Free Answer to Complaint - District Court of California - California

Case 3:08-cv-00393-H-POR

Document 20

Filed 05/29/2008

Page 1 of 18

1 Michael S. Lavenant, Esq. - State Bar No. 198765 [email protected] 2 LANDEGGER, BARON & LAVENANT A Law Corporation 3 15760 Ventura Boulevard Suite 1200 4 Encino, CA 91436 Telephone: (818) 986-7561 5 Attorneys for Defendant R. J. Reynolds Tobacco Company 6 7 8 9 10 11 DAWN D. RADCLIFFE, ) CASE NO.: 08 CV 0393 H POR individually, and on behalf of a class of ) 12 others similarly situated, ) ASSIGNED FOR ALL PURPOSES ) TO JUDGE LOUISA A. PORTER 13 ) Plaintiffs, ) CASE FILED: February 29, 2008 14 ) ) DEFENDANT'S ANSWER TO 15 vs. ) CLASS ACTION COMPLAINT ) 16 ) DISCOVERY CUT-OFF: NONE R. J. REYNOLDS TOBACCO ) MOTION CUT-OFF: NONE 17 COMPANY, a North Carolina ) TRIAL DATE: NONE corporation, ) 18 ) ) 19 Defendants. ) ) 20 Defendant R. J. Reynolds Tobacco Company ("Reynolds"), answering the 21 Class Action Complaint ("Complaint") of the Plaintiff, alleges and states as follows: 22 1. Reynolds admits that it manufactures and sells tobacco products, 23 including cigarettes. Except as herein admitted, Reynolds denies the allegations of 24 the unnumbered paragraph contained at lines 24 through 27 of page 1 of the 25 Complaint. 26 2. Reynolds admits that the Plaintiff purports to assert a collective action 27 and class action as specified in the unnumbered paragraph contained at lines 1 28
1 DEFENDANT'S ANSWER TO CLASS ACTION COMPLAINT
P:\CLIENTS\L I T I G A T I O N\RJ Reynolds Tobacco, Co\Radcliffe\Pleadings\Answer.wpd Printed on Recycled Paper

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA

Case 3:08-cv-00393-H-POR

Document 20

Filed 05/29/2008

Page 2 of 18

1 through 3 of page 2 of the Complaint. Except as herein admitted, Reynolds denies 2 the allegations of that paragraph. 3 3. Reynolds admits the allegations of the unnumbered paragraph

4 contained at lines 5 through 7 of page 2 of the Complaint. 5 4. As to the unnumbered paragraph contained at lines 8 through 11 of

6 page 2 of the Complaint, Reynolds admits the allegations of the first sentence, upon 7 information and belief. Reynolds admits the allegations of the second sentence of 8 that unnumbered paragraph. As to the third sentence of that unnumbered 9 paragraph, Exhibit A to the Plaintiff's Complaint speaks for itself and therefore no 10 response is required. 11 5. As to the unnumbered paragraph contained at lines 12 through 14 of

12 page 2 of the Complaint, the first sentence is a conclusory statement of the law, and 13 no response is required. Reynolds admits that this Court has jurisdiction over the 14 Plaintiff's FLSA claims as specified in the second sentence of that unnumbered 15 paragraph, but denies any remaining allegations of the second sentence. 16 6. As to the unnumbered paragraph contained at lines 15 through 19 of

17 page 2 of the Complaint, Reynolds admits that this Court has supplemental 18 jurisdiction over the Plaintiff's California state law claims, but denies any remaining 19 allegations of the first sentence of that unnumbered paragraph. As to the second 20 sentence of that unnumbered paragraph, Reynolds admits that the Plaintiff purports 21 to invoke the Class Action Fairness Act, 28 U.S.C. §1332(d)(2)(A) ("CAFA"), with 22 respect to her state law claims, but denies any remaining allegations of the second 23 sentence. 24 7. Reynolds admits the allegations of the unnumbered paragraph

25 contained at lines 20 through 21 of page 2 of the Complaint. 26 8. As to the unnumbered paragraph contained at line 24 of page 2 through

27 line 4 of page 3 of the Complaint, Reynolds admits that the job duties set forth 28 therein are among the normal duties of a Retail Representative (RR) for Reynolds.
2 DEFENDANT'S ANSWER TO CLASS ACTION COMPLAINT
P:\CLIENTS\L I T I G A T I O N\RJ Reynolds Tobacco, Co\Radcliffe\Pleadings\Answer.wpd Printed on Recycled Paper

Case 3:08-cv-00393-H-POR

Document 20

Filed 05/29/2008

Page 3 of 18

1 Except as herein admitted, Reynolds denies the allegations of that unnumbered 2 paragraph. 3 9. As to the unnumbered paragraph contained at lines 5 through 8 of page

4 3 of the Complaint, Reynolds admits the allegations of the first sentence. Reynolds 5 admits so much of the allegations of the second sentence of that unnumbered 6 paragraph as allege or can be construed to allege that the report reflects the 7 information inputted from the RR regarding the time he or she arrived at a 8 particular store and the time that he or she departed from the store (which may or 9 may not be accurate), as well as the date. Reynolds admits the allegations of the 10 third sentence of that unnumbered paragraph. Except as herein admitted, Reynolds 11 denies the allegations of that unnumbered paragraph. 12 10. Reynolds admits that RRs have assigned accounts. Except as herein

13 admitted, Reynolds denies the allegations of Paragraph 10 of the Complaint. 14 11. Reynolds admits that RRs sometimes drive to several stores per day

15 but that the number of visits varies depending upon the service area of the particular 16 RR. Reynolds admits that it provides company cars to RRs for use in servicing their 17 assigned routes. Reynolds further admits that RRs submit monthly mileage reports 18 for their company vehicles. Except as herein admitted, Reynolds denies the 19 allegations of Paragraph 11 of the Complaint. 20 12. Reynolds admits that it treats its RRs as non-exempt. Except as herein

21 admitted, Reynolds denies the allegations of Paragraph 12 of the Complaint. 22 23 13. 14. Reynolds denies the allegations of Paragraph 13 of the Complaint. Reynolds admits that RRs do not sell or offer products to the stores

24 they visit or negotiate contracts with the stores. Reynolds admits that RRs are 25 responsible for reporting to management regarding stores' non-compliance with 26 their obligations under the applicable contracts. Except as herein admitted, 27 Reynolds denies the allegations of Paragraph 14 of the Complaint. 28 15. Reynolds denies the allegations of Paragraph 15 of the Complaint.
3 DEFENDANT'S ANSWER TO CLASS ACTION COMPLAINT
P:\CLIENTS\L I T I G A T I O N\RJ Reynolds Tobacco, Co\Radcliffe\Pleadings\Answer.wpd Printed on Recycled Paper

Case 3:08-cv-00393-H-POR

Document 20

Filed 05/29/2008

Page 4 of 18

1 2 3

16. 17. 18.

Reynolds denies the allegations of Paragraph 16 of the Complaint. Reynolds denies the allegations of Paragraph 17 of the Complaint. Reynolds admits that the Plaintiff purports to bring her FLSA claims

4 on behalf of the individuals specified in Paragraph 18 of the Complaint. Except as 5 herein admitted, Reynolds denies the allegations of Paragraph 18 of the Complaint. 6 19. Reynolds admits that the Plaintiff purports to assert a Rule 23 class

7 action as specified in Paragraph 19 in the Complaint. Except as herein admitted, 8 Reynolds denies the allegations of Paragraph 19 of the Complaint. 9 20. Reynolds admits that the Plaintiff purports to assert a Rule 23 class

10 action as specified in Paragraph 20 in the Complaint. Except as herein admitted, 11 Reynolds denies the allegations of Paragraph 20 of the Complaint. 12 21. Reynolds admits that the Plaintiff purports to assert a Rule 23 class

13 action as specified in Paragraph 21 in the Complaint. Except as herein admitted, 14 Reynolds denies the allegations of Paragraph 21 of the Complaint. 15 22. Paragraph 22 of the Complaint is a recitation of the law that requires

16 no response. 17 23. Paragraph 23 of the Complaint is a recitation of the law that requires

18 no response. 19 24. Reynolds admits that the Plaintiff purports to assert a collective action

20 as specified in Paragraph 24 in the Complaint. Except as herein admitted, Reynolds 21 denies the allegations of Paragraph 24 of the Complaint. 22 23 24 25 26 27 28 25. 26. 27. 28. 29. 30. 31. Reynolds denies the allegations of Paragraph 25 of the Complaint. Reynolds denies the allegations of Paragraph 26 of the Complaint. Reynolds denies the allegations of Paragraph 27 of the Complaint. Reynolds denies the allegations of Paragraph 28 of the Complaint. Reynolds denies the allegations of Paragraph 29 of the Complaint. Reynolds denies the allegations of Paragraph 30 of the Complaint. Reynolds denies the allegations of Paragraph 31 of the Complaint.
4 DEFENDANT'S ANSWER TO CLASS ACTION COMPLAINT
P:\CLIENTS\L I T I G A T I O N\RJ Reynolds Tobacco, Co\Radcliffe\Pleadings\Answer.wpd Printed on Recycled Paper

Case 3:08-cv-00393-H-POR

Document 20

Filed 05/29/2008

Page 5 of 18

1 2

32. 33.

Reynolds denies the allegations of Paragraph 32 of the Complaint. Reynolds incorporates by reference its answers to Paragraphs 1

3 through 32 of the Complaint as if fully set forth herein. 4 34. Reynolds admits so much of the allegations of Paragraph 34 of the

5 Complaint as allege or can be construed to allege that the Plaintiff is an employee 6 within the meaning of the FLSA, 29 U.S.C. §§ 201, et seq., which provides her with 7 certain protections. Except as herein admitted, Reynolds denies the allegations of 8 Paragraph 34 of the Complaint. 9 35. Paragraph 35 of the Complaint is a recitation of the law that needs no

10 response. 11 12 13 36. 37. 38. Reynolds admits the allegations of Paragraph 36 of the Complaint. Reynolds denies the allegations of Paragraph 37 of the Complaint. Reynolds admits that Section 13 of the FLSA exempts certain

14 categories of employees from overtime pay obligations and that RRs are not exempt 15 from the overtime provisions of the FLSA. Except as herein admitted, Reynolds 16 denies the allegations of Paragraph 38 of the Complaint. 17 18 19 20 21 39. 40. 41. 42. 43. Reynolds denies the allegations of Paragraph 39 of the Complaint. Reynolds denies the allegations of Paragraph 40 of the Complaint. Reynolds denies the allegations of Paragraph 41 of the Complaint. Reynolds denies the allegations of Paragraph 42 of the Complaint. Reynolds incorporates by reference its answers to Paragraphs 1

22 through 42 of the Complaint as if fully set forth herein. 23 24 25 26 27 28 44. 45. 46. 47. 48. 49. Reynolds denies the allegations of Paragraph 44 of the Complaint. Reynolds denies the allegations of Paragraph 45 of the Complaint. Reynolds denies the allegations of Paragraph 46 of the Complaint. Reynolds denies the allegations of Paragraph 47 of the Complaint. Reynolds denies the allegations of Paragraph 48 of the Complaint. Reynolds denies the allegations of Paragraph 49 of the Complaint.
5 DEFENDANT'S ANSWER TO CLASS ACTION COMPLAINT
P:\CLIENTS\L I T I G A T I O N\RJ Reynolds Tobacco, Co\Radcliffe\Pleadings\Answer.wpd Printed on Recycled Paper

Case 3:08-cv-00393-H-POR

Document 20

Filed 05/29/2008

Page 6 of 18

1

50.

Reynolds incorporates by reference its answers to Paragraphs 1

2 through 49 of the Complaint as if fully set forth herein. 3 4 5 6 51. 52. 53. 54. Reynolds denies the allegations of Paragraph 51 of the Complaint. Reynolds denies the allegations of Paragraph 52 of the Complaint. Reynolds denies the allegations of Paragraph 53 of the Complaint. Reynolds incorporates by reference its answers to Paragraphs 1

7 through 53 of the Complaint as if fully set forth herein. 8 55. Paragraph 55 of the Complaint is a recitation of the law that requires

9 no response. 10 11 12 13 14 56. 57. 58. 59. 60. Reynolds denies the allegations of Paragraph 56 of the Complaint. Reynolds denies the allegations of Paragraph 57 of the Complaint. Reynolds denies the allegations of Paragraph 58 of the Complaint. Reynolds denies the allegations of Paragraph 59 of the Complaint. Reynolds incorporates by reference its answers to Paragraphs 1

15 through 59 of the Complaint as if fully set forth herein. 16 17 18 19 20 21 22 23 61. 62. 63. 64. 65. 66. 67. 68. Reynolds denies the allegations of Paragraph 61 of the Complaint. Reynolds denies the allegations of Paragraph 62 of the Complaint. Reynolds denies the allegations of Paragraph 63 of the Complaint. Reynolds denies the allegations of Paragraph 64 of the Complaint. Reynolds denies the allegations of Paragraph 65 of the Complaint. Reynolds denies the allegations of Paragraph 66 of the Complaint. Reynolds denies the allegations of Paragraph 67 of the Complaint. Reynolds incorporates by reference its answers to Paragraphs 1

24 through 67 of the Complaint as if fully set forth herein. 25 69. Paragraph 69 of the Complaint is a recitation of the law that requires

26 no response. 27 70. Paragraph 70 of the Complaint is a recitation of the law that requires
6 DEFENDANT'S ANSWER TO CLASS ACTION COMPLAINT
P:\CLIENTS\L I T I G A T I O N\RJ Reynolds Tobacco, Co\Radcliffe\Pleadings\Answer.wpd Printed on Recycled Paper

28 no response.

Case 3:08-cv-00393-H-POR

Document 20

Filed 05/29/2008

Page 7 of 18

1

71.

Paragraph 71 of the Complaint is a recitation of the law that requires

2 no response. 3 4 72. 73. Reynolds denies the allegations of Paragraph 72 of the Complaint. Reynolds incorporates by reference its answers to Paragraphs 1

5 through 72 of the Complaint as if fully set forth herein. 6 7 8 9 10 74. 75. 76. 77. 78. Reynolds denies the allegations of Paragraph 74 of the Complaint. Reynolds denies the allegations of Paragraph 75 of the Complaint. Reynolds denies the allegations of Paragraph 76 of the Complaint. Reynolds denies the allegations of Paragraph 77 of the Complaint. Reynolds denies that the Plaintiff is entitled to the relief requested in

11 the Prayer for Relief. 12 79. Defendant R. J. Reynolds Tobacco Company, having fully answered

13 the Complaint of the Plaintiff, herein sets forth its affirmative defenses: 14 15 80. FIRST AFFIRMATIVE DEFENSE To the extent that the Complaint fails to state a claim for which relief

16 may be granted, it should be dismissed pursuant to Rule 12(b)(6) of the Federal 17 Rules of Civil Procedure. 18 19 81. SECOND AFFIRMATIVE DEFENSE To the extent that the Plaintiff's claim is barred, in whole or in part, by

20 the applicable statutes of limitations, her claim should be dismissed. 21 22 82. THIRD AFFIRMATIVE DEFENSE To the extent that the Plaintiff is not similarly situated to other

23 employees of the Defendant in the same job classification who have submitted 24 properly executed Consents to Suit, her purported collective action pursuant to 29 25 U.S.C. §216(b) should be dismissed. 26 /// 27 /// 28 ///
7 DEFENDANT'S ANSWER TO CLASS ACTION COMPLAINT
P:\CLIENTS\L I T I G A T I O N\RJ Reynolds Tobacco, Co\Radcliffe\Pleadings\Answer.wpd Printed on Recycled Paper

Case 3:08-cv-00393-H-POR

Document 20

Filed 05/29/2008

Page 8 of 18

1 2 83.

FOURTH AFFIRMATIVE DEFENSE To the extent that the Plaintiff has failed to satisfy all conditions

3 precedent to bringing a claim pursuant to §216(b) of the FLSA, her claim should be 4 dismissed. 5 6 84. FIFTH AFFIRMATIVE DEFENSE To the extent that the Plaintiff has failed to mitigate her damages, her

7 claim should be dismissed. 8 9 85. SIXTH AFFIRMATIVE DEFENSE Any claim for overtime liability and liquidated damages for a period in

10 excess of two years before she commenced her action is barred by the statute of 11 limitations contained in Section 6 of the Portal-to-Portal Act, as any violations of 12 the FLSA that may have occurred were not "willful" within the meaning of the 13 FLSA. 14 15 86. SEVENTH AFFIRMATIVE DEFENSE To the extent that this action purports to seek overtime liability and

16 liquidated damages for a period in excess of three years before commencement of 17 this action, such claim is barred by the statute of limitations contained in Section 6 18 of the Portal-to-Portal Act, even assuming, arguendo, that any violations of the 19 FLSA that may have occurred were "willful" within the meaning of the FLSA. 20 21 87. EIGHTH AFFIRMATIVE DEFENSE To the extent that the Plaintiff's claim is barred by the equitable

22 doctrines of laches and accord and satisfaction, her claim should be dismissed. 23 24 88. NINTH AFFIRMATIVE DEFENSE To the extent that the Plaintiff purports to bring this collective action

25 on behalf of anyone other than similarly situated employees of Defendant who have 26 filed with this Court properly executed written consents to become a party plaintiff 27 to this action, her collective action should be dismissed for lack of standing. 28 ///
8 DEFENDANT'S ANSWER TO CLASS ACTION COMPLAINT
P:\CLIENTS\L I T I G A T I O N\RJ Reynolds Tobacco, Co\Radcliffe\Pleadings\Answer.wpd Printed on Recycled Paper

Case 3:08-cv-00393-H-POR

Document 20

Filed 05/29/2008

Page 9 of 18

1 2 89.

TENTH AFFIRMATIVE DEFENSE The Plaintiff's Rule 23 class claims should be dismissed to the extent

3 that the putative class does not meet the numerosity requirement of Rule 23(a)(1). 4 5 90. ELEVENTH AFFIRMATIVE DEFENSE The Plaintiff's Rule 23 class claims should be dismissed because there

6 are not questions of law or fact common to the putative class. 7 8 91. TWELFTH AFFIRMATIVE DEFENSE The Plaintiff's Rule 23 class claims should be dismissed because the

9 claims or defenses of the representative party is not typical of the claims or defenses 10 of the putative class. 11 12 92. THIRTEENTH AFFIRMATIVE DEFENSE The Plaintiff's Rule 23 class claims should be dismissed because she

13 will not fairly and adequately protect the interests of the putative class. 14 15 93. FOURTEENTH AFFIRMATIVE DEFENSE The Plaintiff's Rule 23 class claims should be dismissed because

16 questions of law or fact common to members of the putative class do not 17 predominate over any questions affecting only individual members, and a class 18 action is not superior to other available methods for fairly and efficiently 19 adjudicating the controversy. 20 21 94. FIFTEENTH AFFIRMATIVE DEFENSE The Plaintiff's FLSA claims, and the FLSA claims of the members of

22 the putative collective action, should be dismissed or transferred under the 23 "first-filed" doctrine in that an FLSA collective action has been certified and is 24 pending in a prior-filed action styled Zola Marshall v. R. J. Reynolds Tobacco Co., 25 Case No. 07-0227-CV-W-RED, in the U.S. District Court for the Western District 26 of Missouri, asserting identical FLSA claims. 27 /// 28 ///
9 DEFENDANT'S ANSWER TO CLASS ACTION COMPLAINT
P:\CLIENTS\L I T I G A T I O N\RJ Reynolds Tobacco, Co\Radcliffe\Pleadings\Answer.wpd Printed on Recycled Paper

Case 3:08-cv-00393-H-POR

Document 20

Filed 05/29/2008

Page 10 of 18

1 2 95.

SIXTEENTH AFFIRMATIVE DEFENSE The Complaint, and each purported cause of action contained therein,

3 is barred by the doctrine of unclean hands. 4 5 96. SEVENTEENTH AFFIRMATIVE DEFENSE The Plaintiff has waived her right, if any, to pursue the Complaint and

6 each purported cause of action contained therein, by reason of her own actions, by 7 agreement, or course of conduct. 8 9 97. EIGHTEENTH AFFIRMATIVE DEFENSE The Plaintiff is estopped from pursuing the Complaint, and each

10 purported cause of action contained therein, by reason of her own actions, estoppel, 11 and/or course of conduct. 12 13 98. NINETEENTH AFFIRMATIVE DEFENSE The Plaintiff is barred from pursuing this Complaint, and each

14 purported cause of action contained therein, as a class action, as substantial 15 difficulties are likely to be encountered in the management of this action as a class 16 action, as the interest of each member and the whole differ. 17 18 99. TWENTIETH AFFIRMATIVE DEFENSE The Plaintiff is barred from pursuing this Complaint, and each

19 purported cause of action contained therein, as a class action, as there is no 20 existence of an ascertainable class and a well-defined community of interest among 21 the class members. 22 23 TWENTY-FIRST AFFIRMATIVE DEFENSE 100. The Plaintiff is barred from pursuing this Complaint, and each

24 purported cause of action contained therein, as a class action, as defenses to be 25 offered raise individual issues specific to each member of the class that predominate 26 over the issues in common. 27 /// 28 ///
10 DEFENDANT'S ANSWER TO CLASS ACTION COMPLAINT
P:\CLIENTS\L I T I G A T I O N\RJ Reynolds Tobacco, Co\Radcliffe\Pleadings\Answer.wpd Printed on Recycled Paper

Case 3:08-cv-00393-H-POR

Document 20

Filed 05/29/2008

Page 11 of 18

1 2

TWENTY-SECOND AFFIRMATIVE DEFENSE 101. The Complaint, and each purported cause of action contained therein,

3 fails to state facts sufficient to constitute a cause of action because Defendant would 4 have made the same decisions with respect to Plaintiff's claims pursuant to valid 5 business justification. 6 7 TWENTY-THIRD AFFIRMATIVE DEFENSE 102. The Complaint, and each purported California cause of action

8 contained therein, is barred by the applicable statutes of limitations, including, but 9 not limited to, California Code of Civil Procedure, including, but not limited to, 10 §§337, 338, 339 and 340 et seq., Labor Code §203, et seq., and Business and 11 Professions Code §17200, et seq. 12 13 TWENTY-FOURTH AFFIRMATIVE DEFENSE 103. The COMPLAINT, and each purported cause of action contained

14 therein, fails to state facts sufficient to constitute a cause of action because 15 Defendant would have made the same decisions with respect to the Plaintiff's 16 claims pursuant to valid business justification. 17 18 TWENTY-FIFTH AFFIRMATIVE DEFENSE 104. The Plaintiff is not entitled to recover damages or attorneys' fees

19 pursuant to California Unfair Business Practices Act, California Business & 20 Professions Code §17200, et seq., or any other statute. 21 22 TWENTY-SIXTH AFFIRMATIVE DEFENSE 105. The Complaint, and each purported cause of action contained therein,

23 is uncertain in that it is impossible to determine from the Complaint which of the 24 alleged acts of this answering Defendant caused the injuries alleged in the 25 Complaint. 26 27 TWENTY-SEVENTH AFFIRMATIVE DEFENSE 106. The Complaint and each purported cause of action contained therein,
11 DEFENDANT'S ANSWER TO CLASS ACTION COMPLAINT
P:\CLIENTS\L I T I G A T I O N\RJ Reynolds Tobacco, Co\Radcliffe\Pleadings\Answer.wpd Printed on Recycled Paper

28 fails to state facts sufficient to entitle the Plaintiff to an award of general damages,

Case 3:08-cv-00393-H-POR

Document 20

Filed 05/29/2008

Page 12 of 18

1 special damages, exemplary or punitive damages, statutory penalties, interest, or 2 attorneys' fees and costs. 3 4 TWENTY-EIGHTH AFFIRMATIVE DEFENSE 107. The Complaint, and each purported cause of action contained therein,

5 is barred because the Plaintiff failed to mitigate her alleged damages by not 6 utilizing the proper channels of communication to advise Defendant of any alleged 7 acts which may have caused her damage. 8 9 TWENTY-NINTH AFFIRMATIVE DEFENSE 108. The Complaint, and each purported cause of action therein concerning

10 the alleged failure to pay all wages due and payable is barred by California Labor 11 Code §201. 12 13 THIRTIETH AFFIRMATIVE DEFENSE 109. The Complaint, and each purported cause of action therein, is barred

14 and relief cannot be obtained because if Defendant did not pay all wages owed to 15 the Plaintiff (although Defendant denies that it owed or owes the Plaintiff for any 16 unpaid wages), the Plaintiff secreted herself to prevent Defendant from paying the 17 unpaid wages, thus barring any relief under Labor Code §203. 18 19 THIRTY-FIRST AFFIRMATIVE DEFENSE 110. The Complaint, and each purported cause of action therein, is barred

20 because the Defendant alleges that the Plaintiff never advised Defendant that she 21 was working more than what was reported and/or paid pursuant to the terms and 22 conditions of employment. 23 24 THIRTY-SECOND AFFIRMATIVE DEFENSE 111. The Complaint, and each purported cause of action contained therein,

25 is barred because the Plaintiff has failed to utilize the grievance procedures as 26 required by law and/or contract and/or practice. 27 /// 28 ///
12 DEFENDANT'S ANSWER TO CLASS ACTION COMPLAINT
P:\CLIENTS\L I T I G A T I O N\RJ Reynolds Tobacco, Co\Radcliffe\Pleadings\Answer.wpd Printed on Recycled Paper

Case 3:08-cv-00393-H-POR

Document 20

Filed 05/29/2008

Page 13 of 18

1 2

THIRTY-THIRD AFFIRMATIVE DEFENSE 112. The Complaint and each purported cause of action contained therein, is

3 barred because through their course of dealing and otherwise the Defendant and the 4 Plaintiff mutually understood, agreed and promised that the Plaintiff would 5 adequately report all time spent in services to Defendant and for the benefit of the 6 Defendant with the agreement and promise that the Plaintiff would report and 7 demand payment for such services, and the Defendant would not otherwise be 8 obligated for or called upon to pay the Plaintiff for such services not worked or 9 reported. 10 11 THIRTY-FOURTH AFFIRMATIVE DEFENSE 113. The Complaint and each purported cause of action contained therein, is

12 barred because the Plaintiff's representations, agreements and promises to the 13 Defendant in respect of the providing of services by the Plaintiff to the Defendant 14 and the accurate reporting of such services on a regular basis, and the Defendant's 15 actions and reasonable reliance thereon, constitutes promissory estoppel and 16 precludes the Plaintiff from instituting and maintaining the within action against the 17 Defendant. 18 19 THIRTY-FIFTH AFFIRMATIVE DEFENSE 114. To the extent that the Plaintiff recovers damages under the FLSA, such

20 recovery bars duplicate recovery of damages under California law. 21 22 THIRTY-SIXTH AFFIRMATIVE DEFENSE 115. To the extent that Reynolds is found not to have violated the FLSA,

23 Plaintiff's claims under the equivalent California laws should be dismissed. 24 25 THIRTY-SEVENTH AFFIRMATIVE DEFENSE 116. The Complaint, and each purported cause of action therein, is barred

26 because Defendant did not violate any constitutional provision, state statute, 27 regulation, or other substantial public policy of the State of California with regard 28 to the Plaintiff's employment or her payment of wages.
13 DEFENDANT'S ANSWER TO CLASS ACTION COMPLAINT
P:\CLIENTS\L I T I G A T I O N\RJ Reynolds Tobacco, Co\Radcliffe\Pleadings\Answer.wpd Printed on Recycled Paper

Case 3:08-cv-00393-H-POR

Document 20

Filed 05/29/2008

Page 14 of 18

1 2

THIRTY-EIGHTH AFFIRMATIVE DEFENSE 117. The Complaint, and each purported cause of action therein, is barred

3 because Defendant exercised reasonable care to prevent and correct promptly, any 4 improper behavior, and the Plaintiff unreasonably failed to take advantage of any 5 preventive or corrective opportunities provided by Defendant, or to avoid harm 6 otherwise. 7 8 THIRTY-NINTH AFFIRMATIVE DEFENSE 118. The Complaint, and each purported cause of action therein, is barred

9 and relief cannot be obtained because if Defendant did not pay all wages owed to 10 the Plaintiff, which Defendant denies that it owed the Plaintiff for any unpaid 11 wages, Defendant did not willfully fail to pay the Plaintiff those wages owing, if 12 any. 13 14 FORTIETH AFFIRMATIVE DEFENSE 119. The Complaint, and each purported cause of action therein, is barred

15 because if there exists an agreement or obligation as alleged, which these Defendant 16 denies, Defendant fully performed all that was required. 17 18 FORTY-FIRST AFFIRMATIVE DEFENSE 120. The Complaint and each purported cause of action contained therein, is

19 barred because Defendant is entitled to an offset, set-off or other deduction from the 20 amounts claimed by the Plaintiff in the Complaint including without limitation as a 21 result of the Plaintiff's breach of its contract and/or agreement with and/or for the 22 benefit of the Defendant. 23 24 FORTY-SECOND AFFIRMATIVE DEFENSE 121. The Plaintiff has failed to plead her claims with sufficient particularity

25 to enable Defendant to allege all appropriate affirmative defenses and therefore, 26 Defendant reserves the right to allege additional affirmative defenses as needed. 27 /// 28 ///
14 DEFENDANT'S ANSWER TO CLASS ACTION COMPLAINT
P:\CLIENTS\L I T I G A T I O N\RJ Reynolds Tobacco, Co\Radcliffe\Pleadings\Answer.wpd Printed on Recycled Paper

Case 3:08-cv-00393-H-POR

Document 20

Filed 05/29/2008

Page 15 of 18

1 2

FORTY-THIRD AFFIRMATIVE DEFENSE 122. Because no discovery has yet occurred in this action, Defendant

3 reserves the right to assert further defenses as appropriate. 4 5 PRAYER FOR RELIEF Defendant R. J. Reynolds Tobacco Company, having fully answered the

6 Complaint and set forth its Affirmative Defenses, hereby prays the Court for the 7 following relief: 8 9 10 1. 2. 3. That the Complaint be dismissed in its entirety; That the Plaintiff recover nothing of the Defendant; That the Defendant be awarded its reasonable costs in defending this

11 action, including attorneys' fees including, but not limited to, relief provided under 12 California Labor Code, Section 218.5; 13 4. That the Defendant be awarded such other and further relief as this

14 Court deems appropriate. 15 16 DATED: May 28, 2008 17 18 19 20 21 22 23 24 25 26 27 28
15 DEFENDANT'S ANSWER TO CLASS ACTION COMPLAINT
P:\CLIENTS\L I T I G A T I O N\RJ Reynolds Tobacco, Co\Radcliffe\Pleadings\Answer.wpd Printed on Recycled Paper

LANDEGGER, BARON & LAVENANT

By:

_/s/______________________________ Michael S. Lavenant Attorneys for Defendant R. J. Reynolds Tobacco Company

Case 3:08-cv-00393-H-POR

Document 20

Filed 05/29/2008

Page 16 of 18

1 2 3 4

PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES CASE NAME: Dawn D. Radcliffe v. R. J. Reynolds Tobacco Company Case No.: 08 CV 0393 H POR I declare as follows:

I am employed in the County of Los Angeles, California. I am over the age 5 of 18 years, and not a party to the within action; my business address is 15760 Ventura Boulevard, Suite 1200, Encino, California 91436. I am readily familiar 6 with my employer's business practice for collection and processing of correspondence for mailing with the United States Postal Service. I am aware that 7 on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing 8 affidavit. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
16 DEFENDANT'S ANSWER TO CLASS ACTION COMPLAINT
P:\CLIENTS\L I T I G A T I O N\RJ Reynolds Tobacco, Co\Radcliffe\Pleadings\Answer.wpd Printed on Recycled Paper

On May 29, 2008, I served a true and correct copy, with all exhibits, of the following documents described as: DEFENDANT'S ANSWER TO CLASS ACTION COMPLAINT

9 :

On the party or parties named below, by personally delivering a true copy thereof on at approximately _________ p.m. at _________________ (Personal service) On the party or parties named below, by following ordinary business practice, placing a true copy thereof enclosed in a sealed envelope, for collection and mailing with the United States Postal Service, where it would be deposited for first class delivery, postage fully prepaid, in the United States Postal Service, that same day in the ordinary course of business, addressed as set forth below. (Regular office deposit) On the interested parties in the within action by placing the above documents in the United States mail for Express Mail delivery at 15760 Ventura Boulevard, Encino, California 91436 in a sealed envelope, with Express Mail postage thereon fully prepaid; by depositing copies of the above documents in a box or other facility regularly maintained by Federal Express, in an envelope or package designated by Federal Express Airbill No. ***, with delivery fees paid by sender's account. (Code of Civil Procedure §1013(c).) (Overnight delivery service) On the interested parties in the within action by transmitting via facsimile machine to the name(s) and facsimile number(s) set forth below. (Facsimile) On the interested parties in the within action by transmitting via electronic mail by providing the document(s) to the Court's electronic filing system pursuant to their instructions on that website. (E-mail) SEE ATTACHED SERVICE LIST

9

9 :

Case 3:08-cv-00393-H-POR

Document 20

Filed 05/29/2008

Page 17 of 18

I certify under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this declaration was executed on May 29, 2 2008 at Encino, California. 1 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
17 DEFENDANT'S ANSWER TO CLASS ACTION COMPLAINT
P:\CLIENTS\L I T I G A T I O N\RJ Reynolds Tobacco, Co\Radcliffe\Pleadings\Answer.wpd Printed on Recycled Paper

By:

/s/
Signature of Declarant

By:

IDA MAMEDOVA
Type or Print Name of Declarant

Case 3:08-cv-00393-H-POR

Document 20

Filed 05/29/2008

Page 18 of 18

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

SERVICE LIST CASE NAME: Dawn D. Radcliffe v. R. J. Reynolds Tobacco Company Case No.: 08 CV 0393 H POR George A. Hanson Matthew L. Dameron Stueve Siegel Hanson, LLP 460 Nichols Parkway Suite 200 Kansas City, MO 64112 Jason S. Hartley Ross Dixon and Bell 550 West B Street Suite 400 San Diego, CA 92101-3599

18 DEFENDANT'S ANSWER TO CLASS ACTION COMPLAINT
P:\CLIENTS\L I T I G A T I O N\RJ Reynolds Tobacco, Co\Radcliffe\Pleadings\Answer.wpd Printed on Recycled Paper