United States District Court, N.D. Illinois, Eastern Division
MARC KRAMER, KIRIL TRAJCEVSKI, and MATT NYMAN, on behalf of themselves and all others similarly situated, Plaintiffs,
AMERICAN BANK AND TRUST COMPANY, N.A.; SHARON WHEELER; JULIE KLAUS; HARRY S. COIN; and DALE DOLLENBACHER, Defendants.
MEMORANDUM OPINION AND ORDER
JOHN Z. LEE, District Judge.
Plaintiffs Marc Kramer, Kiril Trajcevski, and Matt Nyman, on behalf of themselves and all others similarly situated, have sued American Bank and Trust Company, N.A. ("the Bank") and several of its managing officers, including Sharon Wheeler, Julie Klaus, Harry S. Coin, and Dale Dollenbacher. Plaintiffs allege violations of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (Count I), violations of the Illinois Minimum Wage Law, 820 Ill. Comp. Stat. 105/1 et seq. (Counts II and III), and violations of the Illinois Wage Payment and Collection Act, 820 Ill. Comp. Stat. 115/1 et seq. (Count IV), as well as breach of contract (Count V) and fraud (Count VI). Plaintiffs demand a trial by jury for all of their claims.
Defendants have moved to dismiss the amended complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(6). In addition, Defendants have moved to strike Plaintiffs' jury demand with respect to Counts II through IV pursuant to Rule 12(f). For the reasons set forth herein, the Court denies Defendant Wheeler's motion to dismiss, grants in part and denies in part the remaining portions of Defendants' motion to dismiss,  and denies Defendants' motion to strike Plaintiffs' jury demand with respect to Counts II through IV.
Since 2008, Plaintiffs Marc Kramer, Kiril Trajcevski, and Matt Nyman have been employed as loan officers by Defendant American Bank and Trust Company, an Iowa corporation. Am. Compl. ¶¶ 4, 12. The four individually named Defendants are managing officers of the Bank: Wheeler is Executive Vice President; Klaus is Senior Vice President of Human Resources; Coin is President and Chief Executive Officer; and Dollenbacher is Executive Vice President and Corporate Financial Officer. Id. ¶¶ 5-8. Each has authority to control the wages and hours of Plaintiffs and similarly situated employees. Id.
As loan officers for the Bank, Plaintiffs routinely worked in excess of forty hours per week. Id. ¶ 21. Plaintiffs were compensated for their work solely on a commission basis. Id. ¶ 20. Plaintiffs' commissions were to be calculated based on the revenue generated from their work. Id. ¶ 23. However, Plaintiffs allege that Defendants retained a margin of the revenue before calculating Plaintiffs' commissions, such that Plaintiffs' compensation was less than what it should have been. Id. According to Plaintiffs, Defendants had represented that Plaintiffs' commissions would be calculated with no such margin retained. Id. ¶ 24.
Plaintiffs claim that, as a result of their commission-based compensation plan, they were paid less than the Illinois hourly minimum wage for all hours worked and were not paid overtime wages for overtime hours worked. Id. ¶¶ 20, 22. Furthermore, Plaintiffs also allege that, by retaining a margin of revenues before calculating Plaintiffs' commissions, Defendants breached their employment agreements with Plaintiffs and committed fraud by failing to calculate Plaintiffs' commissions in the manner represented. Id. ¶¶ 76, 80-83.
I. Defendant Wheeler's Motion to Dismiss
On February 26, 2014, Defendant Wheeler filed a motion to dismiss for failure to effect timely service pursuant to Rule 12(b)(5), which the Court denied on April 1, 2014. Later, on April 17, 2014, Defendant Wheeler filed a Rule 12(b)(6) motion to join the other Defendants' motion to dismiss for failure to state a claim. Because Defendant Wheeler previously filed a Rule 12(b) motion to dismiss for failure to effect timely service, Rule 12(g) bars her from filing a second Rule 12(b) motion to dismiss for failure to state a claim.
Rule 12(g)(2) states: "Except as provided in Rule 12(h)(2) or (3),  a party that makes a motion under [Rule 12] must not make another motion under [Rule 12] raising a defense or objection that was available to the party but omitted from its earlier motion." Wheeler's failure-to-state-a-claim defense was available to her at the time she filed her earlier motion to dismiss for failure to effect timely service. And as Wheeler herself admits, her motion to dismiss for failure to state a claim raises the same arguments as those contained in the other Defendants' motion to dismiss, which was filed months before either of Wheeler's motions. See Wheeler's Reply Supp. Mot. Dismiss 2.
Wheeler's reliance on Ennenga v. Starns, 677 F.3d 766 (7th Cir. 2012), is inapposite. As Wheeler points out, in Ennenga, the court allowed the defendants to file a second motion to dismiss, finding that the motion was not barred by Rule 12(g). See id. at 771-73. In Ennenga, however, the defendants had prevailed in their first Rule 12(b)(6) motion, the plaintiffs then filed an amended complaint, and the defendants subsequently filed a second motion to dismiss for failure to state a claim, raising new arguments to address the new issues implicated by the plaintiff's amended complaint. See id.
The procedural posture of the present case bears no resemblance to that of Ennenga. Wheeler waited to raise the failure-to-state-a-claim defense until after she had raised, and the Court rejected, her failure-to-effect-timely-service defense. Thus, Wheeler has presented precisely the kind of piecemeal litigation Rule 12(g) is meant to avoid. See id. at 773 ("The policy behind Rule 12(g) is to prevent piecemeal litigation in which a defendant moves to dismiss on one ground, loses, then files a second motion on ...