Case 3:16-cv-00657-DPJ-FKB Document 9 Filed 10/24/16 Page 1 of 11 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI NORTHERN DIVISION KIMBERLY V. BRACEY VS. PLAINTIFF CIVIL ACTION NO.: 3:16-CV-657-DPJ-FKB CITY OF JACKSON, MISSISSIPPI; MAYOR TONY YARBER INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY; JOHN DOES 1-3 DEFENDANTS TONY YARBER S ANSWER, DEFENSES, AND COUNTERCLAIM (JURY TRIAL REQUESTED) COMES NOW, Answering Defendant, Tony Yarber, in his individual capacity, by and through counsel, and files this his Answer, Defenses, and Counterclaim as follows: FIRST AFFIRMATIVE DEFENSE The Amended Complaint fails to state a claim upon which relief can be granted against Answering Defendant. Accordingly, Answering Defendant moves this Court for a dismissal with prejudice of the Plaintiff s Amended Complaint pursuant to Rule 12(b) of the Federal Rules of Civil Procedure. SECOND AFFIRMATIVE DEFENSE The Amended Complaint is barred by the applicable statute of limitations. THIRD AFFIRMATIVE DEFENSE Some or all of the claims of the Plaintiff are barred by waiver. FOURTH AFFIRMATIVE DEFENSE Some or all of the claims of the Plaintiff are barred by her failure to exhaust administrative remedies. FIFTH AFFIRMATIVE DEFENSE Affirmatively and alternatively, and without waiving any other defenses asserted herein, Page 1 of 11
Case 3:16-cv-00657-DPJ-FKB Document 9 Filed 10/24/16 Page 2 of 11 Answering Defendant hereby pleads any and all defenses available under the Federal Rules of Civil Procedure and United States and Mississippi law. SIXTH AFFIRMATIVE DEFENSE The Amended Complaint fails to state facts sufficient to constitute a cause or causes of action against this Answering Defendant. SEVENTH AFFIRMATIVE DEFENSE Plaintiff s claims are barred, in whole or in part, because Plaintiff failed to mitigate any injuries and damages she has allegedly suffered. EIGHTH AFFIRMATIVE DEFENSE To the extent Plaintiff claims any damages suffered by her are attributable to this Answering Defendant, any such damages were the result of Plaintiff s own acts, omissions and/or the acts or omissions of third parties for which Answering Defendant has no legal responsibility. NINTH AFFIRMATIVE DEFENSE Plaintiff s claims are barred, in whole or in part, because this Answering Defendant did not owe any legal duty to Plaintiff or, if Answering Defendant owed any such legal duty, Answering Defendant did not breach that duty. TENTH AFFIRMATIVE DEFENSE To the extent that the Amended Complaint seeks any award or assessment of punitive damages against this Answering Defendant, such award would be contrary to the laws of the state of Mississippi and the laws of the United States of America, and would be violative of the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution and the Constitution of the State of Mississippi. ELEVENTH AFFIRMATIVE DEFENSE Answering Defendant cannot be held liable for punitive damages, because at no time did he act maliciously, fraudulently or with any intent to harm the Plaintiff or to deprive her of any Page 2 of 11
Case 3:16-cv-00657-DPJ-FKB Document 9 Filed 10/24/16 Page 3 of 11 legally protected rights. TWELFTH AFFIRMATIVE DEFENSE Answering Defendant pleads any and all defenses and affirmative defenses available to him which may become applicable through discovery and during the trial of this cause. THIRTEENTH AFFIRMATIVE DEFENSE Affirmatively and alternatively, and without waiving any other defenses elsewhere asserted herein, and the facts having not been fully developed, Answering Defendant would affirmatively plead any and all affirmative defenses as may be applicable in this action: accord and satisfaction, antenuptial knowledge, arbitration and award, assumption of risk, condonation, constructive desertion, contributory negligence, discharge and bankruptcy, duress, estoppel, failure of consideration, failure to mitigate damages, fraud, illegality, impossibility, insufficient process, insufficient service of process, injury by fellow servant, laches, lack of capacity to commit the offense, lack of standing, license, payment, preexisting injuries or damages, reconciliation, recrimination, reformation, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense. FOURTEENTH AFFIRMATIVE DEFENSE AND ANSWER This Answering Defendant responds to the allegations of the Amended Complaint, paragraph by paragraph and incorporates by reference all affirmative defenses heretofore mentioned, as follows: 1. This Answering Defendant is without knowledge or information sufficient to either admit or deny the allegations contained in paragraph 1 of the Amended Complaint, and insofar as the allegations pertain to this Answering Defendant, they are denied and Answering Defendant demands specific proof 2. The allegations contained in Paragraph numbered 2 of the Amended Complaint are Admitted. 3. The allegations contained in Paragraph numbered 3 of the Amended Complaint are Page 3 of 11
Case 3:16-cv-00657-DPJ-FKB Document 9 Filed 10/24/16 Page 4 of 11 Denied. 4. The allegations contained in Paragraph numbered 4 of the Amended Complaint 5. The allegations contained in Paragraph numbered 5 of the Amended Complaint 6. The allegations contained in Paragraph numbered 6 of the Amended Complaint 7. The allegations contained in Paragraph numbered 7 of the Amended Complaint that pertain to this Answering Defendant are Admitted as to the fact that on April 24, 2014, Tony Yarber did employ the Plaintiff as his Executive Assistant. However, that was changed shortly thereafter and she was required to directly report to Beatrice Slaughter for the rest of her tenure as an employee with the City of Jackson in the Mayor s office. 8. This Answering Defendant is without knowledge or information sufficient to either admit or deny the allegations contained in paragraph 8 of the Amended Complaint, and insofar as the allegations pertain to this Answering Defendant, they are denied and Answering Defendant demands specific proof 9. The allegations contained in Paragraph numbered 9 of the Amended Complaint 10. This Answering Defendant is without knowledge or information sufficient to either admit or deny the allegations contained in paragraph 10 of the Amended Complaint, and insofar as the allegations pertain to this Answering Defendant, they are denied and Answering Defendant demands specific proof Page 4 of 11
Case 3:16-cv-00657-DPJ-FKB Document 9 Filed 10/24/16 Page 5 of 11 11. The allegations contained in Paragraph numbered 11 of the Amended Complaint 12. The allegations contained in Paragraph numbered 12 of the Amended Complaint 13. The allegations contained in Paragraph numbered 13 of the Amended Complaint 14. The allegations contained in Paragraph numbered 14 of the Amended Complaint 15. The allegations contained in Paragraph numbered 15 of the Amended Complaint 16. The allegations contained in Paragraph numbered 16 of the Amended Complaint 17. The allegations contained in Paragraph numbered 17 of the Amended Complaint 18. The allegations contained in Paragraph numbered 18 of the Amended Complaint 19. The allegations contained in Paragraph numbered 19 of the Amended Complaint Page 5 of 11
Case 3:16-cv-00657-DPJ-FKB Document 9 Filed 10/24/16 Page 6 of 11 20. The allegations contained in Paragraph numbered 20 of the Amended Complaint 21. The allegations contained in Paragraph numbered 21 of the Amended Complaint 22. The allegations contained in Paragraph numbered 22 of the Amended Complaint 23. The allegations contained in Paragraph numbered 23 of the Amended Complaint are Denied. 24. The allegations contained in Paragraph numbered 24 of the Amended Complaint are Denied. 25. The allegations contained in Paragraph numbered 25 of the Amended Complaint are Denied. 26. The allegations contained in Paragraph numbered 26 of the Amended Complaint are Denied. COUNT I 27. Answering Defendant re-alleges each and every Affirmative Defense and response set forth in paragraphs 1 through 26 as if fully set forth herein. 28. The allegations contained in Paragraph numbered 28 of the Amended Complaint 29. The allegations contained in Paragraph numbered 29 of the Amended Complaint Page 6 of 11
Case 3:16-cv-00657-DPJ-FKB Document 9 Filed 10/24/16 Page 7 of 11 COUNT II 30. Answering Defendant re-alleges each and every Affirmative Defense and response set forth in paragraphs 1 through 29 as if fully set forth herein. 31. The allegations contained in Paragraph numbered 31 of the Amended Complaint 32. The allegations contained in Paragraph numbered 32 of the Amended Complaint COUNT III 33. Answering Defendant re-alleges each and every Affirmative Defense and response set forth in paragraphs 1 through 32 as if fully set forth herein. 34. The allegations contained in Paragraph numbered 34 of the Amended Complaint 35. The allegations contained in Paragraph numbered 35 of the Amended Complaint 36. The allegations contained in Paragraph numbered 36 of the Amended Complaint 37. In that the unnumbered paragraph appearing after the term WHEREFORE, PREMISES CONSIDERED of the Amended Complaint contains no factual allegations, Answering Defendant asserts no belief as to the truth of said paragraph, but Answering Defendant would deny that the Plaintiff is entitled to the relief sought in said paragraph and any Page 7 of 11
Case 3:16-cv-00657-DPJ-FKB Document 9 Filed 10/24/16 Page 8 of 11 and all subsections of said unnumbered paragraph. COUNTERCLAIM Now having fully answered the Amended Complaint, Answering Defendant herein assumes the role of counterclaimant and would show unto this Court the following: PARTIES 1. Counter-Plaintiff, Tony Yarber, is an adult resident citizen of the First Judicial District of Hinds County, Mississippi. 2. Counter-Defendant, Kimberly V. Bracey, upon information and belief, is an adult resident citizen of the First Judicial District of Hinds County, Mississippi who can be served with process by and through her attorney of record in this matter. FACTS 3. That on or about August 25, 2016, Plaintiff/Counter-Defendant filed a Complaint in the above-referenced matter falsely alleging that the Defendant/Counter-Plaintiff engaged in a sexual relationship with her, among other false statements. 4. That on or about August 25, 2016, Plaintiff/Counter-Defendant filed a Complaint in the above-referenced matter falsely alleging that the Defendant/Counter-Plaintiff engaged in numerous sexual relationships with other women during this time, among other false statements. 5. That on or about August 25, 2016, Plaintiff/Counter-Defendant filed a Complaint in the above-referenced matter falsely alleging that the Defendant/Counter-Plaintiff sexually harassed her, among other false statements. 6. That on or about August 25, 2016, Plaintiff/Counter-Defendant filed a Complaint in the above-referenced matter falsely alleging that the Defendant/Counter-Plaintiff committed retaliation against her, among other false statements. 7. That on or about August 29, 2016, Plaintiff/Counter-Defendant filed an Amended Complaint in the above-referenced matter falsely alleging that the Defendant/Counter-Plaintiff Page 8 of 11
Case 3:16-cv-00657-DPJ-FKB Document 9 Filed 10/24/16 Page 9 of 11 engaged in a sexual relationship with her, among other false statements. 8. That on or about August 29, 2016, Plaintiff/Counter-Defendant filed an Amended Complaint in the above-referenced matter falsely alleging that the Defendant/Counter-Plaintiff engaged in numerous sexual relationships with other women during this time, among other false statements. 9. That on or about August 29, 2016, Plaintiff/Counter-Defendant filed an Amended Complaint in the above-referenced matter falsely alleging that the Defendant/Counter-Plaintiff sexually harassed her, among other false statements. 10. That on or about August 29, 2016, Plaintiff/Counter-Defendant filed an Amended Complaint in the above-referenced matter falsely alleging that the Defendant/Counter-Plaintiff committed retaliation against her, among other false statements. 11. That on or about September 7, 2016, Plaintiff/Counter-Defendant caused Defendant/Counter-Plaintiff to be served with a Summons and copy of the Amended Complaint. COUNT I - ABUSE OF PROCESS 12. Counter-Plaintiff repeats, reiterates, realleges and incorporates by reference each and every allegation contained in paragraphs numbered 1 through 11 of this Counterclaim with the same force and effect as if more fully set forth at length herein. 13. That the filing of the Complaint and the filing and service of the Amended Complaint containing false allegations against the Counter-Plaintiff by the Counter-Defendant is a malicious perversion of a regularly issued civil process, for a purpose and to obtain a result not lawfully warranted or properly attainable thereby. 14. That the actions of the Counter-Defendant were done with the intent to abuse the privileges of the legal system. 15. The actions of the Counter-Defendant constitute abuse of process. 16. That as a direct and proximate result of said abuse of process, Counter-Plaintiff has been caused to suffer damages of a personal and pecuniary nature, including but not limited Page 9 of 11
Case 3:16-cv-00657-DPJ-FKB Document 9 Filed 10/24/16 Page 10 of 11 to out of pocket expenses, damage to reputation, attorney s fees, and other damages to be proven at trial. COUNT II - DEFAMATION 17. Counter-Plaintiff repeats, reiterates, realleges and incorporates by reference each and every allegation contained in paragraphs numbered 1 through 16 of this Counterclaim with the same force and effect as if more fully set forth at length herein. 18. At all times material and relevant, the Counter-Defendant made numerous false and defamatory statements concerning Counter-Plaintiff. 19. That at all times material and relevant, said statements were unprivileged and were published to third parties. 20. At all times material and relevant, said statements were made with malice, recklessness and with knowledge that said statements were false. 21. The actions of the Counter-Defendant constitute defamation. 22. That as a direct and proximate result of said defamation, Counter-Plaintiff has been caused to suffer damages of a personal and pecuniary nature, including but not limited to out of pocket expenses, damage to reputation, attorney s fees, and other damages to be proven at trial. DAMAGES 23. Counter-Plaintiff repeats, reiterates, realleges and incorporates by reference each and every allegation contained in paragraphs numbered 1 through 22 of this Counterclaim with the same force and effect as if more fully set forth at length herein. 24. As a direct and proximate result of the Counter-Defendant s actions, inactions, refusals and omissions, the Counter-Plaintiff has suffered injuries of a personal and pecuniary nature, including, but not limited to, out of pocket expenses, damage to reputation, attorney s fees, and other damages to be proven at trial. WHEREFORE, PREMISES CONSIDERED, the Counter-Plaintiff prays that the Page 10 of 11
Case 3:16-cv-00657-DPJ-FKB Document 9 Filed 10/24/16 Page 11 of 11 Plaintiff s Amended Complaint be dismissed with prejudice and that this Court award judgment to the Counter-Plaintiff of, from, and against the Counter-Defendant, Kimberly V. Bracey, in a sum that will fully and fairly compensate the Counter- Plaintiff for his loss, plus cost of court, reasonable attorney fees and any other relief that this Court or a jury deems just and proper. RESPECTFULLY SUBMITTED, this the 24th day of October, 2016. Tony Yarber, Individually /s/ M. Judith Barnett M. JUDITH BARNETT M. JUDITH BARNETT (MSB #99766) M. JUDITH BARNETT, P.A. 1911 Dunbarton Drive Jackson, Mississippi 39216 Telephone: (601) 981-4450 Facsimile: (601) 981-4717 mjbarnettpa@yahoo.com Attorney for Tony Yarber CERTIFICATE OF SERVICE This is to certify that I, M. Judith Barnett, attorney for Tony Yarber, have this date served, via the CM/ECF filing system, a true and correct copy of the above and foregoing Answer, Defenses, and Counterclaim to the following Counsel of Record: Louis H. Watson, Jr., Esq. Nick Norris, Esq. Watson & Norris, PLLC 1880 Lakeland Drive, Suite G Jackson, MS 39216-4972 LaToya C. Merritt, Esq. Jason T. Marsh, Esq. Phelps Dunbar, LLP P.O. Box 16114 Jackson, MS 39236-6114 SO CERTIFIED, this the 24 th day of October, 2016. /s/ M. Judith Barnett M. JUDITH BARNETT Page 11 of 11