United States District Court, N.D. Illinois, Eastern Division
ELKIN CARMONA, YESI AVILES, FREDY HERAS, OSCAR MARTINEZ, and JOSE CHUYA, individually and on behalf of other employees similarly situated, Plaintiffs,
THE PROFESSIONALS, INC. and JACOB TWIG, Defendants.
MEMORANDUM OPINION AND ORDER
B. GOTTSCHALL UNITED STATES DISTRICT JUDGE.
once again move to dismiss plaintiffs' claims for failure
to state a claim upon which relief may be granted. For the
reasons set forth below, the court grants in part and denies
in part defendants' motion  to dismiss. Specifically,
the court denies defendants' motion to dismiss as to
Counts I and II. The court grants defendants' motion to
dismiss Count III and hereby dismisses Count III with
prejudice. Defendants are granted until May 12, 2017 to
answer. This case is set for a status hearing on May 17, 2017
at 9:30 a.m.
court previously dismissed plaintiff's complaint on the
grounds that plaintiff Elkin Carmona (“Carmona”)
had not sufficiently alleged plausible claims. Plainitiff has
since filed a second-amended complaint in which, among other
things, he adds four additional named plaintiffs. Plaintiffs
have also included additional allegations that flesh out
their claims. For purposes of this motion to dismiss, the
court accepts as true the facts alleged in plaintiffs'
second-amended complaint. See Cincinnati Life Ins. Co. v.
Beyrer, 722 F.3d 939, 946 (7th Cir. 2013).
Carmona, Yesi Aviles (“Aviles”), Fredy Heras
(“Heras”), Oscar Martinez
(“Martinez”) and Jose Chuya (“Chuya”)
allege that defendant The Professionals, Inc. (the
“Professionals” or the “employer”)
hired them to work for it in connection with its moving
business. Defendant Jacob Twig (“Twig”) owns the
Martinez and Chuya allege that they worked as foremen for
defendants. Their regular rate of pay was $15.00 per hour.
Plaintiffs Carmona and Aviles worked for defendants as
movers, and their regular rate of pay was $14.00 per hour.
Carmona also worked as a driver, as did Heras, whose regular
rate was also $14.00 per hour.
allege that they regularly worked more than 40 hours per
week. Carmona regularly worked up to 75 hours per week, while
Aviles, Martinez, Chuya and Heras regularly worked up to 70
hours per week. Plaintiffs' work during the hours that
exceeded 40 per week included their regular duties plus
travel time between job sites and travel time from the last
job site of the day back to the warehouse.
allege that defendants paid them “their regular hourly
rate for all hours worked, including hours worked more than
forty (40) hours per week.” (Second Am. Complt. ¶
38). Defendants did so by paying plaintiffs “in cash,
at their regular hourly rate” for the hours in excess
of 40 per week. (Second Am. Complt. ¶ 40). Defendants
did not, however, pay plaintiff the extra one-half time (for
a total of time-and-a-half) for their overtime hours.
assert that defendants' actions constitute violations the
Fair Labor Standards Act, 29 U.S.C. § 201, et
seq. (“FLSA”) (Count I), the Illinois
Minimum Wage Law, § 820 Ill. Comp. Stat. § 105/1,
et seq. (“IMWL”) (Count II) and the
Illinois Wage Payment and Collection Act, 820 Ill. Comp.
Stat. § 115/1, et seq. (“IWPCA”)
move to dismiss plaintiffs' claims for failure to state a
survive a motion to dismiss pursuant to Rule 12(b)(6), a
complaint must “state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (citing Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). A claim satisfies
this standard when its factual allegations “raise a
right to relief above the speculative level.”
Twombly, 550 U.S. at 555-56. A complaint need not
provide detailed factual allegations, but mere conclusions
and a “formulaic recitation of the elements of a cause
of action” will not suffice. Twombley, 550
U.S. at 555.