Case 1:14-cv-10464-DPW Document 11 Filed 04/29/14 Page 1 of 7

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

RAFAEL BROOKS, Plaintiff, v. DELEGAS BROTHERS, INC., NICHOLAS DELEGAS, and GEORGE DELEGAS, Defendants.

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C.A NO. 1:14-cv-10464-DPW

DEFENDANTS’ ANSWER TO FIRST AMENDED COMPLAINT AND JURY DEMAND Defendants in the above-referenced matter, Delegas Brothers, Inc. (“DBI”) Nicholas Delegas and George Delegas (collectively the “Defendants”) hereby collectively answer the numbered paragraphs of the “First Amended Complaint and Jury Demand” (the “Complaint”), filed by the plaintiff Rafael Brooks (“Brooks” or the “Plaintiff”), by the corresponding numbered paragraphs set forth below. INTRODUCTION The Introduction of the Complaint purports to summarize the Plaintiff’s allegations against the Defendants and consists primarily of legal arguments and conclusions of law that require no answer. To the extent any answer is required, Defendants deny the factual allegations contained in this paragraph. JURISDICTION AND VENUE 1.

Paragraph 1 of the Complaint purports to set forth the Plaintiff’s jurisdictional

grounds for pursuing this matter in this Court and consists primarily of legal arguments and

Case 1:14-cv-10464-DPW Document 11 Filed 04/29/14 Page 2 of 7

conclusions of law that require no answer. To the extent any answer is required, Defendants deny the factual allegations contained in this paragraph. 2.

Paragraph 2 of the Complaint purports to set forth the Plaintiff’s venue forum

grounds for pursuing this matter in this Court and consists primarily of legal arguments and conclusions of law that require no answer. To the extent any further answer is required, Defendants deny the factual allegations contained in this paragraph. PARTIES 3.

Defendants are without specific knowledge or information sufficient to form a

belief as to the truth of the allegations contained in this paragraph regarding Brooks’ legal name. Defendants admit that Brooks worked at Demos Restaurant in Waltham, Massachusetts. During all times relevant to this action, Brooks was a manager who was exempt from overtime laws. Defendants deny the remaining allegations contained in this paragraph. 4.

Defendants admit that DBI owns two restaurants in Waltham and Watertown (the

“Restaurants”) and that it has a place of business at 64 Mt. Auburn Street, Watertown, MA 02472. Defendants deny the remaining allegations contained in this paragraph. 5.

Paragraph 5 of the Complaint consists primarily of legal arguments and

conclusions of law that require no answer. To the extent any further answer is required, Defendants deny the factual allegations contained in this paragraph. 6.

Paragraph 6 of the Complaint consists primarily of legal arguments and

conclusions of law that require no answer. To the extent any further answer is required, Defendants deny the factual allegations contained in this paragraph. 7.

Defendants admit the allegations contained in this paragraph.

8.

Defendants admit the allegations contained in this paragraph.

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FACTS 9.

Defendants admit that Brooks was a long-tenured employee who voluntarily

resigned his Restaurant employment in October, 2013. Defendants deny the remaining allegations contained in this paragraph. 10.

Defendants admit that Brooks was typically paid his salary in cash. Defendants

deny the remaining allegations contained in this paragraph. 11.

Defendants deny the allegations contained in this paragraph.

12.

Defendants deny the allegations contained in this paragraph.

13.

Defendants deny the allegations contained in this paragraph.

14.

Defendants admit the allegations contained in this paragraph.

15.

Paragraph 15 of the Complaint consists primarily of legal arguments and

conclusions of law that require no answer. To the extent any further answer is required, Defendants deny the factual allegations contained in this paragraph. COLLECTIVE ACTION ALLEGATIONS 16.

Defendants incorporate by reference all prior responses to the Plaintiff’s

Complaint. 17.

Paragraph 17 of the Complaint consists primarily of legal arguments and

conclusions of law that require no answer. To the extent any further answer is required, Defendants deny the factual allegations contained in this paragraph. 18.

Paragraph 18 of the Complaint consists primarily of legal arguments and

conclusions of law that require no answer. To the extent any further answer is required, Defendants deny the factual allegations contained in this paragraph.

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19.

Paragraph 19 of the Complaint consists primarily of legal arguments and

conclusions of law that require no answer. To the extent any further answer is required, Defendants deny the factual allegations contained in this paragraph. 20.

Paragraph 20 of the Complaint consists primarily of legal arguments and

conclusions of law that require no answer. To the extent any further answer is required, Defendants deny the factual allegations contained in this paragraph. 21.

Paragraph 21 of the Complaint consists primarily of legal arguments and

conclusions of law that require no answer. To the extent any further answer is required, Defendants deny the factual allegations contained in this paragraph. 22.

Paragraph 22 of the Complaint consists primarily of legal arguments and

conclusions of law that require no answer. To the extent any further answer is required, Defendants deny the factual allegations contained in this paragraph. COUNT I Fair Labor Standards Act, 29 U.S.C. § 207 et seq. 23.

Defendants incorporate by reference all prior responses to the Plaintiff’s

Complaint. 24.

Paragraph 24 of the Complaint consists primarily of legal arguments and

conclusions of law that require no answer. To the extent any further answer is required, Defendants deny the factual allegations contained in this paragraph. 25.

Defendants deny the allegations contained in this paragraph.

26.

Defendants deny the allegations contained in this paragraph.

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COUNT II Mass Wage Act, Mass General Laws. c. 149, §§ 148. 150 27.

Defendants incorporate by reference all prior responses to the Plaintiff’s

Complaint. 28.

Paragraph 28 of the Complaint consists primarily of legal arguments and

conclusions of law that require no answer. To the extent any further answer is required, Defendants deny the factual allegations contained in this paragraph. 29.

Defendants deny the allegations contained in this paragraph.

30.

Defendants deny the allegations contained in this paragraph. COUNT III Unjust Enrichment

31.

Defendants incorporate by reference all prior responses to the Plaintiff’s

Complaint. 32.

Defendants deny the allegations contained in this paragraph. COUNT IV Misclassification Per Mass Gen. Law c. 149 § 148B

33.

Defendants incorporate by reference all prior responses to the Plaintiff’s

Complaint. 34.

Defendants deny the allegations contained in this paragraph.

35.

Defendants deny the allegations contained in this paragraph.

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AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE Plaintiff has failed to state a claim upon which relief may be granted. SECOND AFFIRMATIVE DEFENSE Plaintiff is barred from asserting his claim against the Defendants as the Defendants are not subject to the requirements and provisions of the Fair Labor Standards Act 29 U.S.C. § 207. THIRD AFFIRMATIVE DEFENSE Plaintiff is barred from asserting his claim against the Defendants as the Defendants are not subject to the requirements and provisions of the Massachusetts Overtime Laws and/or Massachusetts Wage Act. FOURTH AFFIRMATIVE DEFENSE Plaintiff has failed to satisfy statutory prerequisites to prosecuting some or all of his claims in this Court. FIFTH AFFIRMATIVE DEFENSE Plaintiff is completely barred from recovering certain alleged damages in this matter as he was and remains an illegal resident in the United States and therefore was and remains unable to legally work in the United States. SIXTH AFFIRMATIVE DEFENSE Plaintiff is barred by the Statute of Frauds from obtaining any of the relief sought. EIGHTH AFFIRMATIVE DEFENSE Plaintiff is completely barred from any relief in this matter sought on behalf of any “class” of persons as he lacks standing to assert any of the rights he purports to assert against the Defendants in this matter on behalf of any other person or entity.

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NINTH AFFIRMATIVE DEFENSE Plaintiff is completely barred from any relief in this matter sought on behalf of any “class” of persons as he cannot meet the commonality, numerosity or other requirements necessary to sustain a class or collective action. TENTH AFFIRMATIVE DEFENSE There is no “Misclassification” cause of action available to the Plaintiff. DEFENDANTS DEMAND A TRIAL BY JURY ON ALL ISSUES SO TRIABLE. Respectfully submitted, Delegas Brothers, Inc., Nicholas Delegas and George Delegas By their attorneys,

/s/ John F. Tocci John F. Tocci, Esq., BBO# 562139 Cary Gianoulis, Esq., BBO# 649900 Tocci & Lee, LLC 85 Devonshire St., 10th Floor Boston, MA 02109-3572 (617) 542-6200 (617) 542-6201 (fax) [email protected] [email protected] Dated: April 29, 2014 CERTIFICATE OF SERVICE I hereby certify that Defendants’ Answer to First Amended Complaint and Jury Demand, filed through the ECF system will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF) and paper copies will be sent to those indicated as non registered participants on the 29th day of April, 2014.

/s/ John F. Tocci John F. Tocci

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