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UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF FLORIDA 

CASE NO. 20-CV-23191-WPD 

LOUIS A. HERRERA, 

Plaintiff, 

v. 

CITY OF HIALEAH, FLORIDA, 

Defendant. 

/ 

DEFENDANT’S ANSWER AND 

AFFIRMATIVE DEFENSES TO FIRST AMENDED COMPLAINT 

Defendant, CITY OF HIALEAH, FLORIDA (“City”), through its counsel, BRYANT 

MILLER OLIVE P.A., hereby files this Partial Answer And Affirmative Defenses To First 

Amended Complaint and further states as follows: 

PARTIES 

1. Admitted. 

2. Admitted. 

JURISDICTION AND VENUE 

3. Admitted. 

4. Admitted that the Court has subject matter jurisdiction over claims under USERRA, 

but denied that there is any basis for the invocation of such jurisdiction. 

5. All claims in the First Amended Complaint (hereinafter, “Complaint”) are federal 

claims and, therefore, there is no basis for an exercise of supplemental jurisdiction and, therefore, 

denied. 

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6. Admitted. 

FACTS 

7. Legal argument to which no response is required, therefore denied. 

8. Legal argument to which no response is required, therefore denied. 

9. Legal argument to which no response is required, therefore denied. 

10. Legal argument to which no response is required, therefore denied. 

11. The City is without sufficient knowledge to admit or deny the allegations of 

paragraph number 11 of the Complaint and, therefore, denies them. 

12. The City is without sufficient knowledge to admit or deny the allegations of 

paragraph number 12 of the Complaint and, therefore, denies them. 

13. Denied. 

14. The City avers that Plaintiff was hired on October 22, 2001, and has been employed 

since that time. 

15. Denied that Plaintiff has applied for the position of sergeant three times. The City 

avers that Plaintiff took a promotional examination in 2014 to determine eligibility for sergeant 

and was placed on that list in rank order according to his scores and additional point factors, if any. 

Individuals were promoted from that list to sergeant during its pendency. Plaintiff was not 

promoted from that list. The second sentence is denied. 

16. Denied that Plaintiff applied for the position of sergeant on the dates listed in 

paragraph 16 of the Complaint. The City avers that Plaintiff took the promotional examination to 

determine eligibility for sergeant and was placed on that list in rank order according to his scores 

and additional point factors, if any. Individuals were promoted from that list to sergeant during its 

pendency. Plaintiff was not promoted from that list. 

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17. Admitted 

18. Denied that Plaintiff scored well. Denied that his initial ranking was within the top 

three scorers. The identities of the “other two (2) candidates” is unknown, as is their placement or 

Plaintiff’s within the “top three,” and, therefore, the allegations of the second sentence are denied. 

19. Denied. 

20. Denied. 

21. Admitted that Plaintiff was awarded the Gold Medal of Valor in 2013, along with 

many other members of the SWAT team active for a July 2013 incident involving a shooting. 

Admitted that Plaintiff has received positive evaluations for those periods when he could be 

evaluated. Averred that for at least two evaluation periods, no evaluation was completed because 

of Plaintiff’s absences. 

22. Denied that Plaintiff’s record is “exemplary.” As to “negative evaluation[s],” see 

response to paragraph 21 of the Complaint. 

23. Admitted. 

24. Admitted that Plaintiff applied for some positions. Averred that he was approved 

for some and not approved for others. Admitted that he applied for the Community Response 

Team, SWAT sniper. Without sufficient knowledge, so denied that he applied for SWAT rappel 

master. Denied that he was rejected “despite his exemplary employment record, and approval by 

other members in within the Hialeah Police Department.” 

25. Admitted that Plaintiff applied for some positions. Averred that he was approved 

for some and not approved for others. Therefore, denied that “each time his request has been 

denied.” 

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26. Admitted that in 2011, under a previous Chief Police, a single oral request was 

made for Plaintiff to assist another agency’s task force and was disapproved. Averred that any such 

request has been made since 2012 and, therefore, the balance of the allegations of paragraph 

number 26 of the Complaint, including the footnote, are denied. 

27. Legal argument to which no response is required, therefore denied. 

28. Denied. 

29. Denied. 

30. Admitted that Plaintiff has participated in numerous military deployments. Without 

information regarding whether those deployments involved “special operations,” therefore denied. 

31. Legal argument to which no response is required, therefore denied. The City avers 

that it has at all times conducted itself in compliance with the law. 

32. Legal argument to which no response is required, therefore denied. The City avers 

that it has at all times conducted itself in compliance with the law. 

33. Denied. 

34. Denied. 

35. Denied. 

36. Denied. 

37. Denied. 

38. Denied. 

39. The allegations contained in paragraph 39 are incomprehensible and, therefore, are 

denied. 

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COUNT I 

DISCRIMINATION IN VIOLATION OF 38 U.S.C. § 4311(a) 

40. In response to the allegations contained in paragraph 40 of the Complaint, the City 

incorporates its responses to paragraphs 1-39 as if fully set forth here. 

41. Denied. 

42. Denied. 

COUNT II 

WILLFUL VIOLATION PURSUANT TO 38 U.S.C. § 4323(d)(1)(C) 

43. In response to the allegations contained in paragraph 40 of the Complaint, the City 

incorporates its responses to paragraphs 1-39 as if fully set forth here. 

44. Denied. 

PRAYER FOR RELIEF AS TO COUNTS I AND II 

45. The allegations contained in paragraph 45 of the Complaint are legal argument to 

which no response is required and are, therefore, denied. 

45.a. The City denies the allegations of subparagraph 45.a. of the Complaint and 

avers that there is no basis to award Plaintiff any relief whatsoever. 

46. The allegations contained in paragraph 46 of the Complaint are legal argument to 

which no response is required and are, therefore, denied. 

47. The City denies the allegations of paragraph 47 and its subparts a. through e., 

inclusive, of the Complaint and avers that there is no basis to award Plaintiff any relief whatsoever. 

48. The City denies the allegations of paragraph 48 and its subparts a. through g., 

inclusive, of the Complaint and avers that there is no basis to award Plaintiff any relief whatsoever. 

The City avers that the relief requested under paragraph 48.c. is contrary to Florida law, which 

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prohibits the destruction of public records other than according to a state-mandated retention 

schedule. 

DEMAND FOR JURY TRIAL 

In response to the allegations contained in the unnumbered paragraph titled “Demand for 

Jury Trial” of the Complaint, the City admits that a jury trial is demanded, but denies that there is 

any basis for a trial, whether before a jury or a judge. 

49. The City denies any allegation of the Complaint not specifically admitted herein. 

The City reserves the right to amend this Answer and Affirmative Defenses based on the 

development of any fact or legal theory that arises during the course of the litigation. 

50. Having responded to all allegations of the Complaint, aside from those addressed 

in the City’s Motion to Dismiss, the City hereby asserts the following Defenses and Affirmative 

Defenses: 

DEFENSES AND AFFIRMATIVE DEFENSES 

1. Res Judicata, Claim Preclusion, Waiver. Plaintiff’s claims are barred by the 

doctrines of res judicata, claim preclusion, or waiver, inclusive. Plaintiff previously filed a lawsuit 

against the City based on the same evidence and facts. The court granted the City’s Motion to 

Dismiss the lawsuit after Plaintiff failed to respond. See Herrera v. City of Hialeah, No. 17-23599 

(S.D. Fla. May 9, 2018) (Order adopting Report and Recommendation of Magistrate Judge and 

dismissing case). 

2. Laches. Plaintiff’s claims are barred by the doctrine of laches. The alleged 

adverse actions occurred four and five years ago. Plaintiff has sat on his rights. The City has offered 

multiple examinations for the position of police sergeant and has made multiple promotions to 

police sergeant from the resulting eligibility lists while Plaintiff has stood by silently, until, 

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possibly, the very most recent test administration. The City has been prejudiced by Plaintiff’s 

inaction. 

3. Failure to State Claim. The Complaint fails to state a claim for relief as to 

any claim addressed herein. 

4. No Prima Facie Case. Plaintiff cannot state a prima facie case. Plaintiff 

cannot show that any adverse action by the City toward him was based on or because of his military 

membership, obligation, or status of any kind whatsoever or that such was the or a motivating 

factor in such action. 

5. No Adverse Action. Plaintiff cannot show that any adverse action that would 

violate USERRA was taken toward him. To the extent that other employees were promoted instead 

of Plaintiff, such promotions were done in accord with neutral selection policies provided for by 

written policy, because the chosen applicants were more qualified than he, or because he was not 

eligible for promotion in any particular case. 

6. No Claim. Count II fails to state a claim because 38 U.S.C. § 4323(d)(1)(c) 

does not provide a standalone claim. That provision provides for liquidated damages in an 

appropriate case. To the extent Count II is treated as a standalone claim, it is wholly dependent on 

and derivative of the claim attempted to be stated in Count I and, if Count I fails, Count II must 

fail as well. 

7. Not Willful. The City did not know and did not show reckless disregard as to 

whether its conduct was prohibited by USERRA. 

8. Taken in the Absence. All actions complained of would have been taken in 

the absence of Plaintiff’s membership in the military or obligation for military service. 

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9. Failure to Mitigate. Plaintiff has failed to mitigate his damages. The City has 

offered multiple examinations for the position of police sergeant and has made multiple 

promotions to police sergeant from the resulting eligibility lists. Plaintiff did not seek to take those 

examinations or make himself eligible for promotion to sergeant until, possibly, the very most 

recent test administration. As such, Plaintiff failed to take action that could have resulted in his 

promotion and a cutoff of damages from events allegedly occurring in 2015 or 2016. 

WHEREFORE, having answered all allegations of the claims addressed herein and 

having asserted the foregoing defenses and affirmative defenses, and having filed a Motion to 

Dismiss as to the claim not addressed herein, the City respectfully requests that the Complaint be 

dismissed with prejudice in its entirety. 

BRYANT MILLER OLIVE P.A. 

One S.E. Third Avenue, Suite 2200 

Miami, Florida 33131 

(305) 374-7349 (Telephone) 

(305) 374-0895 (Fax) 

By: /s/David C. Miller 

David C. Miller (FL Bar No. 147427) 

dmiller@bmolaw.com

Ranjiv Sondhi (FL Bar No. 105581) 

rsondhi@bmolaw.com

Counsel for Defendant 

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CERTIFICATE OF SERVICE 

I HEREBY CERTIFY that a true and correct copy of the foregoing was served 

electronically through the Clerk of the Court by using the CM/ECF system, on this 15th day of 

September, 2020, on all counsel or parties of record on the Service List below. 

/s/David C. Miller 

David C. Miller 

SERVICE LIST

Anthony J. Perez, Esquire 

Florida Bar No. 535451 

Beverly Virues, Esquire 

Florida Bar No. 123713 

Garcia-Menocal & Perez, P.L. 

4937 SW 74th Court, No. 3 

Miami, Florida 33155 

(305) 553-3464 (Telephone) 

(305) 553-3031 (Fax) 

ajperezlaw@gmail.com

bvirues@lawgmp.com

aquezada@lawgmp.com

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