Wiggins v. Illinois Bell Telephone Company
Filing
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MEMORANDUM Opinion and Order signed by the Honorable Edmond E. Chang. For the reasons stated in the Opinion, the motion to dismiss 10 is granted in part and denied in part. The Court encourages the parties to move forward with settlement negotiations. Emailed notice(slb, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
LORENZO WIGGINS,
)
)
)
Plaintiff,
)
)
v.
)
)
ILLINOIS BELL TELEPHONE COMPANY )
d/b/a AT&T Illinois,
)
)
Defendant.
)
No. 15 C 02769
Judge Edmond E. Chang
MEMORANDUM OPINION AND ORDER
I. Introduction
Plaintiff Lorenzo Wiggins brings claims under the Fair Labor Standards Act,
29 U.S.C. § 201 et seq., and the Illinois Minimum Wage Law (IMWL), 820 ILCS
105/1 et seq., alleging that his employer, Illinois Bell Telephone Company, did not
pay him overtime compensation for the time that he worked before his shift started
each day and for the time that he worked during what should have been his lunch
breaks.1 Wiggins seeks damages going back to September 6, 2008, arguing that a
prior case, litigated initially as an FLSA collective action and as a proposed IMWL
class action, tolled the statute of limitations on his claims. Illinois Bell moved to
dismiss all claims before February 28, 2011, countering that tolling does not apply
because the scope of the claims in this lawsuit exceeds the scope of the claims in the
1The
Court has subject matter jurisdiction over the federal FLSA claims under 28 U.S.C.
§ 1331, 29 U.S.C. § 201 et seq. The Court also has subject matter jurisdiction over the state
law IMWL claims under 28 U.S.C. §1367(a) because “they form part of the same case or
controversy.” Citations to the record are noted as “R.” followed by the docket number and
the page or paragraph number.
prior action. The Court denies Illinois Bell’s motion in part and grants it in part.
The statute of limitations is tolled for all of Wiggins’s unpaid lunch-hour claims—
regardless of the type of work allegedly performed—and these claims extend back to
September 6, 2008 at the earliest. Illinois Bell’s motion is thus denied as to these
lunch claims. The statute of limitations is not tolled, however, for Wiggins’s preshift work claims, because the claims do not share a common factual basis with the
prior action. Thus, Illinois Bell’s motion is granted on these pre-shift claims, which
extend back to February 28, 2011 at the earliest.
II. Background
Lorenzo Wiggins worked as a technician and hourly employee for Illinois Bell.
R. 4, Pl.’s Am. Compl. ¶¶ 1, 9. He alleges that Illinois Bell did not pay him overtime
for work that he performed before he started his shift every morning and during
lunch. Id. ¶¶ 9-28. On a typical workday, Wiggins reported to a garage in the
morning before heading out to his assigned tasks. Id. ¶¶ 10, 17. Wiggins did not
punch a time clock when he arrived at the garage in the morning; rather, employees
only reported the time that they spent on each discrete task during the day. Id. ¶¶
13, 16. When he was at the garage before each shift’s start, Wiggins was required to
prepare his truck and meet with supervisors and coworkers about his assigned jobs
for the day. Id. ¶¶ 18-20. Wiggins alleges that he was not paid overtime for the
fifteen minutes he spent every morning on these planning tasks, as his shift would
not formally start until shortly before leaving the garage. Id. ¶¶ 13, 17, 20.
2
Wiggins also alleges that he often worked through lunch. Id. ¶¶ 21-28.
During his half-hour break, he had to either complete on-the-job training under a
senior technician or drive between job sites. Id. ¶¶ 22, 26. Despite working during
his lunch breaks, Illinois Bell automatically deducted a half hour for lunch every
day and did not provide a code to report work completed during lunch. Id. ¶¶ 27-28.
Also relevant to this case is an extensive series of events that predated
Wiggins’s filing of his amended complaint. In January 2011, several Illinois Bell
employees filed an FLSA collective action and an IMWL class action in this district
in a case called Blakes. Am. Compl. ¶ 2; R. 11, Def.’s Br. at 1-2 (citing Blakes v. Ill.
Bell Tel. Co., 1:11-cv-000336). Blakes involved cable splicers’ allegations of unpaid
overtime for working during lunch and after their shifts concluded. Def.’s Br., Exh.
A, Blakes Compl. On September 6, 2011, Wiggins filed his opt-in consent to the
FLSA collective action in Blakes. Am. Compl. ¶ 4; Def.’s Br. at 3. On December 17,
2013, after more discovery and litigation in the case, Judge Kim decertified the
collective action as to several claims, Blakes v. Illinois Bell Tel. Co., 2013 WL
6662831, at *1 (N.D. Ill. Dec. 17, 2013), but stayed the decertification order until
February 28, 2014 to give plaintiffs time to file individual lawsuits, Def.’s Br. at 3
(citing Blakes, R. 239). On February 28, 2014, Wiggins and dozens of other plaintiffs
filed their individual FLSA and IMWL claims in Tinoco v. Ill. Bell. Tel. Co., 1:14-cv01456. Def.’s Br. at 3. On March 24, 2015, Judge Castillo severed the plaintiffs’
misjoined claims, permitting plaintiffs to file individual actions by July 30, 2015. Id.
3
(citing Tinoco, R. 147). Wiggins then filed his amended complaint in this case on
July 29, 2015. R. 4.
At issue now is whether the original Blakes action tolls the statute of
limitations in Wiggins’s current case. The FLSA provides a two-year statute of
limitations for ordinary claims and a three-year limitations period for willful
violations. 29 U.S.C. § 255(a). The IMWL has a three-year limitations period for all
claims. 820 ILCS 105/12(a). The parties agree that Wiggins originally filed this
action on February 28, 2014, the date of the first Tinoco complaint. Am. Compl. ¶ 4;
Def.’s Br. at 5. Ordinarily, it would be untimely for Wiggins to bring any claims
before February 28, 2012 for non-willful FLSA violations, or before February 28,
2011 for willful FLSA violations and for any IMWL violations. Def.’s Br. at 5. But
because of the original Blakes action, Wiggins now argues that his “FLSA claim
relates back at least two (2) and potentially three (3) years … from the date of the
filing of his written consent in the Blakes Action, September 6, 2011.” Am. Compl. ¶
4. So according to Wiggins, he can reach back and recover for violations as early as
September 6, 2008. R. 14, Pl.’s Resp. at 4. Illinois Bell does not dispute that a
collective or class action might toll statutes of limitations in later-brought
individual cases. Instead, it argues that tolling does not apply in this case because
Wiggins’s current claims were never part of the original Blakes action. Def.’s Br. at
6. It is on this basis that Illinois Bell filed this motion to dismiss all claims
predating February 28, 2011. R. 10.
4
III. Legal Standard
Under Federal Rule of Civil Procedure 8(a)(2), a complaint generally need
only include “a short and plain statement of the claim showing that the pleader is
entitled to relief.” Fed. R. Civ. P. 8(a)(2). This short and plain statement must “give
the defendant fair notice of what the … claim is and the grounds upon which it
rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (alteration in original)
(citation and quotations omitted). The Seventh Circuit has explained that this rule
“reflects a liberal notice pleading regime, which is intended to ‘focus litigation on
the merits of a claim’ rather than on technicalities that might keep plaintiffs out of
court.” Brooks v. Ross, 578 F.3d 574, 580 (7th Cir. 2009) (quoting Swierkiewicz v.
Sorema N.A., 534 U.S. 506, 514 (2002)).
“A motion under Rule 12(b)(6) challenges the sufficiency of the complaint to
state a claim upon which relief may be granted.” Hallinan v. Fraternal Order of
Police Chicago Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009). “[W]hen ruling on a
defendant’s motion to dismiss, a judge must accept as true all of the factual
allegations contained in the complaint.” Erickson v. Pardus, 551 U.S. 89, 94 (2007).
“[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) (quoting Twombly, 550 U.S. at 570). These allegations “must be enough to
raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. And
the allegations that are entitled to the assumption of truth are those that are
factual, rather than mere legal conclusions. Iqbal, 556 U.S. at 679.
5
IV. Analysis
1. Propriety of Motion to Dismiss
As an initial matter, Wiggins argues that “[d]ismissing a complaint as
untimely is unusual because a plaintiff need not plead to overcome the statute of
limitations affirmative defense.” Pl.’s Resp. at 2. It is true that “plaintiffs need not
anticipate and attempt to plead around all potential defenses.” Xechem, Inc. v.
Bristol-Myers Squibb Co., 372 F.3d 899, 901 (7th Cir. 2004). And “[s]tatute of
limitations defenses are frequently inappropriate for resolution on a motion to
dismiss because their application often depends upon factual determinations.”
Spann v. Cmty. Bank of N. Virginia, 2004 WL 691785, at *2 (N.D. Ill. Mar. 30,
2004). The Court also acknowledges that judges in this district have denied motions
to dismiss (where Illinois Bell made similar arguments) in other cases arising from
the Blakes/Tinoco progeny. See Howard v. Ill. Bell Tel. Co., 1:15-cv-02720, R. 13
(denying Illinois Bell’s motion to dismiss because the statute of limitations is an
affirmative defense not suited for 12(b)(6) resolution); Wright v. Ill. Bell Tel. Co.,
1:15-cv-02770, R. 14 (same).
The Court could do the same here, but it is also appropriate to address an
affirmative defense in a motion to dismiss when “the Complaint so thoroughly
anticipated” the defense. Hecker v. Deere & Co., 556 F.3d 575, 588 (7th Cir. 2009)
(“Plaintiffs here chose to anticipate the [ERISA safe harbor] defense in their
Complaint explicitly and thus put it in play”); see also, e.g., Tamayo v. Blagojevich,
526 F.3d 1074, 1086 (7th Cir. 2008) (“a party may plead itself out of court by
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pleading facts that establish an impenetrable defense to its claims.”). In Spann, the
court addressed the tolling effect of a prior class action in a motion to dismiss
because “[i]f a plaintiff alleges facts that show that his action is time-barred,
however, he may plead himself out of court.” 2004 WL 691785, at *2. Similarly,
here, Wiggins chose to anticipate the statute of limitations defense in his amended
complaint and thus put it at issue when he alleged that
This lawsuit was initially filed on February 28, 2014, prior to the effective
date of decertification in the Blakes action. Therefore, Wiggins’s FLSA claim
relates back at least two (2) years and potentially three (3) years (if there is a
finding of willfulness) … from the date of the filing of his written consent in
the Blakes Action, September 6, 2011.
Am. Compl. ¶ 4. Further, Wiggins has not identified a specific fact that is in dispute
or that needs to be developed in discovery before it is possible to decide the statute
of limitations issue. It would be one thing if Wiggins could articulate a disputed set
of facts that was material to deciding the limitations issue, or if Wiggins could
explain what discovery he might need in order to generate evidence to stave off the
limitations defense. But he has not done so. Absent even a potential need for factual
development, the motion to “dismiss” filed by Illinois Bell is really no different from
an early summary judgment motion on an agreed set of facts. It is thus proper for
the Court to address the statute of limitations defense at this stage.
2. American Pipe Tolling
In American Pipe & Construction Co. v. Utah, the Supreme Court created a
rule for tolling in the class action context, holding that “the commencement of a
class action suspends the applicable statute of limitations as to all asserted
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members of the class who would have been parties had the suit been permitted to
continue as a class action.” 414 U.S. 538, 554 (1974). This tolling lasts “only during
the pendency of the motion to strip the suit of its class action character.” Id. at 561.
Although American Pipe announced this tolling principle in the context of plaintiffs
who intervened in a class action, the Supreme Court later extended the theory to
situations where plaintiffs filed a new lawsuit, noting that the tolling period
continues until the denial of class certification. Crown, Cork & Seal Co. v. Parker,
462 U.S. 345, 350, 354 (1983). In the context of FLSA collective actions, 2 the
“commencement” of the action—or when the tolling begins—is when a plaintiff files
his written consent to opt into the lawsuit. 29 U.S.C. § 256 (“[I]n the case of a
collective or class action … [the action] shall be considered to be commenced in the
case of any individual claimant … on the subsequent date on which such written
consent is filed in the court in which the action was commenced.”). See Groshek v.
Babcock & Wilcox Tubular Products Div., 425 F. Supp. 232, 234 (E.D. Wis. 1977)
(tolling in a FLSA collective action begins when plaintiffs filed written consents and
not on the original filing date). The tolling ends when class certification (or, in this
context, collective-action status) has been denied. Spann, 2004 WL 691785, at *4
(citing Crown, Cork, 462 U.S. at 353-54).
2The
FLSA allows employees to bring a collective action, which is “similar to, but distinct
from the typical class action brought pursuant to Fed. R. Civ. P. 23. The principle difference
is that plaintiffs who wish to be included in a collective action must affirmatively opt-in to
the suit by filing a written consent with the court, while the typical class action includes all
potential plaintiffs that meet the class definition and do not opt-out.” Alvarez v. City of
Chicago, 605 F.3d 445, 448 (7th Cir. 2010); 29 U.S.C. § 216(b).
8
Illinois Bell agrees that American Pipe tolling applies here: “Because Plaintiff
timely filed his individual complaint after the decertification order in the Blakes
action, Illinois Bell does not dispute that the statute of limitations was tolled … .”
Def.’s Br. at 5. The only dispute is which claims are tolled—put another way, what
is “the relationship necessary between the putative class claims from the class
action and the claims in an individual law suit to preserve individual claims that
would otherwise be untimely[?]” Sellers v. Bragg, 2005 WL 1667406, at *6 (N.D. Ill.
July 13, 2005). Wiggins argues that Blakes tolled the statute of limitations for all
FLSA overtime claims regardless of their nature, so tolling is not limited to “any
specific off-the-clock work performed.” Pl.’s Resp. at 5. On the other end of the
spectrum, Illinois Bell believes that “tolling applies only to the claims that were
actually part of the Blakes conditionally certified collective action.” Def.’s Br. at 7.
The right answer is somewhere in between these two extremes.
Tolling applies when the plaintiff “possess[es] a claim that the prior class
action asserted.” Newberg on Class Actions § 9:60 (5th ed.). This does not mean that
“a subsequent individual suit … [must] be identical in every respect to an earlier
class action,” but only that “the claims … share a common factual basis or legal
nexus.” Id. Put another way, the claims must be “substantially similar.” Finwall v.
City of Chicago, 2007 WL 2404611, at *2 (N.D. Ill. Aug. 16, 2007). The main
concern—as with any statute of limitations—is fair notice, so “the class proceeding
must provide the defendant with ‘ample notice’ of the plaintiff’s individual claim.”
Newberg on Class Actions § 9.60. To prevent prejudice, a “district court should take
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care to ensure that the suit raises claims that concern the same evidence, memories,
and witnesses as the subject matter of the original class suit.” Sellers, 2005 WL
1667406, at *6 (quotations omitted) (quoting American Pipe, 414 U.S. at 562
(Blackmun, J., concurring)). “In other words, the emphasis seems to be on the
similarity of the claims and the underlying factual predicates between the proposed
claims for which tolling is asserted and the putative class claims in the prior
litigation.” Id. (plaintiff’s malicious prosecution claim involving “allegedly coerced
identifications, allegedly false police reports, and the initiation of knowingly
baseless criminal proceedings” was “not fairly encompassed within the issues” of the
prior unlawful detention class action claim concerning “the length and conditions of
a plaintiff’s detention immediately following his or her warrantless arrest.”). See
also, e.g., In re Copper Antitrust Litigation, 436 F.3d 782, 793-97 (7th Cir. 2006)
(scope of claims was not the same when plaintiffs brought federal antitrust claims
and prior class action asserted state antitrust claims); Finwall, 2007 WL 2404611,
at *2 (the two unlawful detention claims were “substantially similar”); Spann, 2004
WL 691785, at *6 (tolling was “incompatible” with Truth in Lending Act rescission
claim; even if statute of limitations could be tolled, the plaintiff’s TILA and Home
Ownership and Equity Protection Act claims were not raised in the original class
action, which involved only state law claims).3
3Although
Blakes involved an FLSA collective action, it is appropriate to analogize to tolling
cases involving Rule 23 class actions. The Seventh Circuit explained that collective actions
and class actions are similar—“there isn’t a good reason to have different standards for the
certification of the two different types of action, and the case law has largely merged the
standards.” Espenscheid v. DirectSat USA, LLC, 705 F.3d 770, 774 (7th Cir. 2013). The
Rule 23 standards thus “are as relevant to collective actions as to class actions.” Id. To be
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Practically, this means that a court should look to the class-action (or
collective-action) complaint to determine whether its claims are “substantially
similar” to the ones now brought individually. Finwall, 2007 WL 2404611, at *2. For
example, in Rochford v. Joyce, 755 F. Supp. 1423, 1428 (N.D. Ill. 1990), the plaintiff
filed individual ERISA and Labor Management Relations Act claims. That the prior
class action did not involve an ERISA claim was not dispositive of the tolling issue,
because “there is no need for the suits to be identical.” Id. (citations omitted).
Instead, the court looked at the class-action complaint to determine whether it
contained the same factual predicate as the ERISA claim now alleged. Id.
(ultimately concluding that the class-action complaint only provided “generalized
allegations” that did not give notice of the current ERISA claims). Illinois Bell’s
argument—that tolling only applies to the claims that were conditionally certified
in the prior action—is therefore too narrow, and in any event, Illinois Bell cites no
authority for this standard. Def.’s Br. at 7.
3. Wiggins’s Lunch Claims
Looking now to the Blakes complaint, as well as to the amended complaint
filed later in Blakes, the Court concludes that the statute of limitations is tolled for
sure, the Supreme Court has recently cast doubt on whether it is appropriate to simply take
Rule 23 class-action principles and apply them to FLSA collective actions across the board.
In Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523, 1528 n.1 (2013), for example, the
Supreme Court “note[d] that there are significant differences between certification under
Federal Rule of Civil Procedure 23 and the joinder process under § 216(b).” Having said
that, for purposes of tolling a limitations period, there is no reason to believe that the two
types of actions should be treated differently because the purpose of limitations periods in
both contexts is the same: to provide notice to the defendant that the plaintiff is bringing
the claim.
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Wiggins’s current claims involving unpaid work during lunch.
4
The Blakes
complaints contained factual allegations about working during lunch hours that are
similar to the allegations in this action. In the original Blakes complaint, the
plaintiffs claimed that they “are often scheduled to do work at multiple locations
and must travel from job site to job site,” and that “[b]ecause the Plaintiffs must
maintain a job-site and/or travel between job-sites, Plaintiffs and similarly situated
others do not regularly take an uninterrupted lunch break for a half-hour.” Blakes
Compl. ¶¶ 25, 26. The plaintiffs were never paid for this time because “AT&T
requires Plaintiffs and similarly situated others to include a half-hour lunch in their
time sheets whether or not it was taken, unless it was previously approved by a
supervisor.” Id. ¶ 17. The Blakes amended complaint included these same
allegations. Blakes, 1:11-cv-00336, R. 11, Am. Compl. ¶¶ 17, 25-26.
The allegations in Blakes are substantially similar to Wiggins’s current lunch
claims. Wiggins now alleges that “[e]ach workday, [he] typically ate his lunch while
working on the jobsite or while driving between jobsites.” Am Compl. ¶ 26. In
addition to driving between jobsites, Wiggins often had to complete job training
during his lunch breaks. Id. ¶¶ 21-22. And he was not paid for this time because
Illinois Bell “automatically deducted one half hour from Wiggins’ pay for lunch” and
4 Although
Wiggins did not attach the Blakes complaint or amended complaint to his
current amended complaint, the Court may consider “matters of the public record,” such as
court filings, in a motion to dismiss. Henson v. CSC Credit Servs., 29 F.3d 280, 284 (7th Cir.
1994). The Court is also permitted to consider any documents incorporated or referenced in
Wiggins’s complaint. See Tierney v. Vahle, 304 F.3d 734, 738 (7th Cir. 2002) (an “authentic
document central to the plaintiff’s claim” can be considered in a 12(b)(6) motion). The
Blakes pleadings are central to Wiggins’s argument that the statute of limitations should
now be tolled. Am. Compl. ¶¶ 2-4.
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did not provide any code to account for time worked during lunch. Id. ¶¶ 27-28.
Illinois Bell argues that tolling is only appropriate for the lunch claims that were
conditionally certified in Blakes, namely, “traveling among job sites and providing
job site security.” R. 16, Def.’s Reply at 12. Thus, it would exclude Wiggins’s
allegations about completing on-the-job training during lunch. But this is not the
standard. The statute of limitations is tolled for all of Wiggins’s lunch claims,
regardless of the type of worked allegedly performed, because the claims share the
same factual and legal nexus as the Blakes allegations—that Illinois Bell failed to
compensate employees for time worked during their lunch breaks. Blakes provided
Illinois Bell with ample notice that its employees were being deprived of an
uninterrupted lunch break because Illinois Bell allegedly deducted the 30-minute
lunch block even though the employees might have worked all or some of that time.
The statute of limitations for the FLSA and IMWL lunch claims are thus tolled from
the date Wiggins filed his written consent in Blakes on September 6, 2011, until the
class was decertified and Wiggins filed his Tinoco complaint on February 28, 2014.5
5 Illinois
Bell does not explicitly challenge the propriety of tolling the state law IMWL
claims. But the IMWL claims are subject to the same tolling principles as the federal FLSA
claims. See, e.g., Phillips v. WellPoint, Inc., 900 F. Supp. 2d 870, 881 (S.D. Ill. 2012) (tolling
applied to state law claims brought in state court and then removed to federal court, when
there was a prior class action also brought in state court and removed to federal court);
Villanueva v. Davis Bancorp, Inc., 2011 WL 2745936, at *5 (N.D. Ill. July 8, 2011) (court
allowed tolling in an IMWL case when there was a prior federal court IMWL class action);
Steinberg v. Chicago Medical School, 371 N.E.2d 634 (Ill. 1977) (adopting the American
Pipe rule for state class actions). Although Illinois does not adopt American Pipe tolling in
the cross-jurisdictional context, Portwood v. Ford Motor Co., 701 N.E.2d 1102, 1103 (Ill.
1998), “‘cross-jurisdictional’ refers to situations where the same claims have been filed in
different forums,” Villanueva, 2011 WL 2745936, at *5. Because this is not a situation
where the two cases crossed state and federal jurisdictions, cross-jurisdictional tolling
prohibitions do not apply. But see Ottaviano v. Home Depot, Inc., USA, 701 F. Supp. 2d
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At most, these lunch claims extend back (1) two years to September 6, 2009 for nonwillful FLSA violations; or (2) three years to September 6, 2008 for willful FLSA
violations and any IMWL claims.
4. Wiggins’s Pre-Shift Claims
The statute of limitations is not tolled, however, for Wiggins’s claims
involving unpaid pre-shift work. Neither the complaint nor the amended complaint
in Blakes contained any allegation about completing unpaid work before the start of
work shifts. The only relevant discussion was the following: “Plaintiffs begin each
day with a morning meeting at 7:00 a.m. where each is assigned a job that day.
From that point on, until 3:30 the Plaintiffs are ‘on the clock’ and engaged to do
work for AT&T.” Blakes Compl. ¶ 21; Blakes Am. Compl. ¶ 21. But there is no
mention of how long the morning meeting lasted, any suggestion that the shifts did
not begin soon after arrival, or an allegation that Illinois Bell failed to pay
compensation for the morning meeting. The complaints instead focused on unpaid
work performed during lunch and at the end of the day. See generally id. Indeed,
Judge Kim concluded that the Blakes plaintiffs had not pled any pre-shift claims.
Blakes v. Illinois Bell Tel. Co., 75 F. Supp. 3d 792, 802 (N.D. Ill. 2014).
Wiggins argues that the statute of limitations should nevertheless be tolled
because “Judge Kim found that the Blakes plaintiffs could have amended their
complaints to include additional claims had they done so sooner.” Pl.’s Resp. at 4.
But even though the plaintiffs could have amended, they did not, and this was
1005, 1012 (N.D. Ill. 2010) (IMWL claims previously brought in federal court did not toll
current IMWL action in federal court).
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precisely the source of Judge Kim’s disapproval. Blakes, 75 F. Supp. 3d at 802. At
the summary judgment stage, the Blakes plaintiffs sought to amend the complaint
to add pre-shift (and other) claims, arguing that Illinois Bell was on notice of these
claims during discovery. Id. But because the plaintiffs knew about these pre-shift
claims before discovery, yet neglected to include them in the complaint or amended
complaint, Judge Kim did not permit them to amend at this late stage. Id. at 804.
The court concluded that “venturing beyond allegations based on job-site
maintenance, travel, and insufficient time to complete timesheets to include
unreasonable efficiency standards, pre-shift work, and other post-shift activities
changes the basic factual premises in the case.” Id. at 803-04 (emphasis added). The
plaintiffs did not take advantage of several opportunities to amend, and allowing
amendment at the close of discovery would have been prejudicial. Id. at 805. So
even though there might have been discovery in Blakes about unpaid pre-shift work
such that Illinois Bell cannot claim complete surprise at these claims, the bottom
line is that this Court needs an operative pleading with underlying facts as a point
of comparison. See, e.g., Rochford, 755 F. Supp. at 1428 (courts must look to the
class action complaint to determine if a defendant had sufficient notice of the
claims). Engaging in some discovery on a claim is not the same as advancing the
claim in the litigation; discovery by itself is not, for example, a basis to relate-back a
previously unmade claim to the original filing date of the complaint. Fed. R. Civ. P.
15(c) (setting forth the conditions when relation-back is authorized). Here, there is
no former complaint containing pre-shift work allegations, so the Court cannot
15
conclude that the statute of limitations for Wiggins’s current pre-shift claims can be
tolled.
In sum, because the prior Blakes complaints did not include factual
allegations about pre-shift work, the statute of limitations is not tolled for Wiggins’s
current pre-shift claims. At most, these claims extend back to (1) February 28, 2012
for ordinary FLSA violations (two years before Wiggins filed his complaint in the
Tinoco action); or (2) February 28, 2011 for willful FLSA violations and any IMWL
claims (three years before Wiggins filed his complaint in the Tinoco action). All
earlier pre-shift allegations are dismissed.
V. Conclusion
For the reasons discussed above, Illinois Bell’s motion to dismiss, R. 10, is
granted in part as to Wiggins’s pre-shift claims, and denied in part as to Wiggins’s
lunch claims.
ENTERED:
s/Edmond E. Chang
Honorable Edmond E. Chang
United States District Judge
DATE: October 22, 2015
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