Preview
Filed: 12/6/2022 2:48 PM
Clerk
Tippecanoe County, Indiana
STATE OF INDIANA ) TIPPECANOE SUPERIOR COURT II
) SS:
COUNTY OF TIPPECANOE ) CAUSE NO.: 79D02-2208-PL-000075
FLATLINE CONCRETE & )
CUSTOMS, LLC, )
Plaintiff, )
v. )
SEYED AMIR SADEGHI, PURDUE )
FEDERAL CREDIT UNION, )
REGIONAL DEVELOPMENT )
COMPANY, U.S. SMALL BUSINESS )
ADMINISTRATION, IRVING )
MATERIALS, INC., BEST CHOICE )
MOTORS, LLC, )
Defendants. )
IRVING MATERIALS, INC., )
Counterclaim Plaintiff, )
v. )
SEYED AMIR SADEGHI, PURDUE )
FEDERAL CREDIT UNION, )
REGIONAL DEVELOPMENT )
COMPANY, U.S. SMALL BUSINESS )
ADMINISTRATION, )
Counterclaim Defendants. )
IRVING MATERIALS, INC., )
Crossclaim Plaintiff, )
v. )
FLATLINE CONCRETE & )
CUSTOMS, LLC, )
Crossclaim Defendant. )
SEYED AMIR SADEGHI, )
Crossclaim Plaintiff )
v. )
FLATLINE CONCRETE & CUSTOMS, )
LLC, )
Crossclaim Defendant )
BEST CHOICE MOTORS, LLC, )
Intervening Cross-claimant, )
v. )
)
FLATLINE CONCRETE & )
CUSTOMS, LLC, and JEREMY S. )
GORDON d/b/a FD and SONS )
CONCRETE, )
Crossclaim Defendants. )
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ANSWER TO BEST CHOICE MOTORS, LLC’S CROSS-CLAIM
Cross-Claim Defendants Jeremy Gordon d/b/a FD and Sons and Jeremy S. Gordon
(“Gordon”) provides the following Answer to Intervening Crossclaimant Best Choice Motors,
LLC’s (“Best Choice’s”) Cross-Claim.
1. Best is a duly formed limited liability company under the law of Indiana with its
principal address 2901 Teal Road, Lafayette, Indiana 47905.
ANSWER: Admit.
2. FD and Sons Concrete is not registered as a corporation, LLC or partnership with
the Indiana Secretary of State and therefor is a sole proprietorship with its principal address at
1831 E 800 N, West Lafayette, Indiana 47906.
ANSWER: Denied.
3. Upon information and belief, Jeremy S. Gordon is the sole proprietor of FD and
Sons Concrete.
ANSWER: Denied. Gordon is not the sole proprietor of FD and Sons Concrete.
4. Flatline Concrete and Customs, LLC is a duly formed limited liability company
under the law of Indiana with its principal address 2966 Rampart Street, Lafayette, Indiana
47909.
ANSWER: Admit.
5. On January 4, 2022 Flatline provided a quote to Best for building a structure at
2901 Teal Road, installation of fence, and to repair, replace and construction various water,
sewage and utility lines. Said estimate was accepted by Best on January 12, 2022. Exhibit A.
ANSWER: Admit.
6. Best made two progress payments under the terms of the contract. The first
payment of $65,000 on January 12, 2022; the second $55,000 on March 15, 2022.
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ANSWER: Admit.
7. Upon request of Flatline, Best made an additional payment of $30,000 on May 6,
2022.
ANSWER: Admitted that Best Choice Motors, LLC (“Best”) made an additional
payment of $30,000 on May 6, 2022, otherwise denied.
8. Flatline began construction but did not complete the agreed scope of work. By
way of example, Flatline did not complete the 4-inch thick concrete parking lot or installation of
the fencing.
ANSWER: Denied. Flatline substantially completed the work agreed to in the parties’
agreement and pursuant to the parties’ later course of conduct.
9. Additionally, Flatline improperly installed water lines which had to be replaced.
ANSWER: Admitted Flatline installed water lines, otherwise denied.
10. Flatline were paid approximately $150,000 under the agreement.
ANSWER: Admit.
11. In order to correct Flatline’s defective work, Best had to hire third party
contractors to correct their mistakes and to complete the work Flatline did not complete.
ANSWER: To the extent Best alleges Flatline performed defective work, denied.
Otherwise, Gordon is without sufficient information to admit or deny the remaining allegations
contained in paragraph 11, and therefore denies the same.
12. In addition to the money paid to Flatline for work that was improperly performed
or not performed, Best incurred expenses in excess of $100,000 to correct the defect work of
Defendants.
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ANSWER: To the extent Best alleges Flatline improperly performed or did not
perform work, denied. Otherwise, Gordon is without sufficient information to admit or deny the
remaining allegations contained in paragraph 12, and therefore denies the same.
13. Bet performed all conditions precedent and has not excused Defendant’s non-
performance.
ANSWER: Denied.
COUNT I – Breach of Warranty of Workmanship
14. Best restates the allegations set forth in paragraphs 1 through 13 above as though
fully set forth herein.
ANSWER: Gordon restates and incorporates by reference the responses to paragraphs
1-13 as if fully restated herein.
15. Best contracted with Flatline to perform the scope of work in a manner that would
comply with quality of work generally accepted in their trade.
ANSWER: The allegations set forth in paragraph 15 are not against Gordon. Thus, no
response is required by Gordon. To the extent a response is required, admit.
16. Flatline failed to complete the work to such a standard.
ANSWER: The allegations set forth in paragraph 16 are not against Gordon. Thus, no
response is required by Gordon. To the extent a response is required, denied.
17. As a result Best had to hire third party contractors to repair and replace the
substandard work performed by Flatline.
ANSWER: Gordon is without sufficient information to admit or deny the allegations
contained in paragraph 17, and therefore denies the same.
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18. Best was damaged by Flatline’s failure to perform in a workmanlike manner in an
amount to be proven at trial.
ANSWER: The allegations set forth in paragraph 18 are not against Gordon. Thus, no
response is required by Gordon. To the extent a response is required, denied.
COUNT II – Breach of Contract
19. Best restates the allegations set forth in paragraphs 1 through 18 above as though
fully set forth herein.
ANSWER: Gordon restates and reincorporates by reference the responses to
paragraphs 1-18 as if fully restated here.
20. On January 12, 2022, the parties entered into a written contract whereby Flatline
agreed to build for Best a structure to be erected on certain land located at 2901 Teal Road
Lafayette, Indiana and Best agreed to pay defendant in return the sum of $210,000. A copy of
the contract is attached hereto as Exhibit A.
ANSWER: The allegations set forth in paragraph 20 are not against Gordon. Thus, no
response is required by Gordon. To the extent a response is required, admit.
21. As a further condition of the contract, Flatline agreed to build the structure in
accordance with written specifications required by Best and assented to by Flatline. The written
specifications were incorporated as part of the written contract.
ANSWER: The allegations set forth in paragraph 21 are not against Gordon. Thus, no
response is required by Gordon. To the extent a response is required, admitted to the extent the
line items contained in Exhibit A would qualify as “written specifications.”
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22. Flatline failed to complete the majority of scope of work. The work that was
completed was not in accordance with the specifications. Best notified Flatline that its
performance was unsatisfactory.
ANSWER: The allegations set forth in paragraph 22 are not against Gordon. Thus, no
response is required by Gordon. To the extent a response is required, denied.
23. Per the terms of the contract Flatline was to meet certain progress time
requirements. Flatline failed to meet any performance deadlines.
ANSWER: The allegations set forth in paragraph 23 are not against Gordon. Thus, no
response is required by Gordon. To the extent a response is required, denied.
24. Despite Flatline’s promises, it failed to remedy the defects, and Best has been
required to mitigate its damages by correcting the defects in an excess cost of $100,000.
ANSWER: The allegations set forth in paragraph 24 are not against Gordon. Thus, no
response is required by Gordon. To the extent a response is required, and to the extent Best
alleges Flatline made promises and failed to remedy defects, denied. Otherwise, Gordon is
without sufficient information to admit or deny the remaining allegations contained in paragraph
24, and therefore denies the same.
25. Best has performed all conditions precedent under the contract and has not
excused Flatline’s nonperformance.
ANSWER: The allegations set forth in paragraph 25 are not against Gordon. Thus, no
response is required by Gordon. To the extent a response is required, denied.
COUNT III – Unjust Enrichment
26. Best restates the allegations set forth in paragraphs 1 through 25 above as though
fully set forth herein.
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ANSWER: Gordon restates and incorporates by reference the responses to paragraphs
1-25 as if fully restated here.
27. Best paid Flatline $150,000 under the terms of the contract.
ANSWER: The allegations set forth in paragraph 27 are not against Gordon. Thus, no
response is required by Gordon. To the extent a response is required, admit.
28. Best’s payments were made in anticipation for work that was to be completed.
ANSWER: The allegations set forth in paragraph 28 are not against Gordon. Thus, no
response is required by Gordon. To the extent a response is required, denied.
29. Flatline did not perform $150,000 worth of work.
ANSWER: The allegations set forth in paragraph 29 are not against Gordon. Thus, no
response is required by Gordon. To the extent a response is required, denied.
30. Flatline retained all payments made by Best after it was fired from the job.
ANSWER: The allegations set forth in paragraph 30 are not against Gordon. Thus, no
response is required by Gordon. To the extent a response is required, admitted Flatline retained
all payments for the work performed, otherwise denied.
31. Flatline should not be able to retain the entire amount paid as a matter of equity.
ANSWER: The allegations set forth in paragraph 31 are not against Gordon. Thus, no
response is required by Gordon. To the extent a response is required, denied.
COUNT IV – Breach of Contract
(Against Defendant Jeremy S. Gordon d/b/a FD and Sons Concrete)
32. Best restates the allegations set forth in paragraphs 1 through 31 above as though
fully set forth herein.
ANSWER: Gordon restates and incorporates by reference the responses to paragraphs
1-31 as if fully restated here.
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33. Flatline makes a judicial admission that Exhibit A to its Complaint is the binding
contract between Flatline and Defendant Seyed Amir Sadeghi.
ANSWER: Denied.
34. However, Flatline’s Exhibit A is an invoice dated January 30, 2022 sent from FD
and Sons Concrete to Best Choice Motors, LLC.
ANSWER: Admitted Exhibit A attached to Flatline’s Complaint is an invoice dated
January 30, 2022 from flatlineconcreteandcustoms@gmail.com. Otherwise denied.
35. Best entered into a contract with Jeremy S. Gordon d/b/a FD and Sons Concrete
(“Gordon”).
ANSWER: Denied. Gordon is not the sole proprietor of FD & Sons Concrete.
36. Under the contract Best was to pay Gordon $210,000.
ANSWER: Denied.
37. Best paid Gordon $150,000 under the contract.
ANSWER: Denied.
38. Gordon failed to complete the majority of scope of work. The work that was
completed was not in accordance with the specifications. Best notified Gordon that its
performance was unsatisfactory.
ANSWER: Denied.
39. Per the terms of the contract Gordon was to meet certain progress time
requirements. Gordon failed to meet any performance deadlines.
ANSWER: Denied.
40. Despite Gordon’s promises, it failed to remedy the defects, and Best has been
required to mitigate its damages by correcting the defects in an excess cost of $100,000.
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ANSWER: Denied.
COUNT IV – Negligence
(Against Jeremy S. Gordon)
41. Best restates the allegations set forth in paragraphs 1 through 41 above as fully set
forth herein.
ANSWER: Gordon restates and incorporates by reference the responses to paragraphs
1-40 as if fully restated here.
42. Gordon is a contractor doing business in Tippecanoe County, Indiana.
ANSWER: To the extent Gordon is a member of Flatline Concrete and Customs, LLC
(“Flatline”) and performs contracting work in his capacity as a member of Flatline, admitted.
Otherwise denied.
43. Gordon had a duty to Best to comply with local codes and ordinances related to
the performance under Flatline’s contract with Best.
ANSWER: Denied.
44. Gordon breached the duty owed to Best.
ANSWER: Denied.
45. As a direct and proximate result of Gordon’s negligence, Best was damaged.
ANSWER: Denied.
THEREFORE, Cross-Claim Defendants Jeremy S. Gordon d/b/a FD and Sons Concrete
and Jeremy S. Gordon request that Intervening Crossclaimant Best Choice Motors, LLC take
nothing by way of its Cross-Claim.
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AFFIRMATIVE DEFENSES
Cross-Claim Defendants Jeremy S. Gordon d/b/a FD and Sons and Jeremy S. Gordon
(“Gordon”) provides the following as its affirmative defenses to Intervening Crossclaimant Best
Choice Motors, LLC’s (“Best Choice”) Cross-Claim:
1. Best Choice fails to state a claim upon which relief can be granted.
2. Best Choice improperly named Jeremy S. Gordon d/b/a FD and Sons as a
defendant as Gordon is not the sole proprietor of FD and Sons Concrete.
3. Best Choice’s claims are barred by its own conduct in first breaching its
agreement with Flatline.
4. Best Choice has failed to mitigate damages, if any.
5. Best Choice’s damages, if any, are subject to the Comparative Fault Act.
6. Best Choice’s recovery is barred by the economic loss doctrine.
7. Best Choice’s claims against Gordon are barred by the corporate shield.
Gordon’s investigation and discovery efforts in this cause of action are ongoing. Gordon
does not presently know whether additional affirmative defenses may be appliable. Therefore,
Gordon reserves the right to add additional affirmative defenses as they may become applicable.
To the extent Best Choice alleges equitable claims not subject to trial by jury, Gordon
opposes its jury demand and reserves its right to file a motion to strike such demand.
WHEREFORE, Cross-Claim Defendants Jeremy S. Gordon d/b/a FD and Sons Concrete
and Jeremy S. Gordon requests that Intervening Crossclaimant Best Choice Motors, LLC take
nothing by way of its Cross-Claim, and for all other relief just and proper in the premises.
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Date: December 6, 2022 /s/Kaylin O. Cook
Rachel S. Bir, #36640-49
Kaylin O. Cook, #36921-49
GUTWEIN LAW
250 Main Street, Suite 590
Lafayette, IN 47901
Telephone:765.423.7900
Facsimile:765.423.7901
rachel.bir@gutweinlaw.com
kaylin.cook@gutweinlaw.com
ATTORNEYS FOR CROSS-CLAIM
DEFENDANTS JEREMY S. GORDON D/B/A
FD AND SONS CONCRETE AND JEREMY S.
GORDON
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CERTIFICATE OF SERVICE
The undersigned hereby confirms that on today’s date I filed the foregoing ANSWER
TO BEST CHOICE MOTORS, LLC’S CROSS-CLAIM AND AFFIRMATIVE
DEFENSES which was served to all counsel of record via electronic mail:
Steven Kyle Dietrich
kd@rtslawfirm.com
Cecelia N. Harper
cnh@hereforlife.com
M. Michael Stephenson
mikestephenson@strial.com
Brian Irvin
brian.irvin@usdoj.gov
I further confirm that on today’s date, a copy of the foregoing document was served by
United States mail, postage prepaid, upon:
Regional Development Company
1757 Thornapple Circle
Valparaiso, IN 46385
Date: December 6, 2022 /s/Kaylin O. Cook
Kaylin O. Cook
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4889-2388-6658, v. 1
Preview
Filed: 12/6/2022 2:48 PM Clerk Tippecanoe County, Indiana STATE OF INDIANA ) TIPPECANOE SUPERIOR COURT II ) SS: COUNTY OF TIPPECANOE ) CAUSE NO.: 79D02-2208-PL-000075 FLATLINE CONCRETE & ) CUSTOMS, LLC, ) Plaintiff, ) v. ) SEYED AMIR SADEGHI, PURDUE ) FEDERAL CREDIT UNION, ) REGIONAL DEVELOPMENT ) COMPANY, U.S. SMALL BUSINESS ) ADMINISTRATION, IRVING ) MATERIALS, INC., BEST CHOICE ) MOTORS, LLC, ) Defendants. ) IRVING MATERIALS, INC., ) Counterclaim Plaintiff, ) v. ) SEYED AMIR SADEGHI, PURDUE ) FEDERAL CREDIT UNION, ) REGIONAL DEVELOPMENT ) COMPANY, U.S. SMALL BUSINESS ) ADMINISTRATION, ) Counterclaim Defendants. ) IRVING MATERIALS, INC., ) Crossclaim Plaintiff, ) v. ) FLATLINE CONCRETE & ) CUSTOMS, LLC, ) Crossclaim Defendant. ) SEYED AMIR SADEGHI, ) Crossclaim Plaintiff ) v. ) FLATLINE CONCRETE & CUSTOMS, ) LLC, ) Crossclaim Defendant ) BEST CHOICE MOTORS, LLC, ) Intervening Cross-claimant, ) v. ) ) FLATLINE CONCRETE & ) CUSTOMS, LLC, and JEREMY S. ) GORDON d/b/a FD and SONS ) CONCRETE, ) Crossclaim Defendants. ) 1 4889-2388-6658, v. 1 ANSWER TO BEST CHOICE MOTORS, LLC’S CROSS-CLAIM Cross-Claim Defendants Jeremy Gordon d/b/a FD and Sons and Jeremy S. Gordon (“Gordon”) provides the following Answer to Intervening Crossclaimant Best Choice Motors, LLC’s (“Best Choice’s”) Cross-Claim. 1. Best is a duly formed limited liability company under the law of Indiana with its principal address 2901 Teal Road, Lafayette, Indiana 47905. ANSWER: Admit. 2. FD and Sons Concrete is not registered as a corporation, LLC or partnership with the Indiana Secretary of State and therefor is a sole proprietorship with its principal address at 1831 E 800 N, West Lafayette, Indiana 47906. ANSWER: Denied. 3. Upon information and belief, Jeremy S. Gordon is the sole proprietor of FD and Sons Concrete. ANSWER: Denied. Gordon is not the sole proprietor of FD and Sons Concrete. 4. Flatline Concrete and Customs, LLC is a duly formed limited liability company under the law of Indiana with its principal address 2966 Rampart Street, Lafayette, Indiana 47909. ANSWER: Admit. 5. On January 4, 2022 Flatline provided a quote to Best for building a structure at 2901 Teal Road, installation of fence, and to repair, replace and construction various water, sewage and utility lines. Said estimate was accepted by Best on January 12, 2022. Exhibit A. ANSWER: Admit. 6. Best made two progress payments under the terms of the contract. The first payment of $65,000 on January 12, 2022; the second $55,000 on March 15, 2022. 2 4889-2388-6658, v. 1 ANSWER: Admit. 7. Upon request of Flatline, Best made an additional payment of $30,000 on May 6, 2022. ANSWER: Admitted that Best Choice Motors, LLC (“Best”) made an additional payment of $30,000 on May 6, 2022, otherwise denied. 8. Flatline began construction but did not complete the agreed scope of work. By way of example, Flatline did not complete the 4-inch thick concrete parking lot or installation of the fencing. ANSWER: Denied. Flatline substantially completed the work agreed to in the parties’ agreement and pursuant to the parties’ later course of conduct. 9. Additionally, Flatline improperly installed water lines which had to be replaced. ANSWER: Admitted Flatline installed water lines, otherwise denied. 10. Flatline were paid approximately $150,000 under the agreement. ANSWER: Admit. 11. In order to correct Flatline’s defective work, Best had to hire third party contractors to correct their mistakes and to complete the work Flatline did not complete. ANSWER: To the extent Best alleges Flatline performed defective work, denied. Otherwise, Gordon is without sufficient information to admit or deny the remaining allegations contained in paragraph 11, and therefore denies the same. 12. In addition to the money paid to Flatline for work that was improperly performed or not performed, Best incurred expenses in excess of $100,000 to correct the defect work of Defendants. 3 4889-2388-6658, v. 1 ANSWER: To the extent Best alleges Flatline improperly performed or did not perform work, denied. Otherwise, Gordon is without sufficient information to admit or deny the remaining allegations contained in paragraph 12, and therefore denies the same. 13. Bet performed all conditions precedent and has not excused Defendant’s non- performance. ANSWER: Denied. COUNT I – Breach of Warranty of Workmanship 14. Best restates the allegations set forth in paragraphs 1 through 13 above as though fully set forth herein. ANSWER: Gordon restates and incorporates by reference the responses to paragraphs 1-13 as if fully restated herein. 15. Best contracted with Flatline to perform the scope of work in a manner that would comply with quality of work generally accepted in their trade. ANSWER: The allegations set forth in paragraph 15 are not against Gordon. Thus, no response is required by Gordon. To the extent a response is required, admit. 16. Flatline failed to complete the work to such a standard. ANSWER: The allegations set forth in paragraph 16 are not against Gordon. Thus, no response is required by Gordon. To the extent a response is required, denied. 17. As a result Best had to hire third party contractors to repair and replace the substandard work performed by Flatline. ANSWER: Gordon is without sufficient information to admit or deny the allegations contained in paragraph 17, and therefore denies the same. 4 4889-2388-6658, v. 1 18. Best was damaged by Flatline’s failure to perform in a workmanlike manner in an amount to be proven at trial. ANSWER: The allegations set forth in paragraph 18 are not against Gordon. Thus, no response is required by Gordon. To the extent a response is required, denied. COUNT II – Breach of Contract 19. Best restates the allegations set forth in paragraphs 1 through 18 above as though fully set forth herein. ANSWER: Gordon restates and reincorporates by reference the responses to paragraphs 1-18 as if fully restated here. 20. On January 12, 2022, the parties entered into a written contract whereby Flatline agreed to build for Best a structure to be erected on certain land located at 2901 Teal Road Lafayette, Indiana and Best agreed to pay defendant in return the sum of $210,000. A copy of the contract is attached hereto as Exhibit A. ANSWER: The allegations set forth in paragraph 20 are not against Gordon. Thus, no response is required by Gordon. To the extent a response is required, admit. 21. As a further condition of the contract, Flatline agreed to build the structure in accordance with written specifications required by Best and assented to by Flatline. The written specifications were incorporated as part of the written contract. ANSWER: The allegations set forth in paragraph 21 are not against Gordon. Thus, no response is required by Gordon. To the extent a response is required, admitted to the extent the line items contained in Exhibit A would qualify as “written specifications.” 5 4889-2388-6658, v. 1 22. Flatline failed to complete the majority of scope of work. The work that was completed was not in accordance with the specifications. Best notified Flatline that its performance was unsatisfactory. ANSWER: The allegations set forth in paragraph 22 are not against Gordon. Thus, no response is required by Gordon. To the extent a response is required, denied. 23. Per the terms of the contract Flatline was to meet certain progress time requirements. Flatline failed to meet any performance deadlines. ANSWER: The allegations set forth in paragraph 23 are not against Gordon. Thus, no response is required by Gordon. To the extent a response is required, denied. 24. Despite Flatline’s promises, it failed to remedy the defects, and Best has been required to mitigate its damages by correcting the defects in an excess cost of $100,000. ANSWER: The allegations set forth in paragraph 24 are not against Gordon. Thus, no response is required by Gordon. To the extent a response is required, and to the extent Best alleges Flatline made promises and failed to remedy defects, denied. Otherwise, Gordon is without sufficient information to admit or deny the remaining allegations contained in paragraph 24, and therefore denies the same. 25. Best has performed all conditions precedent under the contract and has not excused Flatline’s nonperformance. ANSWER: The allegations set forth in paragraph 25 are not against Gordon. Thus, no response is required by Gordon. To the extent a response is required, denied. COUNT III – Unjust Enrichment 26. Best restates the allegations set forth in paragraphs 1 through 25 above as though fully set forth herein. 6 4889-2388-6658, v. 1 ANSWER: Gordon restates and incorporates by reference the responses to paragraphs 1-25 as if fully restated here. 27. Best paid Flatline $150,000 under the terms of the contract. ANSWER: The allegations set forth in paragraph 27 are not against Gordon. Thus, no response is required by Gordon. To the extent a response is required, admit. 28. Best’s payments were made in anticipation for work that was to be completed. ANSWER: The allegations set forth in paragraph 28 are not against Gordon. Thus, no response is required by Gordon. To the extent a response is required, denied. 29. Flatline did not perform $150,000 worth of work. ANSWER: The allegations set forth in paragraph 29 are not against Gordon. Thus, no response is required by Gordon. To the extent a response is required, denied. 30. Flatline retained all payments made by Best after it was fired from the job. ANSWER: The allegations set forth in paragraph 30 are not against Gordon. Thus, no response is required by Gordon. To the extent a response is required, admitted Flatline retained all payments for the work performed, otherwise denied. 31. Flatline should not be able to retain the entire amount paid as a matter of equity. ANSWER: The allegations set forth in paragraph 31 are not against Gordon. Thus, no response is required by Gordon. To the extent a response is required, denied. COUNT IV – Breach of Contract (Against Defendant Jeremy S. Gordon d/b/a FD and Sons Concrete) 32. Best restates the allegations set forth in paragraphs 1 through 31 above as though fully set forth herein. ANSWER: Gordon restates and incorporates by reference the responses to paragraphs 1-31 as if fully restated here. 7 4889-2388-6658, v. 1 33. Flatline makes a judicial admission that Exhibit A to its Complaint is the binding contract between Flatline and Defendant Seyed Amir Sadeghi. ANSWER: Denied. 34. However, Flatline’s Exhibit A is an invoice dated January 30, 2022 sent from FD and Sons Concrete to Best Choice Motors, LLC. ANSWER: Admitted Exhibit A attached to Flatline’s Complaint is an invoice dated January 30, 2022 from flatlineconcreteandcustoms@gmail.com. Otherwise denied. 35. Best entered into a contract with Jeremy S. Gordon d/b/a FD and Sons Concrete (“Gordon”). ANSWER: Denied. Gordon is not the sole proprietor of FD & Sons Concrete. 36. Under the contract Best was to pay Gordon $210,000. ANSWER: Denied. 37. Best paid Gordon $150,000 under the contract. ANSWER: Denied. 38. Gordon failed to complete the majority of scope of work. The work that was completed was not in accordance with the specifications. Best notified Gordon that its performance was unsatisfactory. ANSWER: Denied. 39. Per the terms of the contract Gordon was to meet certain progress time requirements. Gordon failed to meet any performance deadlines. ANSWER: Denied. 40. Despite Gordon’s promises, it failed to remedy the defects, and Best has been required to mitigate its damages by correcting the defects in an excess cost of $100,000. 8 4889-2388-6658, v. 1 ANSWER: Denied. COUNT IV – Negligence (Against Jeremy S. Gordon) 41. Best restates the allegations set forth in paragraphs 1 through 41 above as fully set forth herein. ANSWER: Gordon restates and incorporates by reference the responses to paragraphs 1-40 as if fully restated here. 42. Gordon is a contractor doing business in Tippecanoe County, Indiana. ANSWER: To the extent Gordon is a member of Flatline Concrete and Customs, LLC (“Flatline”) and performs contracting work in his capacity as a member of Flatline, admitted. Otherwise denied. 43. Gordon had a duty to Best to comply with local codes and ordinances related to the performance under Flatline’s contract with Best. ANSWER: Denied. 44. Gordon breached the duty owed to Best. ANSWER: Denied. 45. As a direct and proximate result of Gordon’s negligence, Best was damaged. ANSWER: Denied. THEREFORE, Cross-Claim Defendants Jeremy S. Gordon d/b/a FD and Sons Concrete and Jeremy S. Gordon request that Intervening Crossclaimant Best Choice Motors, LLC take nothing by way of its Cross-Claim. 9 4889-2388-6658, v. 1 AFFIRMATIVE DEFENSES Cross-Claim Defendants Jeremy S. Gordon d/b/a FD and Sons and Jeremy S. Gordon (“Gordon”) provides the following as its affirmative defenses to Intervening Crossclaimant Best Choice Motors, LLC’s (“Best Choice”) Cross-Claim: 1. Best Choice fails to state a claim upon which relief can be granted. 2. Best Choice improperly named Jeremy S. Gordon d/b/a FD and Sons as a defendant as Gordon is not the sole proprietor of FD and Sons Concrete. 3. Best Choice’s claims are barred by its own conduct in first breaching its agreement with Flatline. 4. Best Choice has failed to mitigate damages, if any. 5. Best Choice’s damages, if any, are subject to the Comparative Fault Act. 6. Best Choice’s recovery is barred by the economic loss doctrine. 7. Best Choice’s claims against Gordon are barred by the corporate shield. Gordon’s investigation and discovery efforts in this cause of action are ongoing. Gordon does not presently know whether additional affirmative defenses may be appliable. Therefore, Gordon reserves the right to add additional affirmative defenses as they may become applicable. To the extent Best Choice alleges equitable claims not subject to trial by jury, Gordon opposes its jury demand and reserves its right to file a motion to strike such demand. WHEREFORE, Cross-Claim Defendants Jeremy S. Gordon d/b/a FD and Sons Concrete and Jeremy S. Gordon requests that Intervening Crossclaimant Best Choice Motors, LLC take nothing by way of its Cross-Claim, and for all other relief just and proper in the premises. 10 4889-2388-6658, v. 1 Date: December 6, 2022 /s/Kaylin O. Cook Rachel S. Bir, #36640-49 Kaylin O. Cook, #36921-49 GUTWEIN LAW 250 Main Street, Suite 590 Lafayette, IN 47901 Telephone:765.423.7900 Facsimile:765.423.7901 rachel.bir@gutweinlaw.com kaylin.cook@gutweinlaw.com ATTORNEYS FOR CROSS-CLAIM DEFENDANTS JEREMY S. GORDON D/B/A FD AND SONS CONCRETE AND JEREMY S. GORDON 11 4889-2388-6658, v. 1 CERTIFICATE OF SERVICE The undersigned hereby confirms that on today’s date I filed the foregoing ANSWER TO BEST CHOICE MOTORS, LLC’S CROSS-CLAIM AND AFFIRMATIVE DEFENSES which was served to all counsel of record via electronic mail: Steven Kyle Dietrich kd@rtslawfirm.com Cecelia N. Harper cnh@hereforlife.com M. Michael Stephenson mikestephenson@strial.com Brian Irvin brian.irvin@usdoj.gov I further confirm that on today’s date, a copy of the foregoing document was served by United States mail, postage prepaid, upon: Regional Development Company 1757 Thornapple Circle Valparaiso, IN 46385 Date: December 6, 2022 /s/Kaylin O. Cook Kaylin O. Cook 12 4889-2388-6658, v. 1