Gatreaux v. DKW Enters., LLC

• Decision Date: 22 September 2011
• Docket Number: No. 1–10–3482.,1–10–3482.
• Citation: 354 Ill.Dec. 892,2011 IL App (1st) 103482,958 N.E.2d 1088
• Parties: Burnell GATREAUX, Timothy Range and Frank Selby, Individually, and on Behalf of All Others Similarly Situated, Plaintiffs–Appellants, v. DKW ENTERPRISES, LLC, KDW Enterprises, LLC, KDW Western, LLC, MRA Restaurant, Darrell Winbush and Katina Winbush, Defendants–Appellees.
• Court: United States Appellate Court of Illinois

2011 IL App (1st) 103482

354 Ill.Dec. 892

958 N.E.2d 1088

Burnell GATREAUX, Timothy Range and Frank Selby, Individually, and on Behalf of All Others Similarly Situated, Plaintiffs–Appellants,

v.DKW ENTERPRISES, LLC, KDW Enterprises, LLC, KDW Western, LLC, MRA Restaurant, Darrell Winbush and Katina Winbush, Defendants–Appellees.

No. 1–10–3482.

Appellate Court of Illinois, First District, Fourth Division.

Sept. 22, 2011.

Ryan F. Stephan, Stephen Zouras, LLP, Joseph J. Siprut, Siprut PC, Chicago, for Appellants.

Rena M. Honorow, Marc D. Sherman, Marc D. Sherman & Associates, P.C., Lincolnwood, for Appellees.

OPINION

Justice FITZGERALD SMITH delivered the judgment of the court, with opinion.

[354 Ill.Dec. 893] ¶ 1 The plaintiffs, Burnell Gatreaux, Timothy Range and Frank Selby, individually and on behalf of all others similarly situated, filed a class action complaint against the defendants, DKW Enterprises, LLC, KDW Enterprises LLC, KDW Western LLC, MRA Restaurants, Darrell Winbush and Katina Winbush, alleging numerous violations of the Illinois Minimum Wage Law (820 ILCS 105/1 et seq. (West 2006)) and the Illinois Wage Payment and Collection Act (820 ILCS 115/1 et seq. (West 2006)). Before the plaintiffs filed a motion for class certification, the defendants made a tender to each of the three named plaintiffs of “all amounts allegedly due to each such plaintiff.” After the plaintiffs rejected this offer, the defendants filed a motion to dismiss pursuant to sections 2–615 and 2–619 of the Code of Civil Procedure (Code) (735 ILCS 5/2–615, 2–619, 2–619.1 (West 2006)) contending that the plaintiffs' cause of action was moot as a result of the defendants' tender. The circuit court agreed and granted the defendants' motion to dismiss. The plaintiffs now appeal, contending that the trial court erred in finding that the cause was moot. For the reasons set forth below, we affirm the judgment of the circuit court.

¶ 2 I. BACKGROUND

¶ 3 The plaintiffs filed their initial class action complaint pursuant to sections 2–801 and 2–802 of the Code of Civil Procedure (Code) (735 ILCS 5/2–801, 2–802 (West 2006)) on March 28, 2008.¹ According to that complaint, each of the named plaintiffs is a former cashier, cook or other hourly-paid employee of one of several Chicago-based McDonald's franchises owned and operated by the defendants. The complaint sought the certification of a class of individuals employed by the defendants as hourly nonexempt wage employees, who worked regular or overtime hours but did not receive the proper pay. The complaint further alleged that the defendants violated the Illinois Minimum Wage Law ( 820 ILCS 105/1 et seq. (West 2006)) and the Illinois Wage Payment and Collection Act ( 820 ILCS 115/1 et seq. (West 2006)) by: (1) failing to pay their employees the applicable minimum wage; (2) failing to pay overtime; (3) wrongfully deducting sums from employee paychecks to pay for the employees' uniforms; and (4) failing to preserve time entry and payroll records as required by law, and instead manipulating the plaintiffs' time records by making deductions for break-times not taken and “shaving” time actually worked by the employees. For relief, the complaint sought “judgment against the defendants and in favor of the plaintiffs and all others similarly situated for a sum that will properly, adequately and completely compensate plaintiffs for the nature, extent and duration of their damages [and] the cost of this action” including: (1) a declaration that the defendants willfully violated the Illinois Minimum Wage Law and the Illinois Wage Payment and Collection Act by failing to pay minimum and overtime wages to the plaintiffs and the putative class; (2) an award of compensatory damages, including all regular and overtime pay owed “in an amount according to proof,” plus interest on all regular and overtime compensation due accruing from the date such amounts were due; (3) an award of all costs and reasonable attorney fees incurred prosecuting this claim; and (4) “any further relief as the court deems just and equitable.”

¶ 4 On May 2, 2008, the plaintiffs initiated written discovery and served document requests and interrogatories on the defendants. The defendants requested and the plaintiffs agreed that they stay discovery in order to discuss a settlement. The parties unsuccessfully mediated the dispute in November 2008. After no settlement was reached, the parties proceeded with discovery, and the defendants responded to the interrogatories on March 2, 2009 and to the document requests on March 11, 2009. The plaintiffs immediately requested deposition dates for each of the defendants, but the defendants would not schedule the depositions until July 30 and 31, 2009.²

¶ 5 Instead, prior to the scheduled depositions, on July 26, 2009, the defendants sent a letter to the plaintiffs for the purpose of making a tender for settlement. In that letter, the defendants proposed the following:

“1. Defendants will provide all amounts allegedly due to each such plaintiff for work time due or unpaid pursuant to the allegations set forth in the amended complaint, at such plaintiff's hourly wage rate at such time(s) (or at such higher hourly wage rate as required by the Illinois Minimum Wage Law at such time(s)), in accordance with the Illinois Minimum Wage Law and the Illinois Wage Payment and Collection Act. 2. Defendants will provide all amounts allegedly due for wages for overtime alleged to have been worked by each such plaintiff and for which payment was not made at the overtime rate of one and one-half times the hourly rate applicable at that time in accordance with the Illinois Minimum Wage Law and the Illinois Wage Payment and Collection Act and will also provide all amounts allegedly due for wages for overtime alleged to have been worked by each such plaintiff and for which payment was made in an amount less than the legal overtime rate applicable at that time in, accordance with the Illinois Minimum Wage Law and the Illinois Wage Payment and Collection Act.

3. Defendants will provide all amounts allegedly due for deductions from each such plaintiff's wages that were made, as alleged, in violation of the Illinois Minimum Wage Law and the Illinois Wage Payment and Collection Act and in addition in any instance in which such deduction(s) caused such plaintiff's hourly rate of pay to fall below the minimum wage applicable for the pay period, then defendants will also provide the amount of such underpayment.

4. Defendants will award each plaintiff an amount equal to 2% of any such underpayment(s) for each month following the date of payment during which such underpayments remain unpaid.

5. Defendants will award each plaintiff an amount for prejudgment interest in accordance with the applicable statutory rate as applied to the wage amounts.

6. Defendants will pay costs incurred by the plaintiffs in this civil action and will also pay reasonable attorney's fees as may be allowed by the court in regard to the plaintiff's pursuit of their claims in this civil action.”

The letter further advised that the defendants believed that this tender provided “full monetary relief” for the claims alleged in the plaintiffs' amended complaint and instructed the plaintiffs to contact the defendants' attorney to “arrange to identify the specific amounts” for each plaintiff so that the parties could “advise the court and accomplish a mechanism for determination of the attorney's fee portion.”

¶ 6 On August 3, the plaintiffs rejected the tender.³ Two days later, on August 5, 2009, the defendants filed a motion to dismiss the plaintiffs' class action, pursuant to section 2–619.1 of the Code ( 735 ILCS 5/2–619.1 (West 2006)), contending that the action was moot since there was no actual case or controversy between the plaintiffs and the defendants as the individual plaintiffs were offered “full relief” by the defendants prior to obtaining a certification of their class. On August 11, 2009, the plaintiffs filed a motion for class certification.⁴

[354 Ill.Dec. 896] ¶ 7 The parties were given an opportunity to brief the defendants' motion to dismiss. The plaintiffs nowhere in either their response to the defendants' motion to dismiss or their supplemental response argued that the defendants failed to make a full and proper tender. On October 20, 2010, the circuit court held a hearing on the defendants' motion. During that hearing, the circuit court first made a note of the sequence of events leading up to the motion to dismiss, finding that on July 26, 2009, there was “a full tender of relief to the named representatives,” which was rejected by the plaintiffs on August 3, 2009. With respect to the tender of relief, the court specifically noted that neither party “is contesting * * * nobody argued that it wasn't ‘full relief.’ ” The circuit court then invited the parties to make any additional arguments they had not made in their briefs. The plaintiffs, however, again offered no argument regarding the sufficiency of the settlement tender.

¶ 8 After hearing the arguments of the parties, the circuit court concluded that the plaintiffs' cause of action was moot. In doing so, the circuit court noted that “[w]hen a motion for class certification is filed after the defendant makes tender to the named plaintiff, the question becomes whether under the circumstances the plaintiff exercised the required reasonable diligence in pursuing his class action claim.” The circuit court concluded that tender had occurred here and that the plaintiffs did not meet the “reasonable diligence” standard. The circuit court specifically found that even though “nothing prevented an earlier filing of the motion,” no motion for class certification was filed in this case “for almost 17 months after the case was filed.” Accordingly, the circuit court held the case moot and dismissed it pursuant to section 2–619.1 of the Code (735 ILCS 5/2–619.1 (West 2006)...