IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

BRAD KLINGE,

Plaintiff,

v.

KBL ASSOCIATES, LLC, and

KIMBERLY LEATHERWOOD

Defendants.

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Civil Action No. 5:20-cv-00470

JURY DEMANDED

DEFENDANT KBL ASSOCIATES LLC’S ANSWER AND AFFIRMATIVE 

DEFENSES TO PLAINTIFF’S COMPLAINT AND COUNTERCLAIMS

Defendant KBL Associates LLC (“Defendant” or “KBL”), improperly 

named as “KBL Associates, LLC”, answers Plaintiff Brad Klinge’s (“Plaintiff”) 

Complaint as follows, and asserts the following affirmative defenses and 

counterclaims:

INTRODUCTION

1. Defendant admits that Plaintiff brings this action under the Fair Labor 

Standards Act (“FLSA”) but denies that it is in any way liable to Plaintiff under 

that statute or any other theory of law.

2. Denied.

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3. Defendant admits that Plaintiff also brings this action under the Texas 

Labor Code § 61.014 but denies that it is in any way liable to Plaintiff under that 

statute or any other theory of law.

JURISDICTION AND VENUE

3. Defendant admits that this court has subject-matter jurisdiction over 

this action.

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4. Defendant admits that venue is proper in this Court.

THE PARTIES

6. Defendant is without sufficient information to respond to the 

allegation within this paragraph and therefore denies the same.2

7. Denied as stated.

8. Admitted.

9. Admitted.

10. Admitted.

11. Admitted.

FACTUAL ALLEGATIONS

12. Defendant restates and incorporates the responses to Paragraphs 1–11 

above as if fully set forth herein.

 

1 Plaintiff’s Complaint contains two paragraphs numbered “3.” For the sake of consistency, 

Defendant has included duplicative third paragraphs as well.

2 Plaintiff’s Complaint omits a paragraph 5.

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13. Admitted.

14. Admitted.

15. Denied as stated.

16. Denied as stated.

17. Admitted.

18. Admitted.

19. Defendant avers that it employed Plaintiff as a Senior Workday HCM 

Consultant and denies the remaining allegations.

20. Denied as stated.

21. Admitted.

22. Admitted.

23. Denied.

24. Defendant admits it paid Plaintiff for all work performed. Except as 

expressly admitted herein, denied.

25. Denied.

26. Denied.

27. Defendant admits that it terminated Plaintiff in March 2020 for his 

gross misconduct in fraudulent billing and timekeeping practices.

28. Denied.

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FIRST CLAIM FOR RELIEF (CLAIM FOR VIOLATION OF THE FLSA)

30. Defendant restates and incorporates the responses to Paragraphs 1–28

above as if fully set forth herein.3

31. Admitted.

32. Admitted.

33. Admitted.

34. This paragraph contains a conclusion of law to which no response is 

required from Defendant.

35. Denied.

36. Denied.

37. Defendant denies it violated any of Plaintiff’s rights under the FLSA 

or otherwise.

38. Denied.

39. Denied.

40. Denied.

SECOND CLAIM FOR RELIEF (CLAIM FOR LAST PAYCHECK UNDER 

THE TEXAS LABOR CODE)

41. Defendant restates and incorporates the responses to Paragraphs 1–40

above as if fully set forth herein.

 

3 Plaintiff’s Complaint omits paragraph 29.

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42. Defendant admits that Plaintiff brings his second claim under the 

Texas Labor Code but denies it is liable to Plaintiff under this statute or any other 

theory of law.

43. Admitted.

44. This paragraph contains a conclusion of law to which no response is 

required from Defendant.

45. Denied.

46. Denied.

Defendant denies that Plaintiff is entitled to any of the relief requested in the 

Section of the Complaint entitled “Prayer for Relief” and subparts A–H thereunder, 

and denies that Plaintiff is entitled to any relief whatsoever.

AFFIRMATIVE AND/OR ADDITIONAL DEFENSES

Defendant alleges the following separate and independent affirmative 

defenses to Plaintiff’s Complaint, without assuming the burden of proof where 

such burden is otherwise on Plaintiff pursuant to applicable substantive or 

procedural law. Defendant reserves the right to amend or supplement its 

affirmative defenses and assert counterclaims that may become known during the 

course of discovery or otherwise.

1. Except as expressly admitted hereinabove, Defendant denies the 

material allegations of Plaintiff’s Complaint and demands strict proof thereof.

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2. Plaintiff fails to state a claim upon which relief can be granted.

3. Defendant did not require and/or suffer or permit Plaintiff to perform

the alleged overtime work described in Plaintiff’s Complaint. 

4. Plaintiff’s claims are barred because he is exempt from the overtime 

requirements of the FLSA under the administrative, executive, and/or computer 

professional exemptions.

5. Plaintiff is estopped by his own conduct (including, but not limited to, 

his fraudulent reports of compensable time) from claiming any right to damages or 

other relief against Defendant. 

6. To the extent Plaintiff has suffered injury, which Defendant expressly 

denies, any such injury is the result of acts or omissions of such Plaintiff, and not 

any act or omission of Defendant.

7. To the extent that Plaintiff performed tasks outside of his regularly 

scheduled working time, he did so in violation of Defendant’s policies and without 

the knowledge or consent of Defendant.

8. Plaintiff’s claims are barred, in whole or in part, by the doctrine of 

unjust enrichment to the extent he has been overpaid for time worked or paid for 

time not worked.

9. Plaintiff’s Complaint is barred, in whole or in part, by the doctrine of 

avoidable consequences because he failed to comply with Defendant’s lawful 

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policies concerning the reporting and payment of overtime and failed to use the 

internal procedures provided by Defendant to report any alleged violations of the 

FLSA.

10. The claims set forth in Plaintiff’s Complaint are barred, in whole or in 

part, because Defendant timely and lawfully paid Plaintiff for all services rendered. 

11. Should Plaintiff show that he is entitled to compensation under the 

FLSA (which Defendant denies), Defendant is entitled to offset gratuitous pay 

provided for non-compensable activities. 

12. Plaintiff is not entitled to compensation for activities not necessary to 

the business and not performed primarily for the benefit of Defendant.

13. Plaintiff is estopped from claiming additional compensation by his

acceptance of wages, submission of time records, and/or other actions or omissions 

on his part. 

14. In the event Defendant violated the FLSA (which it denies), such 

violation was not willful. Defendant acted at all times in good faith and had 

reasonable grounds for believing its conduct did not violate the law.

15. In the event Defendant violated the FLSA (which it denies), such 

violation was inadvertent and unintentional.

16. Defendant’s actions with respect to Plaintiff were taken in good faith. 

Defendant has not acted in reckless disregard of the law or engaged in any willful 

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violation of the law. By reason of the foregoing, Plaintiff is not entitled to 

liquidated or penalty damages under federal or state law. Moreover, only a twoyear statute of limitations should apply.

17. Without conceding that Defendant has the burden of proof on this 

issue, and expressly denying that Plaintiff suffered any actionable damages, 

Defendant avers that Plaintiff failed to exercise reasonable diligence to mitigate his

alleged damages, if any, or to otherwise avoid the alleged harm and his claims are 

therefore barred by, inter alia, the avoidable consequences doctrine. 

18. Plaintiff is not entitled to a jury trial on any claims for equitable relief.

19. Defendant adopts all defenses and limitations under the FLSA.

20. Discovery has not been initiated in this case. Accordingly, Defendant 

reserves the right to amend this Answer.

COUNTERCLAIMS

JURISDICTION

1. Jurisdiction is proper as all counterclaims relate to the same 

transaction or occurrence that serve as the basis of Plaintiff’s claims in this civil 

action. Jurisdiction is likewise proper under 28 U.S.C. § 1367.

FACTS

2. Plaintiff inflated and/or falsified time that he claimed to have worked 

for Defendant and/or Defendant’s customers.

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3. Plaintiff billed Defendant and/or Defendant’s customers for this 

inflated and/or falsified time.

4. Defendant and/or Defendant’s customers paid Plaintiff for his inflated 

and/or falsified time.

5. Defendant’s customers complained about Plaintiff’s inflated and/or 

falsified time.

6. Plaintiff was allowed the use of a KBL-owned computer during his 

employment with KBL.

7. He was required to return this computer, along with all other KBL 

property, to KBL upon the termination of his employment.

8. To date, Plaintiff has not return KBL property, including the 

computer, to KBL. 

9. Plaintiff took this property from KBL for his own use and/or benefit.

FRAUD

10. Defendant restates and incorporates by reference paragraphs 1–8 set 

forth above.

11. Defendant asserts this claim in addition and/or in the alternative to any 

other matters asserted herein.

12. The conduct of Plaintiff noted above constitutes fraud.

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13. Plaintiff made false material representations to Defendant by 

submitting statements to Defendant claiming falsified and inflated hours allegedly 

worked.

14. When these representations were made, Plaintiff knew the 

representations were false or made them recklessly, as positive assertions, and 

without knowledge of their truth.

15. Plaintiff made the representations with the intent that Defendant act 

on them.

16. Defendant relied on the representations and made payment to Plaintiff 

as billed or invoiced, and the representations caused injury to Defendant.

17. Alternatively and/or in addition, Plaintiff concealed from or failed to 

disclose certain facts to Defendant that falsified and inflated hours were being 

submitted to Defendant.

18. Plaintiff had a duty to disclose the facts to Defendant. 

19. The facts were material. The Plaintiff knew the Defendant was 

ignorant of the facts and the Defendant did not have an equal opportunity to 

discover the facts. 

20. The Plaintiff was deliberately silent when he had a duty to speak. 

21. By failing to disclose the facts, the Plaintiff intended to induce the 

Defendant to take some action or refrain from acting. 

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22. The Defendant relied on the Plaintiff’s non-disclosure. The Defendant 

was injured as a result of acting without the knowledge of the undisclosed facts 

and in paying for time not actually worked, as well as suffering damaged 

relationships with its customers.

23. Defendant seeks recovery of all actual damages.

24. Defendant is entitled to recover punitive damages as Plaintiff’s 

conduct was committed with fraud and/or malice.

BREACH OF FIDUCIARY DUTY

25. Defendant restates and incorporates by reference paragraphs 1–23 set 

forth above.

26. Defendant asserts this claim in addition and/or in the alternative to any 

other matters asserted herein.

27. Plaintiff was an employee of Defendant.

28. Plaintiff and Defendant were in a fiduciary relationship.

29. Alternatively and/or in addition, Plaintiff was acting as an agent for 

Defendant and thus Plaintiff and Defendant were in a fiduciary relationship.

30. The conduct of Plaintiff noted above constitutes a breach of fiduciary 

duty owed to Defendant.

31. The Plaintiff’s breach resulted in injury to the Defendant and benefit 

to the Plaintiff.

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32. Defendant seeks recovery of all actual damages.

33. Defendant is entitled to recover punitive damages as Plaintiff’s 

conduct was committed with fraud and/or malice.

CONVERSION

34. Defendant restates and incorporates by reference paragraphs 1–32 set 

forth above.

35. Defendant asserts this claim in addition and/or in the alternative to any 

other matters asserted herein.

36. The conduct of Plaintiff noted above constitutes conversion.

37. Defendant owned, possessed or had the right to immediate possession 

of personal property.

38. The Plaintiff wrongfully exercised, and continues to wrongfully 

exercise, dominion and/or control over the personal property.

39. Because of Plaintiff’s continued exercising dominion over 

Defendant’s personal property, Defendant suffered, and continues to suffer, an 

injury.

40. Defendant seeks recovery of all actual damages.

41. Defendant is also entitled to recover punitive damages as Plaintiffs 

conduct was committed with fraud and/or malice.

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UNJUST ENRICHMENT

42. Defendant restates and incorporates by reference paragraphs 1–40 set 

forth above.

43. Defendant asserts this claim in addition and/or in the alternative to any 

other matters asserted herein.

44. Plaintiff has obtained a benefit from Defendant from his fraudulent 

timekeeping conduct noted above. 

45. Plaintiff has further obtained a benefit from Defendant from his taking an 

undue advantage of Defendant by unlawful and/or impermissibly retaining possession 

over Defendant’s personal property.

46. Because of this conduct, Defendant suffered injuries.

47. Plaintiff has obtained a benefit from Defendant from fraudulent conduct 

and his taking an undue advantage of Defendant and the retention of this benefit would 

be unconscionable.

48. Defendant seeks recovery of all actual damages.

49. Defendant is also entitled to recover punitive damages as Plaintiffs 

conduct was committed with fraud and/or malice.

PRAYER FOR RELIEF

WHEREFORE, PREMISES CONSIDERED, Defendant prays that all 

claims of Plaintiff be denied, that Plaintiff recover nothing and that Defendant 

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recover all relief noted above on its counterclaims, including actual damages, 

additional damages, punitive damages, equitable relief, costs, attorney’s fees, prejudgment interest, post-judgment interest and such other and further relief as the 

Court may find appropriate.

Respectfully Submitted,

/s/ Stephen C. Jackson

Stephen C. Jackson

Maynard Cooper & Gale, P.C.

1901 Sixth Avenue North

Regions Harbert Plaza Suite 2400 

Birmingham, AL 35203

Telephone: (205) 254-1000

Fax: (205) 254-1999

Email: sjackson@maynardcooper.com

Attorneys for KBL Associates, LLC

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CERTIFICATE OF SERVICE

I hereby certify that on May 11, 2020, I electronically filed the foregoing 

with the Clerk of the Court using the CM/ECF system, which will send notification 

of such filing to the following:

Josh Sanford

SANFORD LAW FIRM, PLLC

One Financial Center

650 South Shackleford

Suite 411

Little Rock, AR 72211

(501) 221-0088

josh@sanfordlawfirm.com

/s/ Stephen C. Jackson 

Of Counsel

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