UNITED STATES OF AMERICA Et La v. APPLIED ENERGY MANAGEMENT, INC. Et Al Complaint

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
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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Case 3:11-cv-00199 Document 1-1 Filed 05/03/11 Page 1 of 9 PageID #: 6
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, Applied Energy Management, Inc. and Westchester Fire Insurance
Inc. 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
ATTORNEYS (IF KNOWN)

(c) ATTORNEYS (FIRM NAME, ADDRESS, AND TELEPHONE NUMBER)
P. Edward Pratt/Meghan Morgan Philip Koenig Terrill L. Adkins
Baker, Donelson, Bearman, 1515 4th Avenue, Suite 201 Trammell, Adkins & Ward, P.C.
Caldwell & Berkowitz, P.C. Rock Island, IL 61201 128 Northshore Dr., Suite 201
265 Brookview Centre Way (309) 788-0743 Knoxville, TN 37919
Suite 600
Knoxville, TN 37919; (865) 549-7000
II. BASIS OF JURISDICTION (PLACE AN x IN ONE BOX ONLY) 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
X 1 U.S. Government 3 Federal Question
Plaintiff (U.S. Government Not a Party) Citizens of This State 1 1 Incorporated or Principal Place 4 4
Of Business in This State
2 U.S. Government 4 Diversity
Citizens of Another State 2 2 Incorporated and Principal Place 5 5
(Indicate Citizenship of Parties
Of Business in Another State
in Item III)
Citizens or Subject of a 3 3 Foreign Nation 6 6
Foreign County
IV. NATURE OF SUIT (PLACE AN X IN ONE BOX ONLY)
CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES
110 Insurance PERSONAL INJURY PERSONAL INJURY 610 Agriculture 422 Appeal 400 State Reapportionment
120 Marine 620 Other Food & Drug 28 USC 158
310 Airplane 362 Personal Injury – Med 410 Antitrust
X 130 Miller Act 315 Airplane Product Malpractice 625 Drug Related Seizure of 423 Withdrawal
430 Banks and Banking
140 Negotiable Instrument Liability 365 Personal Injury – Product Property 21 USC 881 28 USC 157
320 Liability 450 Commerce
150 Recovery of Overpayment Assault, Libel & Slander 630 Liquor Laws
of Veteran’s Benefits 368 Asbestos Personal Injury PROPERTY RIGHTS 460 Deportation
330 Federal Employers’ 640 R.R. & Truck
151 Medicare Act Liability Product Liability 820 Copyrights 470 Racketeer Influenced
650 Airline Regs
152 Recovery of Defaulted 340 Marine PERSONAL INJURY 830 Patent and Corrupt
Student Loans 345 Marine Product Liability
660 Occupational
370 Other Fraud Safety/Health Organizations
(Excl. Veterans) 350 Motor Vehicle 840 Trademark
153 Recovery of Overpayment 371 Truth in Lending 690 Other 480 Consumer Credit
355 Motor Vehicle Product
of Veteran’s Benefits Liability 380 Other Personal Property LABOR SOCIAL SECURITY 490 Cable/Sat. TV
160 Stockholders’ Suits 360 Other Personal Injury Damage 810 Selective Service
190 Other Contract 710 Fair Labor Standards 861 HIA (1395ff)
385 Property Damage Product Act 862 Black Lung (923) 850 Securities/Commodities/
195 Contract Product Liability
Liability 720 Labor/Mgmt. Relations 863 DIWC/DIWW Exchange
196 Franchise
730 Labor/Mgmt. Reporting (405(g)) 875 Customer Challenge
& Disclosure Act 864 SSID Title XVI 12 USC 3410
865 RSI (405(g)) 890 Other Statutory Actions
REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS 740 Railway Labor Act FEDERAL TAX SUITS 891 Agricultural Acts
210 Land Condemnation 441 Voting 510 Motions to Vacate 790 Other Labor Litigation 870 Taxes (U.S. 892 Economic Stabilization
Sentence Plaintiff or Act
220 Foreclosure 442 Employment 791 Empl. Ret. Inc.
HABEAS CORPUS: Security Act Defendant) 893 Environmental Matters
230 Rent Lease & Ejectment 443 Housing/
Accommodations 530 General 871 IRS – Third Party 894 Energy Allocation Act
240 Torts to Land
444 Welfare 535 Death Penalty 28 USC 7609 895 Freedom of Information
245 Tort Product Liability Act
540 Mandamus & Other
290 All Other Real Property 440 Other Civil Rights
550 Civil Rights 900 Appeal of Fee
555 Prison Condition Determination Under
Equal Access to Justice
950 Constitutionality of
State Statutes
V. ORIGIN (PLACE AN X IN ONE BOX ONLY) Appeal to District

X1 Original 2 Removed from 3 Remanded from 4 Reinstated or 5 Transferred from 6 Multidistrict 7 Judge from Magistrate
Proceeding State Court Appellate Court Reopened Another District Litigation Judgment
(Specify)
CITE THE U.S. CIVIL STATUTE UNDER WHICH YOU ARE FILING (DO NOT CITE JURISDICTIONAL STATUTES UNLESS DIVERSITY):
40 U.S.C. 3131-3134
VI. CAUSE OF ACTION BRIEF DESCRIPTION OF CAUSE::
MILLER ACT CLAIM
VII. REQUESTED IN CHECK IF THIS IS A CLASS ACTION DEMAND Check YES only if demanded in complaint:
COMPLAINT UNDER F.R.C.P. 23 $287,624.09 JURY DEMAND: YES NO
VIII. RELATED CASE(S) IF ANY (See instructions)

Judge ________________________________ DOCKET NUMBER ___________________________
DATE SIGNATURE OF ATTORNEY OF RECORD

May 3, 2011____________________________________________ _s/ Meghan H. Morgan
FOR OFFICE USE ONLY
RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGE

K MHM 271224 v1
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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)
Case
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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
2
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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

UNITED STATES OF AMERICA for the )

2. Defendant, APPLIED ENERGY MANAGEMENT, INC. (AAEM@), is a

800 S. Gay Street, Ste 2021, Knoxville, Tennessee 37929.

3. Defendant, WESTCHESTER FIRE INSURANCE COMPANY

Case 3:11-cv-00199 Document 1 Filed 05/03/11 Page 1 of 5 PageID #: 1

Floor, Nashville, Tennessee 37243.

Ridge National Laboratory (“ORNL”) located in Oak Ridge, Tennessee.

5. Westchester furnished a performance and payment bond to the United States

6. On or about November 1, 2009, Plaintiff and AEM entered into a Subcontract

hereto, marked Exhibit AB@ and made a part hereof. (ASubcontract@)

of the Subcontract, modified the Subcontract between themselves as follows:

a. By Contract dated December 30, 2009, Plaintiff agreed to perform

Case 3:11-cv-00199 Document 1 Filed 05/03/11 Page 2 of 5 PageID #: 2

c. By Contract dated January 22, 2010, Plaintiff agreed to provide

d. By Contract dated May 11, 2010, Plaintiff agreed to provide additional

e. By Contract dated May 11, 2010, Plaintiff agreed with AEM to

f. By Contract dated May 11, 2010, Plaintiff agreed with AEM to

g. By Contract dated May 11, 2010, Plaintiff agreed to provide additional

8. On or about the date of each of the above-mentioned amendments to the

Subcontract as modified by the amendments referenced in Paragraph 7 hereof.

Plaintiff=s demand for payment.

Case 3:11-cv-00199 Document 1 Filed 05/03/11 Page 3 of 5 PageID #: 3

If either Party is required to commence legal proceedings to

11. Plaintiff has incurred attorney fees in these proceedings.

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

Case 3:11-cv-00199 Document 1 Filed 05/03/11 Page 4 of 5 PageID #: 4

Philip E. Koenig, (IL BPR #149806)

Case 3:11-cv-00199 Document 1 Filed 05/03/11 Page 5 of 5 PageID #: 5

ATTORNEYS (IF KNOWN)

V. ORIGIN (PLACE AN X IN ONE BOX ONLY) Appeal to District

VIII. RELATED CASE(S) IF ANY (See instructions)

DATE SIGNATURE OF ATTORNEY OF RECORD

Case 3:11-cv-00199 Document 1-5 Filed 05/03/11 Page 1 of 1 PageID #: 54

UNITED STATES OF AMERICA for the )

knowledge and belief:

My client has the following parent corporation(s):

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