United States District Court, N.D. Illinois, Eastern Division
PATRICIA AIELLO, et al., individually and as assignees of claims owned by Kube, LLC, Plaintiffs,
SOUTHERN WINE & SPIRITS OF AMERICA, INC., and successor entity SOURTHERN [sic GLAZER'S WINE AND SPIRITS OF ILLINOIS, LLC, an Illinois Corporation. Defendant.
MEMORANDUM OPINION AND ORDER
D. Leinenweber, Judge.
reasons stated herein, Defendant's Motion to Dismiss the
Fourth Amended Complaint (Dkt. No. 113) is granted.
Plaintiffs' Fourth Amended Complaint (Dkt. No. 108) is
dismissed with prejudice.
April 26, 2019, the Court granted Defendant's Motion to
Dismiss Plaintiffs' Third Amended Complaint alleging an
opt-in collective action against Defendant for failure to pay
wages in violation of the Fair Labor Standards Act (FLSA) and
the Illinois Minimum Wage Payment and Collections Act
(IMWPAC). Because the Third Amended Complaint was the first
one that named Defendant Sourthern [sic] Glazer's Wine
and Spirits of Illinois, LLC (“SG”) as a party,
the Court dismissed the case without prejudice. Plaintiffs
have now filed their Fourth Amended Complaint and Defendant
has again moved to dismiss. The Motion is based on the same
reasoning as was the Motion directed at the Third Amended
Complaint: that Defendant was not Plaintiffs' employer.
little history is in order. Kube LLC (“Kube”), a
defendant in the first three Complaints Plaintiffs filed,
entered into an agreement with Defendant to provide
“consumer educators” (“CEs”),
individuals who would go to retail stores and supermarkets to
promote Defendant's alcohol related products by offering
customers free samples. Under Defendant's contract with
Kube, the latter was to “recruit, hire, and
train” the CEs. The contract further provided that Kube
had complete discretion to “determine the method,
details and means of performance of these services.” It
further specifically disclaimed that Defendant was a joint
employer of the CEs, including all matters related to
on the clear unambiguous language of the agreement, the Court
granted Defendant's Motion to Dismiss, stating that the
Third Amended Complaint failed to allege any plausible basis
for finding that Defendant was a joint employer with Kube of
the Plaintiffs. (See April 26, 2019 Mem. Op. and
Order, Dkt. No. 103.)
survive a Rule 12(b)(6) motion to dismiss, “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,
678 (2009) (citing Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 555 (2007)).
have settled with Kube. Plaintiffs' Fourth Amended
Complaint now brings the two wage claims solely against SG.
With respect to the allegations comprising the wage claims,
this version is virtually identical to the Third Amended
Complaint. It merely deletes Kube from the Complaint's
paragraphs and eliminates any mention of the agreement
between Kube and Defendant. As Defendant points out, this
latest version completes an odyssey commencing with
Complaints One, Two and Three brought solely against Kube,
through Complaint Four against both Kube and Defendant, SG,
to Complaint Five solely against Defendant, SG. This version
also conveniently leaves out the allegation in all previous
Complaints about the contract between Kube and Defendant.
seek to salvage this latest version arguing that, since the
Complaint does not refer to the Kube-Defendant contract, the
Court cannot consider it on a Motion to Dismiss without
converting the Motion to one for summary judgment. However,
as Defendant points out, previous versions of a Complaint
that are filed with the Court are public court records and
may be considered on a Motion to Dismiss. Hensen v. CSC
Credit Services, 29 F.3d 280. 284 (7th Cir. 1994);
Ibscher v. Sternes, 2004 WL 1368799 at *1 (N.D.
Ill.2004). Plaintiffs, apparently believing that their
argument may not fly, argues as a backup that the contract is
irrelevant because two employers are not allowed to
circumvent the wage laws through an agreement to violate the
wage laws. Plaintiffs' argument is based on their
contention that the wage laws take a conservative view in
determining whether an employee is an independent contractor
or an employee. Plaintiff cites Estate of Suskovich v.
Anthem Health Plans of Virginia, Inc., 553 F.3d 559, 565
(7th Cir. 2009). However, this argument is inapposite. No one
contends that Plaintiffs are independent contractors, because
they are clearly employees. The issue is whether Plaintiffs
are employees of Kube or of Defendant.
argument might have some merit if there were any allegations
to support it. As Plaintiffs point out, an employer cannot
get around the wage laws by contracting with a third party to
pay its employees in violation of the wage laws. However,
they still must be its employees. Plaintiffs contend that
Defendant, even under its contract with Kube, retained so
much control over the CEs that the economic reality was that
Plaintiffs were Defendant's employees.
provide a laundry list of controls and regulations imposed by
Defendant to support the economic reality that they were
Defendant's employees. They allege, inter alia,
that the CEs, being a part time position, were required to
report to specific locations at specific times (4th Am.
Compl. ¶ 89); CEs “managed” their wages from
a web site operated by Kube (Id. ¶ 91); CEs
were required to adhere to a detailed marketing and display
plan of Defendant's products (Id. ¶ 106);
Defendant established a dress code and makeup requirements
(Id. ¶¶ 97-98); and Defendant provided
guidelines for the service of the Defendant's alcohol
products (Id. ¶ 105).
the Fourth Amended Complaint fails to attain plausibility
because all of the so-called controls and regulations relate
to the specific product Defendant is purchasing from Kube. In
previous iterations of Plaintiffs' Complaint, Plaintiffs
described Kube, who “did business under the name
‘Kube Marketing,' [as] a self-styled
‘consumer educator' in the business of promoting
consumer products-primarily and other retail outlets across
at least five states.” (3d Am. Compl. ¶ 87, Dkt.
No. 73) Kube also “employed more ...