The opinion of the court was delivered by: Charles Kocoras, District Judge
This matter comes before the court on cross-motions for summary judgment. Plaintiff Louis Amoroso moves for summary judgment as against Defendants Crescent Private Capital, L.P. ("CPC"), Wasserstein Adelson Ventures, L.P. ("WAV"), Swander Pace Capital, LLC ("SPC"). Defendants CPC, WAV, SPC, Nancy Amer, [ Page 2]
Hugh O'Donnell, Townsend Ziebold, Tom Huang, Bill Pace, and Scott Sellers move for summary judgment. Alternatively, should we deny Defendants' motion, they move for partial summary judgment on Amoroso's claims for attorney's fees. For the reasons set forth below, we deny Amoroso's motion and Defendants' primary motion, and we grant Defendants's partial motion in the alternative.
Amoroso served as President/CEO of Drinks.Com, Inc. ("Drinks. Com") from June 1, 1999, until January 19, 2001. (Defendants' Statement of Facts ("Def. Facts") ¶¶ 26-27.) In September 2000 Drinks.Com incurred a cash shortfall. As a result, eventually all of Drinks. Corn's staff was terminated except Amoroso. Amoroso left Drinks.Com on January 19, 2001, presumably because he had not received any compensation since the previous November. He now sues the Defendants under the Illinois Wage Payment and Collection Act ("Wage Act"), 820 ILCS § 115/1 et seq., for unpaid salary, unused vacation, and reimbursement for out of pocket expenses incurred as President of Drinks.Com.
Defendants move for summary judgment on the ground that as a matter of law Amoroso was not an employee for Wage Act purposes. Amoroso moves for summary judgment on the ground that as a matter of law he was an employee and that Defendants [ Page 3]
are employers for Wage Act purposes. Defendants also move, in the alternative, for partial summary judgment as to Amoroso's claims for attorney's fees.
Summary judgment is appropriate when the record, viewed in the light most favorable to the nonmoving party, reveals that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Bay v. Cassens Transport Co., 212 F.3d 969, 972 (7th Cir. 2000). The moving party bears the initial burden of showing that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The burden then shifts to the nonmoving party to show through specific evidence that a triable issue of fact remains on issues on which the nonmovant bears the burden of proof at trial. Id. The nonmovant may not rest upon mere allegations in the pleadings or upon conclusory statements in affidavits; it must go beyond the pleadings and support its contentions with proper documentary evidence. Id. A genuine issue of material fact exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
I. Illinois Wage Payment and Collection Act
The Wage Act requires employers to "pay the final compensation of separated employees in full, at the time of separation, if possible, but in no case later than the next [ Page 4]
regularly scheduled payday for such employee." 820 ILCS § 115/5. The Act defines an employee as:
any individual permitted to work by an employer in an
occupation, but shall not include any individual: (1)
who has been and will continue to be free from control
and direction over the performance of his work, both
under his contract of service with his employer and in
fact; and (2) who performs work which is either
outside the usual course of business or is performed
outside all of the places of business of the employer
unless the employer is in the business of contracting
with third parties for the placement of employees; and
(3) who is in an independently established trade,
occupation, profession or business.
820 ILCS § 115/2. In Doherty v. Kahn, 682 N.E.2d 163, 173 (111. App. Ct. 1997), the court applied subsection (1) in holding that the president of a company who maintains "control over the business and direction over the performance of his work" is not an employee under the Wage Act. However, one who is "not free from ...