In opposing the motion to allow notice, a declaration of Coronado
is also provided. Coronado states that Pizza Nova has three
types of non-managerial workers: cooks, cashiers, and delivery
drivers. Coronado states that delivery drivers are treated as
independent contractors and provides some additional factual
background supporting that they are independent contractors. He
also states that no cashier or delivery person has ever worked
more than 40 hours in a week. The declaration is silent as to
whether any cooks have ever worked overtime or whether they have
been paid time and one-half if any have worked overtime.
Coronado states that cashiers are paid minimum wage or more.
Delivery persons are only paid with tips.

Since plaintiffs have not provided any support for their
allegations that cooks, delivery drivers, and possibly cashiers
work overtime or are paid less than minimum wage, nor any support
for their allegations that delivery drivers are employees, and
defendants deny those allegations, plaintiffs have not made the
modest factual showing that is a threshold requirement for
permitting notice to be mailed to possible opt-ins. Plaintiffs'
motion will be denied without prejudice to filing such a motion
with adequate support.

IT IS THEREFORE ORDERED that plaintiffs' motion to begin

notice to members of the plaintiff class [8-1] is denied without



the law." Flores, 2003 WL 22478695 at *3 (quoting Taillon v.

Kohler Rental Power, Inc., 2003 WL 2006593 *1 (N.D. Ill.

April 29, 2003)). See also Champneys v. Ferguson Enterprises,

Inc., 2003 WL 1562219 *4 (S.D. Ind. March 11, 2003); Bontempo v.
Westwood One Broadcasting Services, Inc., 2002 WL 1925911 *1
(N.D. Ill. May 3, 2002); Garza v. Chicago Transit Authority, 2001
WL 503036 *2 (N.D. Tll. May 8, 2001). The other employees need
not be in the same identical job. Champneys, 2003 WL 1562219

at *5; Bontempo 2002 WL 1925911 at *1; Garza, 2001 WL 503036

at *3. But see Pfaahler v. Consultants for Architects, Inc.,

2000 WL 198888 at *2 (N.D. Ill. Feb. 8, 2000). Where, as here,
defendants dispute whether workers in certain positions are
employees subject to minimum wage and overtime provisions, there
also must be a modest factual showing that such workers are

employees. See, e¢.g., Champneys, 2003 WL 1562219 at *3-4.

Unless defendants admit in their answer or briefs that other
similarly situated employees exist, plaintiffs cannot rely on
their allegations alone to make the required modest factual
showing. Plaintiffs need not provide conclusive support, but
they must provide an affidavit, declaration, or other support
beyond allegations in order to make a minimal showing of other
similarly situated employees subjected to a common policy.
Here, in their answer, defendants deny all the

allegations that there are other similarly situated employees.


prejudice. All discovery is to be completed by March 12, 2004.

Status hearing set for January 14, 2004 at 11:00 a.m.

ENTER:

Wim T Ara

UNITED STATES DISTRICT JUDGE

DATED: DECEMBER 29, 2003



Minute Osder Form (06/97)
s,_ Minute Cac

United States District Court, Northern District of Illinois

Name of Assigned Jud SITTING JUDGE IF
eM fagistrate Sa ge WILLIAM T. HART OTHER THAN
ASSIGNED JUDGE
CASE NUMBER 03 C 5928 DATE DECEMBER 29, 2003
CASE ANTONIO NUNEZ, et al. y. PIZZA NOVA, INC., et al.
TITLE

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

MOTION:

DOCKET ENTRY:

(1) a Filed motion of [ use listing in “Motion” box above.]

(2) Oo Brief in support of motion due

(3) im Answer brief to motion due___. Reply to answer briefdue___.

(4) Qo Ruling/Hearing on setfor_at_

(5) a Status hearing set for JANUARY 14, 2004 at 11:00 a.m.

(6) a Pretrial conference[held/continued to] [set for/re-set for]on__setfor__—sat_—S.
(7) i) Trial[set for/re-set for]on___—_aat

(8) o (Bench/Jury trial] [Hearing] held/continued to sat

()) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

COFRCP4(m) Local Rule 41.1. OFRCP41(a)\(1) OO FRCP41(a)(2).

(10) so [Other docket entry] Plaintiffs' motion to begin notice to members of the plaintiff
class [8-1] is denied without prejudice. All discovery is to be completed by March 12,
2004.

(11) _M_[FOR FURTHER DETAIL SEE ATTACHED MEMORANDUM OPINION AND ORDER.

No notices required, advised in open court.

No notices required,

wv | Notices maited by judge’s staff.

Notified counsel by telephone.

Docketing to mail notices.
Mail AO 450 form. yunos j

. \
Copy to judge/magistrate judge.

ayisia SA
ay)

r2ra9003
2:2 Wy 62 TOC ;
courtroom Lei i ~ date mailed notice
cw depuly’s . -_ 1 .
initials gigas mt

Datefime received in
central Clerk's Office ensigns



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

yy PEST TD,

oP CHETED
ANTONIO NUNEZ, VICENTE BALDERAS, 0 --<9
CARLOS CORONEL, and LEONARD BEC 306 2003

NUNEZ, on behalf of themselves
and all other plaintiffs
similarly situated, known and
unknown,

Plaintiffs,
Vv. No. 03 C 5928
PIZZA NOVA, INC., TONY PARENTE,
individually, and HECTOR
CORONADO, individually,

Defendants.

MEMORANDUM OPINION AND ORDER

The plaintiffs who filed this action are Antonio Nunez,
Vicente Balderas, Carlos Coronel, and Leonardo Nunez. All four
plaintiffs formerly worked for defendant Pizza Nova, Inc., a
corporation that operates three Pizza Nova pizzerias in the
Chicago area. Also named as defendants are Pizza Nova's two
shareholders, Tony Parente and Hector Coronado. Parente and
Coronado are also officers of the corporation and are personally

involved in managing and operating the pizzerias. The Nunezes


worked as cooks and the other plaintiffs worked as delivery
drivers. Plaintiffs allege that they were paid less than minimum
wage and that they were not properly compensated for working
overtime in excess of 40 hours per week, all in violation of the
Fair Labor Standards Act, 29 U.S.C. § 201 et seq., and the
Portal-to-Portal Act, 29 U.S.C. § 251 et seq. There is no
allegation that any of them are entitled to overtime pay simply
for working more than eight hours on a particular day. Presently
pending is plaintiffs' motion to send notice to potential class
members.

Federal Rule of Civil Procedure 23 does not apply to this
case. Any class action is limited by the provision of 29 U.S.C.
§ 216(b) which requires that any plaintiff joined in this action
consent to be a plaintiff, that is, any additional plaintiffs

must opt in. King v. General Electric Co., 960 F.2d 617, 621

(7th Cir. 1992); Flores v. Lifeway Foods, Inc., F. Supp. 2d

, 2003 WL 22478695 *1-3 (N.D. Ill. Oct. 30, 2003). In
appropriate circumstances, the court may order that notice be
sent to potential class members advising them of the option of

joining in the case. See Woods v. New York Life Insurance Co.,

686 F.2d 578, 580 (7th Cir. 1982). To be entitled to have such
notice sent, plaintiffs must make "a modest factual showing
sufficient to demonstrate that they and potential plaintiffs

together were victims of a common policy or plan that violated