A. Are Defendants Entitled to Eleventh Amendment Immunity From Plaintiff's Claims?

As stated, Defendants contends that although Brandon has named individual Defendants
in his Amended Complaint, his claims are in essence against the State, and therefore, Defendants
contend that they are entitled to Eleventh Amendment immunity from Plaintiff's suit for
retroactive money damages under the FLSA, the Portal-to-Portal Act and the IMWL.

The Eleventh Amendment bars suits brought by private citizens against “unconsenting
states.” Digiore v. State of Illinois, 962 F.Supp. 1064, 1069 (N.D. II. 1997) (citing MSA Realty

Corp. v. State of Illinois, 990 F.2d 288, 291 (7th Cir. 1993), “This immunity protects states from

liability regardless of whether the claims at issue are state law or federal law claims.” Ryan v,

State of Illinois. No. 96 C 246, 1996 WL 109699 at *2 (N.D, Ill. 1996).

In a case such as the one before the Court, where state officials are named defendants, the
Court must ask whether “the state is the real, substantial party in interest.” Digiore, 962 F.Supp.

at 1069 (quoting Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 464 (1945). “In

practical terms, this means that private plaintiffs may not sue state officials requesting money
damages or seeking injunctive relief that would require retroactive payments from the state
treasury.” Digiore, 962 F.Supp. at 1069 (internal citations omitted)). In addition, while courts
may hear suits that allege federal statutory violations on the part of state officials, if the
individuals are sued in their official capacities, the court can only issue an injunction
contemplating prospective relief and cannot award money damages. Id. at 1070 (internal
citations omitted). Thus, plaintiffs can only sue state officials in their individual capacities,
wherein relief is confined to the official’s personal assets. Id. (citing Kentucky v. Graham, 473

US. 159, 165-66).


IV. CONCLUSION
For the foregoing reasons, Defendants’ motion to dismiss is GRANTED in part and DENIED in part.
The Court grants Defendants’ motion to dismiss all claims against them in their official capacities

and denies the motion to dismiss all claims against them in their individual capacities.

Dade

David H. Coar
United States District Judge

Dated: September 30, 2004



one and one-half times their regular hourly rate, pursuant to the requirements of the FLSA. (Am.
Compl., § 12). Brandon presents his claim in four counts. The first count prays for damages for
Plaintiff and his class at a rate of one and one-half times their regular rate of pay for all hours
worked in excess of 40 hours during any single workweek. (Am. Compl. 4 12). The second
count prays for damages for the willful violation of the FLSA, and alleges that Plaintiff is entitled
to unpaid overtime compensation for all overtime hours worked during the three years prior to
the filing of his complaint. (Am. Compl. {J 13-14). The third count requests liquidated damages
pursuant to 29 U.S.C. 260. (Am. Compl., {{ 12-13). In addition, Brandon presents a pendent
state law claim for an alleged violation of the Illinois Minimum Wage Law (“IMWL”), pursuant

to 820 ILCS Section. 105 et seg. (Am. Compl. {4 13-18).

HI. Analysis

Defendants move to dismiss Plaintiff's complaint pursuant to 12(b)(1) and 12(b)(6) of the
Federal Rules of Civil Procedure. Defendants contend that Brandon’s claims against them in
their official and individual capacities are only nominally against them, and the State remains the
real, substantial party in interest. Defendants contend that the State is entitled to Eleventh
Amendment immunity for Plaintiff's claims for retroactive money damages under the FLSA, the
Portal-to-Portal Act, and his supplemental state law claim under the IMWL. In addition,
Defendants contend, Brandon does not allege that Blagojevich is or was him employer as
required by the FLSA and IMWL, and because Blagojevich had no personal involvement with
respect to Plaintiff's claims, all claims against him should be dismissed. Each of Defendants’

arguments will be addressed in turn.

3.



Consequently, a state may be sued in federal court only if it waives its Eleventh
Amendment immunity, thereby consenting to the suit. Ryan, 1996 WL 109699 at * 2 (citing
Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 104 (1984). In addition, if the
state does consent, that consent must be “unequivocally expressed.” Id. There is no indication
here that the State has waived its immunity and consents to be sued in federal court. Further,
while Congress may abrogate a state’s Eleventh Amendment immunity pursuant to section 5 of
the Fourteenth Amendment, See Seminole v. 517 U.S. 44, 59 (1996), there has been no
abrogation of Eleventh Amendment immunity under the provisions that Plaintiff brings suit.
See Digiore, 962 F.Supp. at 1073. Consequently, because Plaintiff cannot sue Rod Blagojevich
and Carol Adams in their official capacities, all claims against them in the official capacities are

dismissed.

B. Does Brandon State a Claim for Relief Against Adams and Blagojevich, in Their

Individual Capacities?

Although the Eleventh Amendment bars suit against state officials in their official
capacities, state officials may still be sued in their individual capacities. Digiore, 962 F.Supp. at
1078 (citing MSA Realty Corp., 962 F.Supp. at 291). “The ‘threshold issue’ for determining if
the plaintiff has properly brought a personal-capacity suit is whether the complaint ‘clearly
claim[s) against the defendant in his individual capacity.’” Digiore, 962 F.Supp. at 1078 (citing
Hardin v. Straub, 954 F.2d 1193, 1199-2000 (6th Cir. 1992)). Usually, a plaintiffcan meet this

requirement by a statement in his complaint. Id. Next, the Court must determine whom the suit

seeks to hold liable. “If personal assets will satisfy the judgment, the state is not the real party in

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Minute Order Form (06/97)

United States District Court, Northern District of Illinois

ame of Assigned Jud i Sitting Judge if Other
. or Magistrate Judge David H. Coar thanvaesitned sedge
CASE NUMBER 03 C 3392 DATE 9/30/2004
CASE Robert Brandon vs. Rod Blagojevich, et al. [Doc, No. 8]
TITLE

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

MOTION:
Defendants’ Motion to Dismiss Plaintiffs’ Amended Complaint [Doc. No. 8]

DOCKET ENTRY:
() a Filed motion of [ use listing in “Motion” box above.} i
(2) oOo Brief in support of motion due
(3) a Answer brief to motiondue___—- Reply to answer brief due_____.
(4) 0 Ruling/Hearingon___—sset for__—_—at
(5) aq Status hearing[held/continued to] [set for/re-set for]on__setfor__—at :
(6) a Pretrial conference[held/continued to] [set for/re-set for]on___—_—ssetfor__— saat. !
(7) Oo Trial{set for/re-set for]on saat : . |
{8) oO [Bench/Jury trial] [Hearing] held/continued to__aat. :
(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to] i

OFRCP4(m) O Local Rule 41.1 COFRCP41(a)(1) O FRCP41(a)(2).
(10) ga {Other docket entry] _ For the reasons set forth in the attached memorandum opinion and order,

Defendants’ motion to dismiss plaintiffs’ amended complaint [Doc. No. 8] is GRANTED in part and
DENIED in part. The Court grants Defendants’ motion to dismiss all claims against them in their official
capacities and denies the motion to dismiss all claims against them in their indixidual capacities. |

G1) @ [For further detail see order attached to the original minute order.]

No notices required, advised in open court. Document
Number

juired.
No notices required. number of notices

Notices mailed by judge’s staff.

Notified counsel by telephone, ( B3.0.7) A
X_ | Docketing to mail notices.

Mail AO 450 form \ A,

Copy to judge/imagistrate judge. yaod LOY

date mailed notic

courtroom oe cag)
siftle) deputy’s LU 2f Hd CE d3S tT
initials

Date/time sectiviéd tn,
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interest and the Eleventh Amendment permits suit against the individual; but if state funds will
be tapped, the defendants are named only nominally as officials and immunity bars the suit.”
Digiore, 962 F. Supp. at 1078.

Construing all facts in the light most favorable to the Plaintiff, Brandon properly states a
claim for personal liability, and his suit against the Defendants, in their individual capacities, is
not barred by the Eleventh Amendment. In his complaint, Brandon states, “Plaintiff in good faith
believes that any ultimate liability found in his favor or the favor of other similarly situated
current and former employees, would be capable of being paid by the personal individual
Defendants named herein and that state treasury monies would not have to [be} drawn upon.”

Id, (Am. Compl., § 12). Defendant’s arguments that Governor Blagojevich cannot be considered
an employer because he had no personal responsibility for the Personal Aides program are
unavailing at this stage of the proceedings, as in his Complaint, Brandon does allege that
Blagojevich has personal responsibility, and was directly or indirectly involved (through his
agents) with the implementation of the program, and thus, can be considered an “employer” for
purposes of the FLSA and IMWL. ( See Am. Compl., { 3). Consequently, Defendants’ motion to
dismiss Plaintiff's claims against them in their individual capacities is DENIED, as Brandon’s

complaint states a claim upon which relief can be granted.



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

EASTERN DIVISION
ROBERT BRANDON, )
)
Plaintiff, )
) No. 03 C3392
Vv. )
) HONORABLE DAVID H. COAR
ROD BLAGOJEVICH, both as Governor of )
the State of Illinois and individually, and DR.)
CAROL ADAMS, both as Secretary of )
Human Services of the State of Illinois and ) DOCKETED
individually ) SEP 3 0 2004
Defendant. )

MEMORANDUM OPINION AND ORDER

Before this Court is Rod Blagojevich and Carol Adams’ (known collectively as “Defendants”)
motion to dismiss Robert Brandon’s Amended Complaint, pursuant to Federal Rules of Civil
Procedure 12(b)(1) and 12(b)(6). For the reasons set forth below, Defendants’ motion to dismiss
is GRANTED in part and DENIED in part. Defendants’ motion to dismiss al! claims against
them in their official capacities is GRANTED. Defendants’ motion to dismiss all claims against
them in their individual capacities is DENIED.
I. Legal Standard for Motion to Dismiss

Pursuant to Fed. R. Civ. P. 12(b)(1), a complaint should be dismissed if the court lacks
jurisdiction over the subject matter of the suit. Digiore v. State of Illinois, 962 F.Supp. 1064,

1069 (N.D. Ill. 1997). The plaintiff bears the burden of establishing that the jurisdictional

-1-



requirements have been met. Kontos v. United States Dept. of Labor, 826 F.2d 573, 576 (7th
Cir. 1987). When a defendant moves for dismissal pursuant to Fed. R. Civ. P. 12(b)(1), the
plaintiff must support its allegations with competent proof of jurisdictional facts. Thomson v.
Gaskill, 315 U.S. 442, 446 (1942).

In ruling on a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), the Court “must
accept all well pleaded allegations as true. In addition, the Court must view these allegations in

the light most favorable to the plaintiff.” Gomez v. Illinois State Board of Education, 811 F.2d
1030, 1039 (7th Cir. 1987). A complaint should not be dismissed “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).

Tl. Facts

Plaintiff Brandon brings his claims against the Defendants pursuant to the Fair Labor
Standards Act, 29 U.S.C. § 201 et. seq. (“FLSA”), and the Portal-to-Portal Act, 29 U.S.C. et.
seq., (Am. Compl., J 1). Plaintiff brings his action on behalf of himself and all other unnamed
Plaintiffs of the class, who are either present or past salaried employees of the Defendants, and
were designated as Personal Aides (Am. Compl., 4 4). Plaintiff contends that Defendants have
compensated members of the Plaintiff Class, including Brandon, on a “salaried” basis when,
Plaintiff contends, the job duties of the Plaintiff and other members of the Plaintiff class did not
and do not qualify under any of the exemptions established by the FLSA. (Am. Compl., J 11).
As such, Brandon contends, he and other members of the Plaintiff class were and are required to

work in excess of forty hours in a work week, without pay, for those hours over forty at a rate of

-2-