Fetrow-Fix et al v. Harrah's Entertainment, Inc.
Filing
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ORDER Denying 48 Motion for District Judge to Reconsider Order. Denying 50 Motion for Certificate of Appealability. E-mail notice (NEF) sent to the US Court of Appeals, Ninth Circuit. Signed by Judge Roger L. Hunt on 6/9/2011. (Copies have been distributed pursuant to the NEF - SLR)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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***
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CHARI FETROW-FIX and THOMAS
SORANNO, individually and on behalf of all
others similarly situated;
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Plaintiffs,
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vs.
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HARRAH’S ENTERTAINMENT, INC., a
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Delaware Corporation; and DOES no. 1 through )
100, inclusive,
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Defendants.
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_______________________________________)
Case No.: 2:10-cv-00560-RLH-PAL
ORDER
(Motion for Reconsideration–#48;
Motion for Certification of
Appealability–#50)
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Before the Court is Plaintiffs Chari Fetrow-Fix and Thomas Soranno’s Motion for
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Reconsideration (#48, filed Jan. 10, 2011) of the Court’s Order (#40, issued Nov. 16, 2010). The
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Court has also considered Defendant Harrah’s Entertainment, Inc.’s (“Harrah’s”) Opposition (#55,
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filed Jan. 27, 2011), and Plaintiffs’ Reply (#60, filed Feb. 7, 2011).
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Also before the Court is Plaintiffs’ Motion for Certification of Appealability
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(#50, filed Jan. 14, 2011) of the Court’s Order (#40, issued Nov. 16, 2010). The Court has also
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considered Harrah’s Opposition (#52, filed Jan. 21, 2011), and Plaintiffs’ Reply (#56, Jan. 31,
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2011).
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BACKGROUND
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Defendant Harrah’s is a gaming corporation that owns and operates several casinos,
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hotels, and golf courses. Plaintiffs Chari Fetrow-Fix and Thomas Soranno are former employees
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of Harrah’s who allege Harrah’s violated several state and federal statutes by withholding wages
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from Plaintiffs and other employees. Plaintiffs brought class action suits against Defendant under
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the Fair Labor Standards Act of 1938 (“FLSA”), 29 U.S.C. §§ 201–219, and N.R.S. §§ 608.016,
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608.020, 608.030, 608.040 and 608.140 of the Nevada labor laws.
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In November 2010, the Court granted Plaintiffs’ motion to amend their complaint,
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allowing additional claims under N.R.S. §§ 608.050, 608.115, 608.250, and 608.260 and adding
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Harrah’s Laughlin, Inc. and Harrah’s Operating Company, Inc. as defendants. (Dkt. #40, Order,
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Nov. 16, 2010 (hereinafter referred to as “Order”).) In that Order, the Court also partially granted
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Harrah’s motion for judgment on the pleadings and dismissed Plaintiffs’ state law class claims,
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citing the conflict between class-creation mechanisms for collective action claims under FLSA
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and state class action claims. Plaintiffs now submit two motions: a motion for reconsideration of
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the state law class action claims dismissal and a motion for certification of an interlocutory appeal
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pursuant to 28 U.S.C. § 1292(b). For the reasons discussed below, the Court denies Plaintiffs’
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motion for reconsideration and motion for certification of order for appeal.
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DISCUSSION
I.
Motion for Reconsideration
A.
Legal Standard
A district court “possesses the inherent procedural power to reconsider, rescind, or
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modify an interlocutory order for cause seen by it to be sufficient.” City of L.A., Harbor Div. v.
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Santa Monica Baykeeper, 254 F.3d 882, 888 (9th Cir. 2001) (internal citation omitted). The Court
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should only grant motions for reconsideration when the moving party presents a valid reason for
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reconsideration and the facts or law strongly support reversing the prior decision. Frasure v.
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United States, 256 F. Supp. 2d 1180, 1183 (D. Nev. 2003). The Ninth Circuit has recognized
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three circumstances in which a district court should grant a motion for reconsideration: “if the
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district court (1) is presented with newly discovered evidence, (2) has committed clear error or the
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initial decision was manifestly unjust, or (3) there has been an intervening change in controlling
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law.” Nunes v. Ashcroft, 375 F.3d 805, 807–08 (9th Cir. 2004) (quoting Sch. Dist. No. 1J v.
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ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir.1993)).
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On the other hand, a motion for reconsideration is properly denied when the
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movant fails to establish any reason justifying relief. Backlund v. Barnhart, 778 F.2d 1386, 1388
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(9th Cir. 1985). A motion for reconsideration should not merely present arguments previously
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raised; that is, a motion for reconsideration is not a vehicle permitting the unsuccessful party to
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reiterate arguments previously presented. See Merozoite v. Thorp, 52 F.3d 252, 255 (9th Cir.
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1995); Khan v. Fasano, 194 F. Supp. 2d 1134, 1136 (S.D. Cal. 2001) (“A party cannot have relief
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under this rule merely because he or she is unhappy with the judgment.”).
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B.
Analysis
Following the circumstances outlined in Nunes, the Court finds reconsideration
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inappropriate here. Plaintiffs present no new evidence and fail to demonstrate how the Court has
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committed clear error or rendered a manifestly unjust decision. Plaintiffs’ argument in favor of
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reconsideration relies on a decision by another judge in this district, the Honorable Gloria M.
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Navarro, to grant a motion for reconsideration in Daprizio v. Harrah’s Las Vegas, Inc., No. 2:10-
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cv-00604-GMN-RJJ, 2010 U.S. Dist LEXIS 135113 (D. Nev. Dec. 7, 2010). This Court
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referenced the initial Daprizio decision in its Order and Plaintiffs now ask the Court to follow
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Judge Navarro’s lead and reconsider its ruling. Although Plaintiffs here base the instant motion
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upon similar grounds as the motion for reconsideration in Daprizio, that decision is not binding on
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this Court. In this case, the Court’s Order referenced the initial Daprizio decision only to
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demonstrate the “conflict between the FLSA collective action claims and the state class action
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claims [which] stems from the mechanisms by which parties become members of each type of
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action.” (Dkt. #40, Order 6:21–22.) This reference does not suggest that the Court relied
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exclusively on the rationale of the initial Daprizio decision. The mere fact that the initial Daprizio
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decision was reconsidered does not demonstrate injustice in the Court’s Order to justify
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reconsideration. Furthermore, the Court finds Plaintiffs’ analogous arguments for reconsideration
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unpersuasive. The Court’s ruling was supported by decisions in this district as well as others;1
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thus, the Order was neither in error nor unjust. Therefore, Plaintiffs have failed to show any
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change in evidence, injustice in the decision, or error committed by the Court.
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Similarly, there has been no intervening change in controlling law since the initial
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Order. The Court was aware of the Ninth Circuit’s decision in Wang v. Chinese Daily News, 623
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F.3d 743 (9th Cir. 2010), and followed it in the initial order. (Dkt. #40, Order 7:10–13 (citing
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Wang, 623 F.3d at 760, 2010 U.S. App. LEXIS 19929, at *36).) Thus, the controlling law remains
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unchanged. Accordingly, the Court denies the motion for reconsideration.
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II.
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Motion For Certification of Order for Appeal Pursuant to 28 U.S.C. § 1292(b)
A.
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Legal Standard
The Ninth Circuit has instructed district courts to certify interlocutory appeals
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sparingly. In re Cement Antitrust Litigation, 673 F.2d 1020, 1026 (9th Cir. 1982). Typical
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appellate procedures “postpon[e] appellate review until after the entry of a final judgment.” Id.
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(quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 475 (1978)). However, a district court may
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certify an interlocutory appeal pursuant to 28 U.S.C. § 1292(b), but “only in exceptional situations
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in which allowing an interlocutory appeal would avoid protracted and expensive litigation.” Id.
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The Ninth Circuit therefore holds interlocutory appeals to a narrow “exceptional circumstances”
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standard. Id.
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Williams v. Trendwest Resorts, Inc., No. 2:05-cv-0605-RCJ-LRL, 2007 U.S. Dist LEXIS 62396, at
*10–12 (D. Nev. Aug. 20, 2007) (“the class action mechanisms of the FLSA and Rule 23 are incompatible.”);
Leuthold v. Destination America, Inc., 224 F.R.D. 462, 469–70 (N.D. Cal. 2004) (finding that Congress’ intent
to have FLSA plaintiffs opt-in would be thwarted if plaintiffs could include unnamed parties through state statues
with only opt-out requirements); Otto v. Pocono Health System, 457 F. Supp. 2d 522 (M.D. Pa. 2006); Moeck
v. Gray Supply Corp., Civ. No. 03-1950 (WGB), 2006 U.S. Dist. LEXIS 511 (D.N.J. Jan. 5, 2006).
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Even in exceptional circumstances, the party requesting the appeal must satisfy
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certain requirements to justify interlocutory review under §1292(b). Couch v. Telescope, 611 F.3d
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629, 633 (9th Cir. 2010). These requirements are: “(1) that there be a controlling question of law,
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(2) that there be substantial grounds for difference of opinion, and (3) that an immediate appeal
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may materially advance the ultimate termination of the litigation.” In re Cement, 673 F.2d at 1026.
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The Ninth Circuit narrowly defines a controlling question, as one in which “the resolution of the
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issue on appeal could materially affect the outcome of litigation in the district court.” Id. at 1027.
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B.
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Analysis
The Court denies Plaintiffs’ motion because it fails to establish the requirements for
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certification of an order for appeal. First, the Plaintiffs’ motion does not involve exceptional
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circumstances because issues concerning preemption and class construction are well within the
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bounds of typical civil proceedings before this Court. As previously explained, the Order was in-
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line with Ninth Circuit precedent and analogous decisions of other district courts. See, supra,
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footnote 1. Because this situation has been addressed by at least three courts in this district alone,
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Plaintiffs situation is not unique or exceptional. Therefore, the Court concludes that this situation
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does not meet the exceptional circumstances standard.
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In addition, Plaintiffs fail to meet the first requirement outlined in § 1292(b).
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Specifically, Plaintiffs have not presented a controlling issue of law whose resolution could
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materially affect the outcome of this litigation. The Order does not affect Plaintiffs’ interests here
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because their claims under Nevada labor law are still viable. Only Plaintiffs’ strategy—pursuing
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individual versus possible class action claims—will be affected. Because the Court finds that the
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first requirement is not met, it need not address the two remaining requirements. Accordingly, the
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Court denies Plaintiffs’ motion for certification of appealability.
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CONCLUSION
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Accordingly, and for good cause appearing,
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IT IS HEREBY ORDERED that Plaintiffs’ Motion for Reconsideration (#48) is
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DENIED.
IT IS FURTHER ORDERED that Plaintiffs’ Motion for Certification of
Appealability (#50) is DENIED.
Dated: June 9, 2011.
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____________________________________
ROGER L. HUNT
United States District Judge
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