United States District Court, N.D. Illinois, Eastern Division
OPINION AND ORDER
L. Ellis United States District Judge.
Pedro Eduarte, a former cook, food preparer, and employee of
Defendants Sliccily Pizza Pub, Inc. (“Sliccily”)
and Christos Angelos, claims that he did not receive proper
overtime pay for the regular overtime hours that he worked.
He filed suit claiming violations of the Fair Labor Standards
Act (“FLSA”), 29 U.S.C. § 207(a)(1), and the
Illinois Minimum Wage Law (“IMWL”), 820 Ill.
Comp. Stat. 105/4a. Defendants now move to dismiss pursuant
to Federal Rules of Civil Procedure 12(b)(1), arguing that
Eduarte failed to meet the statutory requirements of the FLSA
to show standing, thus depriving the Court of subject matter
jurisdiction, and requesting that the Court decline to
exercise supplemental jurisdiction over the remaining state
law claims. Alternatively, Defendants ask the court to
dismiss for failure to state a claim for which relief can be
granted pursuant to Rule 12(b)(6). Because Eduarte has not
sufficiently alleged any information about Angelos, the Court
dismisses him as a Defendant. However, because Eduarte has
sufficiently alleged his overtime claim under the FLSA and
IMWL against the remaining Defendant, Sliccily, and has
properly alleged that Sliccily was his employer, the Court
denies the remainder of Defendants' motion to dismiss.
Eduarte worked as an hourly employee from March 2015 through
June 2017 at the Sliccily restaurant-bar location at 8427 W.
Cermak Road, North Riverside, Illinois. Throughout his
employment, he handled and prepared goods that moved in
interstate commerce. As a matter of routine practice and
policy, Sliccily required Eduarte to work more than forty
hours per week but failed and refused to pay him the overtime
premium of one-and-a-half times the regular rate of pay for
the hours he worked over forty per week. Sliccily paid
Eduarte biweekly with a payroll check for eighty hours, and
cash for any additional hours at his regular rate, not time
and a half.
motion to dismiss under Rule 12(b)(1) challenges the
Court's subject matter jurisdiction. Fed.R.Civ.P.
12(b)(1). The party asserting jurisdiction has the burden of
proof. United Phosphorus, Ltd. v. Angus Chem. Co.,
322 F.3d 942, 946 (7th Cir. 2003), overruled on other
grounds by Minn-Chem, Inc. v. Agrium, Inc., 683 F.3d 845
(7th Cir. 2012). The standard of review for a Rule 12(b)(1)
motion to dismiss depends on the purpose of the motion.
Apex Digital, Inc. v. Sears, Roebuck & Co., 572
F.3d 440, 443-44 (7th Cir. 2009). If a defendant challenges
the sufficiency of the allegations regarding subject matter
jurisdiction (a facial challenge), the Court must accept all
well-pleaded factual allegations as true and draw all
reasonable inferences in the plaintiff's favor. See
id.; United Phosphorus, 322 F.3d at 946. If,
however, the defendant denies or controverts the truth of the
jurisdictional allegations (a factual challenge), the Court
may look beyond the pleadings and view any competent proof
submitted by the parties to determine if the plaintiff has
established jurisdiction by a preponderance of the evidence.
See Apex Digital, 572 F.3d at 443-44; Meridian
Sec. Ins. Co. v. Sadowski, 441 F.3d 536, 543 (7th Cir.
motion to dismiss under Rule 12(b)(6) challenges the
sufficiency of the complaint, not its merits. Fed.R.Civ.P.
12(b)(6); Gibson v. City of Chicago, 910 F.2d 1510,
1520 (7th Cir. 1990). In considering a Rule 12(b)(6) motion
to dismiss, the Court accepts as true all well-pleaded facts
in the plaintiff's complaint and draws all reasonable
inferences from those facts in the plaintiff's favor.
AnchorBank, FSB v. Hofer, 649 F.3d 610, 614 (7th
Cir. 2011). To survive a Rule 12(b)(6) motion, the complaint
must not only provide the defendant with fair notice of a
claim's basis but must also be facially plausible.
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct.
1937, 173 L.Ed.2d 868 (2009); see also Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d
929 (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.” Iqbal, 556 U.S.
Sufficiency of Employer Allegations
first argue that Eduarte failed to adequately allege that
either Defendant qualifies as his employer under the FLSA or
the IMWL. Defendants merge their 12(b)(1) and 12(b)(6)
motions to dismiss on this issue. Doc. 27 at 4
(“Defendants move to dismiss Plaintiff's Count I
for lack of standing and failure to state a claim. Because
employees only have standing to sue their current or former
employer under the FLSA (29 U.S.C. § 207(a)), both
challenges center on Plaintiff's failure to adequately
allege that Defendants were his employer under the
FLSA.”). The Court therefore analyzes the motions
together. Ivery v. RMH Franchise Corp., 280
F.Supp.3d 1121, 1127 (N.D. Ill. 2017) (merging 12(b)(1) and
12(b)(6) arguments on FLSA employer issue). The FLSA defines
“employer” as “any person acting directly
or indirectly in the interest of an employer in relation to
an employee.” 29 U.S.C. § 203(d). The IMWL
similarly defines “employer” as “any
individual, partnership, association, corporation . . . or
any person or group of persons acting directly or indirectly
in the interest of an employer in relation to an
employee.” 820 Ill. Comp. Stat. 105/3. Because of the
parallels between the two statutes, courts have generally
applied the same analysis to both. See Condo v. Sysco
Corp., 1 F.3d 599, 600 n.3 (7th Cir. 1993). As such, the
Court combines both analyses under the FLSA standards.
Supreme Court has found that the FLSA defines the verb
“employ” expansively, with “striking
breadth.” Nationwide Mut. Ins. Co. v. Darden,
503 U.S. 318, 326, 112 S.Ct. 1344, 117 L.Ed.2d 581 (1992). In
determining the employment relationship, the Court focuses on
“economic reality” rather than technical
concepts. Hollins v. Regency Corp., 867 F.3d 830,
835 (7th Cir. 2017); see Goldberg v. Whitaker House
Co-op, Inc., 366 U.S. 28, 33, 81 S.Ct. 933, 6 L.Ed.2d
100 (1961). Courts in this district have considered whether
the employer: “(1) had the power to hire and fire the
employees, (2) supervised and controlled employee work
schedules or conditions of employment, (3) determined the
rate and method of payment, and (4) maintained employment
records.” Ivery, 280 F.Supp.3d at 1128
(collecting cases). No. single factor is dispositive, nor are
these factors exhaustive. Id.
alleges the enterprise status and location of Sliccily. Doc.
1 ¶¶ 8-11, 13. Eduarte also alleges how Sliccily
controlled his work schedule and how it paid him.
Id. ¶¶ 12, 16-17. Because Eduarte has
sufficiently identified Sliccily, including its status as a
corporation and enterprise, its location, its control over
his work schedule, and its method of payment, the Court finds
that Eduarte has sufficiently alleged Sliccily's status
as an employer under the FLSA. Ivery, 280 F.Supp.3d
at 1128. However, Eduarte does not mention, even in passing,
who Angelos is, or what his relationship is to Eduarte or
Sliccily. Without any information, the Court cannot find that
any of the factors listed above weigh in favor of considering
Angelos as an employer. Id. Furthermore, Eduarte
includes Angelos solely in the caption; Eduarte does not
refer to him in any enumerated paragraph in the complaint.
This is not enough to state a claim against Angelos.
Collins v. Kibort, 143 F.3d 331, 334 (7th Cir. 1998)
(“A plaintiff cannot state a claim against a defendant
by including the defendant's name in the
caption.”). Because Eduarte sufficiently alleges that
Sliccily was his employer, he has standing to bring a claim
against Sliccily. 29 U.S.C. § 207(a). However, the
Court grants Defendants' motion to dismiss for lack of
standing against Angelos and for failure to state a claim
against Angelos without prejudice.
Sufficiency of Overtime Allegations
next argue that Eduarte cannot pursue his claims because he
has failed to allege what weeks he worked overtime, what he
was paid, what he should have been paid, and what amount
Sliccily may owe him. However, Eduarte need not allege more
than the months he worked and the fact that Sliccily
“routinely” required him to work overtime to
state a claim under the FLSA, which he does.See Doc.
1 ¶¶ 15, 12; Victoria v. Alex Car, Inc.,
No. 11 C 9204, 2012 WL 1068759 at *5 (N.D. Ill. Mar. 29,
2012) (“[T]here is no rule of law that requires
Plaintiffs to allege their hourly wage [and] the dates on
which the alleged violations took place”); Sanchez
v. Haltz Constr., Inc., No. 09 C 7531, 2012 WL 13514 at
*3 (N.D. Ill. Jan 4, 2012) (allowing FLSA claim to proceed
where plaintiffs alleged that “they
‘routinely' worked more than 40 hours per week
without receiving overtime pay, and that the amount of
compensation they did receive for the work they performed
fell below the minimum-wage requirement, ” noting that
“wage cases [ ] are not so complicated that they
require significant factual allegations”);
Nicholson v. UTi Worldwide, ...