Williams et al v. The Reserves Network, Inc.

Filing 11

MEMORANDUM Opinion and Order. Signed by the Honorable Milton I. Shadur on 7/13/2016. Mailed notice (tt, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JOHN WILLIAMS and THELMA GARNER,
Plaintiffs,
v.
THE RESERVES NETWORK, INC.,
Defendant.

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Case No. 16 C 7043

MEMORANDUM OPINION AND ORDER
This putative class action by John Williams ("Williams") and Thelma Garner ("Garner")
against The Reserves Network, Inc. ("Reserves Network") was originally filed in the Circuit
Court of Cook County's Chancery Division. Reserves Network has filed a Notice of Removal
("Notice") to bring the action to this District Court, purporting to invoke the diversity-ofcitizenship branch of federal subject matter jurisdiction.
Because there is no reason to question the existence of the requisite diversity (see Notice
¶¶ 17-19) or the timeliness of removal (see Notice ¶ 10), this sua sponte memorandum opinion
and order focuses on Reserves Network's contention that at least one of the named plaintiffs (and
Reserves Network's counsel have understandably spoken in terms of Garner 1) satisfies the
required over-$75,000 amount in controversy. And for that purpose counsel refer to the Illinois
Day and Temporary Labor Services Act (the "Act," 820 ILCS 175/1-175/99 2), most particularly

1

Williams was paid at a lower hourly rate than Garner, and he worked for Reserves
Network for less than half of her 14-month tenure with that company.
2

Further references to provisions of the Act will simply take the form "Act § --,"
omitting the prefatory 820 ILCS 175.

Act § 95, which provides a private right of action to any person "aggrieved by a violation of this
Act."
In that respect Notice ¶ 20 (all case citations omitted) provides an accurate statement of
the operative standards:
For the amount in controversy requirement to be satisfied, a removing defendant
need only show ". . . by a preponderance of the evidence that the case meets the
$75,000.00 threshold." As a general rule, putative class members’ individual
damages cannot be aggregated to reach the required amount in controversy. The
required amount in controversy is only met if at least one class representative has
a claim that is worth more than $75,000, exclusive of interest and costs. In
conducting this analysis, the Court considers the "amount required to satisfy the
plaintiff's demands in full." Further, in the event of a removal, the amount in
controversy is measured "on the day the suit was removed." This includes
attorneys' fees.
But analysis reveals that Reserves Network's counsel have made a clearly flawed presentation on
that score. Importantly, Notice ¶ 22 mentions -- but Reserves Network's counsel gloss over the
impact of -- the allegations of Complaint ¶ 16 (emphasis added):
During her employment with Defendant, Plaintiff Garner was sent home after
having been contracted to work at Clearwater without receiving four hour
minimum pay for that day on several occasions.
"Several occasions" is a term of imprecise content -- Webster's Third New International
Dictionary defines it as "an indefinite number more than two and fewer than many." It is far
more than reasonable to state with assurance that if plaintiffs' counsel had a basis for alleging
(for example) something like "more than half the time" rather than the much weaker "several
occasions," such a stronger assertion would have been made. That said, this Court will make the
most favorable assumption for Reserves Network's purposes that on every occasion when Garner
was sent home without receiving the statutorily required four-hour minimum pay, that took place
before she had performed any services and therefore received nothing at all for that day.
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Look then at what a maximum calculation of the amount in controversy would produce,
even with the most plausibly conceivable inferences in Reserves Network's favor (however
inappropriate in real world terms). Garner's hourly rate of $10.25 works out to $41 in a
four-hour day. That figure, when multiplied by 210 days (representing fully 1/2 of the 14
months of her assignment to Reserves Network's third-party client company Clearwater 3),
amounts to $8,610. With an equal amount in liquidated damages (Act § 95(a)(1)), that brings the
aggregate figure to $17,220. But at that point anyone who reads the Act through an unjaundiced
eye 4quickly sees that Reserve Network's counsel have left the analytical rails.
Notice ¶ 23 cites only Act § 95 in describing the "damages available under the [Act],"
and it describes these asserted consequences of willful violations of the Act:
In the case of a willful violation of any part of the Act, a person or entity is liable
for penalties up to double the statutory amounts; additionally, if willful violations
result in underpayments to workers, the person or entity is liable to the worker for
2% of the underpaid amounts for each month these amounts remain unpaid.
But that assertion is totally misleading, for the provision as to willful violations is found instead
at Act § 75, which does describe the potential for double penalties but provides that "the penalty
may be recovered in a civil action brought by the Director of Labor in any circuit court" (Act
§ 75(c)) and is not part of the private right of action spelled out in detail in Act § 95 -- and if
there were any question on that score (as there is not), it would be dispelled by the contrast

3

Because neither the Complaint nor the Notice describe Clearwater's business, the
just-stated assumption in the text is based on a seven-day workweek, even though that is an
extraordinary assumption for most businesses.
4

See Alexander Pope's Essay on Criticism lines 558-59:
All seems infected that th' infected spy,
As all looks yellow to the jaundiced eye.
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between the just-quoted Act § 75(c) and Act § 75(b), the latter of which provides in part that a
willful violator "shall also be liable to the employee for punitive damages in the amount of 2% of
the amount of any such underpayments for each month following the date of payment during
which the underpayments remain unpaid."
Consequently the potential for that 2% monthly punitive damages award to Garner (an
aggregate average of 14% of the earlier-referred-to damages figure of $17,220 5) would add only
a bit over $2,400 to the total. And as to the final potential ingredient of the amount in
controversy, the item of attorneys' fees, the earlier-quoted language of Notice ¶ 20 has accurately
stated that the amount in controversy is measured "on the day the suit was removed," a time at
which the attorneys' fees to plaintiffs' counsel were necessarily modest. In sum, any contention
that Reserves Network had "a good faith basis to believe that the amount in controversy exceeds
$75,000.00" (Notice ¶ 24) is simply absurd.
It should be said again -- and really emphasized -- that all of the calculations that this
opinion has run through -- and that Reserves Network's counsel should have made before
attempting to bring this action into the federal system -- have provided Reserves Network
with a grossly inadequate calculation in its favor regarding the amount in controversy as to
either named plaintiff (obviously explaining why counsel for Garner and Williams have brought
suit on behalf of a proposed class rather than purely individual claims). Indeed, Reserves
Network's counsel really owe this Court an explanation of how they could have removed this

5

That 14% number is based on the assumption that the unpaid amounts spanned Garner's
14-month employment term on a regular basis. But even if that were not the case, the added
amount would still not approach twice the $2,400 figure given at the end of this sentence of the
text.
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action to the federal court in the subjective and objective good faith demanded by Fed. R. Civ. P.
11(b).
This Court determines that it is a major understatement to state, in the words of 28 U.S.C.
§ 1447(c), that "it appears that the district court lacks subject matter jurisdiction" -- and that
being so, the same statute mandates that "the case shall be remanded." This Court accordingly
orders the Clerk to mail a certified copy of the order of remand to the Clerk of the Circuit Court
of Cook County forthwith so that the state court "may thereupon proceed with such case" (id.).

__________________________________________
Milton I. Shadur
Senior United States District Judge
Date: July 13, 2016

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