Free Motion to Summon Third Person - District Court of Federal Claims - federal

Case 1:03-cv-00623-LSM

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS U.S. FINANCIAL CORP. Plaintiff, v. THE UNITED STATES, Defendant and Third Party Plaintiff, v. THE W.I.N.N. GROUP, INC., Third Party Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

No. 03-623C (Senior Judge Margolis)

DEFENDANT'S THIRD PARTY COMPLAINT Defendant and third-party plaintiff, the United States, 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 Rules 14(a)(2) and 14(e) of the Rules of the United States Court of Federal Claims ("RCFC"). NATURE OF THE ACTION 2. This claim is for the recovery of monies paid by the

United States to the W.I.N.N. Group, Inc. ("WINN"), in respect of the transactions or matters which constitute the subject matter of the pending suit against the United States filed by plaintiff U.S. Financial Corp. See Exhibit A.

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FACTUAL BACKGROUND 3. On September 29, 1997, the United States Air Force ("Air

Force") entered into contract no. F49642-97-C-0030 ("the contract") with WINN. The contract was for the replacement of an

electrical distribution system and main substation. 4. On February 17, 1999, WINN assigned all proceeds from

the contract to U.S. Financial Corp. ("U.S. Financial"). 5. On March 8, 1999, the Air Force issued Modification

PO0001 to the contract, naming U.S. Financial as the payee, after the assignment had been found to be properly executed and legally sufficient. 6. On April 24, 2002, WINN submitted Invoice No. 1015.01R

to the Air Force for the amount of $42,323.66. 7. On July 3, 2002, the Air Force erroneously issued

payment in the amount of $42,686.53 to WINN. 8. On July 9, 2002, WINN submitted Invoice No. 1015.11 to

the Air Force for the amount of $15,000. 9. On September 4, 2002, an Air Force contracting officer

signed a modification to the contract purporting to change the payee to allow proceeds to go to WINN and authorizing a payment of $10,000 to close out the contract. invalid. 10. On September 30, 2003, the Air Force erroneously issued This modification was

payment in the amount of $10,000 to WINN.

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11.

On March 20, 2003, U.S. Financial filed suit in this

Court seeking judgment against the United States in the amount of $52,686.53, together with interest, costs, and attorney's fees. FIRST CAUSE OF ACTION 12. 13. Paragraphs 1-9 are incorporated by reference. WINN assigned all of its rights to receive any monies

under the contract to U.S. Financial. 14. Payments pursuant to invoice nos. 1015.01R and 1015.011

were erroneously made to WINN instead of to U.S. Financial. Thus, WINN is liable to the United States for whatever amount U.S. Financial may recover upon its claim against the United States. WHEREFORE, the United States respectfully requests that the Court enter judgment in its favor against WINN for whatever amount the Court may determine is due plaintiff from the United States, plus costs and interest as provided by law. Respectfully submitted, PETER D. KEISLER Assistant Attorney General DAVID M. COHEN Director /s Mark A. Melnick MARK A. MELNICK Assistant Director

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/s Margaret E. McGhee MARGARET E. McGHEE Attorney Commercial Litigation Branch Civil Division Department of Justice 1100 L Street, N.W. Attn: Classification Unit 8th Floor Washington, DC 20530 Tel. (202) 305-3634 Fax. (202) 514-8624 September 2, 2003 Attorneys for Defendant

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CERTIFICATE OF FILING I hereby certify that on September 2, 2003, 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 Margaret E. McGhee