Plestsov et al v. GTS Transportation Corporation et al
MEMORANDUM Opinion and Order. Signed by the Honorable Manish S. Shah on 10/14/2020: The defendants' motion to dismiss, 16 , is granted. Any amended complaint must be filed by November 4, 2020, and the parties shall file a joint status repor t on November 12, 2020, with a proposal for a case schedule and a deadline for defendants to respond to the amended complaint. If no amended complaint is filed, the clerk will enter final judgment dismissing the case without prejudice for lack of jurisdiction. [For further detail see attached order.] Notices mailed. (psm, )
Case: 1:20-cv-01847 Document #: 21 Filed: 10/14/20 Page 1 of 9 PageID #:127
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
ALEXEI PLESTSOV, DENIS NAZAROV, and
No. 20 CV 1847
Judge Manish S. Shah
GTS TRANSPORTATION CORP. and
MEMORANDUM OPINION AND ORDER
Truck drivers Alexei Plestsov, Denis Nazarov, and Roman Kalabayda filed a
class action complaint against their former employer, GTS Transportation Company
and its owner Tomas Stirbys, for violations of the Illinois Wage Payment and
Collection Act. In the alternative, the plaintiffs seek relief under quasi-contract
theories. The defendants move to dismiss the complaint, and their motion is granted.
A complaint must contain a short and plain statement that plausibly suggests
the violation of a legal right. Fed. R. Civ. P. 8(a)(2); Bell Atl. Corp. v. Twombly, 550
U.S. 544, 556–58 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 677–80 (2009). At the motion
to dismiss stage, I accept the plaintiffs’ factual allegations as true and draw all
reasonable inferences in their favor. Iqbal at 678–79. I do not accept allegations that
are unsupported, conclusory, or legal conclusions. Id.
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Alexei Plestsov, Denis Nazarov, and Roman Kalabayda worked as truck
drivers for GTS Transportation Corporation, a trucking company owned by Tomas
Stirbys that delivers goods across states.  ¶¶ 1, 8–10, 29, 46–47, 64. 1 Plestsov and
Kalabayda orally agreed to work in exchange for a percentage of each load hauled
minus certain expenses.  ¶¶ 31, 66. Nazarov orally agreed to be paid per mile. 
¶ 49. The terms included that each driver would be paid in full and on time.  ¶ 99.
Plestsov, Nazarov, and Kalabayda also signed a document they didn’t fully
understand because of language barriers.  ¶¶ 36, 54, 71. GTS and Stirbys exercised
significant control over plaintiffs, including their assignments, instructions and
timeframe for delivery, hours worked, and vehicles used.  ¶¶ 81–85, 88–89, 93–94,
96–98, 100, 102. The defendants also tracked drivers, mandated insurance and
recordkeeping, conducted background checks and drug tests, and controlled
compensation policies and practices. Id.
Plaintiffs allege that Stirbys and GTS forged the billing documents for each
load hauled and altered the mileage formula, resulting in underpayment for truck
drivers paid per load or per mile.  ¶¶ 40, 59 76–77, 80. Plaintiffs also allege that
the defendants took improper deductions from their paychecks or failed to reimburse
them—for costs like repairs and operational expenses—and did not pay them for
extra work and/or issue their final paycheck.  ¶¶ 38–39, 41, 56–58, 62, 73–75.
Bracketed numbers refer to entries on the district court docket. Referenced page numbers
are from the CM/ECF header placed at the top of documents.
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Based on these wrongs, Plestsov alleges $29,734.74 in damages and Kalabayda
alleges $65,532.88.  ¶¶ 42–44, 73–74, 79. These figures exclude the cost of
underpayment based on load miscalculations. Id. Nazarov alleges $6,467.37 in
damages.  ¶ 63. Plaintiffs approximate 500 truck drivers were similarly incorrectly
compensated per mile or per load and that at least two thirds of the class members
are citizens of states other than Illinois.  ¶¶ 17, 108–10. Within the class, at least
ten percent of the deliveries were made in Illinois, meaning the truck drivers spent
at least twenty to thirty percent of their time commuting through Illinois.  ¶¶ 86–
Plestsov, Nazarov, and Kalabayda filed this class action lawsuit in federal
court, claiming GTS and Stirbys violated the Illinois Wage Payment and Collection
Act by misclassifying them and similarly situated drivers as independent contractors,
failing to pay them in a timely manner, failing to issue final paychecks, failing to
reimburse, taking improper deductions, and failing to notify plaintiffs of their true
rate of pay.  ¶¶ 111–18. Plaintiffs plead in the alternative, incorporating all their
factual allegations, that defendants were unjustly enriched from the deductions they
took—for costs like highway taxes, fuel, and repairs—and the compensation they
improperly withheld.  ¶¶ 122–25, 129. Nazarov and Kalabayda are residents of
Illinois.  ¶¶ 9–10. According to the complaint, a named plaintiff is a citizen of
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Oregon.  ¶ 17. 2 GTS is incorporated in Illinois and does business in Illinois. 
¶ 15. Stirbys is a citizen of Illinois.  ¶ 15.
The Class Action Fairness Act of 2005 permits federal jurisdiction over claims
where at least one plaintiff is diverse from at least one defendant (“minimal
diversity”), the amount in controversy exceeds $5 million in the aggregate, and there
are 100 or more class members. 28 U.S.C. § 1332(d); Sabrina Roppo v. Travelers
Commercial Insurance Co., 869 F.3d 568, 578 (7th Cir. 2017). At the motion to dismiss
stage, defendants may assert a facial or factual challenge to jurisdiction. Apex Digital,
Inc. v. Sears, Roebuck & Co., 572 F.3d 440, 443 (7th Cir. 2009). A facial challenge
requires the court to look at the complaint and see if the plaintiff has sufficiently
alleged subject matter jurisdiction. Id. A factual challenge is when defendants
present external facts, through a declaration or discovery, which call the court’s
jurisdiction into question. Id. at 444. For factual challenges, district courts may look
beyond the pleadings and review whatever evidence has been submitted to determine
whether subject matter jurisdiction exists (without converting the motion to one for
summary judgment). Id. at 444. GTS and Stirbys claim to assert a factual challenge
to jurisdiction but do not submit any external facts. Therefore, their arguments
amount to a facial challenge, limited to the four corners of the complaint. 3
In their response brief, plaintiffs indicate they made an error and that Plestsov is the named
plaintiff and a citizen of the state of Washington.  at 4, n.1
By requesting limited discovery related to class citizenship in the event their motion to
dismiss is denied, GTS and Stirbys appear to recognize that they don’t raise a true factual
challenge to jurisdiction.  at 13.
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Plaintiffs’ allegations of citizenship are a little sloppy. For individuals,
“[c]itizenship means domicile (the person’s long-term plan for a state of habitation)
rather than just current residence.” Myrick v. WellPoint, Inc., 764 F.3d 662, 664 (7th
Cir. 2014). Plaintiffs may have conflated residency with citizenship by only
mentioning Nazarov’s and Kalabayda’s residences with no other details.  ¶¶ 9–10.
Without clearly alleging the citizenship of Nazarov and Kalabayda, it is not
reasonable to infer Plestsov is the plaintiff who is a citizen of another state.  ¶ 17.
(Plaintiffs also describe the wrong state.  at 4, n.1.) GTS’s principal place of
business could also be alleged more clearly. Saying GTS operates in Illinois does not
establish that its nerve center is in Illinois since the company operates across state
lines.  ¶¶ 12, 125. See Hertz Corp. v. Friend, 559 U.S. 77, 92–93 (2010). To avoid
any confusion, the plaintiffs have leave to file an amended complaint to properly
allege minimal diversity.
The plaintiffs do, however, sufficiently plead a CAFA-sized class. Defendants
do not assert any concrete fact to contest the number of class members alleged. 4 And
the plaintiffs’ allegation that there are 500 drivers in the class is plausible.  ¶ 110.
GTS is an interstate trucking company founded in 2009.  ¶¶ 101, 125. The statute
of limitations for IWPCA claims is at least 5 years. See 735 ILCS 5/13–205, 5/13–206.
The plaintiffs worked for GTS for approximately 5 or 18 months.  ¶¶ 29, 46 64.
In Daley v. Jones Motor Company, Incorporated, 743 Fed.Appx. 35, 37 (7th Cir. 2018)
(unpublished), the defendant provided an affidavit about the number of employees it hired
and successfully contested the plaintiff’s jurisdictional allegations about numerosity. GTS
and Stirbys present no such evidence here.
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Drawing all reasonable inferences in plaintiffs’ favor, Iqbal at 678–79, a high
employee turnover rate over multiple years reasonably suggest that GTS employed
500 truck drivers during the applicable limitations period.
A similar analysis applies to plaintiffs’ allegations about the amount in
controversy. GTS and Stirbys do not present new evidence undermining plaintiffs’
specific assertions about deductions, reimbursements, and withheld payments. 
¶¶ 38–39, 41–42, 56–58, 73–75. Rather defendants argue, with no supporting
evidence, that the wide range of damages and lack of uniformity means the plaintiffs
cannot exceed the $5 million threshold. But this argument does not suggest that it is
factually impossible for plaintiffs to establish the required amount in controversy.
The average amount alleged by the three plaintiffs, multiplied by 500, well exceeds
the $5 million threshold.  ¶¶ 44, 56–63, 73–79. 5 Thus, plaintiffs present a good
faith estimate. See Meridian Sec. Ins. Co. v. Sadowski, 441 F.3d 536, 541–543 (7th
Cir. 2006) (if material facts are not properly contested, the amount in controversy
need only be alleged in good faith and not by a preponderance of the evidence).
GTS and Stirbys also fail to show that the home-state or local exception under
CAFA applies. See Appert v. Morgan Stanley Dean Witter, Inc., 673 F.3d 609, 618 (7th
Cir. 2012) (the party seeking the exception bears the burden of proof) (citations
omitted). The two exceptions contain similar requirements: if two-thirds or more than
A reasonable estimate does not require plaintiffs to allege amounts that are uniform and
consistent across each class member. Moreover, the alleged amounts for Plestsov and
Kalabayda are underestimates because they do not include additional damages from the load
miscalculations.  ¶¶ 44, 79. And the defendants’ hearsay argument is for a later stage in
the case—the employees who told plaintiffs about the forged billing documents may testify
under oath.  ¶¶ 45, 77, 80.
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two-thirds of class members are citizens of the state in which the lawsuit was filed
and share the same citizenship with a significant or primary defendant, a federal
court must decline to exercise federal jurisdiction. 28 U.S.C. § 1332(d)(4), et seq. But
the plaintiffs’ allegation that at least two-thirds of the proposed class members are
citizens of a state other than Illinois is plausible and not conjecture.  ¶ 17.
Approximately ninety percent of GTS cargo is delivered outside of Illinois, and drivers
spend approximately seventy to eighty percent of their time commuting outside of
Illinois. See  ¶¶ 86–87, 125. Given the nature of the trucking business and these
geographic requirements, it is reasonable to assume GTS hires a significant number
of drivers domiciled outside of Illinois. 6 While some of defendants’ jurisdictional
arguments fail, as noted above, plaintiffs have leave to file an amended complaint to
properly allege diversity jurisdiction under CAFA.
GTS and Stirbys also move to dismiss plaintiffs’ claim for unjust enrichment
and quantum meruit. Unjust enrichment and quantum meruit are equitable
remedies that protect plaintiffs who don’t have legal recourse under contract law.
People ex rel. Hartigan v. E & E Hauling, Inc., 153 Ill.2d 473, 497 (Ill. 1992). 7 In other
It is not, however, reasonable to assume that the citizenship of the named plaintiffs
proportionally reflects the citizenship composition of the proposed class without additional
evidence. And GTS and Stirbys do not present any facts to suggest two-thirds or more of the
proposed class members are, in fact, citizens of Illinois, which would move this action to state
court under the home-state or local exception. See Hart v. FedEx Ground Package System
Inc., 457 F.3d 675, 681 (7th Cir. 2006) (class actions strongly linked to a particular state
should be heard in state court).
Unjust enrichment and quantum meruit are distinct, albeit similar, quasi-contract causes
of action. See Hayes Mech., Inc. v. First Indus., L.P., 351 Ill.App.3d 1, 9 (1st Dist. 2004). It is
not settled under Illinois law whether unjust enrichment is an independent cause of action.
See, e.g., Enger v. Chicago Carriage Cab Corp., 812 F.3d 565, 571 (7th Cir. 2016) (citing Cleary
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words, these remedies apply to situations involving implied contracts, invalid
contracts, or claims that fall outside contracts. See id. The law permits recovery in
these instances because the defendants received a benefit that would be inequitable
for them to retain without payment. Id. Here, Plestsov, Nazarov, and Kalabayda
allege that the defendants unjustly benefited from withholding or reducing plainitffs’
paychecks.  ¶¶ 123–24. While the plaintiffs mention some “unknown document,”
suggesting an invalid contract,  ¶¶ 36, 54, 71, they also incorporate their oral
compensation agreements into their equitable claims.  ¶ 111. These were valid
agreements that required the defendants to pay the plaintiffs a certain rate, in full,
and on time.  ¶¶ 31, 49, 66, 99. Recovery under quasi-contractual theories is
unavailable where the conduct at issue is the subject of an express contract. See
Cohen v. American Sec. Ins. Co., 735 F.3d 601, 615 (7th Cir. 2013). Because the
deductions and compensation at issue derived from a valid contract, and plaintiffs
incorporate those allegations into their equitable claims, Count II fails to state a
claim. 8 Count II is dismissed without prejudice. See Runnion ex rel. Runnion v. Girl
Scouts of Greater Chicago and Northwest Indiana, 786 F.3d 510, 519 (7th Cir. 2015)
(leave to amend should be freely given after dismissal of the first complaint); Fed. R.
Civ. P. 8(d) (plaintiffs may bring inconsistent claims at the pleading stage). 9
v. Philip Morris Inc., 656 F.3d 511, 517 (7th Cir. 2011)). But since neither party has briefed
that issue, it need not be addressed in this opinion.
In order to plausibly allege unjust enrichment or quantum meruit, plaintiffs would need to
clearly delineate between misconduct based on valid agreements and misconduct that falls
outside a contract.
To the extent the defendants attempt to argue that the Illinois Workers’ Compensation
Commission has initial jurisdiction of this case,  at 5, that argument is waived. See
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The defendants’ motion to dismiss, , is granted. Any amended complaint
must be filed by November 4, 2020, and the parties shall file a joint status report on
November 12, 2020, with a proposal for a case schedule and a deadline for defendants
to respond to the amended complaint. If no amended complaint is filed, the clerk will
enter final judgment dismissing the case without prejudice for lack of jurisdiction.
Manish S. Shah
United States District Judge
Date: October 14, 2020
Thorncreek Apartments III, LLC v. Mick, 886 F.3d 626, 636 (7th Cir. 2018) (arguments raised
for the first time in a reply brief are waived).
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