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1



IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF
GEORGIA
ATLANTA DIVISION


JOHNNIE R. WINSTON, III, )
)

Plaintiff, )
)

v. )
)
CIVIL ACTION FILE
NO. 1:16-CV-4018
KANDI BURRUSS-TUCKER AND
KANDI KOATED ENTERTAINMENT,
INC.,
)
)

)

Defendants.

)
)

)


DEFENDANTS KANDI BURRUSS-TUCKER AND KANDI KOATED ENTERTAINMENT, INC.’S MOTION FOR LEAVE TO AMEND ANSWER
TO PLAINTIFFS’ AMENDED COMPLAINT TO ADD COUNTERCLAIM


Defendants Kandi Burruss-Tucker (“Ms. Burruss-Tucker”) and Kandi
Koated Entertainment, Inc. (“Kandi Koated
Entertainment”) (collectively,
“Defendants”), by and through their undersigned counsel, hereby move, pursuant
to Federal Rules of Civil Procedure 16(b)(4), 15(a), and 13(e), for leave to file the
attached Answer to Amended Complaint, Affirmative Defenses, and
Counterclaims of Defendants Kandi Burruss
-
Tucker and Kandi Koated
Entertainment
. In support of this motion, Defendants file herewith a Memorandum
2 in Support of Defendants’ Motion fo
r
Leave
t
o Amend Answer to Plaintiff's
Amended
Complaint to Add Counterclaim showing this Court that the proposed
cou
nterclaim

was acquired or matured and continues to mature since the
Defendants filed their
original
Answer
to Plaintiffs’ Complaint and that it will not
cause

Plain
tiff
any undue prejudice, is not futile and is not offered in bad faith,
with
a
dilatory motive, or after any failure to cure prior deficiencies.
R
espectfully submitted this 6
th
day of April, 2016.
/s/ Allegra J. Lawrence
Precious Anderson (GA Bar 017783)
T
HE ANDERSON FIRM, LLC
1100 Spring Street, Suite 730
Atlanta, Georgia 30309
Telephone: 404.521.1111

Facsimile: 404.521.1919
[email protected]
Allegra J. Lawrence (GA Bar 439797)
Victoria C. Smith (GA Bar 836602)
L
AWRENCE & BUNDY LLC
1180 West Peachtree Street N.W., Suite 1650
Atlanta, Georgia 30309
Telephone: 404.400.3350

Facsimile: 404.609.2504
[email protected]
[email protected]
At
torneys for Defendants Kandi Burruss-Tucker
and Kandi Koated Entertainment, Inc.
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION


JOHNNIE R. WINSTON, III, )
)

Plaintiff, )
)

v. )
)
CIVIL ACTION FILE NO. 1:16-CV-4018-AT
KANDI BURRUSS-TUCKER AND
KANDI KOATED ENTERTAINMENT, INC.,
)
)

)


Defendants.
_____________________________________
)
)
)

ANSWER
TO AMENDED COMPLAINT, AFFIRMATIVE DEFENSES,
AND COUNTERCLAIMS OF DEFENDANTS KANDI BURRUSS-TUCKER
AND KA
NDI KOATED ENTERTAINMENT, INC.

Defendants Kandi Burruss-Tucker (“Ms. Burruss-Tucker”) and Kandi
Koated Entertainment, Inc. (“Kandi Koated Entertainment”) (collectively,
“Defendants”), by and through their undersigned counsel, hereby respond to the
Amended Complaint filed by Plaintiff Johnnie R. Winston, III.
In response to
Plaintiff’s unnumbered, introductory
section entitled
“Nature of Action,”
Defendants admit only that Plaintiff’s Amended Complaint purports to bring
claims pursuant to the Fair Labor Standards Act of 1938 (“FLSA”). Defendants
aver that Plaintiff contractor services to Kandi Koated Entertainment during
various periods
between August 3, 2013 and February 29, 2016. Defendants deny
all other allegations in the “Nature of Action” section.
Defendants further respond by stating that Plaintiff’s claims are baseless, are
in direct violation of a contractual agreement, and are geared specifically to garner
attention for Plaintiff and his own company, which Plaintiff owned and operated
throughout his business relationship with Kandi Koated Entertainment.
To that
end, Defendants also note that Plaintiff timed the filing of his claims to coincide
with the production and airing of a television show. In addition to defaming
Defendants, Plaintiff ignores the fact that his only relationship with Kandi Koated
Entertainment was as an independent contractor.
With respect to the numbered allegations in the Amended Complaint,
Defendants follow Plaintiff’s numbering and hereby respond as follows:
RESPONSE TO SECTION ENTITLED “PARTIES”
1.
Defendants admit that, upon information and belief, Plaintiff is a resident of
the State of Georgia. Defendants deny the remaining allegations in Paragraph 1.
2.
Defendants aver that Kandi Burruss-Tucker is a Georgia resident and that
she may be served in accordance with the Federal Rules of Civil Procedure.
Defendants deny
the remaining allegations in Paragraph 2.


3.
Defendants aver that Kandi Koated Entertainment, Inc. is a Georgia
Corporation
and that Plaintiff has invoked the court™s jurisdiction. Defendants
further aver that Christina Robinson is the registered agent for Kandi Koated
Entertainment and that Kandi Koated Entertainment may be served in accordance
with the Federal Rules of Civil Procedure. Defendants deny the remaining
allegations in Paragraph 3.

4.
Defendants aver that Ms. Burruss-Tucker is the Chief Executive Officer
(CEO) of Kandi Koated Entertainment. Defendants deny the remaining
allegations in Paragraph 4.
5.
Defendants admit that Kandi Koated Entertainment is an employer under the
FLSA. Defendants deny the remaining allegations in Paragraph 5 and specifically
deny that Ms. Burruss
-
Tucker is an employer under the FLSA or that Plaintiff was
an employee of Defendants.

6.
The allegations in Paragraph 6 state a legal conclusion, to which no response
is required. To the extent a response is required, Defendants deny the allegations
in Paragraph 6.
7.
The allegations in Paragraph 7
state a legal conclusion, to which no response
is required. To the extent a response is required, Defendants deny the allegations
in Paragraph 7.
8.
Defendants admit that
Kandi Koated Entertainment
was aware of the
existence and requirements of the FLSA. Defendants aver that Ms. Burruss-
Tucker is not an employer under the FLSA. Defendants deny the remaining
allegations and specifically deny that Plaintiff was covered by the FLSA and that
the protections sought apply to Plaintiff.

RESPONSE TO SECTION ENTITLED “JURISDICTION AND VENUE”
9.
Defendants admit that Plaintiff has invoked the court™s jurisdiction. The
remaining alleg
ations in Paragraph 9 state a legal conclusion, to which no response
is required. To the extent a response is required, Defendants deny the allegations
in Paragraph 9.
10.
Defendants aver that venue is proper because Kandi Koated Entertainment
conducts business in Georgia and Ms. Burruss-Tucker is the CEO of Kandi Koated
Entertainment and is a resident of Georgia. Defendants deny the remaining
allegations in Paragraph 10 and specifically deny that any unlawful employment
practices occurred or that Plainti
ff has stated claims upon which relief may be
granted.
11.
Defendants deny the allegations in Paragraph 11 and specifically deny that
Plaintiff has stated claims upon which relief may be granted.
12
.
Defendants aver that Kandi Koated Entertainment conducts business in
Georgia and that Ms. Burruss-Tucker is the CEO of Kandi Koated Entertainment
and is a resident of Georgia. Defendants deny the remaining allegations in
Paragraph 12.
13
.
Defendants admit that Plaintiff has invoked the court™s jurisdiction.
Defendants deny the remaining allegations in Paragraph 13.
14
.
Defendants lack knowledge or information sufficient to form a belief as to
the truth of the allegations in Paragraph 14 of the
Amended Complaint.


RESPONSE TO SECTION ENTITLED “UNDERLYING FACTS”
15.
Defendants incorporate their responses to Paragraphs 1
-14 as if fully set
forth herein.
16.
Defendants admit that
Plaintiff provided contractor services to Kandi Koated
Entertainment
during various periods from on or about August 3, 2013 until
February 29, 2016 and that DonJuan Antonio Clark provided supervision to
Plaintiff. Defendants further admit that Kandi Koated Entertainment provided
compensation to Plaintiff for his services.
Defendants deny the remaining
allegations in Paragraph 16.
17.
Defendants aver that Plaintiff provided contractorervices to Kandi Koated
Entertainment
during various periods from on or about August 3, 2013 until
February 29, 2016. Defendants deny the remaining allegations in Paragraph 17.
18.
Defendants aver that Plaintiff provided contractor services to Kandi Koated
Entertainment
during various periods from on or about August 3, 2013 until
February 29, 2016. Defendants deny the remaining allegations in Paragraph 18.

19.
Defendants aver that Plaintiff provided contractor services to Kandi Koated
Entertainment
during various periods from on or about August 3, 2013 until
February 29, 2016. Defendants deny the remaining allegations in Paragraph 19.
20
.
Defendants aver that Kandi Koated Entertainment ended its contract with
Plaintiff on or about April 20, 2015. Defendants further aver that Plaintiff began
providing services to
Kandi Koated Entertainment
again on or about May 1, 2015.
Defendants deny the remaining allegations in Paragraph 20.
21.
Defendants deny the allegations in Paragraph 21.
22.
Defendants deny the allegations in Paragraph 22.
23.
Defendants deny the allegations in Paragraph 23.
24.
Defendants aver that Ms. Burruss-Tucker is the CEO of Kandi Koated
Entertainment. Defendants further aver that Ms. Burruss-Tucker was involved in
decision to engage the services of Plaintiff for Kandi Koated Entertainment and the
decision to terminate the services of Plaintiff for Kandi Koated Entertainment, that
she requested that Plaintiff perform certain tasks for Kandi Koated Entertainment,
and that she was involved in ensuring that Plaintiff was compensated for services
provided to Kandi Koated Entertainment. Defendants the deny the remaining
allegations in Paragraph 24.
RESPONSE TO SECTION ENTITLED “COUNT I
– VIOLATION OF THE
FAIR LABOR STANDARDS ACT (‘FLSA’) FOR OVERTIME PAY”

25.
Defendants incorporate their responses to Paragraphs 1
-24 as if fully set
forth herein.
26.
Defendants deny the allegations in Paragraph 2
6.
27.
Defendants deny the allegations in Paragraph 27.
28.
Defendants deny the allegations in Paragraph 2
8
29.
Defendants deny the allegations in Paragraph 2
9. Defendants further deny
that Plaintiff is entitled to any of the
relief requested in the
Amended Complaint or
to any other relief whatsoever against Defendants.

RESPONSE TO SECTION ENTITLED “COUNT II – VIOLATION OF THE
FAIR LABOR STANDARDS ACT (‘FLSA’) FOR MINIMUM WAGE
COMPENSATION”


30
.
Defendants incorporate their responses to Paragraphs 1
-29 as if fully set
forth herein.
31
.
Defendants admit that
Kandi Koated Entertainment compensated Plaintiff
for
contractor services provided to Kandi Koated Entertainment. Defendants deny
the remaining allegations in Paragraph 31.
32.
Defendants deny the allegations in Paragraph 32.
33.
Defendants deny the alleg
ations in Paragraph 33.
34.
Defendants deny the allegations in Paragraph 34. Defendants further deny
that Plaintiff is entitled to any of the relief requested in the
Amended Complaint or
to any other relief whatsoever against Defendants.
RESPONSE TO SECTION ENTITLED “PRAYER FOR RELIEF”
Defendants deny that Plaintiff is entitled to any of the relief requested in the
Amended Complaint or to any other relief whatsoever against Defendants.
AFFIRMATIVE DEFENSES
As and for their separate affirmative defenses to the Amended Complaint,
Defendants state as follows:
FIRST AFFIRMATIVE DEFENSE
Plaintiff’s Amended Complaint fails in whole or in part to state a claim upon
which relief may be granted.
SECOND
AFFIRMATIVE DEFENSE
Defendants did not willfully violate the Fair Labor Standards Act, as
amended, 29 U.S.C. § 201 et seq. (“FLSA”) because any acts or omissions giving
rise to this action were reasonable, undertaken in good faith, and were not
undertaken with reckless disregard as to whether such actions or omissions
violated the FLSA.
THIRD AFFIRMATIVE DEFENSE
Pursuant to 29 U.S.C. § 260, Defendants cannot be liable for liquidated
damages because any acts or omissions giving rise to this action were undertaken
in good faith and with reasonable grounds for believing that their actions were in
compliance with the FLSA.
FOURTH AFFIRMATIVE DEFENSE
Plaintiff’s claims
against Defendant Kandi Burruss-Tucker are barred in
whole or in part because Ms. Burruss-Tucker is not an employer under the FLSA
and Plaintiff did not provide services to Ms. Burruss
-
Tucker.
FIFTH AFFIRMATIVE DEFENSE
Plaintiff’s claims are barred in whole or in part because Plaintiff
was not an

employee of Defendants within the meaning of the FLSA.
SIXTH AFFIRMATIVE DEFENSE
Plaintiff’s claims are barred because
to the extent Plaintiff performed
services for any Defendant, Plaintiff was an independent contractor at all times.


SEVENTH
AFFIRMATIVE DEFENSE
Plaintiff’s claims
are barred in whole or in part because Plaintiff has named
the wrong party as a defendant to this action.
EIGHTH
AFFIRMATIVE DEFENSE
The claims set forth in the
Amended Complaint are barred, in whole or in
part, by the doctrines of accord and satisfaction.
NINTH AFFIRMATIVE DEFENSE
Any amount due to Plaintiff should be offset by payments received by
Plaintiff from
Kandi Koated Entertainment
.
TENTH AFFIRMATIVE DEFENSE
Assuming that Plaintiff is entitled to receive overtime compensation under
the FLSA, which is denied, Plaintiff’s claims are barred to the extent they include
time claimed for non
-compensable work under the FLSA, including activities that
are preliminary or postliminary to Plaintiff’s duties, uncompensated time for meal
periods, and for
de minimis
time worked.
ELEVENTH
AFFIRMATIVE DEFENSE
Defendants state, in the alternative if necessary, that even if Kandi Koated
Entertainment
has in fact failed to pay Plaintiff for any of the activities alleged in
the Amended Complaint, which Defendants deny, such activities do not constitute
compensable work under th
e FLSA and furthermore, such activities were not an
integral and indispensable part of Plaintiff’s principal
duties and are not
compensable.
TWELFTH
AFFIRMATIVE DEFENSE
Defendants allege that Plaintiff’s alleged damages, if any, were proximately
caused by the negligent, reckless or intentional acts or omissions of third parties
that Defendants did not have the legal right, duty or opportunity to control, and that
acted without Defendants’ knowledge, participation, approval or ratification.
THIRTEENTH AFFIRMATIVE DEFENSE
Defendants allege that Plaintiff’s alleged damages, if any, are the direct and
proximate cause of Plaintiff’s own negligence, carelessness, and/
or fault. Any
r
ight to recovery from Defendants, if any, should be reduced by that amount
attributable to Plaintiff’s negligence, carelessness and/or fault.
FOURTEENTH
AFFIRMATIVE DEFENSE
Defendants allege that Plaintiff was negligent, legally responsible, or
otherwise at fault for the damages alleged in the
Amended Complaint. Defendants
therefore request
that, in the event of a finding of any liability against them, an
apportionment of fault be made among
all parties by the Court or jury to the extent
permitted under federal law. Defendant
s further request
a judgment and
declaration of partial indemnification and/or contribution against all other parties
or persons in accordance with that apportionment of
fault.
FIFTEENTH
AFFIRMATIVE DEFENSE
Defendants allege that Plaintiff failed to take proper and reasonable steps to
avoid or otherwise mitigate any alleged damages, barring recovery against
Defendants in this action.
SIXTEENTH
AFFIRMATIVE DEFENSE
Defendants allege that Kandi Koated Entertainment’s policies, practices and
procedures are in conformity with all applicable governmental codes and
regulations existing at all relevant times. Therefore, no legal liability may be
imposed on Defendants as to any act or practice that is in conformity with such
governmental codes and regulations.
SEVENTEENTH
AFFIRMATIVE DEFENSE
The purported claims of Plaintiff against Defendants are barred under the
doctrine of unclean hands.
EIGHTEENTH
AFFIRMATIVE DEFENSE
The purported claims of Plaintiff against Defendants are barred under the
doctrine of waiver and estoppel.
NINETEENTH
AFFIRMATIVE DEFENSE
The purported claims of Plaintiff are barred because Kandi Koated
Entertainment
fully compensated Plaintiff for the services performed.
TWENTIETH
AFFIRMATIVE DEFENSE
The purported claims of Plaintiff are barred by applicable statutes of
limitation.
TWENTY-FIRST AFFIRMATIVE DEFENSE
The purported claims of Plaintiff are barred by Plaintiff’s failure to report
the conduct alleged in the
Amended Complaint.
TWENTY-SECOND AFFIRMATIVE DEFENSE
The purported claims against Defendants are barred under the doctrine of
laches in that Plaintiff delayed filing this action for an unreasonable period of time,
which delay has caused detriment and substantial prejudice to Defendants.
TWENTY-THIRD AFFIRMATIVE DEFENSE
The Amended Complaint, and each purported cause of action therein, are
barred, because Defendants’ alleged actions were undertaken in good faith, with
the absence of malicious intent to injure anyone, and constitute lawful, proper and
justified means to furth
er the sole purpose of engaging in and continuing business.
TWENTY-FOURTH AFFIRMATIVE DEFENSE
The Amended Complaint, and each purported cause of action therein, are
barred because some or all of the damages
claimed by Plaintiff were caused by
factors outside Defendants’ control, by the actions of third parties, or by Plaintiff’s
own actions.
TWENTY-FIFTH AFFIRMATIVE DEFENSE
Plaintiff’s
claims are barred because Plaintiff has suffered no actual or legal
injury for which the law provides any redress.
TWENTY-SIXTH AFFIRMATIVE DEFENSE
The purported claims of Plaintiff are barred by contract or agreement.
TWENTY-SEVENTH AFFIRMATIVE DEFENSE
As to Plaintiff’s claims for equitable relief, those claims and prayer for
relief
are
barred because Plaintiff has an adequate remedy at law.
TWENTY-EIGHTH AFFIRMATIVE DEFENSE
Plaintiff’s Amended Complaint does not describe the claims made against
Defendants with sufficient particularity to enable them to determine what
additional defenses they may have in response to the purported claims. Therefore,
Defendants reserve the right to assert all defenses that may be pertinent to these
alleged claims once their precise nature is ascertained through discovery.
TWENTY-NINTH AFFIRMATIVE DEFENSE
Defendants are entitled to recover all costs and attorneys’ fees incurred
herein inasmuch as the claims alleged in Plaintiff’s
Amended Complaint are
frivolous, unreasonable and without foundation.
GENERAL DENIAL
Defendants expressly deny any and all allegations of Plaintiff’s
Amended
Complaint not specifically admitted in the foregoing.
DEFENDANTS’ COUNTERCLAIMS AGAINST

PLAINTIFF JOHNNIE R. WINSTON, III


Pursuant to Federal Rule of Civil Procedure 13 and 28 U.S.C. § 1367,
Defendants Kandi Burruss-Tucker (“Ms. Burruss-Tucker”) and Kandi Koated
Entertainment, Inc. (“Kandi Koated Entertainment”) (collectively, “Defendants”),
by and through their undersigned counsel, hereby submit their Counterclaims
against Plaintiff Johnnie R. Winston, III (“Mr. Winston” or “Plaintiff”).
INCORPORATION OF ANSWERS AND AFFIRMATIVE DEFENSES
Defendants hereby incorporate and reassert each and every one of the
foregoing Affirmative Defenses and Answers previously asserted herein.
DEFENDANTS’ COUNTERCLAIMS
COME NOW Defendants, and for their Counterclaims against Mr. Winston,
Plaintiff and Counterclaim Defendant herein, and sates as follows:
Preliminary Statement
The instant suit is
Mr. Winston’s attempt to intentionally malign
Defendants’ reputation and harm their reputation and public persona through false
and malicious accusations. It is also an attempt by
Mr. Winston, who has his own
event planning company, to garner free publicity and national attention by creating
a false story line to stay relevant on the nationally and internat
ionally broadcast
cable television show,
The Real Housewives of Atlanta
(“RHOA”), of which
Ms.
Burruss-Tucker is a cast member. As such, it is of no coincidence that Mr. Winston
conveniently timed his unsubstantiated attacks against Defendants to coincide
with
the filming of the latest season of RHOA, securing airtime and free publicity for
himself in the show. In fact, the continued relationship between Mr. Winston
(through his own entity, JW Exclusive Designs (aka Exclusive Designs, LLC)1)
even after
Febr
uary 29, 2016
, and with no complaints against Defendants for
months until the latest season of RHOA began filming, further belies the substance
and timing of Mr. Winston’s false claims against Defendants.
Mr. Winston’s ploy to gain additional publicity by making knowingly false
and malicious accusations regarding Defendants on camera, that were subsequently
broadcast nationally and internationally, are the subject of Defendants’
counterclaims. Mr. Winston’s statements were not only slanderous, defamatory
a
nd calculated to injure Defendants’ public persona and professional brand, but
were also in breach of the Confidentiality and Non-Disclosure Agreement signed
by Mr. Winston.
JURISDICTION AND VENUE
1.
Jurisdiction is proper to hear and determine these counterclaims pursuant to
Fed. R. Civ.
Proc. 13 and 28 U.S.C. § 1367. Mr. Winston has submitted to personal
jurisdiction by filing this suit.
2.



1 Regarding Mr. Winston’s entity, JW Exclusive Designs (aka Exclusive Designs, LLC),
it is important to note that Mr. Winston owned and fully operated and worked for his entity
throughout his business relationship with Kan
di Koated Entertainment. Defendants were fully
aware and supportive of Mr. Winston’s personal business endeavors, and assert that, in light of
the time commitments Mr. Winston made to his own business endeavors, Mr. Winston’s claims
regarding the number of hours he worked for Kandi Koated Entertainment are not only
completely false, but physically impossible.

Venue is proper to hear and determine these counterclaims pursuant to 28
U.S.C. § 1367.
FACTUAL BACKGOUND
3.
Mr. Winston entered into a professional relationship with Kandi Koated
Entertainment on or around December 2, 2012.
4.
On or around December 2, 2012, the parties entered into and willingly
executed a Confidentiality and Non-Disclosure Agreement (“NDA”), executed by
Johnnie R. Winston, III on behalf of himself, and by DonJuan Clark on behalf of
Kandi Koated Entertainment. (See Ex. A, Confidentiality and Non-Disclosure
Agreement.)
5.
Section II of the NDA executed by
Mr. Winston states as follows:
Non-Disclosure
a. The undersigned shall not, either during the
course of their employment, personal or business
relationship with Owner or at any time thereafter,
divulge to another person, firm or company, any
information relating to the Company, the Owner,
their employees, associates, affiliates, or family
members, or any of the business secrets or
dealings of the Company or the Owner which
they may have acquired in the course of their
employment or relationship therewith.

b. The Undersigned understands and agrees that any
and all private information obtained about the
Company, the Owner, the Owner’s family,
friends, and personal associates, during the
course of the relationship between the parties
hereto, including but not limited to medical,
financial, legal, and Family’s
assets are strictly
confidential and may not be disclosed to any third
party for any reason other than as described
herein.
6.
There were never any agreements executed amongst the parties purporting to
establish an employment relationship between
Mr. Winston and either Ms.
Burruss-Tucker or Kandi Koated Entertainment.
7.
From the inception of the professional relationship between Mr. Winston
and Kandi Koated Entertainment, and throughout the entirety of Mr. Winston’s
business relationship with
Kandi Koated Entertainment, Mr. Winston was
classified, treated, and compensated as an independent contractor.
8.
At no time during
Mr. Winston’s business relationship with Kandi Koated
Entertainment
did any of the parties intend, believe, or take any actions supporting,
the classification of
Mr. Winston’s business relationship with Kandi Koated
Entertainment
as anything other than that of an independent contractor.

9.
During the course of
Mr. Winston’s business relationship with Kandi Koated
Entertainment
, Mr. Winston conducted business as himself, and also through
various entities owned and operated by Mr. Winston, including JW Exclusive
Designs, aka Exclusive Designs, LLC.
10
.
During the course of
Mr. Winston’s business relationship with Kandi Koated
Entertainment, Mr. Winston conducted business with Kandi Koated Entertainment
on behalf of himself, as well as on behalf of the various entities owned and
operated by Mr. Winston, including JW Exclusive Designs, aka Exclusive Designs,
LLC.
11
.
According to the Georgia Secretary of State Website, Exclusive Designs,
LLC was administratively dissolved on February 16, 2016. (See Ex. B, Secretary
of State
Certificate of Administrative Dissolution/Revocation.)
12
.
No records for an entity named JW Exclusive Designs exist on the Georgia
Secretary of State Website.


13.
Upon information and belief, as of the date of the filing of these
counterclaims, Mr. Winston continues to own, operate, and conduct business in
Georgia through the entity JW Exclusive Designs
, aka Exclusive Designs, LLC.
14
.
Mr. Winston’s prior business relationship with Kandi Koated Entertainment
ended on or around
February 29, 2016.
15
.
On February 29, 2016, Mr. Winston signed an agreement that terminated his
independent contractor services to Kandi Koated Entertainment. (See Ex. C,
Termination of Service.)
16
.
That agreement provided: “We remain committed to the terms, covenants,
and promises as set forth in the Confidentiality and Non Disclosure Agreement
signed by you and we anticipate that you will reciprocate the same.”
2
17
.
Although Mr. Winston’s prior business relationship with Kandi Koated
Entertainment ended in February 2016, Defendants continued to contract solely
with Mr.
Winston’s entity, JW Exclusive Designs
, aka Exclusive Designs LLC, to



2 Mr. Winston also signed a similar agreement with this language in April 2015. (See Ex.
D, April 20, 2015 Correspondence.)
assist with various events sponsored by prior business relationship with Kandi
Koated Entertainment ended on or around February 29, 2016.
18
.
Between February 2016 and August 2016, Defendants
contracted with Mr.
Winston’s entity on
at least two occasions to assist with events.
19
.
Ms. Burruss-Tucker is a public figure known for over 20-year long career as
a musician, producer, actress, and business woman.
20
.
Ms. Burruss-Tucker is a regular cast member of RHOA, which airs primarily
on the Bravo Channel or TV, Bravo Media LLC, a division of NBCUniversal
(“Bravo”), and is broadcast nationally and internationally as well as online.
21
.
Throughout his business relationship with Kandi Koated Entertainment, and
as a function of his business relationship with
Kandi Koated Entertainment, Mr.
Winston made appearances on RHOA.
22
.
Mr. Winston gained publicity for the services that he offered through the
entities that he owned and operated due to his appearances on RHOA.

23.
Subsequent to the end of Mr. Winston’s business relationship with Kandi
Koated Entertainment
, Mr. Winston would no longer have the access or ability to
appear on RHOA that he previously enjoyed due to his prior business relationship
with Kandi Koated Entertainment.
24
.
On an episode of RHOA that aired on Janu
ary 8, 2017,
Mr. Winston
appeared on air in relation to an event sponsored by
Kandi Koated Entertainment

that occurred in August 2016.
25
.
Kandi Koated Entertainment
engaged the services of JW Exclusive Designs
to assist with the event that
Kandi Koated Entertainment sponsored in August
2016.
26
.
The content that aired on January 8, 2017, was filmed in August 2016.

27
.
Between February 2016 and August 2016,
no request for
additional pay for
contractor services provided to Kandi Koated Entertainment was made on behalf
of Mr. Winston, JW Exclusive Designs, or Exclusive Designs, LLC.
28.
Between February 2016 and August 12, 2016, no complaint regarding
compensation for contractor services provided to Kandi Koated Entertainment was
requested on behalf of Mr. Winston, JW Exclusive Designs, or Exclusive Designs,
LLC.
29
.
The first time that Defendants learned that Mr. Winston was unsatisfied with
the amount of pay he received during his business relationship with
Kandi Koated
Entertainment
was in August 2016, during filming of RHOA, which occurred at
least six months after the
end of his prior business relationship with Kandi Koated
Entertainment
.
30
.
Ms. Burruss-Tucker did not request that Mr. Winston appear on RHOA.
31
.
The services that Mr. Winston provided through JW Exclusive Designs for
the event sponsored by Kandi Koated Entertainment in August 2016 were rendered
completely and were wholly different from Mr. Winston’s appearance on RHOA
in August 2016.


32.
During the episode of RHOA that was filmed
in August 2016, Ms. Burruss-
Tucker makes the following statement, or substantially similar statement, regarding
an Instagram post
(attached as Ex. E) in which Mr. Winston appears to be upset: “I
hired Johnnie [Mr. Winston] to work at the Kandi Factory 3 years ago. Johnnie had
his own event planning company at the time on the side so I tried to help him out,
tried to get him more clients, when it was time for
the wedding I let him be the
coordinator so that he could get more credit for his company… I had to let Johnnie
go earlier this year because he kept dropping the ball. But, it was no hard feelings,
so I continued to hire Johnnie’s company for events that I had going on during the
year.”
33
.
During the same episode of RHOA that was filmed
in August 2016, Ms.
Burruss-Tucker spoke with Mr. Winston regarding the Instagram post and why Mr.
Winston appeared to be upset.
34
.
In response to
Ms. Burruss-Tucker’s inquiry as to why he was upset, Mr.
Winston responded that he felt as if he could have had a “closer
conversation” with
Ms. Burruss-Tucker prior to the end of his business relationship with Kandi Koated
Entertainment.
35.
Mr. Winston asked Ms. Burruss-Tucker if she felt that Mr. Winston was
getting the pay each week that he deserved based on what he was
doing.
36
.
Ms. Burruss-Tucker responded that Mr. Winston accepted the pay and that if
he did not feel that he was getting the pay he deserved
, he could have gone to Ms.
Burruss-Tucker’s business manager, DonJuan Clark (“Mr. Clark”) with his
concerns. Ms. Burruss-Tucker further responded that Mr. Winston was continuing
to get business because of the work that he was doing with Defendants.
37
.
Later in the episode of RHOA that aired on January 8, 2017,
Mr. Winston
met with Phaedra Parks (“Ms. Parks”), a cast member of RHOA.
38
.
Although Ms. Parks is an attorney, Ms. Parks does not now, and has never,
represented Mr. Winston as an attorney.
39
.
During his discussion with Ms. Parks, Mr. Winston revealed alleged checks
that he had received on behalf of JW Exclusive Designs, aka Exclusive Designs,
LLC, for contractor services performed for Kandi Koated Entertainment.

40.
During his discussion with Ms. Parks, Ms. Parks asked Mr. Winston whether
he ever received an annual review or insurance benefits, to which
Mr
. Winston
answered that he had not.
41
.
During the same discussion with
Ms. Parks, Ms. Parks asked Mr. Winston
why he felt compelled to become “vested” with Defendants.
42
.
Mr. Winston responded to Parks’s inquiry: “I just really thought that we
were going to be business partners ultimately. Kandi and I had met to open a
restaurant. We had actually looked at a property downtown. She and I met with a
realtor and went there first.”
43
.
In response to
Mr. Winston’s statement, Ms. Parks asked Mr. Winston: “So
you and her had been actively pursuing the establishment?... So ya’ll [sic] were
going to be restauranteurs together?”
44
.
Mr. Winston answered Ms. Parks’s question in response: “Exactly. But then,
mont
hs ago it’s like- Oh well Todd [Ms. Burruss-Tucker’s husband] and I are
going to open up a restaurant and I was like- since when did you decide to open up
a restaurant? It was like a slap in the face.”
45
.
In a RHOA episode that aired on March 26, 2017,
Mr. Winston again
appeared on air with Ms. Parks as well as one of his current attorneys in the present
suit, Oscar Prioleau, Jr. (“Mr. Prioleau”).
46
.
Mr. Priloeau stated that his understanding was that Mr. Winston had two
issues. The first issue
was that Mr. Winston feels as though he had not been
compensat
ed for the hours that he worked. The second issue had to do with “some
agreements that you made with your former employer and that agreement has not
been adhered to.”
47
.
Mr. Winston responded that Mr. Priloeau was correct. Mr. Winston further
states: “In
March of 2015, they were asking me what were some alternate things
that I wanted to do. And I talked about the restaurant. Kandi thought it was a good
idea because she said she’s always looking for something to invest in.”
48
.
Mr. Priloeau then asked Mr. Winston if he asked Ms. Burruss-Tucker to
invest in the restaurant, to which
Mr. Winston replied: “I asked her if she would be
a silent partner. I did ask her that. She said that she would and I didn’t hear
anything else about it. 8 months later- ‘Oh well me and Todd are going to open up
a restaurant.’ The concept was the same exact concept that I told them.”
49
.
Later during the on
-
air discussion between Ms. Parks and Mr. Priloeau, Mr.
Winston stated: “This isn’t the first time that an idea has been ripped off. Just like
the play A Mother’s Love. I came up with the whole concept of the play and they
ran with it.”
50
.
When Mr. Winston made on-air comments regarding the play produced, in
part, by Kandi Koated Entertainment entitled “A Mother’s Love,” Mr. Winston
was aware that the content of the play is based loosely on
Ms. Burruss-Tucker’s
own relationship with her husband and mother, a topic that had been a prominent
storyline on RHOA in previous seasons.
51
.
Mr. Winston’s on-air comments regarding Ms. Burruss-Tucker’s restaurant
business and
the play entitled “A Mother’s Love” were made with actual malice as
Mr. Winston was aware his statements were false and/or had a reckless disregard
for their falsity.

52.
Mr. Winston’s on-air comments regarding Ms. Burruss-Tucker’s restaurant
business and
the play entitled “A Mother’s Love” were calculated to injure
Defendants.
53
.
As a direct and proximate result of
Mr. Winston’s false and malicious
statements
and publications, Defendants have suffered, and are suffering damages,
including, but not limited to, humiliation, ridicule, hatred, contempt
, injury or
impairment to their reputation and/or standing in the community and/or
embarrassment, which damages will continue to be suffered now and in the future.
The injuries are either permanent or continuing in nature.
54
.
Mr. Winston’s on-air comments relating to Defendants was a disclosure in
breach of the NDA that
Mr. Winston executed on or around December 2, 2012 and
of the Termination of Service agreement that Mr. Winston executed on February
29, 2016.
55
.
On or around March 10, 2010,
Ms. Burruss-Tucker signed an agreement
with True Entertainment, LLC, the production company for RHOA. The agreement
between Ms. Burruss-Tucker and True Entertainment, LLC has no bearing on the
instant matter as Mr. Winston was not a cast member, or participant, of RHOA.
56
.
Upon information and belief, Mr. Winston signed an appearance release
with True Entertainment, LLC, before appearing on RHOA in January and March
2017.

57
.
Upon information and belief, the appearance release provides that Mr.
Winston will not receive any compensation for appearing on RHOA.
58
.
Upon information and belief, the appearance release provides that Mr.
Winston will not bring any claims against True Entertainment, LLC, or its on-air
talent, that arise out of or result from his appearance on RHOA.
COUNT I
(BREACH OF CONTRACT)

59
.
Defendants adopt by reference and re-allege the allegations of Paragraphs 1
through 58 above, as if fully set forth herein.
60
.
Defendants and Mr. Winston entered into a valid enforceable contract and
NDA whereby
Mr. Winston agreed “either during the course of [his] employment,
personal or business relationship with [Defendants] or at any other time
thereafter,” not to “divulge to another person, firm or company, any information
relating to the Company, the Owner, their employees, associates, affiliates, or
family members, or any of the business secrets or dealings of the Company or the
Owner which [he] may have acquired in the cours
e
of… [his] relationship
therewith.”
61
.
Further, Mr. Winston and Defendants entered into a valid enforceable
contract whereby
Mr. Winston agreed “that any and all private information
obtained about the Company, the Owner, the Owner’s family, friends, and
personal
associates, during the course of the relationship between the parties hereto,
including but not limited to medical, financial, legal, and Family’s assets are
strictly confidential and may not be disclosed to any third party for any reason
other than as described herein.”
62
.
Notwithstanding the false nature of his statements,
Mr. Winston has
breached, and continues to breach the NDA that he executed with Defendants by
divulging and publishing to third parties, nationally and internationally, and
through a forum that remains available for republication, statements referenced in
Paragraphs 39 and 40 herein. Such statements are “information relating to the
Company, the Owner, their employees, associates, affiliates, or family members,”
as well as “the business secrets or dealings of the Company or the Owner which
[he] may have acquired in the course [his] employment or relationship therewith.”
63
.
Notwithstanding the false nature of his statements,
Mr. Winston has
breached, and continues to breach the NDA that he executed with Defendants by
divulging and publishing to third parties, nationally and internationally, and
through a forum that remains available for republication, statements referenced in
Paragraphs 39 and 40 herein. Such statements are “private information obtained
about the Company, the Owner, the Owner’s family, friends, and personal
associates, during the course of the relationship between the parties hereto,
including but not limited to medical, financial, legal, and Family’s assets.”
64
.
As a result of
Mr. Winston’s breaches of the NDA, Defendants have
suffered damages in an amount to be determined at trial.
COUNT II

(DEFAMATION AND SLANDER)

65
.
Defendants adopt by reference and re-allege the allegations of Paragraphs 1
through 64 above, as if fully set forth herein.

66.
Mr. Winston falsely and maliciously defamed Defendants of violating an
oral agreement to become restaurant partners.
67
.
Mr. Winston falsely and maliciously defamed Defendants of stealing a
restaurant idea from him.
68
.
Mr. Winston falsely and maliciously defamed Defendants of “ripping off” an
idea of a play, which ultimately became a play produced
, in part, by Kandi Koated
Entertainment entitled “A Mother’s Love.”
69
.
Mr. Winston’s false and malicious statements were published by Mr.
Winston to third parties, nationally and internationally, and remain available for
republication.
70
.
Mr. Winston’s intent of publishing his defamatory statements were
calculated to injure Defendants’ professional reputation and businesses.
71
.
Mr. Winston’s’ false and defamatory statements were not privileged.

72.
Mr. Winston made the false statements with actual malice as Mr. Winston
made the statements knowing their falsity or with reckless disregard for their
falsehood.
73
.
The false statements published by Mr. Winston were designed by Mr.
Winston to cause harm to Defendants, and have caused harm to Defendants, and
made solely in an effort to promote
Mr. Winston’s own “celebrity” and
compensation abilities.
74
.
Defendants’ reputations has been damaged as a direct and proximate result
of Mr. Winston’s tortious defamation.
75
.
Mr. Winston’s defamation was intentional, willful and malicious, thus
entitling Defendants to an award of punitive or exemplary damages.
PRAYER FOR RELIEF
WHEREFORE, Defendants demand a TRIAL BY JURY and respectfully
request that this Court grant the following relief:
(1) Dismiss Mr. Winston’s action against Defendants with prejudice; a
(2) Award Defendants damages, in an amount to be determined at trial, for
Mr. Winston’s breach of his Non-Disclosure Agreement and Termination
of Service Agreement;
(3) Award Defendants damages, in an amount to be determined at trial, for Mr. Winston’s tortious conduct of committing defamation and slander
against Defendants, including an award o
f punitive or exemplary
damages under O.C.GA. §51
-12-5.1; and
(4) All such other relief as the Court may deem just and proper.
R
espectfully submitted this 6th day of April, 2017.
/s/ Allegra J. Lawrence
Precious Anderson (GA Bar
017783)
T
HE ANDERSON FIRM, LLC
1100 Spring Street, Suite 730
Atlanta, Georgia 30309
Telephone: 404.521.1111

Facsimile: 404.521.1919
[email protected]
Allegra J. Lawrence (GA Bar 439797)
Victoria C. Smith (GA Bar 836602)
L
AWRENCE & BUNDY LLC
1180 West Peachtree Street N.W., Suite 1650
Atlanta, Georgia 30309
Telephone: 404.400.3350
Facsimile: 404.609.2504
[email protected]
[email protected]


Attorneys for Defendants Kandi Burruss-Tucker
and Kandi Koated Entertainment, Inc.


EXHIBIT A






EXHIBIT B

Control Number : 12017163
STATE OF GEORGIA

Secretary of State
Corporations Division
313 West Tower
2 Martin Luther King, Jr. Dr.
Atlanta, Georgia 30334-1530
CERTIFICATE OF ADMINISTRATIVE DISSOLUTION/REVOCATION

€I, Brian P. Kemp, the Secretary of State and the Corporation Commissioner of the State of Georgia,
hereby certify under the seal of my office that

€EXCLUSIVE DESIGNS, LLC
a€Domestic Limited Liability Company
was mailed a notice in accordance with Title 14 of the Official Code of Georgia Annotated and was
involuntarily or administratively dissolved or its certificate of authority revoked by the Office of Secretary
of State on 02/16/2016 for failure to file its annual registration.

This certificate is issued pursuant to Title 14 of the Official Code of Georgia Annotated and is prima-facie
evidence of the existence or nonexistence of the facts stated herein.








WITNESS my hand and official seal in the City of Atlanta
and the State of Georgia on€ 02/16/2016




€€



EXHIBIT C




EXHIBIT D






EXHIBIT E

CERTIFICATE OF SERVICE
I
hereby certify that on
April 6, 2017
, I electronically filed the foregoing
DEFENDANTS KANDI BURRUSS-TUCKER AND KANDI KOATED
ENTERTAINMENT, INC.’S MOTION FOR LEAVE TO AMEND ANSWER
TO PLAINTIFFS’ AMENDED COMPLAINT TO ADD COUNTERCLAIM

with the Clerk of Court using the CM/ECF system which will send notification of
such filing to the following attorneys of record:
Oscar E. Prioleau, Jr.
P
RIOLEAU & MILFORT, LLC
271 17th Street, N.W., Suite 520
Atlanta, Georgia 30363
[email protected]
Li
sa York Bowman
Y
ORK BOWMAN LAW, LLC
400 Perimet
er Center Terrace, Suite 900
Atlanta, Georgia 30346
[email protected]
I
further certify that the foregoing document was prepared using 14 point
Times New Roman font.
/s/ Allegra J. Lawrence
Allegra J. Lawrence