Cunningham v. Roundy's Ill., LLC

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KEVIN CUNNINGHAM, Plaintiff, v. ROUNDY'S ILLINOIS, LLC, d/b/a MARIANO'S Defendant.

No. 1:21-cv-05368^[1]

United States District Court, N.D. Illinois, Eastern Division

December 16, 2022

MEMORANDUM OPINION AND ORDER

Virginia M. Kendall United States District Judge

Plaintiff Kevin Cunningham brought suit against Defendant Roundy's Illinois, LLC d/b/a Mariano's (“Mariano's”) alleging that Mariano's did not pay overtime in violation of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201, et seq. and the Illinois Minimum Wage Law (“IMWL”), 820 ILCS 105/1, et seq. (Cunningham, Dkt. 36 ¶¶ 19-20)^[2] Plaintiff Juliana Fuhrmann brought suit against Mariano's based on the same claims. (Fuhrmann, Dkt. 1 ¶¶ 19-20). Cunningham and Fuhrmann originally brought their claims as part of a putative class action before Judge Bucklo. (Haugen Dkt. 38). Judge Bucklo decertified the putative collective action and dismissed the opt-in plaintiffs, including Fuhrmann and Cunningham. Haugen v. Roundy's Illinois LLC, 552 F.Supp.3d 806, 811 (N.D. Ill. 2021).

Subsequently, along with twenty-one other dismissed plaintiffs, Cunningham and Fuhrmann collectively filed their claims before this Court. (Cunningham, Dkt. 1). This Court granted Mariano's motion to sever the claims into separate actions on July 6, 2022, requiring each plaintiff to refile his or her claims individually. (Cunningham, Dkt. 29). Fuhrmann filed her claims on August 2, 2022. (Fuhrmann, Dkt. 1). Cunningham filed an amended complaint asserting only his own claims on August 17, 2022. (Cunningham, Dkt. 36). Mariano's now argues the claims are dismissed with prejudice and moves to dismiss both suits on such grounds. (Cunningham, Dkt. 38; Fuhrmann, Dkt. 10). For the following reasons, Defendant's motion to dismiss in Cunningham [38] and Defendant's motion to dismiss in Fuhrmann [10] are granted.

BACKGROUND

Both Cunningham and Fuhrmann were formerly employed as People Service Managers (“PSMs”) at Mariano's grocery stores in the greater Chicago area. (Cunningham, Dkt. 36 ¶ 7; Fuhrmann, Dkt. 1 ¶ 7). Mariano's classifies PSMs as “salary exempt,” thereby allegedly eliminating the need to compensate PSMs at an overtime rate as required by the FLSA. (Cunningham, Dkt. 36 ¶ 8 (citing 29 U.S.C. §§ 207(a)(1), 213); Fuhrmann, Dkt. 1 ¶ 8 (citing the same)).

Cunningham and Fuhrmann originally brought their claims as part of a FLSA putative collective action. (Haugen, Dkt. 38). Judge Bucklo granted conditional certification as a collective action in Haugen after “Phase I” discovery. (Haugen, Dkt. 51). Fuhrmann opted in on February 7, 2020, and Cunningham opted in on February 21, 2020, becoming full party-plaintiffs at that time. (Haugen, Dkt. 58; Haugen, Dkt. 59). Following “Phase II” discovery, Judge Bucklo granted Mariano's motion to decertify the class based on the finding that plaintiffs were not similarly situated to each other under Section 216(b) of the FLSA. She dismissed the opt-in plaintiffs, including Cunningham and Fuhrmann. (Haugen, Dkt. 125). The opt-in plaintiffs moved to clarify Judge Bucklo's order regarding whether the dismissal was with or without prejudice and requesting that Judge Bucklo toll the statute of limitations on their claims. (Haugen, Dkt. 126). Judge Bucklo entered on September 13, 2021:

The motion for clarification is granted to make clear that the August 5, 2021 order dismissed the opt-in plaintiffs without prejudice. The motion to toll the statute of limitations for dismissed opt-in plaintiffs is granted. Dismissed opt-in plaintiffs may re-file their claims dismissed by this court on an individual basis on or before October 4, 2021 (60 days following the court's August 5, 2021 order).

(Haugen, Dkt. 131).

Cunningham, Fuhrmann, and twenty-one other plaintiffs then filed a joint action raising the same claims on October 8, 2021. (Cunningham, Dkt. 1). Defendant moved to sever the claims, which this Court granted, indicating “Separate claims shall be filed by [August 5, 2022].” (Cunningham, Dkt. 29; Cunningham, Dkt. 30). On August 17, 2022, Cunningham filed his First Amended Complaint before this Court, asserting the same claims previously alleged in Haugen and in the initial complaint in the alleged joined action, but only on his own behalf. (Cunningham, Dkt. 36).On August 2, 2022, Fuhrmann filed the same claims on her own behalf. (Fuhrmann, Dkt. 1).

Thirteen other plaintiffs also filed individual actions, which have been distributed amongst ten different judges in the Northern District of Illinois.^[3]Now, Defendant moved to dismiss each action under the same procedural grounds, arguing that the dismissal of the opt-in plaintiffs ripened to a dismissal with prejudice when plaintiffs missed the filing date set by Judge Bucklo. (Cunningham, Dkt. 38; Fuhrmann, Dkt. 10).

LEGAL STANDARD

“To survive a motion to dismiss under 12(b)(6), a complaint must ‘state a claim to relief that is plausible on its face.'” Adams v. City of Indianapolis, 742 F.3d 720, 728 (7th Cir. 2014) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “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.” Adams, 742 F.3d at 728 (quoting Ashcroft v. Iqbal, 566 U.S. 662, 678 (2009)). “[I]t is not enough for a complaint to avoid foreclosing possible bases for relief; it must actually suggest that the plaintiff has a right to relief . . . by providing allegations that ‘raise a right to relief above the speculative level.'” E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d 773, 777 (7th Cir. 2007) (citing Twombly, 550 U.S. at 555) (emphasis in original). The Court construes the complaint “in the light most favorable to the nonmoving party, accept[s] well-pleaded facts as true, and draw[s] all inferences in her favor.” Reynolds v. CB Sports Bar, Inc., 623 F.3d 1143, 1146 (7th Cir. 2010). “[L]egal conclusions and conclusory allegations merely reciting the elements of the claim are not entitled to this presumption of truth.” McCauley v. City of Chicago, 671 F.3d 611, 616 (7th Cir. 2011) (citing Iqbal, 566 U.S. at 678).

But “[a] complainant can plead himself out of court by including factual allegations sufficient to establish that the plaintiff is not entitled to relief as a matter of law.” O'Gorman v. City of Chicago, 777 F.3d 885, 889 (7th Cir. 2015). Finally, the Court “may take judicial notice of publicly available records of court proceedings.” Spaine v. Cmty. Contacts, Inc., 756 F.3d 542, 545 (7th Cir. 2014).

DISCUSSION

A. Decertification of FLSA Collective Action

The parties' dispute began in the context of a collective action brought pursuant to 29 U.S.C. § 216(b) for Defendant's alleged violations of the Fair Labor Standards Act (FSLA). In a collective action, one or more employees alleging FLSA violations brings a claim “for and on behalf of himself or themselves and other employees similarly situated.” § 216(b). Plaintiffs who purport to be “similarly situated” must opt-in to the collective action by filing a written notice of consent with the court to join the suit. Id.; Harkins v. Riverboat Servs., Inc., 385 F.3d 1099, 1101 (7th Cir. 2004); Miller v. Illinois Bell Tel. Co., 157 F.Supp.3d 749, 754 (N.D. Ill. 2016) (“In the case of a collective action, 29 U.S.C. § 256(b) provides that an action for opt-ins commences when the individual files his written consent in the court in which the action is brought.”). In doing so, the opt-in plaintiff consents to be bound by the court's judgment. See Harkins v. Riverboat Services, Inc., 385 F.3d 1099, 1101 (7th Cir. 2004) (“The rule requiring written, filed consent [to join a collective action] is important because a party is bound by whatever judgment is eventually entered in the case . . . .”). All opt-in plaintiffs then have full party status to the lawsuit. Id.; see also 7B Charles Alan Wright, Arthur R. Miller, & Mary K. Kane, Federal Practice and Procedure, § 1807 (3d ed. April 2022 Update). Filing the consent-to-join notice tolls the FLSA statute of limitations as to that plaintiff's claims. Wright, Miller & Kane, Fed. Prac. & Proc., § 1807; O'Connell v. Champion International Corp., 812 F.2d 393, 394 (8th Cir. 1987) (statute of limitations in ADEA collective action tolled either by bringing individual action or opting in to pending action by filing written consent with the court); Harkins v. Riverboat Servs., Inc., No. 99 C 123, 2002 WL 32406581, at *2 (N.D. Ill. May 17, 2002), aff'd, 385 F.3d 1009 (7th Cir. 2004).

“A district court has wide discretion to manage collective actions.” Alvarez v. City of Chicago, 605 F.3d 445, 449 (7th Cir. 2010) (citing Hoffman-La Roche v Sperling, 493 U.S. 165, 171 (1989)). Though not required, many courts have adopted a two-stage certification approach to collective actions. Wright, Miller & Kane, Fed. Prac. & Proc., § 1807; see Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1213-14 (5th Cir. 1995) (describing district court's conditional certification of representative class at the “notice stage,” allowing “similarly situated” plaintiffs to opt in, progressing with discovery, and then making second determination on defendant's motion to decertify); Hipp v. Liberty Nat'l Life Ins. Co., 252 F.3d 1208, 1219 (11th Cir. 2001), cert. denied 534 U.S. 1127 (2002) (approving of two-stage certification procedure in Mooney); Myers v. Hertz Corp., 624 F.3d 537, 555 (2d Cir. 2010) (characterizing two-stage certification approach as “sensible,” though noting neither FLSA nor Supreme Court requires it). Regardless of the approach, if final certification of the representative class fails, the court will decertify the class, dismiss the opt-in plaintiffs without prejudice,...