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Stephen Strauss, Guastavo v. Italian Village Restaurant

November 2, 2012

STEPHEN STRAUSS, GUASTAVO HUERTA, MARIA ESCOBAR, SYLVIA ANIOLA, GERARDO PINABAJ, MARTIN OSEGUERA AND MARIO GALVAN, ON BEHALF OF THEMSELVES AND OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
ITALIAN VILLAGE RESTAURANT, INC.,
DEFENDANT.
ITALIAN VILLAGE RESTAURANT, INC., THIRD- PARTY PLAINTIFF,
v.
HOWARD L. MOCERF, AN INDIVIDUAL, DUANE MORRIS, LLP, AN ILLINOIS LIMITED LIABILITY COMPANY, RAYMOND J. SULLIVAN, AN INDIVIDUAL, AND SULLIVAN & SULLIVAN, LTD., THIRD-PARTY DEFENDANTS.



The opinion of the court was delivered by: Magistrate Judge Susan E. Cox

MEMORANDUM OPINION AND ORDER

Plaintiffs Stephen Strauss, Gustavo Huerta, Maria Escobar,Sylvia Aniola, Gerardo Pinabaj, Martin Oseguera, and Mario Galvan ("plaintiffs"), all current or former employees of Italian Village Restaurant, Inc. ("Italian Village"), filed suit against the restaurant alleging that it had violated the minimum wage and overtime wage requirements of the Fair Labor Standards Act ("FLSA") and Illinois Minimum Wage Law ("IMWL").*fn1 On June 20, 2011, the parties jointly consented to have the case reassigned to a Magistrate Judge, and on June 28, 2011, the case was assigned to this Court.*fn2

On December 28, 2011, defendant/third-party plaintiff filed a third-party complaint seeking indemnity against Howard L. Mocerf, Duane Morris, LLP, Raymond J. Sullivan, and Sullivan & Sullivan, Ltd. ("third-party defendants").*fn3 On March 8, 2012, third-party plaintiff filed its First Amended Complaint, consisting of sixteen counts: four counts each against the four third-party defendants.*fn4 Third-party defendants Duane Morris, LLP and Howard Mocerf have now filed a joint motion to dismiss the amended third-party complaint, as have Raymond J. Sullivan and Sullivan & Sullivan, Ltd.*fn5

For the reasons stated below, both motions are granted in their entirety and further leave to amend is denied.

I. FACTUAL BACKGROUND

Third-party plaintiff, the Italian Village ("the Italian Village") is an Illinois Corporation doing business as a restaurant in Chicago.*fn6 Third-party defendant, Howard Mocerf ("Mocerf") is an attorney licensed to practice law in the State of Illinois.*fn7 Third-Party Defendant, Duane Morris, LLC ("Duane Morris"), is a law firm and an Illinois Limited Liability Company doing business in Chicago.*fn8 Third-Party Defendant, Raymond J. Sullivan ("Sullivan"), is a certified public accountant practicing in Crestwood, Illinois.*fn9 Third-Party Defendant, Sullivan & Sullivan, is a limited liability company doing business in Crestwood, Illinois.*fn10

The Italian Village retained Mocerf, a partner at Duane Morris, to negotiate and prepare employment contracts for its employees, including provisions regarding wages.*fn11 Third-party plaintiff also retained Mocerf to advise it of any and all relevant statutes regarding employee wages and notification requirements, including the Fair Labor Standards Act and the Illinois Minimum Wage Law.*fn12 In 2005 and 2009, Mocerf prepared and negotiated employment contracts for employees at the Italian Village Restaurant, including the provisions regarding employee wages and the necessary notifications for tipped employees pursuant to the Fair Labor Standards Act and the Illinois Minimum Wage Law.*fn13

The Italian Village also retained Sullivan as a certified public accountant to be in charge of processing and managing the payroll for its employees.*fn14 Sullivan was retained to manage the Italian Village's employee payroll according to relevant statutory law, including the Fair Labor Standards Act and the Illinois Minimum Wage Law.*fn15

In response to plaintiffs' suit, the Italian Village filed a sixteen count complaint against third party defendants. The essence of all of these counts is that these third parties, and not the Italian Village, are truly responsible for any violations of the state and federal laws governing the Italian Village's employees' wages and hours. Counts I-IV allege that each of the third-party defendants are joint-tortfeasors as to plaintiffs' FLSA claims.*fn16 Counts V-VIII allege that each of the third-party defendants are joint-tortfeasors as to plaintiffs' IMWL claims.*fn17 Counts IX-X allege legal malpractice on the part of Mocerf and Duane Morris.*fn18 Counts XI-XII allege accounting malpractice on the part of Sullivan and Sullivan & Sullivan.*fn19 Counts XIII-XIV allege legal malpractice/implied indemnity on the part of Mocerf and Duane Morris.*fn20 Lastly, Counts XV-XVI allege accounting malpractice/implied indemnity on the part of Sullivan and Sullivan & Sullivan.*fn21

II. DISCUSSION

A. Counts I-IV

Counts I-IV allege that each of the four third-party defendants are joint-tortfeasors under the FLSA. For third-party defendants to be found liable under the FLSA, they must be "employers" within the meaning of the FSLA. Section 203(d) of the FLSA defines employers as "any person acting directly or indirectly in the interest of an employer in relation to an employee." *fn22 Third-party defendants argue that they are not "employers" under the Act because they had no control or power over plaintiffs, and thus that Counts I-IV should be dismissed.*fn23 The Italian Village counters that third-party defendants had control over the decisions that resulted in any violations of the Act and accordingly are liable.*fn24

Multiple employers may be held liable under the FLSA when "the facts establish that the employee is employed jointly by two or more employers."*fn25 The Supreme Court has held that the determination of whether a party is an employer is based on the "economic reality" of the situation.*fn26

Courts have considered a variety of factors when making this determination, including the ability to hire or fire the employees, supervision of the employees' schedules, determination of wages, and the maintenance of employment records.*fn27 The Seventh Circuit has held that an ...


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