United States District Court, N.D. Illinois, Eastern Division
FIDEL TRUJILLO, individually and on behalf of other similarly situated employees, Plaintiff,
MEDITERRANEAN KITCHENS, INC. d/b/a PITA INN and FALAH TABAHI, Defendants.
MEMORANDUM OPINION AND ORDER
J. Tharp, Jr., United States District Judge
Fidel Trujillo alleges that he worked more than 40 hours a
week without adequate overtime pay in one or more weeks
during his ten year tenure as a dishwasher and busboy for
defendant Pita Inn in violation of state and federal law. The
defendants have moved to dismiss for failure to state a claim
because the complaint lacks sufficient facts. The Court
agrees and grants the motion to dismiss without prejudice.
Court accepts, as it must on a motion to dismiss, all
well-pleaded factual allegations as true. Brooks v.
Ross, 578 F.3d 574, 581 (7th Cir. 2009). Plaintiff Fidel
Trujillo worked for Pita Inn from May 2006 to late August 2016
as a dishwasher and busboy. Compl. ¶ 17-18. During this
time, Trujillo alleges he was paid for the first forty hours
of work by check and “all other hours” in cash.
Id. at ¶ 19. He further alleges that he worked
“more than forty (40) hours weekly in one or more
individual work weeks” during this ten year period.
Id. at ¶ 23. Trujillo alleges he was not paid
the statutorily required one and a half times the regular pay
rate for his overtime. Id. at ¶ 24. According
to Trujillo, Pita Inn did not keep records of his hours or
the wages they paid him. Id. at ¶ 14-15. Pita
Inn has moved to dismiss for failure to state a claim.
Fair Labor Standards Act (“FLSA”) requires (with
exceptions not relevant here) that employers pay employees
one and a half times the normal hourly rate for work beyond
forty hours per week. 29 U.S.C. § 207(a). Pita Inn
argues that the complaint has failed to allege sufficient
facts to state a claim. To state a claim under Fed.R.Civ.P.
12(b)(6), a complaint must contain sufficient facts to
provide the grounds for the plaintiff's entitlement to
relief, disregarding legal conclusions. Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007). “[A]
formulaic recitation of the elements of a cause of action
will not do.” Id.
courts of this district have generally agreed that a
plaintiff must plead details beyond having worked more than
40 hours without overtime to state a claim under the FLSA.
See Hughes v. Scarlett's G.P., Inc., No.
15-CV-5546, 2016 WL 4179153, at *2 (N.D. Ill. Aug. 8, 2016)
(collecting cases). Exactly how many more details is unclear
- the Eleventh Circuit and one court of this district have
found that indicators of frequency (such as that a defendant
“repeatedly” or “routinely” worked
overtime) are sufficient. See Secretary of Labor v.
Labbe, 319 F.App'x 761, 763 (11th Cir. 2008);
Sanchez v. Haltz Const., Inc., No. 09 C 7531, 2012
WL 13514, at *3 (N.D. Ill. Jan. 4, 2012). This Court has
previously indicated that properly alleging a specific week
in which the FLSA was violated would be sufficient in the
minimum wage context. See Hirst v. Skywest, Inc.,
No. 15 C 02036, 2016 WL 2986978, at *6 (N.D. Ill. May 24,
2016) (“To state a FLSA claim under the workweek
averaging approach, then, the plaintiffs must plausibly
allege at least one workweek for which the compensation they
received, divided by their total compensable time, failed to
meet the FLSA minimum wage of $7.25 per hour.”);
see also DeJesus v. HF Management Services,
726 F.3d 85, 89 (2d Cir. 2013) (allegations that plaintiff
worked over forty hours in “some or all weeks”
insufficient because at least one given week must be
alleged); Pruell v. Caritas Christi, 678 F.3d 10, 12
(1st Cir. 2012) (allegation that plaintiffs “regularly
worked” more than 40 hours a week in sufficient). The
Court need not resolve that question here, however, because
Trujillo has failed to allege any further details. He does
not allege specific weeks (even by way of example) in which
he worked more than forty hours per week. Nor has he made any
allegations as to the frequency of the overtime, only
alleging it occurred “in one or more individual work
weeks.” Compl. ¶ 23. This merely states an element
of an FLSA claim, it does not give the defendants any idea of
the scope of Trujillo's claim or a place to begin
investigating his allegations. Indeed, in pleading that he
worked overtime in “one or more” weeks over the
course of his decade of employment, Trujillo could mean there
was a single week more than a decade ago for which he was not
payed overtime, or that there have been more than 520 such
weeks, or something in between those extremes. Further, the
complaint acknowledges that Trujillo was paid some amount for
hours in excess of 40, but provides no information about the
rate paid. See Weston v. Illinois Dep't of Human
Services, 433 Fed.App'x 480, 482 (7th Cir. 2011)
(affirming dismissal of FLSA claim where complaint failed to
plausibly allege violation in view of all payments plaintiff
received). These allegations are too conclusory and too vague
to provide fair notice or to state a plausible claim. Without
an FLSA claim to provide jurisdiction, the Court declines to
exercise supplementary jurisdiction over the Illinois Minimum
Wage Law claim. See 28 U.S.C. § 1367(c)(3).
* * *
reasons stated above, the motion to dismiss is granted
without prejudice. Trujillo is granted leave to replead by
August 11, 2017.
 Defendant Falah Tabahi is the owner of
defendant Mediterranean Kitchens, Inc. d/b/a Pita Inn. Compl.
¶ 9. For simplicity, the Court refers to both ...