CI-9329643 v3 

IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

MAURICE BROWN, KENITH RODGERS, 

KEITH RODGERS, KAYWAN PALMER, 

and BYRON JACKSON, on behalf of 

themselves and all others similarly situated, 

Plaintiffs, 

v. 

CLUB ASSIST ROAD SERVICE U.S., 

INC., 

Defendant. 

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No. 12-cv-5710 

Hon. Robert M. Dow Jr. 

MEMORANDUM IN SUPPORT OF MOTION TO DISMISS 

AND/OR STRIKE AMENDED COMPLAINT

 

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CI-9329643 v3 

Defendant Club Assist Road Service U.S., Inc. (“Club Assist”), by its undersigned 

attorneys and pursuant to Rules 12(b)(1), (6), and (7), 12(f) and 19(a) of the Federal Rules of 

Civil Procedure, respectfully submits this memorandum in support of its motion to dismiss 

and/or strike the amended complaint (“Complaint”) filed by Maurice Brown, Kenith Rodgers, 

Keith Rodgers, Kaywan Palmer, and Byron Jackson (“Plaintiffs”). 

INTRODUCTION

The Complaint should be dismissed because the allegations and attachments preclude a 

claim for relief against Club Assist. While Plaintiffs purport to assert wage claims against Club 

Assist under the FLSA, IMWL, and IWPCA, they make allegations and attach documents to 

their Complaint that confirm Club Assist was not their respective employer. Specifically, 

Plaintiffs concede that: (1) they are employees of service delivery companies (“SDCs”), separate 

and distinct corporate entities, which entered into contracts with Club Assist to provide roadside 

services, and (2) they “did not enter any agreement with Club Assist on their own behalf, and are 

not bound by the terms [of the contracts between the SDCs and Club Assist]”). To the extent 

that Plaintiffs seek to assert a wage claim against their employer, they have named the wrong 

defendants. 

Plaintiffs’ Complaint should be dismissed because: (1) Plaintiffs do not have standing to 

sue Club Assist; (2) Plaintiffs fail to state a claim for which relief can be granted; and (3) 

Plaintiffs fail to join the SDCs, which are necessary and indispensible parties. 

PLAINTIFFS’ ALLEGATIONS IN THE COMPLAINT

Club Assist contracts with local businesses to provide roadside assistance and services to 

AAA members. DKT 26; Ex. A and B thereto. Beginning in 2009, Club Assist contracted with 

2Browns LLC to provide such services. Id. at Ex. A. Club Assist and 2Browns LLC renewed 

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their agreement in July 2011. DKT 26 ¶ 32; Ex. B thereto. 2Browns LLC is an Illinois limited 

liability company. DKT 26, Ex. B. 

Plaintiff Maurice Brown was employed by 2Browns LLC. DKT 26, Ex. B at 59. He was 

not employed by Club Assist. Id. 

Plaintiffs claim that they created separate and distinct businesses (the “SDCs”) that 

entered into agreements with Club Assist “in substantially the same form as the agreement” 

attached as exhibit A to the complaint (hereafter the “Agreements”). DKT 26 at ¶¶ 28-35, 40-44. 

Plaintiffs did not enter into the Agreements (or any agreement) with Club Assist and have 

no rights or obligations under them. See DKT 26 at ¶¶ 61, 117. In fact, Plaintiffs disavow any 

personal obligations under the Agreements. Id. Specifically, Plaintiffs allege that the “contracts 

attached provide no rights to plaintiffs and fail to state the amount of plaintiffs’ compensation.” 

Id. They also allege that “Plaintiffs did not enter any agreement with Club Assist on their own 

behalf, and are not bound by the terms described in paragraph 113 [of the Complaint.]” Id.

ARGUMENT

A. The Court Should Dismiss the Complaint Pursuant to Rule 12(b)(1) Because 

Plaintiffs Lack Standing 

It is plaintiffs’ burden to establish the required elements of standing. Lujan v. Defenders 

of Wildlife, 504 U.S. 555, 559-61 (1992). See also United Phosphorus, Ltd. v. Angus Chem. Co., 

322 F.3d 942, 946 (7th Cir. 2003). Plaintiffs must establish three elements to satisfy the standing 

requirement: (1) they must have suffered an “injury-in-fact;” (2) there must be a causal 

connection between the injury and the conduct forming the basis of the lawsuit — that is, the 

injury has to be traceable to the defendant and not the result of the conduct of a third person not a 

party to the action before the court; and (3) it must be likely that the injury will be redressed 

through a favorable decision by the court. See Lujan, 504 U.S. at 559-61. 

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Plaintiffs’ Complaint does not satisfy the second requirement under the Lujan test. 

Plaintiffs’ alleged “injury” is that they are owed unpaid wages. DKT. 26 at pp. 17-20. They 

admit, however, that the SDCs were their employers and that they were not personally bound by 

any Agreements with Club Assist. DKT. 26 at ¶¶ 61, 117, Ex. B at 59. Based on their own 

allegations and attachments, Plaintiffs’ alleged injury is not traceable to Club Assist. If such 

injury exists, it is the result of conduct of a third person not a party to the action, i.e. the SDCs. 

Club Assist entered into Agreements with the SDCs. DKT 26, Ex. B.1

 Those 

Agreements are silent on what, when, where and how the Plaintiffs are paid or the hours they 

must work, which is at the heart of Plaintiffs’ claims against Club Assist. The SDCs determined 

what, when, where and how the Plaintiffs were paid, the Plaintiffs’ schedule, and the number of 

hours each Plaintiff had to work. The Plaintiffs’ alleged injuries, therefore, are attributable to the 

conduct of the SDCs (i.e. third parties) – not Club Assist. Article III does not allow the Court to 

ignore the contracts that connect Plaintiffs’ injuries to the conduct of the SDCs, and the facts 

contained therein destroy Plaintiffs’ standing and the Court’s subject matter jurisdiction. 

Plaintiffs’ request for the rescission of the Agreements creates other standing issues. See 

DKT 26 at pp. 18 ¶ B, 20 ¶ B, 22 ¶ B, 24 ¶ B. A nonparty to a contract generally does not have 

standing to challenge the legality of the contract. Seymour v. Hug, 485 F.3d 926, 929 (7th Cir. 

2007)(holding that party’s attorney lacked standing to challenge the validity of a settlement 

agreement where the attorney was not a party to that agreement, even though the agreement 

resulted in a reduction of her recoverable fees); see also Marcap Corp. v. National Medical 

Imaging of Reisterstown, 2007 WL 2461668, *1 (N.D. Ill. Aug. 27, 2007)(granting motion to 

dismiss one defendant’s counterclaim for breach of contract because “as a nonparty to the 

 

1

 Moreover, Plaintiffs allege that the Agreements do not apply to them. DKT 26 at ¶¶ 61, 117. 

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agreements at issue ...he plainly lacks standing...”); Smithkline Beecham Corp. v. Pentech 

Pharmaceuticals, Inc., 261 F.Supp.2d 1002, 1006 (N.D. Ill. 2003). 

Thus, pursuant to Rule 12(b)(1), this Court should dismiss the Complaint in its entirety 

and with prejudice. 

B. The Court Should Dismiss the Complaint Pursuant to Rule 12(b)(6) because 

Plaintiffs Fail to State a Claim upon Which Relief can be Granted 

“A motion under Rule 12(b)(6) challenges the sufficiency of the complaint to state a 

claim upon which relief may be granted.” Houlihan v. Fraternal Order of Police of Chicago 

Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009). A court must accept only well-pleaded factual 

allegations as true; conclusory allegations are disregarded. Sprint Spectrum, L.P. v. City of 

Carmel, Ind., 361 F.3d 998, 1001 (7th Cir. 2004). “Where the well-settled pleaded facts do not 

permit the court to infer more than the mere possibility of misconduct, the complaint has alleged 

– but it has not ‘show[n]’ – ‘that the pleader is entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 

662, 679 (2009). A “court should not accept as adequate abstract recitations of the elements of a 

cause of action or conclusory legal statements.” Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 

2009). The allegations in the complaint “must plausibly suggest that the plaintiff has a right to 

relief, raising that possibility above a ‘speculative level;’ if they do not, the plaintiff pleads itself 

out of court.” E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007). 

Moreover, the Court must treat the contracts attached to Plaintiffs’ Complaint as a part of 

the pleading for all purposes. See Fed. R. Civ. P. 10(c). “[W]hen a written instrument 

contradicts allegations in a complaint to which it is attached, the exhibit trumps the allegations.” 

Thompson v. Illinois Dep’t of Prof’l Regulation, 300 F. 3d 750, 754 (7th Cir. 2002) (emphasis in 

original). “The fact remains that where a plaintiff attaches documents and relies upon the 

documents to form a basis for a claim or part of a claim, dismissal is appropriate if the document 

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negates the claim.” Id. See also Jefferson v. Ambroz, 90 F. 3d 1291, 1296) (“[i]f a plaintiff 

chooses to plead particulars, and they show he has no claim, then he is out of luck – he has 

pleaded himself out of court”). Indeed, a plaintiff may plead himself out of court by attaching 

documents to the complaint that show that he or she is not entitled to judgment. Thompson, 300 

F. 3d at 753-54. 

1. Plaintiffs Fail to State a Claim for Relief under the IWPCA 

The Illinois Wage Payment and Collection Act (“IWPCA”) requires that a claim for 

compensation be based on a “contract or agreement” between an employer and an employee. 

See 820 ILCS §115/2 (defining “wages” as “any compensation owed an employee by an 

employer pursuant to an employment contract or agreement between the 2 parties, whether the 

amount is determined on a time, task, piece or any other basis of calculation”). Plaintiffs have 

pled the existence of contracts – for example the Club Assist/2Browns LLC Agreements -- and 

have attached them to their Complaint. DKT 26 at ¶¶ 30-32, and Ex. A and B thereto. Plaintiffs, 

however, admit that they are not parties to those Agreements, and this fact is fatal to their 

IWPCA claim. DKT 26 at ¶¶ 61, 117, and Ex. A and B thereto. Moreover, Plaintiffs expressly 

disavow any personal rights under the Agreements by alleging that the “contracts attached 

provide no rights to plaintiff and fail to state the amount of plaintiffs’ compensation.” Id. at ¶ 61, 

and Ex. A and B thereto. 

Unlike the FLSA and IMWL, the IWPCA does not establish a substantive right to 

overtime pay or any other kind of wage. See DeMarco v. Northwestern Memorial Healthcare, 

No. 10 C 397, 2011 WL 3510896 at *6 (N.D. Ill. Aug. 10, 2011) (citing Lopez v. Smurfit-Stone 

Container Corp., No. 02 C 7347, 2003 WL 297533, at *3 (N.D. Ill. Feb 10, 2003) (“The IWPCA 

[does] not create . . . entitlement to overtime wages.”) In fact, the Seventh Circuit has stated that 

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the IWPCA merely requires ‘that the employer honor his contract.’”) (quoting National 

Metalcrafters v. McNeil, 784 F.2d 817, 824 (7th Cir. 1986)). The IWPCA “mandates overtime 

pay (or any other kind of wage) only to the extent the parties’ contract or agreement requires 

such pay.” DeMarco, 2011 WL 3510896 at *6. Plaintiffs allege that the attached contracts do 

not provide them with any rights. DKT 26 at ¶ 61. In fact, Plaintiffs plead that they have not 

entered into any agreement with Club Assist on their own behalf and are not bound by the terms 

of the attached contracts. Id. at ¶ 117. Because they fail to plead the existence of an agreement 

between themselves and Club Assist, Plaintiffs’ IWPCA claim fails. 

Plaintiffs have pled themselves out of court with respect to their claim against Club 

Assist under the IWPCA and, accordingly, this Court should dismiss Count III. 

2. Plaintiffs Fail to State a Claim for Relief under the FLSA or IMWL 

In Counts I and II, Plaintiffs assert claims for overtime and minimum wage under 

Sections 206 and 207 of the Fair Labor Standards Act (“FLSA”) and under the Illinois Minimum 

Wage Law (“IMWL”), respectively. Their claims, however, are either (1) plainly contradicted 

by the contracts they attach to the Complaint and their own allegations, or (2) insufficient to state 

a claim under Twombly and its progeny. 

A violation of FLSA Section 206(a) occurs when an employee is paid at a rate below the 

minimum wage rate. Hensley v. MacMillian Bloedel Containers, Inc., 786 F. 2d 353, 357 (8th 

Cir. 1986); 29 U.S.C. § 206(a). A violation of FLSA Section 207(a) occurs when employers fail 

to pay overtime to employees who work more than 40 hours per week. 29 U.S.C. § 207(a). A 

court should dismiss an FLSA claim when a plaintiff fails to allege when he worked over 40 

hours in a week and how many overtime hours he worked without compensation. See Wilson v. 

Pioneer Concepts, Inc., No. 11-cv-2353, 2011 WL 3950892, at *3 (N.D. Ill. Sept. 1, 2011). 

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The same general analysis applies to Plaintiffs’ claims under the FLSA and IMWL. 

Condo v. Sysco Corp., 1 F.3d 599, 601 n.3 (7th Cir. 1993). See also Bjornson v. Daido Metal 

U.S.A., Inc., 12 F. Supp. 2d 837, 843 (N.D. Ill. 1998); Haynes v. Tru-Green Corp., 154 Ill. App. 

3d 967, 977, 507 N.E.2d 945, 950-951 (Ill. App. 4th Dist. 1987); Knapp v. City of Markham, No. 

10-cv-3450, 2011 WL 3489788, *8 (N.D. Ill. Aug. 9, 2011). Similar to the FLSA analysis, a 

court should dismiss an IMWL claim if the plaintiff does not allege sufficient facts to 

demonstrate how an employer’s payment method resulted in a violation of the IMWL. See 

Franks v. MKM Oil, Inc., No. 10-cv-13, 2010 WL 3613983, *5 (N.D. Ill. Sept. 8, 2010). 

Plaintiffs allege that they did not enter into the Agreements with Club Assist and have no 

rights or obligations under those Agreements. See DKT 26 at ¶¶ 61, 117. After alleging that 

they are not bound by the Agreements, Plaintiffs then allege that “[a]s set out in the contracts 

attached as exhibits and incorporated into this complaint, Club Assist controls at all times the 

manner in which plaintiffs perform their work.” Id. at ¶ 69. Plaintiffs list numerous duties owed 

by the SDCs to Club Assist. In direct contravention of their other allegations and the clear 

language in the Agreements, Plaintiffs allege that they personally owed those obligations to Club 

Assist. See id. at ¶¶ 70-110. The attachments to the Complaint, however, explicitly state that 

each and every one of those duties was owed by the SDCs to Club Assist; not from the individual 

Plaintiffs to Club Assist. See DKT 26, Ex. B at Sections 4-10. The SDCs determined what, 

when, and how the Plaintiffs were paid, the Plaintiffs’ schedule, and the number of hours each 

Plaintiff had to work. 

For example, Plaintiffs’ allegation that “Club Assist expects Plaintiffs to be on call for 

17.5 hour shifts, seven days a week” (DKT 26 at ¶ 54) is directly contradicted by the Agreements 

they attached to their Complaint and their own allegations. See DKT 26, Ex. B at §§ 4.1, 5.1. 

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The Agreements contain no mention of Plaintiffs performing any work – much less the hours of 

their work. DKT 26, Ex. B. That is consistent with Plaintiffs’ allegation that they were not 

personally bound by the terms of the Agreements. See DKT 26 at ¶¶ 61, 117. 

A plaintiff may plead himself out of court by attaching documents to the complaint that 

show that he or she is not entitled to judgment. Thompson, 300 F. 3d at 754. Since this Court 

cannot ignore the contracts that Plaintiffs attach to their Complaint and their own allegations that 

they are not bound by those contracts, the Court must dismiss Count I of the Complaint with 

prejudice pursuant to Rule 12(b)(6). 

In relation to their IMWL claim, Plaintiffs allege without support that “[a]fter deductions 

purportedly authorized by the contracts, Club Assist paid or pays plaintiffs an amount that is less 

than the minimum wage” and “all of the plaintiffs still typically work or worked 85 hours per 

week.” DKT 26 at ¶¶ 56, 59. Plaintiffs fail to allege when their wages fell below minimum 

wage or how deductions applicable to the SDCs (not Plaintiffs) resulted in them being paid 

below minimum wage. Plaintiffs seem to allege that the contracts attached to their Complaint 

provide a basis for Club Assist to take expenses and other charges out of Plaintiffs’ 

compensation, but the Complaint does not allege how this occurs. This is a problem, not only 

because it fails to pass muster under Twombly (as discussed below), but more basically because it 

fails to explain the contradicting requirements set forth in the Complaint’s exhibits which 

provide that the alleged deductions only affect the SDCs. See DKT 26, Ex. B at § 14. 

Importantly and despite Plaintiffs’ vacillating allegations, the SDCs and Plaintiffs are not the 

same and do not have the same rights and obligations. Consequently, this Court should dismiss 

Counts I and II with prejudice. 

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Even if this Court determines the exhibits do not trump the allegations, Plaintiffs’ 

threadbare allegations are insufficient to state claims under the FLSA. For alleged violations of 

FLSA Section 206(a), Plaintiffs conclusively state: “[a]fter deductions purportedly authorized by 

the contracts, Club Assist paid or pays plaintiffs an amount that is less than the minimum wage.” 

DKT 26 at ¶ 59.2

 For alleged violations of FLSA Section 207(a), Plaintiff summarily concludes 

that “all of the plaintiffs still typically work or worked 85 hours per week” and that “Club Assist 

pays no overtime although plaintiffs work more than 85 hours per week.” Id. ¶¶ 56, 60.3

 Both of 

those allegations are premised upon nothing – they simply sit suspended over thin air without 

any facts pled to support them. For example, though Plaintiffs allege they worked over 40 hours 

in a week, they do not allege how many overtime hours they worked in a given week without 

compensation or when their compensation fell below minimum wage. See Wilson v. Pioneer 

Concepts, Inc., No. 11-cv-2353, 2011 WL 3950892, at *3 (N.D. Ill. Sept. 1, 2011) (collecting 

cases and dismissing FLSA action for failure to plead when plaintiff worked over 40 hours in a 

week or how many overtime hours plaintiff worked without compensation); see also Butler v. 

East Lake Mgmt. Group, Inc., No. 10-cv-6652, 2012 WL 2115518, *5 (N.D. Ill. June 11, 2012); 

Robertson v. Steamgard, No. 11-cv-8571, 2012 WL 1232090, *1 (N.D. Ill. April 12, 2012). 

Indeed, it is insufficient to state a claim under the FLSA by simply pleading that Plaintiffs are 

employees of Club Assist, that they worked an unidentified amount of time without minimum 

wage, and that they worked an unspecified amount of time over 40 hours per week. See Wilson, 

2011 WL 390892 at *3. 

 

2

 Of course, that allegation is contradicted by the terms of the Agreements. Under the Agreements, Club 

Assist does not pay any amount to Plaintiffs. Rather, Club Assist’s obligation for payment is to the SDCs. DKT 26, 

Ex. B at § 14. 

3

 In the original complaint, Plaintiff Maurice Brown alleged that he “typically” worked over 100 hours per 

week. DKT 1 at ¶ 39. 

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The Complaint does not include allegations sufficient to survive a motion to dismiss 

under 12(b)(6). See Wilson, 2011 WL 3950892, at *2-3. In Wilson, the complaint was dismissed 

under Rule 12(b)(6) for failure to sufficiently allege an FLSA claim. Id. The Wilson plaintiff 

did not allege when she worked hours for which she was not properly compensated or “how 

many overtime hours she worked without proper compensation.” Id. at *2. While the Wilson

plaintiff alleged that defendant’s actions were “deliberate, voluntary, intentional, and willful” 

and “were not based upon good faith or reasonable grounds,” the Court found that such vague 

allegations were deficient because they amounted to “nothing more than conclusory recitals of a 

cause of action.” Id. at *3. Accordingly, explaining that such allegations were “insufficient,” the 

Court granted the defendant’s motion to dismiss. Id.; see also Butler, 2012 WL 2115518 at *5 

(granting motion to dismiss FLSA claim where plaintiff alleged that he “frequently... work[ed] 

overtime hours in excess of forty hours in a work week,” but the defendant “did not compensate 

him for all the overtime worked on call.”); Robertson, 2012 WL 1232090 at *1. 

Plaintiffs’ Complaint suffers from the same deficiencies. Like the plaintiff in Wilson, 

Plaintiffs do not allege when or how many hours they worked without proper compensation. 

DKT 26 in its entirety. Likewise, Plaintiffs’ allegation that Club Assist’s conduct was “willful” 

is nothing more than a single conclusory recital of the same: “[b]y the acts set forth above and by 

the oppressive and one-sided nature of the contracts attached, Club Assist has acted in willful 

violation of the FLSA provisions for minimum wage and overtime.” Id. at ¶ 153. Accordingly, 

this Court should dismiss Counts I and II. 

3. Plaintiffs Fail to State a Claim for Relief under ERISA 

In Count IV of the Complaint, Plaintiffs contend that Club Assist violated the Employee 

Retirement Income Security Act of 1974, as amended (“ERISA”), by wrongfully denying them 

the right to participate in the various welfare benefit plans that Club Assist maintains for its 

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eligible employees (collectively, the “Plan”). DKT 26 at ¶ 179. Plaintiffs seek a declaration 

under ERISA § 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B) that they are entitled to benefits due 

under the Plan and to participate in the Plan in the future. DKT 26 at p. 24 ¶ C.4 However, 

Plaintiffs fail to allege facts sufficient to constitute a cause of action under ERISA § 502(a)(1)(B) 

because the Complaint makes no mention of Plaintiff pursuing, much less exhausting, the Plan’s 

administrative remedies before filing suit, as is required in this Circuit. Zhou v. Guardian Life 

Ins. Co. of Am., 295 F.3d 677, 679 (7th Cir. 2002). 

Plaintiffs’ claims in Count IV of the Complaint should be dismissed pursuant to Rule 

12(b)(6), because Plaintiffs fail to plead that they exhausted their administrative remedies under 

the Plan prior to filing suit. Count IV of Plaintiffs’ Complaint seeks to “recover from Club 

Assist all benefits due to [plaintiffs] under the various welfare benefit plans maintained by Club 

Assist....” DKT 26 at ¶ 180. To recover benefits under ERISA § 502(a)(1)(B), 29 U.S.C. § 

1132(a)(1)(B), Plaintiffs must establish that they have “satisfied the conditions necessary for 

benefits under the plan.” Tolle v. Carroll Touch, Inc., 977 F.2d 1129, 1133 (7th Cir. 1992). The 

Seventh Circuit has held that exhaustion of administrative appeals is one such condition; thus, 

“[a]s a prerequisite for filing suit, an ERISA plaintiff must exhaust his internal administrative 

remedies.” Zhou, 295 F.3d at 679 (noting that this requirement furthers the goals of minimizing 

the number of frivolous lawsuits and enables the preparation of a more complete factual record). 

When a plaintiff does not allege exhaustion of administrative remedies, courts in this 

Circuit dismiss the complaint. Gupta v. Freixenet, USA, Inc., 908 F. Supp. 557, 564 (N.D. Ill. 

1995) (citing Smith v. Blue Cross & Blue Shield, 959 F.2d 655, 658 (7th Cir.1992)); Potter v. ICI 

 

4

 Plaintiffs also seek relief in form of rescission of the contract (see DKT 26 at p. 24 ¶ B), which is not an available 

remedy under ERISA § 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B). ERISA § 502(a)(1)(B) only authorizes a claimant 

to bring an action to “recover benefits due to him under the terms of his plan, to enforce his rights under the terms of 

the plan, or to clarify his rights to future benefits under the terms of the plan.” ERISA § 502(a)(1)(B), 29 U.S.C. § 

1132(a)(1)(B). 

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Americas, Inc., 103 F. Supp. 2d 1062, 1066-67 (N.D. Ind. 1999) (citing Coats v. Kraft Foods, 

Inc., 12 F. Supp. 2d 862, 868-69 (N.D. Ind. 1995)). In Potter, the court granted a motion to 

dismiss where “[plaintiff] makes no allegations that he made any claim for benefits. Instead he 

simply states that [his employer] wrongfully classified him as an independent contractor. . . . 

Thus, on the face of [plaintiff’s] complaint, we must conclude that he has insufficiently alleged 

exhaustion of administrative remedies.” Potter, 103 F. Supp. 2d at 1066-67. 

Here, Plaintiffs’ allegations fall far short of pleading exhaustion of administrative 

remedies. The fatal deficiencies of the Potter complaint are mirrored in the Complaint before 

this Court. Specifically, Plaintiffs do not allege that they have exhausted their administrative 

remedies under the Plan. More specifically, Plaintiffs fail to allege that they have made a claim 

for benefits under the Plan, that the Plan Administrator denied such a request, or that they used 

the administrative appeals process provided by the Plan. Instead, Plaintiffs merely allege that 

Club Assist wrongfully classified them as independent contractors rather than employees eligible 

for coverage under the Plan. See DKT 26 at ¶ 158.5

 As such Count IV of Plaintiffs’ Complaint 

should be dismissed in its entirety pursuant to Rule 12(b)(6).6

C. The Court Should Dismiss the Complaint Pursuant to Rule 12(b)(7) and Rule 

19(a) Because Plaintiffs Failed to Join Necessary and Indispensible Parties 

Rule 19(a)(1) requires in relevant part that a party who is subject to service of process 

and whose joinder will not deprive the court of subject-matter jurisdiction be joined as a party to 

an action when the court cannot accord complete relief among existing parties in that person’s 

 

5

 There are two exceptions that excuse a plaintiffs’ failure to exhaust remedies before proceeding with an ERISA 

suit: (1) if there is lack of meaningful access to review procedures, or (2) if pursuing internal remedies would be 

futile. Wilczynski v. Lumbermens Mut. Cas. Co., 93 F.3d 397, 402 (7th Cir. 1996); see also Stark v. PPM Am., Inc., 

354 F.3d 666, 671 (7th Cir. 2004). None of Plaintiffs’ allegations demonstrate that there has been a lack of 

meaningful access to review procedures, or that pursuing internal remedies would be futile. Therefore, Count IV 

must be dismissed due to Plaintiffs’ failure to exhaust their administrative remedies under the Plan. 

6

 Club Assist identified this deficiency in its original motion to dismiss. DKT 19 at pp 11-12. Although Plaintiffs 

subsequently amended their complaint, they failed to address this deficiency. DKT 26 in its entirety. 

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absence. See Fed. R. Civ. P. 19(a)(1). The SDCs are undeniably such parties, and under 

12(b)(7), this Court should dismiss Plaintiffs’ Complaint for failure to join them. 

Plaintiffs request that the Court set aside the Agreements attached to their Complaint 

between the SDCs and Club Assist. See DKT 26 at pp. 18 ¶ B, 20 ¶ B, 22 ¶ B, 24 ¶ B. By law, a 

judicial declaration as to the validity of a contract necessarily affects, as a practical matter, the 

interests of both parties to the contract. U.S. ex rel. Hall v. Tribal Dev. Corp., 100 F.3d 476, 479 

(7th Cir 1996); see also Travelers Indem. Co. v. Household Int’l., Inc., 775 F. Supp. 518, 527 (D. 

Conn. 1991). (“[A] contracting party is the paradigm of an indispensible party”). No procedural 

principle “is more deeply imbedded in the common law than that, in an action to set aside a lease 

or contract, all parties who may be affected by the determination of the action are indispensible.” 

Hall, 100 F.3d at 479. 

The SDCs entered into the Agreements with Club Assist. See DKT 26 at ¶¶ 28-35, and 

Ex. B thereto. The SDCs are not parties to this action. DKT 26 at ¶ 116. Plaintiffs seek 

rescission of the Agreements between the SDCs and Club Assist. See DKT 26 at pp. 18 ¶ B, 20 

¶ B, 22 ¶ B, 24 ¶ B. Accordingly, the SDCs are non-parties who will have a legally protectable 

contract interest taken from them in the event the Agreement between them and Club Assist is 

set aside. A contracting party is a necessary and indispensable party. Hall, 100 F.3d at 479; 

Travelers, 775 F. Supp. at 527. Thus, pursuant to Rule 12(b)(7), Plaintiffs’ Complaint should be 

dismissed in its entirety.7

 

7

 Club Assist identified this deficiency in its original motion to dismiss. DKT 19 at pp 13. Although Plaintiffs 

subsequently amended their complaint, they failed to address this deficiency. DKT 26 in its entirety. 

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D. The Court Should Strike the Jury Demand in relation to the IWPCA, IMWL 

and ERISA Claims and the Claim for Punitive Damages under the IMWL 

Rule 12(f) allows the court to order stricken from any pleading any insufficient defense 

or redundant, immaterial, impertinent or scandalous matter. “The court possesses considerable 

discretion in disposing of a motion to strike.” Benjamin v. Marshal P. Morris, Ltd., No. 97 C 

6714, 1998 WL 299434 at *6 (N.D. Ill. May 20, 1998). There is no right to a jury trial under 

ERISA or the IWPCA. Id. (holding that the “jury demand must be stricken because the Seventh 

Circuit has held that there is no right to a jury trial in actions brought under Section 502 of 

ERISA”); Zuckerman v. United of Omaha Life Ins. Co., No. 09 CV 4819, 2011 WL 2173629 at 

*5-6 (N.D. Ill. May 31, 2011) (holding that the Seventh Circuit continues to hold that jury trials 

are unavailable under ERISA and citing cases); Catania v. Local 4250/5050 of the 

Communication Workers of America, 834 N.E.2d 966, 970-73 (Ill. App. Ct. 2005) (holding that 

there is no right to a jury trial under the IWPCA). Accordingly, this Court should strike the jury 

demand relating to those claims. 

The Illinois Constitution provides that the “right of a trial by jury as heretofore enjoyed 

shall remain inviolate.” Ill. Const. 1970, art. I, § 13. “This provision guarantees the right to a 

jury trial in actions that carried such a right under the common law when the Illinois Constitution 

was adopted.” Catania, 834 N.E.2d at 970. In all other actions, there is no right to a jury trial 

unless the legislature specifically provides for the right to a jury trial by statute. Id. An IMWL 

claim does not have its origin in the common law and the legislature did not provide for the right 

to a trial by jury. See Seaman v. Thompson Elec. Co., 758 N.E.2d 454, 456-58 (Ill. App. Ct. 

2001) (holding that there is no right to a jury trial under the Prevailing Wage Act and noting 

“there exist other statutory suits for wages which do not have their origin in the common law and 

for which the legislature has not provided the right to a trial by jury. See, e.g., 820 ILCS 

Case: 1:12-cv-05710 Document #: 28 Filed: 11/06/12 Page 15 of 18 PageID #:481
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105/12(a) (West 2000) (Minimum Wage Law)”); cf. Catania, 834 N.E.2d at 970-73. This Court, 

therefore, should strike the jury demand relating to the IMWL claim. 

In Count II, Plaintiffs also seek “punitive damages and penalties equal to 2 percent of the 

underpayments of minimum wage due to plaintiffs for each month following the date of any 

underpayment as authorized by Illinois law.” DKT 26 at 20 ¶ E. The IMWL, however, does not 

provide for punitive damages to private litigants. See 820 ILCS 105/12(a). Accordingly, this 

Court should strike Plaintiffs’ demand for punitive damages. 

Case: 1:12-cv-05710 Document #: 28 Filed: 11/06/12 Page 16 of 18 PageID #:482
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CONCLUSION

For the foregoing reasons, Defendant Club Assist Road Service U.S., Inc. respectfully 

requests that the Court grant its motion to dismiss and enter an order dismissing Plaintiffs’ 

Complaint in its entirety, or in the alternative granting Defendant’s motion in part and ordering 

the following relief: 

(A) Dismissal of Plaintiffs’ Complaint pursuant to Rule 12(b)(1) of the Federal Rules 

of Civil Procedure for failure to establish their standing to sue Club Assist Road 

Service U.S., Inc.; 

(B) Dismissal of Plaintiffs’ Complaint pursuant to Rule 12(b)(6) of the Federal Rules 

of Civil Procedure for failure to state a claim upon which relief can be granted; 

(C) Dismissal of Plaintiffs’ Complaint pursuant to Rules 12(b)(7) and 19(a) of the 

Federal Rules of Civil Procedure for failure to join necessary and indispensible 

parties; or 

(D) Strike Plaintiffs’ jury demand in relation to Counts II, III and IV, and claim for 

punitive damages in Count II. 

Dated: November 6, 2012 CLUB ASSIST ROAD SERVICE U.S., INC. 

Defendant, 

By: /s/ John T. Roache 

John T. Roache 

Melissa A. Siebert 

Joel C. Griswold 

K&L Gates LLP 

70 West Madison Street, Suite 3100 

Chicago, Illinois 60602 

T: (312) 372-1121 

F: (312) 827-8095 

One of Its Attorneys 

Case: 1:12-cv-05710 Document #: 28 Filed: 11/06/12 Page 17 of 18 PageID #:483
CI-9329643 v3 

CERTIFICATE OF SERVICE

 The undersigned attorney for Defendant certifies that on November 6, 2012 he caused a 

copy of the foregoing Memorandum in Support of Motion to Dismiss and/or Strike Amended 

Complaint to be served upon the following counsel of record through the Court’s ECF System: 

Michael Paul Persoon 

Thomas Howard Geoghegan 

Sean Morales Doyle

DESPRES SCHWARTZ & GEOGHEGAN 

77 West Washington Street, Suite 711 

Chicago, Illinois 60602 

 /s/ John T. Roache 

Case: 1:12-cv-05710 Document #: 28 Filed: 11/06/12 Page 18 of 18 PageID #:484