7

7. 8. 9. 10. 11. 12. 13.

Admitted. Admitted. Admitted. Admitted. Denied. The terms of the MSA speak for themselves. The terms of the MSA speak for themselves. FIRST AFFIRMATIVE DEFENSE

The cross-claim fails to state a claim upon which relief can be granted. WHEREFORE, MPI prays that Chugach take nothing under their cross-claim and that the cross-claim be dismissed.

/s/ Raymond M. Radulski Raymond M. Radulski, Esquire Delaware Bar No. 332 Legal Arts Building, Suite 301 1225 North King Street Wilmington, DE 19801 (302) 658-9388 Attorney for Defendant, MPI Mechanical, Inc. Dated: January 31, 2006

Case 1:05-cv-00800-GMS

Document 7

Filed 01/31/2006

Page 7 of 7

CERTIFICATE OF SERVICE This will certify that copies of the foregoing Answer to Complaint and Answer to Cross-Claim of Defendant MPI Mechanical, Inc. were served this day by electronic filing and by first-class mail, postage prepaid, upon the following:

Scott G. Wilcox, Esquire Connolly Bove Lodge & Hutz, LLP 1007 North Orange Street P.O. Box 2207 Wilmington, DE 19899 Harvey A. Levin, Esquire 1155 Connecticut Ave., N.W., Suite 1200 Washington, DE 20036 Edmund Daniel Lyons, Esquire 1526 Gilpin Avenue P.O. Box 579 Wilmington, DE 19806

/s/ Raymond M. Radulski Raymond M. Radulski Attorney for Defendant, MPI Mechanical, Inc.

Dated: January 31, 2006