POFF v. QUICK PICK, LLC et al
ORDER ON MOTION TO DISMISS - For the foregoing reasons, Defendant Ahmed Shaker's Motion to Dismiss dkt. 69 is DENIED (SEE ORDER FOR DETAILS). Copies distributed pursuant to distribution list. Signed by Judge Jane Magnus-Stinson on 9/27/2017. (DW)
Case 2:15-cv-00405-LJM-MJD Document 81 Filed 09/27/17 Page 1 of 5 PageID #: 267
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
TIMOTHY M. POFF,
QUICK PICK, LLC, and
ORDER ON MOTION TO DISMISS
This matter is before the Court on Defendant Ahmed Shaker’s Motion to Dismiss the
allegations against him in Plaintiff Timothy Poff’s Amended Complaint. 1 Dkt. 69. Poff, who
worked for Quick Pick, has alleged that both Quick Pick and Shaker are liable for damages under
the Fair Labor Standards Act of 1938 (“FLSA”) by requiring him to work an additional thirty
minutes before each of his shifts and for failing to pay him for this time. Dkt. 6. Shaker seeks
dismissal from the suit in his individual capacity and argues that only Quick Pick may be
responsible for any FLSA claims sought by Poff. Dkt. 80. For the reasons set forth below,
Shaker’s Motion to Dismiss is DENIED.
Shaker originally filed this motion as a “Request to be Immediately Dismissed.” Dkt. 69. Poff
assumed that Shaker meant to file a motion to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6) (“Rule 12(b)(6)”). Dkt. 78 at 1. Shaker did not dispute this contention in his reply brief.
Dkt. 80. Accordingly, the Court treats this filing as a Motion to Dismiss pursuant to Rule 12(b)(6).
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The facts in this matter are not in dispute. 2 Quick Pick is a convenience store and novelty
business with locations in the State of Indiana. Dkt. 6, ¶ 2. On April 1, 2015, Quick Pick hired
Poff as a cashier at its location in the Honey Creek Square Mall in Vigo County, Indiana. Dkt. 6,
¶¶ 2-3. Quick Pick paid Poff $7.50 per hour. Dkt. 6, ¶ 5. Poff was a part time employee but
worked six days per week. Dkt. 6, ¶ 5. Quick Pick paid Poff for three hours of work, but required
Poff to report to work thirty or more minutes early each work shift and sometimes required him to
work past the time that his shift ended. Dkt. 6, ¶ 5. Quick Pick has failed and refused to pay Poff
for the time he worked beyond the three hour shifts. Dkt. 6, ¶ 5.
On December 11, 2015, Poff filed his original Complaint for Damages dkt. 1, at which
time he was still employed by Quick Pick. Dkt. 6, ¶ 2. Quick Pick, acting through Shaker,
retaliated against Poff for filing the lawsuit by suspending him on January 1, 2016, and terminated
his employment on January 9, 2016. Dkt. 6, ¶ 2. Shaker specifically and expressly told Poff that
the reason his employment was terminated was because of the lawsuit filed against him and Quick
Pick. Dkt. 6, ¶ 7. Shaker personally contacted Poff to terminate his employment. Dkt. 6, ¶ 8.
II. STANDARD OF REVIEW
Rule 12(b)(6) allows a defendant to move to dismiss a complaint that has failed to “state a
claim upon which relief can be granted.” When deciding a motion to dismiss under Rule 12(b)(6),
the Court accepts as true all factual allegations in the relevant complaint and draws all reasonable
inferences in favor of the plaintiff. See Bielanski v. County of Kane, 550 F.3d 632, 633 (7th Cir.
Shaker attempts to use his reply brief to assert facts to establish that neither he nor Quick Pick
could be liable for Poff’s FLSA claims. Given the posture at this stage in the proceedings, see
supra, pt. II, the Court will only consider those facts asserted in Poff’s Amended Complaint and
disregards all superfluous facts asserted by Poff in his reply brief.
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2008). However, courts “are not obliged to accept as true legal conclusions or unsupported
conclusions of fact.” Hickey v. O’Bannon, 287 F.3d 656, 658 (7th Cir. 2002).
The complaint must contain a “short and plain statement of the claim showing that the
pleader is entitled to relief.” Rule 8(a)(2). In Bell Atlantic Corp. v. Twombly, the Supreme Court
explained that the complaint must allege facts that are “enough to raise a right to relief above the
speculative level.” 550 U.S. 544, 555 (2007). Although “detailed factual allegations” are not
required, mere “labels,” “conclusions,” or “formulaic recitation[s] of the elements of a cause of
action” are insufficient. Id.; see also Bissessur v. Ind. Univ. Bd. of Trs., 581 F.3d 599, 603 (7th
Cir. 2009) (“it is not enough to give a threadbare recitation of the elements of a claim without
factual support”). The allegations must “give the defendant fair notice of what the . . . claim is and
the grounds upon which it rests.” Twombly, 550 U.S. at 555. Stated differently, the complaint
must include “enough facts to state a claim to relief that is plausible on its face.” Hecker v. Deere
& Co., 556 F.3d 575, 580 (7th Cir. 2009) (citation and quotation marks omitted). To be facially
plausible, the complaint must allow “the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly,
550 U.S. at 556).
Shaker moves to dismiss this action on the sole ground that an individual cannot be held
liable for the actions of an LLC. Shaker claims, without any citation to legal authority, that the
“main reason people form LLC’s is to avoid personal liability for the debts of a business they own
or are involved in. By forming an LLC, only the LLC is liable for the debts and liabilities incurred
by the business.” Dkt. 69. Shaker alleges that Quick Pick was the employer of Poff at the time of
the alleged FLSA violations and therefore only it can be held responsible. Shaker fails to
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distinguish the rule, however, that “[i]f directors or officers or other employees have such control
over the corporate entity that their decisions determine whether a violation occurs, then the [FLSA]
considers them employers liable for the harm they cause.” Dole v. Simpson, 784 F. Supp. 538,
544 (S.D. Ind. 1991) (citing Riordan v. Kempiners, 831 F. 2d 690, 694 (7th Cir. 1987)). It has
been consistently recognized by the district courts of this circuit that a corporate officer with
operational control over an employee is considered an employer together with the corporation,
jointly and severally liable for unpaid wages under the FLSA. See, e.g., Natal v. Medistar, 221 F.
Supp. 3d 999, 1003 (N.D. Ill. 2016); White v. Classic Dining Acquisition Corp., No. 1:11-cv-712JMS-MJD, 2012 WL 1252589 at *3 (S.D. Ind. April 13, 2012); Kelley v. Stevens Auto Sales, No.
3:08-CV-261 JVB, 2009 WL 2762765, at * 3 (N.D. Ind. Aug. 27, 2009); Morgan v. SpeakEasy
LLC, No. 05 C 5795, 2007 WL 2757170, at *11 (N.D. Ill. Sept. 20, 2007); Simpson, 784 F. Supp.
at 546. The definition of an employer includes “a supervisor who uses his authority over the
employees whom he supervises to violate their rights under the FLSA.” Luder v. Endicott, 253
F.3d 1020, 1022 (7th Cir. 2001). Thus, the “FLSA will apply to a defendant if he or she possesses
control over the aspect of employment alleged to have been violated even if the defendant does
not exercise control over the day-to-day affairs of the employer.” Natal, 221 F. Supp. 3d at 1003
In the instant case, Poff has alleged that “Ahmed Shaker is definitely the person with
operational control over Quick Pick, its employees, and its unlawful wage practices.” Dkt. 6, ¶ 4.
Moreover, Poff alleged that “Quick Pick, acting through Defendant Ahmed Shaker, retaliated
against Poff and ultimately fired Poff because of Poff’s protected activity under the FLSA.” Dkt.
6, ¶ 7. Given these assertions against Shaker, Poff has adequately pleaded that Shaker was an
Accordingly, Shaker’s Motion to Dismiss is
employer that violated Poff’s FLSA rights.
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For the foregoing reasons, Defendant Ahmed Shaker’s Motion to Dismiss dkt.  is
IT IS SO ORDERED.
QUICK PICK, LLC
3401 S US HWY 41
Terre Haute, IN 47802
6424 Allendale Blvd.
Terre Haute, IN 47802
Robert Peter Kondras, Jr.
HUNT HASSLER KONDRAS & MILLER LLP
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