Ohlinger v. Marsh USA, Inc.

Filing 32

ORDER GRANTING 10 Motion to Dismiss. Plaintiff's second and third claims are dismissed with prejudice. Signed by Judge Jennifer A. Dorsey on 3/29/2017. (Copies have been distributed pursuant to the NEF - DC)

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1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 4 5 Bonnie Ohlinger, on behalf of herself and all similarly situated persons, Case No. 2:16-cv-02588-JAD-CWH Plaintiff 6 7 v. 8 Order Granting Motion to Dismiss NRS Chapter 608 Claims Marsh USA, Inc., et al., [ECF No. 10] Defendants 9 10 Bonnie Ohlinger claims that her employer Marsh USA violated the Federal Labor Standards 11 12 Act (FLSA) and various Nevada state labor laws when requiring her and similarly situated 13 employees to work more than 40 hours a week. Marsh moves to dismiss Ohlinger’s state-law 14 claims, arguing that Nevada does not recognize a private right of action for violating NRS Chapter 15 608, rather the power to enforce those laws is vested entirely in Nevada’s Labor Commissioner.1 For 16 the reasons I explained in Cardoza v. Bloomin’ Brands, Inc.,2 I agree and grant the motion to 17 dismiss. Discussion 18 In addition to an FLSA claim, Ohlinger pleads claims under NRS 608.005, 608.016, and 19 20 608.018 (overtime pay), NRS 608.115 (failure to maintain records), NRS 608.040 (failure to pay 21 discharged employee’s earned but unpaid wages), and NRS 608.140 (attorney’s fees in wage 22 action).3 Marsh moves to dismiss these claims, which are collectively contained in counts two and 23 three of the complaint, arguing that NRS Chapter 608 does not provide a private right of action to 24 25 1 ECF No. 10. 27 2 Cardoza v. Bloomin’ Brands, Inc., 2014 WL 3748641, **1–3 (D. Nev., July 30, 2014). 28 3 ECF No. 1-2 (complaint, claims 2 and 3). 26 1 1 maintain a civil suit for violation of these state statutes.4 Ohlinger mainly rests her private-right-of- 2 action argument on two points5 of Nevada authority: (1) NRS 608.140, which allows the court to 3 award certain categories of employees attorney’s fees in a “suit for wages earned and due according 4 to the terms of his or her employment,” and (2) a footnote in the Nevada Supreme Court’s opinion in 5 Baldonado v. Wynn Las Vegas, LLC, which recognizes that “a private cause of action to recover 6 unpaid wages is entirely consistent with the express authority under NRS 608.140 to bring private 7 actions for wages unpaid and due.”6 In Cardoza v. Bloomin’ Brands, Inc., I considered and rejected the same arguments that 8 9 Ohlinger advances here. Like Ohlinger, Cardoza pled wage claims under both the FLSA and NRS 10 Chapter 608. I dismissed the state-law claims after concluding that Nevada’s statutory scheme does 11 not afford the right to bring a civil suit for violations of these labor laws.7 Like Ohlinger, Cardoza 12 attempted to bootstrap a private right to enforce other provisions of Chapter 608 from NRS 608.140, 13 which the Nevada Supreme Court acknowledged in Baldonado v. Wynn8 “expressly recognize[s] a 14 civil enforcement action to recoup unpaid wages.” But after I considered the statute’s text and 15 legislative history,9 I concluded that NRS 608.140 does not create a vehicle for privately enforcing 16 the legal rights conferred by the other provisions of Chapter 608; it merely establishes a fee-shifting 17 mechanism in an employee’s “suit for wages earned and due according to the terms of his or her 18 employment.”10 Ohlinger has not persuaded me otherwise. The Baldonado footnote does not undermine this conclusion. It merely acknowledges a 19 20 21 4 ECF No. 10. 5 ECF No. 21. 6 Baldonado v. Wynn Las Vegas, 194 P.3d 96, 104 n.33 (Nev. 2008). 7 Cardoza, 2014 WL 3748641, **1–3. 8 194 P.3d at 104 n.33. 27 9 Cardoza, 2014 WL 3748641, **1–2, incorporated herein. 28 10 22 23 24 25 26 Nev. Rev. Stat. § 608.140. 2 1 secondary effect of NRS 608.140: this attorney’s fee provision merely “recognize[s] a civil 2 enforcement action to recoup unpaid wages.”11 It was logical for the Baldonado court to frame the 3 issue this way because the right to sue for unpaid wages existed in Nevada before NRS 608.140 was 4 enacted and exists independent of Chapter 608.12 So, unlike plaintiff, I do not read Baldonado to 5 hold “that employees such as Ms. Ohlinger have standing to recover unpaid wages, including 6 overtime, under NRS 608.005 et seq.”13 Instead, I continue to hold that employees may recover 7 unpaid wages under Nevada law if those sums were earned and due according to the terms of their 8 employment, but they do not enjoy a private right of action for violations of NRS Chapter 608.14 9 Those violations are for the Labor Commissioner to sort out.15 10 ... 11 12 13 14 15 11 16 12 17 18 19 20 21 22 23 24 25 26 27 28 Baldonado, 194 P.2d at 705 n.33. See, e.g., Walser v. Moran, 173 P. 1149 (Nev. 1918) (allowing claim for breach of employment contract); Siebert v. Smith, 239 F. 396 (Nev. 1925) (recognizing viability of claim wages in equity). 13 ECF No. 21 at 5. Because I find that Baldonado’s language does not prove that Nevada recognizes a private right of action for violations of NRS Chapter 608, I take no stock in the Ninth Circuit’s statement in Busk v. Integrity Staffing Solutions, Inc., 713 F.3d 525, 532 (2013), that the statute “does provide a private right of action to recoup unpaid wages.” The statement is dicta, and the panel cites only to Baldonado to support it. And neither Baldonado nor the statute’s plain language and legislative history supports the characterization of this provision as one that “provide[s]” a private right of action rather than one that merely recognizes that wage claims are—and have long been—available. See supra at pp. 2–3. 14 To the extent that other trial courts have reached a contrary result, see ECF No. 21 at 6–11 (collecting authority), I respectfully disagree with their conclusions. 15 See Nev. Rev. Stat. § 607.160 et seq.; Nev. Rev. Stat. § 608.180; Baldonado, 194 P.3d at 104 (“the labor statutes . . . require the Labor Commissioner to hear and decide complaints seeking enforcement of the labor laws”; “the Labor Commissioner is charged with knowing and enforcing the labor laws; these responsibilities acknowledge a special expertise as to those laws” and “[i]mplicit in the Labor Commissioner’s obligation to know and enforce the labor laws is the duty to hear and resolve labor law complaints”). 3 1 2 3 4 5 6 Conclusion Accordingly, IT IS HEREBY ORDERED that Defendants’ Motion to Dismiss [Doc. 10] is GRANTED. Plaintiff’s second and third claims are dismissed with prejudice. DATED March 29, 2017. _________________________________ Jennifer A. Dorsey United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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