Case 1:10-cv TSE-TCB Document 1 Filed 03/30/10 Page 1 of 7 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA COMPLAINT

Transcription

1 Case 1:10-cv TSE-TCB Document 1 Filed 03/30/10 Page 1 of 7 FILED IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA (Alexandria Division) MAR 30 P h 58 FEI COMPANY, an Oregon Corporation 5350 NE Dawson Creek Drive Hillsboro, Oregon Plaintiff, Civil Action No CLERK US DISTRICT COURT ALEXANDRIA. VIRGINIA. I- /O v. CAMBRIDGE GLOBAL SERVICES, INC., a Virginia Corporation, Newbrook Drive, Suite 300 Chantilly, Virginia COMPLAINT Defendant. Plaintiff FEI Company ("FEI"), by and through the undersigned counsel, hereby files this Complaint against Defendant Cambridge Global Services, Inc. ("Defendant" or "Cambridge") and states as follows: PARTIES 1. FEI is an Oregon corporation with its principal place of business in Hillsboro, Oregon. 2. Upon information and belief, Cambridge is a Virginia corporation with its principal place of business at Newbrook Drive, Chantilly, Fairfax County, Virginia. JURISDICTION AND VENUE 3. Upon information and belief, this court has diversity jurisdiction under 28 U.S.C because the matter is between citizens of different states and the amount in controversy exceeds the sum of $75,000, exclusive of interest and costs. 4. Venue is proper in this Court under 28 U.S.C because the Defendant

2 Case 1:10-cv TSE-TCB Document 1 Filed 03/30/10 Page 2 of 7 resides in the Eastern District of Virginia. FACTUAL ALLEGATIONS 5. Plaintiff is a is a provider of electron and ion-beam microscopes and tools for nanoscale applications across multiple industries, including industrial and academic materials research, life sciences, semiconductors, data storage, natural resources and others. 6. On or about April 2,2009, Cambridge issued to FEI its Purchase Order No ("PO# 13922") for the purchase and sale of (i) a Quanta 200 FEG model electron microscope and related accessories, software licenses, service and installation (collectively, the "200 FEG"), and (ii) a Tecnai G2 Spirit Bio TWIN model electron microscope and related accessories, software licenses, service and installation (collectively, the "Tecnai"),in the total amount of $1,558,900. A copy of PO #13922 is attached as Exhibit A. 7. Pursuant to PO #13922, both the 200 FEG and the Tecnai were to be delivered to and installed at the Department of Homeland Security ("DHS") facility in Fort Detrick, Maryland. 8. The payment terms for PO #13922 were 90% due on delivery of each of the electron microscopes and accessories to DHS, and the remaining 10% due on DHS's acceptance of the installation of each electron microscope. 9. The Tecnai was delivered to DHS on or about July 1, A copy of the signed delivery receipt for the Tecnai is attached as Exhibit B. 10. On July 1, 2009, FEI issued invoice number to Cambridge in the net amount of $864, which includes 90% of the Tecnai purchase price, plus freight in the amount of $14,223. A copy of invoice number is attached as Exhibit C. 11. FEI continues to provide installation services to DHS with respect to the Tecnai,

3 Case 1:10-cv TSE-TCB Document 1 Filed 03/30/10 Page 3 of 7 and expects that DHS will shortly issue a Certificate of Acceptance with respect to the Tecnai. Once the Certificate of Acceptance is issued for the Tecnai, Cambridge also will be liable for the remaining 10% of the Tecnai purchase price, which is $94, The 200 FEG was delivered to DHS on or about September August 27, A copy of the signed delivery receipt is attached as Exhibit D. 13. On August 28, 2009, FEI issued invoice number to Cambridge in the net amount of $540, which includes 90% of the 200 FEG purchase price, plus freight in the amount of $9,024. A copy of invoice number is attached as Exhibit E. 14. On or about December 17,2009, DHS executed and delivered a Certificate of Acceptance with respect to the 200 FEG. A copy of the Certificate of Acceptance is attached as Exhibit F. 15. On January 14, 2010, FEI issued invoice number in the amount of $59,087.60, representing the remaining 10% of the purchase price of the 200 FEG. A copy of invoice number is attached as Exhibit G. 16. On or about September 23,2009, Cambridge issued to FEI its Purchase Order No ("PO# ") for the purchase and sale of a Quanta 3D FEG model electron microscope and related accessories, software licenses, service and installation (collectively, the "3D FEG") in the total amount of $1,100,000, for delivery and installation at the Knolls Atomic Power Lab ("KAPL") in Schenectady, New York. A copy of PO # is attached as Exhibit H. 17. The payment terms for PO # were 90% due on delivery of the 3D FEG to KAPL, and the remaining 10% due on acceptance of the 3D FEG installation by KAPL. 18. On October 2,2009, FEI issued invoice numbers and A to

4 Case 1:10-cv TSE-TCB Document 1 Filed 03/30/10 Page 4 of 7 Cambridge, in the net amount of $990,000 reflecting the 90% of the 3D FEG purchase price due on delivery to DHS. Copies of invoice numbers and A are attached as Exhibit I. 19. The electron microscope and accessories purchased pursuant to PO # were delivered to KAPL on or about October 2,2009. A copy of the proof of delivery is attached as Exhibit J. 20. On March 25, 2010, KAPL issued a Certificate of Acceptance for the 3D FEG. A copy of the Certificate of Acceptance is attached as Exhibit K. 21. Upon issuance of a Certificate of Acceptance by KAPL with respect to the 3D FEG, Cambridge became obligated to pay FEI the remaining 10% due under PO # and on March 29,2010, FEI issued invoice number A copy of invoice number is attached as Exhibit L. 22. On or about February 2, 2009, Cambridge issued its Purchase Order No ("PO #13167") to FEI for the purchase and sale of a power supply unit for an electron microscope installed for the United States Department of Energy (the "DOE") at the Hanford Nuclear Reservation facility of Battelle Pacific Northwest in Richland, Washington. A copy of PO #13167 is attached as Exhibit M. 23. On June 2, 2009, Cambridge shipped the power supply in response to PO # and issued invoice number B in the amount of $12,966. A copy of invoice number B is attached hereto as Exhibit N. 24. On information and belief, Cambridge has been paid in full by DHS for the Tecnai. 25. On information and belief, Cambridge has been paid in full by DHS for the 200 FEG.

5 Case 1:10-cv TSE-TCB Document 1 Filed 03/30/10 Page 5 of On information and belief, Cambridge has been paid in full by KAPL for the 3D FEG. 27. On information and belief, Cambridge has been paid in full by the DOE for the power supply. 28. On November 6, November 9 and December 11,2009, Cambridge wire transferred to FEI funds totaling $281, in partial payment on invoice number , leaving a remaining balance due on that invoice of $583, Despite repeated demands, Cambridge failed and refused to make payment on invoice , leaving an unpaid principal balance due of $540,812 on this invoice. 30. Despite repeated demands, Cambridge has failed and refused to make payment on invoice and , leaving an unpaid principal balance due of $1,100,000 on these invoices. 31. Despite repeated demands, Cambridge has failed and refused to pay invoice number B, leaving an unpaid principal balance due of $12,997 on this invoice. COUNT 1 - BREACH OF CONTRACT (PO #13922) 32. The allegations in paragraphs 1 through 31 are incorporated herein as if fully set forth in their entirety. 33. PO #13922 constitutes a binding contractual obligation according to its terms. 34. FEI has fully performed its obligations under PO # Cambridge is contractually obligated to pay FEI the full amount due for the 200 FEG, the Tecnai and the related accessories, software licenses, service and installation provided to DHS pursuant to PO # Cambridge is in breach of its contractual obligations under PO #13922 by failing

6 Case 1:10-cv TSE-TCB Document 1 Filed 03/30/10 Page 6 of 7 to pay FEI the remaining amount due under PO # COUNT 2 - BREACH OF CONTRACT (PO # ) 37. The allegations in paragraphs 1 through 36 are incorporated herein as if fully set forth in their entirety. 38. PO # constitutes a binding contractual obligation according to its terms. 39. FEI has fully performed its obligation to deliver a model Quanta 3D FEG electron microscope related accessories, software licenses, service and installation to KAPL pursuant to PO# Cambridge is contractually obligated to pay FEI the full amount due for the goods delivered to KAPL pursuant to PO # Cambridge is in breach of its contractual obligations under PO # by failing to pay FEI the amount now due under PO # COUNT 3 - BREACH OF CONTRACT (PO #13167) 42. The allegations in paragraphs 1 through 41 are incorporated herein as if fully set forth in their entirety. 43. PO # constitutes a binding contractual obligation according to its terms. 44. FEI has fully performed its obligation to deliver a power supply to the DOE pursuant to PO # Cambridge is contractually obligated to pay FEI the full amount due for the goods delivered to the DOE pursuant to PO # Cambridge is in breach of its contractual obligations under PO #13167 by failing to pay FEI the amount now due under PO #13167.

7 Case 1:10-cv TSE-TCB Document 1 Filed 03/30/10 Page 7 of 7 PRAYER FOR RELIEF WHEREFORE Plaintiff respectfully demands judgment in favor of FEI and against Cambridge Global Services, Inc. as follows: A. For an award in the total amount of not less than $2,296, for amounts due and outstanding on invoice numbers B, , ,369821, A, and ; B. For an award of interest on all contractually due amounts at the judgment rate pursuant to Va. Code. Ann and from the date each payment came due until paid in full; C. For an award of its attorney fees and costs incurred in this action; and D. Such further and additional relief as the Court believes just and equitable under the circumstances. Respectfully submitted, Dated: March 30, 2010 By_ (VSB# 68594) ;o"ie, LLP 607 Fourteenth Street N.W., Suite 800 Washington D.C Phone: Fax: JRoche@perkinscoie.com Attorneys for Plaintiff FEI COMPANY