United States District Court, N.D. Illinois, Eastern Division
JAMISHA ROSEBAR et al., individually and on behalf of others similarly situated, Plaintiffs,
CSWS, LLC d/b/a OCEAN'S GENTLEMEN'S CLUB, DEBORAH DIAZ, and SEIF EL SHARIF, Defendants.
MEMORANDUM OPINION AND ORDER
Virginia M. Kendall United States District Judge.
Jamisha Rosebar, Breona Smith, Kenya Williams-Mix, Adrieana
Powell, Shalayla Liddell, Jada Adams, Princess Wellington,
and Laqueshia Miller (collectively, “the
Plaintiffs”), on behalf of themselves and others
similarly situated, brought this class and collective action
against CSWS, LLC d/b/a Ocean Gentlemen's Club, Deborah
Diaz, and Seif El Sharif (collectively, “the
Defendants”) for failing to pay the plaintiffs any
minimum or overtime wages for their services as dancers. The
plaintiffs assert claims against the defendants under the
Fair Labor Standards Act (FLSA) (Count I), the Illinois
Minimum Wage Law (IMWL) (Count II), the Illinois Wage Payment
and Collection Act (IWPCA) (Count III), and in the
alternative, unjust enrichment under the common law of
contracts (Count IV). The defendants now move to dismiss all
of the plaintiffs' claims under Federal Rule of Civil
Procedure 12(b)(6), arguing that they failed to state a claim
upon which relief can be granted. (Dkt. 35.) For the reasons
set forth below, the Court grants the defendants' motion
(Dkt. 35) in part and denies it in part.
plaintiffs worked for the defendants as dancers at the Ocean
Gentlemen's Club in Bedford Park, Illinois. (Dkt. 32
¶ 44-64.) The Club provides adult entertainment, food,
and alcoholic drinks to its customers. Id. ¶
69. As dancers, the plaintiffs performed routines set to
music streamed in the Club. Id. ¶ 72. The
defendants posted videos of the dancers on websites and
social media to further advertise the Club's business.
Id. ¶ 71. The plaintiffs were also responsible
for interacting with patrons and handling customers'
tips. Id. ¶ 79.
Diaz and Seif El Sharif operate the Club. Id.
¶¶ 30-34. For instance, Diaz handles bookkeeping,
while both Diaz and El Sharif manage the staff through the
implementation of a set of rules and guidelines. Id.
¶¶ 32, 35-40. Diaz and El Sharif hired and fired
dancers, determined their compensation policies, and set
their work schedules. Id. ¶¶ 37-38, 41-42.
Both Diaz and El Sharif were often present at the Club to
supervise the employees. Id. ¶¶ 31, 34-36.
defendants required dancers to work at least three nights a
week. Id. ¶ 82. The shifts typically lasted
seven to nine hours. Id. ¶ 85. In 2018, the
defendants upped their mandatory minimum of three nights to
four nights per week, and if a dancer wanted to work a
weekend, she had to work at least one weekday first.
Id. ¶¶ 83-84. Sometimes, the defendants
made the plaintiffs work extra afternoon shifts when the Club
was short on dancers. Id. ¶ 86. On multiple
occasions, each plaintiff worked over forty hours per week.
Id. ¶¶ 87-103.
the plaintiffs often worked at least forty hours per week,
the only compensation they received was tips from patrons of
the club. Id. ¶ 81. The defendants did not pay
any of their dancers, including the plaintiffs, wages or any
form of compensation for their work at the club. Id.
¶ 104. The plaintiffs did not receive any overtime
compensation either. Id. ¶ 105. The defendants
often imposed fees and fines on the plaintiffs' tips.
(Dkt. 32 ¶¶ 107-08.) The standard fees ranged from
twenty to fifty dollars, and included payment to the: Club,
management, house parent, disc jockey, and security/bouncers.
Id. ¶ 107.
defendants additionally fined the plaintiffs for not coming
to work, for being late to the Club or the stage, and for
missing mandatory meetings. Id. ¶ 108. These
penalties ranged from fifty dollars to five hundred dollars.
Id. For example, Shalayla Liddell worked on her
birthday. Id. ¶ 99. When no customers showed
up, she asked to leave, and the defendants consequently fined
her $100 even though she did not receive any tips that night.
Id. The plaintiffs allege that this compensation
scheme violates federal and state minimum wage laws.
Id. ¶¶ 111-12. They therefore sued the
defendants in this Court. (Dkt. 32.)
order to survive a motion to dismiss under Rule 12(b)(6), a
complaint must contain “sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 663 (2009) (quoting Bell
Atlantic 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. The Court
accepts as true all well-pleaded facts alleged in the
complaint and draws all reasonable inferences in the light
most favorable to the plaintiff. See Twombly, 550
U.S. at 556. But the Court need not accept as true legal
conclusions because “[t]hreadbare recitals of a cause
of action, supported by mere conclusory statements do not
suffice.” Iqbal, 129 S.Ct. at 1940.
plaintiffs demand relief for unpaid wages and withheld tips
under the FLSA, the IMWL, the IWCPA, and the common law of
contracts. The defendants moved to dismiss the
plaintiffs' claims contending: (1) the plaintiffs failed
to establish that the defendants are personally liable for
the alleged misconduct as employers under the FLSA; (2) the
defendants complied with their minimum and overtime wage
obligations because what the plaintiffs call tips were
actually service charges and thus counted as paid wages; (3)
the IWPCA only covers wages owed to an employee under a
written agreement with her; and (4) a claim for unjust
enrichment is untenable when there is a written agreement in
place. The Court takes each argument in turn.
enacted the FLSA to provide “fair labor standards for
employees, including those marginalized workers unable to
exert sufficient leverage or bargaining power to achieve
adequate wages in the absence of statutory
protections.” McFeeley v. Jackson Street
Entertainment, LLC, 825 F.3d 235, 247 (4th Cir. 2016).
To recover for a violation of the FLSA, the plaintiffs must
prove that: (1) the defendants employed them; (2) the
defendants' business engaged in commerce; and (3) they
did not receive minimum or overtime wages. 29 U.S.C. §
206(a); see Parrish v. Premier Directional Drilling,
L.P., 917 F.3d 369, 379 (5th Cir. 2019). The defendants
contest the first and third elements. They ...