Aguirre v. P2 Landscaping, Inc., d/b/a The Yard Crew et al

Filing 27

ORDER signed by the Honorable Ronald A. Guzman on 2/10/2015: For the reasons stated below, Plaintiff's motion to dismiss P2's counterclaim 15 is denied. Mailed notice (cjg, )

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS
Armando Aguirre, on behalf of himself
and those similarly situated,
Plaintiffs,
v.
P2 Landscaping, Inc. d/b/a The Yard
Crew, and Patrick Jones,
Defendants.

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Case No: 14 C 5899

Judge Ronald A. Guzmán

ORDER
For the reasons stated below, Plaintiff’s motion to dismiss P2's counterclaim [15] is
denied.
STATEMENT
In this lawsuit brought pursuant to the Fair Labor Standards Act ("FLSA"), Plaintiff
moves to dismiss P2 Landscaping, Inc.'s ("P2") counterclaim alleging breach of fiduciary duty
based on Plaintiff's purported solicitation of P2's clients for his own benefit. Plaintiff moves to
dismiss the counterclaim for lack of subject matter jurisdiction and under Federal Rule of Civil
Procedure ("Rule") 12(b)(6) for failure to state a claim. For the reasons stated below, the motion
to dismiss is denied.
Plaintiff alleges that he worked off the clock cleaning and preparing equipment and
overtime without pay in violation of the FLSA. (Compl., ¶ 16.) P2 alleges that during Plaintiff's
employment with P2, he would tender personal business cards and solicit work from the
owners/occupants of residential homes in the neighborhoods where he was doing work for P2
and would leave his P2 assignment and crew in order to engage in those solicitations.
(Counterclaim, ¶ 5.)

Under the Court's supplemental jurisdiction, see 28 U.S.C. § 1367(a), the state and
federal claims must “derive from a common nucleus of operative facts,” and “[a] loose factual
connection between the claims is generally sufficient” to support the assertion of supplemental
jurisdiction. Baer v. First Options, 72 F.3d 1294, 1299 (7th Cir. 1995). “The rationale of the
supplemental jurisdiction is economy in litigation.” Williams Elecs. Games, Inc. v. Garrity, 479
F.3d 904, 906 (7th Cir. 2007).
Here, the overlap in facts between the two claims is obvious. In order for Plaintiff to
succeed on his FLSA claim, he will need to establish that (1) he performed uncompensated work
and (2) P2 had “actual or constructive knowledge” of that overtime work. See 29 U.S.C. §
207(a)(1); Kellar v. Summit Seating, Inc., 664 F.3d 169, 177 (7th Cir. 2011). In order to
ascertain whether an FLSA violation occurred (i.e., whether Plaintiff worked uncompensated
hours, including overtime), the number of hours he actually performed work for P2 will need to
be determined. This calculation will necessarily be affected by whether Plaintiff solicited
business for himself when he should have been doing work for P2 (i.e., breached his fiduciary
duty). Thus, whether and for how many hours he was actually soliciting clients during his P2
work hours will need to be determined under both causes of action. The Court concludes that a
loose factual connection exists between the claims and that litigating them together will result in
an efficient use of judicial and party resources.
Plaintiff's contention that supplemental jurisdiction is improper here because P2's
allegations and request for damages will require additional discovery that will “take on a life of
its own” is not persuasive. Depositions may be slightly longer and some additional documents
may need to be produced in order to deal with the damages aspect of the breach of fiduciary duty

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claim, but the Court does not find that the breach of fiduciary duty claim substantially
predominates over the FLSA claim such that the Court should decline to exercise supplemental
jurisdiction. See 28 U.S.C. § 1367 (“[D]istrict courts may decline to exercise supplemental
jurisdiction over a claim under [28 U.S.C. § 1367(a) ] if: . . . (2) the claim substantially
predominates over the claim or claims over which the district court has original jurisdiction . . .
.”). See Rivera v. Ndola Pharmacy Corp., 497 F. Supp. 2d 381, 393 (E.D.N.Y. 2007)
(“Plaintiff's sexual harassment claim is intricately connected to her FLSA overtime claim because
it is directly linked to her allegations that her wages were $500 per week.”).
Plaintiff's reference to cases that have not allowed counterclaims for contribution,
indemnification or set-off in FLSA cases is unavailing as P2 does not allege those claims.
Finally, while Plaintiff is suing on behalf of a putative class and the breach of fiduciary duty
counterclaim is alleged against only Plaintiff, no class has yet been certified. If one is, the Court
may revisit the issue of whether, in its discretion, it is appropriate to exercise supplemental
jurisdiction over the breach of fiduciary duty claim.
Plaintiff's motion to dismiss the counterclaim for failure to state a claim under
Rule12(b)(6) is also denied. Plaintiff raised the issue for the first time in his reply brief, so the
Court will not consider the argument. Dexia Credit Local v. Rogan, 629 F.3d 612, 625 (7th Cir.
2010) (“[A]rguments raised for the first time in a reply brief are waived.”).

Date: February 10, 2015

_______________________________________
United States District Judge
Ronald A. Guzmán

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