Saldana v. Mission Drywall, Inc. et al

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

Defendant Bob Mutz's ANSWER to [1] Complaint. Attorney David Montgomery Evans added to party Bob Mutz(pty:dft) by Bob Mutz.

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0 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION MICHAEL SALDANA, § Individually, and on behalf of all others § CIVIL ACTION NO. similarly situated, § 5:18-CV-01060-FB Plaintiff, § § § JURY TRIAL DEMANDED v. § § MISSION DRYWALL, INC. § BOB MUTZ, and DAVID ERNST, § COLLECTIVE ACTION § PURSUANT TO 29 U.S.C. § 216(b) Defendants. § DEFENDANT'S ANSWER & AFFIRMATIVE DEFENSES COMES NOW Defendant Bob Mutz and files this Answer to Plaintiff's Original Complaint and Jury Demand (the Complaint). Unless specifically admitted, Defendant denies each of the allegations in the Complaint. ANSWER As to the statements in the summary paragraph in the Complaint, no response is necessary. 1. As to Paragraph 1 of the Complaint, Defendant admits that Plaintiffs purport to bring their respective claims under the FLSA, but deny Plaintiffs are entitled to the relief they seek—collectively or severally. 2. As Paragraph 2 of the Complaint, Defendant has insufficient evidence at this time to either admit or deny where Plaintiff Ellis lives, and therefore deny same. 3. As to Paragraph 3 of the Complaint, Defendant denies. 4. As to Paragraph 4 of the Complaint, Defendant denies. 5. As to Paragraph 5 of the Complaint, Defendant denies. 0 6. As to Paragraph 6 of the Complaint, Defendant denies. 7. As to Paragraph 7 of the Complaint, Defendant denies. 8. As to Paragraph 8 of the Complaint, Defendant denies. 9. As to Paragraph 9 of the Complaint, Defendant states that this is not a statement to which an admission or denial is appropriate. 10. As to Paragraph 10 of the Complaint, Defendant denies. 11. As to Paragraph 11 of the Complaint, Defendant denies. 12. As to Paragraph 12 of the Complaint, Defendant admits. 13. As to Paragraph 13 of the Complaint, Defendant admits this is his address, but denies the remaining allegations. 14. As to Paragraph 14 of the Complaint, Defendant has insufficient evidence to admit or deny the allegations. 15. As to Paragraph 15 of the Complaint, Defendant denies. 16. As to Paragraph 16 of the Complaint, Defendant admits. 17. As to Paragraph 17 of the Complaint, Defendant admits. 18. As to Paragraph 18 of the Complaint, Defendant admits. 19. As to Paragraph 19 of the Complaint, Defendant admits. 20. As to Paragraph 20 of the Complaint, Defendant admits. 21. As to Paragraph 21 of the Complaint, Defendant denies. 22. As to Paragraph 22 of the Complaint, Defendant denies. 23. As to Paragraph 23 of the Complaint, Defendant denies. 24. As to Paragraph 24 of the Complaint, Defendant denies. 25. As to Paragraph 25 of the Complaint, Defendant denies. 0 26. As to Paragraph 26 of the Complaint, Defendant denies. 27. As to Paragraph 27 of the Complaint, Defendant denies. 28. As to Paragraph 28 of the Complaint, Defendant denies. 29. As to Paragraph 29 of the Complaint, Defendant denies. 30. As to Paragraph 30 of the Complaint, Defendant denies. 31. As to Paragraph 31 of the Complaint, Defendant denies. 32. As to Paragraph 32 of the Complaint, Defendant denies. 33. As to Paragraph 33 of the Complaint, Defendant denies. 34. As to Paragraph 34 of the Complaint, Defendant states that he sold his stake in the company and was no longer associated with it in any capacity as of December 2015 and therefore denies the allegations contained herein. 35. As to Paragraph 35 of the Complaint, Defendant denies. 36. As to Paragraph 36 of the Complaint, Defendant denies. 37. As to Paragraph 37 of the Complaint, Defendant denies. 38. As to Paragraph 38 of the Complaint, Defendant denies. 39. As to Paragraph 39 of the Complaint, Defendant denies. 40. As to Paragraph 40 of the Complaint, Defendant denies. 41. As to Paragraph 41 of the Complaint, Defendant denies. 42. As to Paragraph 42 of the Complaint, Defendant denies. 43. As to Paragraph 43 of the Complaint, Defendant denies. 44. As to Paragraph 44 of the Complaint, Defendant denies. 0 45. As to Paragraph 45 of the Complaint, Defendant admits that the work was manual in nature and required no college education or other advanced degree, but denies the remaining allegations. 46. As to Paragraph 46 of the Complaint, Defendant admits. 47. As to Paragraph 47 of the Complaint, Defendant denies. 48. As to Paragraph 48 of the Complaint, Defendant admits. 49. As to Paragraph 49 of the Complaint, Defendant denies. 50. As to Paragraph 50 of the Complaint, Defendant denies. 51. As to Paragraph 51 of the Complaint, Defendant denies. 52. As to Paragraph 52 of the Complaint, Defendant denies. 53. As to Paragraph 53 of the Complaint, Defendant denies. 54. As to Paragraph 54 of the Complaint, Defendant denies. 55. As to Paragraph 55 of the Complaint, Defendant denies. 56. As to Paragraph 56 of the Complaint, Defendant denies. 57. As to Paragraph 57 of the Complaint, Defendant denies. 58. As to Paragraph 58 of the Complaint, Defendant denies. 59. As to Paragraph 59 of the Complaint, Defendant denies. 60. As to Paragraph 60 of the Complaint, Defendant denies. 61. As to Paragraph 61 of the Complaint, Defendant denies. 62. As to Paragraph 62 of the Complaint, Defendant denies. 63. As to Paragraph 63 of the Complaint, Defendant admits that Mission Drywall's customers were benefited by the work, but denies the remaining allegations. 0 64. As to Paragraph 64 of the Complaint, Defendant admits that Mission Drywall paid its contractors weekly, but denies the remaining allegations. 65. As to Paragraph 65 of the Complaint, Defendant denies. 66. As to Paragraph 66, Defendant states that this is not a statement to which an admission or denial is appropriate. 67. As to Paragraph 67 of the Complaint, Defendant denies. 68. As to Paragraph 68 of the Complaint, Defendant denies. 69. As to Paragraph 69 of the Complaint, Defendant denies. 70. As to Paragraph 70, Defendant incorporates his preceding responses as applicable verbatim. 71. As to Paragraph 71, Defendant states that this is not a statement to which an admission or denial is appropriate. 72. As to Paragraph 72, Defendant denies. 73. As to Paragraph 73, Defendant denies. 74. As to Paragraph 74, Defendant denies. 75. As to Paragraph 75, Defendant denies. 76. As to Paragraph 76, Defendant denies. 77. As to Paragraph 77, Defendant denies. 78. As to Paragraph 78, Defendant denies. 79. As to Paragraph 79, Defendant denies. 80. As to Paragraph 80, Defendant admits that Plaintiff seeks to certify a class, but denies it is appropriate. 81. As to Paragraph 81, Defendant denies. 0 82. As to Paragraph 82, Defendant incorporates his preceding responses as applicable verbatim. 83. As to Paragraph 83, Defendant denies. 84. As to Paragraph 84, Defendant denies. 85. As to Paragraph 85, Defendant denies. 86. As to Paragraph 86, Defendant denies. 87. As to Paragraph 87, Defendant denies. 88. As to Paragraph 88, Defendant denies. 89. As to Paragraph 89, Defendant denies. 90. As to Paragraph 90, Defendant denies. 91. As to Paragraph 91, Defendant incorporates his preceding responses as applicable verbatim. 92. As to Paragraph 92, Defendant admits that Plaintiff seeks to make a collective claim, but denies it is appropriate. 93. As to Paragraph 93, Defendant denies. 94. As to Paragraph 94, Defendant incorporates his response in Paragraph 71. 95. As to Paragraph 95, Defendant denies. 96. As to Paragraph 96, Defendant denies. 97. As to Paragraph 97, Defendant denies. 98. As to Paragraph 98, Defendant denies. 99. As to Paragraph 99, Defendant denies. 100. As to Paragraph 100, Defendant denies. 101. As to Paragraph 101, Defendant denies. 0 102. As to Paragraph 102, Defendant denies. 103. As to Paragraph 103, Defendant denies. 104. As to Paragraph 104, Defendant denies that Plaintiff or any members of any collective action are entitled to any of the relief prayed for in that paragraph or any of its subparts. AFFIRMATIVE & OTHER DEFENSES 105. Without waiving the foregoing, Defendant makes the following affirmative and other defenses. Plaintiff's claims are barred in whole or in part by the following: 106. Independent Contractor. Plaintiff—and the putative class members—were independent contractors, or, in the alternative, Defendant believed in good faith that the same could be classified as independent contractors. 107. Offset. Defendant denies that any wages, overtime or other compensation are owed to Plaintiffs—collectively or severally. If, however, Plaintiff is ultimately determined to be entitled to any such damages, Defendant is entitled to offset all or part of any such damages by any monies paid to or procured by Plaintiffs to which Plaintiff had or has no entitlement, including any monies that would constitute a double-recovery to Plaintiffs. Defendant may also be entitled to an off-set of any amount of relief claimed by Plaintiffs (or the putative Class Members) based on compensation paid by Defendants to any Plaintiffs or to any and putative Class Members under 29 U.S.C. § 207(h). 108. Statute of Limitations. Defendant asserts that claims over pay periods more than two years before the date of amending claims/opting-in (and certainly more than three years before) are barred, in whole or in part, by the applicable statute of limitations, including 29 U.S.C. § 255. 0 109. Good Faith Belief in FLSA Compliance. Defendant's actions were in good faith conformity with, and/or in reliance upon, legal and regulatory advice, including administrative regulations, orders, rulings, interpretations, and/or practices of the United States Department of Labor and caselaw interpreting an employer's obligations under the FLSA, including 29 U.S.C. § 258 and 259. Defendant assert that any failure to comply with the FLSA was not willful, reckless or done in bad faith as contemplated under Section 11 of the Portal-to-Portal Act. 110. Not Liable for Non-Work Time. Plaintiff (and putative Class Members) are not entitled to any compensation for hours taken for personal breaks taken, including meal and rest periods not exceeding at least 20 minutes in duration, as well as commuting and other non- compensable travel time that were preliminary, postliminary or taken at personal convenience. 111. De Minimus Non Curat Lex. The time for which Plaintiffs (and putative Class Members) seek to be compensated, taking into consideration all factors, including any offsets, is de minimus. 112. Waiver. The Plaintiffs' claims are barred, in whole or in part, by the doctrine of waiver. 113. Unclean Hands. The Plaintiffs' claims are barred, in whole or in part, by the doctrine of unclean hands. 114. Estoppel. The Plaintiffs' claims are barred, in whole or in part, by the doctrine of estoppel. 115. Laches. The Plaintiffs' claims are barred, in whole or in part, by the doctrine of laches. 116. Mistake. The Plaintiffs' claims are barred, in whole or in part, by the doctrine of mistake. 0 117. Failure to Mitigate. The Plaintiffs' claims are barred, in whole or in part, by the doctrine of failure to mitigate or otherwise act to avoid and reduce the harm thereby implicating the doctrine of avoidable consequences. 118. Not a Proper Representative. This Plaintiff is not sufficiently similarly situated with the collective action members he seeks to represent and should not be allowed to do so. 119. Defendant is continuing to investigate Plaintiff's allegations. Therefore, Defendant reserves the right to amend his Answer and Defenses. PRAYER WHEREFORE, PREMISES CONSIDERED, Defendant prays that the Court deny Plaintiff's request for collective action certification; deny Plaintiff's request for a joint or collective trial and instead order separate trials; that Plaintiff take nothing by way of his Complaint and that each and every demand and prayer for relief contained in this Complaint be denied in all things; that the claims be dismissed in their entirety with prejudice to their refiling; that Defendant be awarded all costs and fees incurred in the defense of this action; and that the Court grant the Defendant all other relief to which Defendant may show himself entitled, including his costs and reasonable attorneys' fees as permitted by law. Respectfully submitted, ____________________________ DAVID M. EVANS ATTORNEY & COUNSELOR AT LAW State Bar No. 24032163 david@dmeacl.com 750 East Mulberry, Suite 407 San Antonio, Texas 78212 210.880.4606 (direct) 210.800.9876 (facsimile) 0 CERTIFICATE OF SERVICE I hereby certify that on May 18, 2019, I electronically filed the foregoing document with the Clerk of the Court using the CM/ECF system, which will send a true and correct copy of same to all counsel of record entitled to notice of same. ____________________________ DAVID M. EVANS