Case: 1:17-cv DCN Doc #: 14 Filed: 03/02/17 1 of 19. PageID #: 69

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1 Case: 1:17-cv DCN Doc #: 14 Filed: 03/02/17 1 of 19. PageID #: 69 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO EASTERN DIVISION TOBIAS MOONEYHAM and DEREK SLEVE, individually and on behalf of all similarly-situated persons, v. Plaintiffs, AVI FOODSYSTEMS, INC., Defendant. Case No. 1:17-CV DCN Judge Donald C. Nugent DEFENDANT S ANSWER TO PLAINTIFFS AMENDED COLLECTIVE AND CLASS ACTION COMPLAINT Defendant AVI Foodsystems, Inc. ( AVI, by and through undersigned counsel, hereby submits the following answer and defenses to Plaintiffs Tobias Mooneyham and Derek Sleve s Amended Collective and Class Action Complaint ( Amended Complaint : GENERAL DENIAL AVI denies every allegation in the Amended Complaint that is not expressly admitted herein. NATURE OF THE ACTION 1. In response to Plaintiffs characterizations of this litigation contained in Paragraph 1 of the Amended Complaint, AVI admits that Plaintiffs purport to bring their FLSA claims on behalf of themselves and others as a collective action, but denies that such treatment is appropriate and denies that it violated the FLSA in any manner. AVI also denies that Plaintiffs are similarly situated with the current and former employees they seek to represent in this action, and it denies that they can meet the standard for certification of a collective action. AVI further denies that Plaintiffs and the employees they purport to represent are entitled to any unpaid wages, overtime wages, liquidated damages, attorneys fees, costs, or any other damages, insofar

2 Case: 1:17-cv DCN Doc #: 14 Filed: 03/02/17 2 of 19. PageID #: 70 as AVI did not violate the FLSA. Except as expressly admitted herein as true, AVI denies the allegations in Paragraph 1 of the Amended Complaint. 2. In response to Plaintiffs characterizations of this litigation contained in Paragraph 2 of the Amended Complaint, AVI admits that Plaintiff Mooneyham purports to bring his Ohio law claims under Federal Rule of Civil Procedure 23 on behalf of himself and others as a class action, but denies that such treatment is appropriate and denies that it violated the Ohio Minimum Wage Act or any other law. AVI also denies that Plaintiff Mooneyham is similarly situated with current and former employees he seeks to represent in this action, and it denies that he can meet the standard for class certification under Federal Rule of Civil Procedure 23. AVI further denies that Plaintiff Mooneyham and the employees he purports to represent are entitled to any unpaid wages, overtime wages, liquidated damages, attorneys fees, costs, or any other damages, insofar as AVI did not violate the Ohio Minimum Wage Act or any other law. Except as expressly admitted herein as true, AVI denies the allegations in Paragraph 2 of the Amended Complaint. 3. In response to Plaintiffs characterizations of this litigation contained in Paragraph 3 of the Amended Complaint, AVI admits that Plaintiff Sleve purports to bring his New York law claims under Federal Rule of Civil Procedure 23 on behalf of himself and others as a class action, but denies that such treatment is appropriate and denies that it violated the New York Labor Law or any other law. AVI also denies that Plaintiff Sleve is similarly situated with current and former employees he seeks to represent in this action, and it denies that he can meet the standard for class certification under Federal Rule of Civil Procedure 23. AVI further denies that Plaintiff Sleve and the employees he purports to represent are entitled to any unpaid wages, overtime wages, liquidated damages, attorneys fees, costs, or any other damages, insofar as AVI 2

3 Case: 1:17-cv DCN Doc #: 14 Filed: 03/02/17 3 of 19. PageID #: 71 did not violate the New York Labor Law or any other law. Except as expressly admitted herein as true, AVI denies the allegations in Paragraph 3 of the Amended Complaint. THE PARTIES 4. AVI admits, upon information and belief, that Plaintiff Mooneyham is an Ohio citizen who resides in Mansfield, Ohio. AVI further admits that Plaintiff Mooneyham has worked for it since September 10, AVI also admits that Plaintiff Mooneyham worked for it as a salaried Route Supervisor in its Mansfield Branch from September 10, 2014, until November 27, Except as expressly admitted herein as true, AVI denies the allegations in Paragraph 4 of the Amended Complaint. 5. AVI denies, for lack of knowledge and information sufficient to form a belief as to the truth thereof, that Plaintiff Sleve is currently a New York citizen residing in Henrietta, New York. AVI admits that Plaintiff Sleve worked for it as a salaried Route Supervisor in its Rochester, New York Branch from September 8, 2014, to January 22, Except as expressly admitted herein as true, AVI denies the allegations in Paragraph 5 of the Amended Complaint. 6. AVI admits the allegations in Paragraph 6 of the Amended Complaint. JURISDICTIONAL ALLEGATIONS 7. AVI admits that this Court has jurisdiction over this case pursuant to 29 U.S.C. 216(b and 28 U.S.C Except as expressly admitted herein as true, AVI denies the allegations in Paragraph 7 of the Amended Complaint. 8. AVI admits that it is an Ohio citizen that transacts business within Ohio and that this Court has personal jurisdiction over it. Except as expressly admitted herein as true, AVI denies the allegations in Paragraph 8 of the Amended Complaint. 3

4 Case: 1:17-cv DCN Doc #: 14 Filed: 03/02/17 4 of 19. PageID #: AVI admits that venue is proper in this Court pursuant to 28 U.S.C Except as expressly admitted herein as true, AVI denies the allegations in Paragraph 9 of the Amended Complaint. 10. AVI admits that it employed Plaintiff Mooneyham in Richland County, that it is subject to personal jurisdiction in Richland County, and that this Court is the proper division for this case under Northern District of Ohio Local Rule 3.8(a. Except as expressly admitted herein as true, AVI denies the allegations in Paragraph 10 of the Amended Complaint. FACTUAL ALLEGATIONS 11. AVI admits that it operates multiple branches in nine states in connection with its vending operation, and that those branches receive certain support services from AVI s corporate headquarters. AVI denies that its branches are managed from corporate headquarters and denies that AVI corporate headquarters sets uniform policies and procedures for use in its branch locations, some of which are unionized and others which are not. Except as expressly admitted herein as true, AVI denies the allegations in Paragraph 11 of the Amended Complaint. 12. AVI admits that Operations Managers report to Branch Managers. AVI further admits that Operations Managers and Branch Managers help manage individual branches. AVI admits that Operations Managers and Branch Managers, as well as Route Supervisors and Customer Service Attendant Supervisors, possess managerial and executive responsibilities and authority. Except as expressly admitted herein as true, AVI denies the allegations in Paragraph 12 of the Amended Complaint. 13. AVI admits that it employs Vending Route Drivers and Customer Service Attendants ( CSAs, which are hourly paid positions. AVI admits that a Vending Route Driver performs a variety of duties, including driving commercial trucks that are used to deliver 4

5 Case: 1:17-cv DCN Doc #: 14 Filed: 03/02/17 5 of 19. PageID #: 73 products to vending machines along an assigned route and stocking vending machines with food and beverage. AVI admits that a Customer Service Attendant performs a variety of duties, including filling vending machines with food and beverage at an assigned account, rotating perishable merchandise, and minimizing waste. Except as expressly admitted herein as true, AVI denies the allegations in Paragraph 13 of the Amended Complaint. 14. AVI denies the allegations in Paragraph 14 of the Amended Complaint. 15. AVI admits that it employs individuals in the positions of Route Supervisor and CSA Supervisor who are properly classified as exempt from overtime under the FLSA, as well as Ohio and New York law. Except as expressly admitted herein as true, AVI denies the allegations in Paragraph 15 of the Amended Complaint. 16. AVI denies the allegations in Paragraph 16 of the Amended Complaint. 17. AVI denies the allegations in Paragraph 17 of the Amended Complaint. 18. AVI admits that Route Supervisors and CSA Supervisors cannot unilaterally make a final hiring decision. Except as expressly admitted herein as true, AVI denies the allegations in Paragraph 18 of the Amended Complaint. 19. AVI admits that Route Supervisors and CSA Supervisors cannot unilaterally make a final termination decision. Except as expressly admitted herein as true, AVI denies the allegations in Paragraph 19 of the Amended Complaint. 20. AVI denies the allegations in Paragraph 20 of the Amended Complaint. 21. AVI denies the allegations in Paragraph 21 of the Amended Complaint. 22. AVI denies the allegations in Paragraph 22 of the Amended Complaint. 23. AVI denies the allegations in Paragraph 23 of the Amended Complaint. 5

6 Case: 1:17-cv DCN Doc #: 14 Filed: 03/02/17 6 of 19. PageID #: AVI denies that Route Supervisors and CSA Supervisors are uniformly classified as exempt from the overtime requirements of the FLSA, as well as Ohio and New York law. Except as expressly admitted herein as true, AVI denies the allegations in Paragraph 24 of the Amended Complaint. 25. AVI denies the allegations in Paragraph 25 of the Amended Complaint. 26. AVI admits that it was and is aware of its obligations under the FLSA, as well as Ohio and New York law. AVI denies that it violated the FLSA, Ohio law, or New York law. Except as expressly admitted herein as true, AVI denies the allegations in Paragraph 26 of the Amended Complaint. 27. AVI denies the allegations in Paragraph 27 of the Amended Complaint, including subparagraphs (a through (c. 28. AVI denies the allegations in Paragraph 28 of the Amended Complaint. 29. AVI denies that it failed to pay any wages to which Route Supervisors or CSA Supervisors were entitled, and it denies the allegations in Paragraph 29 of the Amended Complaint. PLAINTIFFS COLLECTIVE ACTION ALLEGATIONS 30. AVI admits that Plaintiffs seek to bring their FLSA claims as a collective action on behalf of themselves and Route Supervisors and CSA Supervisors who worked for AVI within the United States at any time during the three-year period preceding the filing of their Complaint through the date of final judgment. AVI denies collective action treatment is appropriate in this case, denies that any Route Supervisor or CSA Supervisor is similarly situated to Plaintiffs, denies there are any other employees in positions comparable to Plaintiffs, denies 6

7 Case: 1:17-cv DCN Doc #: 14 Filed: 03/02/17 7 of 19. PageID #: 75 the substance of Plaintiffs claims, and denies the remaining allegations in Paragraph 30 of the Amended Complaint. 31. AVI denies the allegations in Paragraph 31 of the Amended Complaint. 32. AVI denies the allegations in Paragraph 32 of the Amended Complaint. PLAINTIFFS OHIO CLASS ACTION ALLEGATIONS 33. AVI admits that Plaintiff Mooneyham seeks to bring his claims under the Ohio Minimum Wage Act as a class action under Fed. R. Civ. P. 23 on behalf of himself and Route Supervisors and CSA Supervisors who worked for AVI within Ohio at any time during the twoyear period preceding the filing of his Complaint through the date of final judgment. AVI denies class action treatment is appropriate in this case, denies that Plaintiff Mooneyham is an adequate class representative, denies the substance of Plaintiff Mooneyham s claims, and denies the remaining allegations in Paragraph 33 of the Amended Complaint. 34. AVI denies the allegations in Paragraph 34 of the Amended Complaint. 35. AVI denies the allegations in Paragraph 35 of the Amended Complaint. 36. AVI denies the allegations in Paragraph 36 of the Amended Complaint. 37. AVI denies the allegations in Paragraph 37 of the Amended Complaint. 38. AVI denies the allegations in Paragraph 38 of the Amended Complaint. PLAINTIFFS NEW YORK CLASS ACTION ALLEGATIONS 39. AVI admits that Plaintiff Sleve seeks to bring his claims under the New York Labor Law as a class action under Fed. R. Civ. P. 23 on behalf of himself and Route Supervisors and CSA Supervisors who worked for AVI within New York at any time during the six-year period preceding the filing of the Amended Complaint through the date of final judgment. AVI denies class action treatment is appropriate in this case, denies that Plaintiff Sleve is an adequate 7

8 Case: 1:17-cv DCN Doc #: 14 Filed: 03/02/17 8 of 19. PageID #: 76 class representative, denies the substance of Plaintiff Sleve s claims, and denies the remaining allegations in Paragraph 39 of the Amended Complaint. 40. AVI denies the allegations in Paragraph 40 of the Amended Complaint. 41. AVI denies the allegations in Paragraph 41 of the Amended Complaint. 42. AVI denies the allegations in Paragraph 42 of the Amended Complaint. 43. AVI denies the allegations in Paragraph 43 of the Amended Complaint. 44. AVI denies the allegations in Paragraph 44 of the Amended Complaint. PLAINTIFFS FIRST ALLEGED CAUSE OF ACTION 45. AVI admits that Plaintiffs seek to bring their FLSA claims seeking allegedly unpaid overtime wages as a collective action and admits that Plaintiffs filed documents titled Consent to Join Form. AVI denies that collective action treatment is appropriate in this case, denies that any Route Supervisor or CSA Supervisor is comparably situated to Plaintiffs or that Plaintiffs are similarly situated to one another, denies there are any other employees in positions comparable to Plaintiffs, denies the substance of Plaintiffs allegations, denies that it violated the FLSA or any other law, and otherwise denies the remaining allegations in Paragraph 45 of the Amended Complaint. AVI incorporates herein each of its responses to Paragraphs 1 through 44 of the Amended Complaint. 46. AVI admits that it employed Plaintiffs who were engaged in commerce. Except as expressly admitted herein as true, AVI denies the allegations in Paragraph 46 of the Amended Complaint. 47. AVI admits that it properly classified Plaintiffs as exempt from the overtime provisions of the FLSA, Ohio law, and New York law, and lawfully did not pay them overtime. 8

9 Case: 1:17-cv DCN Doc #: 14 Filed: 03/02/17 9 of 19. PageID #: 77 Except as expressly admitted herein as true, AVI denies the allegations in Paragraph 47 of the Amended Complaint. 48. AVI denies that it misclassified Plaintiffs or any other employees and otherwise denies the remaining allegations in Paragraph 48 of the Amended Complaint. 49. AVI denies the allegations in Paragraph 49 of the Amended Complaint. PLAINTIFFS SECOND ALLEGED CAUSE OF ACTION 50. AVI admits that Plaintiff Mooneyham seeks to bring his claim under the Ohio Minimum Wage Act as a class action. AVI denies class action treatment is appropriate in this case, denies that any Route Supervisor or CSA Supervisor is comparably situated to Plaintiff Mooneyham, denies there are any other employees in positions comparable to Plaintiff Mooneyham s, denies the substance of Plaintiff Mooneyham s claims, denies that it violated the Ohio Minimum Wage Act or any other law, and otherwise denies the remaining allegations in Paragraph 50 of the Amended Complaint. AVI incorporates herein each of its responses to Paragraphs 1 through 49 of the Amended Complaint. 51. AVI admits that it employed Plaintiff Mooneyham. Except as expressly admitted herein as true, AVI denies the allegations in Paragraph 51 of the Amended Complaint. 52. AVI denies that it misclassified Plaintiff Mooneyham or any other employee and otherwise denies the remaining allegations in Paragraph 52 of the Amended Complaint. 53. AVI denies the allegations in Paragraph 53 of the Amended Complaint. PLAINTIFFS THIRD ALLEGED CAUSE OF ACTION 54. AVI admits that Plaintiff Sleve seeks to bring his claim under the New York Labor Law as a class action. AVI denies class action treatment is appropriate in this case, denies that any Route Supervisor or CSA Supervisor is comparably situated to Plaintiff Sleve, denies 9

10 Case: 1:17-cv DCN Doc #: 14 Filed: 03/02/17 10 of 19. PageID #: 78 there are any other employees in positions comparable to Plaintiff Sleve s, denies the substance of Plaintiff Sleve s claims, denies that it violated the New York Labor Law or any other law, and otherwise denies the remaining allegations in Paragraph 54 of the Amended Complaint. AVI incorporates herein each of its responses to Paragraphs 1 through 53 of the Amended Complaint. 55. AVI admits that it employed Plaintiff Sleve. Except as expressly admitted herein as true, AVI denies the allegations in Paragraph 55 of the Amended Complaint. 56. AVI denies that it misclassified Plaintiff Sleve or any other employee and otherwise denies the remaining allegations in Paragraph 56 of the Amended Complaint. 57. AVI denies the allegations in Paragraph 57 of the Amended Complaint. PRAYER FOR RELIEF 58. AVI denies that Plaintiffs, on behalf of themselves or any other individuals, are entitled to any of the relief requested in the Prayer for Relief, including subparagraphs (A through (G. 59. Except to the extent expressly admitted herein, AVI denies each and every allegation in the Amended Complaint. AFFIRMATIVE AND OTHER DEFENSES 1. The Amended Complaint fails in whole or in part to state a claim upon which relief can be granted. 2. Plaintiffs purported claims are barred in whole or in part by applicable statutes of limitation. This defense may also apply to the purported claims of some or all of the potential members of the putative class Plaintiffs purport to represent and any individuals who opt into any collective action that may be certified by the Court. 10

11 Case: 1:17-cv DCN Doc #: 14 Filed: 03/02/17 11 of 19. PageID #: The Amended Complaint fails to state a cognizable class or collective under any applicable rule or law governing the maintenance of a collective or class action. 4. The potential members of the putative FLSA collective Plaintiffs purport to represent cannot proceed collectively under the FLSA because they are not similarly situated and there are no employees of AVI who are similarly situated to Plaintiffs, as that term is defined and/or interpreted under the FLSA. 5. Certification of a class or collective action, as applied to the facts and circumstances of this case, would constitute a denial of AVI s procedural rights and right to trial by jury and to substantive and procedural due process, in violation of the Fourteenth Amendment of the United States Constitution. 6. Plaintiffs and the potential members of the putative classes and collective Plaintiffs purport to represent were paid in accordance with the FLSA and state law. 7. The claims of Plaintiffs, individuals who join any collective action that may be certified by the Court, and putative class members are barred, in whole or in part, to the extent the work they performed falls within the executive, administrative, and/or combination exemptions, exceptions, or exclusions recognized under Ohio and New York law and expressly provided under the FLSA, 29 U.S.C. 201, et seq., including those exemptions contained in Section 13(a and/or (b of the FLSA, including the appropriate tacking of exemptions. To the extent their duties were not performed in the manner directed by AVI, or were the result of their failure to comply with the reasonable expectations, policies, and/or instructions of AVI, such acts or omissions cannot deprive AVI of the benefit of the exemptions. 8. The claims of Plaintiffs, individuals who join any collective action that may be certified by the Court, and putative class members are barred, in whole or in part, because the 11

12 Case: 1:17-cv DCN Doc #: 14 Filed: 03/02/17 12 of 19. PageID #: 80 work performed falls within exemptions, exclusions, exceptions, or credits recognized under the FLSA and similar state laws. 29 U.S.C. 207, 213(a, 213(b. Specifically, they were employed in a bona fide administrative capacity under 29 C.F.R et seq. as employees: (1 who were compensated on a salary basis at a rate of not less than the legally required minimum per week, exclusive of board, lodging, or other facilities; (2 whose primary duty is the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer s customers; and (3 whose primary duty includes the exercise of discretion and independent judgment with respect to matters of significance. 9. The claims of Plaintiffs, individuals who join any collective action that may be certified by the Court, and putative class members are barred, in whole or in part, because the work performed falls within exemptions, exclusions, exceptions, or credits recognized under the FLSA and similar state laws. 29 U.S.C. 207, 213(a, 213(b. Specifically, they were employed in a bona fide executive capacity under 29 C.F.R et seq. as employees: (1 who were compensated on a salary basis at a rate of not less than the legally required minimum per week, exclusive of board, lodging, or other facilities; (2 whose primary duty is management of the enterprise in which the employee is employed or of a customarily recognized department or subdivision thereof; (3 who customarily and regularly directs the work of two or more other employees; and (4 who has the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring, firing, advancement, promotion, or any other change of status of other employees are given particular weight. 10. The claims of Plaintiffs, individuals who join any collective action that may be certified by the Court, and putative class members are barred, in whole or in part, because the 12

13 Case: 1:17-cv DCN Doc #: 14 Filed: 03/02/17 13 of 19. PageID #: 81 work performed falls within exemptions, exclusions, exceptions, or credits recognized under the FLSA and similar state laws. Specifically, they were employed in a bona fide executive and/or administrative capacity under section 13(a(1 of the FLSA as an employee who performed a combination of exempt duties as set forth in the regulations for executive and/or administrative employees. 29 U.S.C. 213(a(1; 29 C.F.R The claims of Plaintiffs, individuals who join any collective action that may be certified by the Court, and putative class members are barred, in whole or in part, because the work performed falls within exemptions, exclusions, exceptions, or credits recognized under the FLSA and similar state laws, including those exemptions contained in Section 13(b of the FLSA, also known as the Motor Carrier Exemption. 12. The claims of Plaintiffs, individuals who join any collective action that may be certified by the Court, and putative class members are barred, in whole or in part, under the provisions of Section 4 of the Portal-to-Portal Act, 29 U.S.C. 254, and similar state laws as to all hours during which they were engaged in activities which were preliminary or postliminary to their principal activities. 13. The claims of Plaintiffs, individuals who join any collective action that may be certified by the Court, and putative class members are barred, in whole or in part, by the provisions of Section 10 of the Portal-to-Portal Act, 29 U.S.C. 259, because actions taken in connection with their compensation were taken in good faith in conformity with and reliance upon written administrative regulations, orders, rulings, approvals, interpretations, and written and unwritten administrative practices or enforcement policies of the Administrator of the Wage and Hour Division of the United States Department of Labor. 13

14 Case: 1:17-cv DCN Doc #: 14 Filed: 03/02/17 14 of 19. PageID #: Assuming, arguendo, that AVI violated any provision of the FLSA (which it did not, such violation was not pursuant to a uniform policy or plan and the alleged injuries were not proximately caused by any unlawful policy, custom, practice, and/or procedure promulgated and/or tolerated by AVI. 15. AVI is entitled to offset any and all damage amounts recovered in this action, if any, by an amount equal to any overpayment of wages or payment of other compensation. 16. Any alleged violations established by Plaintiffs were not willful, knowing, or in reckless disregard for the provisions of the FLSA, Ohio law, New York law, or any other federal or state law. 17. AVI s alleged acts or omissions were undertaken in good faith, on reasonable grounds, and were justified, proper, and lawful. 18. The claims asserted in the Amended Complaint are barred, in whole or in part, to the extent they are inherently incompatible with and/or violate the Rules Enabling Act. 19. Plaintiffs claims under Ohio and New York law are barred to the extent they are preempted by Plaintiffs FLSA claims, and the Court should decline to exercise supplemental jurisdiction over Plaintiffs Ohio claims pursuant to 28 U.S.C The claims asserted in the Amended Complaint are barred to the extent they seek double recovery of wages and penalties under both federal and state law. 21. The claims asserted in the Amended Complaint are barred in whole or in part by the doctrines of estoppel, laches, release, in pari delicto, ratification, unclean hands, accord and satisfaction, and/or waiver. 22. This case cannot be tried on a representative basis consistent with due process because the use of representative evidence or statistical sampling could and/or would result in 14

15 Case: 1:17-cv DCN Doc #: 14 Filed: 03/02/17 15 of 19. PageID #: 83 damages being awarded to those who have suffered no injury and have no legal right to damages. 23. Plaintiffs are not entitled to equitable relief insofar as they have an adequate remedy at law. 24. Plaintiffs, individuals who join any collective action that may be certified by the Court, and putative class members have been paid and/or received all wages due to them by virtue of their employment with AVI. 25. AVI has not willfully failed to pay Plaintiffs, individuals who join any collective action that may be certified by the Court, and putative class members any wages, and there is a bona fide, good faith dispute with respect to AVI s obligation to pay any wages that may be found to be due. 26. Plaintiffs do not and cannot fairly and adequately represent the interests of the purported classes. 27. The claims asserted in the Amended Complaint are barred, in whole or in part, by failure to mitigate damages and the avoidable consequences doctrine, and AVI is entitled to an offset to the extent of any mitigation. 28. The claims asserted in the Amended Complaint are barred, in whole or in part, by the election of remedies doctrine. 29. The claims asserted in the Amended Complaint are barred, in whole or in part, by the doctrine of de minimis non curat lex. 30. The claims asserted in the Amended Complaint are barred, in whole or in part, by Sections 10 and 11 of the Portal-to-Portal Act, 29 U.S.C. 259 and 260, because any acts or omissions giving rise to this action were done in good faith and with reasonable grounds for 15

16 Case: 1:17-cv DCN Doc #: 14 Filed: 03/02/17 16 of 19. PageID #: 84 believing that such acts or omissions were not a violation of the FLSA, Ohio law, New York law, or any other federal or state law. 31. To the extent discovery reveals Plaintiffs, individuals who join any collective action that may be certified by the Court, and putative class members have previously received compensation for alleged unpaid wages in connection with, or as a result of, a payment to AVI s employees supervised by the United States Department of Labor; a settlement payment from AVI; or in connection with, or as a result of, a prior judicial action that was resolved through a court-approved settlement or judgment, AVI hereby invokes the doctrine of waiver to bar the claims asserted in the Amended Complaint. 32. Plaintiffs claims that seek the imposition of multiple penalties, liquidated damages, and/or exemplary damages for the same basic wrongs are unconstitutional in that such relief violates the Due Process Clause of the United States Constitution. 33. Plaintiffs lack standing to raise some or all of the claims of the alleged class and/or collective of persons whom Plaintiffs purport to represent. 34. The claims of Plaintiffs, individuals who join any collective action that may be certified by the Court, and putative class members are barred, in whole or in part, to the extent they are exempt from the provisions of the FLSA under the Motor Carrier Act exemption because the Secretary of Transportation has the exclusive authority to establish their qualifications and maximum hours of service pursuant to the Motor Carrier Act. 35. In calculating overtime liability (if any, AVI is entitled to exclusion of all elements of compensation that are excludable from an employee s regular rate for purposes of calculating overtime, including, but not limited to, those elements that fall within Section 7(e of the FLSA, 29 U.S.C. 207(e. 16

17 Case: 1:17-cv DCN Doc #: 14 Filed: 03/02/17 17 of 19. PageID #: The claims for wages asserted herein may be barred, in whole or in part, by payment or the receipt of other compensatory or overtime payments that may be credited against any wages due, as provided in Section 7(h of the FLSA, 29 U.S.C. 207(h. 37. The claims of Plaintiffs, individuals who join any collective action that may be certified by the Court, and putative class members are barred, in whole or in part, as to all hours they allegedly worked that AVI did not suffer or permit them to work and/or of which AVI lacked actual or constructive knowledge. 38. AVI designates any denial herein as an affirmative defense to the extent necessary to provide itself with a complete defense. 39. AVI reserves the right to assert any additional defenses it discovers during the course of litigation. WHEREFORE, AVI respectfully requests that the Court enter judgment dismissing Plaintiffs Amended Complaint on the merits and with prejudice; awarding AVI its attorneys fees, costs, and disbursements, as appropriate; and directing such other relief as the Court deems just and proper. 17

18 Case: 1:17-cv DCN Doc #: 14 Filed: 03/02/17 18 of 19. PageID #: 86 Respectfully submitted, /s/ Timothy S. Anderson Lee J. Hutton ( Timothy S. Anderson ( James P. Smith ( Meredith C. Shoop ( LITTLER MENDELSON, P.C Superior Avenue, 20th Floor Cleveland, Ohio Telephone: Facsimile: Attorneys for Defendant, AVI FOODSYSTEMS, INC. 18

19 Case: 1:17-cv DCN Doc #: 14 Filed: 03/02/17 19 of 19. PageID #: 87 CERTIFICATE OF SERVICE I hereby certify that on March 2, 2017, a copy of the foregoing Defendant s Answer to Plaintiffs Amended Collective and Class Action Complaint was filed electronically. Notice of this filing will be sent to all parties by operation of the Court's electronic filing system. Parties may access this filing through the Court s system. /s/ Timothy S. Anderson Timothy S. Anderson Attorney for Defendant, AVI FOODSYSTEMS, INC. Firmwide: