Rice et al v. Lucky Brand Dungarees Stores, Inc.

Filing 11

ANSWER and Affirmative Defenses to Complaint by Lucky Brand Dungarees Stores, Inc..(Norfus, Natalie)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
FORT LAUDERDALE DIVISION
CASE NO.: 11-CV-61923-WPD
LORILYNN RICE, KRISTEN
GURDAK, GABRIEL AGUILAR
BRITTANY SOTO, and LAUREN
TAYLOR, on their own behalves
and other similarly situated,
Plaintiffs,
v.
LUCKY BRAND DUNGAREES
STORES, INC., a Foreign Profit
Corporation
Defendants.
_________________________________/
DEFENDANT’S ANSWER AND STATEMENT OF
AFFIRMATIVE DEFENSES TO PLAINTIFFS’ COMPLAINT
For its Answer and Affirmative Defenses to Plaintiffs, LORILYNN RICE, KRISTEN
GURDAK, GABRIEL AGUILAR, BRITTANY SOTO, and LAUREN TAYLOR, (Collectively
“Plaintiffs”), Complaint, LUCKY BRAND DUNGAREES STORES, INC. (“Defendant”) states
as follows:
JURISDICTION
1.

Defendant admits that Plaintiffs purport to bring a claim under the Fair Labor

Standards Act, as amended (29 U.S.C. § 201 et seq., but denies any inference of wrongdoing on
its part or that they are liable to Plaintiffs for any of the relief they seek.
2.

Defendant admits that the Court has jurisdiction pursuant to 29 U.S.C. § 216(b).

PARTIES
3.

Defendant is without sufficient information to admit or deny the allegations in

Paragraph 3 of the Complaint and, therefore, denies the same.
4.

Defendant admits that it is a foreign profit corporation that engages in business in

Florida, but denies the remaining allegations in Paragraph 4 of the Complaint.
5.

Defendant denies the allegations in Paragraph 5 of the Complaint.

6.

Defendant admits the allegations in Paragraph 6 of the Complaint.

7.

Defendant admits the allegations in Paragraph 7 of the Complaint.

8.

Defendant admits the allegations in Paragraph 8 of the Complaint.

9.

Defendant admits the allegations in Paragraph 9 of the Complaint.

10.

Defendant admits the allegations in Paragraph 10 of the Complaint.

11.

Defendant is without sufficient information to admit or deny the allegations in

Paragraph 11 of the Complaint and, therefore, denies.
12.

Defendant denies the allegations in Paragraph 12 of the Complaint.

13.

Defendant admits the allegations in Paragraph 13 of the Complaint.
STATEMENT OF FACTS

14.

Defendant admits the allegations in Paragraph 14 of the Complaint.

15.

Defendant denies the allegations in Paragraph 15 of the Complaint.

16.

Defendant denies the allegations in Paragraph 16 of the Complaint.

17.

Defendant denies the allegations in Paragraph 17 of the Complaint.

18.

Defendant denies the allegations in Paragraph 18 of the Complaint including its

subparts.
19.

Defendant is without sufficient information to admit or deny the allegations in

Paragraph 19 of the Complaint and, therefore, denies the same.
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COUNT I
RECOVERY OF OVERTIME COMPENSATION
20.

Defendant incorporates its responses to paragraphs 1 –19 above as if fully restated

21.

Defendant denies the allegations in paragraph 21 of the Complaint.

22.

Defendant denies the allegations in paragraph 22 of the Complaint.

23.

Defendant denies the allegations in paragraph 23 of the Complaint.

24.

Defendant denies the allegations in paragraph 24 of the Complaint.

25.

Defendant denies the allegations in paragraph 25 of the Complaint.

26.

Defendant denies the allegations in paragraph 26 of the Complaint.

27.

Defendant denies the allegations in paragraph 27 of the Complaint.

here.

In response to the WHEREFORE unnumbered paragraph of the Complaint following
Paragraph 27, Defendants deny that they are liable to Plaintiffs for any of the relief they seek and
that they are entitled to any such relief.
COUNT I
RECOVERY OF OVERTIME COMPENSATION
28.

Defendant incorporates its responses to paragraphs 1 –27 above as if fully restated

here.
29.

Defendant denies the allegations in paragraph 29 of the Complaint.

30.

Defendant denies the allegations in paragraph 30 of the Complaint.

31.

Defendant denies the allegations in paragraph 31 of the Complaint.

32.

Defendant admits the allegations in paragraph 32 of the Complaint.

33.

Defendant is without sufficient information to admit or deny the allegations in

paragraph 33 of the Complaint and, therefore, denies the same.

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34.

Defendant denies the allegations in paragraph 34 of the Complaint.

35.

Defendant denies the allegations in paragraph 35 of the Complaint.

36.

Defendant denies the allegations in paragraph 36 of the Complaint.

37.

Defendant denies the allegations in paragraph 37 of the Complaint.

38.

Defendant denies the allegations in paragraph 38 of the Complaint.

39.

Defendant denies the allegations in paragraph 39 of the Complaint.

40.

Defendant denies the allegations in paragraph 40 of the Complaint.

41.

Defendant denies the allegations in paragraph 41 of the Complaint.

42.

Defendant denies there are any issues to be tried by jury in this action.

In response to the WHEREFORE unnumbered paragraph of the Complaint following
Paragraph 42, Defendants deny that they are liable to Plaintiffs for any of the relief they seek and
that they are entitled to any such relief.
STATEMENT OF AFFIRMATIVE DEFENSES
FIRST AFFIRMATIVE DEFENSE
Plaintiffs’ Complaint fails, in whole or in part, to state a claim upon which relief may be
granted.
SECOND AFFIRMATIVE DEFENSE
Defendant denies any liability under or within the meaning of the FLSA as regards
overtime compensation. However, to the extent that the Court may determine that Defendants’
acts or omissions cast either or both in liability under such statute, Plaintiffs’ claims are,
nonetheless, barred by the provisions of the Portal-to-Portal Act, 29 U.S.C. § 260, because the
acts or omissions complained of were done in good faith and with reasonable grounds for
believing that the acts or omissions were not in violation of the FLSA.

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THIRD AFFIRMATIVE DEFENSE
To the extent any claim arises outside the statute of limitations, it is barred by the
limitations period set forth in the Portal-to-Portal Act, 29 U.S.C. § 255.
FOURTH AFFIRMATIVE DEFENSE
Defendant asserts that it is not subject to liability under the FLSA and that this action
should be barred because any “omission of overtime payments complained of was in good faith
in conformity with and in reliance on . . . administrative practice or enforcement policy of a
[United States] agency with respect to the class of employers to which [Defendants] belong[s],”
in accordance with the Portal-to-Portal Act, 29 U.S.C. § 258.
FIFTH AFFIRMATIVE DEFENSE
Defendant asserts that Plaintiffs’ claims are barred by payment in that Plaintiffs have
received all compensation to which they is entitled under the FLSA.
SIXTH AFFIRMATIVE DEFENSE
Defendant asserts that any insubstantial or insignificant periods of recorded working time
beyond the scheduled working hours of Plaintiffs, which as a practical administrative matter
cannot be recorded precisely for payroll purposes, are de minimis and may be properly
disregarded for payroll purposes, in accordance with 29 C.F.R. § 785.47.
SEVENTH AFFIRMATIVE DEFENSE
Defendant asserts that any claim for overtime compensation by Plaintiffs must be offset
by any premium compensation, overpayments, bonuses, advances, commission or other jobrelated benefits paid or provided to Plaintiffs, including a reduction for any compensation
already paid to Plaintiffs for periods not compensable under the FLSA.

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EIGHTH AFFIRMATIVE DEFENSE
Defendant asserts that Plaintiffs are not similarly situated to any other person or persons
for purposes of the FLSA.
NINTH AFFIRMATIVE DEFENSE
The regular rate cannot be computed based upon, and overtime compensation cannot be
recovered by Plaintiffs for, periods of time during which Plaintiffs performed no work, including
vacation and/or sick/medical leave, or for periods of time during which Plaintiffs were otherwise
absent from the workplace during that week including during holidays and other functions
voluntarily attended.
Defendant reserves the right to raise any additional affirmative defenses as discovery may
reveal.
WHEREFORE, having answered Plaintiffs’ Complaint and having raised affirmative
defenses, Defendant respectfully requests that the Court enter an Order:
(a)

dismissing Plaintiffs’ Complaint with prejudice;

(b)

awarding Defendant the costs and disbursements of this action, including

attorneys’ fees; and
(c)

awarding Defendant such other and further relief as the Court deems just and

proper.
Dated: December __, 2011
Respectfully submitted,
s/ Natalie E. Norfus______________
Natalie E. Norfus (FL Bar #70109
Email: [e-mail]
JACKSON LEWIS LLP
One Biscayne Tower
6

2 South Biscayne Boulevard, Suite 3500
Miami, Florida 33131
Telephone: [phone]
Facsimile: 305.373-4466
Attorneys for

Certificate of Service
I hereby certify that a true and correct copy of the foregoing was served by CM/ECF on
December 1, 2011, on all counsel or parties of record on the Service List below.
s/ Natalie E. Norfus
Attorney

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SERVICE LIST
Kelly Amritt, Esq.
Email: [e-mail]
Law Offices of Robert Rubenstein, P.A.
2 South University Drive
Suite 235
Plantation, FL 33324
Telephone: [phone]
Facsimile: [phone]
Attorneys for Plaintiffs

Natalie E. Norfus, Esq.
Email: [e-mail]
Jackson Lewis LLP
One Biscayne Tower
2 South Biscayne Boulevard
Suite 3500
Miami, Florida 33131
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendant

4834-3923-5086, v. 1

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