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Poff v. Quick Pick, LLC

United States District Court, S.D. Indiana, Terre Haute Division

October 18, 2018

TIMOTHY M. POFF, Plaintiff,


          Hon. Jane Magnus-Stinson, Chief Judge

         A bench trial in this employment wage and retaliation case is scheduled for November 13, 2018 in Room 307, U.S. Courthouse, 46 E. Ohio Street, Indianapolis, Indiana 46204.[1] Following a status conference, the Court ordered the parties to submit trial briefs discussing the issues remaining for trial and the preclusive effect of the Court's earlier rulings involving Quick Pick, LLC. The parties have submitted their briefs, [Filing No. 93; Filing No. 94; Filing No. 95; Filing No. 96], and this entry sets forth the Court's determination as to the scope of the upcoming bench trial.


         Procedural History

          In brief, Mr. Poff filed his operative Amended Complaint in January 2016, alleging that his now-former employer underpaid his wages and then retaliated against him by firing him when he brought suit. Specifically, Mr. Poff sued both Quick Pick (his former employer) and Mr. Shaker (his former supervisor and the owner of Quick Pick) under the Fair Labor Standards Act (“FLSA”) and the Indiana Minimum Wage Law (“IMWL”), and sued Quick Pick under the Indiana Wage Payment Statute (“IWPS”). [Filing No. 6.]

         On October 26, 2016, the Court defaulted Quick Pick for failure to appear by counsel. [Filing No. 32.] On April 27, 2017, following a hearing at which both Mr. Shaker and Quick Pick appeared in person and by counsel, [see Filing No. 54], Judge Larry J. McKinney issued an Order granting Mr. Poff's motion for default judgment against Quick Pick in the amount of $18, 123.48. [Filing No. 57.] The Court subsequently entered final judgment as to Quick Pick, [Filing No. 60], and awarded Mr. Poff $15, 195 in attorney's fees and costs, [Filing No. 61]. Mr. Shaker has proceeded pro se since his counsel withdrew on August 7, 2017. [Filing No. 73.]

         All that remains in this case is the pending trial on Mr. Poff's allegations that Mr. Shaker should be held jointly and severally liable for the judgment entered against Quick Pick. The issue of the scope of this upcoming trial is now ripe for determination.



          As described in Mr. Poff's trial brief, four claims remain against Mr. Shaker: failure to pay minimum wages under the FLSA, retaliation under the FLSA, failure to pay minimum wages under the IWML, and failure to pay minimum wages under the IWPS. [Filing No. 93.] The Court first sets forth the elements of these claims before discussing Judge McKinney's earlier orders and their effect on the upcoming trial.

         A. Minimum Wage Claims

         Mr. Poff asserts related claims for underpayment of wages under the FLSA, IWML, and IWPS. To prevail under the FLSA, Mr. Poff must demonstrate that he was “employed in an enterprise engaged in commerce” and that his “employer” paid him less than $7.25 per hour. 29 U.S.C. § 206(a)(1)(C). The FLSA defines an “enterprise engaged in commerce, ” in relevant part, as “an enterprise whose annual gross volume of sales made or business done is not less than $500, 000 . . . .” Id. § 203(s)(1)(A)(ii). The FLSA further defines an “employer” to include “any person acting directly or indirectly in the interest of an employer in relation to an employee.” Id. § 203(d). Among other fact-specific situations, “[p]ersonal liability may arise from a significant ownership interest in the corporation coupled with operational control of significant aspects of the corporation's day-to-day functions.” Dole v. Simpson, 784 F.Supp. 538, 545 (S.D. Ind. 1991) (Tinder, J.) (citing Dole v. Elliott Travel & Tours, Inc., 942 F.2d 962, 966 (6th Cir. 1991)); see also Morgan v. SpeakEasy, LLC, 625 F.Supp.2d 632, 646 (N.D. Ill. 2007) (collecting cases).

         Similarly, the IMWL requires that “every employer employing at least two (2) employees during a work week shall . . . pay each of the employees in any work week . . . wages of not less than the minimum wage payable under the federal [FLSA].” Ind. Code § 22-2-2-4(h). However, the IWML does not apply when the FLSA minimum wage provision applies, as the statute defines an “employer” as “any individual, partnership, association, limited liability company, [or] corporation, ” excluding “any employer who is subject to the minimum wage provisions of the federal FLSA.” Id. § 22-2-2-3; cf. Wharton v. Furrer, 620 Fed.Appx. 546, 549 (7th Cir. 2015) (noting that evidence of operational control and ownership are “consistent with the activities of an individual employer” and are therefore relevant under the IWML); Meyers v. Meyers, 861 N.E.2d 704 (Ind. 2007) (holding that resolution of issue of whether individuals were co-employers of plaintiff required factual record).

         Finally, the IWPS provides: “Every person, firm, corporation, limited liability company, or association, their trustees, lessees, or receivers appointed by any court, doing business in Indiana, shall pay each employee at least semimonthly or biweekly, if requested, the amount due the employee.” Ind. Code § 22-2-5-1(a). “Every such person, firm, corporation, limited liability company, or association who shall fail to make payment of wages to any such employee as provided in section 1 of this chapter shall be liable to the employee for the amount of unpaid wages . . . .” Id. § 22-2-5-2. If the “person . . . that failed to pay the employee . . . was not acting in good ...

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