Third Amended Answer

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

 

REDACTED : CASE NO.: 1:08-cv-08 MP-AK

:

Plaintiff, :

:

vs. :

:

HIGH SPRINGS FAMILY :

PRACTICE CLINIC AND :

DIAGNOSIS CENTER, INC. :

and JORGE REDACTED :

:

Defendants/Third Party :

Plaintiffs :

:

v. :

:

DR. REDACTED, :

:

Third Party Defendant :

______________________________:

 

 

DEFENDANTS’ THIRD AMENDED ANSWER AND

FIRST AMENDED THIRD PARTY COMPLAINT

 

The Defendants/Third Party Plaintiffs (High Springs Family Practice Clinic and Diagnosis Center, Inc. and Jorge REDACTED) file the following answer and third party complaint:

  1. Denied.

  2. Denied.

  3. Venue is proper in this Court.

  4. Denied.

  5. Denied.

  6. Denied.

  7. Denied.

  8. Denied.

  9. Denied.

  10. Denied.

  11. Denied.

  12. Denied.

  13. Denied.

  14. Denied.

  15. Denied.

  16. Denied.

  17. Denied.

  18. Denied.

  19. Denied.

  20. Denied.

  21. Denied.

  22. Denied.

  23. Denied.

  24. Denied.

  25. Denied.

All allegations not specifically admitted are denied.

AFFIRMATIVE DEFENSES

Without admitting the Defendants bear the burden of proof or persuasion as to any issue, the Defendants assert the following Defenses and Affirmative Defenses:

First Defense: Good Faith

At all times relevant, the Defendants acted (or failed to act) in good faith and in

compliance with all applicable statutes and regulations, and with reasonable grounds to believe that its actions, or failures to act, did not violate the FLSA.

Second Defense: Pre- and Postliminary Work

The Plaintiff is only entitled to compensation for the time actually spent working;

preliminary and post-liminary work is not compensable under the FLSA.

Third Defense: Unclean Hands

Some or all of the Plaintiff’s claims are barred by the doctrine of unclean hands.

Fourth Defense: Waiver and Estoppel

The Plaintiff is estopped from bringing a cause of action under the FLSA or from

receiving time and one-half for all hours worked in excess of forty, because, among other

things, she improperly reported her hours of work, accepted the denominated rate of pay,

and/or failed to comply with the prevailing terms, conditions, policies, and procedures governing her employment, including the policies and procedures governing overtime.

Fifth Defense: De Minimis Rule

Without admitting that any violations of the FLSA have occurred, the de minimis

rule applies to any such violations..

Sixth Defense: The Defendants are Not Enterprises

The Defendants are not enterprises as defined by the FLSA. Specifically, the Defendants did not have at least two employees, an annual dollar volume of sales or business done of at least $500,000, and/or otherwise meet the criteria for certain businesses and agencies.

Seventh Defense: Plaintiff is Not Individually Covered by the FLSA

The Plaintiff’s duties and activities are not the production of goods for commerce or activities closely related and directly essential to the production of goods for commerce. Consequently, the Plaintiff is not individually covered by the Fair Labor Standards Act.

Eighth Defense: Plaintiff was employed by Dr. Redacted

At all times material, Dr. Redacted was Ms. Curry’s employer. See the below asserted Third Party Complaint.

Ninth Defense: Payment/Setoff

Even assuming the Defendants did not properly pay the Plaintiff, she was paid and therefore cannot double recover. Additionally, any amounts should benefit Defendants by way of setoff.

Tenth Defense: Failure to Provide Pre-Suit Notice

Florida Statutes § 48.110(6) reads, in pertinent part, as follows: “… prior to bringing any claim for unpaid minimum wages pursuant to this section, the person aggrieved shall notify the employer alleged to have violated this section, in writing, of an intent to initiate such an action. The notice must identify the minimum wage to which the person aggrieved claims entitlement, the actual or estimated work dates and hours for which payment is sought, and the total amount of alleged unpaid wages through the date of the notice.” Fla. Stat. § 48.110(6)(a). Upon receipt of this notice, an employer has fifteen days to resolve the claim before a an action may be filed to recover the unpaid wages. Fla. Stat. § 48.110(6)(b). Such notice was never provided, and therefore the

Plaintiff’s claims are barred. See Resnick v. Oppenheimer & Co. Inc. 2008 WL 113665 (S.D. Fla., 2008).

Eleventh Defense: Statute of Frauds

Even assuming the terms of an oral contract were discussed as alleged in Count III, the agreement is barred by the statute of frauds. See Collier v. Brooks, 632 So.2d 149, 154 (Fla. 1st DCA 1994) (” ‘[W]hen no time is agreed on for the complete performance of the contract, if from the object to be accomplished by it and the surrounding circumstances, it clearly appears that the parties intended that it should extend for a longer period than a year, it is within the statute of frauds, though it cannot be said that there is any impossibility preventing its performance within a year.’ “).

Twelfth Defense: Lack of Essential Terms

With regard to the alleged oral contract, the parties did not mutually assent to “a certain and definite proposition” and, furthermore, they left essential terms open; therefore the alleged agreement is void. See Rubenstein, M.D., v. Primedica Healthcare, Inc., 755 So.2d 746 (Fla. 4th DCA 2000) (“In order to state a cause of action for breach of an oral contract, a plaintiff is required to allege facts that, if taken as true, demonstrate that the parties mutually assented to “a certain and definite proposition” and left no essential terms open.”).

Reservation of Rights

The Defendants reserve the right to assert any and all additional defenses as may be determined necessary during the course of discovery and to seek attorney’s fees and costs under any applicable statute.

 

FIRST AMENDED THIRD PARTY COMPLAINT

Defendants/Third Party Plaintiffs (i.e. High Springs Family Practice Clinic and Diagnosis Center, Inc. and Jorge REDACTED) bring this cause of action against Third Party Defendant Dr. Redacted and state as follows:

  1. This is an action for indemnification.

  2. Venue and jurisdiction are proper.

  3. All conditions precedent to this action have been met or have been waived.

  4. The undersigned has been retained by Defendants/Third Party Plaintiffs whom have agreed to pay the same a reasonable for prosecuting/defending this case and the related case bought by Ms. Redacted.

  5. Defendants/Third Party Plaintiffs are Florida residents.

  6. Dr. Redacted is also a Florida resident

COUNT I – INDEMNIFICATION

  1. Paragraphs 1-6 above are reincorporated as if fully set forth herein.

  2. Defendants/Third Party Plaintiffs are defending, discharging and/or is in the process of defending the above noted case (i.e. Case No. 1:08-cv-08 MP-AK) brought by Ms. Redacted, but which is should be discharged by Dr. Redacted.

  3. Moreover, Redacted was the employee of Dr. Redacted; he paid her or arranged for her payment and he controlled the terms and conditions of her employment. Any and all obligations made to Ms. Curry were made by Dr. Redacted and therefore (assuming those obligations were not satisfied) he should be made to bear the consequences.

  4. Defendants/Third Party Plaintiffs have been injured and are being injured solely due to the fault and negligence of Dr. Redacted.

  5. Defendants/Third Party Plaintiffs are without fault.

  6. As a direct and proximate result of Dr. Redacted’s acts, omissions and negligence, Defendants/Third Party Plaintiffs have incurred, and will continue to incur, damages (including but not limited to attorneys’ fees and costs).

  7. Dr. Redacted is liable for all or a part of the allegations alleged in Ms. Curry’s complaint as he was her employer.

WHEREFORE, Defendants/Third Party Plaintiffs demand judgment against Dr. Redacted and relief in the form of: economic damages and other remuneration, any other compensatory damages allowable under law; attorneys’ fees (including but not limited to the instant third party complaint and for defending the suit brought by Ms. Curry), general and special damages, for any and all damages or relief afforded to Ms. Curry against Defendants/Third Party Plaintiffs via judgment, settlement or otherwise, prejudgment interest and post-judgment interest; costs, expert witness fees, and any other relief the Court deems just and proper.

JURY TRIAL DEMAND

Defendants/Third Party Plaintiffs demand a jury trial on all issue so triable.

 

/s/ Michael Massey________

Michael Massey

Fla. Bar No. 153680

Patricia Duffy

Fla. Bar. No. 0187542

Massey & Duffy, P LLC

824 E. University Ave.

Gainesville, FL 32601

352-374-0877