Granillo et al v. Fawn Landscaping & Nursery, Inc. et al

Filing 42

MOTION by Plaintiffs Pedro Figueroa, Venancio Granillo for judgment , MOTION by Plaintiffs Pedro Figueroa, Venancio Granillo to set a briefing schedule on Plaintiffs' Fee Petition, MOTION by Plaintiffs Pedro Figueroa, Venancio Granillo to dismiss Voluntarily Dismiss Counts III and IV (Willenson, Marni)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
VENANCIO GRANILLO and PEDRO
FIGUEROA

)
)
)
Plaintiffs,
)
v.
)
)
FAWN LANDSCAPING & NURSERY, INC. )
and MARK TRACY
)
)
Defendants.
)

Case No. 14-C-5246
Judge Rebecca R. Pallmeyer
Magistrate Judge Maria Valdez

PLAINTIFFS’ MOTION TO VOLUNTARILY DISMISS COUNTS III AND IV,
FOR THE ENTRY OF JUDGMENT ON COUNTS I AND II, AND TO SET A
SCHEDULE FOR PLAINTIFFS’ FEE AND COST PETITION
Plaintiffs, by and through their undersigned counsel, and after an
evidentiary hearing on damages on Counts I and II of the Complaint, respectfully
move as follows:
1. For the entry of judgment in their favor and against Defendants, jointly
and severally, on Counts I and II of the Complaint, in the amounts proven at
hearing by a preponderance of the evidence;
2. To voluntarily dismiss Counts III and IV of the Complaint, in order to
facilitate entry of a final judgment order and collection of Plaintiffs’ damages; and
3. For a schedule for the filing of Plaintiffs’ attorney’s fees and cost petition,
pursuant to Federal Rule of Civil Procedure 54(d) and Local Rule 54.3.
A. Procedural history
On April 8, 2015, the Court granted Plaintiffs’ motion for judgment on the
pleadings against Defendants, jointly and severally, on Counts I and II of the

Complaint, asserting non-payment of overtime wages in violation of the Fair Labor
Standards Act, 29 U.S.C. § 207 (FLSA), and Illinois Minimum Wage Law, 820 ILCS
105/4a (IMWL). ECF No. 36. Having found for Plaintiffs on Counts I and II, the
Court scheduled a prove-up hearing on damages. Id.
The prove-up hearing was held on April 27, 2015. See ECF No. 40. The Court
heard the testimony of Plaintiffs Venancio Granillo and Pedro Figueroa1 as well as
Defendant Mark Tracy. The Court also received into evidence Plaintiffs’ hearing
exhibits 1-10. ECF No. 41. Plaintiffs’ hearing exhibit 6 is an Excel file with a
spreadsheet for each Plaintiff summarizing the records of his hours worked and
wages paid and setting forth his damages on Counts I and II. The damages include
unpaid overtime wages, liquidated damages under the FLSA, 29 U.S.C. § 216(b),
and state law penalties under the IMWL, 820 ILCS 105/12. Id.
Defendants offered no evidence at the hearing to refute the amount of
Plaintiffs’ damages. The Court rejected affirmative defenses asserting that
Plaintiffs were not entitled to overtime wages because their work, allegedly, fell
within the “agricultural exemptions” of the FLSA and IMWL. ECF No. 40. The
evidence at hearing did not support these defenses. Rather, it showed that Plaintiffs
were landscapers—trimming plants and trees on customer properties, clearing land
to install lawns, constructing patios and hedges, laying asphalt, and doing other
non-farm work. Plaintiffs’ work was, thus, covered by the FLSA and IMWL, not
exempt, and Plaintiffs were entitled to overtime wages for overtime hours. See 29

By consent and with leave of Court, Plaintiff Figueroa testified via live video
stream from the city of León, state of Guanajuato, México. See ECF No. 39.
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C.F.R. § 780.105 (“employees not employed in farming or by a farmer or on a farm
are not employed in agriculture”); A.H. Phillips, Inc. v. Walling, 324 U.S. 490, 493
(1945) (“Any exemption from such humanitarian and remedial legislation [i.e. the
FLSA] must therefore be narrowly construed. … To extend an exemption to other
than those plainly and unmistakably within its terms and spirit is to abuse the
interpretative process and to frustrate the announced will of the people.”)
At the end of the hearing, Defendants’ questioned whether Plaintiffs are
entitled to both liquidated damages under the FLSA and penalties under the
IMWL. See ECF No. 40. Plaintiffs cited three opinions from this Court supporting
the recovery of both FLSA liquidated damages and the 2% per month IMWL
penalties: Reynoso v. Motel LLC, --- F. Supp. 3d ---, Case No. 13-C-5004, 2014 WL
5392034, *17 (Oct. 21, 2014) (Shadur, J.); Calderon v. J. Younes Constr. LLC, Case
No. 12-C-3793, 2013 WL 3199985, *8 (N.D. Ill. June 23, 2013) (Kennelly, J.); and
Lizak v. Great Masonry, Inc., No. 08-C-1930, 2009 WL 3065396, *9 (N.D. Ill. Sept.
22, 2009) (Coar, J.). The Court “delay[ed] entering judgment for one week to permit
defense counsel to research [Plaintiffs’ contention]” and further ordered that “[a]ny
written objection to Plaintiffs’ proposed judgment amounts be filed by close of
business on May 4, 2015.” ECF No. 40.
Despite this opportunity, Defendants filed no written objection to Plaintiffs’
proposed judgment amounts.

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B.
The Court should enter judgment for Plaintiffs and against
Defendants, jointly and severally, on Counts I and II in the amounts
Plaintiffs proved at hearing.
Plaintiffs have proven their damages on Counts I and II of the Complaint by
a preponderance of the evidence, in the amounts set forth in Plaintiffs’ hearing
exhibit 6:
For Plaintiff Venancio Granillo: $40,357.71
For Plaintiff Pedro Figueroa: $44,961.88
Thus, the Court should enter judgment in favor of each Plaintiff and against
Defendants, jointly and severally, in these amounts.
C.
Plaintiffs seek voluntary dismissal of Counts III and IV to expedite
the entry of a final judgment order and collection of their damages and the
award of attorney’s fees and litigation costs and expenses.
Plaintiffs cannot secure judgment on the pleadings against Defendants on
Counts III and IV of the Complaint, because unlike Counts I and II, Defendants did
not admit the violations. ECF No. 23 ¶¶22, 23, 33, 37. Thus, to secure judgment on
Counts III and IV, Plaintiffs would need to further litigate these claims.
Given the substantial damages due to Plaintiffs on Counts I and I, Plaintiffs
cannot justify the time that would be expended further litigating Counts III and IV
of the Complaint. This case, fundamentally, is for unpaid overtime. The additional
claims asserted were secondary to the overtime violations. Plaintiffs have proven
their entitlement to tens of thousands of dollars of relief on their overtime claims. A
judgment in the amounts shown at hearing and set forth above will accomplish
Plaintiffs’ objectives in this litigation. Accordingly, Plaintiffs request voluntarily

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dismissal of Counts III and IV so the Court can enter a final judgment disposing of
all claims and Plaintiffs can collect on that judgment.
D.
All claims having been resolved, the Court should direct the entry of
a final judgment pursuant to Rule 58
After the entry of judgment on Counts I and II and voluntary dismissal of
Counts III and IV, all claims for relief will be resolved. The Court should, thus,
approve a final judgment pursuant to Federal Rule of Civil Procedure 58(b)(2).
E.
The Court should apply simplified and expedited Local Rule 54.3
procedures to adjudicate Plaintiffs’ fee petition
Plaintiffs are entitled to recover their attorney’s fees and costs under the
FLSA and IMWL. 29 U.S.C. § 216(b); 820 ILCS 105/12. Federal Rule of Civil
Procedure 54 and Local Rule 54.3 (LR 54.3) apply to the adjudication of Plaintiffs’
fee petition. Here, Plaintiffs seek simplified and expedited LR 54.3 procedures.
Typically, LR 54.3 procedures can reduce the issues for the Court to decide on
a fee petition as well as attorney time spent litigating fees-on-fees. However,
Plaintiffs doubt that these objectives would be accomplished here. First, LR 54.3
procedures are too complicated, and will take too long, given the simple nature of
the fee petition. Plaintiffs’ counsel has only around 50 hours and 85 time entries in
the case, over a period of 12 months. The attorney fee lodestar is currently less than
$25,000. Applying all LR 54.3 procedures would be out of proportion to the amount
at stake and, ultimately, cost Defendants more in attorney’s fees.
In addition, Plaintiffs have reason to be skeptical that Defendants would
fully engage in the LR 54.3 process. Defendants never answered discovery, violated

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Court orders, and never paid the sanction that the Court imposed on March 30,
2015. ECF No. 31. For these reasons, Plaintiffs request that the Court either set a
deadline for the filing of Plaintiffs’ petition, which Plaintiffs would proceed to file, or
alternatively, adopt the following simplified LR 54.3 procedures and timeline:
1.

Seven (7) days after the entry of judgment, Plaintiffs will produce

counsel’s time records, evidence of claimed nontaxable expenses, and a statement of
counsel’s billing rate.
2.

Fourteen (14) days thereafter, Defendants will identify any contested

time entries and state their position on Plaintiffs’ counsel’s billing rate.
3.

The parties will meet and confer within 7 days to attempt to resolve

any disputes.
4.

If there are any remaining disputes, then within 7 days after the meet-

and-confer, Defendants will produce their own counsel’s time records; and if
Defendants also contest Plaintiffs’ counsel’s rate, the parties will exchange the
evidence they intend to submit in support of their position.
5.

Plaintiffs will file their fee petition 10 days after receiving the

information from Defendants.
This proposed schedule reduces the timeline for the filing of Plaintiffs’ fee
petition from the 91 days anticipated by LR 54.3 to 45 days.
In addition, in the event Defendants fail to produce required information by
the deadlines set by the Court or to meet-and-confer as required, Plaintiffs request
leave to immediately file their fee petition without further LR 54.3 procedures.

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Conclusion
For the reasons set forth above, Plaintiffs respectfully request that the Court
order as follows:
1.

Enter judgment in Plaintiffs favor and against Defendants, jointly and

severally, in the amount of $40,357.71 for Plaintiff Venancio Granillo and
$44,961.88 for Plaintiff Pedro Figueroa;
2.

Voluntarily dismiss Counts III and IV of the Complaint;

3.

Enter a final judgment;

4.

Grant leave to Plaintiffs to file their fee and cost petition within 14

days or, in the alternative, set the schedule set forth in section E above for the
exchange of fee and cost information and the filing of Plaintiffs’ petition and order
that, should Defendants fail to follow the schedule or to meet and confer as
required, Plaintiffs are permitted to file their fee and cost petition without further
LR 54.3 procedures.
Dated: May 14, 2015

Respectfully submitted,
/s Marni Willenson
Attorney for Plaintiffs

Willenson Law, LLC
542 S. Dearborn St., Suite 610
Chicago, IL 60605
[phone]
[phone] Fax
[e-mail]

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CERTIFICATE OF SERVICE
The undersigned counsel for Plaintiffs hereby certifies that on May 14, 2015,
she served a true and correct copy of the foregoing document on all counsel of record
through the Court’s ECF/CM System.
/s Marni Willenson

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