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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
UNITED STATES OF AMERICA for the )
use of RAGAN MECHANICAL, INC., )
)
Plaintiffs, )
)
v. ) NO.:
)
APPLIED ENERGY MANAGEMENT, INC., )
and WESTCHESTER FIRE INSURANCE )
COMPANY, )
)
Defendants. )
COMPLAINT
NOW COMES Plaintiff, UNITED STATES OF AMERICA for the use of RAGAN
MECHANICAL, INC. (APlaintiff@), by and through counsel, and for its Complaint against the
Defendants states:
1. This action arises under 40 U.S.C. ''3131 - 3134, commonly known as the
AMiller Act.@
2. Defendant, APPLIED ENERGY MANAGEMENT, INC. (AAEM@), is a
Massachusetts corporation authorized to do business in Tennessee that maintains its principal office
at 16810 Kenton Drive, Suite 240, Huntersville, North Carolina 28078. A copy of the summons and
complaint may be served upon AEM via its registered agent for service of process, CT Corporation,
800 S. Gay Street, Ste 2021, Knoxville, Tennessee 37929.
3. Defendant, WESTCHESTER FIRE INSURANCE COMPANY
(AWestchesterA), a Pennsylvania corporation, maintains its principal place of business at 436 Walnut
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Street, Philadelphia, Pennsylvania. Westchester is, upon information and belief, in the business of,
inter alia, issuing surety bonds on public projects. Pursuant to Tenn. Code. Ann. § 56-2-504,
Westchester can be served with process by forwarding the summons and complaint to its statutory
agent, the Tennessee Commissioner of Commerce and Insurance, 500 James Robertson Parkway, 5th
Floor, Nashville, Tennessee 37243.
4. Upon information and belief, AEM was at all relevant times the contractor
under a certain Agreement with Johnson Controls, Inc., the General Contractor for a project
commonly known as the AMelton Valley Steam Plant@ for the construction of a steam plant at Oak
Ridge National Laboratory (“ORNL”) located in Oak Ridge, Tennessee.
5. Westchester furnished a performance and payment bond to the United States
(the “Bond”) and is now a surety under a contract between Johnson Controls, Inc., and the United
States. A copy of said Bond is attached to this Agreement, marked Exhibit AA@ and made a part
hereof.
6. On or about November 1, 2009, Plaintiff and AEM entered into a Subcontract
providing that Plaintiff would provide supervision, labor, material and equipment for the
construction of the Melton Valley Steam Plant ORNL. A copy of said Subcontract is attached
hereto, marked Exhibit AB@ and made a part hereof. (ASubcontract@)
7. On the dates shown herein, Plaintiff and AEM, in accordance with the terms
of the Subcontract, modified the Subcontract between themselves as follows:
a. By Contract dated December 30, 2009, Plaintiff agreed to perform additional service and provide additional material in exchange for an additional payment of $32,237.00 by AEM.
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b. By Contract dated December 18, 2009, Plaintiff agreed to perform
additional service and provide additional material in exchange for additional payment of $203,888.00.
c. By Contract dated January 22, 2010, Plaintiff agreed to provide
additional service and provide additional material in exchange for additional payment of $12,176.00.
d. By Contract dated May 11, 2010, Plaintiff agreed to provide additional
service and provide additional material in exchange for additional payment of $6,583.74.
e. By Contract dated May 11, 2010, Plaintiff agreed with AEM to
provide additional service and material in exchange for the payment by AEM in the amount of $69,856.90.
f. By Contract dated May 11, 2010, Plaintiff agreed with AEM to
provide additional service and material in exchange for the payment by AEM in the amount of $4,974.00.
g. By Contract dated May 11, 2010, Plaintiff agreed to provide additional
service and material in exchange for the payment by AEM in the amount of $10,725.00.
Copies of the written change orders set forth above are attached here to as Collective Exhibit "C".
8. On or about the date of each of the above-mentioned amendments to the
Subcontract with AEM, Plaintiff began the additional work to be completed and finished in
accordance with plans and specifications and has performed and completed all conditions of the
Subcontract as modified by the amendments referenced in Paragraph 7 hereof.
9. After application of all credits, AEM now owes Plaintiff herein the sum of
$287,624.09, which amount AEM refuses to pay in violation of its contractual obligations despite
Plaintiff=s demand for payment.
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10. The Subcontract between Plaintiff and AEM provides in pertinent part:
If either Party is required to commence legal proceedings to enforce any provisions of this Agreement or to protect its interests in any manner arising under this Agreement, the Party prevailing in such proceedings shall be entitled to reimbursement for all reasonable costs and expenses, including attorney=s fees, included in such proceeding. Any dispute concerning the amount of such fees, costs, and expenses to which the prevailing Party is entitled shall be independent of the dispute that gave rise to the entitlement and its resolution shall be subject to the Disputes clause of this Agreement.
11. Plaintiff has incurred attorney fees in these proceedings.
12. More than ninety (90) days have elapsed since Plaintiff last supplied labor and
materials. Less than one (1) year has elapsed since the last materials and/or labor was supplied.
13. All conditions precedent for bringing this action have been performed or
occurred. A copy of the Notice to Johnson Controls, Inc., General Contractor and Westchester, the
bond company, as required by statute is attached hereto, marked Exhibit “D”, and made a part hereof.
WHEREFORE, the UNITED STATES OF AMERICA on behalf and to the use of RAGAN
MECHANICAL, INC., requests judgment against Defendants, APPLIED ENERGY
MANAGEMENT, INC., and WESTCHESTER FIRE INSURANCE COMPANY and in favor of
RAGAN MECHANICAL, INC., in the amount of $287,624.09, plus pre-judgment interest as
provided by law plus reasonable attorney fees incurred and all taxable costs of this action.
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UNITED STATES OF AMERICA for the use of RAGAN MECHANICAL, INC., Plaintiffs,
s/Meghan H. Morgan
P. Edward Pratt, Esq. (BPR #12758) Meghan H. Morgan, Esq. (BPR # 024619) Baker, Donelson, Bearman, et al. 265 Brookview Centre Way Suite 600 Knoxville, Tennessee 37919 (865) 549-7000 [email protected] [email protected]
Of Counsel: Philip E. Koenig, (IL BPR #149806) Attorney at Law 1515 - 4th Avenue Suite 201 Rock Island, Illinois 61201 (309) 788-0743
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JS44 (Rev. 11/04)
CIVIL COVER SHEET The JS-44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON THE REVERSE OF THE FORM.)
I. (a) PLAINTIFFS DEFENDANTS United States of America for the use of Ragan Mechanical, Inc.
Applied Energy Management, Inc. and Westchester Fire Insurance Company
(b) COUNTY OF RESIDENCE OF FIRST LISTED PLAINTIFF COUNTY OF RESIDENCE OF FIRST LISTED DEFENDANT North Carolina (EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)
NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED
(c) ATTORNEYS (FIRM NAME, ADDRESS, AND TELEPHONE NUMBER) ATTORNEYS (IF KNOWN)
P. Edward Pratt/Meghan Morgan Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C. 265 Brookview Centre Way Suite 600 Knoxville, TN 37919; (865) 549-7000
Philip Koenig 1515 4
th Avenue, Suite 201
Rock Island, IL 61201 (309) 788-0743
Terrill L. Adkins Trammell, Adkins & Ward, P.C. 128 Northshore Dr., Suite 201 Knoxville, TN 37919
III. CITIZENSHIP OF PRINCIPAL PARTIES (PLACE AN “X” IN ONE BOX FOR PLAINTIFF
(For Diversity Cases Only) AND ONE BOX FOR DEFENDANT)
PTF DEF
PTF DEF
Citizens of This State 1 1 Incorporated or Principal Place Of Business in This State
4 4
Citizens of Another State 2 2 Incorporated and Principal Place Of Business in Another State
5 5
II. BASIS OF JURISDICTION (PLACE AN x IN ONE BOX ONLY)
X 1 U.S. Government 3 Federal Question
Plaintiff (U.S. Government Not a Party)
2 U.S. Government 4 Diversity
(Indicate Citizenship of Parties in Item III)
Citizens or Subject of a Foreign County
3 3 Foreign Nation 6 6
IV. NATURE OF SUIT (PLACE AN X IN ONE BOX ONLY) CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES
422 Appeal 28 USC 158
423 Withdrawal 28 USC 157
PROPERTY RIGHTS
610 Agriculture
620 Other Food & Drug
625 Drug Related Seizure of Property 21 USC 881
630 Liquor Laws
640 R.R. & Truck
650 Airline Regs
660 Occupational Safety/Health
690 Other
820 Copyrights
830 Patent
840 Trademark
LABOR SOCIAL SECURITY
110 Insurance 120 Marine
X 130 Miller Act
140 Negotiable Instrument 150 Recovery of Overpayment
of Veteran’s Benefits 151 Medicare Act 152 Recovery of Defaulted
Student Loans (Excl. Veterans)
153 Recovery of Overpayment of Veteran’s Benefits
160 Stockholders’ Suits 190 Other Contract 195 Contract Product Liability 196 Franchise
PERSONAL INJURY 310 Airplane 315 Airplane Product
Liability 320 Assault, Libel & Slander 330 Federal Employers’
Liability 340 Marine 345 Marine Product Liability 350 Motor Vehicle 355 Motor Vehicle Product
Liability 360 Other Personal Injury
PERSONAL INJURY 362 Personal Injury – Med
Malpractice 365 Personal Injury – Product
Liability 368 Asbestos Personal Injury
Product Liability
PERSONAL INJURY
370 Other Fraud
371 Truth in Lending
380 Other Personal Property Damage
385 Property Damage Product Liability
710 Fair Labor Standards Act
720 Labor/Mgmt. Relations
730 Labor/Mgmt. Reporting & Disclosure Act
861 HIA (1395ff)
862 Black Lung (923)
863 DIWC/DIWW (405(g))
864 SSID Title XVI
865 RSI (405(g))
REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS 740 Railway Labor Act FEDERAL TAX SUITS
210 Land Condemnation
220 Foreclosure
230 Rent Lease & Ejectment
240 Torts to Land
245 Tort Product Liability
290 All Other Real Property
441 Voting
442 Employment
443 Housing/ Accommodations
444 Welfare
440 Other Civil Rights
510 Motions to Vacate Sentence
HABEAS CORPUS: 530 General
535 Death Penalty
540 Mandamus & Other
550 Civil Rights
555 Prison Condition
790 Other Labor Litigation
791 Empl. Ret. Inc. Security Act
870 Taxes (U.S. Plaintiff or Defendant)
871 IRS – Third Party 28 USC 7609
400 State Reapportionment
410 Antitrust
430 Banks and Banking
450 Commerce
460 Deportation
470 Racketeer Influenced and Corrupt Organizations
480 Consumer Credit
490 Cable/Sat. TV
810 Selective Service
850 Securities/Commodities/ Exchange
875 Customer Challenge 12 USC 3410
890 Other Statutory Actions
891 Agricultural Acts
892 Economic Stabilization Act
893 Environmental Matters
894 Energy Allocation Act
895 Freedom of Information Act
900 Appeal of Fee Determination Under Equal Access to Justice
950 Constitutionality of State Statutes
V. ORIGIN (PLACE AN X IN ONE BOX ONLY) Appeal to District X 1 Original
Proceeding 2 Removed from
State Court 3 Remanded from
Appellate Court 4 Reinstated or
Reopened 5 Transferred from
Another District (Specify)
6 Multidistrict Litigation
7 Judge from Magistrate Judgment
CITE THE U.S. CIVIL STATUTE UNDER WHICH YOU ARE FILING (DO NOT CITE JURISDICTIONAL STATUTES UNLESS DIVERSITY):
40 U.S.C. 3131-3134
BRIEF DESCRIPTION OF CAUSE:: MILLER ACT CLAIM
VII. REQUESTED IN COMPLAINT
CHECK IF THIS IS A CLASS ACTION
UNDER F.R.C.P. 23
DEMAND $287,624.09
Check YES only if demanded in complaint:
JURY DEMAND: YES NO
VIII. RELATED CASE(S) IF ANY (See instructions)
DATE SIGNATURE OF ATTORNEY OF RECORD
May 3, 2011____________________________________________ _s/ Meghan H. Morgan FOR OFFICE USE ONLY RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGE
VI. CAUSE OF ACTION
Judge ________________________________ DOCKET NUMBER ___________________________
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
UNITED STATES OF AMERICA for the )
use of RAGAN MECHANICAL, INC., )
)
Plaintiff, )
)
v. ) No. _______________
)
APPLIED ENERGY MANAGEMENT, INC. )
and WESTCHESTER FIRE INSURANCE )
COMPANY, )
)
Defendants. )
DISCLOSURE STATEMENT
I, the undersigned, counsel of record for Ragan Mechanical, Inc., certify to the best of my
knowledge and belief:
X My client has no corporate interests to be certified under Federal Rule of Civil Procedure
7.1 or Federal Rule of Criminal Procedure 12.4.
� My client has the following parent corporation(s):
� The following publicly held corporation(s) own 10% or more of my client's stock:
s/ Meghan H. Morgan
(Signature of Counsel)
May 3, 2011
(Date)
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CERTIFICATE OF SERVICE
The undersigned hereby certifies that on May 3, 2011, a true and exact copy of the
foregoing Disclosure Statement was filed electronically. Notice of this filing will be sent by
operation of the Court's electronic filing system to all parties indicated on the electronic filing
receipt. All other parties will be served by electronic mail, hand delivery or regular U.S. mail.
Parties may access this filing through the Court's electronic filing system.
Terrill L. Adkins
Trammell, Adkins & Ward, P.C.
128 Northshore Dr., Suite 201
Knoxville, TN 37919
s/ Meghan H. Morgan
Attorney
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