United States District Court, N.D. Illinois, Eastern Division
JOHN J. THARP, Jr., District Judge.
For the reasons set forth in the Statement section of this order, the defendants' motion to dismiss  is denied. On its own motion, however, the Court dismisses the plaintiff's complaint without prejudice. The plaintiff is granted leave to file an amended complaint within 28 days of this order.
The plaintiff, Adan Urrutia, brought this action alleging that the defendants, Buena Vista Restaurant & Bar and Jose Giles, violated the minimum and overtime wage provisions of the Fair Labor Standards Act ("FLSA") and the Illinois Minimum Wage Law ("IMWL"), as well as the earned wages provisions of the Illinois Wage Payment and Collection Act ("IWPCA"). The defendants filed an answer with counterclaims on May 28, 2014. Subsequently, on June 9, 2014, the defendants filed the instant motion, which is styled as a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) or, in the alternative, as a motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). On June 12, 2014, the Court stayed Urrutia's response to the counterclaims and directed briefing to proceed on the defendants' motion.
The defendants contend that the Court should dismiss Urrutia's FLSA claims because the complaint does not adequately plead FLSA coverage, and that dismissal of those claims requires dismissal of the entire complaint since the FLSA claims provide the basis for the Court's exercise of supplemental jurisdiction over Urrutia's state law claims. In response to the defendants' motion, Urrutia argues: (1) that the motion is untimely as a Rule 12(b)(6) motion since it was filed after the defendants answered the complaint, (2) that the motion is untimely as a Rule 12(c) motion since Urrutia has not yet responded to the counterclaims and the pleadings thus have not closed, and (3) that Urrutia has adequately pleaded FLSA coverage.
The Court agrees with Urrutia that, as a technical matter, the defendants' motion is untimely, and therefore denies the motion. See generally Shield Technologies Corp. v. Paradigm Positioning, LLC, 908 F.Supp.2d 914, 916-17 (N.D. Ill. 2012) (explaining the requirements of Rule 12(b)(6) and Rule 12(c) and denying a motion to dismiss or for judgment on the pleadings as untimely since it was filed after the defendants answered the complaint but before the plaintiff answered the defendants' counterclaims). In the interest of avoiding unnecessary delay, however, on its own motion the Court will address the parties' substantive arguments relating to dismissal. Accord id. at 917 ("It would serve no purpose other than delay to postpone addressing the issues that the defendants raise in their motion while awaiting [the plaintiff's] response to their counterclaims."). See generally Ledford v. Sullivan, 105 F.3d 354, 356 (7th Cir. 1997) (noting that a district court may dismiss an inadequate complaint sua sponte under Rule 12(b)6) to avoid delay).
To survive dismissal under Rule 12(b)(6), "a complaint must state a claim to relief that is plausible on its face.'" Adams v. City of Indianapolis, 742 F.3d 720, 728 (7th Cir. 2014) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'" Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Although a court must accept all of the plaintiff's factual allegations as true when reviewing the complaint, conclusory allegations merely restating the elements of a cause of action do not receive this presumption. Adams, 742 F.3d at 728.
As relevant here, the FLSA's minimum and overtime wage provisions apply to employees who are "engaged in commerce or in the production of goods for commerce" or who are "employed in an enterprise engaged in commerce or in the production of goods for commerce." 29 U.S.C. § 206(a); id. § 207(a)(1).For purposes of the FLSA, "commerce" means "[interstate] trade, commerce, transportation, transmission, or communication." Id. § 203(b). An employee is deemed to have engaged in commerce if "the work is so directly and vitally related to the functioning of an instrumentality or facility of interstate commerce as to be, in practical effect, a part of it, rather than isolated local activity.'" Jacoby v. Schimka Auto Wreckers, Inc., No. 10 C 1452, 2010 WL 3171515, at *3 (N.D. Ill. Aug. 11, 2010) (quoting Mitchell v. C.W. Vollmer & Co., 349 U.S. 427, 429 (1955)). An employee is deemed to have engaged in the production of goods for commerce if, inter alia, he "was employed in... handling... such goods." 29 U.S.C. § 203(j). Finally, an enterprise qualifies as an "enterprise engaged in commerce or in the production of goods for commerce" if it:
(A)(i) has employees engaged in commerce or in the production of goods for commerce, or... has employees handling, selling, or otherwise working on goods or materials that have been moved in or produced for commerce by any person; and
(ii) is an enterprise whose annual gross volume of sales made or business done is not less than $500, 000 (exclusive of excise taxes at the retail level that are separately stated);
(B) is engaged in the operation of a hospital, an institution primarily engaged in the care of the sick, the aged, or the mentally ill or defective who reside on the premises of such institution, a school for mentally or physically handicapped or gifted children, a preschool, elementary or secondary school, or an institution of higher education (regardless of whether or not such hospital, institution, or school is public or private or operated for profit or not for profit); or
(C) is an activity of a public agency.
Id. § 203(s)(1).
In light of these definitions, Uruttia has not adequately pleaded either individual-based or enterprise-based FLSA coverage. With respect to the former, the complaint does not adequately plead that Urrutia was an employee engaged in commerce or in the production of goods for commerce. The complaint states that Urrutia worked for the defendants as a "chef/kitchen staff member" at a Buena Vista Restaurant & Bar location and that he "handled goods that moved or that were intended to move in interstate commerce." Complaint, Dkt. 1, at 2-3. These allegations are insufficient to raise the inference that his work for the defendants was "directly and vitally related" to interstate commerce. Further, to the extent that the allegations ...