Alvarez v. Emergency Site Protection, LLC et al

Western District of Texas, txwd-5:2018-cv-01298

ANSWER to {{1}} Complaint by Emergency Site Protection, LLC.

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7 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION JOSUE ALVAREZ, § Individually and on behalf of all others § similarly situated, § § Plaintiff, § § vs. § NO. 5:18-CV-01298 § EMERGENCY SITE PROTECTION, § LLC, GRYPHON OILFIELD § SOLUTIONS, LLC, and SANCHEZ § OIL & GAS CORPORATION, § § Defendants. § DEFENDANT'S ORIGINAL ANSWER AND AFFIRMATIVE AND OTHER DEFENSES TO PLAINTIFF'S ORIGINAL COLLECTIVE ACTION COMPLAINT Defendant Emergency Site Protection, LLC ("Defendant"), by and through its undersigned counsel, files this Original Answer and Affirmative and Other Defenses to Plaintiff's Original Collective Action Complaint ("Complaint") filed by Plaintiff Josue Alvarez ("Plaintiff'). Defendant denies all allegations not expressly admitted herein and further answers as follows: I. OVERVIEW 1. Answering Paragraph 1, Defendant admits that Plaintiff purports to bring this action to recover allegedly unpaid minimum wages, overtime wages, and liquidated damages pursuant to the Fair Labor Standards Act ("FLSA"), 29 U.S.C. 7 §§ 201-19. Except as expressly admitted, Defendant denies the allegations in Paragraph 1 of the Complaint. 2. Answering Paragraph 2, Defendant denies that it employed Plaintiff or any other worker hired after April 15, 2017. Defendant denies that it employed anyone similarly situated to Plaintiff. 3. Answering Paragraph 3, Defendant denies the allegation that it improperly classified Plaintiff as an independent contractor because it did not employ Plaintiff. Defendant denies that it employed anyone similarly situated to Plaintiff. 4. Answering Paragraph 4, Defendant denies the allegations because it did not employ Plaintiff. Defendant denies that it employed anyone similarly situated to Plaintiff. 5. Answering Paragraph 5, Defendant denies the allegations because it did not employ Plaintiff. Defendant denies that it employed anyone similarly situated to Plaintiff. 6. Answering Paragraph 6, Defendant denies the allegations because it did not employ Plaintiff. Defendant denies that it employed anyone similarly situated to Plaintiff. 7. Answering Paragraph 7, Defendant admits that Plaintiff purports to seek to recover all unpaid wages and other damages owed under the FLSA as a 2 7 collective action pursuant to 29 U.S.C. § 216(b). Defendant denies the allegation to the extent it implies that Plaintiff was an employee of Defendant. 8. Answering Paragraph 8, Defendant admits that Plaintiff prays that all similarly situated workers be notified of the pendency of this action to apprise them of their rights and provide them an opportunity to join this lawsuit. Defendant denies the allegation to the extent it implies that Plaintiff was an employee of Defendant. II. PARTIES 9. Answering Paragraph 9, Defendant denies the allegations because it did not employ Plaintiff. 10. Answering Paragraph 10, Defendant denies the allegations because it did not employ anyone similarly situated to Plaintiff. 11. Answering paragraph 11, Defendant admits that it is a Texas limited liability company, but denies the remainder of the allegation. 12. Defendant is without sufficient knowledge or information to admit or deny the allegations in Paragraph 12. Therefore, such allegations are denied. 13. Defendant is without sufficient knowledge or information to admit or deny the allegations in Paragraph 13. Therefore, such allegations are denied. 14. The allegations in Paragraph 14 consist of legal conclusions to which no response is required. To the extent a response is required, the allegations are denied. 3 7 III. COVERAGE UNDER THE FLSA 15. Answering Paragraph 15, Defendant admits that the Court has subject- matter jurisdiction over this action but denies violating any laws supporting a claim for relief by Plaintiff and denies that this lawsuit is properly maintained as a collective action. 16. Answering Paragraph 16, Defendant admits that the Court has personal jurisdiction over it. Defendant lacks sufficient knowledge or information to admit or deny the remainder of the allegations in Paragraph 16 as to the other defendants. Therefore, those allegations are denied. 17. Answering Paragraph 17, Defendant denies that venue is proper in the Western District of Texas. 18. Answering Paragraph 18, Defendant lacks sufficient information or knowledge to admit or deny. Therefore, such allegations are denied. 19. Answering Paragraph 19, Defendant denies that venue is proper in the Western District of Texas. IV. ADDITIONAL FACTS 20. Answering Paragraph 20, Defendant admits that it provided security services to certain clients until April 15, 2017. With regard to the allegations about the other Defendant Gryphon, Defendant lacks sufficient information or knowledge to admit or deny. All remaining allegations are denied. 4 7 21. Answering Paragraph 21, Defendant denies the allegation concerning its actions. With regard to the allegations about the other defendants in this case, Defendant lacks sufficient knowledge or information to admit or deny. Therefore, such allegations are denied. 22. Answering Paragraph 22, Defendant denies it employed Plaintiff. With regard to the allegations about the other defendants in this case, Defendant lacks sufficient knowledge or information to admit or deny. Therefore, such allegations are denied. 23. Answering Paragraph 23, Defendant denies because Defendant did not employ Plaintiff or anyone similarly situated to Plaintiff. With regard to the allegations about the other defendants in this case, Defendant lacks sufficient knowledge or information to admit or deny. Therefore, such allegations are denied. 24. Paragraph 24 consists of a legal conclusion to which no response is required. To the extent a response is required, the allegation is denied. 25. Answering Paragraph 25, Defendant denies the allegations concerning it because it did not employ Plaintiff or anyone similarly situated to Plaintiff. With regard to the allegations about the other defendants in this case, Defendant lacks sufficient knowledge or information to admit or deny. Therefore, such allegations are denied. 5 7 26. Answering Paragraph 26, Defendant denies the allegations concerning it because it did not employ Plaintiff or anyone similarly situated to Plaintiff. With regard to the allegations about the other defendants in this case, Defendant lacks sufficient knowledge or information to admit or deny. Therefore, such allegations are denied. 27. Answering Paragraph 27, Defendant denies the allegations concerning it because it did not employ Plaintiff or anyone similarly situated to Plaintiff. With regard to the allegations about the other defendants in this case, Defendant lacks sufficient knowledge or information to admit or deny. Therefore, such allegations are denied. 28. Answering Paragraph 28, Defendant denies the allegations concerning it because it did not employ Plaintiff or anyone similarly situated to Plaintiff. With regard to the allegations about the other defendants in this case, Defendant lacks sufficient knowledge or information to admit or deny. Therefore, such allegations are denied. 29. Answering Paragraph 29, Defendant denies the allegations concerning it because it did not employ Plaintiff. With regard to the allegations about the other defendants in this case, Defendant lacks sufficient knowledge or information to admit or deny. Therefore, such allegations are denied. 6 7 30. Answering Paragraph 30, Defendant denies the allegations to the extent they imply that Plaintiff or anyone similarly situated to Plaintiff was an employee of Defendant. Defendant further denies the allegations concerning its actions. With regard to the allegations about the other defendants in this case, Defendant lacks sufficient knowledge or information to admit or deny. Therefore, such allegations are denied. 31. Answering Paragraph 31, Defendant denies the allegations to the extent they imply that Plaintiff or anyone similarly situated to Plaintiff was an employee of Defendant. Defendant further denies the allegations concerning its actions. With regard to the allegations about the other defendants in this case, Defendant lacks sufficient knowledge or information to admit or deny. Therefore, such allegations are denied. 32. Answering Paragraph 32, Defendant denies the allegations to the extent they imply that Plaintiff or anyone similarly situated to Plaintiff was an employee of Defendant. Defendant further denies the allegations concerning its actions. With regard to the allegations about the other defendants in this case, Defendant lacks sufficient knowledge or information to admit or deny. Therefore, such allegations are denied. 33. Answering Paragraph 33, Defendant denies the allegations to the extent they imply that Plaintiff or anyone similarly situated to Plaintiff was an employee of 7 7 Defendant. Defendant further denies the allegations concerning its actions. With regard to the allegations about the other defendants in this case, Defendant lacks sufficient knowledge or information to admit or deny. Therefore, such allegations are denied. 34. Answering Paragraph 34, Defendant denies the allegations to the extent they imply that Plaintiff or anyone similarly situated to Plaintiff was an employee of Defendant. Defendant further denies the allegations concerning its actions. With regard to the allegations about the other defendants in this case, Defendant lacks sufficient knowledge or information to admit or deny. Therefore, such allegations are denied. 35. Answering Paragraph 35, Defendant denies the allegations to the extent they imply that Plaintiff or anyone similarly situated to Plaintiff was an employee of Defendant. Defendant further denies the allegations concerning its actions. With regard to the allegations about the other defendants in this case, Defendant lacks sufficient knowledge or information to admit or deny. Therefore, such allegations are denied. 36. Answering Paragraph 36, Defendant denies the allegations to the extent they imply that Plaintiff or anyone similarly situated to Plaintiff was an employee of Defendant. Defendant further denies the allegations concerning its actions. With regard to the allegations about the other defendants in this case, Defendant lacks 8 7 sufficient knowledge or information to admit or deny. Therefore, such allegations are denied. 37. Answering Paragraph 37, Defendant denies the allegations to the extent they imply that Plaintiff or anyone similarly situated to Plaintiff was an employee of Defendant. Defendant further denies the allegations concerning its actions. With regard to the allegations about the other defendants in this case, Defendant lacks sufficient knowledge or information to admit or deny. Therefore, such allegations are denied. 38. Answering Paragraph 38, Defendant denies the allegations to the extent they imply that Plaintiff or anyone similarly situated to Plaintiff was an employee of Defendant. Defendant further denies the allegations concerning its actions. With regard to the allegations about the other defendants in this case, Defendant lacks sufficient knowledge or information to admit or deny. Therefore, such allegations are denied. 39. Answering Paragraph 39, Defendant denies the allegations to the extent they imply that Plaintiff or anyone similarly situated to Plaintiff was an employee of Defendant. Defendant further denies the allegations concerning its actions. With regard to the allegations about the other defendants in this case, Defendant lacks sufficient knowledge or information to admit or deny. Therefore, such allegations are denied. 9 7 40. Answering Paragraph 40, Defendant denies the allegations to the extent they imply that Plaintiff or anyone similarly situated to Plaintiff was an employee of Defendant. Defendant further denies the allegations concerning its actions. With regard to the allegations about the other defendants in this case, Defendant lacks sufficient knowledge or information to admit or deny. Therefore, such allegations are denied. 41. Answering Paragraph 41, Defendant denies the allegations to the extent they imply that Plaintiff or anyone similarly situated to Plaintiff was an employee of Defendant. Defendant further denies the allegations concerning its actions. With regard to the allegations about the other defendants in this case, Defendant lacks sufficient knowledge or information to admit or deny. Therefore, such allegations are denied. 42. Answering Paragraph 42, Defendant denies the allegations to the extent they imply that Plaintiff or anyone similarly situated to Plaintiff was an employee of Defendant. Defendant further denies the allegations concerning its actions. With regard to the allegations about the other defendants in this case, Defendant lacks sufficient knowledge or information to admit or deny. Therefore, such allegations are denied. 43. Answering Paragraph 43, Defendant denies the allegations to the extent they imply that Plaintiff or anyone similarly situated to Plaintiff was an employee of 10 7 Defendant. Defendant further denies the allegations concerning its actions. With regard to the allegations about the other defendants in this case, Defendant lacks sufficient knowledge or information to admit or deny. Therefore, such allegations are denied. 44. Answering Paragraph 44, Defendant denies the allegations to the extent they imply that Plaintiff or anyone similarly situated to Plaintiff was an employee of Defendant. Defendant further denies the allegations concerning its actions. With regard to the allegations about the other defendants in this case, Defendant lacks sufficient knowledge or information to admit or deny. Therefore, such allegations are denied. 45. Answering Paragraph 45, Defendant denies the allegations to the extent they imply that Plaintiff or anyone similarly situated to Plaintiff was an employee of Defendant. Defendant further denies the allegations concerning its actions. With regard to the allegations about the other defendants in this case, Defendant lacks sufficient knowledge or information to admit or deny. Therefore, such allegations are denied. 46. Answering Paragraph 46, Defendant denies the allegations to the extent they imply that Plaintiff or anyone similarly situated to Plaintiff was an employee of Defendant. Defendant further denies the allegations concerning its actions. With regard to the allegations about the other defendants in this case, Defendant lacks 11 7 sufficient knowledge or information to admit or deny. Therefore, such allegations are denied. 47. Answering Paragraph 47, Defendant denies the allegations to the extent they imply that Plaintiff or anyone similarly situated to Plaintiff was an employee of Defendant. Defendant further denies the allegations concerning its actions. With regard to the allegations about the other defendants in this case, Defendant lacks sufficient knowledge or information to admit or deny. Therefore, such allegations are denied. 48. Answering Paragraph 48, Defendant denies the allegations to the extent they imply that Plaintiff or anyone similarly situated to Plaintiff was an employee of Defendant. Defendant further denies the allegations concerning its actions. With regard to the allegations about the other defendants in this case, Defendant lacks sufficient knowledge or information to admit or deny. Therefore, such allegations are denied. 49. Answering Paragraph 49, Defendant denies the allegations to the extent they imply that Plaintiff or anyone similarly situated to Plaintiff was an employee of Defendant. Defendant further denies the allegations concerning its actions. With regard to the allegations about the other defendants in this case, Defendant lacks sufficient knowledge or information to admit or deny. Therefore, such allegations are denied. 12 7 50. Answering Paragraph 50, Defendant denies the allegations to the extent they imply that Plaintiff or anyone similarly situated to Plaintiff was an employee of Defendant. Defendant further denies the allegations concerning its actions. With regard to the allegations about the other defendants in this case, Defendant lacks sufficient knowledge or information to admit or deny. Therefore, such allegations are denied. 51. Answering Paragraph 51, Defendant denies the allegations to the extent they imply that Plaintiff or anyone similarly situated to Plaintiff was an employee of Defendant. Defendant further denies the allegations concerning its actions. With regard to the allegations about the other defendants in this case, Defendant lacks sufficient knowledge or information to admit or deny. Therefore, such allegations are denied. 52. Answering Paragraph 52, Defendant denies the allegations to the extent they imply that Plaintiff or anyone similarly situated to Plaintiff was an employee of Defendant. Defendant further denies the allegations concerning its actions. With regard to the allegations about the other defendants in this case, Defendant lacks sufficient knowledge or information to admit or deny. Therefore, such allegations are denied. 53. Answering Paragraph 53, Defendant denies the allegation concerning its actions. With regard to the allegation about the other defendants in this case, 13 7 Defendant lacks sufficient knowledge or information to admit or deny. Therefore, such allegation is denied. 54. Answering Paragraph 54, Defendant denies the allegations to the extent they imply that Plaintiff or anyone similarly situated to Plaintiff was an employee of Defendant. Defendant further denies the allegations concerning its actions. With regard to the allegations about the other defendants in this case, Defendant lacks sufficient knowledge or information to admit or deny. Therefore, such allegations are denied. 55. Answering Paragraph 55, Defendant denies the allegations to the extent they imply that Plaintiff or anyone similarly situated to Plaintiff was an employee of Defendant. Defendant further denies the allegations concerning its actions. With regard to the allegations about the other defendants in this case, Defendant lacks sufficient knowledge or information to admit or deny. Therefore, such allegations are denied. 56. Answering Paragraph 56, Defendant denies the allegations to the extent they imply that Plaintiff or anyone similarly situated to Plaintiff was an employee of Defendant. Defendant further denies the allegations concerning its actions. With regard to the allegations about the other defendants in this case, Defendant lacks sufficient knowledge or information to admit or deny. Therefore, such allegations are denied. 14 7 57. Answering Paragraph 57, Defendant denies the allegations to the extent they imply that Plaintiff or anyone similarly situated to Plaintiff was an employee of Defendant. Defendant further denies the allegations concerning its actions. With regard to the allegations about the other defendants in this case, Defendant lacks sufficient knowledge or information to admit or deny. Therefore, such allegations are denied. 58. Answering Paragraph 58, Defendant denies the allegations to the extent they imply that Plaintiff or anyone similarly situated to Plaintiff was an employee of Defendant. Defendant further denies the allegations concerning its actions. With regard to the allegations about the other defendants in this case, Defendant lacks sufficient knowledge or information to admit or deny. Therefore, such allegations are denied. 59. The allegations in Paragraph 59 consist of legal conclusions to which no response is required. To the extent a response is required, the allegations are denied. 60. The allegations in Paragraph 60 consist of legal conclusions to which no response is required. To the extent a response is required, the allegations are denied. 61. Answering Paragraph 61, Defendant denies the allegations to the extent they imply that Plaintiff or anyone similarly situated to Plaintiff was an employee of 15 7 Defendant. Defendant further denies the allegations concerning its actions. With regard to the allegations about the other defendants in this case, Defendant lacks sufficient knowledge or information to admit or deny. Therefore, such allegations are denied. Also, to the extent the allegations in Paragraph 61 are a continuation from Paragraph 60, the allegations consist of a legal conclusion to which no response is required. To the extent a response is required, the allegations are denied. 62. The allegations in Paragraph 62 consist of legal conclusions to which no response is required. To the extent a response is required, the allegations are denied. 63. The allegations in Paragraph 63 consist of legal conclusions to which no response is required. To the extent a response is required, the allegations are denied. 64. The allegations in Paragraph 64 consist of legal conclusions to which no response is required. To the extent a response is required, the allegations are denied. 65. The allegations in Paragraph 65 consist of legal conclusions to which no response is required. To the extent a response is required, the allegations are denied. 66. Answering Paragraph 66, Defendant denies the allegations to the extent they imply that Plaintiff or anyone similarly situated to Plaintiff was an employee of 16 7 Defendant. Defendant further denies the allegations concerning its actions. With regard to the allegations about the other defendants in this case, Defendant lacks sufficient knowledge or information to admit or deny. Therefore, such allegations are denied. 67. The allegations in Paragraph 67 consist of legal conclusions to which no response is required. To the extent a response is required, the allegations are denied. 68. The allegations in Paragraph 68 consist of legal conclusions to which no response is required. To the extent a response is required, the allegations are denied. V. CAUSE OF ACTION 69. Answering Paragraph 69 of the Complaint, Defendant incorporates all of the preceding paragraphs of this Answer as though fully set forth herein. 70. Answering Paragraph 70, Defendant admits that Plaintiff seeks to certify a collective of similarly-situated individuals. Defendant denies it employed Plaintiff and denies that this case is properly maintained as a collective action, denies that Plaintiff is similarly situated to any or all of the persons who could fall within the collective definition, and further denies all remaining allegations in Paragraph 70 of the Complaint. 17 7 71. The allegations in Paragraph 71 consist of legal conclusions to which no response is required. To the extent a response is required, the allegations are denied. 72. The allegations in Paragraph 72 consist of legal conclusions to which no response is required. To the extent a response is required, the allegations are denied. 73. The allegations in Paragraph 73 consist of legal conclusions to which no response is required. To the extent a response is required, the allegations are denied. 74. The allegations in Paragraph 74 consist of legal conclusions to which no response is required. To the extent a response is required, the allegations are denied. 75. The allegations in Paragraph 75 consist of legal conclusions to which no response is required. To the extent a response is required, the allegations are denied. 76. Defendant denies the allegations in Paragraph 76 of the Complaint. 77. The allegations in Paragraph 77 consist of legal conclusions to which no response is required. To the extent a response is required, the allegations are denied. 18 7 78. The allegations in Paragraph 78 consist of legal conclusions to which no response is required. To the extent a response is required, the allegations are denied. 79. Answering Paragraph 79, the allegations state a legal conclusion to which no response is required. To the extent a response is required, the allegations are denied. 80. Answering Paragraph 80, the allegations state a legal conclusion to which no response is required. To the extent a response is required, the allegations are denied. 81. Answering Paragraph 81, Defendant admits that Plaintiff purports to bring a collective action. Except as expressly admitted, Defendant denies the allegations in Paragraph 81 of the Complaint. 82. Answering Paragraph 82, the allegations state a legal conclusion to which no response is required. To the extent a response is required, the allegations are denied. 83. Answering Paragraph 83, Defendant acknowledges Plaintiff defines the FLSA Collective Action Members in Paragraph 70 of its Complaint. Defendant incorporates its response to Paragraph 70 as though fully set forth herein. 84. Answering Paragraph 84, Defendant denies the allegations to the extent they imply that Plaintiff or anyone similarly situated to Plaintiff was an employee of 19 7 Defendant. Defendant further denies the allegations concerning its actions. With regard to the allegations about the other defendants in this case, Defendant lacks sufficient knowledge or information to admit or deny. Therefore, such allegations are denied. 85. Answering Paragraph 85, Defendant denies the allegations to the extent they imply that Plaintiff or anyone similarly situated to Plaintiff was an employee of Defendant. Defendant further denies the allegations concerning its actions. With regard to the allegations about the other defendants in this case, Defendant lacks sufficient knowledge or information to admit or deny. Therefore, such allegations are denied. 86. Answering Paragraph 86, the allegations state a legal conclusion to which no response is required. To the extent a response is required, the allegations are denied. 87. Answering Paragraph 87, the allegations state a legal conclusion to which no response is required. To the extent a response is required, the allegations are denied. 88. Answering Paragraph 88, the allegations state a legal conclusion to which no response is required. To the extent a response is required, the allegations are denied. 20 7 89. Answering Paragraph 89, Defendant denies the allegations to the extent they imply that Plaintiff or anyone similarly situated to Plaintiff was an employee of Defendant. Defendant further denies the allegations concerning its actions. With regard to the allegations about the other defendants in this case, Defendant lacks sufficient knowledge or information to admit or deny. Therefore, such allegations are denied. 90. Answering Paragraph 90, the allegations state a legal conclusion to which no response is required. To the extent a response is required, the allegations are denied. 91. Answering Paragraph 91, the allegations state a legal conclusion to which no response is required. To the extent a response is required, the allegations are denied. 92. Defendant denies the allegations in Paragraph 92 of the Complaint. VI. RELIEF SOUGHT 93. Responding to Paragraph 93 and each of its subparts, Defendant states that this paragraph contains no allegations to which Defendant is required to respond, but to the extent such a response is required, Defendant denies that Plaintiff or anyone similarly situated to Plaintiff is entitled to any relief whatsoever. Further, Defendant denies that this case is properly maintained 21 7 as a collective action and denies that Plaintiff is similarly situated to any or all of the persons who could fall within the collective definition. VII. AFFIRMATIVE AND OTHER DEFENSES Defendant asserts the following affirmative and other defenses, which also may apply to the claims of Plaintiff and to the alleged similarly-situated individuals he seeks to represent. By asserting these defenses, Defendant does not concede that it has the burden of proof as to any such defense. To the extent that any defenses or legal theories asserted herein may be interpreted as being inconsistent, such defenses or legal theories are hereby pleaded in the alternative. Subject to and without waiving the foregoing, Defendant states as follows: FIRST DEFENSE The Complaint fails to state a claim upon which relief can be granted, in whole or in part. SECOND DEFENSE The Complaint fails, in whole or in part, because Defendant was not an employer or joint employer either of Plaintiff or those alleged similarly-situated individuals he seeks to represent. 22 7 THIRD DEFENSE Plaintiff's claims and those of the alleged similarly-situated individuals he seeks to represent are barred, in whole or in part, by the applicable statute of limitations. Moreover, pursuant to 29 U.S.C. § 255, the statute of limitations under the FLSA is two years unless the cause of action arose out of a willful violation, in which case the statute of limitations is three years. Plaintiff's claims do not arise out of a willful violation, so the statute of limitations under the FLSA is two years. FOURTH DEFENSE Plaintiff and those alleged similarly-situated individuals he seeks to represent are not entitled to any recovery in this action because the work performed falls within exemptions, exclusions, exceptions, or credits provided for under federal law. FIFTH DEFENSE Plaintiff's claims and those of the alleged similarly-situated individuals he seeks to represent are barred, in whole or in part, by the provisions of Section 10 of the Portal-to-Portal Act, 29 U.S.C. § 259, because actions taken in connection with Plaintiff's compensation were done in good faith in conformity with and in reliance on written administrative regulations, orders, rulings, approvals, interpretations, and written and unwritten administration practices or enforcement policies of the Administrator of the Wage and Hour Division of the U.S. Department of Labor. 23 7 SIXTH DEFENSE Plaintiff's claims and those of the alleged similarly-situated individuals he seeks to represent are barred, in whole or in part, by the provisions of Section 11 of the Portal-to-Portal Act, 29 U.S.C. § 260, because any acts or omissions giving rise to this action were done in good faith, not willfully, and with reasonable grounds for believing that the actions or omissions were not a violation of the FLSA. Accordingly, the Court should exercise its discretion to eliminate and/or reduce any potential award of liquidated damages pursuant to 29 U.S.C. § 260. SEVENTH DEFENSE To the extent applicable, Plaintiff's claims and those of the alleged similarly- situated individuals he seeks to represent are barred by waiver, release, estoppel, unclean hands, avoidable consequences, and/or laches. EIGHTH DEFENSE With regard to the FLSA claim, the effective date of the Complaint for purposes of determining the relevant time period of this action is the date of filing any notice(s) of consent. NINTH DEFENSE To the extent any sum may be found due and owing to Plaintiff or the alleged similarly-situated individuals he seeks to represent, Defendant is entitled to a set-off against said sum to the extent paid, tendered, waived, compromised, and/or released 24 7 prior to the adjudication herein, including but not limited to those amounts paid, tendered, waived, compromised, and/or released through any other proceeding, either formal or informal. TENTH DEFENSE To the extent Plaintiff or the alleged similarly-situated individuals he seeks to represent have filed claims for bankruptcy and have failed to list a wage claim against Defendant as a potential asset in their bankruptcy filings, they are barred from pursuing their wage claims for lack of standing or under the doctrines of judicial estoppel and/or unclean hands. ELEVENTH DEFENSE Plaintiff and the alleged similarly situated individuals he seeks to represent are not entitled to an award of prejudgment interest even if they prevail on any or all of the claims because the damages claimed are not sufficiently certain to allow an award of prejudgment interest. RESERVATION OF RIGHTS Defendant respectfully reserves the right to assert any affirmative or additional defenses it discovers during the course of this litigation and prays that the Court afford it leave to amend its Answer upon a timely motion requesting the ability to do the same. 25 7 WHEREFORE, having fully answered the Complaint, Defendant respectfully requests that this Court dismiss Plaintiff's Complaint with prejudice, deny Plaintiff's demands and prayer for relief, award Defendant its costs and reasonable attorney's fees incurred herein, and grant such other and further relief to which Defendant may be justly or legally entitled. Dated: April 15, 2019 Respectfully submitted, /s/ David B. Jordan David B. Jordan (Attorney-in-Charge) Of Counsel: Texas State Bar No. 24032603 LITTLER MENDELSON Ashley D. Thomas A PROFESSIONAL CORPORATION Texas State Bar No. 24090430 1301 McKinney, Suite 1900 LITTLER MENDELSON Houston, Texas 77010 A PROFESSIONAL CORPORATION 713.652.4709 (Telephone) 1301 McKinney Street, Suite 1900 713.951.9212 (Facsimile) Houston, Texas 77010 713.951.9400 (Telephone) ATTORNEYS FOR DEFENDANT 713.951.9212 (Facsimile) EMERGENCY SITE PROTECTION, LLC 26 7 CERTIFICATE OF SERVICE I hereby certify that on the 15th day of April, 2019, I electronically filed the foregoing document with the Clerk of Court using the CM/ECF system, which will send notification of such filing upon the counsel below: Clif Alexander Lauren E. Braddy Alan Clifton Gordon Carter T. Hastings George Schimmel Anderson Alexander, PLLC 819 N. Upper Broadway Corpus Christi, Texas 78401 Attorneys for Plaintiff /s/ David B. Jordan David B. Jordan FIRMWIDE:163814972.1 071900.1004 27