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DALLIS v. DON CUNNINGHAM & ASSOCS.

July 21, 1992

LUKE DALLIS, Plaintiff,
v.
DON CUNNINGHAM & ASSOCIATES, Defendant.


Kocoras


The opinion of the court was delivered by: CHARLES P. KOCORAS

CHARLES P. KOCORAS, District Judge:

 This matter comes before the court on defendant's motion to dismiss Count III of the third amended complaint pursuant to Rule 12(b)(6) Fed. R. Civ. P. For the reasons set forth below, the motion is granted.

 BACKGROUND

 Dallis voluntarily terminated his business relationship with Associates on April 15, 1989. Accordingly to the amended complaint, Associates prepared detailed monthly reports from February through August of 1989 that showed Dallis was entitled to $ 79,930.02 in unpaid commissions. Dallis also alleges that Associates received commissions from manufacturers after August of 1989 from orders obtained by Dallis prior to April 15, 1989. Associates allegedly never paid Dallis any of these commissions. Consequently, Dallis filed suit.

 In Count III of his third amended complaint, Dallis purports to state a claim for attorneys fees pursuant to the Illinois Attorneys Fees in Wage Actions Act, Ill.Rev.Stat. ch. 13 P. 13 (1991). Associates now move to dismiss Count III pursuant to Rule 12(b)(6) for failure to state a claim upon which relief may be granted.

 DISCUSSION

 The sole issue before the court is whether an independent contractor *fn1" can state a cause of action under the Illinois Attorneys Fees in Wage Actions Act ("the Act"), Ill.Rev.Stat. ch. 13, P 13 (1991). Associates argue that the Act only applies to employment relationships, and does not apply to actions brought by independent contractors. On the other hand, Dallis claims that the Act does not require that a plaintiff be an "employee" in order to pursue a claim under the Act, and that under the circumstances he should be allowed to state a claim for attorneys fees under the Act despite being an independent contractor.

 Ill.Rev.Stat. ch. 13, P 13 provides pertinent part:

 Whenever a mechanic, artisan, miner, laborer, or servant, or employee, shall have cause to bring suit for his or her wages earned and due, and owing according to the terms of the employment, and he or she shall establish by the decision of the court or jury that the amount for which he or she has brought suit is justly due and owing. . . then it shall be the duty of the court. . . to allow to the plaintiff. . . a reasonable attorney fee. . .

 Ill.Rev.Stat.. ch 13, P 13 (1981). The provisions allowing the recovery of attorneys fees are in derogation of common law, and therefore must be strictly construed. See Caruso v. Board of Trustees of Public School Teachers' Pension and Retirement Fund of Chicago, 129 Ill. App. 3d 1083, 85 Ill.Dec. 49, 473, 473 N.E.2d 417 N.E.2d 417 (1st Dist. 1984); Koudelka v. Village of Woodridge, 91 Ill. App. 3d 884, 46 Ill. Dec. 268, 413 N.E.2d 1381 (2d Dist. 1980).

 The Illinois Supreme Court has not yet defined the scope of the term "employee" under the act, and the Illinois appellate court opinions which address this issue appear to conflict. Therefore, we must construe the statute as we believe the Illinois Supreme Court would. See Barr Co. v. Safeco Insurance Co., 583 F. Supp. 248, 254 (N.D. Ill. 1984), rev'd in part, 706 F. Supp. 616 (N.D. Ill. 1989). In making such a prediction, we must consider relevant state precedents, analogous decisions, considered dicta, scholarly works, and any other reliable data tending convincingly to show how the highest court would decide the issue at hand. Id.

 In Reiss v. El Bauer Chevrolet Co., 96 Ill. App. 2d 266, 238 N.E.2d 619 (4th Dist. 1968), the court departed from previous cases which held that the term "employee" in the statute included only those who performed services comparable to a mechanic, artisan, miner, laborer, or servant. Rather, the court held that the word "employees" applied to "all employees who must sue to obtain payment of their wages and who otherwise comply with the requirements of the statute." Reiss, 96 Ill. App. 2d at 271, cited in Koop & Associates v. KPK Corp., 119 Ill. App. 3d 391, 75 Ill. Dec. 276, 457 N.E.2d 66, 76 (2d Dist. 1983). However, in Lites v. Jackson, 70 Ill. App. 3d 374, 26 Ill.Dec. 288, 387 N.E.2d 1118(1st Dist. 1979), the court held that the decision in Reiss was limited to the particular facts of the case, and ...


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