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McClain v. Leona's Pizzeria, Inc.

McClain v. Leona's Pizzeria, Inc.

United States District Court for the Northern District of Illinois, Eastern Division

July 28, 2004, Decided ; July 30, 2004, Docketed

No. 04 C 1913

Opinion

 [*575] MEMORANDUM OPINION AND ORDER

Plaintiff Shamus McClain ("McClain"), individually and on behalf of a class of persons similarly situated, has sued Leona's Pizzeria, Inc. ("Leona's"), Leon Toia, and Salvatore Toia, alleging violations of the federal Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq.. McClain's suit also includes state-law claims based on the Illinois Minimum Wage Law ("IMWL"), 820 ILCS 105/1 et seq., the Illinois Wage Payment and Collection Act ("IWPCA"), 820 ILCS 115/1 et seq., and common law conversion. McClain now moves for class certification of his IMWL, IWPCA, and conversion claims under [**2]  Federal Rule of Civil Procedure 23. (R. 11-1.) For the following reasons, the Court denies the motion.

RELEVANT FACTS

Leona's operates approximately seventeen restaurants in the Chicago area. Leon Toia is Leona's president and Salvatore Toia is Leona's secretary. They are both shareholders. McClain worked at Leona's as a tipped  [*576]  employee. 1 [**3]  McClain asserts that two of Leona's wage policies violate federal and state labor laws. First, McClain states that Leona's deducts three percent of every customer tip paid with a credit card, but nonetheless wrongfully takes the maximum tip credit allowed under section 203(m) of the FLSA. 2 Second, he states that Leona's automatically deducts forty-five cents per hour from every employee's paycheck because it allows employees to consume certain foods and drinks provided by Leona's during work hours. McClain asserts that this automatic deduction causes Leona's employees to receive an hourly wage below the amount dictated by federal and state law.

This Court already authorized McClain to notify all Leona's employees with potential claims that he is pursuing an FLSA collective action. (R. 14.) ] Under the FLSA, these employees must opt in to the collective action by filing written consent. 29 U.S.C. § 216(b). McClain now asks this Court to certify a class consisting of all current and former tipped employees of Leona's for his three state-law claims. ] Under Federal Rule of Civil Procedure 23, employees must opt out of a class action by filing written consent.

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222 F.R.D. 574 *; 2004 U.S. Dist. LEXIS 14779 **; 9 Wage & Hour Cas. 2d (BNA) 1532

SHAMUS McCLAIN, individually and on behalf of a class of persons similarly situated, Plaintiff, v. LEONA'S PIZZERIA, INC., LEON TOIA, and SALVATORE TOIA, Defendants.

Disposition:  [**1]  Plaintiff's motion for class certification denied.

CORE TERMS

class certification, employees, state-law, collective action, opt-in, federal court, class action, opt-out, parties, state claims, certify, argues, opt

Labor & Employment Law, Employment Relationships, At Will Employment, Definition of Employees, Wage & Hour Laws, Scope & Definitions, General Overview, Civil Procedure, Class Actions, Prerequisites for Class Action, Notice of Class Action, Content of Notice, Opt Out Provisions, Special Proceedings, Certification of Classes, Judicial Discretion, Predominance, Remedies, Class Actions, Private Suits, Subject Matter Jurisdiction, Supplemental Jurisdiction, Parties, Joinder of Parties, Pleading & Practice, Joinder of Claims & Remedies, Joinder of Claims, Governments, Legislation, Statute of Limitations