Jones v. Miss Kitty's, Inc.

Filing 33

ORDER GRANTING 28 Motion to Certify Class and 32 Motion to Grant Plaintiff's Motion for Federal Rule 23 Class Certification as Conceded. This matter will be set for a status conference to discuss the next steps in this case. Signed by Magistrate Judge Mark A. Beatty on 6/5/2024. (klh2)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ISIS JONES,
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on behalf of herself and all other similarly )
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situated individuals,
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Plaintiff,
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vs.
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MISS KITTY’S INC.,
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Defendant.

Case No. 3:23-CV-1327-MAB

MEMORANDUM AND ORDER
BEATTY, Magistrate Judge:
Plaintiff Isis Jones worked as an exotic dancer for, at, or in the Miss Kitty’s Club,
which was owned and operated by Defendant Miss Kitty’s, Inc. (Doc. 1). Plaintiff alleges
that Miss Kitty’s misclassified her and the other exotic dancers as non-employee
contractors when they were, in reality, employees (Doc. 1). Plaintiff further alleges that
as a result of this misclassification, Miss Kitty’s violated federal and state labor laws
because it did not pay the dancers any wages for the hours they worked, collected a stage
rental fee from the dancers every shift, and retained a portion of the tips the dancers
received (Doc. 1). Plaintiff filed this suit on behalf of herself and other exotic dancers for
violations of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., the Illinois
Wage Payment and Collection Act (“IWPCA”), 820 ILL. COMP. STAT. 115/1 et seq., and the
Illinois Minimum Wage Law (“IMWL”), 820 ILL. COMP. STAT. 105/1 et seq. (Doc. 1).
Currently before the Court is Plaintiff’s motion seeking class certification pursuant
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to Federal Rule of Civil Procedure 23(b)(3) on the IMWL claim, which challenges Miss
Kitty’s failure to pay the dancers minimum wage, and the IWPCA claims, which
challenges Miss Kitty’s collection of a stage rental fee from every dancer for each shift
they worked (Doc. 28).1 When Miss Kitty’s did not file a response in opposition to the
motion for class certification by the deadline (see Doc. 27), Plaintiff filed a “Motion to
Grant Plaintiff’s Class Certification Motion as Conceded” (Doc. 32). See SDIL-LR7.1(a)(5)
(“In civil cases, failure to file a timely response to a non-dispositive motion may be
deemed consent to the relief as requested.”). Miss Kitty’s also did not respond to
Plaintiff’s second motion. Defense counsel did, however, send an email to the
undersigned’s proposed documents inbox (with all counsel of record included on the
email) explaining the reason for his unresponsiveness. The Court appreciates the
explanation from defense counsel. The Court also notes, however, that defense counsel
did not indicate in his email any opposition to the motion for class certification, nor did
he ask for extra time to file a response, which leads the Court to conclude that he has
essentially consented to certification of the requested classes. The Court will nevertheless
provide a brief explanation as to how Plaintiff has satisfied the requirements for certifying
a class under Federal Rule of Civil Procedure 23(b)(3).
FACTS
The following facts are uncontested and taken from Plaintiff’s affidavit (Doc. 292), Defendant’s responses to Plaintiff’s interrogatories (Doc. 29-3), and Plaintiff’s

Plaintiff is not seeking conditional certification of a collective action pursuant to 29 U.S.C. § 216(b) with
respect to her FLSA claim.
1

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Requests for Admission, (Doc. 29-1), to which Defendant did not respond and are
therefore deemed admitted. FED. R. CIV. P. 36(a)(3) (a statement in a request for admission
is deemed admitted if not responded to within 30 days of service).2
Miss Kitty’s is a strip club, featuring nude and semi-nude female exotic dancers
(Doc. 29-1, ¶1). During the relevant period, more than one hundred (100) Class Members
worked or performed as exotic dancers for, at, or in Miss Kitty’s strip club (Doc. 29-1,
¶¶11, 12; Doc. 29-2, ¶26). The Class Members’ primary job duty was identical: to interact
with customers and to perform strip tease and private and semi-private provocative
and/or erotic dances for the customers’ entertainment and enjoyment (Doc. 29-1, ¶10;
Doc. 29-2, ¶¶ 6-7).
The Class Members’ right or ability to work or perform as exotic dancers for, at, or
in Miss Kitty’s club was subject to the selection and discretion of Miss Kitty’s managers
or agents (Doc. 29-1, ¶19; Doc. 29-2, ¶13). Once hired, the relationship between Miss
Kitty’s and the Class Members was ongoing and at-will, rather than ad hoc or limited to a
special appearance (Doc. 29-1, ¶2; Doc. 29-2, ¶8).
Miss Kitty’s had the authority to dictate if, when, and during what shifts each Class
Member worked in the club (Doc. 29-1, ¶23; Doc. 29-2, ¶17; see also Doc. 29-1, ¶19). Miss
Kitty’s also had the authority to terminate or suspend the Class Members from
performing at the club (Doc. 29-1, ¶22; Doc. 29-2, ¶16; see also Doc. 29-4, ¶7).
While working, the Class Members were required to abide by the rules set forth

2

Defendant has not moved to withdraw the admissions. See FED. R. CIV. P. 36(b).
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by Miss Kitty’s (Doc. 29-2, ¶20; see also Doc. 29-4, ¶16; Doc. 29-5 (“Miss Kitty’s New Rules
for All Dancers”)). For example, dancers could not chew gum while working, could not
have cell phones while on the floor, could only use the bathrooms in the locker room, and
were not allowed to leave to get food or cigarettes (Doc. 29-5). Miss Kitty’s also set and
controlled the prices the dancers were required to charge customers for private and semiprivate dances, as well as the policies and procedures the dancers had to follow in giving
such dances (Doc. 29-1, ¶24; Doc. 29-2, ¶18).
Central to the claims in this case, Miss Kitty’s considered all of the exotic dancers
who worked for, at, or in the club to be non-employee, independent contractors (Doc. 294, ¶¶3, 6; see also Doc. 29-1, ¶¶3, 5). None of the exotic dancers was ever classified as an
employee (Doc. 29-4, ¶4; see also Doc. 29-1, ¶4). As such, Miss Kitty’s never paid wages or
any other form of compensation to any exotic dancer (Doc. 29-4, ¶¶9, 10, 11; see also Doc.
29-1, ¶6, 20; Doc. 29-2, ¶14). Rather, the dancers’ only compensation were the tips they
received from customers (Doc. 29-4, ¶¶9, 11; see also Doc. 29-1, ¶21; Doc. 29-2, ¶15). Miss
Kitty’s also required the dancers to pay a “stage rental fee”—$40 for day shifts and $50
for night shifts—for each shift they worked (Doc. 29-4, ¶3; see also Doc. 29-2, ¶19; Doc. 295). Miss Kitty’s admitted that the Class Member dancers were all “treated equally” and
subjected to the same policies, treatment, supervision, and control (Doc. 29-1, ¶¶7, 8; Doc.
29-2, ¶¶11, 12; Doc. 29-4, ¶5).
PROPOSED CLASSES
Plaintiff is seeking certification of two classes: an IMWL class and an IWPCA class
(Doc. 29, p. 2).
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The IMWL class is defined as all individuals who worked or performed as an
exotic dancer for, in, or at Defendant’s Club during the period April 2020 through the
final date of judgment in this case (Doc. 1, p. 5; Doc. 28, p. 1; Doc. 29, pp. 2, 20). See 735
ILL. COMP. STAT. 5/13-206 (limitations period for actions brought under the IWPCA is ten
years).
The IWPCA class is defined as all individuals who worked or performed as an
exotic dancer for, in, or at Defendant’s Club during the period April 2013 through the
final date of judgment in this case (Doc. 1, p. 5; Doc. 28, p. 1; Doc. 29, pp. 2, 20). See 820
ILL. COMP. STAT. 105/12(a) (limitations period for actions brought under the IMWL is
three years).
DISCUSSION
A plaintiff seeking to certify a class must prove, by a preponderance of the
evidence, that their proposed class satisfies the four requirements of Federal Rule of Civil
Procedure

23(a)—numerosity,

commonality,

typicality,

and

adequacy

of

representation—and one of the conditions of Rule 23(b). Jamie S. v. Milwaukee Pub. Schs.,
668 F.3d 481, 493 (7th Cir. 2012) (citing FED. R. CIV. P. 23); Howard v. Cook Cty. Sheriff's Off.,
989 F.3d 587, 597 (7th Cir. 2021). Here, Plaintiff is seeking certification under Rule 23(b)(3),
which requires that “questions of law or fact common to the class members predominate
over any questions affecting individual members” and that a “class action is superior to
other available methods for fairly and efficiently adjudicating the controversy.” FED. R.
CIV. P. 23(b)(3); Messner v. Northshore Univ. HealthSystem, 669 F.3d 802, 811 (7th Cir. 2012).
Plaintiff argues, Miss Kitty’s does not dispute, and the Court has no reason to
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doubt that the requirements of Rule 23(a) are satisfied. First, the proposed class, which
consists of over 100 exotic dancers, is sufficiently numerous. See FED. R. CIV. P. 23(a)(1)
(the proposed class must “be so numerous that joinder of all members is impracticable.”);
Mulvania v. Sheriff of Rock Island Cty., 850 F.3d 849, 859 (7th Cir. 2017) (“While there is no
magic number that applies to every case, a forty–member class is often regarded as
sufficient to meet the numerosity requirement.”).
Second, commonality is satisfied because there are “questions of law or fact
common to the class.” FED. R. CIV. P. 23(a)(2). Commonality requires a prospective class
to show that its claims “depend upon a common contention . . . of such a nature that it is
capable of classwide resolution,” meaning that “determination of its truth or falsity will
resolve an issue that is central to the validity of each one of the claims in one stroke.”
Phillips v. Sheriff of Cook Cty., 828 F.3d 541, 550, 553 (7th Cir. 2016) (quoting Wal-Mart, 564
U.S. at 350). In other words,” a prospective class must articulate at least one common
question that will actually advance all of the class members’ claims.” Phillips, 828 F.3d at
551. See also Jamie S, 668 F.3d at 497 (“[T]he plaintiffs must show that they share some
question of law or fact that can be answered all at once and that the single answer to that
question will resolve a central issue in all class members' claims.”) (emphasis in original).
As Plaintiff said, her claims under the IMWL and the IWPCA, and those of the
class she seeks to represent, all depend on a common contention that Miss Kitty’s
employment practices violated state labor laws. The chief contention is that Miss Kitty’s
misclassified all of the exotic dancers as independent contractors when they actually
qualified as employees, as that term is defined under the IMWL and the IWPCA (Doc. 29,
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p. 9).3

4

See Suchanek v. Sturm Foods, Inc., 764 F.3d 750, 756 (7th Cir. 2014) (“Where the

same conduct or practice by the same defendant gives rise to the same kind of claims
from all class members, there is a common question.”) (citations omitted). If true, then
additional common questions arise as to whether Miss Kitty’s failure to pay the dancers
any wages violated the IMWL’s requirement that employees be paid compensation at or
above the minimum wage rate in Illinois and whether Miss Kitty’s collection of a stage
rental fee from every dancer for each shift they worked constituted an unlawful
compensation deduction in violation of the IWPCA.
These questions are common across the claims of each class member. They are
determinative of Miss Kitty’s liability and are therefore central to the validity of each class
members’ claims. Furthermore, they can be resolved on a class-wide basis because Miss
Kitty’s admitted that exotic dancers all performed the same job duties, were all classified

The IMWL’s protections apply to “any individual permitted to work by an employer in an occupation.”
820 ILL. COMP. STAT. 105/3(d). The IMWL’s regulations set forth six factors to consider in determining
whether an individual is an employee or independent contractor, which are the same factors used to to
determine whether an individual is an employee under the FLSA. Compare 56 ILL. ADMIN. CODE 210.110
with Brant v. Schneider Nat'l, Inc., 43 F.4th 656, 665 (7th Cir. 2022) (citing Secretary of Labor v. Lauritzen, 835
F.2d 1529, 1534–35 (7th Cir. 1987)). Those factors are: (1) the degree of control the alleged employer
exercised over the individual; (2) the extent to which the services rendered by the individual are an integral
part of the alleged employer’s business; (3) the extent of the relative investments of the individual and
alleged employer; (4) the degree to which the individual’s opportunity for profit and loss is determined by
the alleged employer; (5) the permanency of the relationship; and (6) the skill required in the claimed
independent operation. 56 ILL. ADMIN. CODE 210.110; Brant, 43 F.4th at 665 (citing Lauritzen, 835 F.2d at
1534–35).
3

The IWPCA’s protections apply to “all employers and employees in [Illinois].” 820 ILL. COMP. STAT. 115/1.
Under the IWPCA, all individuals qualify as employees of an employer unless the employer proves all
three elements of the independent contractor exemption. Costello v. BeavEx, Inc., 810 F.3d 1045, 1059 (7th
Cir. 2016). This exemption requires the employer to show that a worker is an individual (1) who has been
and will continue to be free from control and direction over the performance of his work, both under his
contract . . . and in fact; and (2) who performs work which is either outside the usual course of business or
is performed outside all of the places of business of the employer . . . ; and (3) who is in an independently
established trade, occupation, profession or business. Id. (citing 820 ILL. COMP. STAT. 115/2).
4

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as independent contractors, were never paid any wages, were all required to pay the
same “rental fee” per shift, and were all subject to the same policies and practices
regarding treatment, supervision, and control (see Docs. 29-1, Doc. 29-4). In other words,
there are no material differences or unique circumstances that exist between Plaintiff and
the Class Members that would require them to present individualized evidence or require
the Court to make individualized determinations as to whether they were each an
employee or independent contractor or whether Miss Kitty’s violated the IMWL and
IWPCA by denying them wages and making them pay stage rental fees. Rather, these
questions can be answered as to the entire class in one fell swoop using the same
generalized, class-wide evidence. Accordingly, commonality is satisfied. See Tyson Foods,
Inc. v. Bouaphakeo, 577 U.S. 442, 453 (2016) (“An individual question is one where
‘members of a proposed class will need to present evidence that varies from member to
member,’ while a common question is one where ‘the same evidence will suffice for each
member to make a prima facie showing [or] the issue is susceptible to generalized, classwide proof.’”) (citation omitted).
Third, typicality, which asks whether the plaintiff’s claims or defenses are typical
of the claims or defenses of the class, FED. R. CIV. P. 23(a)(3), is satisfied because, as
explained above, Plaintiff’s claims arise from the same injurious practice or course of
conduct and are based on the same legal theory as the claims of the class at large. Lacy,
897 F.3d at 866 (citing Rosario v. Livaditis, 963 F.2d 1013, 1018 (7th Cir. 1992)).
And, fourth, Plaintiff contends that adequacy is satisfied because she shares the
same grievance against Miss Kitty’s as the rest of the putative class members and her
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interests are aligned with theirs, and her attorneys, are qualified, experienced, and have
the resources necessary to prosecute the claims in this matter (Doc. 29, p. 11; see also Docs.
29-3 and 29-6 (attorney affidavits)). See FED. R. CIV. P. 23(a)(4) (“the representative parties
will fairly and adequately protect the interests of the class”). The Court has no reason to
doubt that the named Plaintiff and proposed class counsel will fairly and adequately
protect the interests of the class.
The Court turns next to Rule 23(b)(3)’s requirements that common questions of
law or fact “predominate” over individual ones and that a class action be “superior to
other available methods for fairly and efficiently adjudicating the controversy.” FED. R.
CIV. P. 23(b)(3). The ultimate question in a Rule 23(b)(3) class is whether “judicial
economy from consolidation of separate claims outweighs any concern with possible
inaccuracies from their being lumped together in a single proceeding for decision by a
single judge or jury.” Mejdrech v. Met-Coil Sys. Corp., 319 F.3d 910, 911 (7th Cir. 2003). See
also Suchanek, 764 F.3d at 761 (“Ultimately, the court must decide whether classwide
resolution would substantially advance the case.”). Plaintiff argues, Miss Kitty’s does not
dispute, and the Court agrees that the requirements of Rule 23(b)(3) are satisfied.
Predominance, which “builds on commonality,” asks whether “the common,
aggregation-enabling, issues in the case are more prevalent or important than the noncommon, aggregation-defeating, individual issues.” Howard, 989 F.3d at 607 (quoting
Tyson Foods, 577 U.S. at 453). See also Messner, 669 F.3d at 814 (“Predominance is ‘similar
to Rule 23(a)’s requirements for typicality and commonality, [but] the predominance
criterion is far more demanding.’”) (quoting Amchem Prods., Inc. v. Windsor, 521 U.S. 591,
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623 (1997)). In other words, “the predominance requirement is satisfied when common
questions represent a significant aspect of [a] case and . . . can be resolved for all members
of [a] class in a single adjudication.” Messner, 669 F.3d at 815 (citation and internal
quotation marks omitted).
In this case, common questions regarding Miss Kitty’s liability clearly
predominate over any potential individual questions. The question of whether the exotic
dancers were misclassified as independent contractors is not only central to the validity
of every class member’s claim, it is actually the linchpin of the entire case—Miss Kitty’s
liability turns on the answer to this question. The protections afforded by the IMWL and
the IWPCA only apply to employees, not independent contractors. Therefore, as Plaintiff
pointed out, if the Court determines on the merits that the exotic dancers were properly
classified as independent contractors, then Miss Kitty’s cannot be held liable for violating
either the IMWL or the IWPCA and all of the class members’ claims would fail in unison
(Doc. 29, pp. 14, 15). “[C]ommon question predominates over individual claims if ‘a
failure of proof on the [common question] would end the case” and the whole class “will
prevail or fail in unison.’” Bell, 800 F.3d at 378 (quoting Amgen, 568 U.S. at 460).
It is also undoubtedly more efficient to decide the common questions regarding
Miss Kitty’s liability in a single class action proceeding than in separate individual
proceedings. The Court also credits Plaintiff’s explanation that a class action is the best
way to adjudicate the controversy because the potential monetary recovery for each class
member is likely too low to justify individual litigation (Doc. 29, pp. 17–20).
Accordingly, the Court thinks “it makes good sense” to resolve the common issues
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regarding liability “in one fell swoop.” Pella Corp. v. Saltzman, 606 F.3d 391, 394 (7th Cir.
2010) (citation omitted). See also Chicago Teachers Union, Local No. 1 v. Bd. of Educ., 797 F.3d
426, 444 (7th Cir. 2015) (“[W]hen adjudication of questions of liability common to the class
will achieve economies of time and expense, the predominance standard is generally
satisfied.” (quoting Comcast Corp. v. Behrend, 133 S.Ct. 1426, 1436–37 (2013))); 7AA
CHARLES ALAN WRIGHT, ET AL., FEDERAL PRACTICE & PROCEDURE § 1778 (3d ed.) (“When
common questions represent a significant aspect of the case and they can be resolved for
all members of the class in a single adjudication, there is a clear justification for handling
the dispute on a representative rather than on an individual basis.”).
After the question of liability is resolved, and if it is answered in favor of the class,
the parties and the Court can determine the best course for adjudicating the issue of
damages (see Doc. 29, pp. 18–19). Plaintiff acknowledges that determining damages may
require individualized proof from each class member (Doc. 29, pp. 18–19). Or the class
might use statistical sampling to establish class-wide damages (Id. at p. 19, n.9).
Regardless, “[i]t is well established that the presence of individualized questions
regarding damages does not prevent certification under Rule 23(b)(3).” Messner, 669 F.3d
at 815 (collecting cases). See also Carnegie v. Household Int'l, Inc., 376 F.3d 656, 661 (7th Cir.
2004) (describing various methods for handling individualized damages determinations
in a class action).
CONCLUSION
In conclusion, the Court is persuaded that class certification is appropriate under
Rule 23(b)(3). Plaintiff’s motion for class certification (Doc. 28) and “Motion to Grant
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Plaintiff’s Class Certification Motion as Conceded” (Doc. 32) are therefore GRANTED.
The following classes are CERTIFIED pursuant to Rule 23(b)(3):
The IMWL class, which is comprised of all individuals who worked or
performed as an exotic dancer for, in, or at Defendant’s Club during the
period April 2020 through the final date of judgment in this case.
The IWPCA class, which is comprised of all individuals who worked or
performed as an exotic dancer for, in, or at Defendant’s Club during the
period April 2013 through the final date of judgment in this case.
Plaintiff Isis Jones is APPOINTED as class representative for both the IMWL class
and the IWPCA class. Attorneys Gregg Greenburg and Athena Herman are
APPOINTED as class counsel for both the IMWL class and the IWPCA class.
This matter will be set for a status conference to discuss the next steps in this case.
It will cover, at minimum, defense counsel’s current status and ability to continue
litigating this case, Defendant’s production of names and contact information for class
members, how the Class Notice will be disseminated to class members and a proposed
schedule for doing so, 5 the state of discovery, proposed deadlines for dispositive
motions, and the proposed format of trial.
IT IS SO ORDERED.
DATED: June 5, 2024
s/ Mark A. Beatty
MARK A. BEATTY
United States Magistrate Judge

The Court notes that Plaintiff asked for the class members’ names and last known addresses and indicated
that she intends to disseminate the Class Action Notice via U.S. mail only (see Doc. 29). The Court, however,
is concerned that many class members will no longer live at the same physical address that they gave Miss
Kitty’s when they were hired and wonders whether it would be prudent to also collect cell phone numbers
and email address (if available) and to disseminate the Class Action Notice via email and text message in
addition to U.S. Mail.
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