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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
ERICA JONES, CRYSTAL WINTER and §
SELISHA BROOKS on Behalf of §
Themselves and on Behalf of All Others §
Similarly Situated, §
§
Plaintiffs, §
§ CIVIL ACTION NO. 3:11-cv-02743-O
v. §
§ JURY TRIAL DEMANDED
§
JGC DALLAS LLC and BRYAN SCOTT §
FOSTER, §
§
Defendants. §
______________________________________________________________________________
“DEFENDANTS’” BRIEF IN SUPPORT OF RESPONSE IN OPPOSITION TO
PLAINTIFFS’ EMERGENCY MOTION AND NOTICE OF APPLICATION FOR
PRELIMNARY AND PERMANENT INJUNCTION
_____________________________________________________________________________
Respectfully submitted,
/s/ Roger Albright, Esq /s/ Luke Lirot, Esq.
Roger Albright Luke Lirot
Texas Bar No. 009 745 80 Florida Bar No. 714836
Law Offices of Roger Albright Law Offices of Luke Lirot, P.A. 3301 Elm Street 2240 Belleair Road, Suite 190
Dallas, Texas 75226-2562 Clearwater, Florida 33764 T (214) 939-9224 T (727) 536-2100
F (214) 939-9229 F (727) 536-2110
Email: [email protected] Email: [email protected]
Subject to Admission Pro Hac Vice
Case 3:11-cv-02743-O Document 20 Filed 12/12/11 Page 1 of 45 PageID 195
TABLE OF CONTENTS
Table of Contents .......................................................................................................................... i-ii
Table of Authorities .................................................................................................................. iii-vii
I. Introduction ...............................................................................................................................1
II. Plaintiffs Have No Likelihood of Success Because
They Have Not Sued the Correct Parties………………………………………………………1
III. There are No “Facts” to Support any “Retaliation Claim.” .......................................................9
IV. Response to “Facts” Alleged by The Plaintiffs .......................................................................13
V. Response to “Legal argument: Injunctive relief is authorized
by the FLSA.” ..........................................................................................................................19
VI. Response to “Elements of Plaintiffs Claims” and the
“Substantial Likelihood of Success” Issues ...............................................................................20
A. Regardless of the Plaintiffs’ Allegations, They Can Not
Short Circuit Due Process with Selectively
Incomplete Declarations ...............................................................................................20
B. The Plaintiffs Efforts to “Smuggle In” the Ultimate
Issue in this Action Should Have no Bearing on the
Requested Injunctive Relief ..........................................................................................20
C. Jaguars Situation is Entirely Unique and No Other Cases
Can be Used to Determine, Prior to the Completion of Discovery, Whether any
Relevant Relationship Creates an
“Employer-Employee” Relationship Under the FLSA ................................................22
D. Plaintiffs Can Not “Smuggle In” Any Request for Injunctive
Relief Based on the FLSA ............................................................................................24
E. Plaintiffs Are Not Entitled To Injunctive Relief ...........................................................25
VII. The Responding Parties Conduct Can Not be Shown To Be Retaliatory .............................30
i.
Case 3:11-cv-02743-O Document 20 Filed 12/12/11 Page 2 of 45 PageID 196
TABLE OF CONTENTS (cont’d.)
VIII. From the Most Expansive View Of the Remaining Criteria Governing
the Granting of Injunctive Relief, Plaintiffs have Not Established
Any Such Right .........................................................................................................33
A. Plaintiffs Have Not Shown “Irreparable Harm.” .........................................................33
B. Issuing an Injunction Will Undoubtedly Harm “Defendants,”
and Others……………………………………………………………………………35
C. The Public Interest will be Harmed by Issuance of a
Preliminary Injunction ................................................................................................35
Conclusion .....................................................................................................................................36
Certificate of Service .....................................................................................................................37
ii.
Case 3:11-cv-02743-O Document 20 Filed 12/12/11 Page 3 of 45 PageID 197
TABLE OF AUTHORITIES
Cases
Allee v. Medrano, 416 U.S. 802, 828-29 (1974) ..............................................................................3
Aluminum Workers Intern. Union v. Consolidated Aluminum Corp.,
696 F.2d 437, 443 (6th Cir. 1982) ............................................................................................33
Basicomputer Corp. v. Scott, 973 F.2d 507, 511 (6th Cir.1992) ...................................................33
Baltimore Football Club v. Sup.Ct. (Ramco, Inc.),
171 Cal. App. 3d 352, 358-59 (1985) .........................................................................................3
Barrentine v. Arkansas-Best Freight System,
750 F.2d 47, 51 (8th Cir. 1984) ................................................................................................24
Bowe v. Judson C. Burnes, Inc., 137 F.2d 37, 39 (3rd Cir. 1943) .................................................24
Brock v. Casey Truck Sales 839 F.2d 872, 877-78
(2nd Cir. 1988)……………………………………………………………………….………30
Cellnet Communications, Inc. v. New Par,
291 F.Supp.2d 565 (E.D.Mich., 2003) ......................................................................................33
Clincy v. Galardi South Enterpries, et al.,
No. 1:09-CV-2082-RWS, 20011 WL 3924860 (N.D.Ga. 2011) .............................................22
Comer v. Cisneros, 37 F.3d 775, 788 (2d Cir. 1994) ......................................................................3
Conner v. Schnuck Markets, Inc.,
121 F.3d 1390, 1398-1399 (10th Cir. 1997) .............................................................................30
DeJa Vu Entertainment Enterprises of Minnesota, Inc.v. United States,
1 F. Supp. 2d 964 (D. Minn. 1998) ...........................................................................................29
Doe v. Blum, 729 F.2d 186, 190, n.4 (2d Cir. 1984) .......................................................................3
Donovan v. Brandel, 736 F. 2d 1114, 1117-19 (6th Cir. 1984) .....................................................21
Doty v. Elias, 733 F.2d 720,722-723 (10th Cir. 1984) ..................................................................27
EEO v. SunDance Rehabilitation Corp., 466 F.3d 490, 501 (6th Cir. 2006) ................................31
Graves v. Womens' Prof'l Rodeo Assoc., 907 F.2d 71, 74 (8th Cir. 1990) ..............................26, 27
iii.
Case 3:11-cv-02743-O Document 20 Filed 12/12/11 Page 4 of 45 PageID 198
h
TABLE OF AUTHORITIES (cont’d.)
Hamad v. Woodcrest Condo. Ass'n, 328 F.3d 224, 230 (6th Cir.2003) ........................................25
Harris County v. CarMax Auto Superstores, Inc., 177 F.3d 306, 312 (5th Cir. 1999) ................19
Herman v. Express Sixty-Minutes Delivery Services, Inc.,
161 F.3d 299, 303 (5th
Cir. 1998) .............................................................................................21
Hoffman-LaRoche v. Sperling, 493 U.S. 165, 171 (1989) ............................................................32
Hoving v. Transnation Title Ins. Co.,
545 F. Supp. 2d 662, 666 (E.D. Mich. 2008) ..............................................................................3
Howard v City of Springfield, Illinois,
274 F.3d 1141, 1145 (7th Cir. 2001) ..................................................................................24, 25
Imars v. Contractors Mfg. Servs.., 165 F.3d 27 (6th Cir. 1998) ....................................................22
Ivfartin v. Circle C Investments, Inc.,
No. M0-91-CA-43, 1991 WL 338239 (W.Dist. Tex. 1991) ....................................................22
Jones v. City of Monroe, 341 F.3d 474, 476 (6th Cir.2003) ..........................................................25
Knickerbocker v. City of Stockton, 81 F.3d 907, 911 (9th Cir. 1996)...........................................30
Marlar, Inc.v.United States, 151 F.3d 962, 968 (9th Cir. 1998)....................................................29
Martin v. Friba Corp., 1992 WL 486911 (N.D. Tex.) .........................................................23
Matson v. 7445, Inc., 2000 WL 1132110 (D. Or. Jan 14, 2000) ...................................................34
Mechmet v. Four Seasons Hotels, Ltd., 825F.2d 1173, 1177 (7th Cir. 1987) ..............................34
Mednick v. Albert Enterprises, Inc., 508 F.2d 297, 299 (5th Cir. 1975) .......................................21
Merrill Lynch, Pierce, Fenner & Smith Inc. v. Ran,
67 F.Supp.2d 764,781, (E.D.Mich. 1999) .................................................................................36
Mitchell v. Robert DeMario Jewelry, Inc., 361 U.S. 288,292 (1960)............................................20
Moreloc v. NCR Corp., 546 F.2d 682, 688 (6th Cir. 1976) rev'd on other grounds,
435 U.S. 911 (1978) .......................................................................................................................25
iv.
Case 3:11-cv-02743-O Document 20 Filed 12/12/11 Page 5 of 45 PageID 199
TABLE OF AUTHORITIES (cont’d.)
Neff v. Civil Air Patrol, 916 F. Supp. 710, 711-715 (S.D. Ohio 1996) .........................................27
O'Connor v. Davis, 126 F.3d 112 (2nd Cir. 1997) ..................................................................26, 27
Oregon v. Acropolis Mclaughlin, Inc., 150 Or. App. 180 (1997) ..................................................27
O’Shea v. Littleton, 414 U.S. 488, 494 (1974) ................................................................................3
Patel v. Wargo, 803 F.2d 632, 635 (11th Cir. 1986) .....................................................................28
Performance Unlimited v. Questar Publishers, Inc.,
52 F.3d 1373, 1381 (6th Cir.1995) ...........................................................................................25
Reich v. Circle C. Investment, Ltd., 998 F.2d 324, 329 (5th Cir. 1993) ........................................22
Reich v. Priba Corp., 890 F. Supp. 586, 592 (N.D. Tex. 1995) ........................................21, 22, 34
Roberg v. Phipps Estate, 156 F.2d 958, 963 (2nd Cir. 1946) ........................................................24
Sampson v. Murray, 415 U.S. 61, 90 (1974) .................................................................................33
Six Clinics Holding Corp. ,II v. Cafcomp Systems, Inc.,
119 F.3d 393, 400 (6th Cir. 1997) ............................................................................................24
Smith v. Berks Community Television,
657 F. Supp. 794-796 (E.D. Penn. 1987) ..................................................................................29
Tadros v.Coleman, 717 F. Supp. 996, 1002-1006 (S.D.N.Y. 1989) ..............................................27
Taylor Blvd.Theatre, Inc. v. United States, 1998 WL 375291, (W.O. Ky.) ..................................29
Teamsters Local Union 299 v. U.S. Truck Co. Holdings, Inc.,
87 F.Supp.2d 726, 736-737 (E.D.Mich. 2000) .........................................................................33
Tony and Susan Alamo Foundation v. Sec. of Labor, 471 U.S. 290 (1985) ..................................28
University of Texas v. Camenish, 451U.S. 390, 395 (1980) ..........................................................24
U.S. v. Indianapolis Athletic Club, Inc.,
818 F.Supp. 1250, 1253 (S.D. Ind. 1993) .................................................................................34
v.
Case 3:11-cv-02743-O Document 20 Filed 12/12/11 Page 6 of 45 PageID 200
TABLE OF AUTHORITIES (cont’d.)
Village of Arlington Heights v. Metro. Hous. Dev. Corp.,
429 U.S. 252, 263-64, (1977) ......................................................................................................3
Villarreal v. Woodham, 113 F.3d 202, 205 (11th Cir. 1997) .........................................................28
Walling v. Nashville Chattanooga & St. Louis Ry.,
60 F. Supp. 1004, 1007 (D. Tenn. 1945) aff'd, 155 F.2d 101
(6th Cir. 1946), 329 U.S. 696 (1946),and 330 U.S. 158 (1947) ...............................................28
Walling v. Portland Terminal Co., 330 U.S. 148, 152 (1947) .................................................28, 29
Warth v. Seldin, 422 U.S.490, 498, (1975) ......................................................................................2
Winter Family Trust v. Queen, 503 F.3d 319, 325-26 (3d Cir. 2007) .............................................3
Wolf v. Coca-Cola Co., 200 F.3d 1337, (11th Cir. 2000) .............................................................30
Statutes
29 U.S.C.A. §
201…………………………………………………………………………………………8, 24, 25
29 U.S.C. § 203(m) ........................................................................................................................12
29 U.S.C. § 211 ........................................................................................................................24, 25
29 U.S.C.A. § 212 ..........................................................................................................................26
29 U.S.C. § 215(a)(3) ...............................................................................................................19, 20
29 U.S.C. §
216(b)…………………………………………...………………………………….…………15,24
29 U.S.C. § 217 ..................................................................................................................19, 24, 25
vi.
Case 3:11-cv-02743-O Document 20 Filed 12/12/11 Page 7 of 45 PageID 201
TABLE OF AUTHORITIES (cont’d.)
Other Authorities
Rev. Rule. 58-220 ..........................................................................................................................33
Rev. Rule. 58-515 .........................................................................................................................33
Rev. Rul. 59-2525 ..........................................................................................................................34
Rev. Rule. 65-282 ..........................................................................................................................33
Texas Alcoholic Beverage Code, Section 11.01 ............................................................................15
Texas Alcoholic Beverage Code, Section 61.01 ............................................................................15
Texas Alcoholic Beverage Code, Section 101.31 ..........................................................................15
Texas Alcoholic Beverage Code, Section 101.70 ..........................................................................15
vii.
Case 3:11-cv-02743-O Document 20 Filed 12/12/11 Page 8 of 45 PageID 202
I. Introduction
From the outset, it is clear that Plaintiffs’ counsel are hopping on the “band-wagon”
of the numerous “dancer classification” cases in the effort to "cash in" on alleged infirmities
of an allegedly “industry standard” business model, and exploit what has been a long and
mutually beneficial, albeit “informal,” relationship, wherein performers are given a generous
opportunity to share in the prosperity generated by the popularity of “upscale gentlemen’s
clubs.” To suggest that any performer who chose to earn her living by performing at any
relevant establishment did not receive “minimum wage” for whatever time they chose to
perform is not only not inaccurate, it borders on fraud.
That being said, the named entity Defendant, JGC Dallas, LLC, has never operated
any type of “gentlemen’s club,” and is simply not a proper party, since it holds only a liquor
license with plans for future business operations. Preserving the arguments supporting
dismissal of the Complaint as to JGC Dallas, LLC, since there is no “case or controversy’
existing involving this entity, and no performer of any classification has ever performed
with, for, or aware of JGC Dallas, LLC, and the same is true of “Bryan Scott Foster,” the
following Response is provided simply to address the issues of concern and establish that the
requested for injunctive relief are both unnecessary and inappropriate.
II. Plaintiffs Have No Likelihood of Success Because They Have Not
Sued the Correct Parties
The Plaintiffs lack standing to sue “JGC Dallas, LLC,” because it has never operated
any type of business, and has no relationship with any Plaintiff. Equally as fatal is the
unsupported fashion in which the Plaintiffs have attempted to sue Bryan Scott Foster, who,
individually, has never “required and/or permitted” any Plaintiff to do anything. The generic
Case 3:11-cv-02743-O Document 20 Filed 12/12/11 Page 9 of 45 PageID 203
references to “Defendants’ conduct” do not comport with even the most basic pleading
requirement and are subject to a Motion to Dismiss, a Motion to Strike and/or a Motion for a
More Definite Statement. Plaintiffs fail to allege, and there is no evidence to support, any
direct relationship between any Plaintiff and, either “JGC Dallas LLC” or “Bryan Scott
Foster.” Plaintiffs may not simply allege that “Defendant JGC Dallas LLC is a domestic
limited liability company doing business in Dallas, Texas for the purpose of accumulating
monetary profit,” or that “Defendant Bryan Scott Foster is an individual residing in Texas,”
and where he may be served, and then, through no foundation or meaningful allegation, allege
that “Defendants” (plural, with no explanation of how or why they may be connected) are
engaged in any relevant activity.
With no specific conduct alleged against any specific Defendant, the Complaint, as a
whole fails to state any specific cause of action upon which relief may be granted. In order to
get any form of relief, especially injunctive relief, Plaintiffs must establish standing. The
question of standing is whether the litigant is entitled to have the [judiciary] decide the
merits of the dispute or of particular issues. Warth v. Seldin, 422 U.S.490, 498, (1975). The
Supreme Court made clear in Warth that the threshold question in every federal case is
“whether the plaintiff has made out a case or controversy between himself and the defendant
within the meaning of Article III.” Id. at 498.
Article III judicial power exists only to redress or otherwise to protect against injury to
the complaining party, even though the court‘s judgment may benefit others collaterally. A
federal court‘s jurisdiction, therefore, can be invoked only when the plaintiff himself/herself
has suffered “some threatened or actual injury resulting from the putatively illegal action.” Id.
at 499. No such requirement has been met in the instant action.
Case 3:11-cv-02743-O Document 20 Filed 12/12/11 Page 10 of 45 PageID 204
In a proposed class action, like the present case, the named plaintiffs must demonstrate
that they have standing to pursue the claims alleged in the complaint. See Doe v. Blum, 729
F.2d 186, 190, n.4 (2d Cir. 1984) (citing Warth, 422 U.S. at 502; O’Shea v. Littleton, 414
U.S. 488, 494 (1974) (The class action allegation adds nothing to the standing inquiry since
the named plaintiffs must allege and show that they personally have been injured, not that
injury has been suffered by other, unidentified members of the class to which they
belong and which they purport to represent); see also Comer v. Cisneros, 37 F.3d 775,
788 (2d Cir. 1994) (citing Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429
U.S. 252, 263-64, (1977) (For federal courts to have jurisdiction over any of these claims,
only one named plaintiff need have standing with respect to each claims); Hoving v.
Transnation Title Ins. Co., 545 F. Supp. 2d 662, 666 (E.D. Mich. 2008) (same). Therefore, a
class action may be maintained only against defendants as to whom the class representative
has a cause of action and [s]tanding cannot be acquired through the back door of a class
action. Allee v. Medrano, 416 U.S. 802, 828-29 (1974).
Further, if the representative plaintiff has claims against some but not all of the named
defendants, the action cannot be maintained as a class action against the defendants as to which
there is no standing. See, e.g., Baltimore Football Club v. Sup.Ct. (Ramco, Inc.), 171 Cal.
App. 3d 352, 358-59 (1985) (class action filed against football teams by season ticket holders
was not viable because there was no allegation that each plaintiff had purchased tickets from
each team). Thus, in a class action, ―[t]he initial inquiry is whether the lead plaintiff
individually has standing. Winter Family Trust v. Queen, 503 F.3d 319, 325-26 (3d Cir. 2007).
In the instant action, no Plaintiff has (or can) allege any conduct attributable to JGC
Dallas, LLC, since it has never operated any business. Additionally, no Plaintiff can make any
Case 3:11-cv-02743-O Document 20 Filed 12/12/11 Page 11 of 45 PageID 205
claim against Bryan Scott Foster, individually, since there has been no allegation of how he, in
any capacity, has engaged in any conduct in the operative Complaint not alleged to have been
done, apparently jointly, with an entity that has never engaged in any business other than to
own a liquor license. In order to even remotely show an entitlement to the relief requested, the
Plaintiffs must exercise at least a modicum of “due diligence,” and research what entity may
own what Club, who the principals of that entity may be, and how there is a lawful and
legitimate foundation upon which to establish standing as to why a Plaintiff has the ability to
maintain any cause of action against any party. None of that has been done here.
Contrary to any allegation, no performer has ever been “employed” as an entertainer at
any Jaguars Gold Club (which we will also refer to as "Jaguars" or “the Club(s)”, without
waiving the challenge to Plaintiffs’ inclusion of improper parties and failure to establish
standing to sue those parties). There do exist numerous adult entertainment nightclubs in Texas
and one in Arizona operating under the name “Jaguars Gold Club,” but Plaintiffs have not
established any of the necessary elements to support their action against any of them, certainly
not by naming a non-operating entity, or an individual, Bryan Scott Foster, who, to date, has
not answered or acceded to the jurisdiction of this Court, nor been the subject of any specific
allegation. The generic reference to “Defendants” in the Complaint simply misses the mark.
It is true that, on October 14, 2011, Plaintiffs filed a putative collective action against
this non-operating entity and the alleged “related individual,” Foster, but the Plaintiffs are
cavalier and premature in presenting the allegations of their virtually incomprehensible (at least
as to “who did what”) Complaint as the basis to seek any relief on the basis of anyone
“misclassifying them as independent contractors and attendant violations of the Fair Labor
Standards Act. (Dkt. 1.)” This is not even “notice pleading.”
Case 3:11-cv-02743-O Document 20 Filed 12/12/11 Page 12 of 45 PageID 206
Also presumptuous and false is the allegation that, “Upon learning of this suit in the
middle of November 2011, Defendants swiftly hatched an illegal plan to discourage other
potential class members from joining this lawsuit.” The truth is that a number of individuals
and legal counsel related to Jaguar’s Gold Clubs, painfully aware of the unbridled avarice
running rampant in the “dancer misclassification” cases popping up all over the Country, began
the process of creating and reviewing (under appropriate privilege) documentation that would
properly memorialize the exact terms and conditions of the “relationship” between the “Club”
and the “Performer.” These documents were initiated in August of 2011, and had been
prepared and were being finalized and distributed, unfortunately, just around the time of the
filing of the instant action. See the Declaration of Kevin Richardson, Def. Exhibit A.
Especially troubling is the false description of events surrounding the implementation
of the documentation at issue by one performer, Claudia Rede, who now asserts an inaccurate
and untruthful description of the events surrounding the efforts to review and enter into an
appropriate agreement with “the Club.” It was a conscious effort to try and establish, not a
loose “arrangement” that would invite the miscarriage of justice manifest in the instant action,
but an agreement that would provide an accurate description and memorialize the “meeting of
the minds” that every performer has had with the Club, since day one. No performer has acted
as an “employee,” and no performer has desired to be classified as an “employee.”
Ms. Rede, allegedly a performer in El Paso for over 5 years, was given every
opportunity to review her contracts, and also given an opportunity, apparent on the face of the
contracts, to take the documents to counsel of her choice, and review same, at her leisure. At
that point in time, no one associated with the Club had any knowledge that she had even “opted
into” anything, so any assertion that she was being “retaliated against” would be vacuous. No
Case 3:11-cv-02743-O Document 20 Filed 12/12/11 Page 13 of 45 PageID 207
one associated with any Club knew that she had any knowledge or participation in the pending
action, and, contrary to her assertions, she was neither pressured, threatened nor coerced to do
anything.
The specifics of Claudia Rede’s interaction with “Club” representatives is set forth in
the Declarations of Gary Garcia and Fernando Robles, attached hereto as Exhibits “B” and “C.”
In actuality, when the specifics of the untrue accusations made by Ms. Rede came to light and
were diligently researched, the undersigned Counsel sent Plaintiffs’ Counsel a letter offering to
allow Ms. Rede to return, where she, just like the performers known to be involved in the
action, would be welcomed to perform and enjoy the fruits of their own dancing skills. As set
forth below, no one would ever argue that a potential, or putative class member, or even one
that unknowingly had “opted in,” could be subjected to any form of coercion or duress, or any
of the pressures that are a defense to a valid contract. What is argued is that, under the pretense
of allegations of improper conduct that never occurred, Plaintiffs’ Counsel is attempting to “try
his entire case,” before the proper parties are even before the Court, and before any responsive
pleading has ever been filed by a proper Defendant. The “pretextual” efforts of Claudia Rede,
seeking “reinstatement of her job,” is simply an attempt by Plaintiffs’ Counsel to contaminate a
reasoned and good faith exposition of the facts, and an effort to properly memorialize an
understanding held between performer and Club that has always been in place.
No “Defendants” engaged in any “illegal conduct,” and, in spite of these allegations
being totally false, there is no allegation that ties any alleged conduct to any “agent,” of any
capacity, to any “Club” operation. Ms. Rede was not “terminated,” and, after hiding her alleged
“inebriation” from the Club, she was the one that acted improperly. After the epiphany of her
“propensity for misrepresentation,” she is still welcome to return, as either an “employee,”
Case 3:11-cv-02743-O Document 20 Filed 12/12/11 Page 14 of 45 PageID 208
should that be how she wants to earn her living, or as an “independent space lessee and
licensee,” as she has earned her living, handsomely, for the last several years. The letter from
the undersigned is attached hereto as Exhibit “D.”
It is true that the documents presented to the relevant performers have serious legal
consequences. This is set forth in bold type, repeatedly, on the documents. Theses “forms” have
been in preparation since long before the filing of this action, are attached hereto as Exhibits
“E” and “F.” Performers, at their discretion, earn their living at various times, since they do so
at “places of public assembly” which operate long into the evening. Any performer choosing to
dance during the day would have been presented with the subject documents when she was
present at the Club in the daytime. Any performer choosing to dance during the night would
have been presented with the subject documents when she was present at the Club in the
evening. The effort to make the professional and courteous fashion in which these documents
were presented, explained, and offered to be taken to counsel of one’s own choosing, was not
the “midnight raid” described by opposing counsel. There was no document presented to
anyone, ever, “for signature under hostile and deceptive circumstances.” In response to this
false accusation, see the Declarations of numerous performers, also presented with similar
documents, attached hereto as composite Exhibit “G,” sub numbered.
The subject documents speak for themselves, and do provide the entertainers with two
options to describe their relationship with the Club. These documents accurately set forth the
characteristics of both “options,” which, as has been seen as a result of the “after effects” of
these “dancer misclassification” cases, the Clubs suffer and the performers invariably curse the
day they ever expressed a “coached” desire to be an “employee.” There are no, as argued by
opposing counsel, “predictably misleading statements, half-truths and outright false statements
Case 3:11-cv-02743-O Document 20 Filed 12/12/11 Page 15 of 45 PageID 209
of the law” contained in the subject documents.
Indeed, if Plaintiffs’ Counsel accurately described the distinctions between the rights
and responsibilities of “employees,” and the freedom and above average (if not huge) income
derived by the alternatives under which any Club opened it s doors to performers, it is unlikely
that even those performers tired of the physically demanding, coordinated, and incredible
difficulty of this highly skilled (independent) profession would even dream of becoming
Plaintiffs or “opting in” to this desperate “cash grab.” Indeed, as will be developed in this
action, if necessary, virtually every performer that has participated in the “dancer
misclassification” cases has regretted doing so, not only because it can ultimately end up being
a negative “financial experience,” based on the affirmative defenses available to the defendants
in any such case, but also because the loss of freedom and control a performer has when
working as an “employee” under the alternative arrangements.
Ultimately, as discussed below, no one has tried to circumvent, “[t]his court's
authority to issue, if it so deems appropriate, notice to the potential class members of their
right to seek relief via this lawsuit pursuant to 216(b) of the Fair Labor Standards Act.” The
representatives of any related Club, having had a previous relationship with the
performers at issue, are free to communicate and negotiate with any performer,
particularly prior to any class certification. There is no need for any “amendment” to the
operative Complaint to allege “retaliation,” since none has occurred. It is true that, “29
U.S.C. 201, et seq., provides courts with broad authority to issue injunctive relief and warrants
immediate corrective action by this Court in the form of a temporary restraining order and a
preliminary injunction,” but the facts of the instant case simply do not warrant such judicial
intervention.
Case 3:11-cv-02743-O Document 20 Filed 12/12/11 Page 16 of 45 PageID 210
III. There are No “Facts” to Support any “Retaliation Claim.”
True, Plaintiffs filed their Complaint on October 14, 2011, as a collective action under
the FLSA on behalf of a group of current and former entertainers who, even though all
Plaintiffs know they made well over “minimum wage,” are hoping to exploit various alleged
industry wide standards of the “performer-club” relationship to extract inequitable and
formalistic damages from any defendant they can hook into this action. No one was denied
“minimum wage and overtime pay.” Also, in an “admission against interest” undermining the
allegation that the subject “contracts” circulated among performers had been hatched in
response to the instant lawsuit, it is abundantly true that, “This is one of many cases across the
country attempting to,” exploit an entirely lawful “industry practice” of classifying exotic
dancers as something other than “employees.” This classification is not to “avoid minimum
wage and overtime pay dueunder the FLSA,” it is to reflect the freedom and “self destiny”
enjoyed, for decades, by performers who desire to make much more than “minimum wage,”
yet also have flexibility with schedules, responsibilities, and being able to perform at any
location, and in any city, in which they choose to perform. There are no “pro hac vice”
requirements for exotic dancers.
The improperly named “Defendants” herein, represented by the undersigned Roger
Albright of Dallas, Texas, and co-counsel Luke Lirot of Clearwater, Florida (who is subject to
admission pro hac vice) did reach an agreement for Defendants' responsive pleading to be due
on January 6, 2012. (See Plaintiffs’ Exhibit 5, Waiver of Service of Summons). Naturally,
Plaintiffs need to sue the proper parties before any Answer can be filed. In any event, no one
can determine if any and all “related parties” were aware of the pendency of the lawsuit, since
they are not identified, but communications had been established, and the pendency of the
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action was known to counsel. What is disputed is that Claudia Rede, at any point in time prior
to the filing of her Declaration, was known by anyone even remotely related to any Defendant,
to be an “opt-in” Plaintiff who worked at Jaguars Gold Club in El Paso. She was not
“terminated,” and, as the Declarations of Garcia and Robles indicate (Exhibits “B” and “C”),
her apparent “recollection” of the “facts” is entirely unsupported, even by other performers
going through the same process. No one was “required” to sign either the "Performer
Relationship Selection Agreement" (Exhibit “E”). The second one is titled "Performer
License and Temporary Space Lease Agreement" (Exhibit "F”).
These documents speak for themselves, and do contain an acknowledgement that any
performer reviewing them “had an opportunity to consult with an attorney of my own choice
prior to making a selection of being a License and Temporary Space Lessee or employee."
Jaguars' management presented the Contract and Space Lease to the “putative class
members” in the same way it communicated any message to any performer, they were
presented with same when during a time the performer chose to come into the Club to dance.
No member of “Management” waited for any person to “put on their outfits” or, as pointedly
and mischaracterized, ad nauseam, in their pleading, “get ready for work,” a never ceasing
effort by opposing counsel to “sneak in” some description of the relationship that is not
accurate and simply self serving.
To avoid the necessity of having to respond and correct every reference to “come to
work,” or similar statements, suffice it to say that performers essentially make their own
schedules and decide who to dance for and when. No aspect of the presentation of the subject
documents was designed to disadvantage, pressure or coerce any performer in any way.
Everyone was invited to review the documents at their own pace, and even take them to their
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own lawyer, if they wished. If, as in Plaintiff Rede's case she was “too inebriated” to
know what she was doing (a disturbing allegation, since no alcohol is served at the
Club in El Paso), she could have done as she wished with the documents that were
provided to her! There was no limit to any “touch screen” as a method to review or
assent to the documents. Gary Garcia never told anyone, “all of the entertainers had to sign
the contract.” He is in upper management and was fully aware of the respect and formality of
supervising the negotiations involving these important documents. It is impossible to reconcile
Mr. Garcia’s Declaration (Exhibit “B”) with Ms. Rede’s declaration, but it is clear that he does
not state that he had done “four shots” before the event at issue. What is even more problematic
is that Ms. Rede, apparently too drunk to realize much of the events of the night in question,
seems to only remember with specificity those “facts” hoped to be beneficial to Plaintiffs.
Some call it “the straight face test,” some, perhaps more crudely, call it “the smell test.” By
whatever name, Ms. Rede’s Declaration passes neither.
The Contracts speak for themselves, and, contrary to the assertions of the Plaintiffs,
they do accurately inform performers of distinctions that, if properly explained by Plaintiffs’
Counsel to their clients, would result in an exodus to the door. There are no “misstatements of
facts and law,” and the documents simply provide a description of the different aspects of being
classified as an “employee,” or enjoying the freedoms of self destiny provided by the option
allowed by “the Club.” The statements are not inaccurate, and, even though taken out of
context, are informative:
• You will be paid the minimum wage, will get reduced minimum wage for tip
credit where ·allowed, and be paid like wait staff (currently $2.35 to $5.15
per hour, or as amended by Congress, every two weeks)
• You will be required to share tips with other club employees, where the
law allows
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• You will be required to turn over to the Club all Dance Performance Fees which
are charged to the customers for couch, table, VIP and shower dances (including
tips or gratuities which you receive in excess of the posted prices)
• The Club can require you to dance for Club patrons and staff for FREE.
• You may be required to fill in for any other employee who does not show up for
work no matter what his or her job responsibilities may be, i.e. waitress, door
person, janitorial, etc.
• The Club can fire you and bring criminal charges against you for overcharging
patrons.
Ridiculously, the opposing counsel argues that, “The Contract makes no reference to the
fact that, to be valid, a tip pool must provide for a fair distribution of all tips from each
person participating in the pool. (See 29 U.S.C. § 203(m)). These documents do not imply,
“that the entertainers would be paid $2.35 per hour, have to pay their tips to the Club, would
even have to work for free, and would have to work as a janitor.” They simply set forth the terms
and conditions of working as a “tipped employee.” There is also nothing relevant about alleging,
“Jaguars makes no mention of the requirement to pay different wages for positions that do not
customarily receive tips.” The statements in the subject documents are accurate, and, as
conveniently left out, the document was clearly identified as not giving any “advice,” and, if
there were any questions, at all, on the contents of the document, the performer had the absolute
right to consult counsel of her own choice before executing same.
The Contract does contain language which purports to define the terms of individuals
employment if they are subsequently deemed to have been employees and not “independent
contractors,” giving the Defendants the right to demand monies which, until now, entertainers
have been allowed to retain, such as entertainment fees and scrip redemption amounts. This type
of set-off, regardless of whatever opposing counsel would like to argue, is a well-recognized
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feature of these “dancer misclassification” cases. What apparently is most troubling to the
opposing counsel is their belief that, by signing the “Space Lease,” a performer could arguably
be “opting out of this collective action lawsuit” by agreeing to arbitrate all matters pursuant
an arbitration clause that waives their right to participate in a class or collective action lawsuit
such as this one. These types of arbitration clauses have been upheld, and, to the extent that no
class has been certified in this action, there is no impediment to communicating with the
“putative class members,” as shown below. To alleviate any concern of the Plaintiffs, a notice of
the pending suit can be circulated, and the option can be made to either acknowledge, or
disavow, those portions of the subject documents that may call for arbitration or waive any
participation in any class action, in the subject documents they may have signed.
The Court can clearly fashion, with the fair input of the parties, a notice, if deemed
appropriate, that would be “timely, informative and accurate.” Notice, fairness and equity are
desired by any (appropriately named) Defendant as much as that purportedly sought by the
Plaintiffs.
IV. Response to “Facts” Alleged by The Plaintiffs
Plaintiffs and opt-in Plaintiffs may have performed at various Clubs, but whether they
were “employed as entertainers” is sharply at issue. There is nothing sufficient in the Complaint
to base any claim that anything happened at “Defendants'” adult entertainment nightclub,” since
there is no such thing. The coached and selectively created declarations are not entirely accurate.
There were no “job duties,” and performers, not surprisingly, performed, when they wished, and
for whom they wished. While the Clubs put out “advertising and marketing,” performers
could have asked to have been included in any advertising, and, based on new technological
developments, many performers are believed to have advertised their presence at any Club
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through “social media,” or through other means. Music selection was also open to request, and
any performer could make requests or suggestions to the DJ for the music they chose to dance to.
If no performer availed themselves of these actions, that is no basis to allege “control” over these
things. Club layout was a function of the status of pre-existing structures and building codes.
Any performer could request modifications in the lighting, hiring (or firing) of wait staff,
security and other employees who interact with customers. A performer could perform the hours
she chose, and “club hours” were those imposed by statute or code, not arbitrarily chosen. Club
amenities and cleanliness, cover charges and overall club atmosphere could have been the
subject of suggestions, input, or demands from any performer, but none were made.
These generic issues do not make the subject performers “employees,” and these issues
are simply some of the criteria considered in other cases to make a determination. They are facts
in dispute, subject to exploration in the discovery process, and can not be determined with
finality based on a handful of self-serving declarations. In addition to these other factors,
performers could well have been urged to maintain a consistent price for dance performances, to
ensure fairness to all dancers. There could also have been a “stage rotation” to give all dancers an
equal opportunity to be seen by patrons. Dancers could take all the time they wanted to “be on
the floor,” and could let the Club know they were there to perform for themselves.
In order to sign in, entertainers would scan their fingerprint into a Club computer located
at the manager's office and would then acknowledge that they had chosen to perform that day or
evening by signing the lease form. When ready, with no pressure or demand from the Club, the
entertainer would inform the DJ that she was ready to perform, and the DJ would scheduled
her, “first come first served,” in the dance rotation, to give the individual performers equal
access to the best marketing for their individual dance performances, the center stage.
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Entertainers were not required to wear anything specific, there was no “uniform,” but they were
encouraged to wear gowns or other “classy” garments to add to their own popularity and
profitability. Entertainers were also encouraged to be present during heavily publicized events,
such as “Super Tuesdays,” in order to allow performers the greatest profitability and the
greatest benefit from these special events. Obviously, performers were not allowed to sell
alcohol to the customers. Texas Alcoholic Beverage Code (TABC) prohibits:
Section 11.01-no person without permit may sell, or possess for purpose of sale, liquor in
a wet area;
Section 61.01-prohibits one to sell or possess for purposes of sale, beer without having
obtained an appropriate permit or license;
Section 101.31-sell or possess with intent to sell in dry area (such as Abilene) –a Class B
misdemeanor;
Section 101.70-a place where alcohol is sold contrary to provisions of the code is a
common nuisance . a person who maintains such a place commits a separate offense. Order of
abatement for up to one year.
Additionally, to provide performers with the security that they would not be “crowded
out,” and could still make their living “performing,” the Club would encourage performers to
“reserve” at least four days a week, to provide continuity to the performer and also try to ensure
a full and profitable Club, for all performers. The “renting” of a “VIP” room was the province of
management, but a performer could request any gratuity she desired for “VIP dances.”
Once a performer had decided she had performed as much as she wanted (there was
never any “minimum” number of performances imposed on any performer), at the conclusion of
that performer’s desired “day,” a payment was required for the “lease” of the Club facilities. The
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longer the performer “leased” the facilities, the more the lease payment. Whatever Plaintiffs
may “believe,” the factors that contributed to what a performer made on a given night were the
number of customers, an issue beyond the control of the Club, and the preferences and
generosity of the customers in the club. Their comparative “wealth” can’t be stated to be a
variable, since even a “financially challenged” patron might feel inspired to give a substantial
gratuity to a performer if she gave an exceptionally “skilled” dance performance. No “Plaintiffs'
ability to make money … depended on various financial decisions made by the club pertaining to
the amount of cash that was readily available to customers.” Every Club had a “bank,” and every
Club has an ATM, and the amount of money, credit ability or any other variable in this area is
entirely at the discretion of the patron. “Plaintiffs'” ability to make money was never “influenced
by the length of time they were called to dance on stage for their ‘stage set,’ as well as by the
time at which they were called for their ‘stage set.’” Any performer could forego a stage set, and
the only variables that truly decided income were the skill, the industry and the attitude of the
performer.
Most inaccurate was the allegation that, “The entertainers were required to pay the house
mom and the disc jockey (''DJ") directly at the end of the night from their tips.” A “House
Mom” was simply an independent “vendor,” providing make-up, outfits, costumes, hair styling
or any of a range of services, directly to the performers, and for whatever the performers felt
appropriate to pay, directly, as a gratuity to this “House Mom.” There was always an amount of
“peer pressure” as to what an appropriate gratuity would be, but that was neither an amount
demanded or set by the Club. Any performer with adequate skill, desire, and attitude could
choose to perform at any Club, therefore, the statement, “Accordingly, their ability to earn
money on stage was also affected by the other workers Jaguars Gold Club chose to hire,” is a
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statement that just does not make sense.
True, “The amount of money entertainers earned on stage varied depending on the
number of customers in the club at the time and the amount of cash those customers decided to
use to tip the entertainers on stage.” This is no indication of any aspect of Club “control.” What
is unequivocal, is that, for the safety of all involved, no performer was “allowed to leave the club
with customers.”
Every Club is different. Some performers have “large groups of regular customers who
came specifically to see them at the club,” and some do not. This is dependent, again, on the
skill, the industry and the attitude of the performer, as well as how long she may have performed
at any given Club, or if the performer was active in “marketing” herself in social media, the
newspaper, or any other advertising media, all available to any performer. Most long term
performers, especially those with superlative skill, industry and attitude, could attract “regular
customers,” but, again, this was a factor entirely outside of the control of the Club. No performer
was required to “pay” any “House Mom,” and any records kept by any “House Mom” could
easily have been to record her “income,” not for any reason useful to Plaintiffs. No performer
was ever required to “pay” any DJ, but industry standard is that the DJ should be given
something from the performer, especially if he played the music that performer requested. No
performer was “obligated’ to give the DJ anything, and, again, any records kept by any DJ could
easily have been to record his “income,” not for any reason useful to Plaintiffs.
Plaintiffs were urged to perform at least four nights per week, however, under no
circumstances were any performers ever “discouraged from working at other adult entertainment
clubs.” As for whether a performer had any “formal dance training,” some may have had ballet
training, some may have none, but all needed to be skilled at performing. The ability to be an
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exotic dancer is a blend of physical and social skills that defies common description, but to
suggest, as Plaintiffs seem to do, that a performer simply has to be “an ordinary person of
reasonable fitness and coordination” is absolutely not accurate. Yes, “an entertainer's
appearance” can clearly be important, but it is the skill of being able to blend beauty, charm,
dancing ability, social skills, industry, attitude, and any number of a multitude of intangibles, not
unlike that of an actress, that drives the income of a performer. Not every “pretty face” can be a
successful actress, and the same is true of performers, but to suggest that any “ordinary person”
of “reasonable fitness and coordination” can be a performer is both an insult and degrading to the
performers who dedicate many hours to enhancing the variables set forth above to be successful.
Clearly, “the ultimate factors which control how much money an entertainer can make” are not
“out of the entertainers' control,” they are decided entirely by the performer!
Also, while the Club would engage in advertising and marketing, any performer could do
so as well. The same media available to the Club, including radio, print media and electronic
media, was also available to the performer, and, in light of the ability of anyone and everyone to
promote themselves to the world on social media, again, a performer’s success based on this
variable, would be self-effectuating. Any performer could have made any request to modify or
include any message in any advertising, so to complain that, “Plaintiffs had no control over
Jaguars Gold Club's decisions to market itself in this fashion, nor were they consulted about it,”
is not a valid criticism if no Plaintiff ever made such a request!
As it pertains to the website at http://www.jaguarsgold.net/., any Plaintiff could have
offered input, had they even been aware of the website, or they could have established a
“link,” had they wanted to promote themselves as in connection to the website. Plaintiffs may
allege that they, “had no control or input into the design or content of the website” but not one
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h
Declaration says that any Plaintiff ever tried to modify, add to or influence the content of the
website! The website is shared by various other Clubs, but not one is “owned” by JGC Dallas
LLC or Bryan Scott Foster.
V. Response to “Legal argument: Injunctive relief is authorized by the FLSA.”
There is no argument that, “The FLSA's anti-discrimination/anti-retaliation provision”
speaks for itself. The protections of 29 U.S.C. § 215(a)(3) are valid and beneficial, but they have
no applicability to the instant action. If an employer does retaliate against an employee, the
employee is entitled to legal and equitable remedies to put him in the same position he would
have been in had the retaliation not occurred, and well should be! See 29 U.S.C. § 216(b). There
is, however, a dispute as to whether this Court can enjoin violations of the FSLA, and is
“expressly authorized to grant an injunction to prohibit violations of section 215 of the FLSA,”
as set forth in 29 U.S.C. § 217. Luckily, this issue need not be decided here, since there is no
necessity to do so.
The standards for injunctive relief are also well accepted: (I) substantial likelihood of
success on the merits; (2) substantial threat of irreparable injury; (3) threatened injury to
plaintiff must outweigh threatened injury to defendant; and (4) granting of the injunctive relief
must not disserve the public interest. See Harris County v. CarMax Auto Superstores, Inc., 177
F.3d 306, 312 (5th Cir. 1999). There is no argument with the entirety of the legal arguments
made in this section of the Plaintiffs Memorandum, but hey are all based on a falsehood. At no
point in time did anyone “retaliate” against anyone, and, to try and “bootstrap” their entire case
into the misrepresentations of Ms. Rede is wholly inappropriate! None of the factors support the
Plaintiffs’ overreaching efforts, and, both on the basis of the points and authorities below, as well
as a review of each of the equitable factors raised herein, indicate that the Plaintiffs are not
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entitled to any preliminary injunction, and, quite simply, the ranting of an admittedly inebriated
exotic dancer (Ms. Rede) cannot, alone, establish any of the necessary criteria, especially when
all of the other Declarations contained in Exhibit “G” show that her “recollection” of the
circumstances surrounding the offering and distribution of the subject documents was simply not
accurate. No injunction is needed to enforce “prohibiting further action by Defendants and
reinstatement of putative class members who have been terminated,” since no such conduct has
taken place, and absolutely no performer has been “terminated,” for any reason.
VI. Response to “Elements of Plaintiffs Claims” and the “Substantial Likelihood
of Success” Issues
A. Regardless of the Plaintiffs’ Allegations, They Can Not Short Circuit
Due Process with Selectively Incomplete Declarations
Defendants do not argue that § 215(a)(3) can be “read broadly,” and that a broad
construction ensures that an employer cannot create an atmosphere of intimidation and
"prevent[s] employees' attempts to secure their rights under the Act from taking on the character
of a calculated risk."' Mitchell v. Robert DeMario Jewelry, Inc., 361 U.S. 288,292 (1960).
That is all well and good, but there is no convincing evidence that any “retaliation,” threats,
coercion, or any untoward conduct was committed against any performer for any reason. The
presentation of the subject documents, long in the making, in an effort to streamline any
concerns that may have existed based on long term “industry standards,” is not tantamount to any
wrongdoing.
B. The Plaintiffs Efforts to “Smuggle In” the Ultimate Issue in this
Action Should Have no Bearing on the Requested Injunctive Relief
Regardless of the broad definition of “employee” at issue, these considerations are not
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relevant to the requested injunctive relief. The nature of the dispute has no bearing on whether or
not a “putative class member” was wrongfully interfered with or whether the communications
with any such individual were nefarious enough to warrant judicial intervention. As stated
vigorously throughout this Response, no such wrongful conduct has occurred. Nonetheless, since
Plaintiffs has attempted to inject this “Emergency” proceeding with an effort to argue the
ultimate issue in this case, the Responding Parties can not ignore the issue. Notably, while there
are many old decisions that have found that “dancers” are not “independent contractors,” every
case must be judged on its own facts. See Reich v. Priba Corp., 890 F. Supp. 586, 592 (N.D.
Tex. 1995) (citing Mednick v. Albert Enterprises, Inc., 508 F.2d 297, 299 (5th Cir. 1975)).
There are many tests to use to determine the “relationship.” The use of the economic reality of
the relationship. determination of employment status is only one See Herman v. Express
Sixty-Minutes Delivery Services, Inc., 161 F.3d 299, 303 (5th
Cir. 1998).
The many Fifth Circuit cases cited by Plaintiffs incorporate a number of different theories
and, candidly, while some apply to the instant scenario, some do not. In the instant action, the
performers were properly classified as “non-employees,” regardless of the “breadth” of the term.
The most cogent summary is of the multi-factored "economic realities test" in determining
whether an employment relationship exists under the FLSA is as follows. The test evaluates six
factors to determine whether, in economic reality, a worker is employed by the business where
he or she works. These factors are (1) the permanency of the relationship, (2) the degree of skill
required from the worker, (3) the extent of the worker's investment in equipment or materials, (4)
the worker's opportunity for profit or loss, depending on his or her skill, (5) the extent of the
alleged employer's right to control the manner in which the work is performed, and (6) whether
the services rendered by the worker are an integral part of the business. Donovan v. Brandel, 736
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F. 2d 1114, 1117-19 (6th Cir. 1984) (cited in Imars v. Contractors Mfg. Servs.., 165 F.3d 27 (6th
Cir. 1998). No single factor is determinative, and an evaluation of the facts of each case under
this scenario is the only just way to make an ultimate determination.
C. Jaguars Situation is Entirely Unique and No Other Cases Can
be Used to Determine, Prior to the Completion of Discovery, Whether
any Relevant Relationship Creates an “Employer-Employee”
Relationship Under the FLSA.
Courts considering the question of whether entertainers employed by adult clubs have
concluded that such individuals are employees pursuant to the FLSA. Not all decisions have,
however. While the Fifth Circuit may have reached a conclusion almost 20 years ago in Reich v.
Circle C. Investment, Ltd., 998 F.2d 324, 329 (5th Cir. 1993) (upholding trial court's
determination that adult club dancers are employees within the meaning of the FLSA), this
Court can not simply “short cut” the Responding Parties’ rights to challenge this apparent
“presumption.” Regardless of what other Courts may have decided, (Martin v. Friba Corp.,
1992 WL 486911 (N.D. Tex.); Ivfartin v. Circle C Investments, Inc., No. M0-91-CA-43,
1991 WL 338239 (W.Dist. Tex. 1991); Reich v. Friba Corp., 890 F. Supp. 586, 594 (N.D.
Tex.1995) (after bench trial, finding dancers at adult night club were employees for purposes of
the Fair Labor Standards Act in case brought by the Department of Labor)), nothing in this
action, at this point in the proceedings, justifies any “premature” decision on this issue.
The recent decision in Clincy v. Galardi South Enterpries, et al., No. 1 :09-CV-2082-
RWS, 20011 WL 3924860 (N.D.Ga. 2011), simply identifies issues to be evaluated, it does not
provide an excuse to deny the instant Responding Parties their day in Court. The Plaintiff
performers were presumably under the same flexible conditions as all of the relevant performers.
The Court should note that under the terms of every performer’s engagement, any performer was
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entitled to perform exotic dances at other bars, nightclubs, and other venues, regardless of the
“suggestions” to the contrary. Based on the totality of the relationship, the performers were able
to set their own schedule, able to select her own costumes (absent “suggestions” for gowns, on
infrequent occasions), props, make up, method of performance, performance techniques, and also
they were also free to determine whether or not to provide dance performances to specific
customers.
According to the arrangement with the Responding Parties, a performer pays a "base
rent" to the club for each day, or "set" she works. At any time, a performer could choose to be
treated as an employee, or not. The Court should be aware that Plaintiffs by their own conduct,
agreed to be non-employees, and, until the institution of this litigation, conducted themselves as
such. When “Defendants” were advised that the Plaintiffs had instituted this litigation, it became
apparent that Plaintiffs had determined that they no longer wished to be a “lessee” or an
independent professional entertainer.
Incredibly, Plaintiff's counsel is asking the Responding Parties, and this Court, to allow
Ms. Rede to be treated as a “lessee” for certain purposes, and as an employee for other purposes.
It seems that Plaintiffs do not truly comprehend the effect of any election to change their status
from “lessee” to employee. Now that the results of that choice have been explained to the
performers, none of them want to be treated as an employee. Plaintiffs seek an injunction, which
can only ask this Court to "preserve the status quo," yet this is utterly misleading. The status quo
would be for Ms. Rede to continue to perform as a “lessee.” In any event, she has been invited to
return and do as she wishes, under any classification she wishes, so long as she embraces the
distinctions between her flexible relationship and unlimited opportunity for income she enjoyed
previously, for several years without complaint, or be willing to be a tipped employee. The relief
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that Plaintiffs ask the Court to impose will NOT preserve the status quo, but will merely further
confuse Plaintiffs’ status. See Six Clinics Holding Corp. ,II v. Cafcomp Systems, Inc., 119 F.3d
393, 400 (6th Cir. 1997) (citing University of Texas v. Camenish, 451U.S. 390, 395 (1980)
Ms. Rede has requested that she be treated as an “employee,” and the Responding
Parties were willing to treat her as such. Now she is requesting that she be treated differently
than all the other employees and differently from the all the other performers. For reasons set
forth below, this Court should deny the Plaintiffs emergency motion and should also award to
Responding Parties their costs and fees incurred in having to respond to this frivolous motion.
D. Plaintiffs Can Not “Smuggle In” Any Request for Injunctive Relief
Based on the FLSA.
At the outset, the Plaintiffs have no right to seek injunctive relief on the FLSA. Plaintiff
seeks relief under the Fair Labor Standards Act ("FLSA"), 29 U.S.C.A. § 201, et seq.
Significantly, 29 U.S.C. § 211, contains the authority of the Secretary of Labor to conduct
investigations and inspections for violations of that act and provides that, except as provided in
section 212 (29 U.S.C.A. § 212) the "Administrator" shall bring all actions under section 217 (29
U.S.C.A. § 217) to restrain violations of the act. "Courts facing the issue have uniformly held
that according to that plain language [of § 217], the right to seek injunctive relief rests
exclusively with the Secretary of Labor."' Howard v City of Springfield, Illinois, 274 F.3d 1141,
1145 (7th Cir. 2001). See also, e.g., Barrentine v. Arkansas-Best Freight System, 750 F.2d 47,
51 (8th Cir. 1984); Roberg v.Phipps Estate, 156 F.2d 958, 963 (2nd Cir. 1946); and Bowe v.
Judson C. Burnes, Inc., 137 F.2d 37, 39 (3rd Cir. 1943). It is thus the consensus of the Circuits
that injunctions to restrain violations of the act are the sole province of the Secretary of Labor.
The Sixth Circuit instructs: “In actions pursuant to [29 U.S.C.] § 216(b), individuals are
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limited to seeking legal remedies and are precluded from seeking injunctive relief." Moreloc
v.NCR Corp., 546 F.2d 682, 688 (6th Cir. 1976) rev'd on other grounds, 435 U.S. 911 (1978)
(emphasis added). Hence, there is no doubt that Plaintiffs have no ability to seek an injunction
for the payment of wages under the FLSA, yet they put this erroneous argument “front and
center” before this Court to try and bring it in under the cloak of exaggerations and
misrepresentations that form the entire basis for the improperly requested “emergency relief.”
Because Plaintiffs are unable to make out any legitimate claim for retaliation, they have
lumped into their current request for an emergency injunction the relief Plaintiffs seeks in their
weakly pled Complaint. Of course, the prospective relief requested in the Complaint may only be
sought the Secretary of Labor, pursuant to 29 U.S.C. § 217. Howard, 274 F.3d at 1145.
E. Plaintiffs Are Not Entitled To Injunctive Relief
As properly identified by the Plaintiffs, and addressed in part above, when deciding
whether to grant the "extraordinary" remedy of a preliminary injunction, this Court must
consider and balance four factors: (1) whether the moving party has a strong likelihood of
success on the merits; (2) whether the moving party would suffer irreparable injury without the
preliminary injunction; (3) whether issuance of the preliminary injunction would cause
substantial harm to others; and (4) whether the public interest would be served by issuance of the
preliminary injunction. Jones v. City of Monroe, 341 F.3d 474, 476 (6th Cir.2003) (citations
omitted). These four factors "are factors to be balanced, not prerequisites that must be met."
Hamad v. Woodcrest Condo. Ass'n, 328 F.3d 224, 230 (6th Cir.2003). A district court must
make specific findings concerning each of the four factors unless fewer are dispositive of the
issue. Performance Unlimited v. Questar Publishers, Inc., 52 F.3d 1373, 1381 (6th Cir.1995).
Plaintiffs here meet NONE of the above requirements. Further, when balancing these factors, it
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is clear that the Plaintiffs are not entitled to injunctive relief.
What is crucial and dispositive of the status of the performers at issue here is the simple
fact that no one related to the Responding Parties “pays” any performer, and they did not, and
do not, pav performers any remuneration. Rather, the performers pav the club for the right to be
able to utilize the club premises for their entertainment services. This is evidenced by Plaintiffs’
own declarations. This fact becomes legally significant because of what is generally referred to
as the "antecedent question" of employment; that being the agreement to work for another for
pay. Courts recognize that, while the payment of wages or a salary does not, per se, establish an
employment relationship, it is a mandatory factor- a precondition, if you will- in which to find
the existence of such a relationship.
The most succinct description of this doctrine is found in O'Connor v. Davis, 126 F.3d
112 (2nd Cir. 1997), where the Second Circuit was asked to consider the common law factors of
employment status in regard to a worker who had made a Title VII (sexual discrimination) claim.
The appellate court observed, however, that it need not engage in such an analysis because of
"the antecedent question of whether O'Connor was hired by [the defendant] for any purpose."
ld. at 115 (emphasis and clarification added). The appellate court stated:
"courts turn to common-law principles to analyze the character of an economic
relationship:
'only in situations that plausibly approximate an employment relationship.' Graves v. Womens' Prof'l Rodeo Assoc., 907 F.2d 71, 74 (8th Cir. 1990). Where no financial benefit is obtained by the purported employee from the employer, no 'plausible' employment relationship of any sort can be said to exist because although (compensation by the putative employer to the putative employee in exchange for his services is not a sufficient condition, ... it is an essential condition to the existence of an employer-employee relationship."
O'Connor, 126 F.3d at 115-116 (emphasis added, citations omitted).
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Pursuant to this line of authority, the Second Circuit held that the “preliminary
question of remuneration" was dispositive of the case, and that because the plaintiff had never
received any salary or other wages from the alleged employer, she could not be held to be an
employee of the defendant. Id. at 116. The exact same conclusion should be reached here.
O'Connor was a decision that evaluated an employment relationship in the context
of the "common law" factors as are generally found in the Restatement (Second) of Agency,§
220. In addition, a more restrictive test for evaluating employment status, known as the
"economic reality test," is used for determining employment status under the FLSA. For a
comparison of these two standards, see, e.g., Oregon v. Acropolis Mclaughlin, Inc., 150 Or.
App. 180 (1997), on reconsideration. Regardless, however, cases cited in the O'Connor
decision, as well as others, establish beyond any question that lack of payment by the alleged
employer precludes a finding of employee status under either the common law or the more
restrictive economic reality test.
Cases holding that lack of remuneration bars a finding of employment in the more
restrictive economic realities context include Neff v.Civil Air Patrol, 916 F. Supp. 710, 711-715
(S.D. Ohio 1996) (in a Title VII case, the court, in utilizing the economic realities test,
concluded that the plaintiff could not be found to be an employee as a matter of law and that
the plaintiff had not produced any evidence that could lead a "reasonable juror to conclude that
she worked in expectation of compensation") (emphasis added); Tadros v.Coleman, 717 F.
Supp. 996, 1002-1006 (S.D.N.Y. 1989) (a person who is not paid for services is not
"economically dependent on the business to which [they] render [ ] service," and therefore is
not within the definition an employee under the economic realities test ) aff'd, 898 F.2d 10 (2d
Cir. 1990), quoting Doty v.Elias, 733 F.2d 720,722-723 (10th Cir. 1984); Graves v. Woman's
Professional Rodeo Assoc.,Inc., 907 F.2d 71, 72-74 (8th Cir. 1990). Further, cases directly
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under the FLSA are no different. See, e.g., Patel v. Wargo, 803 F.2d 632, 635 (11th Cir. 1986)
(no employment relationship as there was no evidence that the plaintiff "contemplated
compensation for his acts"); Villarreal v. Woodham, 113 F.3d 202, 205 (11th Cir. 1997) ("in
general, work constitutes employment when there is an expectation of in-kind benefits in
exchange for services") (emphasis added); and Walling v.Nashville Chattanooga & St. Louis
Ry., 60 F. Supp. 1004, 1007 (D. Tenn. 1945), aff'd, 155 F.2d 1016 (6th Cir. 1946), 329 U.S.
696 (1946),and 330 U.S. 158 (1947) (payment of wages is "one of the indicia of a contract of
employment).
As the Supreme Court noted in consideration of the definition of "employee" as set
forth in the FLSA, that definition was"... obviously not intended to stamp all persons who,
without any express or implied compensation agreement, might work for their own advantage
on the premises of another." Walling v. Portland Terminal Co., 330 U.S. 148, 152 (1947)
(emphasis added). This issue was clarified by the decision of the Supreme Court in Tony and
Susan Alamo Foundation v. Sec. of Labor, 471 U.S. 290 (1985). At issue there were alleged
volunteer "associates" of an evangelical foundation. These workers received "no cash salaries,
but the Foundation provide[d] them with food, clothing, shelter and other benefits." ld. at 292.
The Court began its analysis by observing that the question of whether the FLSA
protections applied to the "associates" was governed by a two-step analysis. First, the Court
had to determine if the workers or the business "enterprise" was, engaged in interstate
commerce. ld. at 295 & n. 8. Second, the compensation by the putative employer to the
putative employee in exchange for his services is not a sufficient condition, "it is an essential
condition to the existence of an employer-employee relationship," and that the court will use
the economic realities test "only in situations that plausibly approximate an employment
relationship"- since there was no payment in the case at bar, the court did not utilize the
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economic realities test because the relationship did not "make it past this first cut'') (emphasis
added); and Smith v. Berks Community Television, 657 F. Supp. 794-796 (E.D. Penn. 1987)
("control" in the relationship was not dispositive in evaluating economic dependence in a Title
VII claim in order to determine whether the worker was an employee or an independent
contractor, as the worker must be "paid by" the alleged employer, which was not the case
there, and therefore no employment relationship could be found) (emphasis in original).
Associates must be found to be "employees" within the meaning of the act. ld. at 295. In
regard to this latter (and, more importantly, dispositive) issue, the Court noted:
"An individual who, 'without promise or expectation of compensation, but
solely for his personal purpose or pleasure, worked in activities carried on by
other persons either for their pleasure or profit,' is outside the sweep of the Act."
Id. (emphasis added), citing Walling, 330 U.S. at 152.
Thus, the Supreme Court concluded that the question of whether or not the associates
received remuneration would be dispositive of the question of whether those workers were
covered by the protections of the FLSA, which were "only those who engage in those activities
in expectation of compensation." 471 U.S. at 302 (emphasis added).
Finally, numerous federal decisions have verified that adult entertainment clubs need
not categorize entertainers as employees for tax and withholding purpose. In the few cases of
which counsel is aware where the IRS had determined that such entertainers were employees
and where the IRS had then ruled that the clubs were required to pay employment taxes, the
federal courts reviewing those determinations have uniformly reversed them. DeJa Vu
Entertainment Enterprises of Minnesota, Inc.v. United States, 1 F. Supp. 2d 964 (D. Minn.
1998), Taylor Blvd.Theatre, Inc. v. United States, 1998 WL 375291, (W.O. Ky.); Marlar,
Inc.v.United States, 151 F.3d 962, 968 (9th Cir. 1998).
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VII. The Responding Parties Conduct Can Not be Shown To Be Retaliatory
For purposes of this motion, the question of whether Plaintiffs are likely to succeed on
the merits of her claim should be solely limited to the merits of their isolated and bogus
retaliation claim. The issue of whether Ms. Rede, the only person complaining of any issue (in
contrast to the voluminous Declarations in Exhibt G, specifying otherwise) was an independent
contractor or an employee in the past relates only to any claims for “back damages” that may be
requested in an operative Complaint. Neither the Responding Parties, nor anyone related to them,
has taken any retaliatory action against Ms. Rede or anyone.
The Plaintiff's retaliation claim fails as a matter of law because she cannot demonstrate
causation or, "but for" her engagement in a protected activity; she would have been subjected
to the injuries alleged. "In demonstrating causation, the plaintiff must prove that the adverse
action would not have been taken 'but for' the assertion of FLSA rights." Wolf v. Coca-Cola
Co., 200 F.3d 1337, (11th Cir. 2000) (emphasis added). See also, e.g., Conner v. Schnuck
Markets, Inc., 121 F.3d 1390, 1398-1399 (10th Cir. 1997); Knickerbocker v. City of Stockton,
81 F.3d 907, 911 (9th Cir. 1996); and Brock v. Casey Truck Sales, 839 F.2d 872, 877-78 (2nd
Cir. 1988). In the instant action, no one knew that Ms. Rede had “opted in” to the suit, and
there was no knowledge that she did not want to define her apparently longstanding
relationship with the Club consistently with the “meeting of the minds” long embraced by both
sides as the true classification of he relationship.
Here, neither Ms. Rede nor any Plaintiff ever complained about their non-employee
status to management prior to instituting the litigation. Prior to filling her Complaint, no one
had expressed any desire to be treated as an employee to any member of management.
Instead and quizzically, that desire was first communicated by way of Plaintiff's Class Action
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I
Complaint. However, filing that Complaint was completely unnecessary. No Plaintiff needed
to assert any FLSA rights to obtain employee status. They only needed to make the free
election provided to them and every other current and prospective performer choosing that
classification on the subject documents. The employee status they received was exactly the
same as is available to every performer at the Club. Providing Plaintiffs with exactly what they
requested in accordance with generally applicable preexisting standards is not discrimination,
is not retaliation and cannot be construed as such.
In order to prevail on a retaliation claim, Plaintiff must demonstrate that the change in
the terms of her employment would be "materially adverse." EEO v. SunDance Rehabilitation
Corp., 466 F.3d 490, 501 (6th Cir. 2006). Nevertheless, Plaintiff has failed to make this
required showing. Plaintiffs will not be subject to any significant change in any responsibilities
until their employment status is finally determined by the court. Specifically, no one be
required to mop the floors or conduct any degrading activities, not has that ever occurred.
Plaintiffs have failed to demonstrate that any change in remuneration would constitute a
"material loss of benefits." SunDance, 466 F.3d at 501-502. Any performer opting to be an
employee would still be allowed to keep all the tips they receive from performing on stage and
tips received in excess of the dance fees that may be charged by the Club for private dances. In
addition, she would receive pay, just as any other tipped employee.
The standard employee working conditions as chosen by any Plaintiff will not and
cannot rise to the "objectively intolerable" standard cited by Plaintiffs counsel. In particular, it
cannot be said that such conditions would be "so difficult or unpleasant that a reasonable
person in [his] shoes would have felt compelled to resign." Furthermore, any performer that
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elected to be an employee would receive the same employee opportunities and benefits in
exactly the same way as that given to every other employee at any Club.
The claims about retaliation by any Responding Party by terminating opt-in Plaintiff
Claudia Rede for refusing to sign documents that affected her rights under the FLSA are pure
fiction. There was no conditioning continued employment on the signing the Contract and
Space Lease, and, any claim that these “documents (are) void under the law because they
waive aspects of Plaintiffs' claims” has been addressed, and vitiated, by the offer to jointly
notify every performer that signed any component of the subject documents that, should they
wish, they, individually, have the option to eliminate any agreement to arbitrate or waive
participation in any “class action.” This remedial remedy does more than embrace the
“responsibility of the Court to safeguard the rights of class members in collective actions.” See
Hoffman-LaRoche v. Sperling, 493 U.S. 165, 171 (1989). This offer obviates any allegation
that, “It would have been improper for Jaguars to discourage putative class members from
joining this suit even based on truthful statements, but doing so in the middle of the night
under hostile circumstances based on false statements is outrageous,” which never happened,
under any circumstances.
Critically, under no circumstance should this Court enjoin “Defendants” from any
further distribution of the Contract agreement,” since the relief requested, i.e. the
“classification” as “employee,” is given, freely, to every potential performer. A list of every
performer who signed any “Contract and Lease Space agreement,” as well as with a list of all
individuals to whom the unsigned Contract was distributed can be shared with the Court and
with Plaintiffs, and the truth of what was explained and what was decided by each individual
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performer, not the fictional account of what one inebriated dancer foist into the forefront to
enflame the Court, can be determined. If any remedy is needed, it is the fair offer of allowing
each and every performer to decide for herself whether to embrace the terms and conditions
of every “contract,” or, as offered herein, ignore any arbitration clause or waver of class
action and “jump right in.”
VIII. From the Most Expansive View Of the Remaining Criteria Governing the Granting of
Injunctive Relief, Plaintiffs have Not Established Any Such Right
A. Plaintiffs Have Not Shown “Irreparable Harm.”
In general, to obtain a preliminary injunction, the injury that would result in the absence
of the injunction must be irreparable, not merely substantial. See Sampson v. Murray, 415 U.S.
61, 90 (1974). "A plaintiff's harm is not irreparable if it is fully compensable by money
damages." Basicomputer Corp. v. Scott, 973 F.2d 507, 511 (6th Cir.1992), see Cellnet
Communications, Inc. v. New Par, 291 F.Supp.2d 565 (E.D.Mich.,2003). First, lost wages, even
those resulting in financial hardship, are not irreparable harm. See, e.g., Teamsters Local Union
299 v. U.S. Truck Co. Holdings, Inc., 87 F.Supp.2d 726, 736-737 (E.D.Mich. 2000) (citing
Aluminum Workers Intern. Union v. Consolidated Aluminum Corp., 696 F.2d 437, 443 (6th
Cir. 1982)). Second, upon information and belief, any performer may perform as an entertainer at
another gentlemen's club in the world, a feature exploited and enjoyed by many. It is
disingenuous to claim that Plaintiffs also complaint that any “mandatory fees” set by the club
and collected from the patron before the customer may enter the private dance section of the club
and before the dance may begin somehow limits a dancer’s “control.” As a general principle,
fees for services performed by an employee pursuant to the employment relationship are
included in the gross receipts of the employer and not the employee, and taxed
accordingly. See Rev. Rul. 65-282, Rev. Rul. 58-220, and Rev. Rul. 58-515. Further, treating
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a mandatory and fixed fee collected before the service begins as a "tip," contravenes the
Internal Revenue Services longstanding definition of the term:
To constitute a "tip" in the commonly accepted meaning of the term, it is
inherent in the nature thereof that certain fundamental characteristics be present.
It must be presented by the customer free from compulsion; he must have the
unrestricted right to determine the amount thereof; and such amount should not
be subject of negotiation or dictate by employer policy. .. . The absence of any of
these factors creates a serious doubt as to whether the payment is really a tip
and indicates that it in fact a service charge for the use of certain facilities."
Rev. Rul. 59-2525 (emphasis added).See also, Mechmet v. Four Seasons Hotels, Ltd., 825F.2d
1173, 1177 (7th Cir. 1987) ("The plaintiffs concede that the service charge is not a tip, since it
is not discretionary with the customer."); and U.S. v. Indianapolis Athletic Club, Inc., 818
F.Supp. 1250, 1253 (S.D. Ind. 1993) ("The discretion to refuse payment is an essential element
of a tip or gratuity.")
If there is a “mandatory dance fee” set by the Club, this would be incompatible
with all the "fundamental characteristics" of a tip. First, the customer must pay the fee before
receiving a private dance, making the fee truly compulsory. The customer has no input in the
price of the dance. However, customers can (and do) freely give the performer a true tip, in any
amount, in addition to the dance fee, depending on his or her appreciation of the dance
performed.
The situation is wholly unlike that in Reich v. Priba Corp., 890 F.Supp. 586 (N.D.Tex.
1995), where the dancer and the club entered into an agreement that expressly stated the club
"shall have no right to any portion of cash sales or tips received." ld. at 595. In fact, this
situation is unlike almost all of the cases cited in Plaintiff's’ brief, as here performers are now
given a choice of electing between the well-defined options of performing as “lessees,” or
employees.
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In this case, any mandatory dance fees are undoubtedly service fees that become part of
the club's gross receipts. In Matson v. 7445, Inc., 2000 WL 1132110 (D. Or. Jan 14, 2000), the
court recognized that, even under the Federal Regulations cited by the ABC York-Estes Corp.
court, mandatory dance fees charged by a club are undoubtedly service charges belonging to the
club. ("These definitions make it abundantly clear that the fixed fees collected by the [dancer]
in exchange for table dances are not 'tips."' Also noting, "in addition to these fixed fees, it is
true that the plaintiff received actual 'tips' from [the club's] patrons.") (clarification and
emphasis added). Based on the offer to allow any signatory of the “Contract” to extinguish any
agreement to arbitrate, or any waiver of any class action, the fact remains that the Plaintiffs, if
they prevail, are entitled ONLY to damages, so their injury is entirely monetary, and Plaintiffs
are not entitled injunctive relief.
B. Issuing an Injunction Will Undoubtedly Harm “Defendants,” and Others
The other performers who entertain patrons at any relevant Club are “lessees.” They
choose their basic schedules (subject to “minimum lease reservations”); they determine their
own costumes and make up; they choose their own stage names and stage personas; they
choose their own dance routines; they are free to refuse to perform for certain patrons; they are
free to develop and exploit their own fan base, including fan club activities, web page sites and
the like; they are free to perform at other clubs and venues. To grant the relief requested by
Plaintiffs would create havoc and, especially based on the offer made by the Responding
Parties to vitiate any agreement to arbitrate or any waiver of the ability to participate in any
class action, there is simply no need for any injunctive relief.
C. The Public Interest will be Harmed by Issuance of a Preliminary Injunction.
As shown above, the other performers who perform at the Club will be harmed by the
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issuance of a preliminary injunction as requested by the Plaintiffs. As shown by the
Declarations in Exhibit G, the dancers who perform at the Club have been doing so pursuant to
written contracts (the Entertainer Application and Dancer Performance Lease) that render them
“lessees.” To issue an injunction that would invalidate those contracts would be contrary to the
public interest. Indeed, the public has an interest in enforcing contracts and unless courts
enforce the terms of those contracts it will be undermining the legitimate business
expectations, not only of the parties to the particular litigation, but of all contracting parties. "It
is the knowledge that valid and enforceable contracts will be enforced in courts of competent
jurisdictions which allows our competitive marketplace to thrive. Without such a rule of law,
parties could not rely on contracts to conduct their affairs." Merrill Lynch, Pierce, Fenner &
Smith Inc. v. Ran, 67 F.Supp.2d 764,781, (E.D.Mich. 1999). If this Court were to issue the
preliminary injunction as requested by the Plaintiffs here, it would essentially invalidate all of
the other contracts with all of the other performers who currently perform at any related Club,
against the wishes of those performers. Such an action cannot be in the public interest.
CONCLUSION
The “Defendants,” described herein as “Responding Parties,” since the actual named
Defendants are simply not properly named in this action, respectfully request that this
Honorable Court deny Plaintiffs’ Emergency Motion for Preliminary and Permanent
Injunction, in its entirety, and grant the Responding Parties their costs in defending this
motion.
Case 3:11-cv-02743-O Document 20 Filed 12/12/11 Page 44 of 45 PageID 238
Dated: December 12, 2011
Respectfully submitted,
/s/ Roger Albright, Esq /s/ Luke Lirot, Esq.
Roger Albright Luke Lirot
Texas Bar No. 009 745 80 Florida Bar No. 714836
Law Offices of Roger Albright Law Offices of Luke Lirot, P.A.
3301 Elm Street 2240 Belleair Road, Suite 190
Dallas, Texas 75226-2562 Clearwater, Florida 33764
T (214) 939-9224 T (727) 536-2100
F (214) 939-9229 F (727) 536-2110 Email: [email protected] Email: [email protected]
Subject to Admission Pro Hac Vice
CERTIFICATE OF SERVICE
I certify that this document was served on all parties via the Northern District’s
CM/ECF system on December 12, 2011 to the following parties:
Galvin B. Kennedy
State Bar No. 00796780
711 W. Alabama St.
Houston, TX 77006
Telephone: (713) 523-0001
Facsimile: (713) 523-1116
Ricardo J. Prieto
State Bar No. 24062947
KENNEDY HODGES, L.L.P.
711 W. Alabama St.
Houston, TX 77006
Telephone: (713) 523-0001
Facsimile: (713) 523-11
/s/ Roger Albright, Esq
Roger Albright
Texas Bar No. 009 745 80
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