MVSD State motions for end to suit

The attorney general claims the construction company cannot countersue.
COLUMBUS -- The Ohio Attorney General's Office filed a motion seeking the dismissal of a countersuit against the Mahoning Valley Sanitary District by the Rhode Island company that handled its capital improvements projects over nonpayment of fees.
The Gilbane Building Co., which managed $50 million improvement projects at the MVSD, had filed a countersuit against the water district last month seeking the recovery of about $2 million in unpaid fees for project management work.
The MVSD halted payment to Gilbane in mid-1996 after a special state audit of the water agency said the contractor was overpaid by about $2.4 million. Gilbane had a contract with the MVSD that ran through May 1998.
Civil lawsuit: A federal judge threw out a civil lawsuit last month filed by the general's office against Gilbane seeking the recovery of the $2.4 million, saying the payment was not illegal. The attorney general's office is appealing the decision.
The attorney general filed the motion to dismiss the countersuit Wednesday because the MVSD is not a plaintiff in the case, said Joe Case, an agency spokesman. The attorney general filed the case on behalf of the MVSD and its 300,000 customers in Mahoning and Trumbull counties, but the water agency was not specifically named as a plaintiff in the original suit, he said.
"Defendant can state no counterclaim against the Ohio Attorney General in this special representative capacity, nor can defendant counterclaim against the Mahoning Valley Sanitary District because it is not the plaintiff. Accordingly, defendant's counterclaims fail to state a claim upon which relief may be granted and must be dismissed," the attorney general's motion reads.
Wes Cotter, a Gilbane spokesman, declined to comment because company officials have not seen the attorney general's court filing.
The attorney general also sued Edward A. Flask of Poland and Frank D. DeJute of Niles, two former MVSD directors, for $2.4 million each, claiming they improperly paid Gilbane for work not done at the water agency. Flask declared bankruptcy days before his civil suit was to start last month causing it to be indefinitely suspended. DeJute's case is set for Dec. 17.

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