Busk v. Integrity Staffing Solutions
Filing
20
ORDER Granting 16 Motion to Dismiss. Clerk is directed to close this case. Signed by Judge Roger L. Hunt on 7/19/11. (Copies have been distributed pursuant to the NEF - MMM)
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
DISTRICT OF NEVADA
10
***
11
12
13
14
15
16
17
18
19
JESSE BUSK and LAURIE CASTRO,
)
individually and on behalf of all others similarly )
situated;
)
)
Plaintiffs,
)
)
vs.
)
)
INTEGRITY STAFFING SOLUTIONS INC., )
and DOES no. 1 through 50, inclusive,
)
)
Defendant.
)
_______________________________________)
Case No.: 2:10-cv-01854-RLH-RJJ
ORDER
(Motion to Dismiss–#16)
Before the Court is Defendant Integrity Staffing Solutions’ (“Integrity”) Motion to
20
Dismiss Plaintiffs’ First Amended Complaint (#16, filed Jan. 18, 2011). The Court has also
21
considered Plaintiffs Jesse Busk and Laurie Castro’s Opposition (#17, filed Feb. 4, 2011), and
22
Integrity’s Reply (#18, filed Feb. 14).
23
24
BACKGROUND
This case arises out of Plaintiffs’ allegations that Integrity violated several state and
25
federal statutes by withholding wages from Plaintiffs and other Integrity employees whom
26
Plaintiffs allege are a class of similarly situated individuals. Defendant Integrity sub-contracts
AO 72
(Rev. 8/82)
1
1
hourly employees in warehouses throughout the United States. Plaintiffs are former employees of
2
Integrity. Plaintiffs describe themselves as warehouse employees who fulfilled orders made by
3
Amazon.com customers. (Dkt. #11, Am. Compl. ¶ 13.) Plaintiffs allege that they and other
4
Integrity employees were routinely required to participate in security check activities while “off-
5
the-clock.” Plaintiffs contend that they were not properly compensated for these security checks,
6
which could last up to 25 minutes after their shift. Plaintiffs further allege that they and other
7
Integrity employees were not properly compensated for up to one-third of their 30-minute meal
8
period. Specifically, they claim they were required to walk long distances to clock out and clock
9
back in, which allegedly diminished their meal period by as much as 10 minutes (five minutes
10
each way). Plaintiffs bring this class action suit against Integrity to recover unpaid wages and
11
overtime, liquidated damages, and attorneys’ fees and costs under the Fair Labor Standards Act
12
(“FLSA”), 29 U.S.C. §§ 201–216, and Nevada labor law, NRS §§ 608.018, 608.019, and 608.030.
13
Plaintiffs filed their original Complaint (#1) on October 22, 2010. Integrity filed a
14
Motion to Dismiss (#6) and Plaintiffs subsequently filed a Notice of Non- Opposition (#8)
15
informing Integrity that an amended complaint would be filed. Plaintiffs filed the Amended
16
Complaint (#11) on December 15, prior to the Court’s dismissal of the original complaint on
17
January 7, 2011. (Dkt. #15, Order.) Integrity has now filed a second motion to dismiss. For the
18
reasons discussed below, the Court grants Integrity’s motion.
19
20
21
DISCUSSION
I.
Motion to Dismiss the First Amended Complaint
A.
Legal Standards
22
A court may dismiss a plaintiff’s complaint for “failure to state a claim upon which
23
relief can be granted.” Fed. R. Civ. P. 12(b)(6). A properly pled complaint must provide “a short
24
and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.
25
8(a)(2); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). While Rule 8 does not require
26
detailed factual allegations, it demands “more than labels and conclusions” or a “formulaic
AO 72
(Rev. 8/82)
2
1
recitation of the elements of a cause of action.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)
2
(citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). “Factual allegations must be enough to rise
3
above the speculative level.” Twombly, 550 U.S. at 555. Thus, to survive a motion to dismiss, a
4
complaint must contain sufficient factual matter to “state a claim to relief that is plausible on its
5
face.” Iqbal, 129 S. Ct. at 1949 (internal citation omitted).
6
In Iqbal, the Supreme Court recently clarified the two-step approach district courts
7
are to apply when considering motions to dismiss. First, a district court must accept as true all
8
well-pled factual allegations in the complaint; however, legal conclusions are not entitled to the
9
assumption of truth. Id. at 1950. Mere recitals of the elements of a cause of action, supported
10
only by conclusory statements, do not suffice. Id. at 1949. Second, a district court must consider
11
whether the factual allegations in the complaint allege a plausible claim for relief. Id. at 1950. A
12
claim is facially plausible when the plaintiff’s complaint alleges facts that allows the court to draw
13
a reasonable inference that the defendant is liable for the alleged misconduct. Id. at 1949. Where
14
the complaint does not permit the court to infer more than the mere possibility of misconduct, the
15
complaint has “alleged—but not shown—that the pleader is entitled to relief.” Id. (internal
16
quotation marks omitted). When the claims in a complaint have not crossed the line from
17
conceivable to plausible, plaintiff’s complaint must be dismissed. Twombly, 550 U.S. at 570.
18
B.
19
Analysis
Integrity raises four arguments in its motion. First, Integrity argues that Plaintiffs
20
consented to dismissal of the first amended complaint. Second, Integrity asserts that Plaintiffs’
21
claims seeking class treatment under state labor law are preempted by their class claims asserted
22
under the FLSA. Third, Integrity argues that Plaintiffs’ individual claims under state labor law are
23
invalid because the statutes lack a private right of action. Finally, Integrity contends that Plaintiffs
24
failed to state a claim in their first, second, and sixth causes of action under Nevada labor laws.
25
The Court will address the propriety of each argument individually.
26
///
AO 72
(Rev. 8/82)
3
1
1.
Consent to Dismissal of the First Amended Complaint
2
A party may amend a pleading once “as a matter of course” within 21 days after
3
serving it. Fed. R. Civ. P. 15(a)(1)(A). However, if the pleading is one to which a responsive
4
pleading is required or a motion brought under Rule 12(b), (e), or (f), then within 21 days after
5
service of the responsive pleading or Rule 12 motion, whichever occurs earlier. Fed. R. Civ. P.
6
15(a)(1)(B). After the time for amendment as a matter of course has expired, a party may amend
7
its complaint only by leave of the court or by the adverse party’s written consent. Fed. R. Civ. P.
8
15(a)(2). The court has discretion to grant leave and should freely do so “when justice so
9
requires.” Id.; see also Allen v. City of Beverly Hills, 911 F.2d 367, 373 (9th Cir. 1990).
10
Integrity argues that the amended complaint should be dismissed because the Court
11
dismissed the original complaint and Integrity presumed the dismissal to be with prejudice.
12
However, the Court’s Order (#6) dismissing the original complaint was issued after Plaintiffs filed
13
the amended complaint and did not indicate that the dismissal was with prejudice. The Court,
14
therefore, allowed Plaintiffs’ amended complaint to proceed. Furthermore, as Plaintiffs correctly
15
point out, Rule 15(a)(1)(B) gives a party 21 days after an opposing party files a Rule 12(b) motion
16
to amend a pleading as a matter of course. Thus, Plaintiffs were allowed to amend as a matter of
17
course. Accordingly, this argument for dismissal fails.
18
2.
Class Action Claims Under State Labor Law
19
The FLSA states, “[n]o employee shall be a party plaintiff to any such action
20
unless he gives consent in writing to become such a party and such consent is filed in the court in
21
which such action is brought.” 29 U.S.C. § 216(b). This so-called “opt-in” mechanism is used for
22
FLSA collective actions and requires class members to affirmatively consent to be included in the
23
litigation. Conversely, Rule 23 of the Federal Rules of Civil Procedure governing traditional class
24
action suits states, “the court will exclude from the class any member who requests exclusion.”
25
Fed. R. Civ. P. 23(c)(2)(B)(v). This “opt-out” provision requires class members to affirmatively
26
opt-out of the class or be bound by the resulting litigation. As a result, the FLSA and Rule 23
AO 72
(Rev. 8/82)
4
1
appear to have conflicting mechanisms for class membership. Fetrow-Fix v. Harrah's Entm't,
2
Inc., No. 2:10-cv-00560-RLH-PAL, 2010 WL 4774255 (D. Nev. Nov. 16, 2010), reconsideration
3
denied, 2011 WL 2313650, June 9, 2011. This Court and others have held that state law class
4
claims which are predicated on the same acts and circumstances as a simultaneously asserted
5
FLSA claim collective action must be dismissed due to the conflicting “opting” mechanisms.1
6
Here, Plaintiffs have asserted state class claims and FLSA class claims arising out
7
of the same acts and circumstances. Integrity argues that Plaintiffs’ state class claims are
8
preempted by the FLSA because of the conflicting mechanisms. In opposition, Plaintiffs rely on a
9
decision by the Honorable Gloria M. Navarro to grant a motion for reconsideration in Daprizio v.
10
Harrah’s Las Vegas, Inc., No. 2:10-cv-00604-GMN-RJJ, 2010 U.S. Dist. LEXIS 135113 (D. Nev.
11
Dec. 7, 2010), where Judge Navarro allowed the Daprizio plaintiffs to proceed with conflicting
12
class mechanisms. Plaintiffs ask the Court to follow Judge Navarro’s lead and find their two class
13
mechanisms compatible. Although Plaintiffs may have some similar circumstances to the
14
plaintiffs in Daprizio, that decision is not binding on this Court. Furthermore, the Court finds
15
Plaintiffs’ analogous arguments for proceeding with conflicting class mechanisms unpersuasive.
16
Accordingly, the Court dismisses the state class claims.
17
3.
18
The FLSA guarantees covered employees a minimum hourly wage for their work
Plaintiffs’ FLSA claims and the Portal-to-Portal Act
19
and entitles them to one and one-half times their regular wage for overtime. 29 U.S.C. §§ 206,
20
207. A recurrent question under the FLSA has been when the compensable workday begins and
21
ends. The question often arises where employees perform some tasks before productive work
22
23
24
25
26
AO 72
(Rev. 8/82)
1
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 statutes
with only opt-out requirements); Otto v. Pocono Health System, 457 F. Supp. 2d 522 (M.D. Pa. 2006).
5
1
begins or after it ends.” Sepulveda v. Allen Family Foods, Inc., 591 F.3d 209, 217–18 (4th Cir.
2
2009) (discussing the FLSA’s history and the legislation that limited expansive interpretation).
3
Congress passed the Portal-to-Portal Act (the “Act”), 29 U.S.C. §§ 251–62, in 1947
4
amending the FLSA. Id. The Act provides that employers shall not be subject to liability or
5
punishment under the FLSA for failing to pay an employee minimum wages or overtime
6
compensation for preliminary or postliminary activities such as walking, riding, or traveling to and
7
from the place of performance of the principle activities. 29 U.S.C. § 254(a). Principal activities
8
are defined as those “which the employee is employed to perform.” 29 C.F.R. § 790.8(a). The
9
phrase ‘preliminary activity’ means an activity engaged in by an employee before he commences
10
his ‘principal’ activity or activities, and the words ‘postliminary activity’ means an activity
11
engaged in by an employee after he completes his ‘principal’ activity or activities.” 29 C.F.R. §
12
790.7(b). “Under this provision, activities like changing clothes and washing which are performed
13
before or after the regular work shift are ‘ordinarily’ considered preliminary or postliminary
14
activities and are therefore ‘excluded from compensable work time’ by default.” Sepulveda, 591
15
F.3d at 213 (citing Steiner v. Mitchell, 350 U.S. 247, 249 (1956)).
16
As a result, to state a valid claim against an employer for a FLSA violation, a
17
plaintiff must allege that he was not compensated for activities that were “an integral and
18
indispensable part of the principal activities for which [he is] employed.” Rutti v. Lojack Corp.
19
Inc., 596 F.3d 1046, 1055 (9th Cir. 2010) (citing Lindow v. United States, 738 F.2d 1057, 1060
20
(9th Cir. 1984)). Courts must give “principal activities” a liberal construction no matter when the
21
work is performed and must also consider “the extent to which the work impacts the employee’s
22
freedom to engage in other activities.” Id. (citation omitted); see also 29 C.F.R. § 790.8(a). To
23
determine that an activity is “integral and indispensable,” and therefore compensable, a court must
24
conclude that the activity is performed as part of the employee’s regular work in the ordinary
25
course of business—not that the activity in question is uniquely related to the predominant
26
business activity. Id. at 1056.
AO 72
(Rev. 8/82)
6
1
a.
2
Security Screening
Waiting time generally does not qualify as integral and indispensable. See 29
3
C.F.R. § 790.7(g) (stating that “when performed under the conditions normally present,”
4
“checking in and out and waiting in line to do so” are considered non-compensable preliminary or
5
postliminary activities). As the Supreme Court has distinguished, “the fact that certain preshift
6
activities are necessary for employees to engage in their principal activities does not mean that
7
those preshift activities are integral and indispensable to a principal activity.” IBP, Inc. v. Alvarez,
8
546 U.S. 21, 40 (2005) (internal citation omitted).
9
Integrity contends that the time Plaintiffs’ allegedly spent waiting in line for post-
10
work security screenings is not actionable under the FLSA because this activity is not integral and
11
indispensable to their principal activities of employment. Plaintiffs allege that this was a principle
12
activity because this exercise was a daily requirement and took a significant amount of
13
time—approximately 25 minutes. They further allege that the screening is mandatory for all
14
employees. These allegations, however, do not demonstrate that the security process is integral
15
and indispensable to their principal activities as warehouse employees fulfilling online purchase
16
orders. Instead, these allegations fall squarely into a non-compensable category of postliminary
17
activities such as checking in and out and waiting in line to do so and “waiting in line to receive
18
pay checks,” 29 C.F.R. § 790.7(g), because Plaintiffs could perform their warehouse jobs without
19
such daily security screenings. Plaintiffs therefore fail to state a valid claim that the security
20
screens were a part of their regular work. The weight of authority concerning preliminary and
21
postliminary security screenings supports this conclusion.2 These cases pose difficult hurdles for a
22
2
23
24
25
26
AO 72
(Rev. 8/82)
See, e.g., Gorman v. The Consolidated Edison Corp., 488 F.3d 586, 592–93 (2d. Cir. 2007) (holding
that while security procedures including “waiting in line and passing through a radiation detector, x-ray machine,
and explosive metal detector” were necessary because they served an “essential purpose of security,” they were
not “integral” to the nuclear power station’s employees principal activities); Bonilla v. Baker Concrete
Construction, Inc., 487 F.3d 1340,1345 (11th Cir. 2007) (concluding that time spent going through airport
security to report to work was not compensable under the FLSA); De Asencio v. Tyson Foods, Inc., 500 F.3d 361,
364 n. 5 (3d Cir. 2007); Sleiman v. DHL Express, 2009 WL 1152187, at *4 (E.D. Pa. 2009) (collecting cases and
concluding that a security screening was “not compensable under the FLSA”).
7
1
plaintiff to overcome because the necessity of the security screenings in those cases was great, yet
2
it was still not integral and indispensable to the principal activities of employment. Accordingly,
3
the Court dismisses Plaintiffs’ claims with respect to security screening.
b.
4
Meal Period
5
Under FSLA regulations, an “employee must be completely relieved from duty for
6
the purpose of eating regular meals. Ordinarily 30 minutes or more is long enough for a bona fide
7
meal period.” 29 C.F.R. § 785.19(a). “Bona fide meal periods are not work time,” Id.; and are
8
therefore excluded from compensable work time under the FLSA. See 29 C.F.R. § 785.18.
9
However, if an employee is required to perform any duties while eating, he is not “completely
10
relieved from duty” and the time should be considered “hours worked” for purposes of calculating
11
overtime. Id.; see also Marshall v. Valhalla Inn, 590 F.2d 306, 308 (9th Cir. 1979).
The parties disagree with respect to which test the Ninth Circuit employs to
12
13
determine whether a meal period is “bona fide.” Integrity urges the Court to follow the
14
“predominant benefit test,” which examines whether the meal time is spent primarily for the
15
employer’s or employee’s benefit. See, e.g., Nelson v. Waste Mgmt. of Alameda County, Inc., No.
16
C 99-0120 SI, 2000 WL 868523, at * 3 (N.D. Cal. June 19, 2000). Plaintiffs, however, assert that
17
the proper test is the “completely relieved from duty” standard, Brennan v. Elmer’s Disposal
18
Service, Inc., 510 F.2d 84, 88 (9th Cir. 1975), under which an employee cannot be subject to
19
“significant affirmative responsibilities” during his meal period. Kohlheim v. Glynn County, Ga.,
20
915 F.2d 1473, 1477 (11th Cir. 1990).3 In Brennan, the Ninth Circuit held that “[a]n employee
21
cannot be docked for lunch breaks during which he is required to continue with any duties related
22
to his work.” Brennan, 510 F.2d at 88. In other words, the “essential consideration” is whether an
23
3
24
25
26
AO 72
(Rev. 8/82)
The Ninth Circuit has not directly addressed either test since deciding Brennan except for a brief
reference in Alvarez v. IBP, Inc, 339 F.3d 894, aff’d, 543 U.S. 1144 (2005), wherein the court compared the two
FLSA-based standards with Washington’s administrative code governing 30-minute meal breaks. Id. at 913; see
also Chao v. Tyson Foods, Inc., 568 F. Supp. 2d 1300, 1306–07 n.4 (N.D. Ala. 2008) (examining the circuit split
between the two tests and concluding that the Ninth and Eleventh Circuits still employ the “completely relieved
from duty” standard).
8
1
employee is “in fact relieved from work for the purpose of eating a regularly scheduled meal.”
2
Kohlheim, 915 F.2d at 1477.
3
The Court finds that Plaintiffs have failed to state a valid claim under either
4
standard. Integrity argues that Plaintiffs’ allegation that it did not provide a bona fide, 30-minute
5
meal period are insufficient under the Act because they were not expected—nor was it
6
possible—to perform any duty during that time. Plaintiffs allege they were not free from the
7
employer’s control because they were required to walk long distances to clock in and out during
8
their 30-minute meal period. They further allege that they were not relieved from their duties
9
because the time spent walking to the remote cafeteria meant they only received a 20-minute
10
uninterrupted meal period. In the Court’s view, these allegations are inadequate because 29
11
C.F.R. § 785.19 does not require an uninterrupted meal period to be free of an employer’s control,
12
only free of employment duties. Plaintiffs have not alleged that they performed any duty related
13
to their job as warehouse workers either during the walk or once they arrived at the cafeteria.
14
Thus, Plaintiffs did not allege they performed a significant affirmative responsibility while on
15
their meal breaks. The Court therefore finds that Plaintiffs’ allegations fail to state a valid claim
16
with respect to meal periods.
17
18
c.
The De Minimis Rule
In the alternative, the Court finds that Plaintiffs’ allegations related to shortened
19
meal periods would easily fall under the “de minimis rule,” which moderates an employer’s
20
obligation to pay for an employee’s efforts. Rutti, 596 F.3d at 1056. In determining whether
21
otherwise compensable time is de minimis, a court will consider: “(1) the practical administrative
22
difficulty of recording the additional time; (2) the aggregate amount of compensable time; and (3)
23
the regularity of the additional work.” Id. at 1057. This test reflects “a balance between requiring
24
an employer to pay for activities it requires of its employees and the need to avoid ‘split-second
25
absurdities’ that ‘are not justified by the actuality of the working conditions’.” Id. (quoting
26
Lindow, 738 F.2d at 1062). Although it has not adopted a categorical ten or fifteen minute bright-
AO 72
(Rev. 8/82)
9
1
line approach to the de minimis rule, the Ninth Circuit has noted that “most courts have found
2
daily periods of approximately 10 minutes de minimis even though otherwise compensable.” Id.
3
at 1058 (citation excluded).
4
Plaintiffs claim that they “were required to spend up to 10 minutes per day during
5
their meal period walking to and from the cafeteria and/or undergoing security clearances.” (Dkt.
6
#11, Am. Compl. ¶ 11.) In addition, Plaintiffs spent “a significant amount of time walking from
7
one end of the facility to another” throughout the work day. (Id. ¶ 13.) As the Court previously
8
explained, the Act excludes activities such as walking to and from the place of performance of the
9
principle activities from compensable wages under the FLSA. 29 U.S.C. § 254(a). Thus, on its
10
face, the two five-minute walks were not compensable.
11
Nevertheless, taking Plaintiffs allegations as true, the Court concludes that the two
12
five-minute walks per day were de minimis because recording such time would pose a practical
13
administrative difficulty to record each warehouse employee’s time spent walking. This is
14
particularly true because employees spent their work days traversing the entire warehouse. Thus,
15
Plaintiffs may have spent little or no time walking to and from the time-keeping system on certain
16
days if they happened to be next to the system when their meal period began. Further bolstering
17
this conclusion, Plaintiffs do not allege they walked 10 minutes during each day’s meal period;
18
therefore, regularity in this activity cannot be concluded. Although the Court cannot say that 10
19
minutes per day is a split-second absurdity, Ninth Circuit precedent and the actualities of working
20
conditions in this case compel a finding that this time is de minimis and non-compensable.
21
5.
22
NRS §§ 608.018 and 608.019 state that an employee must be compensated for
23
overtime worked and be provided meal and rest periods. Although there is no private right of
24
action expressly stated in these two statutes, NRS § 608.140 provides a private right of action to
25
recoup unpaid wage violations when stating that other fees may be added in addition to the
26
amount due for unpaid wages. Furthermore, the Nevada Supreme Court has recognized that NRS
AO 72
(Rev. 8/82)
Private Right of Action to Recoup Unpaid Wages
10
1
§ 608.140 contains an express civil remedy in the form of a civil action by employees to recoup
2
unpaid wages. Baldonado v. Wynn Las Vegas, LLC, 194 P.3d 96, 104 (Nev. 2008).
Integrity argues that there is no private right of action under NRS §§ 608.018 and
3
4
608.019 for Plaintiffs to recoup unpaid wages. In essence, Integrity argues that overtime pay is
5
not wages but it is special compensation for work in excess of 40 hours per week. Integrity urges
6
the Court to follow an unpublished decision in this District, Lucas v. Bell Trans, No. 2:08-cv-
7
01792-RCJ-RJJ, 2009 WL 2424557 (D. Nev. June 24, 2009), which seemingly supports
8
Integrity’s argument by stating that a private right of action for unpaid wages “does not extend to
9
minimum wages or overtime compensation.” Id. at *5. However, Integrity fails to recognize that
10
the circumstances in Lucas were quite different than the case at bar because its plaintiffs were
11
limousine drivers who were subject to a statutory exclusion from overtime pay. Id. at *8. The
12
Lucas court did not conclude that unpaid overtime pay is not unpaid wages for which NRS §
13
608.140 provides a private right of action. Buenaventura v. Champion Drywall, Inc., 2011 WL
14
1071760, at *3–4 (D. Nev. Mar. 21, 2011) (discussing Lucas and concluding that a plaintiff may
15
pursue a claim to enforce NRS § 608.018 for unpaid overtime either directly or via NRS §
16
608.140). Therefore, Integrity’s argument fails.
The Court finds that Plaintiffs correctly use NRS § 608.140 as the private right of
17
18
action to recoup unpaid wages period under NRS §§ 608.018 and 608.019. Nevertheless,
19
Plaintiffs have failed to allege fact scenarios that would support a valid claim under these Nevada
20
statutes. Their entire amended complaint relates to the security clearance and shortened meal
21
periods. Since the predicate to Plaintiffs’ claims for violation of NRS §§ 608.018 and 608.019 has
22
failed, these claims are legal conclusions that do not permit the court to infer more than the mere
23
possibility of misconduct. See Iqbal, 129 S. Ct. at 1949. Accordingly, Plaintiffs have failed to
24
state sufficient facts to proceed with their claims under NRS §§ 608.018 and 608.019.
25
///
26
///
AO 72
(Rev. 8/82)
11
1
6.
NRS § 608.030
2
NRS §§ 608.020 and 608.030 address the timing for payment of unpaid wages to
3
former employees. Plaintiffs allege that Integrity failed to pay them and members of the proposed
4
class their unpaid wages within the time set forth in these statutes. Conversely, Integrity asserts
5
that Plaintiffs do not set forth a claim under Nevada state law because their FLSA claims for
6
security clearance and shortened meal periods fail as a matter of law. Although Integrity’s
7
conclusion would not be true in every instance, here, Plaintiffs have failed to allege fact scenarios
8
other than the security clearance and shortened meal periods that would support a valid claim
9
under NRS § 608.030. Thus, as previously explained, the remainder of Plaintiffs’ state law labor
10
claims are legal conclusions that do not permit the Court find that their allegations rise above the
11
speculative level. See Twombly, 550 U.S. at 555. Accordingly, Plaintiffs have failed to state a
12
claim under NRS § 608.030 and the Court grants Integrity’s motion.
CONCLUSION
13
14
Accordingly, and for good cause appearing,
15
IT IS HEREBY ORDERED that Defendants’ Motion to Dismiss (#16) is
16
17
GRANTED in its entirety. The Clerk of the Court is directed to close this case.
Dated: July 19, 2011.
18
____________________________________
ROGER L. HUNT
United States District Judge
19
20
21
22
23
24
25
26
AO 72
(Rev. 8/82)
12
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?