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Musso v. Excellence in Motivation

August 24, 2010

RICHARD MUSSO, PLAINTIFF,
v.
EXCELLENCE IN MOTIVATION, INC., ROBERT J. MILLER, JOHN E. KERNAN, III, AND BEVERLY F. SHILLITO, DEFENDANTS.



The opinion of the court was delivered by: Elaine E. Bucklo United States District Judge

MEMORANDUM OPINION AND ORDER

On May 26, 2010, defendants removed this action from the Circuit Court of Cook County, where plaintiff had filed a ten count complaint arising out of his employment termination by defendants. Now before me is defendants' motion to dismiss count III, which alleges violations of the Illinois Wage Act, 820 ILCS 115/1, et seq., count V, which is styled "Breach of Contract (Good Faith and Fair Dealing), and count VIII, which alleges violations of the Personnel Record and Review Act, 820 ILCS 40/1, et seq. For the following reasons, the motion is granted in part.

I.

A motion to dismiss tests the sufficiency of the complaint, not its merits. See, e.g., Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). In resolving defendants' motion, I must accept all well-pleaded allegations in the complaint as true and draw all reasonable inferences in plaintiff's favor. McMillan v. Collection Prof'ls, Inc., 455 F.3d 754, 758 (7th Cir. 2006). Plaintiff must, nevertheless, allege sufficient factual material to suggest plausibly that it is entitled to relief. Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1965 (2007).

II. The Illinois Wage Act

Defendants argue that this claim must be dismissed because they are not "Illinois employers," and are therefore outside the reach of the statute. The cases cited in support of this claim's dismissal indeed leave little doubt that the Illinois Wage Act does not extend to out-of-state employers. DeGeer v. Gillis,--F. Supp. 2d.---2010 WL 1609914 at *12 (N.D. Ill. Apr. 21, 2010)(Bucklo, J.); Maxwell v. Vertical Networks, Inc., No. 03 C 5715, 2005 WL 950634, *10 (N.D. Ill. Mar. 18, 2005) (Ashman, MJ.); Khan v. Van Remmen, Inc., 756 N.E.2d 902, 912 (Ill. App. Ct. 2001).*fn1 What none of these cases resolves, however, is whether a corporation that, although a foreign citizen, not only conducts substantial business in Illinois, but also maintains offices and a registered agent in the state,*fn2 is an "Illinois employer" for the purposes of the statute.

In DeGeer, I dismissed the plaintiff's Wage Act claim on the ground that the defendants---all individuals---were citizens of foreign states, and that they could not be liable under the Wage Act based on allegations that they were agents of non-party companies alleged to be in-state. I had no need to consider, in the context of that case, under what circumstances an entity organized in another state could be deemed an Illinois employer for the purposes of the Wage Act.

In Maxwell, the court made clear that out-of-state employers were outside the purview of the Wage Act, then dismissed a statutory claim against a California company with its principal place of business in California. The court's analysis focused on whether the Wage Act could be asserted against an out-of-state employer (noting the paucity of judicial authority on the issue) and did not address the question of whether a foreign corporation headquartered in another state could be deemed an Illinois employer based on business it conducts in Illinois. Indeed, for all that the opinion reveals, the Maxwell plaintiff may have conceded that the defendant was an out-of-state employer.

In Khan, the Illinois Appellate Court concluded that a "labor placement agency" incorporated in Delaware, with its principal place of business in Wisconsin, no offices or phone number in Illinois, and which was not "doing business" in Illinois for jurisdictional purposes, also was not an Illinois employer for purposes of the Wage Act. Notably, the court explicitly limited its holding to the facts of that case, stating, "we do not purport to create an all-encompassing definition of 'employers in this State' for purposes of the Wage Act. Rather, we determine only that under the circumstances of this case plaintiff has not pleaded any facts from which we could conclude that [either of the defendants] was an employer in this state." 756 N.E.2d at 913. Accordingly, defendants' reliance on Khan is particularly misplaced, because that case expressly left open the possibility that on a different set of facts, a foreign corporation could be considered an Illinois employer.

Finally, the Wage Act provides that "an officer or agent who knowingly permits an employer to violate the Act shall be deemed to be an employer." DeGeer, 2010 WL 1609914 at *13 (quoting Porter v. Time4Media, Inc., No. 05 C 2470, 2006 WL 3095750, at *6 (N.D. Ill. Oct. 30, 2006)) (Hibbler, J.). In DeGeer, as noted above, I dismissed the plaintiff's Wage Act claim against the individual defendants because not only were the individuals citizens of foreign states, but plaintiff had brought no claims against any in-state employer on whose behalf these individuals had allegedly acted. By contrast, in this case, plaintiff alleges violations of the Wage Act by an in-state company and its agents. Nothing in DeGeer prevents him from pursuing this claim.

In sum, I conclude that it would be premature at this stage to dismiss plaintiff's Wage Act claim on the ground that defendants are not Illinois employers under the statute.

III. Breach of Contract

Defendants attack count V of plaintiff's complaint on several grounds. Their first argument is that the claim should be dismissed because Illinois law recognizes no independent cause of action for the breach of good faith and fair dealing that is separate from the duties imposed by contract. This argument is somewhat mystifying, since the count is in fact styled "Breach of contract (good faith and fair dealing)," and thus explicitly identifies it as a breach of contract claim. Accordingly, defendants' first argument has no merit.

Defendants advance alternative grounds for this claim's dismissal, however, which do have merit. They argue that the count fails to state a claim for breach of contract, and that to the extent it adequately pleads such a claim, it is duplicative of counts I and II, each of which asserts a breach of an oral compensation agreement. To the extent count V alleges a breach of EIM's obligation to pay plaintiff bonuses he claims are due ...


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