deductions to her salary in order to show that there is no violation of the minimum wage
requirement. (Def.’s Second Resp. at 3-5.) In its examination of the Illinois Wage and Collection
Act, Defendant refers to specific portions of the ERISA plan to demonstrate that the Illinois state law
is preempted. Generally, in a motion to dismiss under Rule 12(b)(6), if the court considers
documents outside the pleadings the court must convert the defendant’s Rule 12(b)(6) motion to a
motion for summary judgment. Carter v. Stanton, 405 U.S. 669, 671 (1972). However, “documents
that a defendant attaches to a motion to dismiss are considered part of the pleadings if they are
referred to in the plaintiff's complaint and are central to her claim.” Venture Associates Corp. v.
Zenith Data Systems Corp., 987 F.2d 429, 431 (7 Cir. 1993).

While this issue arises not in conjunction with a motion to dismiss but with a motion for
leave to amend, the Court considers Defendant’s futility argument under the same standards it would
use to analyze a motion to dismiss under Rule 12(b)(6). Therefore, the Court finds the holding in
the Venture Associates case to be applicable to its examination of this motion to amend, and in order
for the Court to appropriately consider these documents, they must be “referred to in the plaintiff's
complaint and [be] central to her claim.” Venture Associates, 987 F.2d at 431. While an argument
could be made that the documents (particularly the ERISA Plan) are central to Plaintiffs claim,
neither are referred to in her Proposed Amended Complaint. Therefore, consideration of
Defendant’s arguments which depend upon its references to these outside documents is inappropriate
at this time.

Without reference to the documents alluded to by Defendant in its arguments, it is not
apparent from the face of the proposed amended complaint that Plaintiff “can prove no set of facts

in support of her claim which would entitle [her] to relief." See Conley v. Gibson, 355 U.S. at 45-46.


Na WY

is futile because the deduction did not actually cause Plaintiff’s salary to fall beneath the minimum
wage. Defendant maintains that Plaintiff earns $13.27 per hour, and that it is mathematically
impossible for a 25% deduction to reduce her salary beneath the minimum wage. Defendant points
out that Plaintiffs argument that her wages fall below the minimum depends upon the inclusion of
many voluntary deductions, as well as the amounts withheld from her paycheck for state and federal
taxes, with the 25% deduction to reimburse the disability overpayment.

In its consideration of Plaintiff s claim under the Illinois Wage and Collection Act, Defendant
argues that this claim is futile because it is pre-empted by ERISA. Defendant cites to Egelhoff v.
Egelhoff, 121 S.Ct. 1332 (2001), which holds that when a state statute conflicts with ERISA’s
requirement that plans be administered in accordance with plan documents, the state statute is pre-

empted by ERISA. Plaintiff relies on a case from this district, Nagel v. Chuckerman Packaging.

LTD, 19 F. Supp.2d 826 (N.D. Ill. 1998), for her assertion that her claim is not preempted by ERISA.
In distinguishing the Nagel case, Defendant refers to the specific sections of the governing ERISA
plan which required Defendant to withhold any excess benefits paid to an employee if the employee
did not voluntarily repay them. Defendant argues that the Plan at issue in the Nagel case did not
contain such specific language which authorized deductions from the plaintiffs wages. Because the
Illinois Wage and Collection Act was not completely at odds with the Plan language, the court in
Nagel found that the state statute was not completely preempted by ERISA. Nagel, 19 F. Supp.2d
at 828-29.

In making its arguments that these two claims are futile, Defendant relies on documents
outside of the Complaint. In its analysis of the FLSA claim, Defendant extensively refers to a pay

stub which Plaintiff attached to her Reply brief. In its discussion, Defendant refers to specific


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Therefore, under the standards of Rule 12(b)(6), the Court cannot determine that Plaintiff's FLSA

and Illinois Wage and Collection Act claims would be futile. For this reason, Plaintiffs Motion for

Leave to File First Amended Complaint is GRANTED.

ENTER:

Aue R Milon—

Nan R. Nolan
United States Magistrate Judge

Dated: gut 13 2008


‘Minute Order Form (06/97)

United St. ;D_ riet Court, Northern Distri_f Laois

Name of Assigned Judge Nan R. Nolan Sitting Judge if Other
or Magistrate Judge than Assigned Judge
CASE NUMBER 00 C 7080 DATE 7/13/2001
CASE Eileen Hart vs. Federal Express Corporation
TITLE

[in the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the
nature of the motion being presented.)

(il) =

MOTION:

DOCKET ENTRY:

qd) im Filed motion of { use listing in “Motion” box above.]

(2) i Brief in support of motion due

(3) Oo Answer brief to motion due___. Reply to answer brief due.

(4) a Ruling/Hearing on__set for

(5) a Status hearing held and continued to 7/27/2001 at 9:00 A.M.

(6) Oo Pretrial conference[held/continued to] [set for/re-set for] on setfor ss at_—

(7) a Trial[set for/re-set for] on at

(8) a (Bench/Jury trial] [Hearing] held/continued to__at

(9) a This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OOFRCP4(m) (General Rule 21 CI FRCP4i(a)(1) 2 FRCP41(a)(2).

ao) =f [Other docket entry] Enter Memorandum Opinion and Order: Plaintiff's Motion for Leave to File

a First Amended Complaint [22-1] is granted. Plaintiff's motion to compel [17-1] is under advisement.

[For further detail see order attached to the original minute order.]

No notices required.

Y_ | Notices mailed by judge’s staff.

Notified counsel by telephone.

Docketing to mail notices.

Mail AO 450 form.

Copy to judge/magistrate judge.

No notices required, advised in open court.

iN)

KETING

courtroom
deputy’s

initials

G1 JUL 13 Pi S09

number of notices

date mailed notice

Date/time received in
central Clerk’s Office

mailing deputy initials



a one wo

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
EILEEN HART, )
)
Plaintiff, )
) Case No. 00 C 7080

)
v. )

) Magistrate Judge Nan R. Nolan
FEDERAL EXPRESS CORPORATION, )
)
Defendant. )

DOCKETED

MEMORANDUM OPINION AND ORDER
JUL 1 6 2001

Plaintiff has filed a Complaint against her employer, Federal Express Corporation (“Federal
Express”) alleging claims of sex discrimination, retaliation, violations of the Americans with
Disabilities Act, infliction of emotional distress, and negligent retention of an employee. These
claims stem from alleged adverse treatment Plaintiff suffered at the hands of Federal Express
following an assault upon her by a male co-worker. Currently pending before this Court is Plaintiff’ s
Motion for Leave to File First Amended Complaint. By this motion, Plaintiff seeks to add a claim
under the Family and Medical Leave Act (FMLA), aclaim of conversion, a class claim under Federal
Rule of Civil Procedure 23 alleging a violation of the Illinois Wage and Collection Act, 820 ILCS

115/9 and conversion, and a class claim under the Fair Labor Standards Act (FLSA).' For the

While Plaintiff does not appear to be asserting an FLSA class claim under Rule 23, the
Court notes for purposes of clarity that Rule 23 class actions are not permitted under the FLSA.
Rather, the FLSA contains a collective action procedure whereby potential plaintiffs must opt in
to the class rather than opt out as they do under Rule 23. See 29 U.S.C. § 216(b).


Yow VANS

following reasons, Plaintiff's motion will be granted.

Defendant argues that Plaintiff's proposed amendments to add both a claim under the Fair
Labor Standards Act (Count IX) and a claim under the [Illinois Wage and Collection Act (Count VIID)
would be futile. "Even though Rule 15(a) provides that 'leave shall be freely given when justice so
requires,’ Fed.R.Civ.P. 15(a), a district court may deny leave to amend for undue delay, bad faith,
dilatory motive, prejudice, or futility." General Elec. Capital Corp. v. Lease Resolution Corp., 128
F.3d 1074, 1084 (7th Cir.1997). "The opportunity to amend a complaint is futile if ‘the complaint,
as amended, would fail to state a claim upon which relief could be granted." ' Id. (quoting In re
Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir.1997)) (internal quotation omitted).
"This standard is the same standard of legal sufficiency that applies under Rule 12(b)(6)." Id. In
ruling on a motion to dismiss under Rule 12(b)(6), a district court must accept as true all

well-pleaded allegations asserted in the complaint. See Marmon Group, Inc. v. Rexnord, Inc., 822

F.2d 31, 34 (7th Cir.1987). All reasonable inferences to be drawn from those allegations are also

accepted as true. See Nelson v. Monroe Regional Med. Ctr., 925 F.2d 1555, 1558 (7th Cir.1991).
"[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt
that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief."
Conley v. Gibson, 355 U.S. 41, 45-46 (1957).

Plaintiff's FLSA claim concerns amounts Defendant withheld from Plaintiff's pay due to an
alleged overpayment of disability benefits. Hart argues that Defendant impermissibly deducted 25%
of her gross wages as reimbursement for the alleged overpayment, causing her net salary to fall
below the minimum wage of $5.25 per hour. See 29 U.S.C. § 201, et seq. Defendant argues that

Plaintiff's proposed amendment to add a claim under the minimum wage requirement of the FLSA