Case 1:21-cv-02807-CAP Document 1-1 Filed 07/14/21 Page 1 of 44
`Case 1:21-cv-02807-CAP Document 1-1 Filed 07/14/21 Page 1 of 44
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`EXHIBIT "A"
`EXHIBIT “A”
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`Case 1:21-cv-02807-CAP Document 1-1 Filed 07/14/21 Page 2 of 44
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`IN THE SUPERIOR COURT OF GWINNETT COUNTY
`
`Optum Construction Group, LLC
`
`STATE OF GEORGIA
`
`E-FILED IN OFFICE - MX
`CLERK OF SUPERIOR COURT
`GWINNETT COUNTY, GEORGIA
`21-A-04512-4
`6/11/2021 3:13 PM
`TIANA P. GARNER, CLERK
`
`CIVIL ACTION
`NUMBER: (cid:9)
`
`21-A-04512-4
`
`VS.
`Ethicon, Inc.
`
`PLAINTIFF
`
`DEFENDANT
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`SUMMONS
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`TO THE ABOVE NAMED DEFENDANT:
`
`You are hereby summoned and required to file with the Clerk of said court and serve upon the Plaintiffs attorney, whose name
`and address is:
`G. Marshall Kent, Jr.
`Fox Rothschild LLP
`999 Peachtree Street, Suite 1500
`Atlanta, Georgia 30309
`
`an answer to the complaint which is herewith served upon you, within 30 days after service of this summons upon you, exclusive of
`the day of service. If you fail to do so, judgment by default will be taken against you for the relief demanded in the complaint.
`
`11TH
`
`This
`
`day of
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`JUNE
`
`21
`
`20
`
`Tiana P. Garner
`
`Clerk of Si^{»^
`
`ior Cour
`
`By.
`
`ia
`
`Deputy Clerk
`
`4A
`
`INSTRUCTIONS: Attach addendum sheet for additional parties if needed, make notation on this sheet if addendum sheet is used.
`
`SC-I Rev. 2011
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`

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`Case 1:21-cv-02807-CAP Document 1-1 Filed 07/14/21 Page 3 of 44
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`E-FILED IN OFFICE - MX
`CLERK OF SUPERIOR COURT
`GWINNETT COUNTY, GEORGIA
`21-A-04512-4
`6/11/2021 3:13 PM
`TIANA P. GARNER, CLERK
`
`IN THE SUPERIOR COURT OF GWINNETT COUNTY
`STATE OF GEORGIA
`
`OPTUM CONSTRUCTION GROUP,
`LLC,
`
`v.
`
`ETHICON, INC.,
`
`Plaintiff,
`
`Defendant.
`
`CIVIL ACTION FILE NO.
`
`21-A-04512-4
`
`COMPLAINT
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`COMES NOW Plaintiff Optum Construction Group, LLC ("Optum"), a licensed Georgia
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`commercial general contractor, and states its claims against Defendant Ethicon, Inc. ("Ethicon"),
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`a New Jersey corporation and wholly owned operating subsidiary of Johnson & Johnson, Inc., as
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`follows:
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`1.
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`Plaintiff Optum is a Georgia limited liability company that maintains its principal place of
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`business in Gainesville, Hall County, Georgia. Optum is engaged in the business of providing
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`labor and materials for the performance of commercial construction projects as a licensed
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`commercial general contractor. Optum's member(s) reside in Georgia.
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`2.
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`Defendant Ethicon is a New Jersey corporation that maintains its registered agent and
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`office in Gwinnett County, Georgia. Ethicon may be served with a Summons and service copy of
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`this Complaint through service upon Ethicon's registered agent, CT Corporation System, 289
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`Culver Street, LawrenCeville, Gwinnett County, Georgia 30046-4805.
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`Case 1:21-cv-02807-CAP Document 1-1 Filed 07/14/21 Page 4 of 44
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`Jurisdiction and venue are proper in this Court because Defendant Ethicon maintains its
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`registered agent in Gwinnett County.
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`4.
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`Defendant Ethicon operates and maintains a large plant and manufacturing facility that is
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`located at 655 Ethicon Circle, Cornelia, Habersham County, Georgia 30531. Optum hereby
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`brings this action to recover monies owed Optum by Ethicon, totaling $951,634.00, for certain
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`work performed and/or supervised by Optum on the Ethicon AHU 17A Project, located at 655
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`Ethicon Circle, Cornelia, Habersham County, Georgia 30531 (the "Project"). Optum is also owed
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`retainage for its work performed and completed some time ago for a Project called the "Sparks
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`Project," that was also performed at the Ethicon plant, in the amount of $82,903.00.
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`5.
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`Optum served as the outside general contractor for Plant Projects at Ethicon for many years.
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`Optum would be compensated for its work pursuant to Purchase Orders issued by Ethicon, the
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`timing of which was generally determined by Ethicon Plant construction managers/supervisors.
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`These managers/supervisors dealt with internal budgets that contemplated how and what specific
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`I
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`work would be directed to be performed, and how the costs thereof would be allocated internally
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`within the Company.
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`6.
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`On or about July 5, 2018, and based on design drawings prepared by Stewart Engineering,
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`an engineering consultant regularly used by Ethicon Plant personnel, a S 1 .4 million Purchase Order
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`was issued to Optum for installation of an Air Handling Unit, that was originally contemplated by
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`Stewart's drawings to be installed on an elevated platform "penthouse," where Ethicon then
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`2
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`Case 1:21-cv-02807-CAP Document 1-1 Filed 07/14/21 Page 5 of 44
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`maintained its mechanical, electrical, plumbing and HVAC controls for the Plant. A true and
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`accurate copy of that Purchase Order is attached hereto as Exhibit "1
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`However, in early August
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`of 2018, after Optum and Ethicon's internal managers conducted a further assessment of the
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`Project as initially planned/designed (that resulted in the discovery of material structural
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`issues
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`and deficiencies in the plan/design based on the weight of the unit and inadequacy of the
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`foundation to accommodate the Unit), Optum was directed by Ethicon to consult one or more
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`outside engineering firms, and arrange for a preliminary layout for a freestanding mechanical
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`building to house the AHU 17A Project. This layout was obtained by Optum from Trinity
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`Engineering, a reputable Gainesville firm.
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`7.
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`Thereafter, Mr. Raymond Harris of Ethicon (Ethicon's Onsite Facilities Engineer -
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`Georgia) issued a directive to Mr. Ed Maxwell of Optum instructing Optum to proceed to obtain
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`new (civil, architectural, and structural, as well as mechanical, electrical and plumbing) drawings
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`for a freestanding mechanical building. Optum proceeded to arrange for these drawings, and in
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`February and March of 2019, Ethicon proceeded to evaluate the requested drawings for the
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`erection of the freestanding building, that was two and a half times the square footage/size of the
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`original proposed penthouse.
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`8.
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`T"-he-re vised foundation-and-site-drawings- were considered7as-was~theTactthat-substantiaT
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`demolition work and relocation of plumbing, piping and other utilities would be involved in the
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`contemplated improvements. Ethicon representatives were made fully aware of all relevant design
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`issues by June of 2019.
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`3
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`Case 1:21-cv-02807-CAP Document 1-1 Filed 07/14/21 Page 6 of 44
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`9.
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`By this time, and after Bid Documents were issued by Trinity Engineering for pricing
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`purposes, Optum was asked to submit its bid to perform the requested work by Messrs. Raymond
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`Harris and Bryan Willett (another Onsite Facilities Engineer) ofEthicon. A true and accurate copy
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`of the bid presented by Optum to Mr. Harris of Ethicon is attached as Exhibit "2." At that time,
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`Mr. Harris requested that Optum's Bid be delivered to him in person (not by email). Respecting
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`his perceived sensitivity, Optum complied, and Mr. Maxwell and another employee of Optum met
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`with Mr. Harris to communicate that Bid.
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`10.
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`During that meeting, and after Mr. Harris learned that the additional cost associated with
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`the Project would exceed S900,000.00, Mr. Harris informed Optum he had a way to cover the
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`additional cost (stating he would bury that cost into the budget for another Project if necessary),
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`and directed Optum to proceed.
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`11.
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`Shortly thereafter,
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`the drawings were issued and submitted for permitting, and Mr.
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`Maxwell met with Mr. Sean DuBois of Ethicon (who is the Supervisor of Messrs. Harris and
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`Willett at the Plant) and walked the site, discussing and detailing the improvements that would be
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`performed. On June 10, 2019, Optum "broke ground" and commenced construction.
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`(cid:9)
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`I-2t
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`Throughout
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`these discussions, Ethicon representatives communicated their intention to
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`issue one or more amended Purchase Orders to reflect the increased cost associated with what were
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`clearly "cardinal changes" to the Work. A summary of the additional scope of Work involved in
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`constructing the Project in accordance with the modified plans/design is attached hereto as Exhibit
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`4
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`Case 1:21-cv-02807-CAP Document 1-1 Filed 07/14/21 Page 7 of 44
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`"3". Optum, that had a long history of working with Ethicon at the Plant on numerous projects,
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`reasonably relied upon Ethicon's representations that one or more amended Purchase Orders
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`would be issued in proceeding to perform the Work.
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`13.
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`Inexplicably, however, as the Work progressed, and neared completion, Ethicon personnel
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`became increasingly hesitant and evasive about discussing the status of the amended Purchase
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`Order(s) Optum was misled to understand would be forthcoming.
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`It is Optum's information and
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`belief that notwithstanding Ethicon's direction to Optum to perform the modified Project,
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`Ethicon's construction managers/supervisors at
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`the Plant
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`failed to properly budget
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`for the
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`substantial modifications to the original Purchase Order.
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`14.
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`As the Project neared completion, Mr. Maxwell was approached by Mr. DuBois and
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`presented with a choice: Optum could write-off and absorb the cost of the additional Work over
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`and beyond what was reflected in the original Purchase Order (write the excess cost off) and finish
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`the job (in which case Mr. DuBois said Optum would be allowed to continue to receive future
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`Work at the Plant, and maintain its relationship with Ethicon), or Optum could pursue a claim for
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`what it was owed for that additional Work, in which case Optum would be banned from the site,
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`and never receive further work from Ethicon.
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`15.
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`Given its obligation to collect what is owed on behalf of its subcontractors and suppliers,
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`and as a matter of principle, Optum elected the latter alternative. Optum and its subcontractors
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`subsequently received a directive from Ethicon to demobilize from the Project.
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`5
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`Case 1:21-cv-02807-CAP Document 1-1 Filed 07/14/21 Page 8 of 44
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`16.
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`Optum proceeded to demand payment for the substantial additional work Ethicon directed
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`Optum to perform. After initially citing to the lack of the Amended Purchase Order as its purported
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`excuse for refusing to pay Optum, Ethicon subsequently retained outside counsel, and proceeded
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`to cite to alleged "defective work" on prior projects performed by Optum, including the preceding
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`AHU Unit 7/10 and DEHUM Projects, as well as alleged defective work performed on the 17A
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`project. Ethicon has now adopted the position it is entitled to offset against amounts owed Optum
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`on the 17A project for alleged deficiencies related to the AHU7 Unit 7/10 and DEHUM Projects,
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`even though Ethicon previously paid Optum for those prior projects. Ethicon's actions in
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`exercising its alleged offset has effectively caused Optum not to be fully compensated for those
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`prior projects. Ethicon has also refused to pay the balance of $82,903.00 owed to Optum for its
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`performance of the "Sparks Project" at the Plant, that was completed some time ago. A true and
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`accurate summary of the balance owed for that Project is attached hereto as Exhibit "4".
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`17.
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`In doing so, Optum also shows that Ethicon has grossly inflated the amount of its alleged
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`offsets for deficiencies. Ethicon has sought to justify its unauthorized offsets by citing to a "report"
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`prepared by Stewart Engineering,
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`the same engineering consultant
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`that
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`issued the original
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`(cid:9)
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`(defective) plans- that -needed to-be-revised -and modified- in- the-first-placer Curiously, Ethicon -*
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`sought to procure this "dubious report" from this consultant, even though Ethicon requested Optum
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`to use Trinity Engineering, a reputable Gainesville, Georgia mechanical, electrical and plumbing
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`(MEP) engineering firm, to prepare and submit the permitted plans for the modified project. To
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`date, Ethicon has inexplicably failed to consult with Trinity.
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`6
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`Case 1:21-cv-02807-CAP Document 1-1 Filed 07/14/21 Page 9 of 44
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`18.
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`Curiously, many of the alleged deficiencies identified by Ethicon's "consultant" (Stewart
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`Engineering) are premised upon expectations or purported specifications not contained in the
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`permitted plans. Even after receiving the permitted plans from Optum, Ethicon has persisted in its
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`allegations, without requesting Trinity to provide input or otherwise inspect the work. The alleged
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`deficiencies further appear wildly inflated in terms of both alleged scope and expense to address.
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`Moreover, despite repeated requests by Optum and its primary commercial HVAC subcontractor
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`on this Project, Sluss + Padgett, to inspect the Plant site and Ethicon's alleged deficiencies (to
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`determine whether any corrective or warranty work is appropriate under
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`the attendant
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`circumstances), Ethicon continues to refuse to provide Optum or its subcontractors with access to
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`the Plant to inspect their work.
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`Ethicon's ongoing failure and refusal
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`to do so is effectively
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`preventing Optum and its subcontractors from assessing or addressing Ethicon's alleged "issues"
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`and constitutes an intentional failure by Ethicon to mitigate its alleged "damages".
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`19.
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`While Optum cannot understand what has motivated Ethicon representatives to adopt what
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`Optum contends are dishonest and unreasonable positions, and irrespective of what internal budget
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`at Ethicon should bear the costs of this additional work, Optum is legally entitled to payment of
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`all outstanding amounts owed for its Work, and reiterates its prior demand for payment.
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`20.
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`Based upon the foregoing facts,
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`it
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`is apparent
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`that Ethicon personnel engaged in a
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`conspiracy and pattern of ongoing fraudulent conduct to misrepresent Ethicon's present intent to
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`deliver an amended purchase order that would incorporate the significant additional work. Ethicon
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`personnel also misrepresented Ethicon's present intent to compensate Optum for the significant
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`7
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`Case 1:21-cv-02807-CAP Document 1-1 Filed 07/14/21 Page 10 of 44
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`additional cost
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`incurred by Optum to perforin the additional work at Ethicon's direction,
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`in
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`detrimental reliance upon Ethicon's representations.
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`21.
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`This additional scope of work constitutes a cardinal change to the original Purchase Order,
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`and as such Ethicon is obligated to compensate Optum for this additional work, since any failure
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`to do so would cause Ethicon to be unjustly enriched under Georgia law.
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`22.
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`Ethicon is similarly obligated to compensate Optum for its performance of the "Sparks
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`Project," to prevent Ethicon from being unjustly enriched. Ethicon's construction managers and
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`supervisors at the Ethicon Plant are fully aware of the work performed by Optum on these Projects,
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`and irrespective of how they "budgeted" for these Projects, Optum should be paid.
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`23.
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`Optum has further filed its Claim of Lien against the Project
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`for the total amount of
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`$951,634.00 owed by Ethicon to Optum and its subcontractors on the AHU 17A Project. A true
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`and accurate copy of Optum's Claim of Lien, filed on September 8, 2020 at Lien Book 00053,
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`Pages 00366-0070 of the Habersham County records, together with Optum's Demand for Payment
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`and Notice of its Lien Claim, is attached hereto as Exhibit "5."
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`COUNT ONE -BREACH OF CONTRACT/ACCOUNT
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`24.
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`Optum incorporates paragraphs 1-23 hereof by reference as if all such paragraphs were
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`restated herein verbatim.
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`8
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`Case 1:21-cv-02807-CAP Document 1-1 Filed 07/14/21 Page 11 of 44
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`25.
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`During the period from June of 2019 through August of 2020, Optum provided labor and
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`materials, as well as construction management services required to perform improvements
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`contemplated under the AHU 17A Project,
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`including cardinal changes to the original Purchase
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`Order issued to Optum that were directed by Ethicon and the Project Owner.
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`The work and improvements that are the subject of Optum's outstanding invoice was
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`26.
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`delivered to and received by Ethicon, the Project Owner.
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`27.
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`Ethicon breached its obligations under the original Purchase Order and cardinal change
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`directive issued pursuant thereto. Despite repeated requests and demands by Optum, Ethicon has
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`also failed and refused to pay Optum its $951,634.00 invoice and overhead/profit related to
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`cardinal change directives, as well as the remaining amount of $82,903.00 owed for the "Sparks
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`Project." Ethicon is liable to Optum for these amounts pursuant to the Purchase Order, as Ethicon
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`directed it to be modified, or alternatively on account.
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`28.
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`A true copy of Optum's demand letter is attached in Exhibit "5." Optum shows that it is
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`entitled to recover additional amounts owed to Optum, attributable to additional administrative
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`.
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`(cid:9)
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`costs-caused by-the change-directives -imposed- by-Ethicon,- -as-wel-l-as interest- accrued-on the
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`outstanding balance owed Optum by Ethicon.
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`Case 1:21-cv-02807-CAP Document 1-1 Filed 07/14/21 Page 12 of 44
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`29.
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`Pursuant
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`to O.C.G.A. § 7-4-16 and the contractual
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`terms between Optum and Ethicon,
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`Ethicon owes interest to Optum accrued on the outstanding amount at the rate of 18% per annum
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`from the date its invoice and final payment became due.
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`30.
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`All conditions precedent
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`to Optum's right to payment have been satisfied, waived or
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`otherwise excused.
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`COUNT TWO - ALTERNATIVE CLAIM FOR QUANTUM MERUIT/VALEBANT
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`AND/OR UNJUST ENRICHMENT
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`31.
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`Optum incorporates paragraphs 1-30 hereof by reference as if all such paragraph were
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`restated herein verbatim.
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`32.
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`Optum provided labor and materials, as well as construction services at the request of
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`Ethicon, reflected in the invoice submitted by Optum.
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`33.
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`The labor, materials and services requested by Ethicon are valuable to Ethicon.
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`34.-
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`Ethicon accepted the labor, materials and services provided by Optum, and has been
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`unjustly enriched to the extent it has failed to compensate Optum.
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`10
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`Case 1:21-cv-02807-CAP Document 1-1 Filed 07/14/21 Page 13 of 44
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`35.
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`Ethicon is obligated in quantum meruit and/or quantum valebant
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`to pay Optum the
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`reasonable value of the labor, materials and services provided by Optum at the Project, at Ethicon's
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`direction and request. Alternatively, Ethicon is obligated to pay Optum the reasonable value of
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`the labor, materials and services Optum delivered at the Project to prevent Ethicon from becoming
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`unjustly enriched.
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`36.
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`The reasonable value of the labor, materials and services delivered at
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`the Project and
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`thereby provided to Ethicon is not less than $951,634.00, as well as the amount of $82,903.00 that
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`remains owed for the "Sparks Project".
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`COUNT THREE - BREACH OF IMPLIED PROMISE NOT TO INTERFERE WITH
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`PERFORMANCE OF CONTRACT
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`37.
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`Optum incorporates paragraphs 1-36 hereof by reference as if all such paragraph were
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`restated herein verbatim.
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`38.
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`Ethicon had an implied duty not
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`to hinder, delay or interfere with the conduct and
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`performance of the Work, as modified, directed to be performed by Ethicon.
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`39.
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`Nonetheless, through Ethicon's delivery of an unfair ultimatum to Optum, its intentional
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`failure and refusal
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`to allow Optum to complete its Work at
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`the Project, Ethicon's arbitrary
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`imposition of change orders and directives without providing the amended purchase order Ethicon
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`represented would be forthcoming on numerous occasions, as well as Ethicon's subsequent failure
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`Case 1:21-cv-02807-CAP Document 1-1 Filed 07/14/21 Page 14 of 44
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`to cooperate with and timely compensate Optum, Ethicon effectively delayed and impeded Optum
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`in its performance of the Project. Ethicon's purposeful failure and refusal to permit access to the
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`Plant to Optum and its subcontractors to inspect the alleged deficiencies claimed by Ethicon, so
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`Optum could proceed in good faith to access the need for any corrective or warranty work, is
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`another example of Ethicon's breach of this material
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`implied contractual obligation.
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`40.
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`Optum has incurred compensatory damages directly and proximately flowing from the
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`breach by Ethicon and its agents of their implied duty not to interfere with Optum 's performance
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`in an amount that shall be established by the evidence at trial.
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`COUNT FOUR - VIOLATION OF GEORGIA PROMPT PAY ACT
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`Optum incorporates paragraphs 1-40 hereof by reference as if all such paragraph were
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`41.
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`restated herein verbatim.
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`42.
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`The failure of Ethicon to compensate Optum in a timely manner in accordance with the
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`Purchase Order (as modified) constitutes a violation of the Georgia Prompt Pay Act, O.C.G.A. §
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`13-1 1-1 et seq. Both Optum's prior demand letter, as well as service of this Complaint upon
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`Ethicon constitutes notice of Optum's demand for payment under this Act, in accordance with
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`O.C.G.A. § 13- I
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`I -/(a).
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`43.
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`Pursuant to the Georgia Prompt Pay Act, Optum is entitled to recover the outstanding
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`balance of S95 1,634.00 owed by Ethicon for the labor, materials and services provided by Optum
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`on the AHU 17A Project overhead and profit related thereto, as well as the additional amount of
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`Case 1:21-cv-02807-CAP Document 1-1 Filed 07/14/21 Page 15 of 44
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`$82,903.00 owed for the "Sparks Project", together with interest accrued thereon at the commercial
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`rate of 1 2% per annum.
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`44.
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`Optum is also entitled to recover its reasonable costs incurred to collect this outstanding
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`balance, including reasonable attorneys' fees and costs, from Ethicon, pursuant to O.C.G.A. § 13-
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`1 1-8.
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`COUNT Fi VE - ATTORNEYS' FEES AND EXPENSES OF LITIGATION
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`45.
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`Optum incorporates paragraphs 1-44 hereof by reference as if all such paragraph were
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`restated herein verbatim.
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`46.
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`By failing to pay Optum despite repeated demands by Optum that it be paid, Ethicon has
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`acted in bad faith, been stubbornly litigious and has caused Optum unnecessary trouble and
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`expense.
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`47.
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`Optum is entitled to recover its reasonable expenses of litigation, including reasonable
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`attorney's fees, from Ethicon, pursuant to O.C.G.A. § 13-6-1 1.
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`COUNT SIX - FRAUD/CONSPIRACY
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`48.
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`Optum incorporates paragraphs 1-47 hereof by reference as if all such paragraph were
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`restated herein verbatim.
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`Case 1:21-cv-02807-CAP Document 1-1 Filed 07/14/21 Page 16 of 44
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`49.
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`Optum shows that Ethicon representatives materially misrepresented Ethicon's intent to
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`issue a modified Purchase Order for the AHU 17A Project to Optum, and thereby fraudulently
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`induced Optum to execute and perform the material modifications to the original Purchase Order
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`directed by Ethicon. These parties also knew or should have known that for reasons internal
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`to
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`Ethicon, a modified Purchase Order was either not authorized, or was not forthcoming. Optum
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`justifiably relied upon Ethicon's misrepresentations to its detriment.
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`Optum subsequently
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`provided labor, materials and supplies to the Project at the request and direction of Ethicon, for
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`which Ethicon purposefully and intentionally failed to compensate Optum.
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`50.
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`In procuring the Work delivered by Optum, Ethicon representatives also intentionally
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`misrepresented the present financial budgeting and intent of Ethicon to pay for the Work (and extra
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`work) delivered by Optum pursuant to the change directives of Ethicon, much less Optum 's
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`invoice subsequently submitted in conformity therewith. Optum shows it justifiably relied upon
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`Ethicon's misrepresentations to its detriment.
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`51.
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`Optum has incurred compensatory damages as a direct and proximate result of Ethicon's
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`tortious conduct, and the apparent conspiracy of its representatives associated therewith,
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`in an
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`amount that shall be established by the evidence adduced at trial.
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`52.
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`Optum shows that
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`the conspiracy and fraudulent conduct engaged in by Ethicon was
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`entered into and perpetuated with the specific intent of damaging Optum. As such, Optum is
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`entitled to recover punitive damages over and against Ethicon in an amount to be determined by
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`Case 1:21-cv-02807-CAP Document 1-1 Filed 07/14/21 Page 17 of 44
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`the enlightened conscience of the impartial
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`trier of fact,
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`to deter Ethicon from future similar
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`conduct.
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`COUNT SEVEN -NEGLIGENT MISREPRESENTATION
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`53.
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`Optum incorporates paragraphs 1-52 hereof by reference as if all such paragraph were
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`.
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`restated herein verbatim.
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`54.
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`Alternatively, Ethicon negligently misrepresented its present financial budgeting and intent
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`to issue a modified Purchase Order for the AHU 1 7A Project and to pay for the work delivered by
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`Optum at the direction of Ethicon personnel. Optum justifiably and detrimentally relied upon such
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`representations by proceeding to perform the Work, and has incurred compensatory damages in
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`an amount to be established by the evidence at Trial, as a direct and proximate result of such
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`negligent misrepresentations.
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`55.
`
`Moreover, the negligent misrepresentations were made in a willful and wanton manner,
`
`with reckless disregard for the consequences of such misrepresentations. As such, Optum is
`
`entitled to an award of punitive damages against Ethicon,
`
`in an amount determined by the
`
`enlightened conscience of the impartial
`
`trier of the fact,
`
`to deter Ethicon from future similar
`
`conduct.
`
`COUNT EIGHT - ENFORCEMENT OF MECHANIC'S LIEN
`
`56.
`
`Optum incorporates paragraphs 1-55 hereof by reference as if all such paragraph were
`
`restated herein verbatim.
`
`15
`
`

`

`Case 1:21-cv-02807-CAP Document 1-1 Filed 07/14/21 Page 18 of 44
`
`Optum brings this action to enforce its Claim of Lien previously filed against the ownership
`
`57.
`
`interest of Ethicon in the Project.
`
`58.
`
`Accordingly, pursuant to O.C.G.A. § 44-14-361 et seq. and 44-14-364, Optum now brings
`
`this lien enforcement action within 365 days after the filing of its Claim of Lien to liquidate its
`
`claims against Ethicon, and thereby establish a special statutory lien in favor of Optum.
`
`WHEREFORE, Optum prays that process issue, and that Optum be granted the following
`
`relief:
`
`(I)
`
`Judgment
`
`in favor of Optum against Ethicon for
`
`the principal amount of
`
`$951,634.00 plus interest accrued thereon at 18% per annum from the date of each invoice to the
`
`date of judgment, Optum's Overhead and Profit related thereto, as well as the amount of
`
`$82,903.00 remaining owed to Optum on the "Sparks Project", pursuant to Count One;
`
`(2)
`
`Judgment
`
`in favor of Optum against Ethicon in the amount of $951,634.00,
`
`Optum's Overhead and Profit related thereto, as well as the amount of $82,903.00 remaining owed
`
`to Optum on the "Sparks Project", pursuant to Count Two;
`
`(3)
`
`Judgment in favor of Optum against Ethicon, in the amount to be established by the
`
`evidence at trial, pursuant to Count Three;
`
`(4)
`
`J udgment TrTfavbr of "Optum arid agai nst-Etlricon~fo'r_th"e_princ ipaham ount-of
`
`$951,634.00 plus interest at 12% per annum from the date of service of this Complaint upon
`
`Ethicon, Optum's Overhead and Profit related thereto, plus the amount of $82,903.00 remaining
`
`owed to Optum on the "Sparks Project", pursuant to Count Four;
`
`16
`
`

`

`Case 1:21-cv-02807-CAP Document 1-1 Filed 07/14/21 Page 19 of 44
`
`(5)
`
`Judgment
`
`in favor of Optum against Ethicon,
`
`for Optum's cost of litigation,
`
`including reasonable attorney's fees, incurred by Optum, pursuant to Count Five;
`
`(6)
`
`Judgment
`
`in favor of Optum against Ethicon for compensatory damages in an
`
`amount to be proven by the evidence at trial, but not less than $95 1 ,634.00, together with punitive
`
`damages, pursuant to Count Six;
`
`(7)
`
`Judgment
`
`in favor of Optum against Ethicon for compensatory damages in an
`
`amount to be proven by the evidence at trial, but not less than $95 1 ,634.00, together with punitive
`
`damages, pursuant to Count Seven;
`
`(8)
`
`Judgment awarding Optum a special
`
`lien against the Project
`
`in the amount of
`
`$951,634.00 based upon its claims against Ethicon herein, pursuant to Count Eight; and
`
`(10)
`
`That Optum have such other relief as this Court deems just and proper.
`
`Respectfully submitted this 1 1th day of June, 2021.
`
`FOX ROTHSCHILD LLP
`999 Peachtree Street, Suite 1500
`Atlanta, Georgia 30309
`404-962-1000
`mkeni@foxrothschild.com
`n corser@ fbxroth sch i 1 d . c o m
`
`A/ G. Marshall Kent, Jr
`G. Marshall Kent, Jr.
`Georgia Bar No. 4 1 5 1 29
`Nicholas B. Corser
`Georgia Bar No. 290744
`
`17
`
`

`

`Case 1:21-cv-02807-CAP Document 1-1 Filed 07/14/21 Page 20 of 44
`Case 1:21-cv-02807-CAP Document 1—1 Filed 07/14/21 Page 20 of 44
`
`EXHIBIT 1
`EXHIBIT 1
`
`

`

`Case 1:21-cv-02807-CAP Document 1-1 Filed 07/14/21 Page 21 of 44
`
`Ethicon, Inc.
`
`Purchase Order
`
`Supplier :
`OPTUM CONSTRUCTION GROUP LLC - 430060070
`1974 DELTA DRIVE
`GAINESVILLE, GA 30501
`United Slates
`Phone: 1(177)02873093
`Tax: 1(770)2873101
`Contact :
`
`Ship To :
`Ethicon Cornelia Receiving Dock
`655 Ethicon Circle
`Cornelia, GA 30531-0000
`United States
`Phone: 1706-778-2281
`
`Deliver To:
`RAYMOND S HARRIS
`
`Purchase Order Number: 993931848
`Purchase Order Date: Thu, 05 Jul, 201 8
`
`On Behalf Of:
`Requester: RAYMOND HARRIS
`Requester Phone: 1-706-776-5789
`Requisition: PR968271 7
`
`Bill To :
`Ethicon, lnc
`PO Box 16571
`New Brunswick, NJ 08906-657 1
`
`United States
`
`Phone: 1877-557-4487
`
`Other information:
`
`Order Type: Service
`
`Item Part
`Number
`
`Unit Quantity Description
`
`Need Unit Price
`
`Extended
`
`By
`
`Amount
`
`Taxable Service Service
`Close
`
`Open
`
`lot
`
`1
`
`201 8 Optum Construction AHU none SI ,476,274.00 $1,476,274.00 No
`USD
`USD
`1 7 Cornelia
`
`Date
`
`Date
`
`Mon,
`
`Mon,
`
`25 Jun,
`
`31 Dec,
`
`2018
`
`2018
`
`Total
`
`$1,476,274.00
`USD
`
`Comments
`
`• Comments by Ariba System
`information for the purpose of complying with our legal obligations, which include preventing business
`Wc may use your personal
`laws. To learn more about our privacy
`transactions with restricted parlies and complying with relevant global trade control
`—(cid:9)
`(cid:9)
`(cid:9)
`—
`practices see our privacy policy ai www.ap.jnj.conT
`• Comments by Ariba System
`Acceptance and fulfillment of this Service/Purchase Order constitutes your acceptance of the Johnson & Johnson Services, Inc.,
`Service/Purchase Order Terms and Conditions posted on the following Internet site:
`http://www.ap.jnj.eom/gppidocs/webtc_v_l.9.hlm and incorporated herein by reference. If you arc unable to access the site or if
`you have any questions, please contact the Rcquisitioner on this Purchase Order.
`
`This clause applies to all products and/or materials shipped to Johnson & Johnson Affiliates or authorized locations on wooden
`pallets.
`
`Wood Pallets
`
`Wood pallets will be made from wood that is certified to be free of 2, 4, 6-lribromophcnol (TBP) and any other form of phenol-
`based fungicide treatment,and shall comply with the International Standards for Pliyiosanitary Measures Publication No. 15, 2009
`Revision (ISI'M 1 5) for Heal Treatment only. While ISPM 1 5 currently provides for the use of Methyl Bromide (MB), the use of
`
`

`

`Case 1:21-cv-02807-CAP Document 1-1 Filed 07/14/21 Page 22 of 44
`
`pallets fumigated with Methyl Bromide is also prohibiled.AII wood pallets must properly display that they meet the requirements
`with a specified mark as shown in ISPM 1 5 Annex 11. This requirement is effective immediately, failure to meet this requirement
`may lead to rejection of shipments at supplier's expense.
`• Comments by Ariba System
`FOR YOUR INVOICE TO PAY: All invoices must be sent to the Bill To address on the Purchase Order. Must appear on invoice:
`I) Supplier's Corporate name (must match what is on Purchase order), 2) Purchase Order number (one PO# per invoice), 3) Billing
`and remitting addresses, invoice # and date, 4) Complete description of item or service (should match description on PO), 5) NO
`OVER SHIPMENTS - over shipments will result crediting and re-invoicing a new PO//, 6) Supplier shall ensure that all employees
`who perform duties for Elhicon are aware of and comply with the Johnson & Johnson Policy on Business Conduct and the Johnson
`& Johnson policy on Affirmative Action/Equal Opportunity and Harassment in the Workplace, in connection with the services
`provided to Ethicort as if they were an employee of Elhicon, even though they are not employed by Johnson & Johnson nr F.thicnn.
`
`

`

`Case 1:21-cv-02807-CAP Document 1-1 Filed 07/14/21 Page 23 of 44
`Case 1:21-cv-02807-CAP Document 1—1 Filed 07/14/21 Page 23 of 44
`
`EXHIBIT 2
`EXHIBIT 2
`
`

`

`Case 1:21-cv-02807-CAP Document 1-1 Filed 07/14/21 Page 24 of 44
`
`(ZfPTUM
`
`V Cw»iiK<'S" Gteup
`
`Estimate Detail
`Ethicon AHU #17
`Cornelia. Ga.
`Presented by Opium Conslruciion Group
`February 9 2018
`
`TcUli QtbKjdig A tea
`
`S.O00
`
`1
`
`<74,45 p-Crtf
`
`t
`
`2.172.23B
`
`OTV
`
`UNTS
`
`Ufiil P(ti;e»
`
`•Price EalonsiDiis-
`
`JJba-r
`
`Mill
`
`Sub
`
`Olhcr
`
`Labor
`
`Mlrl
`
`Sub
`
`Oilier
`
`Total
`
`S/Araa
`
`Description
`GENERAL CONDITIONS
`
`Prpjeci Manager
`Superiniendenl
`
`Temporary Tpilel
`
`irtt
`
`mlhs
`
`i_.A
`1.500,00
`
`n_:o
`
`3.C-3
`
`MO
`a o d
`
`occ
`
`OOP
`
`0.1' 3
`
`0.00
`
`~o.ee
`aoo
`tag oo
`
`*50.00
`
`tfl 400
`W.OOP
`0
`0
`
`0
`
`o
`
`0
`
`0
`
`0
`
`0
`
`0
`
`0
`
`0
`
`0
`
`600
`
`7M0
`
`1 4,400
`
`77.000
`
`ooo
`7200
`
`S.40
`
`o.ll
`
`i .**
`
`66.325 DO
`
`Omtraiier ftno foe
`Tc.-HptH.tiyrqHCO & Qaufc.nlfls
`Ftftl Alt! Kit
`Equipnieiil Rental/ Tools
`fcfac
`Piojcci Cleaning / Ma