Free Complaint - District Court of Delaware - Delaware

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

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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. And SAFECO INSURANCE COMPANY OF AMERICA Defendants. Case No.

COMPLAINT 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 E. Erhart, and submits this Complaint against the Defendants Odyssey

International, Inc. (hereinafter "Odyssey"), and SAFECO Insurance Company of America (hereinafter "Safeco") and in support thereof states the following: PARTIES AND JURISDICTION 1. Plaintiff LGS is a limited liability company organized

pursuant to the laws of the state of Delaware and is located at 80 Fisher Rd., Unit 49, Cumberland, Rhode Island 02864.

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2.

Defendant Odyssey is a corporation organized pursuant to

the laws of the State of Utah and is located at 560 W. 1700 S., Clearfield, Utah 84015. 3. Defendant Safeco is a surety company organized

pursuant to the laws of the state of Washington and is located at Safeco Plaza, Seattle, Washington 98185. 4. This Court has jurisdiction of this action pursuant to

40 U.S.C. §3133. FACTS RELEVANT TO ALL COUNTS 5. Plaintiff LGS incorporates the preceding allegations as

if fully set forth herein and further states the following: 6. Prior to December 4, 2006, Defendant Odyssey entered

into a written contract, W912BU-06-C0008, with the United States of America, acting by and through the United States Army Corps of Engineers, Philadelphia District, for improvements and

renovations for the C-17 Flight Simulator located at Dover Air Force Base, Dover, Delaware. "Project"). 7. Defendant Odyssey together with Defendant Safeco had the United States of America, (hereinafter referred to as the

duly executed and delivered to

acting by and through the United States Army Corps of Engineers, a payment bond, bond number 6431948, for the protection of all persons supplying labor and material in the prosecution of the

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work provided for in said contract.

See bond attached as Exhibit

A and incorporated herein by reference. 8. On or about December 4, 2006, Plaintiff LGS contracted

with Defendant Odyssey to furnish drywall, painting, metal studs, and EIFS work associated with the Project. See a copy of the

subcontractor agreement attached as Exhibit B and incorporated therein. 9. The total amount of the subcontract was $431,055.00.

See Exhibit B. 10. There were approved change orders on the Project in

the amount of $12,621.69. 11. The total amount of the Project with change orders was

$443,676.69. 12. Plaintiff LGS completed its work in accordance with

the subcontract agreement. 13. $14,110.00 Defendant Odyssey made one payment in the amount of to the Plaintiff LGS, leaving a balance due of

$429,566.69. 14. Pursuant to the terms of the subcontract, all payments See

had to be made directly to Plaintiff LGS or by joint check. Exhibit B at § 3.7.

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15.

Defendant

Odyssey

has

failed

to

pay

funds

due

and

owing to Plaintiff LGS for its work on the Project pursuant to the terms of the subcontract. 16. The remaining amount owed for work completed under the Despite demand by Plaintiff LGS for

subcontract is $429,566.69.

payment, Defendant Odyssey has failed and refused to pay the balance under the subcontract. 17. The date on which Plaintiff LGS last supplied labor to

the Project was October 15, 2007. 18. On December 14, 2007, Plaintiff LGS, through counsel,

served notice of its claim on Defendant Odyssey and Defendant Safeco. Exhibit C. 19. On December 19, 2007, Defendant Odyssey received notice See green card attached as Exhibit D. See notice with certified mail receipts attached as

of Plaintiff LGS' claim. 20.

On December 19, 2007, Defendant Safeco received notice See green card attached as Exhibit E.

of Plaintiff LGS' claim. 21.

Despite notice and demand, the Defendants have failed to

remit the balance due. COUNT I BREACH OF CONTRACT AGAINST DEFENDANT ODYSSEY 22. Plaintiff LGS incorporates the preceding allegations as

if fully set forth herein and further states the following:

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23.

Plaintiff LGS and Defendant Odyssey entered into the

subcontract, a valid, binding, and enforceable written contract. 24. Plaintiff LGS performed in accordance with the terms of

the subcontract. 25. By failing to remit the balance due of $429,566.69,

Defendant Odyssey has breached its subcontract with Plaintiff LGS. 26. Plaintiff LGS has suffered damages in the amount of

$429,566.69 due to Defendant Odyssey's breach of the subcontract. 27. Pursuant to § 14.4 of the subcontract, the prevailing

party shall be entitled to recover its attorneys' fees, costs, and expenses. WHEREFORE, the Plaintiff LGS Group, LLC prays for judgment against Defendant Odyssey International, Inc. for: (a) damages; (b) (c) (d) (e) Pre-judgment interest; Attorneys' fees and expenses; Costs of this action; and Any other remedy this Court deems just and proper. An amount of at least $429,566.69 as compensatory

COUNT II QUASI-CONTRACT/UNJUST ENRICHMENT AGAINST DEFENDANT ODYSSEY 28. Plaintiff LGS incorporates the preceding allegations as

if fully set forth herein and further states the following:

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29.

Plaintiff

LGS

furnished

drywall,

painting,

metal

studs, and EIFS work to Defendant Odyssey for Defendant Odyssey to complete its work for the Project. 30. Even if no express contract is found as to some or all

of the aforesaid labor and equipment furnished by Plaintiff LGS to Defendant Odyssey, said work was furnished at the request of Defendant Odyssey and conferred a benefit on Defendant Odyssey. 31. Defendant Odyssey's requests implied a promise to

compensate Plaintiff LGS for the labor and equipment furnished by Plaintiff LGS. 32. Defendant Odyssey has, and had at all times pertinent

hereto, an appreciation and/or knowledge of the benefit conferred by Plaintiff LGS and accepted or retained the benefit of Plaintiff LGS's work without paying the reasonable value of said work. 33. Defendant Odyssey knew that Plaintiff LGS expected to be

compensated for its labor. 34. The reasonable value of the labor and equipment

furnished by Plaintiff LGS to Defendant Odyssey for which it has not been paid is $429,566.69. 35. Despite demand by Plaintiff LGS, Defendant Odyssey has to

failed and refused to pay the balance due of $429,566.69

compensate Plaintiff LGS for the value of the labor and equipment furnished as aforesaid; Plaintiff LGS is damaged in said amount.

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WHEREFORE,

the

Plaintiff

LGS

prays

for

judgment

against

Defendant Odyssey for: (a) damages; (b) (c) (d) Pre-judgment interest; Costs of this action; and Any other remedy this Court deems just and proper. An amount of at least $429,566.69 as compensatory

COUNT III MILLER ACT CLAIM AGAINST DEFENDANT SAFECO AND DEFENDANT ODYSSEY 36. Plaintiff LGS incorporates the preceding allegations as

if fully set forth herein and further states the following: 37. Defendant Safeco failed to remit payment to Plaintiff

LGS in the amount of $429,566.69. 38. Plaintiff LGS is bringing this action against Defendant

Safeco less than one year of its last performance to collect monies owing from Defendant Safeco to Plaintiff LGS. 39. Pursuant to § 14.4 of the subcontract, the prevailing

party shall be entitled to recover its attorneys' fees, costs, and expenses. WHEREFORE, the Plaintiff LGS Group, LLC prays for judgment against Defendant for: Defendant Odyssey, Safeco Insurance Inc., Company of America and

Internatioal,

jointlly

and

severally,

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(a) damages; (b) (c) (d) (e)

An

amount

of

at

least

$429,566.69

as

compensatory

Attorneys' fees and expenses; Pre-judgment interest; Costs of this action; and Any other remedy this Court deems just and proper.

Date: January 9, 2008 Respectfully submitted, /s/William W. Erhart William W. Erhart (ID # 2116) 800 King Street Suite 302 Wilmington, DE 19801 (302) 651-0113 Attorneys for LGS Group, LLC Of Counsel Shawn C. Whittaker 1010 Rockville Pike, Suite 607 Rockville, MD 20852 (301)838-4502

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