Kibbons, Jr. v. Double Jack Properties, LLC et al
MEMORANDUM Opinion and Order signed by the Honorable Samuel Der-Yeghiayan on 11/14/2017: This matter is before the court on Defendants' motion to dismiss. For the reasons stated below, the motion to dismiss is denied. Mailed notice (ags, )
Case: 1:17-cv-03017 Document #: 19 Filed: 11/14/17 Page 1 of 6 PageID #:58
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
DOUBLE JACK PROPERTIES,
No. 17 C 3017
SAMUEL DER-YEGIIIAYAN, District Judge
This matter is before the court on Defendants' motion to dismiss. For the
reasons stated below, the motion to dismiss is denied.
Plaintiff William Kibbons, Jr. (Kibbons) allegedly began working for
Defendant Double Jack Properties, LLC (Double Jack) in
2008. Kibbons claims
that, although he was an employee of Double Jack, he was classified as an
independent contractor by Double Jack so that Double Jack could circumvent the
need to pay him overtime.
In 2011, Double Jack allegedly stopped paying Kibbons
an hourly rate and began paying him a flat $2,500 per month, regardless of hours
Case: 1:17-cv-03017 Document #: 19 Filed: 11/14/17 Page 2 of 6 PageID #:59
worked by him. Kibbons has brought the instant action against Double Jack, and
Defendant Carl Strumillo (Strumillo), who allegedly oversees the day-to-day
management of Double Jack. Kibbons includes in his complaint claims alleging a
failure to pay overtime in violation of the Fair Labor Standards Act (FLSA), 29
U.S.C. $ 201 et seq. (Count I), claims brought under the Illinois Minimum Wage
Law, 820 ILCS 105/1 et seq. (Count II), and claims brought under the Illinois Wage
Payment and Collection Act, 820 ILCS
et seq. (Count
move to dismiss all claims.
In ruling on a motion to dismiss brought pursuant Federal Rule of Civil
Procedure 12(b)(6) (Rule l2(b)(6)), the court must draw all reasonable inferences
that favor the plaintiff, construe the allegations of the complaint in the light most
favorable to the plaintiff and accept as true all well-pleaded facts and allegations in
the complaint. Appert v. Morgan Stanley Dean Ll/itter, Lnc.,673 F.3d 609, 622 (7th
Cir. 2012); Thompson v.
of Prof'l Regulation, 300 F.3d 750, 753 (7th Cit.
2OO2). A plaintiff is required to include allegations in the complaint that "plausibly
suggest that the plaintiff has a right to relief, raising that possibility above a
'speculative level"' and
E. E. O.
"if they do not, the plaintiff
C. v. Concentra Health Services, Inc., 496
pleads itself out of court."
.3d 773, 77 6 (7th Cir.
in part Bell Atlantic Corp. v. Twombly,127 S.Ct. 1955, 1965 (2007));
Case: 1:17-cv-03017 Document #: 19 Filed: 11/14/17 Page 3 of 6 PageID #:60
see also Morgan Stanley Dean lilitter,
lnc.,673 F.3d at 622 (stating that "[t]o
survive a motion to dismiss, the complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face," and that "[a]
claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct
alleged")(quoting Ashcroft v. Iqbal,556 U.S. 662 (2009))(internal quotations
Defendants argue that Kibbons has not alleged sufficient facts to state a valid
FLSA claim and that the remaining state law claims should be dismissed.
I. Employee Status
Defendants argue that Kibbons was not an employee of Defendants.
However, whether or not Kibbons was an employee is a legal conclusion that must
be determined based upon the evidence in this action. The Seventh Circuit has
stated that whether an individual is deemed an employee under FLSA "depends on
the totality of circumstances rather than on any technical label," and that 'ocourts
must examine the economic reality of the working relationship between the alleged
employee and the alleged employer to decide whether Congress intended the FLSA
to apply to that particular relationship." Berger v. Nat'l Collegiate Athletic Ass'n,
Case: 1:17-cv-03017 Document #: 19 Filed: 11/14/17 Page 4 of 6 PageID #:61
843 F.3d 285,290 (7th Cir. 2016)(internal quotations omitted)(quoting Vanskike v.
Peters, 974 F .2d 806, 807 (7th Cir. 1992)). Defendants are seeking to delve into
facts and evidence beyond the pleadings and their argument is thus premature.
Kibbons provides ample allegations suggesting that he might have qualified as an
employee. Kibbons provides details concerning his job responsibilities, the type of
supervision, and assignment of work, and Double Jack's pay practices. (Compl. Par.
16-24). Kibbons has provided sufficient allegations to plausibly suggest he may
have been an employee of Defendants. The court notes, however, that at the
summary judgment stage, Kibbons
need to point to sufficient evidence to
establish this point.
Double Jack Employer Status
Defendants argue that Kibbons has not shown that Double Jack was Kibbons'
employer. Defendants argue that Kibbons has not shown that Double Jack is an
enterprise that is engaged in commerce and has an annual gross revenue of $500,000
or greater, and has not shown that Double Jack is covered by the FLSA. Again, such
a matter is a legal conclusion that can be determined after a consideration of the
evidence. Kibbons alleges that Double Jack is an entity covered by FLSA and
Kibbons is not required to collect evidence and present such facts in an initial
pleading. If Defendants truly believe that they can show that Double Jack does not
as an employer under
FLSA, they can seek leave to immediately move for
Case: 1:17-cv-03017 Document #: 19 Filed: 11/14/17 Page 5 of 6 PageID #:62
summary judgment on that limited issue.
Strumillo Employer Status
Strumillo also argues that he could not be considered the employer under
FLSA. The FLSA defines
an employer to include "any person acting directly or
indirectly in the interest of an employer in relation to an employee," and can include
a "supervisor who uses his authority over the employees whom he supervises. . . ."
Luder v, Endicott,253 F.3d 1 020, 1022 (7th Cir. 2001)(quoting 29 U.S.C. $ 203(d)).
Kibbons presents allegations indicating that Strumillo had control over his work, job
pay. (Compl. Par.
12, 19,31-32). Kibbons has alleged
sufficient facts to plausibly suggest that Strumillo might be liable under FLSA.
Knowledse of Hours Worked
Defendants argue that there are no allegations that they had knowledge of the
hours worked by Kibbons. Kibbons clearly alleges he was working in excess of 40
hours per week without overtime pay. Kibbons further alleges that he has
maintained records as to his hours worked, and sent Defendants an accounting of his
hours worked. (Compl. Par.24,34). There are sufficient allegations to plausibly
suggest that Defendants could have been aware of the hours Kibbons worked. In
addition, the facts alleged suggests that Defendants should have been aware Kibbons
might have been owed overtime and ignored that possibility. If Kibbons was an
Case: 1:17-cv-03017 Document #: 19 Filed: 11/14/17 Page 6 of 6 PageID #:63
employee, as he alleges, Double Jack could not have simply paid him a flat monthly
salary without regard to his hours. Based on the above, the motion to dismiss is
Based on the foregoing analysis, Defendants' motion to dismiss is denied.
United States District Court Judge
Dated: November 14,2017
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