United States District Court, S.D. Indiana, Terre Haute Division
TIMOTHY M. POFF, Plaintiff,
QUICK PICK, LLC, and AHMED SHAKER, Defendants.
ORDER ON MOTION TO DISMISS
JANE MAGNUS-STINSON, CHIEF JUDGE UNITED STATES DISTRICT COURT
matter is before the Court on Defendant Ahmed Shaker's
Motion to Dismiss the allegations against him in Plaintiff
Timothy Poff's Amended Complaint. 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.
facts in this matter are not in dispute. 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,
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.
STANDARD OF REVIEW
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.
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).
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
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 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-712-JMS-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
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 employer that violated Poff's
FLSA rights. Accordingly, Shaker's Motion to Dismiss is
foregoing reasons, Defendant Ahmed Shaker's Motion to