This case was last updated from Santa Clara County Superior Courts on 08/08/2019 at 18:12:28 (UTC).

Lax v. Roto-Rooter Services Company

Case Summary

On 11/30/2018 Lax filed a Labor - Other Labor lawsuit against Roto-Rooter Services Company. This case was filed in Santa Clara County Superior Courts, Downtown Superior Court located in Santa Clara, California. The Judge overseeing this case is Walsh, Brian C. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ******8652

  • Filing Date:

    11/30/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Labor - Other Labor

  • Court:

    Santa Clara County Superior Courts

  • Courthouse:

    Downtown Superior Court

  • County, State:

    Santa Clara, California

Judge Details

Judge

Walsh, Brian C

 

Party Details

Plaintiff

Lax, Alfred

Defendant

Roto-Rooter Services Company

Not Classified By Court

Superior Court of California

Attorney/Law Firm Details

Plaintiff Attorney

Workman, Robin Gibson

Defendant Attorneys

Schaper, Reed Edward

Treger, Benjamin Joseph

Not Classified By Court Attorney

Superior Court of CA, County of Santa Clara

 

Court Documents

Notice

Notice CMC reset from 7-26-19 to 9-13-19: Comment: CMC reset from 7/26/19 to 9/13/19

Notice

Notice CMC 7-26-19 at 10am in D1: Comment: CMC set for 7/26/19 at 10am in D1

Statement: Case Management Conference

Joint CMC Statement: Comment: Case Management Statement

Proof of Service: Summons DLR (Civil)

Proof of Service of Summons Complaint: Comment: Proof of Service of Summons/Complaint

Answer (Unlimited) (Fee Applies)

Answer to Complaint: Comment: Answer to Complaint

Order: Deeming Case Complex

Order Deeming Case Complex and Staying Discovery and Responsive Pleading Deadline: Comment: Order Deeming Case Complex and Staying Discovery and Responsive Pleading Deadline signed/BCW

Civil Case Cover Sheet

Civil Case Cover Sheet: Comment: COMPLEX

Summons: Issued/Filed

Summons Issued Filed:

Complaint (Unlimited) (Fee Applies)

Complaint (Unlimited) (Fee Applies):

 

Docket Entries

  • 09/13/2019
  • Conference: Case Management - Judicial Officer: Walsh, Brian C; Hearing Time: 10:00 AM; Comment: (2nd CMC) Proposed Wage and Hour Class Action. Discovery and responsive pleading deadline stayed, as of 12/4/18, when the case was deemed complex. Roto-Rooter Services Company's Answer to Complaint filed 1/4/19. Stay on discovery was lifted at the 3/15/19 CMC, based on Defendant's representation that they will mediate.

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  • 06/19/2019
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  • Notice - Notice CMC reset from 7-26-19 to 9-13-19: Comment: CMC reset from 7/26/19 to 9/13/19

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  • 03/19/2019
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  • Notice - Notice CMC 7-26-19 at 10am in D1: Comment: CMC set for 7/26/19 at 10am in D1

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  • 03/15/2019
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  • Conference: Case Management - Joint CMC Statement: Judicial Officer: Walsh, Brian C; Hearing Time: 10:00 AM; Result: Held; Comment: (1st CMC) Proposed Wage and Hour Class Action. Discovery and responsive pleading deadline stayed, as of 12/4/18, when the case was deemed complex. Roto-Rooter Services Company's Answer to Complaint filed 1/4/19.

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  • 03/15/2019
  • Minute Order

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  • 03/08/2019
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  • Statement: Case Management Conference - Joint CMC Statement: Comment: Case Management Statement

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  • 01/04/2019
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  • Answer (Unlimited) (Fee Applies) - Answer to Complaint: Comment: Answer to Complaint

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  • 12/12/2018
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  • Proof of Service: Summons DLR (Civil) - Proof of Service of Summons Complaint: Comment: Proof of Service of Summons/Complaint

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  • 12/04/2018
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  • Order: Deeming Case Complex - Order Deeming Case Complex and Staying Discovery and Responsive Pleading Deadline: Comment: Order Deeming Case Complex and Staying Discovery and Responsive Pleading Deadline signed/BCW

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  • 11/30/2018
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  • Civil Case Cover Sheet - Civil Case Cover Sheet: Comment: COMPLEX

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  • 11/30/2018
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  • Summons: Issued/Filed - Summons Issued Filed:

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  • 11/30/2018
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  • Complaint (Unlimited) (Fee Applies) - Complaint (Unlimited) (Fee Applies):

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Complaint Information

o 0 N W N

10 11 12 13

28

E-FILED

11/30/2018 1:59 PM Clerk of Court

WORKMAN LAW FIRM, PC i

Robin G. Workman (Bar #145810) ggfli”ogfc SO : :E[; fcclz;a‘ré robin@workmanlawpc.com ty

Rachel E. Davey (Bar #316096) 18CV338652 tachel@workmanlawpc.com Reviewed By: R. Walker

177 Post Street, Suite 800 San Francisco, CA 94108 Telephone: (415) 782-3660 Facsimile: (415) 788-1028

Attorneys for Plaintiff, Alfred Lax on behalf of himself and all others similarly situated

SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA

ALFRED LAX, on behalf of himself and all others No. stmilarly situated, CLASS ACTION COMPLAINT Plaintiff, Unlimited Civil Case

vs The Amount Demanded Exceeds $25.000

ROTO-ROOTER SERVICES COMPANY, and Does 1 through 50, inclusive,

Defendants. Plaintiff Alfred Lax (“Plaintiff”) by his attorneys, brings this action on behalf of himself, all others similarly situated, and the general public, on information and belief, except those allegations that pertain to the named Plaintiff and his attorneys (which are alleged on personal knowledge), hereby alleges as follows:

SUMMARY OF CLAIMS

1. This class action lawsuit arises from ongoing wrongful conduct by Defendant Roto- Rooter Services Company (“Defendant™), by its unlawful (1) failure to separately compensate Plaintiff and proposed class members, for rest breaks, or provide compensation for missed rest breaks, as required by California Labor Code sections 201-204, 226.2(a)(1), 226.7, 510, 1194, and section 12 of the applicable Wage Order; (2) failure to compensate Plaintiff and proposed class members for all time worked, including non-productive time, as required by California Labor Code sections 201-204, 510, 226.2(a)(1), and 1194; (3) taking improper deductions from wages owed, in violation of California Labor Code section 221; (4) failure to reimburse Plaintiff, and those similarly situated, for expenses incurred to do their job, in violation of California Labor Code section 2802; (5) failure to maintain accurate payroll records showing hours worked daily and all wages earned in violation of California Labor Code section 1174; (6) failure to provide accurate itemized wage statements to Plaintiff and proposed class members containing information as required by California Labor Code section 226 and 226.2(a)(2); (7) failure to provide Plaintiff, and proposed class members, with the contract setting forth the contemplated method of payment of commissions to Plaintiff and proposed class members, in violation of California Labor Code section 2751; and, (8) failure to timely pay Plaintiff and proposed class members all wages when due, in violation of California Labor Code sections 201-204. Said conduct, in addition, constitutes violations of California Labor Code sections 558 and 1198. The described conduct renders Defendant liable for civil penalties as set forth in California Labor Code sections 203, 210, 226(e), 226(f), 226.3, 558, 1054, 1174.5, 1194.2, 1197.1, and 1198.5(k). These failures further constitute unfair business practices, in violation of California Business and Professions Code section 17200,page 2 can't be parsed

Complaint and include these Doe defendants’ names and capacities when they are ascertained. Each fictitiously named defendant is responsible in some manner for the conduct alleged herein and for the injuries suffered by Plaintiff, the members of the class, aggrieved employees, and the general public.

5. At all times mentioned in the causes of action alleged herein, each and every Defendant was an agent and/or employee of each and every other Defendant. In doing the things alleged in the causes of action stated herein, each and every Defendant was acting within the course and scope of this agency or employment and was acting with the consent, permission and authorization of each of the remaining Defendants. All actions of each Defendant as alleged in the causes of action stated herein were ratified and approved by every other Defendant or their officers or managing agents.

6. Plaintiff is a current employee of Defendant. Defendant operates throughout the United States, including in California, providing plumbing repair, sewer and drain services, and water damage cleanup services to residential and commercial customers. Plaintiff has worked for Roto-Rooter as a non-exempt service technician for over a decade. As a service technician, Plaintiff travels to customer locations in Defendant’s vehicles to provide Defendant’s services to customers.

GENERAL ALLEGATIONS

7. California Labor Code sections 1182.12, effective July 1, 2014, sets for the applicable minimum wages that must be paid to all California employees. California Labor Code section 1194 states in pertinent part: “Notwithstanding any agreement to work for a lesser wage, any employee receiving less than the legal minimum wage . . . is entitled to recover in a civil action the unpaid balance of the full amount of this minimum wage . . ., including interest thereon, reasonable attorney’s fees, and costs of suit.” During the time period at issue, the minimum wage has ranged from $9.00 per hours (July 1, 2014 to December 31, 2015), $10.00 per hour (January 1, 2016 to December 31, 2016), $10.50 per hour (January 1, 2017 to December 31, 2017), and $11 per hour (January 1, 2018 to the present). Pursuant to Labor Code section 1197, payment of lesspage 4 can't be parsed

page 5 can't be parsed

courts in Armento v. Osmose, Inc., 135 Cal. App. 4" 314 (2005), and Bluford v. Safeway Stores,

Inc., 216 Cal. App. 4" 864, 872 (2013). This rule applies to those employees who are paid on a commission basis. Vaquero v. Stoneledge Furniture LLC, 9 Cal. App. 5t 98 (2017).

14. As aresult of Defendant’s established company policy, Defendants failed to pay for required rest periods as required by California Labor Code sections 226.7 and 226.2(a)(1), and IWC Wage Orders. Because of this failure, per section 12 of the IWC Wage Order, California Labor Code sections 226.2(3)(A)(1) and 226.7(b), Plaintiff, and those he seeks to represent, are entitled to one (1) additional hour of pay at the employees’ regular rate of compensation for each work day that the separate compensation was not paid and/or the rest period was not provided.

15. Pursuant to California Labor Code sections 218.6 and Civil Code section 3287, Plaintiff, and those he seeks to represent, are entitled to recover pre-judgment interest on all amounts recovered for unpaid rest periods.

16. California Labor Code section 221 provides that “[1]t shall be unlawful for any employer to collect or receive from an employee any part of wages theretofore paid by said employer to said employee.” Section 221 prohibits employers, except in those circumstances specifically authorized by California Labor Code section 224, from taking deductions from employees’ wages.

17. Defendant violates section 221 in two ways. First, Defendant takes deductions from technicians’ wages for technicians use of Defendant’s vehicles to perform their job, something that Defendant requires technicians to do. Second, Defendant takes improper deductions from commissions earned by technicians for Defendant’s business expenses, a cost for which Defendants cannot make technicians bear.

18. Asaresult of Defendant’s practice of taking improper deductions from technicians’ wages, Plaintiff, and those Plaintiff seeks to represent, are entitled to obtain the unpaid balance of the full amount of the unpaid wages owed pursuant to California Labor Code section 1194(a). Plaintiff, and those he seeks to represent, are also entitled to recover liquidated damages as provided by California Labor Code section 1194.2(a). Pursuant to Labor Code sections 218.6, recover pre-judgment interest on all amounts of unpaid wages recovered. Pursuant to Labor Code sections 218.5 and 1194(a), Plaintiff, and those he seeks to represent are also entitled to recovery reasonable attorneys’ fees to recover the unpaid wages owed.

19. Defendant requires technicians to purchase tools and other equipment to do their job. Defendant does not, however, reimburse technicians for the costs incurred by technicians to purchase the tools and equipment, in violation of California Labor Code section 2802,

20. California Labor Code section 2751(a) requires employers, when it pays employees on a commission basis, to provide employees a written, signed contract setting forth the contemplated method of payment of the commission. Section 2751(b) also requires that the employer receive a signed receipt from each employee for the contract. Defendant did not provide such a signed contract to Plaintiff, or those he seeks to represent. Defendant also did not receive a signed receipt for same.

21. By failing to pay technicians for all hours worked, failing to separately compensate technicians for rest periods, and all non-productive time, and failing to list all deductions taken from wages, Defendant failed to keep accurate records of all time worked, and wages due, in violation of California Labor Code section 1174. This failure gives rise to civil penalties under Labor Code section 1174.5. Defendant also failed to provide technicians with accurate wage statements as required by California Labor Code sections 226(a) and 226.2(a)(2), in that Defendant failed to provide technicians wage statements that reflect all hours worked, all gross and net wages earned, all rates of compensation, and all deductions taken from wages. This failure gives rise to civil penalties under California Labor Code sections 226(¢) and 226.3.

22. Given the violations of the aforementioned California Labor Code sections and IWC Wage Orders, Defendant is also committed unfair business practices, in violation of California Business & Professions Code section 17200, et. seq.

CLASS ALLEGATIONS

23. Plaintiff is, and during all relevant times, was, a resident of the State of Defendant in California: all service technicians employed by Defendant in California during the four years preceding the filing of this complaint to the present.

24. Because Plaintiff, in his employment with Defendant as a service technician, was not paid separately for rest periods, or compensated for missed rest periods, was not paid separately for all time worked, including non-productive time, was paid on either on a piece- rate or commission basis, from which Defendant deducted its operating costs, had deductions taken from his wagesrequired company vehicle, did not receive accurate wages statements, and did not receive a signed, written document setting forth the contemplated method of payment of commissions, Plaintiff’s claims are typical of the proposed class.

25. Plaintiff will fairly and adequately represent and protect the interests of the members of the proposed class in that he has no disabling conflict of interest that would be antagonistic to those of the other members of the proposed class. Plaintiff retained counsel who are competent and experienced in the prosecution of class action wage and hour violations.

26. The proposed class is sufficiently numerous and the class members are geographically dispersed throughout California, the joinder of whom in one action is impracticable, such that the disposition of whose claims in a class action will provide substantial benefits to both the parties and the Court.

27. There is a well-defined community of interest in the questions of law and fact involved affecting the parties to be represented. The questions of law and fact common to the proposed classes predominate over questions that may affect individual class members, include but are not limited to the following:

(a) Whether Defendant implemented and engaged in a practice whereby Defendant

unlawfully failed to separately compensate technicians for all work performed,page 9 can't be parsed

contemplated method of paying commissions; pattern and practice of taking deductions from wages earned by technicians; and, pattern and practice of requiring technicians to purchase tools to perform their jobs, yet not reimbursing technicians for the costs incurred to make these purchases. These issues are common to all proposed class members, making class treatment especially appropriate. Because the actions of Defendant toward proposed class members follow common patterns, all of which are reflected in the records possessed by Defendant, this action will provide substantial benefits to all proposed class members. Absent this action, Defendant’s unlawful

conduct will continue unremedied and uncorrected.

FIRST CAUSE OF ACTION

(Rest Break Violations: Cal. Lab. Code §§ 226.7, 226.2(a)(1) & Applicable IWC Wage Order §12)

29. Plaintiff and proposed class members incorporate by reference the allegations contained in the foregoing paragraphs of this complaint as if fully set forth herein.

30. Throughout Plaintiff’s employment with Defendant, Defendant paid technicians on either a flat-rate or commission basis. Defendant does not, and has not, paid technicians separate compensation for their rest breaks. In addition, given the nature of the work, technicians are not able to take rest breaks whencustomer’s location. Defendant does not, and has not, paid Plaintiff, or proposed class members, an additional hour of compensation when Plaintiff or proposed class members did not receive their statutory 10-minute off-duty rest breaks. This failure violates California Labor Code sections 226.7 and 226.2, and section 12 of the applicable IWC Wage Order. This violation of section 12 of applicable Wage Orders is also a violation of Labor Code sections 558 and 1198. 32. As Defendant failed to properly compensate Plaintiff and proposed class members for rest periods, Defendant did not furnish Plaintiff or proposed class members with accurate wage statements, in violation of California Labor Code sections 226 subsection (a), and 226.2(a)(2) as the wage statements do not reflect all gross wages earned, total hours worked, and all applicable rates of compensation.

33. As aresult of Defendant’s failures, Plaintiff and the proposed class members are entitled to recover the additional hour of compensation for rest breaks as set forth in California Labor Code sections 226.7, 226.2(3)(A)(1) and recoverable pursuant to California Labor Code section 558 and 1198. Pursuant to California Labor Code sections 218.6 and Civil Code section 3287, Plaintiff, and those he seeks to represent, are also entitled to recover pre-judgment interest on all amounts recovered for unpaid rest periods.

34. Plaintiff and proposed class members are therefore entitled to the relief

requested below.

SECOND CAUSE OF ACTION

(Failure To Pay For All Hours Worked, All Wages Owed, At Minimum Wage: Cal. Lab. Code §§ 510, 1194)

35. Plaintiff and the proposed class members incorporate by reference the allegations contained in the foregoing paragraphs of this complaint as if fully set forth herein.

36. Although Defendant paid Plaintiff, and proposed class members, on either a flat-rate or commission basis, Defendant failed to pay Plaintiff and proposed class members for all hours worked, including for all non-productive time, such as van maintenance time, equipment repair time, or travel time between jobs. As such, Defendant failed to pay Plaintiff, and proposed class members the minimum wage, as set forth in California Labor Code section 1182.12, for all work performed. In addition, Defendant took deductions from wages earned by Plaintiff and proposed class members, in violation of California Labor Code section 221. those he seeks to represent, are also entitled to recover liquidated damages as provided by California Labor Code section 1194.2(a).

38. Pursuant to Labor Code sections 218.6, 1194(a), and Civil Code section 3287, Plaintiff, and those he seeks to represent, are entitled to recover pre-judgment interest on all amounts of unpaid wages recovered. Pursuant to Labor Code sections 218.5 and 1194(a), Plaintiff, and those he seeks to represent are also entitled to recover attorneys’ fees and costs

incurred by them to bring this action.

THIRD CAUSE OF ACTION

(Inaccurate Wage Statements: Cal. Lab. Code §§ 226, 226.2)

39. Plaintiff and proposed class members incorporate by reference the allegations contained in the foregoing paragraphs of this complaint as if fully set forth herein.

40. During the relevant time period, Defendant failed to pay Plaintiff, and proposed class members, separately for rest periods and all non-productive time and took deductions from wages owed to Plaintiff and proposed class members. As such, Defendant failed to furnish accurate itemized wage statements to Plaintiff and proposed class members containing information as required by California Labor Code sections 226 and 226.2. These failures caused Plaintiff and proposed class members to suffer injury as defined by California Labor Code section 226(e)(2)(B)(i). As a result of Defendant’s failures, Plaintift and proposed class members are entitled to recover the penalties and attorneys’ fees as set forth in California Labor Code section 226(e)(1) and 226.3.

41. Plaintiff and proposed class members are therefore entitled to the relief requested below.

FOURTH CAUSE OF ACTION

(Failure To Reimburse For Work-Related Expenses: Cal. Lab. Code § 2802)

42. Plaintiff and proposed class members incorporate by reference the allegations contained in the foregoing paragraphs of this complaint as if fully set forth herein.

43. Throughout Plaintiff’s employment, Defendant required Plaintiff, and proposed Plaintiff, and proposed class members, for the costs incurred to purchase the tools. Defendant’s failure to reimburse Plaintiff, and proposed class members, for the expenses incurred to purchase these tools violated California Labor Code section 2802.

44, Plaintiff and proposed class members are therefore entitled to the relief requested below.

FIFTH CAUSE OF ACTION

(Unlawful, Unfair And Fraudulent Business Practices: Business & Professions Code § 17200, et seq.)

45. Plaintiff and proposed class members incorporate by reference the allegations contained in the foregoing paragraphs of this complaint as if fully set forth herein.

46. Business & Professions Code section 17200, et seq., prohibits acts of unfair competition, defined as an “unlawful, unfair, or fraudulent business act or practice.”

47. The policies, acts and practices described herein were and are unlawful business acts or practices because Defendant’s unlawful (1) failure to separately compensate Plaintitf and proposed class members, for rest breaks, or provide compensation for missed rest breaks, as required by California Labor Code sections 201-204, 226.2(3)(A)(1), 226.7, 510, 1194, and section 12 of the applicable Wage Order; (2) failure to compensate Plaintiff and proposed class members for all time worked, including non-productive time, as required by California Labor Code sections 201-204, 510, and 1194; (3) taking of improper deductions from wages owed, in violation of California Labor Code section 221; (4) failure to reimburse Plaintiff, and those similarly situated, for expenses incurred to do their job, in violation of California Labor Code section 2802; (5) failure to maintain accurate payroll records showing hours worked daily and all wages earned in violation of California Labor Code section 1174; (6) failure to provide accurate itemized wage statements to Plaintiff and proposed class members containing information as required by California Labor Code sections 226 and 226.2; (7) failure to provide Plaintiff, and proposed class members, with the contract setting forth the contemplated method of payment of commissions to Plaintiff and proposed class members, in violation of California Labor Code section 2751; and, (7) termination, in violation of California Labor Code sections 201-204, violate applicable California Labor Code sections, IWC Wage Orders, and other provisions of California common and/or statutory law. Plaintiff reserves the right to allege additional statutory and common law violations by Defendant. Such conduct is ongoing to this date.

48. Further, the policies, acts or practices described herein were and are an unfair business acts or practices because any justifications for Defendant’s illegal and wrongful conduct were and are vastly outweighed by the harm such conduct caused to Plaintiff, proposed class members, and the members of the general public. Such conduct is ongoing to this date.

49. As aresult of its unlawful and/or unfair and/or fraudulent acts, Defendant reaped, and continues to reap, unfair benefits and illegal profits at the expense of Plaintiff and proposed class members. Defendant should be made to disgorge ill-gotten gains and provide restitution to Plaintiff and proposed class members for the wrongfully withheld wages pursuant to Business and Professions Code section 17203.

50. Accordingly, Plaintiff and proposed class members respectfully request that the Court award judgment and relief in their favor, to provide restitution, and other types of equitable relief.

51. Plaintiff and the proposed class members are therefore entitled to the relief requested below.

PRAYER FOR RELIEF

WHEREFORE Plaintiff prays for judgment and relief as follows:

1. An order certifying that the action may be maintained as a class action;

2. Compensatory and statutory damages, penalties and restitution, as appropriate and available under each cause of action, in an amount to be proven at trial based on, inter alia, the unpaid balance of compensation Defendant owes;

3. Reasonable attorneys’ fees pursuant to California Labor Code sections 218.5, 226(e)(1), and 1194;

4. Costs of this suit; 6. Such other and further relief as the Court deems just and proper.

JURY DEMAND

Plaintiff hereby demands a trial by jury.

Date: November 30, 2018