Taylor v. C6 Disposal Systems, Inc.

Western District of Texas, txwd-5:2019-cv-00347

Original ANSWER to {{1}} Complaint with Jury Demand. Attorney Charles Anthony Riley added to party C6 DISPOSAL SYSTEMS, INC.(pty:dft), COUNTERCLAIM against Charles Taylor by C6 DISPOSAL SYSTEMS, INC. Modified on 5/2/2019, to edit text

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2 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION CHARLES TAYLOR, § Individually and on behalf of all § others similarly situated § § PLAINTIFF, § § v. § CIV. ACTION NO. 5:19-CV-00347-OLG § C6 DISPOSAL SYSTEMS, INC., § § DEFENDANT. § DEFENDANT C6 DISPOSAL SYSTEMS, INC.'S ORIGINAL ANSWER AND COUNTERCLAIM TO THE HONORABLE JUDGE OF SAID COURT: NOW COMES Defendant, C6 Disposal Systems, Inc. (hereinafter "C6"), by and through its counsel, and files this Original Answer and Counterclaim to Plaintiff's Original Complaint, and respectfully shows as follows: I. OVERVIEW 1. Paragraph 1 of Plaintiff's Complaint states legal conclusions that do not require an admission or denial by C6. To the extent necessary, C6 denies the statements made in paragraph 1, and demands strict proof thereof at trial. C6 denies any liability in this case or that a class action and/or collective action under the Fair Labor Standards Act ("FLSA") is appropriate. 2. C6 admits that Plaintiff worked for C6 as a driver. C6 denies the remaining statements made in paragraph 2 and demands strict proof thereof at trial. C6 denies any liability in this case or that a class action and/or collective action under 2 the FLSA is appropriate. 3. C6 denies the statements made in paragraph 3 and demands strict proof thereof at trial. C6 denies any liability in this case or that a class action and/or collective action under the FLSA is appropriate. 4. C6 denies the statements made in paragraph 4 and demands strict proof thereof at trial. C6 denies any liability in this case or that a class action and/or collective action under the FLSA is appropriate. 5. C6 denies the statements made in paragraph 5 and demands strict proof thereof at trial. C6 denies any liability in this case or that a class action and/or collective action under the FLSA is appropriate. 6. C6 denies the statements made in paragraph 6 and demands strict proof thereof at trial. C6 denies any liability in this case or that a class action and/or collective action under the FLSA is appropriate. 7. C6 denies the statements made in paragraph 7 and demands strict proof thereof at trial. C6 denies any liability in this case or that a class action and/or collective action under the FLSA is appropriate. 8. C6 admits that it classified Plaintiff as a non-exempt employee, but denies the remaining allegations set forth in paragraph 8. C6 denies any liability in this case or that a class action and/or collective action under the FLSA is appropriate. 9. Paragraph 9 of Plaintiff's Complaint states legal requests that do not require an admission or denial by C6. To the extent necessary, C6 denies the statements made in paragraph 9, and demands strict proof thereof at trial. C6 denies 2 2 any liability in this case or that Plaintiff or any other employee of C6 are entitled to recover any damages from C6 or that a class action and/or collective action under the FLSA is appropriate. 10. Paragraph 10 of Plaintiff's Complaint states legal requests that do not require an admission or denial by C6. To the extent necessary, C6 denies the statements made in paragraph 10, and demands strict proof thereof at trial. C6 denies any liability in this case or that a class action and/or collective action under the FLSA is appropriate. 11. Paragraph 11 of Plaintiff's Complaint states legal requests that do not require an admission or denial by C6. To the extent necessary, C6 denies the statements made in paragraph 11, and demands strict proof thereof at trial. C6 denies any liability in this case or that a class action and/or collective action under the FLSA is appropriate. II. THE PARTIES C6 hereby reiterates and incorporates herein by reference each and every response to the allegations contained in the preceding paragraphs as if fully set forth herein. 12. C6 admits that Plaintiff worked for C6 as a driver. C6 denies the remaining statements made in paragraph 12 and demands strict proof thereof at trial. 13. C6 denies the statements made in paragraph 13 and demands strict proof thereof at trial. C6 denies any liability in this case or that a class action and/or collective action under the FLSA is appropriate. 3 2 14. C6 denies the statements made in paragraph 14 and demands strict proof thereof at trial. C6 denies any liability in this case or that a class action and/or collective action under the FLSA is appropriate. 15. C6 admits the statements made in paragraph 15. JURISDICTION AND VENUE C6 hereby reiterates and incorporates herein by reference each and every response to the allegations contained in the preceding paragraphs as if fully set forth herein. 16. C6 admits that this Court has federal jurisdiction over the subject matter pursuant to 28 U.S.C. §1331 as alleged in paragraph 16 as this is an action asserting claims under 29 U.S.C. §§ 201-19. C6 denies that its conduct gives rise to any viable claim against it. 17. C6 admits that this Court has supplemental jurisdiction over the additionally asserted Texas state-law claims pursuant to 28 U.S.C. §1367 as alleged in paragraph 17. C6 denies that its conduct gives rise to any viable claim against it. 18. C6 admits that this Court has personal jurisdiction over C6 as alleged in paragraph 18. C6 denies that its conduct gives rise to any viable claim against it. 19. C6 admits venue is proper in the Western District of Texas as alleged in paragraph 19. 20. C6 admits that Plaintiff worked for C6 in San Antonio, Texas which is within the Western District of Texas, San Antonio Division. C6 denies the remaining statements in paragraph 20. 21. C6 admits venue is proper in the Western District of Texas as alleged in 4 2 paragraph 21. IV. ADDITIONAL FACTS C6 hereby reiterates and incorporates herein by reference each and every response to the allegations contained in the preceding paragraphs as if fully set forth herein. 22. C6 denies that it services customers across the state of Texas. C6 admits the remaining allegations set forth in paragraph 22. 23. C6 denies the allegations set forth in paragraph 23. 24. C6 admits that Plaintiff worked for C6 as a driver, but denies the remaining allegations set forth in paragraph 24. 25. C6 admits that it classified Plaintiff as a non-exempt employee, but denies the remaining allegations set forth in paragraph 25. 26. C6 denies the allegations set forth in paragraph 26. C6 denies any liability in this case or that a class action and/or collective action under the FLSA is appropriate. 27. C6 admits that it required Plaintiff to take a 30-minute meal break, but denies the remaining allegations set forth in paragraph 27. 28. C6 denies the allegations set forth in paragraph 28. 29. C6 denies the allegations set forth in paragraph 29. 30. C6 denies the allegations set forth in paragraph 30. 31. C6 denies the allegations set forth in paragraph 31. 32. C6 denies the allegations set forth in paragraph 32. 33. C6 denies the allegations set forth in paragraph 33. 5 2 34. C6 denies the allegations set forth in paragraph 34. 35. C6 denies the allegations set forth in paragraph 35. 36. C6 denies the allegations set forth in paragraph 36. 37. C6 denies the allegations set forth in paragraph 37. 38. C6 denies the allegations set forth in paragraph 38. 39. C6 denies the allegations set forth in paragraph 39 40. C6 denies the allegations set forth in paragraph 40. V. CAUSES OF ACTION COUNT ONE (Collective Action Alleging FLSA Violations) A. FLSA COVERAGE 41. C6 hereby reiterates and incorporates herein by reference each and every response to the allegations contained in the preceding paragraphs as if fully set forth herein. 42. Paragraph 42 of Plaintiff's Complaint states a legal request that does not require an admission or denial by C6. To the extent necessary, C6 denies the allegations made in paragraph 42, and demands strict proof thereof at trial. C6 denies any liability in this case or that Plaintiff or any other employee of C6 are entitled to recover any damages from C6 or that a class action and/or collective action under the FLSA is appropriate. 43. C6 admits the allegations set forth in paragraph 43. 44. C6 admits the allegations set forth in paragraph 44. 6 2 45. C6 admits the allegations set forth in paragraph 45. 46. C6 admits the allegations set forth in paragraph 46. 47. C6 admits the allegations set forth in paragraph 47 as to the operations described in paragraphs 44 and 45. 48. C6 admits that it classified Plaintiff as a non-exempt employee, but denies the remaining allegations set forth in paragraph 48. 49. C6 admits the allegations set forth in paragraph 46. 50. Paragraph 50 of Plaintiff's Complaint refers a legal request that does not require an admission or denial by C6. To the extent necessary, C6 denies the allegations made in paragraphs 50 and 42, and demands strict proof thereof at trial. C6 denies any liability in this case or that Plaintiff or any other employee of C6 are entitled to recover any damages from C6 or that a class action and/or collective action under the FLSA is appropriate. 51. C6 admits that it maintains business records, tax records, and/or employee and personnel records relating to Plaintiff and other drivers that work for it or have workded for it. C6 denies the remaining allegations set forth in paragraph 51. C6 denies any liability in this case or that Plaintiff or any other employee of C6 are entitled to recover any damages from C6 or that a class action and/or collective action under the FLSA is appropriate. B. FAILURE TO PAY WAGES AND OVERTIME UNDER THE FAIR LABOR STANDARDS ACT 52. C6 denies the allegations set forth in paragraph 52. Defendant further denies that a collective action under the FLSA is appropriate. 7 2 53. C6 denies the allegations set forth in paragraph 53 and demands strict proof thereof at trial. 54. C6 denies the allegations set forth in paragraph 54 and demands strict proof thereof at trial. 55. C6 denies the allegations set forth in paragraph 55 and demands strict proof thereof at trial. 56. C6 denies the allegations set forth in paragraph 56 and demands strict proof thereof at trial. 57. C6 denies the allegations set forth in paragraph 57 and demands strict proof thereof at trial. 58. C6 denies the allegations set forth in paragraph 58 and demands strict proof thereof at trial. C. COLLECTIVE ACTION ALLEGATIONS 59. C6 hereby reiterates and incorporates herein by reference each and every response to the allegations contained in the preceding paragraphs as if fully set forth herein. 60. C6 admits that Plaintiff has filed a purported collective action lawsuit pursuant to the FLSA but denies the remaining allegations set forth in paragraph 60. C6 further denies that a collective action under the FLSA is appropriate. 61. C6 denies the allegations set forth in paragraph 61. C6 further denies that a collective action under the FLSA is appropriate. 62. Paragraph 62 of Plaintiff's Complaint refers a legal request that does not 8 2 require an admission or denial by C6. To the extent necessary, C6 denies the allegations made in paragraphs 62 and 42 and demands strict proof thereof at trial. C6 denies any liability in this case or that Plaintiff or any other employee of C6 are entitled to recover any damages from C6 or that a class action and/or collective action under the FLSA is appropriate. 63. C6 denies the allegations set forth in paragraph 63. C6 further denies that a collective action under the FLSA is appropriate. 64. C6 denies the allegations set forth in paragraph 64 and demands strict proof thereof at trial. C6 further denies that a collective action under the FLSA is appropriate. 65. C6 denies the allegations set forth in paragraph 65 and demands strict proof thereof at trial. C6 further denies that a collective action under the FLSA is appropriate. 66. C6 denies that anyone who works or has worked for C6 is not properly compensated for overtime wages as required by the FLSA and thus denies the allegations set forth in paragraph 66 and demands strict proof thereof at trial. C6 further denies that a collective action under the FLSA is appropriate. 67. C6 denies the allegations set forth in paragraph 67 and demands strict proof thereof at trial. C6 further denies that Plaintiff or anyone who works or has worked for C6 have sustained any damages and/or that a collective action under the FLSA is appropriate. 68. C6 denies the allegations set forth in paragraph 68 and demands strict proof thereof at trial. C6 further denies that Plaintiff or anyone who works or has worked for C6 have sustained any injuries and/or that a collective action under the FLSA is appropriate. 69. C6 denies the allegations set forth in paragraph 69 and demands strict proof 9 2 thereof at trial. C6 further denies that a collective action under the FLSA is appropriate. 70. C6 denies the allegations set forth in paragraph 70 and demands strict proof thereof at trial. C6 further denies that a collective action under the FLSA is appropriate. COUNT TWO (Class Action Alleging Violations of Texas Common Law) A. VIOLATIONS OF TEXAS COMMON LAW 71. C6 hereby reiterates and incorporates herein by reference each and every response to the allegations contained in the preceding paragraphs as if fully set forth herein. 72. Paragraph 72 of Plaintiff's Complaint states a legal request that does not require an admission or denial by C6. To the extent necessary, C6 denies the statements made in paragraph 72 and demands strict proof thereof at trial. C6 denies that the equitable theory of quantum meruit has any application to the facts and claims alleged by Plaintiff. 73. Paragraph 73 of Plaintiff's Complaint states a legal request that does not require an admission or denial by C6. To the extent necessary, C6 denies the allegations made in paragraph 73 and demands strict proof thereof at trial. C6 denies any liability in this case or that Plaintiff or any other employee of C6 are entitled to recover any damages from C6 or that a class action pursuant to Federal Rule of Civil Procedure 23 is appropriate. 74. Paragraph 74 of Plaintiff's Complaint states legal conclusions that do not require an admission or denial by C6. C6 denies the remaining allegations as set forth in paragraph 74. C6 further denies that a class action pursuant to Federal Rule of Civil 10 2 Procedure 23 is appropriate. 75. C6 admits that Plaintiff performed services for C6 pursuant to an express contract. C6 denies the allegations as set forth in paragraph 75 to the extent they purport to establish that that the equitable theory of quantum meruit has any application to the work done by Plaintiff for C6. C6 further denies that a class action pursuant to Federal Rule of Civil Procedure 23 is appropriate. 76. C6 admits that Plaintiff performed services for C6 pursuant to an express contract. C6 denies the allegations as set forth in paragraph 76 to the extent they purport to establish that that the equitable theory of quantum meruit has any application to the work done by Plaintiff for C6. C6 further denies that a class action pursuant to Federal Rule of Civil Procedure 23 is appropriate. 77. C6 admits that Plaintiff performed services for C6 pursuant to an express contract. C6 denies the allegations as set forth in paragraph 77 to the extent they purport to establish that that the equitable theory of quantum meruit has any application to the work done by Plaintiff for C6. C6 further denies that a class action pursuant to Federal Rule of Civil Procedure 23 is appropriate. 78. C6 admits that Plaintiff performed services for C6 pursuant to an express contract. C6 denies the allegations as set forth in paragraph 78 to the extent they purport to establish that that the equitable theory of quantum meruit has any application to the work done by Plaintiff for C6. C6 further denies that a class action pursuant to Federal Rule of Civil Procedure 23 is appropriate. 11 2 B. TEXAS COMMON LAW CLASS ALLEGATIONS 79. Paragraph 79 of Plaintiff's Complaint states a legal request that does not require an admission or denial by C6. To the extent necessary, C6 denies the allegations made in paragraph 79 and demands strict proof thereof at trial. C6 denies any liability in this case or that Plaintiff or any other employee of C6 are entitled to recover any damages from C6 or that a class action pursuant to Federal Rule of Civil Procedure 23 is appropriate. 80. Paragraph 80 of Plaintiff's Complaint states legal conclusions that do not require an admission or denial by C6. To the extent necessary, C6 denies the statements made in paragraph 80, and demands strict proof thereof at trial. C6 denies that a class action pursuant to Federal Rule of Civil Procedure 23 is appropriate. 81. Paragraph 81 of Plaintiff's Complaint states legal conclusions that do not require an admission or denial by C6. To the extent necessary, C6 denies the statements made in paragraph 81, and demands strict proof thereof at trial. C6 denies that a class action pursuant to Federal Rule of Civil Procedure 23 is appropriate. 82. Paragraph 82 of Plaintiff's Complaint states legal conclusions that do not require an admission or denial by C6. To the extent necessary, C6 denies the statements made in paragraph 82, and demands strict proof thereof at trial. C6 denies that a class action pursuant to Federal Rule of Civil Procedure 23 is appropriate. 83. Paragraph 83 of Plaintiff's Complaint states legal conclusions that do not require an admission or denial by C6. To the extent necessary, C6 denies the statements made in paragraph 83, and demands strict proof thereof at trial. C6 denies that a class 12 2 action pursuant to Federal Rule of Civil Procedure 23 is appropriate. 84. Paragraph 84 of Plaintiff's Complaint states legal conclusions that do not require an admission or denial by C6. To the extent necessary, C6 denies the statements made in paragraph 84, and demands strict proof thereof at trial. C6 denies that a class action pursuant to Federal Rule of Civil Procedure 23 is appropriate. 85. Paragraph 85 of Plaintiff's Complaint states legal conclusions that do not require an admission or denial by C6. To the extent necessary, C6 denies the statements made in paragraph 85, and demands strict proof thereof at trial. C6 denies that a class action pursuant to Federal Rule of Civil Procedure 23 is appropriate. 86. C6 denies Plaintiff is entitled to judgment and denies that Plaintiff is entitled to any of the relief requested in Plaintiff's Relief Sought. C6 denies each and every allegation or prayer for relief not specifically addressed above. FURTHER ANSWER AND/OR AFFIRMATIVE DEFENSES 87. C6 provides the following as further answer and, alternatively, affirmative defenses to the extent Defendant is charged with the burden of proof: a. C6's acts or omissions complained of in the Complaint with respect to Plaintiff are subject to the provisions of 29 U.S.C. §§ 258 and 259 because they were done in good faith and in reasonable reliance on an administrative regulation, order, ruling, approval and interpretation of the United States Department of Labor, or an administrative practice or enforcement policy of the United States Department of Labor with respect to the class of employees to which Plaintiff belongs. 13 2 b. Plaintiff and the putative Class Members are not entitled to any liquidated damages or penalties under the FLSA because, at all times relevant and material herein, Defendants acted in good faith and had reasonable grounds for believing that they did not violate the compensation provisions of the FLSA. c. Plaintiff's claims are barred, in whole or in part, by the applicable statute of limitations. d. Plaintiff's claims are specifically barred to the extent Plaintiff's causes of action accrued outside the two-year statute of limitations. 29 U.S.C. § 255(a). Alternatively, and without waiving C6's assertion that Plaintiff cannot show that C6 committed any alleged unlawful act willfully, Plaintiff's claims are barred to the extent Plaintiff's causes of action accrued outside the three-year statute of limitations. 29 U.S.C. § 255(a). e. Plaintiff's quantum meruit claims are barred because Plaintiff provided services to C6 pursuant to an express contract. f. Plaintiff's claims under Texas law are preempted in whole or in part by federal law. g. To the extent sought, pre-judgment interest is not available in a case brought pursuant to 29 U.S.C. §§ 216 and 260. h. The allegations in Plaintiff's Complaint are insufficient to establish that any alleged putative class members are similarly situated for purposes of maintaining a representative action pursuant to the requirements of 29 U.S.C. § 216(b). 14 2 i. Plaintiff cannot satisfy his burden of proof with respect to any alleged damages suffered. j. Plaintiff fails to satisfy any of the prerequisites for a class action under Federal Rule of Civil Procedure 23, including: i. Plaintiff has failed to plead and cannot establish the necessary procedural elements and requirements for treatment as such an action and such treatment is neither appropriate nor constitutional; ii. Such an action is not an appropriate method for the fair and efficient adjudication of the claims described in Plaintiff's Complaint; iii. Common issues of fact or law which are of legal significance do not predominate and any common facts or law are insignificant compared to the individual facts and issues particular to Plaintiff and any putative class members he purports to represent; iv. Plaintiff is not a proper class representative or representative plaintiff and lack standing to assert the legal rights or interests of the putative class members they purport to represent; v. Plaintiff and the alleged putative class counsel are not adequate representatives for any alleged putative classes because they are not able to fairly and adequately represent and protect the interests of all of the putative class members Plaintiff purports to represent; 15 2 vi. There is not a well-defined community of interest in the questions of law or fact affecting Plaintiff and the putative class members he purports to represent; vii. Plaintiff is not similarly situated to any of the putative class members he purports to represent and his claims and defenses are not representative or typical of the claims and defenses of such putative class members and the alleged putative class members as described in Plaintiff's Complaint are not similarly situated to each other; viii. To the extent any alleged putative classes are ascertainable and their members are identifiable, the number of putative class members is too small to meet the numerosity requirement or is not so large that joinder of the individual members would not be impractical; and ix. Plaintiff's claims and the claims of putative class members are not proper for class or collective certification because neither a class nor collective action is superior to other available methods for fair and efficient adjudication of this matter. k. Plainitff's alleged losses and damages, if any, are de minimus. l. Plaintiff's alleged losses and damages, if any, are the result of, and directly related to, Plaintiff's own conduct, actions and/or failure to act, and not of C6's conduct, actions or failure to act. 16 2 m. Plaintiff's claims are barred by the doctrines of estoppel, quasi-estoppel, and waiver, as Plaintiff repeatedly represented to C6 that he would take and was taking the 30-minute lunch break mandated by federal regulations and company policy but now claims he was not; n. C6 is entitled to an off-set of any amount of relief claimed by Plaintiff based on compensation paid by Defendants to Plaintiff under 29 U.S.C. § 207(h). o. Plaintiff's claims are barred by the doctrines of estoppel, quasi-estoppel, and waiver, as he represented to C6 that he was taking the 30-minute lunch break mandated by federal regulations for the operation of commercial vehicles and as required by company policy but now claims he was not, as further set forth in paragraphs 89-101 below and incorporated herein by reference. p. Plaintiff failed to mitigate his damages, if any, by failing to disclose to C6 that he was allegedly not taking the 30-minute lunch break mandated by federal regulations for the operation of commercial vehicles and as required by company policy but now claims he was not, as further set forth in paragraphs 89- 101 below and incorporated herein by reference. q. Plaintiff's damages, if any, should be offset by the damages sustained by C6 as set forth in paragraphs 89-101 below and incorporated herein by reference. r. Plaintiff's claims are barred by his unclean hands, as set forth in paragraphs 89-101 below and incorporated herein by reference. s. Plaintiff's claims are barred by his fraud, as set forth in paragraphs 89-101 below and incorporated herein by reference. 17 2 COMPULSORY COUNTERCLAIM 88. This Court has supplemental jurisdiction under 28 U.S.C. § 1367(a) to adjudicate C6's compulsory state law counterclaims. 89. Plaintiff first began working for C6 in January 2017. At that time, Plaintiff was provided a copy of C6's company handbook and signed a written acknowledgment of that fact on January 17, 2007. 90. The company handbook provided to Plaintiff stated that "[l]unch breaks for drivers are required and will consist of 30 minutes during the course of the daily route or activities. Failure to take a lunch break without prior approval will result in disciplinary action." This provision of the C6 company handbook has never changed. 91. Throughout his initial employment with C6, Plaintiff never complained about the company policy of requiring drivers to take a 30-minute lunch break or of the company policy of deducting such lunch break from Plaintiff's compensable hours during the course of his daily activities and never told anyone at C6 that he was not taking the required 30-minute lunch break. 92. Instead, Plaintiff certified his C6 timesheets on a daily basis which confirmed that he had been relieved of duty for one half hour for meals. 92. Plaintiff resigned from his employment at C6 on or about April 3, 2012 but was hired back on or about May 1, 2015. 93. At the time he was rehired to work for C6, Plaintiff was again provided a copy of C6's employee handbook which contained identical language regarding the 18 2 required 30-minute lunch break. And on May 1, 2015, Plaintiff acknowledged in writing that he would comply with the C6 policy requiring a 30-minute lunch break. 94. On February 8, 2017 Plaintiff acknowledged that he would comply with all rules and regulations for driving commercial vehicles imposed by the State of Texas, Department of Transportation, and Federal Motor Carrier Safety Administration. These rules and regulations include a requirement that drivers like Plaintiff take a 30-minute break during the course of their work day when (as is almost always the case) such drivers are on duty for more than 8 hours in a day. 95. Thereafter, Plaintiff continued to certify his C6 time sheets on a daily basis which confirmed that he had been "relieved of duty for one half hour for meals." Plaintiff never told C6 that he was not taking a lunch break as required and as he had repeatedly represented he was doing. 96. On August 16, 2016 Plaintiff filed an FLSA complaint against his former employer in which he claimed that he had been forced to work through his lunch breaks. See, Charles Taylor v. Republic Services, Inc., Civil Action No. 2:16-cv-00502, in the Southern District of Texas, Corpus Christi Division. That lawsuit, in which Plaintiff was represented by the same counsel representing him in the present lawsuit, was dismissed in April 2018 pursuant to a settlement. 97. Thus, Plaintiff knowingly, intentionally, recklessly and maliciously falsified his C6 timesheets and misrepresented to C6 that he was taking his required lunch break – all while suing his former employer for allegedly forcing him to work through his lunch break – in a blatant attempt to later file a lawsuit against C6 falsely claiming that 19 2 he was forced to work through his lunch breaks. 98. Alternatively, Plaintiff failed to disclose that he was allegedly not taking his lunch break and that he was falsifying his C6 time sheets when he had a duty to disclose those facts to C6 due to his prior representations that he was in fact taking his lunch breaks. 99. Such misrepresentations and failures to disclose were material and were made with the intent that C6 rely on them. C6 relied on such misrepresentations and failures to disclose, by deducting the required 30-minute lunch break and paying Plaintiff in accordance with his falsified time sheets. Had Plaintiff told C6 that he was not taking his lunch break, C6 would have paid him for the amount of time that he claimed he had worked through lunch and would have reprimanded him for violating company policy and federal regulations regarding the operation of commercial vehicles. If Plaintiff had again told C6 that he was not taking his lunch break, C6 would have paid him for the amount of time that he claimed he had worked through lunch and then fired him for violating company policy and federal regulations regarding the operation of commercial vehicles. 100. As a direct and proximate result of Plaintiff's fraud, C6 has suffered damages in the form of the value of the time spent by its managers and employees addressing the allegations that Plaintiff has made in this lawsuit which contradict the fraudulent misrepresentations and failures to disclose that he made to C6, lost profits, accounting fees, and attorney fees incurred by C6 to defend the present litigation that involves third parties (i.e. the putative collective action members and class members 20 2 that Plaintiff seeks to represent) and which arose solely as a consequence of the wrongful acts of Plaintiff described above. 101. Because Plaintiff's acts and omissions were committed fraudulently and maliciously, C6 further seeks recovery of exemplary damages from Plaintiff. JURY DEMAND 102. C6 respectfully demands trial by jury. PRAYER Wherefore, premises considered, Defendant/Counter-Claimant C6 Disposal Systems, Inc. respectfully prays that Plaintiff Charles Taylor that the Court deny Plaintiff's request for collective action certification and/or class certification, deny Plaintiff's request for a joint or collective trial and instead order separate trials; that Plaintiff's Complaint be dismissed and that Plaintiff take nothing thereby; that Defendant be awarded its costs in this matter, including, but not limited to, reasonable attorneys' fees as permitted by law; and that Defendant/Counter-Claimant be awarded judgment on its counterclaim as set forth above, including expenses and attorney's fees, together with post-judgment interest at the maximum lawful rate, costs of court, and such other relief, general and special, at law or in equity, to which it may show itself justly entitled. Respectfully submitted, Riley & Riley Attorneys at Law By: /s/ Charles Riley Charles Riley Texas Bar No. 24039138 320 Lexington Ave. San Antonio, Texas 78215-1913 Tel. (210) 225-7236 21 2 Fax. (210) 227-7907 Attorney for Defendant/Counter-Claimant C6 Disposal Systems, Inc. CERTIFICATE OF SERVICE I certify that on the 2nd day of May, 2019 a true and correct copy of the above and foregoing was served on the following in the manner indicated: Clif Alexander Via CM/ECF ANDERSON ALEXANDER, PLLC 819 N. Upper Broadway Corpus Christi, Texas 78401 clif@a2xlaw.com Attorney for Plaintiff /s/ Charles Riley CHARLES RILEY 22