Pfefferkorn et al v. PrimeSource Health Group LLC et al
MEMORANDUM Opinion and Order Signed by the Honorable John Robert Blakey on 2/12/2018. Mailed notice(gel, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
ERIN PFEFFERKORN, et al.,
Case No. 17-cv-1223
Judge John Robert Blakey
PRIMESOURCE HEALTH GROUP, LLC,
MEMORANDUM OPINION AND ORDER
This putative collective action arises from alleged violations of the Fair Labor
Standards Act (FLSA), 29 U.S.C. § 201 et seq.
Plaintiffs claim that
PrimeSource Health Group, PrimeSource Health Care Systems, and PrimeSource of
Michigan failed to fully pay Plaintiffs for hours worked, including overtime, and
allege various theories of liability against the remaining defendants. Id. Multiple
defendants jointly moved to dismiss the claims against them, , and to dismiss
certain plaintiffs from the suit, . For the reasons explained below, this Court
partially grants and partially denies the motion to dismiss Plaintiffs’ claims, and
denies in full the motion to dismiss certain plaintiffs from this action.
The Complaint’s Allegations
Plaintiffs all worked for Defendants PrimeSource Health Group, PrimeSource
Health Care Systems, and PrimeSource of Michigan (together, PrimeSource) as
Clinical Assistants, Clinical Assistant Supervisors, or Patient Assistants at some
time during the three years preceding this case. See  ¶¶ 77, 234.
PrimeSource consists of a network of linked companies offering mobile
medical services to long-term care facilities. See id. ¶¶ 24–30, 72–75. PrimeSource
Group is the parent corporation of PrimeSource Health Care Systems, which is the
parent company of PrimeSource Michigan (as well as other subsidiaries not named
as defendants here).
See id. ¶¶ 27–29. PrimeSource forms a single enterprise
engaged in commerce and is thus subject to various requirements under the FLSA.
See id. ¶ 30; 29 U.S.C. §§ 203(s)(1), 207(a)(1).
Plaintiffs allege that in the three years before they sued in February 2017,
PrimeSource failed to pay them for all the hours they worked, and/or failed to pay
them overtime wages when they worked over 40 hours in a week.  ¶ 234; .
PrimeSource contracted to provide on-site medical care at nursing facilities
throughout Illinois, Indiana, Michigan, and Kentucky.  ¶¶ 75, 77–78. They
traveled to different sites during the work week, often to more than one facility in a
day. Id. ¶ 78. Plaintiffs’ responsibilities included: inspecting, maintaining, and
repairing medical equipment, often while at home; travelling to care facilities to
assist physicians and patients, on journeys that often lasted two to three hours each
way; and shipping or transporting medical equipment and supplies to care facilities,
often on what was ostensibly their own time. Id. ¶¶ 78–80, 83.
Plaintiffs claim that PrimeSource misclassified them as exempt from the
FLSA’s minimum wage and overtime requirements and therefore failed to pay
Plaintiffs overtime when they worked more than 40 hours a week; failed to
compensate Plaintiffs for travel time, despite the fact that they performed principal
job duties while travelling; and failed to compensate Plaintiffs for the equipment
maintenance and shipping work they performed from home, despite the fact that
this, too, was a “principal job duty” and PrimeSource knew that Plaintiffs did this
work. Id. ¶ 83. These alleged FLSA violations form the basis of Plaintiffs’ suit. See
id. ¶¶ 236–44.
In addition to suing corporate PrimeSource entities, Plaintiffs also sue
individual PrimeSource officers, including Bobbie Richey and Traci Bernthal. 1 See
id. at 2.
At all relevant times, Richey served as PrimeSource’s Senior Vice
President of Clinical Services and/or Senior Vice President of Human Resources.
Id. ¶ 50. In this role, Plaintiffs allege that she “supervised and/or controlled” their
employment, acting in PrimeSource’s interest.
Id. ¶ 51.
Richey contributed to
PrimeSource’s “budgetary process,” which determined Plaintiffs’ salaries, and she
allegedly controlled PrimeSource’s “day to day operations,” including paying
Id. ¶ 52, n.15.
Human Resources officials also played a role in
determining which employees were exempt from FLSA requirements. See [59-33] at
Plaintiffs also assert claims against other individual PrimeSource officers, but for brevity and
clarity, this Court’s discussion focuses on the individuals who joined the motions to dismiss: Richey,
Bernthal, Annie Elliott, and Kenneth King. See [74, 77].
22–25; [52-2] at 8. 2
David Fleming, PrimeSource’s owner, president, and CEO,
specifically named Richey and Bernthal as two persons involved in PrimeSource’s
budget who would have “decided the salaries” for PrimeSource employees.  ¶
48; [52-2] at 8.
Bernthal served as PrimeSource’s Senior Vice President of Finance and also
participated in the budget process, thus determining, at least in part, Plaintiffs’
salaries. Id. ¶¶ 54, 56, n.16. Plaintiffs similarly allege that Bernthal “supervised
(including methods of payment); and acted in PrimeSource’s interest with respect to
Id. ¶¶ 55–56.
Bernthal’s LinkedIn profile describes her
responsibilities in this position, stating that she directed “all financial activities,”
secured “cost-effective financing for daily operations,” managed a “135-vehicle fleet,
payroll, accounts payable and purchasing functions,” and advised the company
owner and president as part of the “executive management team.” [59-14] at 2–3.
Both Richey and Bernthal worked for PrimeSource until it ceased operating
in or around December 2016.  ¶¶ 58, 76. Plaintiffs’ claims against them are
limited to the period before December 2016. Id. n.17.
Plaintiffs and Defendants both ask this Court to consider the deposition of David Fleming, [52-2],
which Plaintiffs cite in a footnote of the second amended complaint, but did not attach to it. See 
n.15. Instead, Plaintiffs attached Fleming’s deposition to an earlier memorandum of law seeking
conditional certification of their putative collective action. See [52-2]. Although courts generally
consider only the complaint and any attached documents on a motion to dismiss, see Williamson v.
Curran, 714 F.3d 432, 436 (7th Cir. 2013), this Court finds that it may judicially notice the
deposition as an item “appearing in the record of the case” whose contents are “not subject to
reasonable dispute,” see Gen. Elec. Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1081 (7th
Cir. 1997), without converting the present motions into motions for summary judgment, id.
Plaintiffs allege that PrimeSource willfully violated the FLSA because it
underwent Department of Labor (DOL) investigations in both 2003 and 2016 for
FLSA violations. Id. ¶¶ 126, 128; [59-31]. The 2003 investigation did not address
the exemption status of Clinical or Patient Assistants.  ¶ 127. Despite those
investigations, and a lawsuit filed in May 2016 (discussed below), Plaintiffs allege
that PrimeSource and its successors continued their unlawful pay practices through
the end of 2016. Id. ¶¶ 84, 133. PrimeSource’s attorneys during the relevant period
have testified that they neither performed nor were asked to perform any research
on the FLSA, and gave no advice regarding FLSA compliance. Id. ¶¶ 132.
Because PrimeSource ceased operating in or around December 2016, id. ¶ 76,
the remainder of Plaintiffs’ allegations seek to impose liability on PrimeSource’s
alleged successors or joint employers.
The Asset Sale
In May 2016, a group of former Clinical and Patient Assistants employed by
PrimeSource’s Ohio subsidiary sued PrimeSource for the same FLSA violations
stated here: namely, that PrimeSource misclassified them; failed to pay them for all
hours worked; and failed to pay them overtime. See id. ¶ 84; see also Wilson v.
PrimeSource Health Care of Ohio, Inc., No. 16-cv-1298, 2017 WL 2869341 (N.D.
Ohio July 5, 2017).
Plaintiffs allege that in July 2016, Defendant Advantage Capital Holdings
(Advantage) organized and incorporated Defendant PrimeHealth Group LLC
(PrimeHealth) “for the purposes of taking over and substantially continuing”
PrimeSource’s operations, which would officially wind down that fall. See  ¶¶
76, 85, 87.
Advantage is the parent company or owner of PrimeHealth, whose
subsidiary entities include PrimeHealth of Illinois, PrimeHealth of Indiana,
PrimeHealth of Ohio, PrimeHealth of Michigan, and PrimeHealth of Kentucky. Id.
¶¶ 35, 36. Plaintiffs claim that Advantage employees—including Defendants Elliot
and King—make all of PrimeHealth’s management decisions, including hiring and
firing, managing daily operations, and setting policies and procedures. Id. ¶ 38. In
support, Plaintiffs allege that none of the PrimeHealth companies has its own CEO
or president, and they all share common policies and guidelines created and
promulgated by Advantage. Id. ¶¶ 42–43. Additionally, Elliott is a risk control
officer for Advantage but also “holds herself out as the Vice President of
PrimeHealth,” though PrimeHealth does not pay her. Id. ¶¶ 60–61. King serves as
president and CEO of both Advantage and PrimeHealth.
Id. ¶ 62. Advantage
employees also negotiated the transfer of leases and contracts from PrimeSource to
PrimeHealth in the lead-up to PrimeHealth’s purchase of assets from PrimeSource
in September 2016. See id. ¶¶ 88–93; [59-18].
That purchase encompassed many of PrimeSource’s assets, set out in an
Asset Purchase Agreement (APA).
See  ¶¶ 86–87; [59-17].
(including all its affiliates except PrimeSource
Healthcare of Ohio), and Fleming (the president, owner, and CEO of PrimeSource)
entered the APA in September, with a closing date in October 2016. See  ¶¶ 48,
The APA provided for PrimeHealth’s acquisition of PrimeSource’s
leased real and personal property, including its corporate headquarters in Buffalo
Grove, Illinois, and its intellectual property, including its trademarks, brand names,
logos, internet domain names, web addresses, and social media accounts.  ¶¶
24, 94–98; [59-17].
The APA also provided that the parties would devise a
Management Oversight Agreement (MOA) to govern the transition period from the
APA’s closing date in October 2016 to December 2016, when PrimeSource shuttered
 ¶¶ 109, 123.
Plaintiffs allege that under the MOA,
PrimeHealth, Advantage, and PrimeSource jointly employed Plaintiffs. See id. ¶¶
Plaintiffs allege that when PrimeHealth executed the APA, they and/or
Advantage knew of the Ohio FLSA suit, as well as PrimeSource’s “identical illegal
pay practices as to all Clinical Assistants and Patient Assistants.” See id. ¶ 102. In
support, they point out that the APA references the Ohio litigation—even though
the purchase did not include PrimeSource’s Ohio subsidiary—and notes that the
litigation “may affect” other entities. Id. ¶ 103; [59-17] at 5.
During the October to December 2016 transition period, PrimeHealth notified
most of the care facilities previously serviced by PrimeSource of the asset purchase,
and stated that PrimeHealth would “continue to provide” the facilities with the
same services, using “physicians and clinicians” that the facilities were “familiar
with.” Id. ¶ 100. These transition letters also noted that the facilities’ “contacts”
and “Customer Care line” had not changed.
website (www.seniorwell.com) retained the same format, language, and stock art as
PrimeSource’s website through approximately February 2017, and displayed a
photograph of PrimeHealth’s offices—in PrimeSource’s former premises, with
PrimeSource’s name still on the building.  ¶ 101.
In October 2016, PrimeSource sent a Worker Adjustment and Retraining
(WARN) notice to the employees at its Indiana, Ohio, and Michigan subsidiaries,
informing them that they would be laid off on or by December 31, 2016, when
Id. ¶ 104.
Soon after, PrimeHealth sent unsolicited offer
letters to “a majority of PrimeSource’s employees,” and ultimately rehired “a
substantial number” of PrimeSource employees. Id. ¶¶ 105, 108, 110–12. Elliot
signed PrimeHealth’s offer letters. Id. ¶ 106.
By the end of 2016, PrimeSource ceased its operations.
Id. ¶ 76.
PrimeHealth continued to operate, employing many of PrimeSource’s former
employees. Id. ¶¶ 108, 110–12. Starting January 2, 2017, PrimeHealth stopped
paying its Clinical and Patient Assistants a salary, and began paying them hourly.
Id. ¶ 119. In February 2017, Plaintiffs filed this suit, containing a single claim for
FLSA violations. . They amended their complaint in March and July. [9, 59].
But the action in this case did not stop there, as discussed next.
The DOL Settlement
At some point in 2016, DOL began investigating PrimeSource’s wage and
hour practices, resulting in a settlement in May 2017. Id. ¶¶ 113, 114. DOL has
authority to supervise settlements for unpaid wages or overtime, and oversee the
ensuing payments to employees from whom employers improperly withheld wages.
See 29 U.S.C. § 216(c). Under the FLSA, “the agreement of any employee to accept
such payment shall upon payment in full constitute a waiver by such employee” to
sue in his or her own right. Id.
Following the DOL settlement, PrimeSource began “issuing checks to
Plaintiffs and those similarly-situated” along with a letter describing the check as
containing “back pay,” and the DOL’s WH-58 form, which primarily functions as a
receipt for FLSA settlement checks.  ¶ 115; [46-3] at 2. PrimeSource’s letter
instructed recipients to sign the enclosed form and return it to the Buffalo Grove
office.  ¶ 117. The letter did not mention the pending collective action before
this Court, or the fact that signing the enclosed form would waive the employee’s
individual right to sue. See id.; see also [46-3] at 1. 3 The WH-58 form, however,
contains a “notice to employee,” stating:
Your acceptance of this payment of wages and/or other compensation
due under the Fair Labor Standards Act (FLSA) or Family Medical
Leave Act (FMLA), based on the findings of [DOL’s Wage and Hour
Division] means that you have given up the right you have to bring
suit on your own behalf for the payment of such unpaid minimum
wages or unpaid overtime compensation for the period of time
indicated above [and other damages].
[46-3] at 2. The “period of time” indicated on the WH-58 forms sent to PrimeSource
employees covers November 15, 2014 to November 12, 2016. Id.
This opinion addresses two motions: (1) a motion to dismiss pursuant to
Federal Rule of Civil Procedure 12(b)(6), brought by Defendants PrimeHealth,
This Court takes judicial notice of the copy of PrimeSource’s letter and the WH-58 form submitted
with Plaintiffs’ earlier motion for a temporary restraining order. See [46-3]. This Court again finds
this previously submitted exhibit to be an item “appearing in the record of the case” whose contents
are “not subject to reasonable dispute,” see Gen. Elec. Capital Corp., 128 F.3d at 1081; see also ABN
AMRO, Inc. v. Capital Int’l Ltd., No. 04-c-3123, 2007 WL 845046, at *8 (N.D. Ill. Mar. 16, 2007),
since Defendants did not previously and do not now contest the documents’ accuracy, see generally
[48, 76, 89]. Indeed, Defendants proffer copies of the WH-58 as exhibits themselves, as discussed
below. See [77-1, 77-2].
Advantage, Richey, Bernthal, Elliott, and King, ; and (2) a motion to dismiss
certain Plaintiffs under Rule 12(b)(1), brought by the same Defendants together
with PrimeSource, .
To survive a motion to dismiss under Rule 12(b)(6), a complaint must provide
a “short and plain statement of the claim” showing that the pleader merits relief,
Fed. R. Civ. P. 8(a)(2), so the defendant has “fair notice” of the claim “and the
grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). A complaint must also contain
“sufficient factual matter” to state a facially plausible claim to relief. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570).
A facially plausible claim “allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678
(citing Twombly, 550 U.S. at 556). This plausibility standard “asks for more than a
sheer possibility that a defendant has acted unlawfully.” Williamson, 714 F.3d at
436. Thus, “threadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.”
Limestone Dev. Corp. v. Vill. of
Lemont, 520 F.3d 797, 803 (7th Cir. 2008).
In evaluating a complaint, this Court accepts all well-pleaded allegations as
true and draws all reasonable inferences in the plaintiff’s favor. Iqbal, 556 U.S. at
678. This Court does not, however, accept a complaint’s legal conclusions as true.
Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009). On a motion to dismiss, this
Court may consider the complaint itself, documents attached to the complaint,
documents central to the complaint and to which the complaint refers, and
information properly subject to judicial notice. Williamson, 714 F.3d at 436.
A motion under Rule 12(b)(1) seeks to dismiss a case for lack of subject
matter jurisdiction. Courts evaluating such motions still accept all the allegations
in the complaint, but can also consider “whatever evidence has been submitted on
the issue” to determine whether subject matter jurisdiction exists.
Michel, 66 F.3d 894, 897 (7th Cir. 1995); see also Maximum Indep. Brokerage, LLC
v. Smith, 218 F. Supp. 3d 630, 635 (N.D. Ill. 2016).
Plaintiffs’ claim centers on PrimeSource’s allegedly improper pay practices
before it closed at the end of 2016. Plaintiffs seek to impose liability for those
practices on additional individuals and entities, including: (1) PrimeHealth, as
PrimeSource’s successor and as a joint employer during the 2016 transition period;
(2) Advantage, on the same grounds, and as PrimeHealth’s alleged alter ego; and (3)
various employees of PrimeSource, PrimeHealth, and Advantage as joint employers
with PrimeSource. See  at 4, 5, 8, 9. These Defendants moved to dismiss the
claim against them, , and this Court addresses each moving defendant in turn.
Finally, this Court also addresses whether it must dismiss certain plaintiffs from
this action for having waived their right to sue under the FLSA.
Successor liability, a longstanding doctrine of federal common law, provides
“the default rule in suits to enforce federal labor or employment laws,” including the
FLSA. Teed v. Thomas & Betts Power Sols., LLC, 711 F.3d 763, 769 (7th Cir. 2013);
see also Upholsterers’ Int’l Union Pension Fund v. Artistic Furniture of Pontiac, 920
F.2d 1323, 1326–27 (7th Cir. 1990). A plaintiff asserting successor liability must
show that: (1) the successor had notice of the claim before the acquisition; and (2)
the business’ operation before and after the sale exhibited substantial continuity.
See Tsareff v. ManWeb Servs., Inc., 794 F.3d 841, 845 (7th Cir. 2015). Successor
liability is intended to “protect federal rights or effectuate federal policies,” and, as
an equitable doctrine, must be applied with careful “emphasis on the facts of each
case.” Chi. Truck Drivers, Helpers & Warehouse Workers Union (Indep.) Pension
Fund v. Tasemkin, Inc., 59 F.3d 48, 49 (7th Cir. 1995); see also Tsareff, 794 F.3d at
Defendants contend that Plaintiffs fail to allege that PrimeHealth had
sufficient notice of PrimeSource’s FLSA liability or that PrimeHealth substantially
continued PrimeSource’s operations.  at 6–7.
A party may satisfy the notice prong of successor liability “not only by
pointing to the facts that conclusively demonstrate actual knowledge, but also by
presenting evidence that allows the fact finder to imply knowledge from the
circumstances.” Artistic Furniture, 920 F.2d at 1329. For example, the fact that
management staff in the predecessor company continued in those positions under
the successor supports an inference of sufficient notice. See United States ex rel.
Geschrey v. Generations Healthcare, LLC, 922 F. Supp. 2d 695, 709 (N.D. Ill. 2012).
Notice of the violations forming the basis of a claim, rather than the precise legal
claim at issue, may also suffice. See id. (allegations that successor company’s officer
knew of misconduct at predecessor company supported finding notice on a motion to
Here, the parties agree that before PrimeHealth purchased PrimeSource’s
assets, PrimeHealth knew of the pending FLSA suit against PrimeSource’s Ohio
subsidiary, which the APA expressly referenced. See id. at 6;  ¶ 103. But since
the asset purchase did not include PrimeSource of Ohio, and the suit against
PrimeSource in Ohio included no allegations as to PrimeSource’s other subsidiaries,
Defendants argue that PrimeHealth lacked notice of the present claims against
different PrimeSource entities.  at 6.
Generally, this Court does not notice the court documents in other
proceedings for the truth of the factual matters contained within the documents,
because judicial notice usually remains limited to “recognizing the judicial act or
litigation filing.” ABN AMRO, Inc. v. Capital Int’l Ltd., No. 04-c-3123, 2007 WL
845046, at *8 (N.D. Ill. Mar. 16, 2007). This Court does, however, notice that the
original complaint in the Ohio litigation named PrimeSource Health Care
Systems—a defendant in this action and the parent of PrimeSource’s state-level
subsidiaries—and Fleming—PrimeSource’s owner and CEO—as defendants.
id.; see also Gen. Elec. Capital Corp., 182 F.3d at 1081 n.6;  ¶¶ 27–29, 48;
Complaint at 1, Wilson, No. 16-cv-1298 (May 27, 2016).
Plaintiffs also allege that at the time of the APA’s execution, PrimeHealth
and/or Advantage knew of PrimeSource’s “identical illegal pay practices” across its
corporate structure.  ¶ 102. The APA itself notes that the Ohio litigation “may
affect” other PrimeSource entities. [59-17] at 5. Finally, various management-level
PrimeSource employees (including Richey and Bernthal) continued in management
positions at PrimeHealth, a relevant factor in assessing notice. See  ¶ 110;
Geschrey, 922 F. Supp. 2d at 709.
Overall, Plaintiffs plead sufficient facts to permit the reasonable inference
that PrimeHealth knew of PrimeSource’s alleged FLSA violations, and knew that
liability for those violations extended beyond PrimeSource of Ohio. See Iqbal, 556
U.S. at 678; Artistic Furniture, 920 F.2d at 1329. That suffices to show notice at
this stage of the proceedings. See Geschrey, 922 F. Supp. 2d at 709.
Plaintiffs may demonstrate continuity of operations by showing that the
alleged successor used the predecessor’s workforce, equipment, and premises, and
retained management-level employees. See Artistic Furniture, 920 F.2d at 1329.
Continuing to provide the same services as the predecessor is another relevant
factor. See Chi. Truck Drivers, 59 F.3d at 49. The continuity determination must
always be tailored to the facts of the case, Tsareff, 794 F.3d at 845, and where
plaintiffs seek only monetary relief, they may make a lesser showing of continuity,
see Musikiwamba v. ESSI, Inc., 760 F.2d 740, 751–52 (7th Cir. 1985).
Here, Plaintiffs clearly show sufficient continuity of operations between
PrimeSource and PrimeHealth. In addition to retaining numerous employees in
management and other positions,  ¶ 110, PrimeHealth took over PrimeSource’s
headquarters, equipment, clients, services, and all of its affiliates save PrimeSource
of Ohio, id. ¶¶ 24, 95–101; [59-17] at 1–2. Given the record here, the allegations
suffice to survive a motion to dismiss. See Artistic Furniture, 920 F.2d at 1329;
Geschrey, 922 F. Supp. 2d at 710.
Plaintiffs also sue PrimeHealth as a joint employer with PrimeSource during
the 2016 transition.
See  ¶¶ 123–25.
The FLSA’s expansive definition of
“employer” contemplates that two or more entities may jointly employ an
individual. See Falk v. Brennan, 414 U.S. 190, 195 (1973); Karr v. Strong Detective
Agency, Inc., 787 F.2d 1205, 1207 (7th Cir. 1986); see also 29 C.F.R. §§ 791.2(a), (b).
Generally, “for a joint-employer relationship to exist, each alleged employer must
exercise control over the working conditions of the employee, although the ultimate
determination” depends upon the facts of the case. Moldenhauer v. Tazewell-Pekin
Consol. Commc’ns. Ctr., 536 F.3d 640, 644 (7th Cir. 2008) (construing jointemployer status under the FMLA and noting that it “mirrors” the corresponding
FLSA regulation). Courts consider various factors when assessing a claim of jointemployer status, though the “economic reality of the situation controls whether the
FLSA applies.” Anaya v. Directv, LLC, No. 14-cv-5703, 2016 WL 1383195, at *3
(N.D. Ill. Apr. 7, 2016) (citing Moldenhauer, 536 F.3d at 644; Goldberg v. Whitaker
House Co-op., Inc., 366 U.S. 28, 33 (1961)).
Here, however, this Court cannot proceed with that traditional analysis
because Plaintiffs confine their joint-employer claim against PrimeHealth to the
October to December 2016 transition period.
See  ¶¶ 123–25.
Plaintiffs assert that, pursuant to a provision in the APA, PrimeHealth “entered
PrimeSource, though the amended complaint does not specify. Id. ¶ 123. They then
state that between October and December 2016, PrimeHealth and/or Advantage
jointly employed Plaintiffs together with PrimeSource. Id. ¶ 124. Absent more
factual pleadings describing the alleged management agreement, such a conclusory
statement that merely echoes the elements of a joint-employer claim cannot
withstand a motion to dismiss. See Limestone Dev. Corp., 520 F.3d at 803.
In their brief, Defendants quote what they purport to be the “Management
Oversight Agreement” (MOA), setting forth various terms governing management
services during the 2016 transition. See  at 11–12;  ¶ 123. But neither
party filed the MOA itself with this Court. Neither party provides any basis upon
which a court ruling on a motion to dismiss may consider a document that is neither
attached to the complaint, central to the complaint, nor subject to judicial notice.
See Williamson, 714 F.3d at 436. Obviously, such unsubstantiated outside material
cannot be considered on a motion to dismiss.
Without the MOA, Plaintiffs’
allegations fail to support their joint-employer claim as to either PrimeHealth or
Advantage. As such, this Court dismisses those claims without prejudice.
Advantage Capital Holdings
Plaintiffs seek to hold Advantage liable for PrimeSource’s FLSA violations
under various theories. First, as a joint-employer for the 2016 transition period,
 ¶¶ 123–25, which this Court already addressed. Next, as another successor to
PrimeSource, either as the parent company or alter ego of PrimeHealth. See id. ¶¶
36–47;  at 4–5. This Court addresses the remaining theories in turn.
This Court has already discussed the elements of federal successor liability.
For Advantage to be subject to successor liability as PrimeHealth’s parent
corporation, Plaintiffs must show that Advantage “exercises significant authority
over the subsidiary’s employment practices.” Teed, 711 F.3d at 764; see also Barker
v. Quick Test, Inc., No. 13-c-4369, 2016 WL 1019708, at *18 (N.D. Ill. Mar. 15,
2016). This inquiry shares some commonalities with the joint-employer inquiry, see
Teed, 711 F.3d at 764 (citing with approval Third and Eleventh Circuit cases
discussing joint employer status), such as whether the parent corporation had
hiring and firing authority, developed internal rules, processed the subsidiary’s
payroll, or exercised other related powers, see Barker, 2016 WL 1019708, at *18
(citing Teed and discussing these factors); see also Moldenhauer, 536 F.3d at 644
(discussing joint-employer factors, including whether the company controlled pay
and benefits, supervised daily activities, or determined salaries).
Here, Plaintiffs allege that Advantage controls all of PrimeHealth’s
management decisions, including hiring and firing, managing daily operations, and
setting internal policies.  ¶ 38. Specifically, Plaintiffs claim that PrimeHealth
lacks its own policies, guidelines, CEO, and President. See id. ¶¶ 42–43. Instead,
its CEO and president is King, the CEO and president of Advantage, and its Vice
President is Elliott, another Advantage officer. Id. ¶¶ 60–62. Indeed, Elliott signed
the offer letters that PrimeHealth sent out to the majority of PrimeSource’s
employees during the 2016 transition period. Id. ¶¶ 105–06.
Such allegations permit this Court to draw the reasonable inference that
Advantage exercised “significant authority” over PrimeHealth’s employment
practices. See Iqbal, 556 U.S. at 678; Teed, 711 F.3d at 764. Plaintiffs’ claims
indicate that Advantage sets PrimeHealth’s internal policies, significantly controls
its management, and holds hiring authority. Cf. Barker, 2016 WL 1019708, at *18
(ruling against plaintiffs where the record showed that the parent lacked hiring and
firing authority and did not set the subsidiary’s internal rules or engage in “related
administrative actions”). Plaintiffs’ claim may therefore proceed against Advantage
on a successor theory of liability.
Illinois law 4 does not favor alter-ego claims, and a party seeking to pierce the
corporate veil “bears the burden of showing that the corporation is in fact a dummy
or sham for another person or entity.” Jackson Ave. Subs, Inc. v. 407 Dearborn,
LLC, No. 16-cv-4697, 2016 WL 4639152, at *6 (N.D. Ill. Sept. 6, 2016) (internal
quotation marks omitted). Accordingly, Plaintiffs must show: (1) “such unity of
interest and ownership that the separate personalities of the corporation” and the
individual or entity behind it no longer exist; and (2) circumstances indicating that
“adherence to the fiction of separate corporate existence would sanction a fraud or
The parties assume that Illinois law governs Plaintiffs’ alter ego claim. See  at 4;  at 6.
This Court agrees, given the undisputed allegation that PrimeHealth Group, LLC, is an “Illinois
limited liability company.”  ¶ 32. Illinois applies “the law of the state of incorporation for veil
piercing claims,” Banco Panamericano, 674 F.3d at 751, which may be levied against limited liability
companies and other corporate forms, see Wachovia Secs., LLC v. Neuhauser, 528 F. Supp. 2d 834,
854 (N.D. Ill. 2007) (applying Illinois veil-piercing analysis to a limited liability company); see also
Benzakry v. Patel, 77 N.E.3d 1116, 1132 (Ill. App. Ct. 2017) (same).
promote injustice.” Wachovia Secs., LLC v. Banco Panamericano, Inc., 674 F.3d
743, 751–52 (7th Cir. 2012).
To assess the “unity of interest and ownership” element, courts consider
factors including: “(1) inadequate capitalization; (2) failure to issue stock; (3) failure
to observe corporate formalities; (4) nonpayment of dividends; (5) insolvency of the
debtor corporation; (6) non-functioning of the other officers or directors; (7) absence
of corporate records; (8) commingling of funds; (9) diversion of assets from the
corporation by or to a shareholder; (10) failure to maintain arm’s length
relationships among related entities; and (11) whether the corporation is a mere
façade for the operation of the dominant shareholders.” Wachovia Secs., LLC v.
Neuhauser, 528 F. Supp. 2d 834, 854–55 (N.D. Ill. 2007) (internal quotation marks
omitted); see also Fontana v. TLD Builders, Inc., 840 N.E.2d 767, 778 (Ill. App. Ct.
2005). No single factor is dispositive. Neuhauser, 528 F. Supp. 2d at 855.
Here, Plaintiffs allege that Advantaged incorporated PrimeHealth “for the
purposes of taking over and substantially continuing” PrimeSource’s operations.
 ¶ 85. They also allege the overlap of PrimeHealth and Advantage officers, and
the control that Advantage maintains over PrimeHealth’s internal policies, hiring
decisions, and day-to-day operations, discussed above. See id. ¶¶ 38, 42–43, 60–62,
105–106. Plaintiffs also state in conclusory terms that PrimeHealth is Advantage’s
alter ego; that Advantage “exercises complete domination” over PrimeHealth; and
that PrimeHealth is undercapitalized, “does not follow corporate formalities, does
not maintain its own corporate records, and returns any and all profits” to
Advantage. Id. ¶¶ 39–41.
These last allegations simply recite the elements of an alter ego claim—
supported “by mere conclusory statements”—and cannot sustain Plaintiffs’ claim.
Limestone Dev. Corp., 520 F.3d at 803. Plaintiffs’ more specific allegations tend to
show a failure to observe corporate formalities or to preserve an “arm’s length
relationship” between Advantage and PrimeHealth. See Fontana, 840 N.E.2d at
778. Though relevant, these allegations standing alone fall short of the “substantial
showing” required to demonstrate that PrimeHealth is “really a dummy or sham”
for Advantage. Banco Panamericano, 674 F.3d at 752. Although Plaintiffs show
that Advantage undoubtedly exercised significant control over PrimeHealth,
Plaintiffs fail to plead sufficient facts allowing the inference that PrimeHealth was
a mere “sham,” lacking a meaningfully independent existence. See id.; cf. Gajda v.
Steel Sols. Firm, Inc., 39 N.E.3d 263, 272 (Ill. App. Ct. 2015) (plaintiffs sufficiently
pled alter ego claim by alleging that the two companies operated out of the same
location; commingled funds and equipment; issued improper loans to each other;
and that employees of the sham company were paid with the true owner’s funds).
Because Plaintiffs must satisfy both elements of an alter ego claim, this
Court need not proceed to the injustice prong. See Banco Panamericano, Inc., 674
F.3d at 751–52. This Court dismisses Plaintiffs’ alter ego claim against Advantage
Richie and Bernthal
Plaintiffs’ claims against Richie and Bernthal apply only to their employment
as PrimeSource officers for the period within the statute of limitations, from
approximately February 2014 to December 2016. See  at 9 n.17. Plaintiffs
allege that during this time Richie and Bernthal were their employers within the
meaning of the FLSA. Id. ¶¶ 53, 57. Defendants argue that Plaintiffs fail to show
that Richie and Bernthal had the necessary authority to be considered employers
under the Act. See  at 7.
The FLSA defines an employer as “any person acting directly or indirectly in
the interest of an employer in relation to an employee.” 29 U.S.C. § 203(d). As
noted above, the FLSA contemplates that individuals may report to multiple
employers. See Falk, 414 U.S. at 195; Karr, 787 F.2d at 1207. Courts “assess the
economic reality of the working relationship to determine whether an individual is
an employer under the FLSA.” Deschepper v. Midwest Wine & Spirits, Inc., 84 F.
Supp. 3d 767, 778 (N.D. Ill. 2015) (internal quotation marks omitted). Relevant
factors include whether the alleged employer: “(1) had the power to hire and fire the
employees; (2) supervised and controlled employee work schedules or conditions of
employment; (3) determined the rate and method of payment; and (4) maintained
employment records.” Id. (internal quotation marks omitted).
Here, Plaintiffs plausibly allege that Richey and Bernthal played a
significant role in determining Plaintiffs’ pay and overseeing their working
conditions. As Vice Presidents of Human Resources and Finance, respectively, both
Richey and Bernthal participated in the budgetary process that set Plaintiffs’
salaries.  ¶ 48; [52-2] at 8. Human Resources played some role in determining
whether Plaintiffs were exempt from FLSA requirements, see [52-2] at 8, and
Bernthal described her responsibilities as Vice President of Finance as including
management of payroll and control of certain daily operations, including financing
and transportation, see [59-14] at 2–3. These allegations more than satisfy Rule 8’s
requirement that Plaintiffs provide fair notice of a plausible FLSA claim.
Deschepper, 84 F. Supp. 3d at 778; see also Nehmelman v. Penn. Nat’l Gaming, Inc.,
790 F. Supp. 2d 787, 798–99 (N.D. Ill. 2011) (plaintiffs sufficiently pled employer
status by alleging that a company controlled their “rate and method of payment and
certain terms and conditions of their employment,” while providing “specific
examples of the allegedly unlawful pay practices”).
Defendants point to other cases from this district where courts found
individuals to be employers based upon their ownership interest in the company,
day-to-day control of the company’s operations, and their involvement in
supervising and paying employees. See, e.g., Cardenas v. Grozdic, No. 12-c-292,
2012 WL 2359399, at *4 (N.D. Ill. June 20, 2012). Such circumstances undoubtedly
show employer status, but nothing in these cases suggests that they are necessary
conditions for such a finding. See id.; see also Morgan v. SpeakEasy, LLC, 625 F.
Supp. 2d 632, 646 (N.D. Ill. 2007).
Indeed, these cases acknowledge the
“expansiveness” of the FLSA’s definition of “employer,” and that individuals with
supervisory authority may be liable as employers even if they are only partly
responsible for the alleged violation. Cardenas, 2012 WL 2359399, at *4 (citing
Riordan v. Kempiners, 831 F.2d 690, 694 (7th Cir. 1987)).
Moreover, the cases that Defendants cite also follow the accepted rule that
individuals may be liable as employers where they had “sufficient control” over the
“particular violations” at issue. Morgan, 625 F. Supp. 2d at 646; see also Schneider
v. Cornerstone Pints, Inc., 148 F. Supp. 3d 690, 698 (N.D. Ill. 2015) (“In sum, the
test is to look at all facts surrounding the defendant’s supervision of the employee
and determine whether the defendant exercised control and authority over the
employee in a manner that caused the FLSA violation (at least in part).”). Here,
Plaintiffs specifically allege Richey and Bernthal’s involvement in the payment
decisions at issue here—namely, whether Plaintiffs should have been classified as
exempt and denied payment for hours worked and overtime.  ¶¶ 48, 54–56;  at 8; [59-14] at 2–3. Plaintiffs thus sufficiently allege that Richey and Bernthal
exercised control over the challenged pay practices. See Schneider, 148 F. Supp. 3d
at 698; Nehmelman, 790 F. Supp. 2d at 797 (noting the minimal pleading
requirements for “simple” claims of FLSA violations).
Finally, Defendants contend that Plaintiffs plead themselves out of a claim
against Richey and Bernthal by alleging that they answered to Elliott and King, or
by alleging that various defendants employed Plaintiffs within the same period. See
 at 12–13. Not so. As discussed, the FLSA contemplates two or more persons or
entities acting as an individual’s employer, see Karr, 787 F.2d at 1207, and an
individual need only be partially responsible for the FLSA violation to have
personal liability for it, see Schneider, 148 F. Supp. 3d at 698. In any event, Rule 8
permits the pleading of such purported inconsistencies. See Peterson v. McGladrey
& Pullen, LLP, 676 F.3d 594, 597 (7th Cir. 2012). This Court denies Defendants’
motion to dismiss as to Richey and Bernthal.
Elliott and King
Plaintiffs allege that Elliott and King were also their employers within the
meaning of the FLSA.  ¶¶ 65–67. Their claims against Elliott and King apply
only to the 2016 transition period. Id. at 10 n.18. Plaintiffs allege that in that
period Elliott and King “directed the day to day operations of the PrimeSource
Defendants,” “controlled the operations and labor and compensation policies of
PrimeSource,” “supervised and/or controlled” Plaintiffs’ employment,” and “acted
directly or indirectly in the interest of the PrimeSource Defendants in relation to
their employees.” Id. ¶¶ 65–67.
These conclusory allegations, however, merely recite the elements of FLSA
employer status, and thus fail to support Plaintiffs’ claim. Limestone Dev. Corp.,
520 F.3d at 803. The present pleadings offer no underlying factual detail, such as
information about the management structure of PrimeSource and PrimeHealth, or
any other important facts, during the transition period.
Thus, Plaintiffs fail to
allege sufficient detail to raise their claims against Elliott and King from the
possible to the plausible. See Iqbal, 556 U.S. at 678; Williamson, 714 F.3d at 436.
This Court dismisses Plaintiffs’ claims against Elliott and King without prejudice.
Waiver of Right to Sue
Defendants seek to dismiss multiple Plaintiffs from this suit under Rule
12(b)(1) on the grounds that they waived their individual right to sue under the
FLSA by accepting the DOL settlement with PrimeSource. See  at 1.
Generally, waiver constitutes an affirmative defense that Plaintiffs need not
“anticipate and attempt to plead around” at this stage. See Xechem, Inc. v. BristolMyers Squibb Co., 372 F.3d 899, 901 (7th Cir. 2004). Defendants, however, bring
their motion under Rule 12(b)(1)—the avenue for motions contesting subject matter
jurisdiction—on the grounds that Plaintiffs’ alleged waiver moots their claims. See
 at 4; see also Victoria v. Alex Car, Inc., No. 11-c-9204, 2012 WL 1068759, at *2–
4, *5 (N.D. Ill. Mar. 29, 2012) (acknowledging that waiver is generally an
affirmative defense but still assessing defendants’ waiver argument under Rule
12(b)(1) “because the DOL waivers allegedly mooted Plaintiffs’ claims”).
distinction matters because, on a properly raised Rule 12(b)(1) motion, this Court
may consider other evidence beyond the pleadings. See Ezekiel, 66 F.3d at 897.
Even considering it under Rule 12(b)(1), however, Defendants’ motion fails.
Here, many Plaintiffs received settlement checks from PrimeSource following its
settlement with DOL in May 2017. See  at 4;  ¶¶ 113–15, 117. PrimeSource
sent the checks to Plaintiffs together with DOL’s WH-58 form, which contained a
notice that “acceptance of this payment” meant that the recipient gave up the right
“to bring suit on your own behalf for the payment of such unpaid minimum wages or
unpaid overtime compensation for the period of time” covered by the settlement.
 ¶ 115; [46-3] at 2. The WH-58 notice reflects the FLSA provision authorizing
DOL to enter into such settlements and stating that “the agreement of any
employee to accept such payment shall upon payment in full constitute a waiver by
such employee” to sue in their own right. See 29 U.S.C. § 216(c). Defendants offer
evidence that one group of plaintiffs signed the WH-58 form and cashed the
settlement checks, [77-1], while a second group cashed the checks without signing
the form, [77-2], and argue that these actions constitute waiver under § 216(c), 
This Court denies Defendants’ motion to dismiss the plaintiffs in the second
group because the Seventh Circuit has made it clear that merely cashing a DOL
settlement check does not waive an individual’s right to sue under the FLSA. See
Walton v. United Consumers Club, Inc., 786 F.2d 303, 306 (7th Cir. 1986). Instead,
validly waiving the right to sue requires two “distinct” acts: “agreement” and
“payment in full.” Id. at 305–06. Thus, evidence of the payment alone does not
establish waiver: “There must also be a release.” Id. at 306; see also Jackson v. GoTane Servs. Inc., No. 99-c-5686, 2001 WL 826867, at *3 (N.D. Ill. July 18, 2001)
(citing Walton, 786 F.2d at 307; Sneed v. Sneed’s Shipbuilding, Inc., 545 F.2d 537,
540 (5th Cir. 1977)). Absent any showing that this group of plaintiffs executed a
release or otherwise agreed to waive their right of action, they may participate in
this action. See Walton, 786 F.2d at 307.
Based upon the record, this Court also denies Defendants’ motion to dismiss
the plaintiffs who signed the WH-58 because Plaintiffs raise material questions of
fact about that waiver’s validity. See  ¶¶ 115, 117; [46-3]. Courts that have
considered the waiver argument on a motion to dismiss follow the general rule that
such questions of fact may not be resolved at this stage. See Victoria, 2012 WL
1068759, at *4; Woods v. RHA/Tenn. Grp. Homes, Inc., 803 F. Supp. 2d 789, 801
(M.D. Tenn. 2011). Accordingly, Defendants’ citations to cases decided at summary
judgment have little relevance at this point in the proceedings. See, e.g., Carino v.
B&M Auto Collisions Ctr., No. 03-c-3394, 2004 WL 413299 (N.D. Ill. Jan. 30, 2004).
In Walton, the Seventh Circuit analogized FLSA § 216(c) waivers to private
settlements, emphasizing the need for an actual agreement to show “a release” of
the right to sue. See 786 F.2d at 306. Thus, this Court must determine whether
“the plaintiffs meant to settle” their FLSA claims. Id. at 306 (emphasis added). The
Ninth Circuit has held that “an employee does not waive” his or her right of action
pursuant to § 216(c) “unless he or she agrees to do so after being fully informed of
the consequences.” Dent v. Cox Commc’ns Las Vegas, Inc., 502 F.3d 1141, 1146 (9th
Following that analysis, district courts have concluded that an
“employee’s choice to waive his or her right to file private claims—that is, the
employee’s agreement to accept a settlement payment—must be informed and
meaningful.” Woods, 803 F. Supp. 2d at 800 (citing Dent, 502 F.3d at 1146; Walton,
786 F.2d at 306); see also Victoria, 2012 WL 1068759, at *4. As a result, “no waiver
exists when the employer affirmatively misstates material facts regarding the
waiver, withholds material facts, or unduly pressures employees to sign the form.”
Victoria, 2012 WL 1068759, at *4 (citing and adopting Woods, 803 F. Supp. 2d at
Here, Plaintiffs call into question whether PrimeSource withheld material
facts when it sent Plaintiffs’ settlement checks.
The letter from PrimeSource
accompanying the settlement check stated:
A check for back wages and a form explaining the payment are
enclosed. There are two copies of the form explaining payment.
Complete both copies of the form with your signature, the date, and
your address. Please return both copies in the enclosed, postage paid
This brief letter describes the check as one for “back wages” without
mentioning that it resulted from DOL settling claims for overtime and unpaid
hours. It does not mention the fact of a settlement at all, nor that signing the WH58 would waive the employee’s right to sue, nor that the employee could refuse the
check, nor that this collective action was already pending before this Court. These
are relevant factors in determining whether a purported waiver was “informed and
Woods, 803 F. Supp. 2d at 800–01; see also Victoria, 2012 WL
1068759, at *4. This Court agrees with Woods that an “employer should not be
allowed to short circuit” an employee’s right to choose to pursue a private action,
803 F. Supp. 2d at 801, particularly in light of the FLSA’s clear goal of discouraging
employees from signing away their right to a fair wage, see Walton, 786 F.2d at 306
(noting that the FLSA bans private settlements about pay disputes to prevent
parties from establishing “sub-minimum wages”).
The precise scope of such an exception to a §216(c) waiver remains uncertain,
but plaintiffs sufficiently call into question the validity of any alleged waivers to
survive Defendants’ motion to dismiss. See Victoria, 2012 WL 1068759, at *4.
Throughout their briefing on the present motions, Defendants throw in a
grab bag of additional, unrelated arguments contesting Plaintiffs’ inclusion of
specific plaintiffs, defendants, and pleadings.
This Court addresses those
remaining issues here.
First, Defendants argue (for the first time) in a reply brief that Plaintiffs’
claims can only include the two years prior to this suit, since Plaintiffs insufficiently
plead the willfulness required to extend the statute of limitations to three years.
See  at 8. Generally, arguments raised for the first time on reply are waived,
United States v. LaShay, 417 F.3d 715, 719 (7th Cir. 2005), but this Court permitted
Plaintiffs to file a sur-reply and now addresses the argument, see CHC Cobrasource,
Inc. v. Mangrove Cobrasource, Inc., No. 12-c-1832, 2012 WL 1952930, at *1 (N.D. Ill.
May 30, 2012) (collecting cases permitting consideration of new arguments where
court allowed a sur-reply).
Here, Plaintiffs allege that PrimeSource knew of the FLSA’s requirements,
having been the subject of a DOL investigation in 2003, and yet failed to take any
actions to comply; this permits the plausible inference that any subsequent FLSA
violations were willful. See  ¶¶ 113–21; Cunningham v. Gibson Elec. Co. Inc.,
43 F. Supp. 2d 965, 977 (N.D. Ill. 1999) (knowledge of FLSA requirements and
failure to comply can show willfulness); see also Guon v. John Q. Cook M.D. LLC,
No. 16-c-3840, 2016 WL 6524948, at *3 (N.D. Ill. Nov. 3, 2016) (permitting discovery
to determine willfulness based upon “relatively conclusory” allegations, since a
statute of limitations defense “need not be anticipated in the pleadings”).
Accordingly, at this stage, this Court declines to dismiss any part of Plaintiffs’ claim
on the grounds that the two-year FLSA statute of limitations applies.
Next, Defendants seek to dismiss Jennifer Walton as a plaintiff, on the
grounds that PrimeSource dismissed her beyond even the three-year statute of
limitations. See  at 9. Plaintiffs concede this point.  at 2 n.1. Based upon
the parties’ representations, this Court dismisses Walton as a plaintiff.
Defendants also seek to dismiss any claims relating to Ohio state law.  at
13. This Court notes that Plaintiffs appear to mistakenly invoke the Ohio state-law
definition of an “employer” in their amended complaint,  ¶ 46, but their claim
still alleges only FLSA violations, id. ¶¶ 236–44. This Court cannot rule on state
claims not pending before it. See Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 669
(2016) (explaining that Article III’s case or controversy requirement requires an
actual controversy “at all stages of review”) (internal quotation marks omitted).
Defendants next ask this Court to strike PrimeSource Health Care
Systems, Inc., on the grounds that Plaintiffs admit that “no such entity exists.” 
at 13. Defendants’ characterization, however, is not quite accurate. In their motion
to amend their first amended complaint, Plaintiffs noted that they mistakenly
included this defendant twice in the case caption; Plaintiffs therefore sought to
strike the duplicative mention of this entity. See  at 2–3. Absent some valid
reason why PrimeSource Health Care Systems may not be party to this action, this
Court denies the motion to strike this defendant.
Finally, Defendants invoke Federal Rule 11, seeking sanctions for Plaintiffs’
alleged misuse of Fleming’s testimony. See  at 9. Setting aside the questionable
nature of the request, this Court will not rule on it since Defendants have failed to
comply with all of the prerequisites of a Rule 11 motion, and have not otherwise
offered it “separately from any other motion.” Fed. R. Civ. P. 11(c)(2).
Leave to Replead
Rule 15(a)(2) instructs courts to freely give leave to amend “when justice so
This opinion constitutes the first time this Court has addressed the
sufficiency of Plaintiffs’ allegations, and absent any sound basis to deny Plaintiffs
the opportunity to amend their complaint, this Court follows the general rule of
dismissing the claims without prejudice. See Loubser v. Thacker, 440 F.3d 439, 443
(7th Cir. 2006). Accordingly, Plaintiffs may replead any dismissed claims, although
failure to correct the deficiencies outlined here may result in a future dismissal with
prejudice. See Arreola v. Godinez, 546 F.3d 788, 796 (7th Cir. 2008).
This Court denies Defendants’ motion to dismiss certain Plaintiffs.
This Court partially grants and partially denies Defendants’ motion to dismiss
Plaintiffs’ claims. . Specifically, this Court grants the motion to dismiss as to
Elliott and King; as to the joint-employer liability asserted against PrimeHealth
and Advantage; and as to the alter ego claim against Advantage.
otherwise denies the motion, and Plaintiffs’ claims against PrimeHealth and
Advantage may proceed to the extent that they depend upon successor liability.
Finally, Jennifer Walton is dismissed as a plaintiff.
Dated: February 12, 2018
John Robert Blakey
United States District Judge
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