Saldana v. Mission Drywall, Inc. et al

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

Unopposed MOTION to Set Aside [1] Complaint, Defendant Mission Drywall, Inc.'s Unopposed Motion to Set Aside Entry of Default and for Leave to File an Answer by Mission Drywall, Inc. Motions referred to Judge Richard B. Farrer.

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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, Civil Action No. 5:18-cv-01060 concos cascos cascos cascos cascos MISSION DRYWALL, INC., BOB Š MUTZ, and DAVID ERNST, Defendants. DEFENDANT MISSION DRYWALL, INC.'S UNOPPOSED MOTION TO SET ASIDE ENTRY OF DEFAULT AND FOR LEAVE TO FILE AN ANSWER For its Motion to Set Aside Entry of Default and for Leave to File an Answer, Defendant Mission Drywall, Inc. shows the following: On October 9, 2018, Plaintiff Saldana filed this putative collective action for unpaid overtime under the Fair Labor Standards Act. Plaintiff Saldana claims that Defendant Mission Drywall improperly classified him and others as an independent contractor and that he and the putative class members should have been paid an overtime premium for hours allegedly worked over forty each week. Plaintiff also sued David Ernst and Bob Mutz as additional defendants, contending that they qualify as liable "employers" under the FLSA. Defendant Erst is the current owner of Defendant Mission Drywall. He formed the business with Defendant Bob Mutz in the mid-1980s. Together, Ernst and Mutz owned and operated the business until December of 2015, when Ernst obtained sole ownership of Mission Drywall. Mutz had been the registered agent for Mission Drywall, and after Mutz departed the Company, Ernst and Mutz did not recognize that Mutz remained listed as the registered agent on Page 1 of 4 file with the Texas Secretary of State. Ernst Decl., Ex. 1. In its 2017 Texas Franchise Tax Public Information Report, filed by the Company' accountant on February 1, 2017, Mission Drywall did designate Ernst as the registered agent. See Franchise Tax Report, Ex. 2. However, Ernst did not recognize that additional documents needed to be filed with the Texas Secretary of State to officially change the registered agent designation from Mutz to Ernst. This was an oversight and/or his then-accountant. Ernst Decl., Ex. 1. Mutz was served with this lawsuit, which named Mission Drywall, Ernst, and Mutz as defendants, on October 13, 2018. Mutz contacted Ernst and advised him that a lawsuit had been filed against them and asked Ernst whether he had been served. Ernst stated that he had not. Ernst did not recognize that Mutz had been served on behalf of Mission Drywall because he (Ernst) was the sole owner of the business and because he thought he was the registered agent. Time went by, and Ernst was not served. Ernst took no action because he did not understand that Mission Drywall had actually been served. He assumed that he would ultimately be served on behalf of Mission Drywall, at which time the Company would answer and defend. Ernst Decl., Ex. 1. On April 3, 2019, Ernst was served with the lawsuit. After consulting with the undersigned counsel, Ernst discovered that Mission Drywall had in fact been formally served on October 13, 2018 when the lawsuit was served on Mutz, that Mission Drywall's Answer was overdue, and that the Clerk had entered default. Through the undersigned counsel, Ernst timely filed his individual Answer on April 24, 2019. Mission Drywall believes it has valid defenses to the lawsuit, and it fully intends to defend this case. Mission Drywall's failure to timely answer the lawsuit was the result of mistake and inadvertence. Mission Drywall now requests that the Court set aside the Entry of Default and that the Court grant permission for Mission Drywall to file its Answer. Mission Drywall's proposed Page 2 of 4 Answer is attached hereto as Exhibit 3. Mission Drywall also prays for all other relief to which it is entitled. 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 email: ATTORNEYS FOR DEFENDANTS MISSION DRYWALL, INC. AND DAVID ERNST Page 3 of 4 CERTIFICATE OF CONFERENCE I certify that on April 26, 2019, I conferred with Plaintiff's lead counsel, Clif Alexander, by email, and that he indicated that Plaintiff is unopposed. /s/ Michael V. Galo, Jr. MICHAEL V. GALO, JR. 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 26th 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 4 of 4