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Burnell Gatreaux, Timothy Range and Frank Selby v. Dkw Enterprises

September 23, 2011

BURNELL GATREAUX, TIMOTHY RANGE AND FRANK SELBY, INDIVIDUALLY, AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED,
PLAINTIFFS-APPELLANTS,
v.
DKW ENTERPRISES, LLC, KDW ENTERPRISES, LLC, KDW WESTERN, LLC, MRA RESTAURANT, DARRELL WINBUSH AND KATINA WINBUSH,
DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County, Illinois, Chancery Division. No. 08 CH 11825 Honorable Michael B. Hyman Judge Presiding.

The opinion of the court was delivered by: Justice Fitzgerald Smith

JUSTICE FITZGERALD SMITH delivered the judgment of the court, with opinion. Justices Pucinski and Sterba concurred in the judgment and opinion.

OPINION

¶ 1 The plaintiffs, Burnell Gatreaux, Timothy Range and Frank Selby, individually and on behalf of all others similarly situated, filed a class action complaint against the defendants, DKW Enterprises, LLC, KDW Enterprises LLC, KDW Western LLC, MRA Restaurants, Darrell Winbush and Katina Winbush, alleging numerous violations of the Illinois Minimum Wage Law (820 ILCS 105/1 et seq. (West 2006)) and the Illinois Wage Payment and Collection Act (820 ILCS 115/1 et seq. (West 2006)). Before the plaintiffs filed a motion for class certification, the defendants made a tender to each of the three named plaintiffs of "all amounts allegedly due to each such plaintiff." After the plaintiffs rejected this offer, the defendants filed a motion to dismiss pursuant to sections 2-615 and 2-619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615, 2-619, 2-619.1 (West 2006)) contending that the plaintiffs' cause of action was moot as a result of the defendants' tender. The circuit court agreed and granted the defendants' motion to dismiss. The plaintiffs now appeal, contending that the trial court erred in finding that the cause was moot. For the reasons set forth below, we affirm the judgment of the circuit court.

¶ 2 I. BACKGROUND

¶ 3 The plaintiffs filed their initial class action complaint pursuant to sections 2-801 and 2-802 of the Code of Civil Procedure (Code) (735 ILCS 5/801, 2-802 (West 2006)) on March 28, 2008.*fn1 According to that complaint, each of the named plaintiffs is a former cashier, cook or other hourly-paid employee of one of several Chicago-based McDonald's franchises owned and operated by the defendants. The complaint sought the certification of a class of individuals employed by the defendants as hourly non-exempt wage employees, who worked regular or overtime hours but did not receive the proper pay. The complaint further alleged that the defendants violated the Illinois Minimum Wage Law (820 ILCS 105/1 et seq. (West 2006)) and the Illinois Minimum Wage Payment and Collection Act (820 ILCS 115/1 et seq. (West 2006)) by: (1) failing to pay their employees the applicable minimum wage; (2) failing to pay overtime; (3) wrongfully deducting sums from employee paychecks to pay for the employees' uniforms; (4) failing to preserve time entry and payroll records as required by law, and instead manipulating the plaintiffs' time records by making deductions for break-times not taken and "shaving" time actually worked by the employees. For relief, the complaint sought "judgment against the defendants and in favor of the plaintiffs and all others similarly situated for a sum that will properly, adequately and completely compensate plaintiffs for the nature, extent and duration of their damages [and] the cost of this action" including: (1) a declaration that the defendants willfully violated the Illinois Minimum Wage Law and the Illinois Wage Payment and Collection Act by failing to pay minimum and overtime wages to the plaintiffs and the putative class; (2) an award of compensatory damages, including all regular and overtime pay owed "in an amount according to proof," plus interest on all regular and overtime compensation due accruing from the date such amounts were due; (3) an award of all costs and reasonable attorney fees incurred prosecuting this claim; and (4) "any further relief as the court deems just and equitable."

¶ 4 On May 2, 2008, the plaintiffs initiated written discovery and served document requests and interrogatories on the defendants. The defendants requested and the plaintiffs agreed that they stay discovery in order to discuss a settlement. The parties unsuccessfully mediated the dispute in November 2008. After no settlement was reached, the parties proceeded with discovery, and the defendants responded to the interrogatories on March 2, 2009 and to the document requests on March 11, 2009. The plaintiffs immediately requested deposition dates for each of the defendants, but the defendants would not schedule the depositions until July 30, and 31, 2009.*fn2

¶ 5 Instead, prior to the scheduled depositions, on July 26, 2009, the defendants sent a letter to the plaintiffs for the purpose of making a tender for settlement. In that letter, the defendants proposed the following:

"1. Defendants will provide all amounts allegedly due to each such plaintiff for work time due or unpaid pursuant to the allegations set forth in the amended complaint, at such plaintiff's hourly wage rate at such time(s) (or at such higher hourly wage rate as required by the Illinois Minimum Wage Law at such time(s)), in accordance with the Illinois Minimum Wage Law and the Illinois Wage Payment and Collection Act.

2. Defendants will provide all amounts allegedly due for wages for overtime alleged to have been worked by each such plaintiff and for which payment was not made at the overtime rate of one and one-half times the hourly rate applicable at that time in accordance with the Illinois Minimum Wage Law and the Illinois Wage Payment and Collection Act and will also provide all amounts allegedly due for wages for overtime alleged to have been worked by each such plaintiff and for which payment was made in an amount less than the legal overtime rate applicable at that time in, accordance with the Illinois Minimum Wage Law and the Illinois Wage Payment and Collection Act.

3. Defendants will provide all amounts allegedly due for deductions from each such plaintiff's wages that were made, as alleged, in violation of the Illinois Minimum Wage Law and the Illinois Wage Payment and Collection Act and in addition in any instance in which such deduction(s0 caused such plaintiff's hourly rate of pay to fall below the minimum wage applicable for the pay period, then defendants will also provide the amount of such underpayment.

4. Defendants will award each plaintiff an amount equal to 2% of any such underpayment(s) for each month following the date of payment during which such underpayments remain unpaid.

5. Defendants will award each plaintiff an amount for prejudgment interest in accordance with the applicable statutory rate as applied to the wage amounts.

6. Defendants will pay costs incurred by the plaintiffs in this civil action and will also pay reasonable attorney's fees as may be allowed by the court in regard to the plaintiff's ...


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