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UNITED STATES OF AMERICA et la v. APPLIED ENERGY MANAGEMENT, INC. et al Complaint

ATTENTION: It is possible that this information may no longer be current and therefore may be inaccurate. The index contains both open and closed cases and is not a complete list of cases in which an ACE Insurance Group company is involved. This information is provided to give interested persons an idea of the issues disputed in the indexed cases. For a full understanding of a case, one should read the rest of the court file, including the response. For the most up-to-date and complete information on a case, visit www.pacer.gov or contact the clerk of the relevant court.

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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. APPLIED ENERGY MANAGEMENT, INC., and WESTCHESTER FIRE INSURANCE COMPANY, Defendants. ) ) ) ) ) ) ) ) ) ) ) )
NO.:
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. AMiller Act.@ 2. Defendant, APPLIED ENERGY MANAGEMENT, INC. (AAEM@), is a This action arises under 40 U.S.C. ''3131 - 3134, commonly known as the
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 Page 1 of 5
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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. Page 2 of 5
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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. 12. Plaintiff has incurred attorney fees in these proceedings. 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 epratt@bakerdonelson.com mhmorgan@bakerdonelson.com
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 CIVIL COVER SHEET (Rev. 11/04) 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
United States of America for the use of Ragan Mechanical, Inc.
DEFENDANTS
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)
NOTE:
(IN U.S. PLAINTIFF CASES ONLY)
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 4th 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
II.
BASIS OF JURISDICTION
(PLACE AN x IN ONE BOX ONLY)
III. CITIZENSHIP OF PRINCIPAL PARTIES
(For Diversity Cases Only)
(PLACE AN “X” IN ONE BOX FOR PLAINTIFF AND ONE BOX FOR DEFENDANT)
X 1 U.S. Government
Plaintiff 2 U.S. Government
3 Federal Question (U.S. Government Not a Party) 4 Diversity (Indicate Citizenship of Parties in Item III)
PTF Citizens of This State Citizens of Another State Citizens or Subject of a Foreign County
1 2 3
DEF
1 2 3
PTF Incorporated or Principal Place Of Business in This State Incorporated and Principal Place Of Business in Another State Foreign Nation
4 5 6
DEF
4 5 6
IV. NATURE OF SUIT
CONTRACT 110 120 130 140 150
Insurance Marine
(PLACE AN X IN ONE BOX ONLY)
TORTS
PERSONAL INJURY
310 Airplane 315 Airplane Product 320 330 340 345 350 355 360
Liability Assault, Libel & Slander Federal Employers’ Liability Marine Marine Product Liability Motor Vehicle Motor Vehicle Product Liability Other Personal Injury
PERSONAL INJURY
362 Personal Injury – Med
Malpractice
X
Miller Act Negotiable Instrument 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
FORFEITURE/PENALTY 610 Agriculture 620 Other Food & Drug 625 Drug Related Seizure of 630 640 650 660 690 710 720 730 740 790 791
Property 21 USC 881 Liquor Laws R.R. & Truck Airline Regs Occupational Safety/Health Other
BANKRUPTCY 422 Appeal 423
28 USC 158 Withdrawal 28 USC 157
365 Personal Injury – Product
Liability
368 Asbestos Personal Injury
Product Liability
PROPERTY RIGHTS 820 830 840
Copyrights Patent Trademark
PERSONAL INJURY
370 Other Fraud 371 Truth in Lending 380 Other Personal Property
Damage 385 Property Damage Product Liability
OTHER STATUTES 400 State Reapportionment 410 Antitrust 430 Banks and Banking 450 Commerce 460 Deportation 470 Racketeer Influenced
and Corrupt Organizations Consumer Credit Cable/Sat. TV Selective Service Securities/Commodities/ Exchange Customer Challenge 12 USC 3410 Other Statutory Actions Agricultural Acts Economic Stabilization Act Environmental Matters Energy Allocation Act Freedom of Information Act Appeal of Fee Determination Under Equal Access to Justice Constitutionality of State Statutes
LABOR
Fair Labor Standards Act Labor/Mgmt. Relations Labor/Mgmt. Reporting & Disclosure Act Railway Labor Act Other Labor Litigation Empl. Ret. Inc. Security Act
SOCIAL SECURITY 861 HIA (1395ff) 862 Black Lung (923) 863 DIWC/DIWW
(405(g))
480 490 810 850 875 890 891 892 893 894 895 900
REAL PROPERTY 210 220 230 240 245 290
Land Condemnation Foreclosure Rent Lease & Ejectment Torts to Land Tort Product Liability All Other Real Property
CIVIL RIGHTS 441 Voting 442 Employment 443 Housing/
Accommodations 444 Welfare 440 Other Civil Rights
PRISONER PETITIONS 510 Motions to Vacate
Sentence
864 SSID Title XVI 865 RSI (405(g)) FEDERAL TAX SUITS 870 Taxes (U.S.
Plaintiff or Defendant)
HABEAS CORPUS:
530 535 540 550 555
General Death Penalty Mandamus & Other Civil Rights Prison Condition
871 IRS – Third Party
28 USC 7609
950
V.
X1
ORIGIN
Original Proceeding 2 Removed from State Court 3
(PLACE AN X IN ONE BOX ONLY)
Remanded from Appellate Court 4 Reinstated or Reopened 5 Transferred from Another District (Specify) 6 Multidistrict Litigation
Appeal to District 7 Judge from Magistrate Judgment
CITE THE U.S. CIVIL STATUTE UNDER WHICH YOU ARE FILING (DO NOT CITE JURISDICTIONAL STATUTES UNLESS DIVERSITY):
VI. CAUSE OF ACTION VII. REQUESTED IN COMPLAINT
40 U.S.C. 3131-3134
BRIEF DESCRIPTION OF CAUSE:: MILLER ACT CLAIM
CHECK IF THIS IS A CLASS UNDER F.R.C.P. 23
ACTION
DEMAND
$287,624.09
Check YES only if demanded in complaint: JURY DEMAND: YES NO
VIII. RELATED CASE(S) IF ANY (See instructions)
Judge ________________________________ DOCKET NUMBER ___________________________ DATE May 3, 2011____________________________________________ FOR OFFICE USE ONLY
RECEIPT # AMOUNT APPLYING IFP
SIGNATURE OF ATTORNEY OF RECORD _s/ Meghan H. Morgan
JUDGE MAG. JUDGE
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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. APPLIED ENERGY MANAGEMENT, INC. and WESTCHESTER FIRE INSURANCE COMPANY, Defendants. ) ) ) ) ) ) ) ) ) ) ) )
No. _______________
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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