The opinion of the court was delivered by: Judge Joan B. Gottschall
MEMORANDUM OPINION AND ORDER
Plaintiff Darrick Hundt brought this action against "DirectSat USA, LLC a/k/a UniTek USA," based on the defendant's alleged failure to pay him and other similarly-situated employees overtime wages in violation of the Fair Labor Standards Act (the "FLSA"), 29 U.S.C. § 201, et seq., and the Illinois Minimum Wage Act (the "IMWA"), 815 Ill. Comp. Stat. 5/2-209. This matter comes before the court on Hundt's motion for leave to file an amended complaint. (Doc. No. 60.) For the reasons set forth below, Hundt's motion for leave to amend is granted in part and denied in part.
Hundt's initial complaint asserted claims against "DirectSat USA, LLC, a/k/a UniTek USA" ("DirectSat"), on behalf of himself and other similarly situated "warehouse managers." (Compl., Doc. No. 1.) In the initial complaint, Hundt alleged that DirectSat had classified him and other "warehouse managers" as "exempt from overtime pay[,] even though . . . the duties test for an overtime exemption was not met."
(Id. ¶¶ 9, 13, 15, 19.) As a result, Hundt and the other warehouse managers were allegedly deprived of overtime pay, in violation of the FLSA and IMWA. (Id. ¶¶ 8, 19-20.)
Since this is a "collective action" under the FLSA rather than a traditional class action under Federal Rule of Civil Procedure 23, Hundt is authorized to bring suit only on behalf of similarly-situated employees who "opt-in" to the case. See Madden v. Corinthian Colls., Inc., No. 08 C 6623, 2009 WL 4757269, at *1-3 (N.D. Ill. Dec. 8, 2009) (describing FSLA collective action litigation process). Pursuant to an agreement between the parties, the court entered an order allowing Hundt to send opt-in notices to warehouse managers on a list provided by DirectSat.(See Order, Feb. 23, 2009, Doc. No. 24.) At the time the order was entered, the court denied Hundt's oral motion to compel discovery relating to "warehouse supervisors," on the grounds that the issue was "not yet ripe." (Id.)
Donald Caswell was one of the prospective plaintiffs who returned an opt-in notice to Hundt's counsel. (Notice of Consent, Doc. No. 30.) In the notice, Caswell claimed to have been "employed by DirectSat as a warehouse manager within the prior three (3) years." (Id.) DirectSat moved to strike Caswell's notice, arguing that "[a]lthough Mr. Caswell has worked for DirectSat, he was never employed as a warehouse manager." (Mot. to Strike ¶ 7, Doc. No. 35.) The court denied DirectSat's motion, holding that:
The court's [February 23, 2009] order requiring Defendant to produce a list of warehouse managers for notice purposes did not state or imply that the final plaintiff class would be limited based upon Defendant's characterization of its employees' positions. To the contrary, under FLSA job titles are insufficient to create or defeat a claimed exemption from the overtime pay rules. Accordingly, after discovery has closed the court may need to look past Defendant's job titles to see whether or not opt-in plaintiffs are similarly situated to each other. (Order, July 2, 2009, Doc. No. 54.)
B. Proposed Amended Complaint
The proposed amended complaint seeks to add UniTek and FTS as defendants, both of which are alleged to be subsidiaries of DirectSat. (See Proposed Am. Compl. ¶ 7, Ex. A to Mot.) According to Hundt, DirectSat, UniTek, and FTS (collectively, the "Corporate Defendants") are all headquartered in Pennsylvania. (Id. ¶¶ 6-8.) Only DirectSat and UniTek are alleged to have "places of business" in Illinois. (Id. ¶¶ 6-7.)
The proposed amended complaint also seeks to add a number of individual UniTek and FTS officers as defendants. (See id.) Specifically, Hundt seeks to bring claims against Dan Yannantuono, CEO of DirectSat; Chris Perkins, CEO of FTS; Elizabeth Downey, Chief Administrative Officer and former Director of Human Resources at UniTek; and Cathy Lawley, current Director of Human Resources at UniTek (collectively, the "Individual Defendants"). (Id. ¶¶ 9, 12, 15, 18.) According to the proposed amended complaint, the Individual Defendants were responsible for "devising, directing, implementing, and supervising the wage and hour practices and policies relating to employees." (Id. ¶¶ 10, 13, 16, 19.) Hundt alleges that the Individual Defendants have authority to "hire and fire employees, . . . direct and supervise work of employees, . . . sign on corporate checking accounts, including payroll accounts, and . . . make decisions regarding wage and hour classifications, employee compensation and capital expenditures." (Id. ¶¶ 9, 12, 15, 18.) The "policies and practices" instituted by the Individual Defendants allegedly "treated Plaintiff and other warehouse managers, warehouse supervisors and persons with other similarly-titled positions as exempt from overtime pay even though . . . the duties test for an overtime exemption was not met." (Id. ¶ 23.) The proposed amended complaint also seeks expand the putative class of plaintiffs to include "warehouse supervisors and other similarly-titled positions." (Id. ¶ 5.)
Under Federal Rule of Civil Procedure 15(a), a party may amend its pleading "once as a matter of course" within 21 days of service or the filing of a responsive pleading or motion. Fed. R. Civ. P. 15(a)(1). "In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave," and the court "should freely give leave when justice so requires." Id. 15(a)(2). "However, a court may refuse to give leave to amend based upon undue delay, bad faith, dilatory motive, prejudice, or futility." Adams v. Szczerbinski, 329 Fed. Appx. 19, 22-23 (7th Cir. 2009). An amendment is "futile" if it would not withstand a motion to dismiss for lack of personal jurisdiction. See Farmer v. DirectSat USA, LLC, No. 08-cv-3962, 2010 WL 380697, at *1 (N.D. Ill. Jan. 28, 2010).
"A complaint need not include facts alleging personal jurisdiction." Chi. Reg'l Council of Carpenters v. Joseph J. Sciamanna, Inc., No. 08 C 4636, 2009 WL 1543892, at *2 (N.D. Ill. June 3, 2009) (citing Steel Warehouse of Wis., Inc. v. Leach, 154 F.3d 712, 715 (7th Cir. 1998)). "[O]nce a defendant moves to dismiss the complaint under Rule 12(b)(2) for lack of personal jurisdiction, the plaintiff bears the burden of establishing the existence of jurisdiction." Id. (citing Purdue Research Found. v. SanofiSynthelabo, S.A., 338 F.3d 773, 782 (7th Cir. 2003)). "If the defendant submits affidavits or other evidence opposing the exercise of jurisdiction, 'the plaintiff must go beyond the pleadings and submit affirmative evidence supporting the exercise of jurisdiction.'" Id. (citing Purdue Research Found., 338 F.3d at 782). "[T]he court must resolve any factual disputes in the plaintiff's favor, but must accept the allegations in the complaint as true only to the extent that they are not controverted by other evidence in the record." Consumer Program Admin., Inc. v. K.B. Parrish & Co., L.L.P., No. 09 C 3731, 2009 WL 4788681, at *1 (N.D. Ill. Dec. 9, 2009) (citing Turnock v. Cope, 816 F.2d 332, 333 (7th Cir. 1987)). "'The [c]court resolves factual disputes in the pleadings and affidavits in favor ...