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Cardenas v. Grozdic

United States District Court, N.D. Illinois, Eastern Division

September 9, 2014

M. TOMAS CARDENAS, Plaintiff,
v.
RAY R. GROZDIC, MIKE M. GROZDIC, and REAL ESTATE ADVISORS, INC., an Illinois Corporation, Defendants

Page 918

For M. Tomas Cardenas, Plaintiff: James J. Macchitelli, LEAD ATTORNEY, Law Offices of James J. Macchitelli, Schaumburg, IL.

For Ray R Grozdic, Mike M Grozdic, Real Estate Advisors, Inc., an Illinois Corporation, Defendants: Sean F Darke, LEAD ATTORNEY, Ryan Lee Young, Walter J. Liszka, Wessels Sherman Joerg Liszka Laverty Seneczko P.C., Chicago, IL.

Page 919

MEMORANDUM OPINION AND ORDER

Virginia M. Kendall, United States District Judge.

Plaintiff M. Tomas Cardenas filed the instant three-count Complaint against Ray R. Grozdic, Mike M. Grozdic, and Real Estate Advisors, Inc. (" REA" ) alleging violations of the Fair Labor Standards Act (" FLSA" ), 29 U.S.C. § 201 et seq., and the Illinois Wage Payment and Collection Act (" IWPCA" ), 820 ILCS 115/1 et seq.[1] Specifically, Cardenas contends that the Defendants failed to pay overtime wages at a rate of one and one half times his regular hourly rate of pay for the time he worked

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in excess of forty hours per week in violation of the FLSA (Count I) and failed to pay him earned wages in violation of the IWPCA (Count III). The Defendants have all moved for summary judgment. Mike Grozdic seeks summary judgment on the basis that he was not Cardenas's " employer" for purposes of the FLSA and cannot be found personally liable under the IWPCA. Ray Grozdic similarly asserts that he cannot be individually liable under the IWPCA, while he and REA additionally argue that Cardenas has failed to provide evidence of the alleged unpaid wages or earned overtime. For the following reasons, Mike Grozdic's Motion for Summary Judgment is granted and Ray Grozdic's and REA's Motion for Summary Judgment is granted in part and denied in part.

FACTS[2]

As a threshold matter, the Defendants assert that Cardenas failed to comply with Local Rule 56.1 in filing his responses to their statements of material facts and by failing to file a statement of additional facts. In order to clarify what is properly before the Court and what is not, the Court addresses these arguments before delving into the substantive facts. Specifically, the Defendants contend that Cardenas failed to comply with Local Rule 56.1 by: (1) failing to support his denials of paragraph 11 of Mike Grozdic's statement of material facts and paragraph 14 of Ray Grozdic's statement of material facts; (2) failing to substantiate denials by citing to evidence that does not actually dispute factual assertions or proffering additional facts in a number of responses; and (3) failing to file a statement of additional facts.

In his responses to paragraph 11 of Mike Grozdic's 56.1 statement and paragraph 14 of Ray Grozdic's 56.1 statement, Cardenas states only that the factual assertions are " denied." (Pl. Resp. MG 56.1 St. ¶ 11; Pl. Resp. RG 56.1 St. ¶ 14). Unsupported denials to a 56.1 statement are deemed admissions. See N.D. Ill. Local Rule 56.1(b)(3)(B); Jupiter Aluminum Corp. v. Home Ins. Co., 225 F.3d 868, 871 (7th Cir. 2000) (" An answer that does not deny the allegations in the numbered paragraph with citations to supporting evidence in the record constitutes an admission." ) (citations and quotations omitted). Accordingly, paragraph 11 of Mike Grozdic's statement and paragraph 14 of Ray Grozdic's statement are properly before the Court.

Cardenas proffers additional facts in a number of his responses to the Defendants' 56.1 statements. This is not the proper method for presenting additional facts under Local Rule 56.1. Instead, the statement of additional facts under Local Rule 56.1(b)(3)(C) " provides the only acceptable means of ... presenting additional facts." F.T.C. v. Bay Area Bus. Council, Inc., 423 F.3d 627, 634 (7th Cir. 2005). New facts presented only in response to a defendant's statement of facts and not in a plaintiff's own statement of additional facts are improper because the defendant has no

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mechanism to reply or otherwise dispute them. See e.g,. Wilcox v. Allstate Corp., No. 11 C 814, 2012 WL 6569729, at *6 (N.D. Ill.Dec. 17, 2012). Consequently, any additional factual assertions contained within Cardenas's responses to the Defendants' 56.1 statements will not be considered as facts " affirmatively demonstrating why summary judgment should be denied." Id. Nevertheless, any additional proffers are properly before the Court for the limited purpose of determining the basis for Cardenas's denial of the Defendants' factual assertions. Id; see also e.g. Malec v. Sanford, 191 F.R.D. 581, 584 (N.D. Ill. 2000) (" if the cited material does not clearly create a genuine dispute over the movant's undisputed fact, the nonmovant should provide an explanation" ).

The Defendants' contention that Cardenas did not file a statement of additional facts, however, presents another question. Local Rule 56.1(b)(3)(C) provides that a party opposing summary judgment must file " a statement, consisting of short numbered paragraphs, of any additional facts that require the denial of summary judgment" including citations to the record. N.D. Ill. Local Rule 56.1(b)(3)(C). Cardenas includes a section entitled " Statement of Facts" in his response memorandum to the Defendants' motions for summary judgment. In this section, Cardenas offers 17 short numbered paragraphs, a majority of which contain citations to the record. Although the section is not explicitly titled " additional facts" and was not filed separately from Cardenas's response memorandum, the Court will not ignore facts that are properly supported. Local Rule 56.1 does not mandate that a nonmovant file a statement of additional facts separately and the Defendants were not prejudiced by the manner in which Cardenas offered these facts. The Defendants were free to reply to Cardenas's statement of short numbered paragraphs pursuant to Local Rule 56.1(a)(3)(B). Any properly supported facts found within Cardenas's statement of facts will be considered.

The following facts therefore have been determined by the Court as undisputed unless otherwise noted. This case arises out of a unique payment arrangement between the parties where M. Tomas Cardenas would perform handiwork for the Defendants in exchange for rent credit and an alleged ownership stake in the Defendants' properties. Mike Grozdic is an owner of REA, Inc. and Ray Grozdic owns a number of multi-unit buildings in Bensenville, Illinois. (MG 56.1 St. ¶ 2; RG 56.1 St. ¶ 3). Cardenas rented an apartment from REA in 2002 for $1,000 per month.[3] (RG 56.1 St. ¶ 5). Cardenas began working on the properties during his tenancy, but the parties dispute when Cardenas began working and the level of his involvement. (Pl. 56.1 St ¶ 1; MG 56.1 St. ¶ 3; RG 56.1 St. ¶ 4). The Defendants maintain that Cardenas performed part-time handiwork on the properties beginning in 2008, while Cardenas testified that he worked sixty hours per week from 2002 to 2011. (MG 56.1 St. ¶ 3; RG 56.1 St. ¶ ¶ 4, 7; Pl. 56.1 St. ¶ ¶ 1, 13). Cardenas testified that he would work from approximately 5:00 P.M. to Midnight on weekdays and twelve hours on Saturdays and Sundays. (Pl. 56.1 St. ¶ 13; Dkt. 62-3, Cardenas ...


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