Kostecki v. Dominick's Finer Foods, Inc.

• Court: Illinois Supreme Court
• Writing for the Court: Erickson
• Citation: Kostecki v. Dominick's Finer Foods, Inc., 836 N.E.2d 837 (Ill. 2005)
• Decision Date: 28 September 2005
• Docket Number: No. 1-04-1624.,No. 1-04-2130.,1-04-1624.,1-04-2130.
• Parties: Rosella KOSTECKI, an Illinois Resident, on Behalf of Herself and All Others Similarly Situated, Plaintiff-Appellant, v. DOMINICK'S FINER FOODS, INC. OF ILLINOIS, an Illinois Corporation, Dominick's Finer Foods, Inc., a Delaware Corporation, and Safeway, Inc., a Delaware Corporation Doing Business as a Foreign Corporation in Illinois, Defendants-Appellees.

Page 837

836 N.E.2d 837

Rosella KOSTECKI, an Illinois Resident, on Behalf of Herself and All Others Similarly Situated, Plaintiff-Appellant, v. DOMINICK'S FINER FOODS, INC. OF ILLINOIS, an Illinois Corporation, Dominick's Finer Foods, Inc., a Delaware Corporation, and Safeway, Inc., a Delaware Corporation Doing Business as a Foreign Corporation in Illinois, Defendants-Appellees.

No. 1-04-1624.

No. 1-04-2130.

Appellate Court of Illinois, First District, Third Division.

September 28, 2005.

COPYRIGHT MATERIAL OMITTED

Barnow and Associates, P.C. (Ben Barnow, of counsel) and Law Office of Aron D. Robinson (Aron D. Robinson, of counsel), Chicago, for Appellant.

Vedder, Price, Kaufman & Kammholz, P.C., Chicago (Richard H. Schnadig, Thomas M. Wilde and Ethan G. Zelizer, of counsel), for Appellee.

Justice ERICKSON delivered the opinion of the court:

Plaintiff Rosella Kostecki, a member of a labor union, filed a class action complaint against defendants, Dominick's Finer Foods, Inc. of Illinois, her former employer, Dominick's Finer Foods, Inc., and Safeway, Inc., alleging they violated numerous state wage statutes by requiring employees to work "off the clock" without pay, by manipulating time-recording procedures, and by not timely paying employees or providing adequate breaks. Plaintiff appeals from the circuit court's grant of defendants' section 2-619 (735 ILCS 5/2-619 (West 2002)) motion to dismiss her complaint, contending the trial court erred in finding she was required to arbitrate her claims and that their resolution required interpretation of the agreement. Plaintiff also argues that (1) the trial court erred in denying her motion for leave to file a second-amended complaint, (2) the One Day Rest in Seven Act (820 ILCS 140/1 et seq. (West 2002)) provides for an implied private cause of action, (3) the trial court erred in striking her "Motion to Enforce the Unconditional Tender Offer of Settlement," and (4) the trial court should have ruled on her pending motion for class certification before dismissing her complaint. For the reasons that follow, we affirm.

BACKGROUND

Plaintiff was a member of the United Food and Commercial Workers International Union, Local 881 (the Union) and the terms of her employment were covered by a collective bargaining agreement. Article XVI of that agreement provides for how grievances, including those involving wages, shall be filed, pursued, and arbitrated, if necessary. On November 8, 2002, plaintiff, on behalf of herself and all others similarly situated, filed a two-count complaint in the chancery division of the circuit court of Cook County, alleging defendants, by requiring employees to work "off the clock," amounting to overtime without pay, violated the Minimum Wage Law (820 ILCS 105/1 et seq. (West 2002)) (Wage Law), which requires time-and-a-half pay for hours worked each week over 40. Plaintiff also alleged defendants violated the Illinois Wage Payment and Collection Act (820 ILCS 115/1 et seq. (West 2002)) (Wage Payment Act), which provides that employees must be paid in the next pay period, unless a collective bargaining agreement provides otherwise, by failing to timely pay overtime and other earnings.

On June 25, 2003, plaintiff filed an "Amended Class Action Complaint," realleging violations of the Wage Law and Wage Payment Act, and adding a third claim that defendants violated the One Day Rest in Seven Act (820 ILCS 140/1 et seq. (West 2002)) by requiring employees to work schedules that did not provide for 24 consecutive hours' rest in every calendar week, and by requiring employees to work without adequate breaks.

On August 15, 2003, defendants filed a motion pursuant to sections 2-619(a)(1) and 2-619(a)(9) of the Illinois Code of Civil Procedure (735 ILCS 5/2-619(a)(1), (a)(9) (West 2002)) to dismiss plaintiff's complaint, contending (1) plaintiff's claims are covered by the terms of a collective bargaining agreement, and therefore she must pursue the agreement's grievance and arbitration procedures before pursuing them in court, and that resolution of her claims would require interpretation of the agreement, (2) the One Day Rest in Seven Act does not provide individuals with a private cause of action, and (3) plaintiff's claims had been rendered moot by defendants' settlement offer.¹

The trial court, on March 5, 2004, granted defendants' motion to dismiss, finding (1) because her claims arose from the collective bargaining agreement, plaintiff was required to exhaust the remedies provided under the agreement, and (2) her claims were preempted because their resolution would require interpretation of the agreement. The court did not address defendants' mootness argument, as defendants, on January 28, 2004, withdrew this contention from their dismissal motion. The court also found it unnecessary to address whether the One Day Rest in Seven Act provided for a private cause of action "because all counts of the [p]laintiff's complaint must be dismissed for her failure to exhaust the remedies available under the collective bargaining agreement."

On April 5, 2004, plaintiff filed a motion to reconsider the dismissal order and for leave to file an amended complaint. Plaintiff's attached proposed second-amended complaint alleged that she had pursued a grievance pursuant to the provisions of the bargaining agreement, but was unsuccessful, and that defendants violated the federal Fair Labor Standards Act of 1938 (29 U.S.C. § 201 et seq. (2000)) (FLSA). The trial court, on May 5, 2004, denied the motion.

On June 3, 2004, plaintiff filed a "Motion to Enforce the Unconditional Tender Offer of Settlement," alleging that defendants, by letter dated August 7, 2003, made an unconditional tender offer of settlement to plaintiff, that plaintiff accepted the offer, and that defendants, by letter dated January 19, 2004, withdrew the accepted offer. Attached to the motion was the August 7 letter and numerous letters from January 2004.

On June 4, 2004, while the above motion to enforce was pending in the trial court, plaintiff filed a notice of appeal seeking review of (1) the court's March 5, 2004 dismissal order, and (2) the court's May 5, 2004 order denying her motion to reconsider and motion to amend.

On June 22, 2004, the court struck plaintiff's motion to enforce, finding "there is no case pendin[g] before [it]." On July 16, 2004, plaintiff filed a second notice of appeal seeking review of (1) the March 5, 2004 dismissal order, (2) the May 5, 2004 order denying her motion to reconsider and motion to amend, and (3) the June 22, 2004 order striking her motion to enforce the settlement offer.

On August 11, 2004, this court allowed plaintiff's motion to consolidate the two appeals.

ANALYSIS

We address plaintiff's contentions that (1) the trial court improperly granted defendants' motion to dismiss, (2) the trial court improperly denied her motion for leave to file a second-amended complaint, (3) the trial court improperly struck her motion to enforce, and (4) the trial court was required to rule on her pending motion for class certification prior to dismissing her complaint.

I

Plaintiff first contends that the trial court improperly dismissed her complaint because her wage statute claims may stand regardless of the existence of any collective bargaining agreement. Plaintiff also argues that she was not required to submit to the grievance and arbitration procedures of the agreement and that resolution of her claims will not require a court to interpret the agreement. She further contends the One Day Rest in Seven Act provides for an implied private cause of action.

Section 2-619 of the Code of Civil Procedure provides for the involuntary dismissal of a cause of action based on certain defects or defenses, including that the trial court lacks subject matter jurisdiction (735 ILCS 5/2-619(a)(1) (West 2002)) and that the action is barred by other affirmative matters which defeat the claim (735 ILCS 5/2-619(a)(9) (West 2002)). Borowiec v. Gateway 2000, Inc., 209 Ill.2d 376, 383, 283 Ill.Dec. 669, 808 N.E.2d 957 (2004) (Borowiec). In ruling on a section 2-619 motion to dismiss, "the trial court must interpret all pleadings and supporting documents in the light most favorable to the nonmoving party." Borowiec, 209 Ill.2d at 383, 283 Ill.Dec. 669, 808 N.E.2d 957. This court reviews de novo the trial court's grant of a motion to dismiss. See Borowiec, 209 Ill.2d at 383, 283 Ill.Dec. 669, 808 N.E.2d 957.

Plaintiff argues the trial court's dismissal was improper because her claims (1) arise from independent, nonwaivable statutory rights and not under the collective bargaining agreement, and (2) resolution of her claims would not require the court to interpret the bargaining agreement.

Federal labor policy provides that when resolution of a state law claim depends on an analysis of the terms of the agreement, the claim must either be arbitrated as required by the collective bargaining agreement or dismissed as preempted under section 301 of the Labor Management Relations Act (29 U.S.C. § 185(a) (2000)), which grants federal district courts exclusive jurisdiction over disputes involving collective bargaining agreements. Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 210-11, 105 S.Ct. 1904, 1911, 85 L.Ed.2d 206, 215 (1985); Gelb v. Air Con Refrigeration & Heating, Inc., 356 Ill.App.3d 686, 692, 292 Ill.Dec. 250, 826 N.E.2d 391 (2005) (Gelb). As noted in Gelb, if resolution of the state law claim depends on interpretation of the collective bargaining agreement, the claim is preempted. Gelb, 356 Ill.App.3d at 693, 292 Ill.Dec. 250, 826 N.E.2d 391.

However, reference to a collective bargaining agreement is not enough to preempt a state law claim. In re Bentz Metal Products Co., Inc., 253 F.3d 283, 285 (7th Cir.2001), citing Livadas v. Bradshaw, 512 U.S. 107, 114 S.Ct. 2068, 129 L.Ed.2d 93 (1994) (Livadas), and Lingle v. Norge Division of Magic Chef, Inc., 486 U.S. 399, 108...