Case 1:12-cv-01087-RPM-MJW Document 1 Filed 04/24/12 USDC Colorado Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Case No. _______________________

UNITED STATES OF AMERICA for the Use of SHELVING RACK & LOCKERS, INC., Plaintiff, v. DIAMOND HILLS SERVICES, INC., a Colorado corporation, and WESTCHESTER FIRE INSURANCE COMPANY, Defendants. ______________________________________________________________________________

COMPLAINT
______________________________________________________________________________

Use Plaintiff, Shelving Rack & Lockers, Inc., through its attorneys, LAW OFFICES OF EVAN S. LIPSTEIN PC, states the following complaint against Defendants, as follows:

A. JURISDICTION AND VENUE 1. This Court has jurisdiction of Use Plaintiffs First Claim pursuant to the Miller Act, 40 U.S.C. 3131, et seq., and pursuant to 28 U.S.C. 1345 and 1352. This Court has supplemental jurisdiction of the remaining claims, each of which forms part of the same case or controversy as the First Claim, pursuant to 28 U.S.C. 1367. 2. Venue in this District is proper because Use Plaintiff furnished goods in, and the contract giving rise to this suit was performed and executed within, the State of Colorado. 1

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B. FIRST CLAIMMILLER ACT 3. 4. All prior allegations of this pleading are incorporated herein. This suit is brought pursuant to 40 U.S.C. 3133 in the name of the United States of America for the use and benefit of Use Plaintiff, whose principal business address is 5081 Kingston Street, Denver, Colorado 80239. 5. Defendant Diamond Hills Services, Inc. (Diamond) is a corporation whose principal place of business is 862 Brickyard Circle, Golden, Colorado 80403. 6. Defendant Westchester Fire Insurance Company (Westchester) is a corporation qualified to do business and doing business as a corporate surety in the State of Colorado. 7. On or about March 30, 2011, Diamond entered into a prime contract with the United States of America, acting by and through the Federal Aviation Administration, for the construction, alteration or repair of a public building or work of the United States in Longmont, Colorado (the Project). The contract is designated as Contract No. DTFAWN-11-C-00243, Federal Aviation Administration Air Route Traffic Control Center. 8. On or about April 25, 2011, Diamond and Westchester executed and delivered to the United States a payment bond, a copy of which is attached hereto as Exhibit 1, and incorporated by reference. Said bond, in the penal sum of $80,725.00, was executed pursuant to 40 U.S.C. 3131 for the protection of all persons supplying labor and material in the prosecution of the work provided for in the prime contract.

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9.

On or about September 12, 2011, Diamond entered into a contract with Use Plaintiff, pursuant to which Use Plaintiff agreed to provide certain materials in the prosecution of the prime contract work and any modifications thereto.

10.

Use Plaintiff provided materials used by Diamond in the prosecution of the work provided for by the prime contract between the United States and Diamond.

11.

The date on which Use Plaintiff finished or supplied the last of the material for which its claim is made was December 22, 2011.

12. 13.

Use Plaintiff has fully performed all terms and conditions of its contract with Diamond. Use Plaintiff has demanded payment from Diamond on February 20, 2012, and from Westchester on February 24, 2012, but both have neglected or refused to make payment.

14. 15.

The principal amount remaining due from Diamond to Use Plaintiff is $21,510.00. This suit is commenced more than 90 days and less than one year after Use Plaintiff provided the last of its materials pursuant to its contract with Diamond.

WHEREFORE, Use Plaintiff seeks relief as set forth below.

SECOND CLAIMBREACH OF CONTRACT 16. 17. All prior allegations of this pleading are incorporated herein. On or about September 2, 2011, Use Plaintiff submitted a quotation to Diamond for the provision of certain lockers as set forth in Exhibit 2, attached hereto. 18. Between September 2, 2011 and September 12, 2011, Diamond accepted the quotation of Use Plaintiff.

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19.

On or about September 12, 2011, Diamond submitted to Use Plaintiff a document entitled New Account - Application for Credit, a copy of which is attached as Exhibit 3.

20.

On or about September 12, 2011, Use Plaintiff and Diamond entered into a contract, pursuant to which Use Plaintiff agreed to furnish to Diamond the lockers, and for the price, described in Exhibit 2, and Diamond agreed to pay for the lockers on the terms stated in Exhibit 3.

21.

On or about January 6, 2012, Use Plaintiff and Diamond entered into a supplemental contract pursuant to which Use Plaintiff agreed to furnish two additional lockers for the additional price of $360.00, including freight, and Diamond agreed to pay for the additional lockers on the terms stated in Exhibit 3.

22.

Use Plaintiff has fully performed the obligations imposed upon it by the contracts with Diamond.

23.

Use Plaintiff has made demand upon Diamond that it perform the obligations imposed upon it by the contract with Use Plaintiff, but Diamond has failed, and still fails, to perform such obligations.

24.

Use Plaintiff has incurred legal fees required to obtain payment from Diamond.

WHEREFORE, Use Plaintiff seeks relief as set forth below

THIRD CLAIMGOODS SOLD AND DELIVERED 25. 26. All prior allegations of this pleading are incorporated herein. Diamond owes Use Plaintiff the sum of $21,510.00 for goods sold and delivered to Diamond in connection with the construction of the Project.

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27.

Use Plaintiff has made demand on Diamond that it pay said sum, but Diamond had failed to do so.

WHEREFORE, Use Plaintiff seeks relief as set forth below.

FOURTH CLAIMOPEN ACCOUNT 28. 29. All prior allegations of the Pleading are incorporated herein. Diamond is indebted to Use Plaintiff in the sum of $21,510.00, plus interest, costs and attorney fees, upon an open, mutual and current account.

WHEREFORE, Use Plaintiff requests the following relief: A. Judgment against Diamond in the principal sum of $21,524.76, plus interest as provided by law, costs, attorney fees and such other relief deemed just and proper; and B. Joint and several judgment against Diamond and Westchester on their payment bond in the amount of $21,524.76, plus interest as provided by law, costs and such other relief deemed just and proper. LAW OFFICES OF EVAN S. LIPSTEIN PC By /s/ Evan S. Lipstein Evan S. Lipstein 12600 West Colfax Avenue, Suite C-400 Lakewood, Colorado 80215 Telephone: 303-232-5151 Fax: 303-232-5161 Email: evan@lipsteinlaw.com Attorneys for Plaintiff