The opinion of the court was delivered by: Susan E. Cox United States Magistrate Judge
Magistrate Judge Susan E. Cox
MEMORANDUM OPINION AND ORDER
Plaintiff Mario Rogerio de Andrade Vitelo, ("Vitelo") is a former food and drink server of defendant Brazzaz, LLC, a Brazilian steakhouse restaurant. The original complaint alleges that Brazzaz and Sergio Aguire (collectively referred to as "Brazzaz") did not pay Vitelo and other employees the minimum wage required by the Fair Labor Standards Act ("FLSA"),*fn1 and the Illinois Minimum Wage Law ("IMWL") for a three year period. Now Vitelo seeks to amend the complaint to add a claim for recovery of overtime pay, and to add owner and manager of Brazzaz, Samuel Kochari ("Kochari"), as a defendant. Brazzaz opposes this motion, arguing that such amendments would be untimely because: (1) Vitelo brings this motion after the September 25, 2009, scheduling order deadline to amend has passed, and; (2) Vitelo does not establish good cause, which is specifically required when parties seek to amend after a scheduling order has been entered. Vitelo's motion to amend to add defendant Kochari is granted, and his motion with respect to the claim for overtime fees is denied [dkt.57].
On February 18, 2008, Vitelo filed his original complaint against Brazzaz, seeking unpaid minimum wage compensation for his employment at Brazzaz and any additional indemnification. The original complaint contained two counts against Brazzaz. On May 6, 2009, Brazzaz answered Vitelo's complaint, and brought four affirmative defenses. District Judge Coar entered a scheduling order on August 24, 2009, that required the parties to file amendments to the pleadings or actions to join other parties no later than September 25, 2009.*fn2 On January 21, 2010, both parties voluntarily consented to this Court's jurisdiction, pursuant to 28 U.S.C. 636(c)(1). On that same day, the parties submitted a revised, proposed, joint scheduling order that the court noted would be considered after the parties proceeded with their requested settlement conference.
On March 15 and again on April 13, 2010, the parties engaged in settlement negotiations before Magistrate Judge Valdez. Three months later, after two unsuccessful settlement conferences, the parties returned to this Court on April 26, 2010. At that hearing, Vitelo requested leave to file a motion to amend his complaint. By this time, the deadlines to amend in the schedule set by Judge Coar had passed. The deadline in the proposed scheduling order -given to the Court back onJanuary 21, 2010 (but not entered) - provided that the parties had agreed to no further amendments.
II. Allegations in the Complaint & Proposed Amended Complaint
Vitelo alleges that during his time as a food and drink server at Brazzaz, he and other servers were paid below the minimum wage required by the FLSA and IMWL.*fn3 Under FLSA and the IMWL, Brazzaz is not entitled to a tip credit.*fn4 Vitelo's complaint alleges, however, that when he received tips from customers, a portion of the tips were retained by the restaurant and allocated to ineligible employees.*fn5 The complaint further alleges that Vitelo, and similarly situated workers, were paid less than the minimum wage.*fn6 Vitelo, therefore, seeks unpaid wages, attorneys' fees and costs.
In his proposed amended complaint, Vitelo seeks to add Kochari as a defendant, alleging that he is a manager and/ or owner of Brazzaz. Specifically, Vitelo alleges that Kochari acted in the interest of an employer relative to Vitelo and other servers.*fn7 Vitelo also alleges that he and similarly situated workers are entitled additional overtime wages under the FLSA and IMWL, that Brazzaz underpaid.*fn8
Motions to amend are governed by Federal Rule of Civil Procedure 15. Rule 15(a) is a liberal standard providing that a motion to amend should be granted unless there is "evidence of undue delay, bad faith, dilatory motive, prejudice, or futility."*fn9 Courts consider requests to include a party presented in a motion to amend under Rule 15(a), even though Rule 21 focuses on the joinder of parties.*fn10 When a scheduling order has already been set in the case, however, Rule 16(b)(4) dictates that to amend a scheduling order "good cause" must be shown and it must be "with the judge's consent."*fn11 Rule 16(b)'s good cause standard mainly considers "'the diligence of the party seeking amendment.'"*fn12 If the party then meets the good cause requirement in Rule 16, the party must demonstrate that the amendment was proper under Rule 15.*fn13
Brazzaz argues that Vitelo's motion to amend is too late. First, Brazzaz notes that it supplied Vitelo with the payroll records back on October 15, 2009. Those same records are what Vitelo now claims as the basis for his proposed new claim for overtime pay. Second, Brazzaz argues that Kochari's identity was known at the initial stages of discovery. Brazzaz then points to Vitelo's Rule 26 disclosures, where Kochari was listed as "Sam (Last Name Unknown) - Owner."*fn14 Finally, Brazzaz argues that this motion should be denied because Vitelo agreed, ...