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UNITED STATES DISTRICT COURT


SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
UNITED STATES OF AMERICA
Plaintiff
v.
A 2011 MACK GRANITE SERIES
GU713 TRUCK, VIN#
1M2AX09C5BM009801, WITH ALL
ATTACHMENTS THEREON
Defendant 1,
AND
A 2011 MACK GRANITE SERIES
GU713 TRUCK, VIN#
1M2AX09C7BM009802, WITH ALL
ATTACHMENTS THEREON
Defendant 2.

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CASE NO. 1:15-CV-785

ANSWER OF CLAIMANT, EVANS TRANSPORT, INC.


Comes now Claimant, Evans Transport, Inc. (Evans), by and through counsel, and for
its Answer to the Verified Complaint for Forfeiture in Rem (the Complaint), states the
following:
1.

The allegations in Paragraph 1 of the Complaint call for a conclusion of law to

which no response is required. To the extent the allegations are factual in nature and thus require
a response, Evans denies those allegations.

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2.

Evans admits the allegations in Paragraph 2 of the Complaint.

3.

Evans admits the allegations in Paragraph 3 of the Complaint.

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4.

The allegations in Paragraph 4 of the Complaint call for a conclusion of law to

which no response is required. To the extent the allegations are factual in nature and thus require
a response, Evans denies those allegations.
5.

The allegations in Paragraph 5 of the Complaint call for a conclusion of law to

which no response is required. To the extent the allegations are factual in nature and thus require
a response, Evans denies those allegations.
6.

Evans admits that the defendant property was located within the jurisdiction of

this Court when it was seized. Evans denies the remaining allegations in Paragraph 6 of the
Complaint.
7.

Evans denies the allegations in Paragraph 7 of the Complaint.

8.

Evans denies the allegations in Paragraph 8 of the Complaint.

9.

Evans admits that Ergon Site Construction, LLC (Ergon) has been registered

with the State of Ohio as a limited liability company since April, 2010. Evans lacks sufficient
knowledge to admit or deny the remaining allegations in Paragraph 9 of the Complaint and
therefore denies those allegations.
10.

Evans lacks sufficient knowledge to admit or deny the allegations in Paragraph 10

of the Complaint and therefore denies those allegations. (That said, it was represented to Evans
by Korey Jordan, the President and owner (100%) of Ergon, that Ergon was certified as a Small
Business Enterprise (SBE) and as a Minority Business Enterprise (MBE)).
11.

It is unclear what is meant by the term listed in the allegations in Paragraph 11

of the Complaint, and Evans denies the allegation that Korey Jordan was the listed owner and
President of Ergon on this basis. Based on representations made to Evans by Korey Jordan and
certain paperwork reflecting same, it was Evans understanding that Korey Jordan was in fact the

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sole member and manager of Ergon, and its President. Evans lacks sufficient knowledge to
admit or deny the remaining allegations in Paragraph 11 of the Complaint.
12.

Evans admits that Douglas L. Evans is the President of Evans Landscaping, Inc.1

The remaining allegations in Paragraph 12 of the Complaint are denied. The allegation that
Evans Landscaping, Inc. is a multimillion dollar business is superfluous and misleading, and
should be stricken from the Complaint. In point of fact, Evans Landscaping, Inc. had humble
beginnings. The origins of the company date back to when Doug Evans was still in high school
and amounted to no more than Mr. Evans providing mulch (and other landscaping products and
related services) to local residences and businesses. In those days, the business amounted to
little more than Mr. Evans, his modest truck, and the shovel Mr. Evans would use to personally
shovel the mulch from the truck bed. Over the years, on account of Mr. Evans tireless work
ethic and dedication to his customers, the company grew. Foregoing college, Mr. Evans put
everything he had into the company and continued to grow the business.

As any small

businessman must do, he took on risk and believed in himself, his employees, and his customers.
Over the years, his indefatigable efforts have been rewarded. Mr. Evans has molded Evans
Landscaping, Inc. into an industry leader, a profitable business, and one of the areas most
significant employers. (On average, the Evans-affiliated group of companies employ in excess
of 200 people.)

Far from merely a multimillion dollar for-profit corporation, Evans

Landscaping, Inc. and the other Evans affiliates collectively stand as a tangible symbol of the
American dream, a testament to the value of hard work and dedication, and the incalculable
benefits of the spirit of private enterprise. The Evans companies have become one of the most

Throughout the Complaint, reference is made to several entities affiliated with Mr. Evans (of which Evans
Landscaping, Inc. and Evans Transport, Inc. are but two). As used subsequently herein, the term Evans is used as
a short-form reference to refer collectively to the group of companies affiliated with Mr. Evans or, as the case may
be, to whatever Evans-affiliated entity or entities is referenced in the corresponding Paragraph of the Complaint.
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significant drivers of the economic growth and development experienced over the years by
Newtown, Ohio and its surrounding communities. Mr. Evans and his affiliated entities have seen
to it that the community as a whole has shared in the economic success of the Evans-affiliated
group of companies by contributing substantial resources in the form of donated goods and
services to those in need.
13.

Evans lacks sufficient knowledge to admit or deny the allegations in Paragraph 13

of the Complaint and therefore denies those allegations. Upon information and belief, Ergon was
founded in or about 2008 by Korey Jordan, then a co-owner of a business that served as a thirdparty vendor to Evans and who Mr. Evans came to know in connection with Mr. Evans
participation in and sponsorship of certain local youth sports activities for disadvantaged youth.
Upon information and belief, Mr. Jordan was and remained the sole owner of Ergon at all times.
As such, Mr. Jordan controlled Ergons affairs in all respects and was solely responsible for any
and all corporate action taken by Ergon. Ergon could and did act only by and through Mr.
Jordan, and no other person or entity had the legal authority or ability to cause Ergon to act (or
not act), to legally bind Ergon, or to make representations or commitments on its behalf.
14.

Evans denies the allegations in Paragraph 14 of the Complaint insofar as it is

alleges that Evans Landscaping, Inc. provided all of the startup financing for Ergon. On the
basis of his personal relationship with Mr. Jordan, Mr. Doug Evans and certain of his affiliated
companies did agree to make certain loans to Mr. Jordan so that Ergon could have operational
cash-flow out of the gate. These modest loans were made on market terms and were fully repaid
by Mr. Jordan and/or Ergon over a period of years.
15.

Evans lacks sufficient knowledge to admit or deny the allegations in Paragraph 15

of the Complaint and therefore denies those allegations. It is noted that the 7973 Broadwell

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Road address, owned by B.E.E. Holdings, LP (an Evans-affiliated company), was Ergons
original office location. The location was rented by Ergon and the rental terms reflect market, if
generous, terms. As for Ergons name, upon information and belief the name was suggested by
Maurice (Mo) Patterson, then Evans Chief Financial Officer. (Mr. Patterson has since left
Evans and now works for ORourke Wrecking Co. (or one of its affiliated companies), one of
Evans most substantial industry competitors.) Upon information and belief, Ergon in Greek
means to work or to toil.
16.

Evans lacks sufficient knowledge to admit or deny the allegations in Paragraph 16

of the Complaint and therefore denies those allegations. Upon information and belief, Mr.
Patterson was involved in assisting Mr. Jordan in navigating the paperwork associated with Mr.
Jordans incorporation of Ergon. Indeed, Mr. Patterson was one of two individuals affiliated
with Evans who actively promoted the idea of assisting Mr. Jordan in his efforts to establish
Ergon, and who first proposed the idea of providing such assistance to Evans President (Mr.
Doug Evans). The other individual was Mr. Tony Schweier, a certified public accountant and
shareholder with Clark Schaefer Hackett (Evans longtime accounting firm), who over the years
came to have an active role in advising Mr. Doug Evans in relation to Evans operations,
management, legal affairs, and finances, and who had gained Mr. Evans trust and confidence
and on whom Mr. Evans often relied for sound advice regarding major business decisions of
consequence. By virtue of his position as Evans CFO, Mr. Patterson worked closely with Mr.
Schweier on Evans affairs and especially its finances. (Messrs. Patterson and Schweier in fact
had a preexisting relationship and it was Mr. Schweier who recommended Mr. Patterson to Mr.
Evans to be Evans CFO.) The idea to back Mr. Jordan in his efforts to found and grow Ergon
is fairly attributed to Messrs. Patterson and Schweier.

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Upon information and belief, Messrs. Patterson and Schweier envisaged that Ergon could
become a legitimate and reliable minority business enterprise with whom Evans could partner as
part of a long-term strategy to diversify Evans revenue-base by expanding into the area of
public contracting. (By 2008, the economic recession had taken a toll on Evans revenue base,
which to that point was derived almost exclusively from private, commercial contracting.) As
the individuals principally charged with advising on and ensuring Evans long-term financial
health, and who had a real and significant (if indirect) interest in Evans long-term growth,
Messrs. Patterson and Schweier brought the idea of supporting Mr. Jordan and Ergon to Mr.
Doug Evans and vigorously endorsed it. Mr. Evans, relying completely on the professional
advice of Messrs. Patterson and Schweier, a senior executive of Evans and Evans most trusted
independent advisor heavily involved in Evans day-to-day operations, respectively, gave his
approval. (Mr. Evans was primarily motivated by a desire to assist Mr. Jordan, with whom he
was by then acquainted, in the pursuit of his entrepreneurial dream.)
Mr. Evans expressly and specifically conditioned his approval on arms-length interaction
with Mr. Jordan and Ergon and his standard requirement that things be done the right way.
Beyond approving the general idea of providing meaningful yet arms-length assistance to Mr.
Jordan and Ergon, as proposed by Messrs. Patterson and Schweier, Mr. Doug Evans had no
direct involvement in the founding or creation of Ergon. To the extent the Complaint intends to
suggest that Ergon was the brainchild of Mr. Doug Evans, this is simply not so.
17.

Evans denies the allegations in Paragraph 17 of the Complaint. Upon information

and belief, the defendants (the commercial trucks seized by the government) were originally
purchased by Evans Landscaping, Inc., and subsequently sold to Ergon for value.

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18.

Evans denies the allegations in Paragraph 18 of the Complaint to the extent it is

alleged that the line of credit from PNC was guaranteed by Doug Evans personally. The line of
credit was guaranteed by the company (Evans Landscaping, Inc.), acting by and through its
President, Mr. Doug Evans. Upon information and belief, Ergons line of credit from PNC was,
at some point, reduced to $200,000. Evans is without sufficient information regarding whether
[t]he Ergon loan was approved based, in whole or in part, on the [Evans guarantee]. That said,
it is a reasonable assumption that PNC would not have authorized Ergons line of credit absent
the guarantee from Evans Landscaping, Inc., given that it is unlikely that either Mr. Jordan or
Ergon had sufficient assets to provide security for the line of credit. Ergon was a start-up
company without an established track-record, and Mr. Jordan himself had previously filed for
bankruptcy. Evans Landscaping, Inc. agreed to guarantee the line of credit to Ergon as part of its
effort to provide arms-length assistance to Mr. Jordan and Ergon. The decision was vetted by
and made in reliance on the advice and endorsement of, among others, Clark Schaefer Hackett
(and, specifically, Mr. Tony Schweier).
Of particular note, Mr. Schweier specifically and expressly advised Mr. Doug Evans and
Evans Landscaping that Evans should not condition its willingness to guarantee the line of credit
on Evans approval of any draws. Mr. Schweier advised that to keep appropriate distance
between Ergon and [Evans] that there should NOT be any approvals on draws on the line by
anyone at Evans and that Korey [Jordan] should have sole authority to do that. See Email
from Tony Schweier to Bruce Fahey dated November 8, 2011 at 1:40 p.m., attached as Exhibit 1.
Ultimately, Mr. Jordan maxed out the line of credit and subsequently defaulted. PNC enforced
the guarantee against Evans Landscaping to collect from Evans. Inclusive of attorneys fees and

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costs (required to be paid by Evans pursuant to the terms of the guarantee), Evans was out a total
of $209,544.94.
19.

Evans is without sufficient knowledge to admit or deny the allegations in

Paragraph 19 of the Complaint and therefore denies those allegations. Upon information and
belief, the PNC line of credit indirectly funded the purchase of the defendants (the trucks) only in
part, if at all.
20.

Evans denies the allegations in Paragraph 20 of the Complaint. As to the source

of the funds used by Ergon to make payments on the PNC line of credit, Evans is without
sufficient knowledge and denies the allegation in Paragraph 20 of the Complaint on this basis.
As to the suggestion that Ergon and/or Mr. Jordan committed fraudulent acts in connection with
its contracts and business relationship with Evans, Evans admits that it was the victim of certain
fraudulent actions taken by Mr. Jordan and/or Ergon.

Specifically, Mr. Jordan diverted

significant monies due Evans, representing amounts due for substantial work Ergon
subcontracted to Evans in connection with certain contracts awarded to Ergon by the City of
Cincinnati and generally involving demolition services. Ergon, acting by and through Mr.
Jordan, misrepresented to Evans that the City of Cincinnati had yet to pay the substantial
amounts due, when in fact Mr. Jordan well knew that the amounts had been paid and that he had
proactively caused the form of payment from the City to be changed in such a way as to shield
knowledge of the payment from Evans. (A portion of these funds were located and were ordered
frozen by the Hamilton County Court of Pleas in October 2014 in connection with certain civil
litigation filed by Evans against Ergon. See Order dated October 24, 2014, entered in Evans
Landscaping, Inc. v. Ergon Site Construction, LLC et al., attached as Exhibit 2.

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As to the suggestion that Evans engaged in any fraudulent acts or knew of any fraudulent
actions taken by or on behalf of Ergon, such allegations are vehemently denied. Evans was in
fact a victim both of Ergons fraud (diversion of the funds paid to Ergon due to Evans for
subcontracting work on the City of Cincinnati demolition projects) and its poor business
practices (Ergons default on the PNC line of credit caused PNC to collect on the guarantee
provided by Evans Landscaping, Inc., to the tune of over $200,000).
21.

Evans denies the allegations in Paragraph 21 of the Complaint. Evans did not

manage transfers of funds into and out of Ergons bank accounts. Rather, having found
himself in over his head in terms of his operation of Ergon and consequently without the
revenue necessary to support the level of back-office infrastructure required to support Ergons
operations, Mr. Jordan expressly and specifically delegated to certain Evans personnel the
information necessary to access Ergons accounts and to make specific payments and transfers of
funds for Ergon (as directed by Mr. Jordan). Evans did not and could not take action on Ergons
behalf without the express authorization of Mr. Jordan; for that matter, Evans could not access
the Ergon bank account(s) absent Mr. Jordan providing Evans with the information necessary to
access the accounts. In essence, Evans provided Ergon with certain back-office administrative
support, and the funds transfers executed by Evans personnel amounted to ministerial actions
taken by and for Mr. Jordan and/or Ergon at the express and specific direction of Mr. Jordan.
Insofar as the allegations in Paragraph 21 of the Complaint are intended to suggest that
Evans personnel had discretion to decide when and whether to cause funds to be transferred into
or out of Ergons account, such allegations are vehemently denied. As for the allegation that Mr.
Jordan regularly sought permission from Evans Landscaping executives for the approval of
Ergon expenses, the allegation itself is nonsensical. As the sole owner of Ergon, Mr. Jordan

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and only Mr. Jordan had the authority to approve any and all Ergon expenses and neither Evans
nor its executives (or anyone else, for that matter) could dictate to Ergon what or whom it paid
(and when it did so). Not only that, but because Mr. Schweier had advised Evans not to require
Ergon to obtain Evans approval as to any draws on the Ergon line of credit that Evans had
agreed to guarantee, Mr. Jordan and Ergon had access to pay for any and all expenses on
demand.
To the extent Mr. Jordan purported to request Evans approval for the payment of
Ergon expenses, such requests in effect reflected efforts on Mr. Jordans part to ensure that his
primary financial backer and key business partner (Evans) did not object to Ergons expenses,
lest that backer and partner conclude that Ergon was being operated irresponsibly and pull its
backing and assistance. (After all, Evans guarantee of Ergons line of credit meant that it had an
interest in the successful and efficient operation of Ergon no different than any commercial
lenders interest in the efficient operation of its commercial borrowers.) Evans interest in
Ergons expenses and Mr. Jordans requests for Evans approval of same reflect inartfullyworded communications by a commercial borrower to its commercial guarantor of the kind to be
reasonably expected, and Evans communications to and from Mr. Jordan in response to his
requests for Evans approval of Ergons expenses reflect the very sort of general oversight
one would expect from a commercial guarantor in Evans shoes.
As to the allegation that Ergons bookkeeping functions were maintained on Evans
Landscapings computer system by an Evans Landscaping employee, here again the
governments allegation is untrue and misleading and the allegation is denied. To the extent that

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Evans assisted Ergon with its bookkeeping, it did so at the request of Mr. Jordan and for his and
Ergons benefit, and with his express permission and authority.2
22.

Evans admits the allegations in Paragraph 22 of the Complaint in part.

Specifically, Evans admits that Ergon (acting through Mr. Jordan) provided Evans with signed,
blank checks. It is further admitted that Evans personnel used these checks to make payments
from Ergons bank account. To the extent that the allegations in Paragraph 22 suggest that any
payments made using the signed, blank checks provided to Evans personnel by Mr. Jordan were
not made at the express direction of Mr. Jordan and without his knowledge, the allegation is
denied. The practice of providing Evans personnel with signed, blank checks was adopted only
after it became plain that Ergon was struggling and Evans agreed to help Mr. Jordan and Ergon
by, in essence, permitting Mr. Jordan to outsource Ergons back-office functions to Evans. In
this way, Ergon was able to avoid incurring the cost of operational overhead and obtain the
competent and experienced back-office support it desperately needed. Evans charged Ergon a
nominal fee for performing these back-office functions.
As to the allegations that Ergon was required to obtain Evans authorization to pay Ergon
personnel and that Evans at times directed the hiring and firing of Ergon personnel, such
allegations are denied. Indeed, as outlined previously above, the suggestion that Ergon needed
Evans authorization or approval to do anything is objectively false. Mr. Jordan was the sole

During Ergons infancy, such assistance was more limited, and was intended as a temporary arrangement to help
Mr. Jordan in getting Ergon off the ground. As time wore on and it was clear that Mr. Jordan was in over his head
and lacked the necessary work ethic, such assistance was more substantial, and was intended to help Mr. Jordan
stabilize Ergon (in which Evans had an interest, as a lender and creditor) until Mr. Jordan could ascertain a workable
exit strategy. By this time it was plain that Ergon was not generating the revenue necessary to support such backoffice functions and Ergon had been forced to shed the personnel Ergon had to that time employed to perform such
functions.
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owner of Ergon and not only could, but did, guide Ergon through the exercise of his independent
judgment. Evans could not cause Ergon to act and could not prevent Ergon from acting.3
23.

The allegations in Paragraph 23 of the Complaint call for a conclusion of law to

which no response is required. To the extent the allegations are factual in nature and thus require
a response, Evans denies those allegations.
24.

Evans admits that the City of Cincinnati has or had a program for small-business

enterprises. Evans lacks sufficient knowledge to admit or deny the remaining allegations in
Paragraph 24 of the Complaint and therefore denies those allegations.
25.

The allegations in Paragraph 25 of the Complaint call for a conclusion of law to

which no response is required. To the extent the allegations are factual in nature and thus require
a response, Evans denies those allegations.

There is, in fact, considerable irony in the suggestion that Ergon was subservient to Evans and that Mr.
Jordan was in effect merely a puppet of his Evans puppet masters. After all, Mr. Jordan was if anything fiercely
defensive of Ergons autonomy and strongly committed to Ergons independence. He told Evans senior leadership
as much loudly and frequently.
A few examples include the following. In an email to Mr. Doug Evans, Mr. Schweier, and various senior
Evans personnel dated March 1, 2013 and sent at 1:13 p.m., Mr. Jordan made clear that Ergon is independent of
Evans Landscaping, and what Korey [Jordan] WANTS has nothing and I mean nothing to do with Evans
Landscaping at all. (emphasis in original). Further, in an email to Mr. Schweier dated March 2, 2013 and sent at
2:42 p.m., Mr. Jordan explained that he had taken certain actions with which Mr. Schweier had taken exception
because Mr. Jordan needed [a third-party] to see that Evans is not in control. Still further, in an email to various of
Evans senior personnel dated August 20, 2013 and sent at 1:11 pm., an indignant Mr. Jordan made clear that he was
not a figure head and that [e]very choice [he has] made [he] made as a business owner, demanded that he be
respected as such, and further stated that he was a customer of Evans and will be treated as such.
As it was, such fierce expressions of his commitment to Ergons independence by Mr. Jordan were often
triggered by sincere offers of assistance extended by Mr. Schweier and Evans senior leadership. For example, one
angry rebuke was triggered by an email sent by Mr. Schweier to Mr. Jordan on March 1, 2013 at 1:25 p.m., wherein
Mr. Schweier reminded a struggling Mr. Jordan that Doug [Evans] (and all of his people) have been nothing but
supportive and that Doug [Evans] has provided financial support in the form of business loans [and] accounting
assistance and counseling and most recently [a third-party] as someone with particular expertise in both MBEs and
construction companies as an additional resource for you and Ergon, explaining that the frustration on [Mr.
Schweiers] end is that while [Mr. Jordan] [was] continually provided with resources [Mr. Jordan] [didnt] take
advantage of them like [he] could and should and that [m]any MBEs in this city would love to have the financial
support and professional advice [he] ha[d] been afforded. Mr. Schweier dismissed Mr. Jordans adolescent and
unnecessary defense of Ergons independence thusly: No one is interested in controlling you at all.
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26.

The allegations in Paragraph 26 of the Complaint call for a conclusion of law to

which no response is required. To the extent the allegations are factual in nature and thus require
a response, Evans denies those allegations.
27.

The allegations in Paragraph 27 of the Complaint call for a conclusion of law to

which no response is required. To the extent the allegations are factual in nature and thus require
a response, Evans denies those allegations.
28.

The allegations in Paragraph 28 of the Complaint call for a conclusion of law to

which no response is required. To the extent the allegations are factual in nature and thus require
a response, Evans denies those allegations.
29.

Evans lacks sufficient knowledge to admit or deny the allegations in Paragraph 29

of the Complaint and therefore denies those allegations.


30.

Evans lacks sufficient knowledge to admit or deny the allegations in Paragraph 30

of the Complaint and therefore denies those allegations. Upon information and belief, Ergon at
various times employed individuals who had been at one time or another employed by Evans.
That previous employees of Evans worked at Ergon is wholly unremarkable, and in fact quite
expected given Evans admirable commitment to lend Mr. Jordan arms-length support and
assistance as concerned his formation and operation of Ergon. To the extent the allegations in
Paragraph 30 are intended to suggest something untoward, the allegations are denied. Ergon
employed various personnel at various times over the course of its history; by no means were all
of its employees previous employees of Evans.
31.

Evans lacks sufficient knowledge to admit or deny the allegations in Paragraph 31

of the Complaint and therefore denies those allegations. Evans had no idea what Mr. Jordan was
representing or causing Ergon to represent. Evans had no role in determining what Mr. Jordan

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and Ergon represented to the City of Cincinnati or to any other person or entity. Evans
reasonably assumed that Mr. Jordan and/or Ergon was being truthful and complete in making
whatever disclosures and representations were required to be made in connection with obtaining
certified SBE status with the City.

Evans had no direct involvement in Ergons SBE-

certification process, nor did it have an in-depth understanding of the SBE-certification


requirements. Evans did not know what Ergon was required to represent as concerned any startup funding provided by Evans, any loans extended by Evans, or Evans status as guarantor of
Ergons line of credit with PNC Bank. Evans did not know whether or what Ergon represented
to the City or failed to represent in relation to these things.4
32.

Evans lacks sufficient knowledge to admit or deny the allegations in Paragraph 32

of the Complaint and therefore denies those allegations.


33.

Evans lacks sufficient knowledge to admit or deny the allegations in Paragraph 33

of the Complaint and therefore denies those allegations. Upon information and belief, from 2011
to 2015 Ergon was awarded a significant volume of demolition contracts from the City of
Cincinnati. Ergon subcontracted a significant portion of the work to be performed on these

Having said that, it should be noted that the City of Cincinnati, by and through its employees and officers, well
knew that Evans was assisting Ergon (in the broadest sense) and specifically that Evans was lending Ergon
meaningful support, guidance, equipment, and mentorship. The City personnel charged with overseeing and
directing the programs pursuant to which Ergon was certified and awarded its significant City demolition contracts
namely, inter alia, Theresa Stark (Senior Contract Compliance Specialist, Office of Contract Compliance) and Al
Taylor (Assistant Supervisor of Inspections, Department of Trade and Development) were very much aware of the
assistance Evans was providing Ergon. From the beginning, Ms. Stark and Mr. Taylor had regular communication
with senior Evans personnel regarding the status and progress of the demolition projects that Ergon had been
awarded and well knew that Ergon was subcontracting a significant part of these projects to Evans. Far from
objecting to Evans involvement in these projects or the assistance Evans was providing Ergon, these individuals if
anything actively supported Evans involvement and role. After Ergon had been awarded a high volume of City
demolition contracts and was struggling to perform the demolitions it had contracted to perform (and to perform
them in an acceptable manner), Mr. Taylor in particular increasingly communicated with Evans personnel directly in
an effort to remedy Ergons consistently unsatisfactory performance. For her part, Ms. Stark regularly
communicated with Evans personnel about, among other things, Mr. Jordans consistent failure to submit the proper
paperwork to the City for payment and how to remedy the issue. Upon information and belief, on a few occasions
Evans personnel accompanied Mr. Jordan when he met with Ms. Stark regarding the persistent problems with the
paperwork.
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contracts to Evans. Evans fully performed the work Ergon subcontracted Evans to perform.
Evans incurred significant operational expense in connection with performing the subcontracted
work. Ergon failed to pay Evans for performing the subcontracted work on these projects,
however. The total amount still due and owing Evans is in excess of $270,000.5
Thus, on account of Mr. Jordans diversion of the monies paid to Ergon by the City and
due Evans for its subcontracting work on the projects, Evans involvement as a subcontractor of
Ergon on the City demolition contracts resulted in a substantial loss. It is noted, however, that
Evans involvement (as a subcontractor of Ergon) on the demolition jobs would not have been a
huge money-maker for Evans even had Ergon paid Evans the full amount due Evans for its
subcontractor work on the demolition jobs. Given the nature of the work, the small individual
contract amounts (typically $10,000-$15,000), and the substantial operating costs of performing
the equipment-intensive work Ergon subcontracted Evans to perform on these jobs, Evans
profit-margins were thin. Any revenue generated by Evans involvement in Ergons demolition
contracts awarded by the City would have represented a very small percentage of Evans total
annual revenue.
34.

Evans lacks sufficient knowledge to admit or deny the allegations in Paragraph 34

of the Complaint and therefore denies those allegations.

Mr. Jordan effectively stole the substantial monies due Evans. Mr. Jordan on multiple occasions represented to
senior Evans personnel that Evans had not yet been paid because Ergon was still awaiting payment from the City.
Upon information and belief, as it turned out the reason that payment was delayed from the City was that Mr. Jordan
failed to submit the requisite paperwork to the City (or submitted it incorrectly). Also on information and belief, at
some point the City paid Ergon the amount due under the contracts, but Mr. Jordan continued to falsely represent to
Evans that Ergon was still awaiting payment from the City. Meanwhile, Mr. Jordan proactively took steps to cause
substantial payments from the City to Ergon to be paid by check instead of by wire transfer, as they usually were,
which under the circumstances would have caused Evans to be alerted to the Citys payment(s) to Ergon. Mr.
Jordan then deposited these substantial payments into his personal bank account.
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35.

The allegations in Paragraph 35 of the Complaint call for a conclusion of law to

which no response is required. To the extent the allegations are factual in nature and thus require
a response, Evans denies those allegations.
36.

Evans lacks sufficient knowledge to admit or deny the allegations in Paragraph 36

of the Complaint and therefore denies those allegations. Upon information and belief, Ergon did
not perform all the demolition work it was contracted to do by the City. Consequently, Ergon
was not paid by the City on all its demolition contracts.

Accordingly, to the extent the

allegations in Paragraphs 33-36 intend to suggest that Ergon was paid more than $2 million from
the City in connection with the demolition contracts it was awarded and subsequently transferred
this amount to Evans Landscaping, those allegations are not only fantastically misleading but are
in fact objectively wrong on their face.6 To the extent that the amount specified in Paragraph 36
was in fact transferred from Ergons bank account to Evans Landscaping, it should be noted that
that entire amount of money was certainly not entirely derived from payments from the City in
connection with Ergons demolition contracts. Evans performed and provided other services and
products to Ergon separate and apart from the subcontracting services it provided in connection
with Ergons demolition contracts with the City and for which Evans was paid.
Upon information and belief, in relation to the subcontracting work performed in
connection with Ergons demolition contracts with the City, Evans invoiced Ergon
approximately $1.6 million. Upon information and belief, Ergon paid Evans only $1.35 million.
Furthermore, to the extent that the suggestion is that Evans made the referenced transfers, it is

By virtue of the information obtained through the search warrants executed in connection with the underlying
criminal matter, the government is in possession of information that makes clear that any suggestion to this effect is
incorrect. It is hard to imagine that the government has not reviewed this information. The inescapable conclusion
is that the allegations in Paragraph 36 of the Complaint amount to an attempt to cherry-pick certain facts to suggest a
conclusion that the government well knows based on other facts is not true. Such conduct is disturbing indeed.
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again reiterated that any transfers of Ergon funds from the Ergon bank account were made
pursuant to the direction and authority of Mr. Jordan.
37.

Evans denies the allegations in Paragraph 37 of the Complaint. Furthermore, the

allegations are unclear. In particular, it is not clear what is meant by the allegation that Evans
orchestrated Ergons bids on the City demolition contracts. At Mr. Jordans direction, certain
Evans personnel did on occasion transmit bids for City demolition contracts on behalf of Ergon.
But such bid submissions were transmitted at the express direction of Mr. Jordan and with his
express authority. The Evans personnel who took such action on behalf of Ergon (at Mr.
Jordans direction) did so consistent with Evans efforts to assist Mr. Jordan with Ergons
administrative functions and in connection with its efforts to assist Ergon by providing the
necessary back-office support Ergon could not at that time itself afford.
Also, the allegation that Evans performed nearly all the work obtained by Ergon under
the City of Cincinnati contracts is particularly misleading. For one thing, Ergon did perform a
substantial portion of the work. But in any event, even to the extent that this allegation may be
said to be true, the work Evans performed was performed as a legitimate, known, and upon
information and belief approved subcontractor on these contracts. Upon information and
belief, Ergon was required to disclose the existence and identity of its subcontractors to the City.
Evans had no reason to suspect that Ergon did not or was not properly disclosing Evans as a
subcontractor. Even if Ergon in fact did not disclose Evans as a subcontractor, it can hardly be
said that the City was unaware of Evans role in relation to the demolition contracts as a major
contractor. After all, City administrators regularly communicated with Evans about its role and
work on the demolition projects. Not only this, City employees routinely appealed to Evans to
assist Mr. Jordan after it had become clear that he was in way over his head and in many

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instances to fix or complete demolition work performed by Ergon not up to the Citys standards.
In this sense, it can be said that to the extent Evans did in fact perform nearly all of the work
on the City demolition contracts, this was because the City itself ultimately urged Evans to clean
up many Ergon messes, so to speak.
Finally, as concerns the allegation that Evans involvement on the City demolition
contracts reflected an attempt to fraudulently obtain the Citys demolition contracts, such an
allegation is not only untrue but also makes little sense. Evans (as a group of companies)
generated between $35-40 million in annual revenue during the relevant period. Even if it were
the case that the entirety of the approximately $2 million in City demolition work awarded to
Ergon was actually paid by the City (it wasnt) and then paid over to Evans (it wasnt), and
further that these funds represented net profits (they didnt), it makes little sense that Evans
would perpetrate a fraud that in the big picture would benefit the company so negligibly.7
38.

Evans denies the allegations in Paragraph 38 of the Complaint.

39.

The allegations in Paragraph 39 of the Complaint call for a conclusion of law to

which no response is required. To the extent the allegations are factual in nature and thus require
a response, Evans denies those allegations.
40.

The allegations in Paragraph 40 of the Complaint call for a conclusion of law to

which no response is required. To the extent the allegations are factual in nature and thus require
a response, Evans denies those allegations.

In other words, the government would have the Court believe that Evans went to great lengths to execute a scheme
to defraud the City of Cincinnati out of $2 million over a six-year period. Given that Evans was generating $35-40
million in gross revenue annually over this period, this amount translates to less than 1% of Evans revenue. When
one considers that the $2 million is a gross number (i.e., does not account for Evans expenses in performing the
contracts alleged to have been fraudulently obtained), it becomes clear that the fraudulent scheme so recklessly
alleged by the government would be, if true (it is not), the dumbest fraud ever.
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41.

Evans admits that Korey Jordan represented to Evans multiple times that Ergon

was certified as an EDGE-certified business. Evans lacks sufficient knowledge to admit or deny
the remaining allegations in Paragraph 41 of the Complaint and therefore denies those
allegations.
42.

Evans lacks sufficient knowledge to admit or deny the allegations in Paragraph 42

of the Complaint and therefore denies those allegations. Upon information and belief, the
referenced materials were submitted by Ergon acting, as it always did and necessarily had to,
through Mr. Jordan.
43.

Evans denies the allegations in Paragraph 43 of the Complaint.

Further in

response thereto, Evans references in relevant part its previous responses as outlined herein.
44.

Evans lacks sufficient knowledge to admit or deny the allegations in Paragraph 44

of the Complaint and therefore denies those allegations. Evans was unaware of what Mr. Jordan
was representing on behalf of Ergon and to whom any representations were being made. Evans
had no involvement in Mr. Jordans determination of what should be represented on behalf of
Ergon and to whom.

Independent of what Mr. Jordan disclosed or failed to disclose to

whomever he was required to make disclosures, the allegation that employees of Evans
Landscaping were able to make financial decisions regarding Ergon is denied. The allegation
is, in fact, legally incorrect. As the sole member of Ergon, Mr. Jordan and only Mr. Jordan
had the legal authority to make decisions for Ergon. Evans personnel did not make financial
decisions regarding Ergon. Evans personnel executed financial decisions regarding Ergon (per
Mr. Jordans express direction and with his express authority), but they did not make them.

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45.

Evans lacks sufficient knowledge to admit or deny the allegations in Paragraph 45

of the Complaint and therefore denies those allegations. Further in response thereto, Evans
references its response to the allegations in Paragraph 44.
46.

Evans denies the allegations in Paragraph 46 of the Complaint.

47.

Evans denies the allegations in Paragraph 47 of the Complaint. Evans relied on

Mr. Jordans representations to Evans that Ergon was both capable and willing to perform the
specified scope of work. Mr. Jordan authorized and approved Evans identification of Ergon as
the proposed EDGE subcontractor for bids for public projects submitted by Evans in all
instances. Furthermore, the suggestion that Evans knew that Ergon was not in fact capable of
performing the specified scope of work, but listed Ergon anyway to avoid the cost of a
legitimate EDGE subcontractor, makes little sense. The average EDGE subcontract typically
amounted to 5-10% of the overall contract and cutting out the EDGE subcontractor would also
mean that Evans would have to perform that scope of work itself (and absorb the cost of doing
so) or pay a third-party to perform the work (at Evans expense).

00024047.1

48.

Evans denies the allegations in Paragraph 48 of the Complaint.

49.

Evans denies the allegations in Paragraph 49 of the Complaint.

50.

Evans denies the allegations in Paragraph 50 of the Complaint.

51.

Evans denies the allegations in Paragraph 51 of the Complaint.

52.

Evans denies any and all allegations not specifically admitted above.

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DEFENSES
FIRST DEFENSE
Plaintiffs Complaint fails to state a claim upon which relief can be granted.
SECOND DEFENSE
Evans is an innocent owner of the defendant property.
THIRD DEFENSE
Evans is a bona fide purchaser for value of the defendant property.
FOURTH DEFENSE
The defendant property is not traceable to criminal proceeds and was not used in the
commission of a crime.
WHEREFORE, having fully answered Plaintiffs Complaint, Evans hereby prays that
the Complaint be dismissed and that Plaintiff takes nothing thereby, that Evans is granted court
costs, attorneys fees incurred in defending this action, and all other such relief as the Court
deems just and equitable.
JURY DEMAND
Evans hereby demands a trial by jury of all issues so triable.

Respectfully submitted,
_______________________________________
Benjamin G. Dusing (0078572)
Angela Hayden (0070557)
THE LAW OFFICES OF BENJAMIN G.
DUSING, P.L.L.C.
50 East RiverCenter Blvd., Suite 820
Covington, Kentucky 41011
(513) 322-1900
Email: bdusing@bgdlaw.com
ahayden@bgdlaw.com

Counsel for Evans Transport, Inc.


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and

Zachary K. Peterson (0089332)


EVANS TRANSPORT, INC.
4229 Roundbottm Road
Cincinnati, OH 45244
(513) 271-1119
Email: zpeterson@theevansgroupinc.com

General Counsel for Evans Transport, Inc.

CERTIFICATE OF SERVICE
I hereby certify that on January 22, 2016, I electronically filed the foregoing with the
Clerk of the Court using the CM/ECF system which will send notification of such filing to all
parties of record.

/s/ Benjamin G. Dusing


Benjamin G. Dusing

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