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Franks v. MKM Oil

September 8, 2010


The opinion of the court was delivered by: Judge Virginia M. Kendall


Plaintiff Laura Franks ("Franks") filed suit against MKM Oil, Incorporated ("MKM") individually and on behalf of all others similarly situated, alleging violations of the Fair Labor Standards Act, 29 U.S.C. §§ 201-19 (2010) ("FLSA"), violations of the Illinois Minimum Wage Law, 820 ILCS 105/1-15 ("IMWL"), and violations of the Illinois Minimum Wage Payment and Collection Act, 820 ILCS 115/1-15 ("IMWPCA"), and seeking damages under theories of quantum meruit and unjust enrichment. MKM moves to dismiss Franks' Second Amended Complaint under Rules 10(b), 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. Additionally, MKM included exhibits in its Motion to Dismiss Franks' Second Amended Complaint. Franks moves to strike these exhibits.

For the reasons stated below, MKM's Motion to Dismiss is granted with respect to Franks' federal and state minimum wage claims and denied as to Franks' federal and state overtime claims and repayment claims under the FLSA and IMWPCA. Franks' Motion to Strike is granted.


The following facts are taken from Franks' Second Amended Complaint and are assumed to be true for purposes of this Motion to Dismiss. See Murphy v. Walker, 51 F.3d 714, 717 (7th Cir. 1995).

MKM is a company that owns and operates gas stations located in Illinois. MKM is a retail seller of gasoline and convenience store items.

Franks is an Assistant Manager at MKM. (Compl. ¶ 52.) One of her duties is to compile and calculate payroll and work hours for the MKM employees at her retail location, which she does each Friday evening. Compiling and calculating payroll, in addition to her regular duties, requires Franks to work over forty hours per week. (Compl. ¶ 54.) Franks states that MKM "forced" her to work "off-the-clock" while compiling and calculating payroll each Friday evening to avoid paying her overtime. (Compl. ¶ 53.) Moreover, her Manager at MKM actively changed Franks' recorded hours to ensure they did not exceed forty per week, even though Franks claims she worked over forty hours and was thus entitled to overtime pay. This forced "off-the-clock" work violates federal and state laws governing compensation for overtime.

Franks claims that "[i]t is and was at all relevant times, a policy of MKM to require employees to 'repay' MKM business expenses such as 'drive-aways.'" (Compl. ¶ 71.) "Driveaways" occur when a customer pumps gasoline at MKM and then leaves without paying for the purchase. (Compl. ¶ 44.) Employees were also required to reimburse MKM for bounced checks, inventory shortages and "charge backs" (credit card purchases that are disputed by customers). (Compl. ¶ 44.) Though Franks does not provide specific instances or monetary figures, she claims that MKM's policy requiring employees to reimburse MKM resulted in her earning below federal and state minimum wage standards. MKM's practices requiring employee reimbursement of company losses violate federal and state labor laws.


When considering a motion to dismiss under Rule 12(b)(6), the Court accepts as true all facts alleged in the complaint and construes all reasonable inferences in favor of the plaintiff. See Murphy, 51 F.3d at 717. To state a claim upon which relief can be granted, a complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). "Detailed factual allegations" are not required, but the plaintiff must allege facts that, when "accepted as true . . . 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In analyzing whether a complaint has met this standard, the "reviewing court [must] draw on its judicial experience and common sense." Iqbal, 129 S.Ct. at 1950. When there are well-pleaded factual allegations, the Court assumes their veracity and then determines if they plausibly give rise to an entitlement to relief. Id. A claim has facial plausibility when the pleaded factual content allows the Court to draw a reasonable inference that the defendant is liable for the misconduct alleged. See id. at 1949.

Federal Rule of Civil Procedure 12(b)(1) provides for dismissal for lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1); United Phosphorus, Ltd. v. Angus Chem. Co., 322 F.3d 942, 946 (7th Cir. 2003). "If subject matter jurisdiction is . . . not evident on the face of the complaint, the motion to dismiss . . . would be analyzed as any other motion to dismiss, by assuming for purposes of the motion that the allegations in the complaint are true. However, as here, if the complaint is formally sufficient but the contention is that there is in fact no subject matter jurisdiction, the movant may use affidavits and other material to support the motion." United Phosphorus, 322 F.3d at 946; Capitol Leasing Co. v. FDIC, 999 F.2d 188, 191 (7th Cir. 1993). The party asserting jurisdiction must establish it by "competent proof." United Phosphorus 322 F.3d at 946; NFIC, Inc. v. Devcom Mid-America, Inc., 45 F.3d 231, 237 (7th Cir. 1995). This means that jurisdiction must be established by a preponderance of the evidence or "proof to a reasonable probability." NFIC, 45 F.3d at 237.


MKM moves to dismiss the federal and state claims made in Franks' Second Amended Complaint. MKM argues that Franks failed to state a federal claim under Rule 12(b)(6) and that therefore, under Rule 12(b)(1), this Court lacks subject matter jurisdiction to hear Franks' remaining state law claims. MKM also argues that Franks' Second Amended Complaint "jumbles" together several claims in each count, violating Rule 10(b). Franks moves to strike the exhibits attached in MKM's Motion to Dismiss.

I. Motion to Strike

As an initial matter, Franks moves to strike MKM's inclusion of exhibits in its Motion to Dismiss. As a general rule, when reviewing a Rule 12(b)(6) motion the Court may consider only the plaintiff's complaint. "[D]ocuments attached to a motion to dismiss are considered part of the pleadings if they are referred to in the plaintiff's complaint and are central to his claim. Such documents may be considered by a district court in ruling on the motion to dismiss." Wright v. Assoc. Ins. Cos., 29 F.3d 1244, 1248 (7th Cir. 1994). However, "this is a narrow exception" to the general rule that when additional evidence is attached to a motion to dismiss, "the court must either convert the 12(b)(6) motion into a motion for ...

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