Case 3:13-cv-01461-G Document 8 Filed 04/25/13 Page 1 of 9 PageID 182

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

HILARY LONGSTREET, individually and §

on behalf of similarly situated individuals, §
§
Plaintiff, §
§
GEORGE CRAMER, JR., JOE TILLOTSON, § CIVIL ACTION NO.
PLANO AMIGOS LP d/b/a Banditos Tex- §
Mex Cantina, PLANO AMIGOS GP LLC, UP § 3:13-cv-01461-G
PLAZA AMIGOS LLC d/b/a Banditos Tex- §
Mex Cantina, KATY TRAIL ICE HOUSE GP §
LLC, and KATY TRAIL ICE HOUSE LP, §
§
Defendants. §
§

DEFENDANTS’ ANSWER AND AFFIRMATIVE DEFENSES

Defendants George Cramer, Jr., Joe Tillotson, Plano Amigos LP d./b/a Banditos Tex Mex

Cantina, Plano Amigos GP LLC, UP Plaza Amigos LLC d/b/a Banditos Tex-Mex Cantina, Katy

Trail Ice House GP LLC, and Katy Trail Ice House LP, and Katy Trail Ice House LP, file this

Answer to Plaintiff’s Original Petition and Request for Disclosure (hereinafter referred to as

“Complaint”):

DEFENDANTS’ ORIGINAL ANSWER

Pursuant to Federal Rule of Civil Procedure 8(b), Defendants respond to the allegations

in each corresponding paragraph of the Complaint as follows:

I.
SUMMARY

Defendants deny the allegations contained within the Summary of the Complaint.

DEFENDANTS’ ORIGINAL ANSWER AND AFFIRMATIVE DEFENSES

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II.
JURISDICTION AND VENUE

1. Defendants admit that this Court has original jurisdiction to hear this Complaint

under the Fail Labor Standards Act, 29 U.S.C. § 201 et. seq. and that venue is proper in this

Court.

III.
PARTIES

2. Defendants admit only so much of Paragraph 2 of the Complaint that alleges that

George Cramer is an individual. Defendants deny the remaining allegations of paragraph 2 of

the Complaint.

3. Defendants admit only so much of Paragraph 3 of the Complaint that alleges that

Joe Tillotson is an individual. Defendants deny the remaining allegations of paragraph 3 of the

Complaint.

4. Defendants admit only so much of Paragraph 4 of the Complaint that alleges that

Plano Amigos LP is a Limited Partnership. Defendants deny the remaining allegations of

paragraph 3 of the Complaint.

5. Defendants admit only so much of Paragraph 5 of the Complaint that alleges that

Plano Amigos GP LLC is a Limited Liability Company. Defendants deny the remaining

allegations of paragraph 5 of the Complaint.

6. Defendants admit only so much of Paragraph 6 of the Complaint that alleges that UP

Plaza Amigos LLC is a Limited Liability Company. Defendants deny the remaining allegations

of paragraph 6 of the Complaint.

7. Defendants admit only so much of Paragraph 7 of the Complaint that alleges that

DEFENDANTS’ ORIGINAL ANSWER AND AFFIRMATIVE DEFENSES

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Katy Trail Ice House LP is a Limited Partnership. Defendants deny the remaining allegations of

paragraph 6 of the Complaint.

8. Defendants admit only so much of Paragraph 8 of the Complaint that alleges that

Katy Trail Ice House GP, LLC is a Limited Liability Company. Defendants deny the remaining

allegations of paragraph 8 of the Complaint.

9. Defendants admit only so much of Paragraph 9 of the Complaint that alleges that

Plaintiff is a resident of Texas and works at Banditos Tex-Mex Cantina in Plano, Texas.

Defendants deny the remaining allegations of Paragraph 9 of the Complaint.

10. The allegations of paragraph 10 of the Complaint require no answer of Defendants

but to the extent that they require an answer, Defendants deny those allegations.

IV.
FACTUAL ALLEGATIONS

11. Defendants admit only so much of Paragraph 11 of the Complaint that alleges that

it has paid their hourly employees and hourly rate for each hour they worked. Defendants deny

the remaining allegations of paragraph 11 of the Complaint.

12. The allegations of paragraph 12 of the Complaint state legal conclusions that

require no answer of Defendants, but to the extent that such allegations require an answer, they

are denied.

13. Defendants deny the allegations of Paragraph 13 of the Complaint.

14. Defendants deny the allegations of Paragraph 14 of the Complaint.

15. Defendants deny the allegations of Paragraph 15 of the Complaint.

16. Defendants deny the allegations of Paragraph 16 of the Complaint.

DEFENDANTS’ ORIGINAL ANSWER AND AFFIRMATIVE DEFENSES

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17. Defendants deny the allegations of Paragraph 17 of the Complaint.

18. Defendants deny the allegations of Paragraph 18 of the Complaint.

19. Defendants deny the allegations of Paragraph 19 of the Complaint.

20. Defendants deny the allegations of Paragraph 20 of the Complaint.

21. Defendants deny the allegations of Paragraph 21 of the Complaint.

22. Defendants deny the allegations of Paragraph 22 of the Complaint.

23. Defendants deny the allegations of Paragraph 23 of the Complaint.

24. The allegations of paragraph 24 of the Complaint state legal conclusions that

require no answer of Defendants, but to the extent that such allegations require an answer, they

are denied.

25. Defendants deny the allegations of Paragraph 25 of the Complaint.

26. Defendants deny the allegations of Paragraph 26 of the Complaint.

27. The allegations of the first sentence of paragraph 27 of the Complaint state legal

conclusions that require no answer of Defendants, but to the extent that such allegations require

an answer, they are denied. Defendants deny the allegations of the second sentence of paragraph

27 of the Complaint.

28. Defendants deny the allegations of Paragraph 28 of the Complaint.

29. Defendants deny the allegations of Paragraph 29 of the Complaint.

30. Defendants deny the allegations of Paragraph 30 of the Complaint.

31. Defendants deny the allegations of Paragraph 31 of the Complaint.

32. The allegations of paragraph 32 of the Complaint require no answer of

Defendants but to the extent that they require an answer, Defendants deny those allegations.

DEFENDANTS’ ORIGINAL ANSWER AND AFFIRMATIVE DEFENSES

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33. The allegations of paragraph 33 of the Complaint require no answer of

Defendants but to the extent that they require an answer, Defendants deny those allegations.

V.
JURY DEMAND

34. Defendants hereby request a trial by jury pursuant to Rule 38 of the Federal Rules

of Civil Procedure.

VI. AFFIRMATIVE DEFENSES

First Affirmative Defense

1. The Complaint fails to state a claim upon which relief may be granted.

Second Affirmative Defense

2. Plaintiff’s claims are barred, in whole or in part, by the applicable statute of

limitations.

Third Affirmative Defense

1. Defendants invoke the defenses, protections and limitations of the Fair Labor

Standards Act, 29 U.S.C. §201 et seq. (“FLSA”).

DEFENDANTS’ ORIGINAL ANSWER AND AFFIRMATIVE DEFENSES

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Fourth Affirmative Defense

4. At all times, Defendants acted in good faith and had reasonable grounds for

believing their actions were in compliance with the FLSA.

Fifth Affirmative Defense

5. Defendants did not know or show reckless disregard for whether their conduct

was prohibited by the FLSA.

Sixth Affirmative Defense

6. This action is barred to the extent Plaintiff seeks recovery for time that is not

compensable time, i.e. “hours worked” under the FLSA.

Seventh Affirmative Defense

7. In the alternative, Defendants are entitled to offset monies or other consideration

paid or provided to Plaintiff by Defendants for periods in which Plaintiff was not engaged to

work.

Eight Affirmative Defense

8. To the extent that Plaintiff may seek punitive damages, Plaintiff’s recovery is

limited by applicable provisions of the FLSA and the Texas and/or United States Constitutions.

Any award of punitive damages to Plaintiff in this case would be in violation of the FLSA and

the constitutional safeguards provided to Defendants under the Constitution of the United States

and/or the laws of the State of Texas.

Ninth Affirmative Defense

9. Plaintiff is not entitled to punitive/liquidated damages as Defendants did not act or

fail to act in a manner sufficient to give rise to punitive/liquidated damages liability.

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Tenth Affirmative Defense

10. Plaintiff’s action is barred because he seeks to recover for time that is de minimus

work time and thus not compensable under the FLSA.

Eleventh Affirmative Defense

11. To the extent Plaintiff seeks damages not recoverable under the FLSA, Plaintiff is

barred from such recovery.

Twelfth Affirmative Defense

12. Without assuming the burden of proof, Plaintiffs were compensated for all hours

worked in excess of 40 hours in any particular workweek (as Plaintiffs themselves reported their

time worked) at a rate not less than that set forth by the overtime provisions of the FLSA.

Thirteenth Affirmative Defense

13. Without assuming the burden of proof, Defendants complied with all

recordkeeping requirements of the FLSA.

Fourteenth Affirmative Defense

14. The Plaintiff’s claims are estopped by the submission of his/their own time

records, for which Defendants compensated them for all overtime worked and claimed.

Fifteenth Affirmative Defense

15. The alleged time for which Plaintiffs seek compensation is irregular as well as

practically and administratively difficult to record.

Sixteenth Affirmative Defense

16. Without assuming the burden of proof, Plaintiffs and members of the purported

class or collective action are not similarly situated. The potential claims of the purported class

members reflect variability.

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Seventeenth Affirmative Defense

17. Plaintiffs have failed to mitigate their alleged damages.

Eighteenth Affirmative Defense

18. Plaintiff’s claims are barred by the doctrines of waiver, estoppel and/or laches.

Nineteenth Affirmative Defense

19. Some or all of Plaintiff’s claims are barred by accord and satisfaction, settlement

and/or payment and release.

Twentieth Affirmative Defense

20. Plaintiff has failed to exhaust administrative remedies.

Twenty First Affirmative Defense

21. Defendants’ actions were in good faith conformity with and/or reliance on

administrative regulation, order, ruling, approval, interpretation, or practice of the Department of

Labor.

Twenty Second Affirmative Defense

22. Defendants reserve the right to assert further affirmative defenses as they become

evident through discovery investigation.

Twenty Third Affirmative Defense

23. All actions taken by Defendants with respect to Plaintiff were supported by

legitimate business reasons.

PRAYER

WHEREFORE, PREMISES CONSIDERED, Defendants pray that their answer be

deemed good and sufficient and all claims by Plaintiff against Defendants be dismissed, with

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prejudice, and such other and further relief, legal and equitable, including attorney’s fees, be

awarded Defendants.

Dated: April 25, 2013 Respectfully submitted,

Jeff Tillotson
State Bar No.
Alan Dabdoub
State Bar No. 24056836
LaKeisha F. Harmon
State Bar No. 24042237
LYNN TILLOTSON PINKER & COX, LLP
2100 Ross Avenue, Suite 2700
Dallas, Texas 75201
(214) 981-3800 - telephone
(214) 981-3839 – telecopier

ATTORNEYS FOR DEFENDANTS

CERTIFICATE OF SERVICE

The undersigned does hereby certify that a true and correct copy of this Defendants’

Certificate of Interested Persons was duly served upon Robert J. Wiley, Esq. and Justin G.

Manchester, ROB WILEY, P.C., 1825 Market Center Blvd., Suite 385, Dallas, Texas 75207 via

ECF, this 25th day of April, 2013.

/s/ Alan Dabdoub

ALAN DABDOUB

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