Response to Joe's on Juniper Lawsuit 12-15-14

Case 1:14-cv-02888-MHC Document 7 Filed 10/02/14 Page 1 of 27

IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION RYAN WASHINGTON; IAN INGRAM; and TATYANA BROWN, on behalf of themselves and others similarly situated, CASE NO. 1:14-CV-02888-AT

Plaintiffs, v.

METROTAINMENT CAFES, LLC, POLITICAL CONCEPTS, LLC, JEFFREY LANDAU, and AMY LANDAU,

JURY DEMAND

Defendants.

ANSWER AND AFFIRMATIVE DEFENSES COME NOW Metrotainment Cafes, LLC (“Metrotainment”), Political Concepts, LLC (“Political Concepts”), Jeffrey Landau (“Jeffrey Landau”), and Amy Landau (“Amy Landau”), Defendants in the above-styled action, and respectfully file this Answer and Affirmative Defenses to Plaintiffs’ Complaint, showing the Court as follows: FIRST DEFENSE Plaintiffs’ Complaint fails to state a claim upon which relief can be granted.

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Case 1:14-cv-02888-MHC Document 7 Filed 10/02/14 Page 2 of 27

SECOND DEFENSE Some or all of Plaintiffs’ claims, in whole or in part, may be barred by the applicable statute of limitations.

THIRD DEFENSE Some or all of Plaintiffs’ claims may be barred by the doctrine of accord and satisfaction.

FOURTH DEFENSE Some or all of Plaintiffs’ claims may be barred by the defense of payment.

FIFTH DEFENSE Some or all of Plaintiffs’ claims may be subject to the defenses of set-off and recoupment.

SIXTH DEFENSE Some or all of Plaintiffs’ claims may be barred by the de minimus doctrine.

SEVENTH DEFENSE As and for an additional defense, Defendants state that Defendants Metrotainment, Jeffery Landau, and Amy Landau are not “employers” under the Fair Labor Standards Act (the “FLSA”), nor did they employ Plaintiffs in any capacity.

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EIGHTH DEFENSE As and for an additional defense, Defendants state that Defendant Political Concepts paid to Plaintiffs all amounts due and owing during the applicable period pursuant to applicable law, including state and federal employment and labor laws.

NINTH DEFENSE As and for an additional defense, Defendants state that Defendant Political Concepts compensated Plaintiffs in good faith on its reasonable belief that its method of compensation was lawful and in conformity with, and in reliance on, written administrative regulations, orders, ruling, or interpretations of the Administrator of the Wage and Hour Division of the Department of Labor, other federal agencies, or the courts.

TENTH DEFENSE As and for an additional defense, Defendants state that Plaintiffs are not entitled to recover any liquidated damages because any alleged acts or omissions by Defendants were undertaken or made in good faith, and Defendants had reasonable grounds for believing that their acts or omissions did not violate the FLSA.

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ELEVENTH DEFENSE As and for an additional defense, Defendants state that Plaintiffs were properly paid for all time worked.

TWELFTH DEFENSE As and for an additional defense, Defendants state that Plaintiffs were employed by Defendant Political Concepts as tipped employees and were notified in advance that Defendant Political Concepts elected to use the tip credit in order to bring Plaintiffs’ hourly wages to the required minimum hourly rate.

THIRTEENTH DEFENSE As and for an additional defense, Defendants state that they did not act in bad faith or in willful violation of any law or regulation.

FOURTEENTH DEFENSE As and for an additional defense, Defendants state that this action cannot be maintained as a collective action because the requirements for such an action cannot be maintained under the facts pleaded or to be proved.

FIFTEENTH DEFENSE As and for an additional defense, Defendants state that this action cannot be maintained as a collective action because the allegations, facts and defenses

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relating to Plaintiffs and the purported collective action members, separately and individually, will not support a collective action.

SIXTEENTH DEFENSE As and for an additional defense, Defendants state that this action cannot be maintained as a collective action because Plaintiffs are not adequate representatives for the proposed collective action members.

SEVENTEENTH DEFENSE As and for an additional defense, Defendants state that the certification of this matter as a collective action will violate Defendants’ constitutional rights to due process of law.

EIGHTEENTH DEFENSE Should the Court certify this matter as a collective action, Defendants reserve their rights to assert each of these defenses and affirmative defenses against each person filing a consent to join this action.

NINETEENTH DEFENSE As and for an additional defense, Defendants respond to the specific numbered paragraphs of Plaintiffs’ Complaint as follows:

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Nature of the Action 1.

Defendants admit that Plaintiffs purport to bring this action on behalf of themselves and others similarly situated under the FLSA. Defendants deny that they engaged in any illegal or unlawful conduct with respect to Plaintiffs’ employment. Defendants further deny that Plaintiffs or any purported collective action members are entitled to additional compensation, either in the form of minimum wages, overtime premium wages or liquidated damages. Defendants further deny that Plaintiffs adequately represent any purported class of similarly situated persons for the purposes of the FLSA. Defendants deny the remaining allegations contained within Paragraph 1 of Plaintiffs’ Complaint.

Jurisdiction and Venue 2.

Defendants neither admit nor deny the legal conclusions contained within Paragraph 2 of Plaintiffs’ Complaint. Defendants deny any remaining factual allegations contained within Paragraph 2 of Plaintiffs’ Complaint.

3.

Defendants neither admit nor deny the legal conclusions contained within Paragraph 3 of Plaintiffs’ Complaint. Defendants deny any remaining factual allegations contained within Paragraph 3 of Plaintiffs’ Complaint. {00220213.DOCX /3 }

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Parties 4.

Defendants admit the allegations contained within Paragraph 4 of Plaintiffs’ Complaint.

5.

Defendants admit the allegations contained within Paragraph 5 of Plaintiffs’ Complaint.

6.

Defendants admit the allegations contained within Paragraph 6 of Plaintiffs’ Complaint.

7.

Defendants admit the allegations contained within Paragraph 7 of Plaintiffs’ Complaint.

8.

Defendants admit the allegations contained within Paragraph 8 of Plaintiffs’ Complaint.

9.

Defendants admit the allegations contained within Paragraph 9 of Plaintiffs’ Complaint.

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10.

In response to Paragraph 10 of Plaintiffs’ Complaint, Defendants admit only that Defendant Amy Landau is the registered agent of Defendant Political Concepts. Defendants deny the remaining allegations contained within Paragraph 10 of Plaintiffs’ Complaint.

11.

Defendants admit the allegations contained within Paragraph 11 of Plaintiffs’ Complaint.

12.

In response to Paragraph 12 of Plaintiffs’ Complaint, Defendants admit only that Plaintiffs were employed by Defendant Political Concepts at various times within the three years preceding the instant action. Defendants expressly deny that Defendants Metrotainment, Jeffrey Landau or Amy Landau ever employed Plaintiffs. Defendants deny the remaining allegations contained within Paragraph 12 of Plaintiffs’ Complaint.

13.

In response to Paragraph 13, Defendants admit only that Exhibits 1-3 to Plaintiffs’ Complaint purport to contain Plaintiffs’ written consent to join this action. Defendants expressly deny that any collective action is proper and further deny that Plaintiffs are appropriate representatives for any such {00220213.DOCX /3 }

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Case 1:14-cv-02888-MHC Document 7 Filed 10/02/14 Page 9 of 27

collective action members. Defendants deny the remaining allegations contained within Paragraph 13 of Plaintiffs’ Complaint.

Factual Allegations Showing that Defendants are Joint Employers 14.

In response to Paragraph 14 of Plaintiffs’ Complaint, Defendants admit only that Plaintiffs were employed by Defendant Political Concepts at various times within the three years preceding the instant action. Defendants expressly deny that Defendants Metrotainment, Jeffrey Landau or Amy Landau ever employed Plaintiffs. Defendants neither admit nor deny the legal conclusions contained within Paragraph 14 of Plaintiffs’ Complaint. Defendants deny any remaining factual allegations contained within Paragraph 14 of Plaintiffs’ Complaint.

15.

Defendants neither admit nor deny the legal conclusions contained within Paragraph 15 of Plaintiffs’ Complaint. Defendants deny any remaining factual allegations contained within Paragraph 15 of Plaintiffs’ Complaint.

16.

Defendants neither admit nor deny the legal conclusions contained within Paragraph 16 of Plaintiffs’ Complaint. Defendants deny any remaining factual allegations contained within Paragraph 16 of Plaintiffs’ Complaint. {00220213.DOCX /3 }

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17.

In response to Paragraph 17 of Plaintiffs’ Complaint, Defendants admit only that “Joe’s on Juniper” (“Joe’s”) is a trade name used by Defendant Political Concepts to refer to the restaurant located at 1049 Juniper Street, NE, Atlanta, Georgia 30309. Defendants expressly deny that Defendants Metrotainment, Jeffrey Landau or Amy Landau use the trade name. Defendants deny the remaining factual allegations contained within Paragraph 17 of Plaintiffs’ Complaint.

18.

In response to Paragraph 18 of Plaintiffs’ Complaint, Defendants admit only that Defendant Political Concepts employed Plaintiffs to work at Joe’s.

Defendants neither admit nor deny the legal conclusions contained within Paragraph 18 of Plaintiffs’ Complaint. Defendants deny any remaining factual allegations contained within Paragraph 18 of Plaintiffs’ Complaint.

19.

In response to Paragraph 19 of Plaintiffs’ Complaint, Defendants admit only that Defendant Political Concepts employed Plaintiffs to work at Joe’s.

Defendants neither admit nor deny the legal conclusions contained within

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Paragraph 19 of Plaintiffs’ Complaint. Defendants deny any remaining factual allegations contained within Paragraph 19 of Plaintiffs’ Complaint.

20.

Defendants deny the allegations contained within Paragraph 20 of Plaintiffs’ Complaint.

21.

Defendants deny the allegations contained within Paragraph 21 of Plaintiffs’ Complaint.

22.

Defendants neither admit nor deny the legal conclusions contained within Paragraph 22 of Plaintiffs’ Complaint. Defendants deny any remaining factual allegations contained within Paragraph 22 of Plaintiffs’ Complaint.

23.

Defendants deny the allegations contained within Paragraph 23 of Plaintiffs’ Complaint.

24.

Defendants neither admit nor deny the legal conclusions contained within Paragraph 24 of Plaintiffs’ Complaint. Defendants deny any remaining factual allegations contained within Paragraph 24 of Plaintiffs’ Complaint.

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25.

Defendants admit the allegations contained within Paragraph 25 of Plaintiffs’ Complaint.

26.

Defendants admit the allegations contained within Paragraph 26 of Plaintiffs’ Complaint.

27.

Defendants neither admit nor deny the legal conclusions contained within Paragraph 27 of Plaintiffs’ Complaint. Defendants deny any remaining factual allegations contained within Paragraph 27 of Plaintiffs’ Complaint.

28.

Defendants admit the allegations contained within Paragraph 28 of Plaintiffs’ Complaint.

29.

Defendants neither admit nor deny the legal conclusions contained within Paragraph 29 of Plaintiffs’ Complaint. Defendants deny any remaining factual allegations contained within Paragraph 29 of Plaintiffs’ Complaint.

30.

Defendants admit the allegations contained within Paragraph 30 of Plaintiffs’ Complaint.

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31.

Defendants expressly deny that Defendant Jeffrey Landau controls, determines or directs any activity for or on behalf of Defendant Metrotainment, as Defendant Metrotainment does not own or operate any restaurants.

Defendants deny the remaining allegations contained within Paragraph 31 of Plaintiffs’ Complaint.

32.

Defendants expressly deny that Defendant Jeffrey Landau controls, determines or directs any activity for or on behalf of Defendant Metrotainment, as Defendant Metrotainment does not own or operate any restaurants.

Defendants admit the remaining allegations contained within Paragraph 32 of Plaintiffs’ Complaint.

33.

Defendants deny the allegations contained within Paragraph 33 of Plaintiffs’ Complaint.

34.

Defendants admit the allegations contained within Paragraph 34 of Plaintiffs’ Complaint.

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35.

Defendants admit the allegations contained within Paragraph 35 of Plaintiffs’ Complaint.

36.

In response to Paragraph 36 of Plaintiffs’ Complaint, Defendants expressly deny that Plaintiffs adequately represent any purported class of similarly situated persons for the purposes of the FLSA. Defendants admit the remaining allegations contained within Paragraph 36 of Plaintiffs’ Complaint.

37.

Defendants admit the allegations contained within Paragraph 37 of Plaintiffs’ Complaint.

38.

In response to Paragraph 38 of Plaintiffs’ Complaint, Defendants admit only that Defendant Amy Landau is the registered agent of Defendant Political Concepts. Defendants deny the remaining allegations contained within Paragraph 38 of Plaintiffs’ Complaint.

39.

Defendants deny the allegations contained within Paragraph 39 of Plaintiffs’ Complaint.

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40.

Defendants deny the allegations contained within Paragraph 40 of Plaintiffs’ Complaint.

41.

Defendants admit the allegations contained within Paragraph 41 of Plaintiffs’ Complaint.

42.

Defendants deny the allegations contained within Paragraph 42 of Plaintiffs’ Complaint.

43.

Defendants deny the allegations contained within Paragraph 43 of Plaintiffs’ Complaint.

44.

Defendants neither admit nor deny the legal conclusions contained within Paragraph 44 of Plaintiffs’ Complaint. Defendants deny any remaining factual allegations contained within Paragraph 44 of Plaintiffs’ Complaint.

45.

Defendants neither admit nor deny the legal conclusions contained within Paragraph 45 of Plaintiffs’ Complaint. Defendants deny any remaining factual allegations contained within Paragraph 45 of Plaintiffs’ Complaint.

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Factual Allegations in Support of Plaintiffs’ Claims 46.

In response to Paragraph 46 of Plaintiffs’ Complaint, Defendants admit only that Defendant Political Concepts operates Joe’s. Defendants deny the remaining allegations contained within Paragraph 46 of Plaintiffs’ Complaint.

47.

Defendants admit the allegations contained within Paragraph 47 of Plaintiffs’ Complaint.

48.

Defendants admit the allegations contained within Paragraph 48 of Plaintiffs’ Complaint.

49.

Defendants admit the allegations contained within Paragraph 49 of Plaintiffs’ Complaint.

50.

In response to Paragraph 50 of Plaintiffs’ Complaint, Defendants admit only that restaurant customers typically leave discretionary gratuities for the benefit of their servers, including Plaintiffs. Defendants expressly deny that Plaintiffs adequately represent any purported class of similarly situated persons

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for the purposes of the FLSA. Defendants deny the remaining allegations contained within Paragraph 50 of Plaintiffs’ Complaint.

51.

In response to Paragraph 51, Defendants admit only that certain employees of Defendant Political Concepts track their hours, sales and food orders using a computerized point of sale system. Defendants expressly deny that Plaintiffs adequately represent any purported class of similarly situated persons for the purposes of the FLSA. Defendants deny the remaining allegations contained within Paragraph 51 of Plaintiffs’ Complaint.

52.

Defendants expressly deny that Plaintiffs adequately represent any purported class of similarly situated persons for the purposes of the FLSA. Defendants deny the remaining allegations contained within Paragraph 52 of Plaintiffs’ Complaint.

53.

Defendants expressly deny that Plaintiffs adequately represent any purported class of similarly situated persons for the purposes of the FLSA. Defendants deny the remaining allegations contained within Paragraph 53 of Plaintiffs’ Complaint.

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54.

Defendants expressly deny that Plaintiffs adequately represent any purported class of similarly situated persons for the purposes of the FLSA. Defendants deny the remaining allegations contained within Paragraph 54 of Plaintiffs’ Complaint.

55.

Defendants expressly deny that Plaintiffs adequately represent any purported class of similarly situated persons for the purposes of the FLSA. Defendants deny the remaining allegations contained within Paragraph 55 of Plaintiffs’ Complaint.

56.

Defendants expressly deny that Plaintiffs adequately represent any purported class of similarly situated persons for the purposes of the FLSA. Defendants deny the remaining allegations contained within Paragraph 56 of Plaintiffs’ Complaint.

57.

Defendants expressly deny that Plaintiffs adequately represent any purported class of similarly situated persons for the purposes of the FLSA. Defendants deny the remaining allegations contained within Paragraph 57 of Plaintiffs’ Complaint. {00220213.DOCX /3 }

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58.

Defendants expressly deny that Plaintiffs adequately represent any purported class of similarly situated persons for the purposes of the FLSA. Defendants deny the remaining allegations contained within Paragraph 58 of Plaintiffs’ Complaint.

59.

Defendants expressly deny that Plaintiffs adequately represent any purported class of similarly situated persons for the purposes of the FLSA. Defendants deny the remaining allegations contained within Paragraph 59 of Plaintiffs’ Complaint.

60.

Defendants deny the allegations contained within Paragraph 60 of Plaintiffs’ Complaint.

61.

In response to Paragraph 60 of Plaintiffs’ Complaint, Defendants admit only that Defendant Political Concepts sometimes utilizes a “tip pool” system to reward team members who do not receive tips. Defendants expressly deny that Plaintiffs adequately represent any purported class of similarly situated persons for the purposes of the FLSA. Defendants deny the remaining allegations contained within Paragraph 61 of Plaintiffs’ Complaint. {00220213.DOCX /3 }

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Count One: Willful Failure to Pay Tipped Employees at the Minimum Wage 62.

In response to Paragraph 62 of Plaintiffs’ Complaint, Defendants admit only that Defendant Political Concepts paid Plaintiffs hourly wages of $2.13 and claimed a tip credit for the balance of the required minimum hourly wage of $7.25, all in accordance with the FLSA. Defendants expressly deny that Plaintiffs adequately represent any purported class of similarly situated persons for the purposes of the FLSA. Defendants deny the remaining allegations contained within Paragraph 62 of Plaintiffs’ Complaint.

63.

Defendants neither admit nor deny the legal conclusions contained within Paragraph 63 of Plaintiffs’ Complaint. Defendants expressly deny that Plaintiffs adequately represent any purported class of similarly situated persons for the purposes of the FLSA. Defendants deny any remaining factual allegations contained within Paragraph 63 of Plaintiffs’ Complaint.

64.

Defendants neither admit nor deny the legal conclusions contained within Paragraph 64 of Plaintiffs’ Complaint. Defendants expressly deny that Plaintiffs adequately represent any purported class of similarly situated persons

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for the purposes of the FLSA. Defendants deny the remaining allegations contained within Paragraph 64 of Plaintiffs’ Complaint.

65.

Defendants neither admit nor deny the legal conclusions contained within Paragraph 65 of Plaintiffs’ Complaint. Defendants expressly deny that Plaintiffs adequately represent any purported class of similarly situated persons for the purposes of the FLSA. Defendants deny the remaining allegations contained within Paragraph 65 of Plaintiffs’ Complaint.

66.

Defendants neither admit nor deny the legal conclusions contained within Paragraph 66 of Plaintiffs’ Complaint. Defendants expressly deny that Plaintiffs adequately represent any purported class of similarly situated persons for the purposes of the FLSA. Defendants deny the remaining allegations contained within Paragraph 66 of Plaintiffs’ Complaint.

67.

In response to Paragraph 67 of Plaintiffs’ Complaint, Defendants expressly deny that Plaintiffs adequately represent any purported class of similarly situated persons for the purposes of the FLSA. Defendants deny the remaining allegations contained within Paragraph 67 of Plaintiffs’ Complaint.

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68.

In response to Paragraph 68 of Plaintiffs’ Complaint, Defendants expressly deny that Plaintiffs adequately represent any purported class of similarly situated persons for the purposes of the FLSA. Defendants deny the remaining allegations contained within Paragraph 68 of Plaintiffs’ Complaint.

69.

Defendants deny the allegations contained within Paragraph 69 of Plaintiffs’ Complaint.

70.

Defendants deny the allegations contained within Paragraph 70 of Plaintiffs’ Complaint.

71.

In response to Paragraph 71 of Plaintiffs’ Complaint, Defendants expressly deny that Plaintiffs adequately represent any purported class of similarly situated persons for the purposes of the FLSA. Defendants deny the remaining allegations contained within Paragraph 71 of Plaintiffs’ Complaint.

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Count Two: Willful Failure to Compensate Tipped Employees at the Overtime Premium Rate 72.

In response to Paragraph 72 of Plaintiffs’ Complaint, Defendants expressly deny that Plaintiffs adequately represent any purported class of similarly situated persons for the purposes of the FLSA. Defendants deny the remaining allegations contained within Paragraph 72 of Plaintiffs’ Complaint.

73.

In response to Paragraph 73 of Plaintiffs’ Complaint, Defendants expressly deny that Plaintiffs adequately represent any purported class of similarly situated persons for the purposes of the FLSA. Defendants deny the remaining allegations contained within Paragraph 73 of Plaintiffs’ Complaint.

74.

In response to Paragraph 74 of Plaintiffs’ Complaint, Defendants expressly deny that Plaintiffs adequately represent any purported class of similarly situated persons for the purposes of the FLSA. Defendants deny the remaining allegations contained within Paragraph 74 of Plaintiffs’ Complaint.

75.

In response to Paragraph 75 of Plaintiffs’ Complaint, Defendants expressly deny that Plaintiffs adequately represent any purported class of {00220213.DOCX /3 }

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similarly situated persons for the purposes of the FLSA. Defendants deny the remaining allegations contained within Paragraph 75 of Plaintiffs’ Complaint.

76.

Defendants deny the allegations contained within Paragraph 76 of Plaintiffs’ Complaint.

77.

Defendants deny the allegations contained within Paragraph 77 of Plaintiffs’ Complaint.

78.

In response to Paragraph 78 of Plaintiffs’ Complaint, Defendants expressly deny that Plaintiffs adequately represent any purported class of similarly situated persons for the purposes of the FLSA. Defendants deny the remaining allegations contained within Paragraph 78 of Plaintiffs’ Complaint.

79.

To the extent not expressly admitted herein, Defendants deny each and every remaining factual allegation contained within Plaintiffs’ Complaint.

Demand for Jury Trial 80.

Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure, Defendants demand a jury trial for all issues so triable.

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WHEREFORE having fully responded to Plaintiffs’ Complaint, Defendants respectfully pray that Plaintiffs’ Complaint be dismissed in its entirety, that Defendants be awarded all costs and expenses, including attorney’s fees incurred in the defense of this action, and that they receive such other and further relief as this Court deems just and proper.

This 2nd day of October, 2014. /s/ Shannan F. Oliver F. Skip Sugarman Georgia Bar No. 690773 (ssugarman@bloom-law.com) Shannan F. Oliver Georgia Bar No. 275393 (soliver@bloom-law.com) BLOOM SUGARMAN EVERETT, LLP 977 Ponce de Leon Avenue, NE Atlanta, GA 30306-4265 Tel: (404) 577-7710 Fax: (404) 577-7715 Attorneys for Defendants

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Case 1:14-cv-02888-MHC Document 7 Filed 10/02/14 Page 26 of 27

CERTIFICATE OF COUNSEL Pursuant to Local Rule 7.1(D), I hereby certify that I have prepared the foregoing ANSWER AND AFFIRMATIVE DEFENSES in compliance with Local Rule 5.1 in Times New Roman 14-point font.

This 2nd day of October, 2014.

/s/ Shannan F. Oliver Shannan F. Oliver Georgia Bar No. 275393 (soliver@bloom-law.com)

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CERTIFICATE OF SERVICE I hereby certify that on October 2, 2014, I electronically filed the foregoing ANSWER AND AFFIRMATIVE DEFENSES with the Clerk of Court using the CM/ECF system, which will automatically send email notification of such filing to the following attorneys of record: John L. Mays, Esq. (john@maysandkerr.com) MAYS & KERR LLC 235 Peachtree Street, NE North Tower - Suite 202 Atlanta, GA 30303 This 2nd day of October, 2014. /s/ Shannan F. Oliver Shannan F. Oliver Georgia Bar No. 275393 (soliver@bloom-law.com)

BLOOM SUGARMAN EVERETT, LLP 977 Ponce de Leon Avenue, NE Atlanta, GA 30306-4265 Tel: (404) 577-7710 Fax: (404) 577-7715 Attorneys for Defendants

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