Free Third Party Complaint - District Court of Federal Claims - federal

Case 1:07-cv-00708-SGB

Document 15

Filed 02/15/2008

Page 1 of 5

IN THE UNITED STATES COURT OF FEDERAL CLAIMS AEROFUND FINANCIAL, INC., Plaintiff, v. THE UNITED STATES, Defendant and Third-Party Plaintiff, v. TOTAL CONTROLS, INC., Third-Party Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

No. 07-708C (Judge Braden)

DEFENDANT'S THIRD-PARTY COMPLAINT Defendant and third-party plaintiff alleges as follows: JURISDICTION 1. This Court possesses subject matter jurisdiction to entertain this third-party

complaint pursuant to 41 U.S.C. § 114. This claim is asserted pursuant to Rule 14(a) of the Rules of the United States Court of Federal Claims ("RCFC"). NATURE OF THE ACTION 2. This contingent claim is for the recovery of money paid by the United States to

Total Controls, Inc. ("TCI") in respect of the transaction or matter which constitutes the subject matter of the pending suit against the United States. FACTUAL BACKGROUND 3. On September 15, 2006, the United States Department of the Navy, Fleet and

Industrial Supply Center San Diego ("Navy") awarded contract N00244-06-P-2877 to TCI

Case 1:07-cv-00708-SGB

Document 15

Filed 02/15/2008

Page 2 of 5

("Contract"). The Contract is attached as Exhibit A to plaintiff's complaint. The contract was a firm, fixed price contract for security camera equipment and installation. The total award amount was $127,865.95. 4. ("Aerofund"). 5. On November 2, 2006, the contracting officer executed Modification P00001 TCI assigned all proceeds from the contract to Aerofund Financial, Inc.

("Amendment") to the contract, naming Aerofund as the payee, after the assignment had been found to be properly executed and legally sufficient. The Amendment is attached as Exhibit B to plaintiff's complaint. 6. Following performance of the contract, TCI submitted four invoices to the Navy

for the corresponding amounts: Invoice 2198A Invoice 2198B Invoice 2198C Invoice 2198D $50,850.40 $18,485.85 $ 7,088.60 $51,441.10

The invoices are attached as Exhibit C to plaintiff's complaint. 7. On January 4, 2007, the Navy by and through the Defense Finance Administration

Service ("DFAS") erroneously issued payment for Invoice 2198A in the amount of $51,077.79 (to include interest) to TCI instead of Aerofund. 8. On December 20, 2006, the Navy by and through DFAS erroneously issued

payment for Invoice 2198B in the amount of $18,524.04 (to include interest) to TCI instead of Aerofund. 2

Case 1:07-cv-00708-SGB

Document 15

Filed 02/15/2008

Page 3 of 5

9.

On December 22, 2006, the Navy by and through DFAS properly issued payment

for Invoice 2198C in the amount of $7,106.71 (to include interest) to Aerofund. 10. On December 4, 2006, the Navy by and through DFAS erroneously issued

payment for Invoice 2198D in the amount of $51,441.10 to TCI instead of Aerofund. 11. On March 19, 2007, DFAS successfully collected back from TCI the funds that

were erroneously paid for Invoice 2198B, $18,524.23, and on May 11, 2007, DFAS paid $18,960.04 to Aerofund. 12. On October 2, 2007, Aerofund filed suit in this Court seeking judgment against

the United States in the amount of $101,817.31, together with interest, costs and attorney's fees. FIRST CAUSE OF ACTION 13. 14. Paragraphs 1-12 are incorporated by reference. In accordance with the Contract and Amendment, TCI assigned all of its rights to

receive any monies under the Contract to Aerofund, and the United States was obligated to remit payment for the invoices to Aerofund. 15. The United States is entitled to the repayment of $102,518.89, the outstanding

amounts erroneously paid to TCI pursuant to invoices 2198A and 2198D, or alternatively, for whatever amount Aerofund may recover upon its claim against the United States. WHEREFORE, the United States respectfully requests that the Court enter judgment in its favor against TCI for $102,518.89, or alternatively, for whatever amount the Court may determine is due plaintiff from the United States, plus costs and interest as provided by law.

3

Case 1:07-cv-00708-SGB

Document 15

Filed 02/15/2008

Page 4 of 5

Respectfully submitted, JEFFREY S. BUCHOLTZ Acting Assistant Attorney General JEANNE E. DAVIDSON Director s/Mark A. Melnick MARK A. MELNICK Assistant Director s/ Dawn E. Goodman DAWN E. GOODMAN Trial Attorney Commercial Litigation Branch Civil Division U.S. Department of Justice Attn: Classification Unit, 8th Floor 1100 L Street, N.W. Washington, DC 20530 Tel: (202) 616-1067 Fax: (202) 514-8624 February 15, 2008 Attorneys for Defendant

4

Case 1:07-cv-00708-SGB

Document 15

Filed 02/15/2008

Page 5 of 5

CERTIFICATE OF FILING I hereby certify that on this 15th day of February, 2008, a copy of the foregoing "DEFENDANT'S THIRD-PARTY COMPLAINT" was filed electronically. I understand that notice of this filing will be sent to all parties by operation of the Court's electronic filing system. Parties may access this filing through the Court's system.

s/ Dawn E. Goodman DAWN E. GOODMAN