Avitia v. Metropolitan Club of Chicago, Inc.

• Decision Date: 07 March 1990
• Docket Number: No. 88 C 6965.,88 C 6965.
• Citation: 731 F. Supp. 872
• Parties: Alfonso AVITIA, Artemio Villafana, Daniel P. Robert, Lisa Tape, Albert Allen, Jaime Merlo, Thomas Delany, and Parvis (a/k/a Michael) Khania, Plaintiffs, v. The METROPOLITAN CLUB OF CHICAGO, INC., Defendant.
• Court: U.S. District Court — Northern District of Illinois

731 F. Supp. 872

Alfonso AVITIA, Artemio Villafana, Daniel P. Robert, Lisa Tape, Albert Allen, Jaime Merlo, Thomas Delany, and Parvis (a/k/a Michael) Khania, Plaintiffs, v. The METROPOLITAN CLUB OF CHICAGO, INC., Defendant.

No. 88 C 6965.

United States District Court, N.D. Illinois, E.D.

March 7, 1990.

Ernest T. Rossiello, Ernest T. Rossiello & Assoc., Chicago, Ill., for plaintiffs.

Don E. Glickman and Andrew J. Fisher, Rudnick & Wolfe, Chicago, Ill., for defendant.

ORDER

NORGLE, District Judge.

Before the court are the objections of the plaintiffs to the report and recommendation of Magistrate James T. Balog denying plaintiffs' application for a preliminary injunction. For the following reasons, the court adopts the magistrate's report and recommendation.

FACTS

A short history of the plaintiffs' search for a preliminary injunction in this case is in order. Initially, this action was assigned to the call of Judge Marshall. Plaintiffs' original amended complaint based jurisdiction upon 29 U.S.C. § 216(b). Plaintiffs' Amended Complaint, par. 1. In the prayer for relief, plaintiffs requested a preliminary injunction. Plaintiffs' Amended Complaint, par. 6C. Defendants objected, claiming that plaintiffs had no authority to seek injunctive relief under 29 U.S.C. § 216(b). Defendants' Memorandum in Support of Defendants' Motion to Dismiss and to Strike, p. 3. Judge Marshall agreed with this and struck plaintiffs' prayer for a preliminary injunction. Order of October 24, 1988.

On December 12, 1988, this action was transferred from the call of Judge Marshall to this court. Despite Judge Marshall's order, plaintiff submitted a pleading entitled "Motion to Set for Trial or for a Hearing on Temporary Reinstatement Pursuant to Title 29 U.S.C. Section 216(b)." The court continued the motion until January 26, 1989. On that date, in open court, the following colloquy took place:

"MR. ROSSIELLO: Ernest Rossiello for the plaintiffs. I think that's 88 C 6965, for the record. Your Honor, this matter is up this morning for status and also on two motions. One is a motion for leave to file an amended complaint; the second is a motion to set for trial.

"THE COURT: In one of the pleadings, that is the Defendant's Response to the Plaintiff's Motion to Set for Trial or for a Hearing on the Temporary Reinstatement, on Page 3 it is stated:

`Judge Marshall already decided this issue in his order of October 24, 1988. He ordered that the plaintiff's claim for injunctive relief be stricken. Now plaintiffs are wasting the time and effort of the defendant and this Court by again requesting injunctive relief in asking that a preliminary hearing be set. Because the law is so clear on this issue and because it has already been decided by Judge Marshall, plaintiff's request for a preliminary hearing is not warranted by existing law or a good-faith argument for the extension or modification of existing law. Rule 11 sanctions should be awarded to the defendant for being forced to respond to this frivolous request.'

"That is pretty strong language.

"MR. ROSSIELLO: It's somewhat misleading.

"THE COURT: Well, who is the author of it?

"MR. ROSSIELLO: Counsel.

"MR. FISHER: I am, your Honor.

"THE COURT: You may proceed on it.

"MR. FISHER: Your Honor, I don't remember the exact date, but some time ago we moved to have the request for injunctive relief stricken because we believe that the law is clear that injunctive relief is not available in a case such as this; and we've cited cases in our — in this brief to support that position. We presented that motion before Judge Marshall, and he granted that motion. Now Mr. Rossiello, as I understand it, did not oppose the motion at that time. Nevertheless, the judge — Judge Marshall granted the motion, and I believe correctly so. I won't speak for the reasons that Mr. Rossiello chose to not to oppose the motion, but it was in fact granted, and I think properly so. And that's the reason we've made this argument here.

"MR. ROSSIELLO: Judge we're not asking —

"THE COURT: That order was entered on October 24, 1988, and today is January 26, 1989. Did Judge Marshall enter that order?

"MR. ROSSIELLO: No.

"THE COURT: He didn't?

"MR. ROSSIELLO: No.

"THE COURT: Do you have a copy of the order there?

"MR. FISHER: It should be attached, and I have a copy in front of me.

"THE COURT: Are you telling me he didn't enter it when counsel tells me there is a copy attached to the motion?

"MR. ROSSIELLO: Judge, we're not asking for injunctive relief.

"THE COURT: Well, did Judge Marshall enter that order?

"MR. ROSSIELLO: There was a motion to strike the —

"THE COURT: Did Judge Marshall enter an order on —

"MR. ROSSIELLO: I don't recall —

"THE COURT: — October 24, 1988?

"MR. ROSSIELLO: I do not recall — I do not recall such an order being entered.

"THE COURT: Do you have a copy of it in your hand there, Counsel?

"MR. FISHER: Yes, I do, your Honor. (Said document was tendered to the Court.)

"MR. ROSSIELLO: What is the order? I don't —

"THE COURT: This is a copy of an order dated October 24, 1988, which states in part: "Defendant's motion to dismiss plaintiff's complaint as to Club Corporation of America, Inc., and strike plaintiff's request for injunctive relief is granted.

"MR. ROSSIELLO: All right. That's in the prayer for relief. That's right. That was stricken from the prayer for relief. Okay. We are not asking for injunctive relief today. I mean, I didn't want to interrupt the Court a few minutes ago, but—

"THE COURT: You filed a motion for preliminary injunction, didn't you?

"MR. ROSSIELLO: I filed a motion for preliminary reinstatement, for a hearing on temporary reinstatement pending the outcome of the case as provided by the statute, Section 216(b). That's all. I'm not asking for any injunction. I can't. The only — the Secretary of Labor is the only one, Judge, who can ask for an injunction.

"MR. FISHER: Your Honor, if I may respond.

"THE COURT: That is exactly what opposing counsel has said here, and he has cited those cases. And I assume that was the basis for Judge Marshall's ruling on October 24, 1988. So don't you regard your motion for temporary reinstatement as to be preliminary relief or injunctive relief?

"MR. ROSSIELLO: Well, it's not an injunction, Judge. This is a case under the Fair Labor Standards Act. It's an overtime pay case. The statute, Section 216(b), says that if an employer — that it — these are actually retaliatory discharge cases under this act. And the statute says that if the aggrieved employee is discharged in retaliation for opposing practices made unlawful by the overtime pay provisions of the Fair Labor Standards Act, he can be reinstated. Now, —

"THE COURT: Who files the motion?

"MR. ROSSIELLO: I do.

"THE COURT: The statute says that?

"MR. ROSSIELLO: Yeah. I'm sorry. The only thing the plaintiff can't get in one of these cases is —

"THE COURT: What does the statute say?

"MR. ROSSIELLO: The statute says that any aggrieved individual who is the victim of discrimination as a result of opposing practices made unlawful by the Fair Labor Standards Act and the overtime pay provisions is entitled to reinstatement, to back pay, and to liquidated damages and attorney's fees. Now, later on in the statute —

"THE COURT: Now, when it says that, does it say that the individual by his private counsel may come in to obtain injunctive relief from the Court, or does it leave it to the Secretary of Labor to pursue?

"MR. ROSSIELLO: The Secretary is the only one who can get injunctive relief, as far as I understand. Now, I did not ask for injunctive relief.

"THE COURT: You are asking for the Court to enter an order on the defendants to reinstate your client prior to the adjudication on the merits; is that right?

"MR. ROSSIELLO: Yes. I'm asking for a hearing on —

"THE COURT: That is injunctive relief.

"MR. ROSSIELLO: Well, that's — it's equitable relief, but it's not an injunction. The — I'm not asking for a prohibiting or a mandatory injunction against the defendant. What I'm asking for, Judge, is that there is irreparable harm being—taking place to two of the plaintiffs.

"THE COURT: In fact, you're going to tell me under Roland Machinery the four or five factors to take into account in determining whether injunctive relief should be granted; is that right, such as irreparable harm?

"MR. ROSSIELLO: Well, that's one of them.

"THE COURT: And yet you're not going to call it injunctive relief?

"MR. ROSSIELLO: Well, it's equitable relief. The statute provides, Judge, the reinstatement, and unless the —

"THE COURT: We're wasting time here. Judge Marshall has ruled on this point.

"MR. ROSSIELLO: Well, what he's ruled on is that he just struck it from the complaint.

"THE COURT: And furthermore, the defendant's response to the plaintiff's motion to set for trial or for a hearing on temporary reinstatement adequately states the law. And it has sufficient citations to convince me that the type of relief that you are requesting is injunctive in nature and that you personally are barred from bringing it on behalf of your client. And if it is to be brought at all, it should be brought by the Secretary of Labor.

"MR. ROSSIELLO: But not the reinstatement, Judge. The statute expressly—

"THE COURT: Judge Marshall has ruled, and I have ruled.

"MR. ROSSIELLO: Right. I'm not taking issue with that.

"THE COURT: Now, the next issue is what?

"MR. ROSSIELLO: May I explain, just start from the beginning, your Honor?

"THE COURT: No. That decides that issue. Now —"

After ruling on this issue, the court recommended referral of the action to Magistrate Balog for all pre-trial issues on March 7, 1989, and the case was transferred. On March 31, 1989, plaintiffs filed an "Application for Preliminary Injunction", seeking relief under 29 U.S.C. sections 215(a)(3) and 216(b). Plaintiffs' Application, p. 1. This court set a briefing schedule and referred the application to the...