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Lizak v. Great Masonry

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION


June 2, 2008

BOGDAN LIZAK, PLAINTIFF,
v.
GREAT MASONRY, INC., AND KRZYSZTOF MENDYS, DEFENDANTS.

The opinion of the court was delivered by: Judge Coar

Magistrate Judge Nolan

PLAINTIFF'S MOTION FOR ENTRY OF DEFAULT JUDGMENT AND ORDER SETTING PROVE-UP HEARING

Plaintiff Bogdan Lizak, through his attorneys, respectfully moves pursuant to Fed.R.Civ.P. 55(b)(2) for entry of a default judgment and order setting a prove-up hearing, in the form attached or otherwise, against Defendants Great Masonry, Inc. ("Company"), and Krzysztof Mendys ("Mendys") (the Company and Mendys together will be referred to at times as "Defendants"). In support, Lizak respectfully states as follows:

1. This is an employment action seeking relief for violations of the Fair Labor Standards Act, 29 U.S.C. § 201, et seq. ("FLSA"); the Illinois Minimum Wage Law, §820 ILCS 105/1, et seq. ("IMWL"); the Illinois Employee Classification Act, § 820 ILCS 185/1, et seq. ("IECA"); and the common law of retaliatory discharge.

2. As set forth in the complaint, the Court has jurisdiction over Counts I, II, and III pursuant to 29 U.S.C. § 216(b) and 28 U.S.C. § 1331; and over Counts IV, V, VI, and VII pursuant to 28 U.S.C. § 1367.

3. As is also set forth in the complaint, venue if proper in this district under 28 U.S.C. § 1391 because the Defendants reside in this district and because all or a substantial part in the events giving rise to the claims occurred within this district.

4. As set forth in the complaint, Lizak is an "employee" within the meaning of each of the applicable statutes, the Company is a "employer" within the meaning of each of those statutes, and Mendys is an "employer" within the meaning of the FLSA and IMWL.

5. As set forth in the complaint, Lizak was employed by the Company from at least January 2005 through January 2008 performing masonry construction.

6. As set forth in Counts I and IV, the Defendants frequently required Lizak to work more than 40 hours a week but failed to pay him premium rates in violation of the FLSA (Count I) and the IMWL (IV).

7. As set forth in the complaint, the Defendants failed to pay Lizak any wages for his work between January 13 and 18, 2008, thereby violating the FLSA (Count II) and the IMWL (Count V).

8. As set forth in the complaint, the Defendants discharged Lizak in late January 2008 in retaliation for his complaints about their failure to pay him for work earlier that month, thereby violating the FLSA (Count III) and Illinois common law (Count VI).

9. As set forth in the complaint, the Company improperly classified Lizak as an independent contractor rather than as an employee, thereby violating the IECA (Count VII).

10. As set forth in the Return of Service forms filed with the Clerk on May 23, 2008, the summonses and complaints were personally served on each of the defendants on May 9, 2008, making their answers or responsive pleadings due May 29. Exhibits A, B, attached.

11. Neither the Company nor Mendys has answered, filed some other responsive pleading, or had an appearance entered on its or his behalf.

12. Lizak seeks an order finding the Defendants to be in default and setting a prove-up hearing at which time he will be prepared to present evidence as to the damages he has incurred because of the Defendants' unlawful actions as alleged in the complaint.

20080602

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