Saldana v. Mission Drywall, Inc. et al

Western District of Texas, txwd-5:2018-cv-01060

ANSWER to [1] Complaint. Attorney Michael V. Galo, Jr added to party David Ernst(pty:dft) by David Ernst.

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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION MICHAEL SALDAÑA, Individually and on behalf of all others similarly situated, Plaintiff, cascos concos con cos con cosas con cascos Civil Action No. 5:18-cv-01060 MISSION DRYWALL, INC., BOB Š MUTZ, and DAVID ERNST, Defendants. DEFENDANT DAVID ERNST'S ORIGINAL ANSWER AND AFFIRMATIVE DEFENSES Defendant David Ernst files this Original Answer and Affirmative Defenses to Plaintiff's claims under the Fair Labor Standards Act and shows the following: Answer The allegations in Plaintiff's Original Complaint (hereinafter referred to as "Plaintiff's Complaint") are hereinafter answered in correspondingly numbered Paragraphs: 1. Defendant admits that this claim is brought under the FLSA but denies that Plaintiff is entitled to any unpaid overtime wages, damages, and/or penalties. 2. Defendant admits that Plaintiff seeks to certify a class of workers who provided services to Defendant Mission Drywall but denies that a class is appropriate. 3. Defendant denies the allegations in Paragraph 3 of Plaintiff's Complaint. Defendant denies the allegations in Paragraph 4 of Plaintiff's Complaint. Defendant denies the allegations in Paragraph 5 of Plaintiff's Complaint. Page 1 of 9 Defendant denies the allegations in Paragraph 6 of Plaintiff's Complaint. Defendant admits the allegations in Paragraph 7 of Plaintiff's Complaint. ó i co Defendant denies the allegations in Paragraph 8 of Plaintiff's Complaint. Defendant denies the allegations in Paragraph 9 of Plaintiff's Complaint. 10. Defendant admits the allegations in Paragraph 10 of Plaintiff's Complaint except that Defendant denies that Plaintiff was an employee of Defendants. 11. Defendant denies the allegations in Paragraph 11 of Plaintiff's Complaint. Defendant admits the allegations in Paragraph 12 of Plaintiff's Complaiint. 12. 13. Defendant admits that Defendant Mutz may be served at 5811 New Sulphur Springs Rd., San Antonio, Texas, but denies the remaining allegations in Paragraph 13 of Plaintiff's Complaint. 14. Defendant denies that he was an "employer" of Plaintiff within the meaning of the FLSA. Defendant admits the remaining allegations in Paragraph 14 of Plaintiff's Complaint. 15. Defendant denies the allegations in Paragraph 15 of Plaintiff's Complaint. 16. Defendant admits the allegations in Paragraph 16 of Plaintiff's Complaint. 17. Defendant admits the allegations in Paragraph 17 of Plaintiff's Complaint. Defendant admits the allegations in Paragraph 18 of Plaintiff's Complaint. 19. Defendant admits the allegations in Paragraph 19 of Plaintiff's Complaint. 20. Defendant admits the allegations in Paragraph 20 of Plaintiff's Complaint. 21. Defendant admits that Mission Drywall is a dryall installation and repair business in San Antonio. Defendant denies that Mission Drywall operates throughout Central Texas. 22. Defendant denies the allegations in Paragraph 22 of Plaintiff's Complaint. Page 2 of 9 23. Defendant admits that Plaintiff, as an independent contractor to Mission Drywall, together with helpers hired and paid by him, performed drywall repair and sometimes small drywall installation jobs. Defendant denies the remaining allegations in Paragraph 23 of Plaintiff's Complaint. 24. Defendant denies the allegations in Paragraph 24 of Plaintiff's Complaint. 25. Defendant denies the allegations in Paragraph 25 of Plaintiff's Complaint. 26. Defendant denies the allegations in Paragraph 26 of Plaintiff's Complaint. 27. Defendant denies the allegations in Paragraph 27 of Plaintiff's Complaint. 28. Defendant denies the allegations in Paragraph 28 of Plaintiff's Complaint. 29. Defendant denies the allegations in Paragraph 29 of Plaintiff's Complaint. 30. Defendant denies the allegations in Paragraph 30 of Plaintiff's Complaint. 31. Defendant denies the allegations in Paragraph 31 of Plaintiff's Complaint. 32. Defendant denies the allegations in Paragraph 32 of Plaintiff's Complaint. 33. Defendant denies the allegations in Paragraph 33 of Plaintiff's Complaint. 34. Defendant admits that Defendant Mission Drywall sometimes scheduled Plaintiff's appointments in coordination with Plaintiff and the customer. 35. Defendant denies the allegations in Paragraph 35 of Plaintiff's Complaint. 36. Defendant denies the allegations in Paragraph 36 of Plaintiff's Complaint. 37. Defendant denies the allegations in Paragraph 37 of Plaintiff's Complaint. 38. Defendant denies the allegations in Paragraph 38 of Plaintiff's Complaint. 39. Defendant denies the allegations in Paragraph 39 of Plaintiff's Complaint. Page 3 of 9 40. Defendant admits that Plaintiff performed drywall repair and occasionally small installation work on behalf of Mission Drywall. Defendant denies the remaining allegations in Paragraph 40 of Plaintiff's Complaint. 41. Defendant denies the allegations in Paragraph 41 of Plaintiff's Complaint. 42. Defendant denies the allegations in Paragraph 42 of Plaintiff's Complaint. 43. Defendant denies the allegations in Paragraph 43 of Plaintiff's Complaint. 44. Defendant denies the allegations in Paragraph 44 of Plaintiff's Complaint. 45. Defendant denies the allegations in Paragraph 45 of Plaintiff's Complaint except that Defendant admits that Plaintiff's work was manual in nature and did not require a college education or advanced degree. 46. Defendant admits the allegations in Paragraph 46 of Plaintiff's Complaint except that Plaintiff operated his own business. 47. Defendant denies the allegations in Paragraph 47 of Plaintiff's Complaint. 48. Defendant admits the allegations in Paragraph 48 of Plaintiff's Complaint. 49. Defendant denies the allegations in Paragraph 49 of Plaintiff's Complaint. 50. Defendant admits the allegations in Paragraph 50 of Plaintiff's Complaint but only as to Mission Dry Wall's customers. 51. Defendant denies the allegations in Paragraph 51 of Plaintiff's Complaint. Defendant denies the allegations in Paragraph 52 of Plaintiff's Complaint. Defendant denies the allegations in Paragraph 53 of Plaintiff's Complaint. 54. Defendant denies the allegations in Paragraph 54 of Plaintiff's Complaint. 55. Defendant admits that Mission Drywall provided some supplies to Plaintiff but Plaintiff used his own tools, equipment, and vehicle. Page 4 of 9 56. Defendant denies the allegations in Paragraph 56 of Plaintiff's Complaint. 57. Defendant denies the allegations in Paragraph 57 of Plaintiff's Complaint. 58. Defendant denies the allegations in Paragraph 58 of Plaintiff's Complaint. 59. Defendant denies the allegations in Paragraph 59 of Plaintiff's Complaint. 60. Defendant denies the allegations in Paragraph 60 of Plaintiff's Complaint. 61. Defendant denies the allegations in Paragraph 61 of Plaintiff's Complaint. 62. Defendant admits that Mission Drywall relied on Plaintiff's work. Defendant denies the remaining allegations in Paragraph 62 of Plaintiff's Complaint. 63. Defendant admits that Plaintiff worked on projects assigned by Mission Drywall and that Plaintiff's work benefitted Mission Drywall's customers. Defendant denies the remaining allegations in Paragraph 63 of Plaintiff's Complaint. 64. Defendant admits that Plaintiff was paid weekly. Defendant denies the remaining allegations in Paragraph 64 of Plaintiff's Complaint. 65. Defendant denies the allegations in Paragraph 65 of Plaintiff's Complaint. 66. Paragraph 66 of Plaintiff's Complaint is a statement regarding the law and therefore requires no admission or denial. 67. Defendant denies the allegations in Paragraph 67 of Plaintiff's Complaint. 68. Defendant denies the allegations in Paragraph 68 of Plaintiff's Complaint. Defendant 69. Defendant denies the allegations in Paragraph 69 of Plaintiff's Complaint. 70. Defendant re-alleges and incorporates by reference its admissions and denials to Paragraphs 1-69 of Plaintiff's Complaint. 71. Paragraph 71 of Plaintiff's Complaint is a statement regarding the law and therefore requires no admission or denial. Page 5 of 9 72. Defendant denies the allegations in Paragraph 72 of Plaintiff's Complaint. Defendant denies the allegations in Paragraph 73 of Plaintiff's Complaint. Defendant denies the allegations in Paragraph 74 of Plaintiff's Complaint. Defendant denies the allegations in Paragraph 75 of Plaintiff's Complaint. Defendant denies the allegations in Paragraph 76 of Plaintiff's Complaint. Defendant denies the allegations in Paragraph 77 of Plaintiff's Complaint. 78. Defendant denies the allegations in Paragraph 78 of Plaintiff's Complaint. 79. Defendant denies the allegations in Paragraph 79 of Plaintiff's Complaint. 80. Defendant admits that Plaintiff attempts to certify a class but denies that certification is proper. 81. Defendant denies the allegations in Paragraph 81 of Plaintiff's Complaint. 82. Defendant re-alleges and incorporates by reference its admissions and denials to Paragraphs 1-81 of Plaintiff's Complaint. 83. Defendant denies the allegations in Paragraph 83 of Plaintiff's Complaint. 84. Defendant denies the allegations in Paragraph 84 of Plaintiff's Complaint. 85. Defendant denies the allegations in Paragraph 85 of Plaintiff's Complaint. 86. Defendant denies the allegations in Paragraph 86 of Plaintiff's Complaint. Defendant denies the allegations in Paragraph 87 of Plaintiff's Complaint. Defendant denies the allegations in Paragraph 88 of Plaintiff's Complaint. 89. Defendant denies the allegations in Paragraph 89 of Plaintiff's Complaint. 90. Defendant denies the allegations in Paragraph 90 of Plaintiff's Complaint. 91. Defendant re-alleges and incorporates by reference its admissions and denials to Paragraph 1-90 of Plaintiff's Complaint. Page 6 of 9 92. Defendant admits that Plaintiff seeks to certify a class but denies that certification is appropriate. 93. Defendant denies the allegations in Paragraph 93 of Plaintiff's Complaint. 94. Defendant admits that Plaintiff seeks to certify a class but denies that certification is appropriate. 95. Defendant denies the allegations in Paragraph 95 of Plaintiff's Complaint. 96. Defa Defendant denies the allegations in Paragraph 96 of Plaintiff's Complaint. 97. Defendant denies the allegations in Paragraph 97 of Plaintiff's Complaint. 98. Defendant denies the allegations in Paragraph 98 of Plaintiff's Complaint. 99. Defendant denies the allegations in Paragraph 99 of Plaintiff's Complaint. 100. Defendant denies the allegations in Paragraph 100 of Plaintiff's Complaint. 101. Defendant denies the allegations in Paragraph 101 of Plaintiff's Complaint. 102. Defendant denies the allegations in Paragraph 102 of Plaintiff's Complaint. 103. Defendant denies the allegations in Paragraph 103 of Plaintiff's Complaint 104. Defendant denies the allegations in Paragraph 104 of Plaintiff's Complaint. Affirmative Defenses In addition to the factual and legal denials stated above, Defendant sets forth the following Affirmative Defenses and other defenses to the allegations contained in the Original Complaint. Plaintiff's claims are barred, in whole or in part, by the following: 1. 2. Plaintiff was an independent contractor; The putative class members were independent contractors; Defendant asserts the good faith defense under 29 USC Section 260. Defendant 3. in objective good faith classified Plaintiff as an independent contractor. Page 7 of 9 4. Defendant pleads the good faith defense under 29 USC Section 259. 5. Plaintiff's claims are barred in whole or in part by the applicable statute of limitations to the extent that Plaintiff's or any putative class members seek back wages beyond the two-year limitations period. 6. Without assuming the burden of proof, any violation of the FLSA by Defendant (which is denied) was not willful, and therefore all claims are limited to two year limitations period calculated from the date the named Plaintiff brought suit, or any future plaintiff files his or her written consent to join this action. 7. If Plaintiff and any other class members are ultimately determined to be entitled to wages or other compensation, Defendants is entitled to offset all compensation or funds paid to Plaintiff and other class members to which they had no entitlement. 8. Plaintiff's and the class members' claims are barred to the extent that they are seeking compensation for time that was not "work" within the meaning of the FLSA and the Portal-to-Portal Act. 9. Likewise, Plaintiff's and the class members' claims are barred to the extent that the activities for which they seek compensation (such as commuting and other non-compensable travel time) were preliminary, postliminary, or taken for plaintiffs' own convenience. 10. Defendant asserts that this action is not properly a collective action and Plaintiff is not a proper representative because Plaintiff is not similarly-situated with the other individuals who Plaintiff seeks to join in the class. Conclusion Defendants prays that, upon final hearing, Plaintiff take nothing and that Defendant be awarded all relief available. Page 8 of 9 Respectfully submitted, /s/ Michael V. Galo, Jr. Michael V. Galo, Jr. State Bar No. 00790734 Galo Law Firm, P.C. 4230 Gardendale, Bldg 401 San Antonio, Texas 78229 Telephone: (210) 616-9800 Facsimile: (210) 616-9898 mgalo@galolaw.com ATTORNEYS FOR DEFENDANTS CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the above and foregoing has been served on the following counsel of record through the Court's electronic filing system, in accordance with the Federal Rules of Civil Procedure on this 24th day of April, 2019. Mr. Clif Alexander Ms. Lauren E. Braddy Mr. Alan Clifton Gordon Mr. Carter T. Hastings Mr. George Schimmel ANDERSON ALEXANDER, PLLC 819 N. Upper Broadway Corpus Christi, Texas 78401 via Electronic Filing System /s/ Michael V. Galo, Jr. MICHAEL V. Galo, Jr. Page 9 of 9