Corbett et al v. Public Employees' Retirement System, ex rel. State of Nevada et al

Filing 27

ORDER granting 9 Motion to Dismiss the claims against PERS. Signed by Judge Kent J. Dawson on 9/9/2021. (Copies have been distributed pursuant to the NEF - DRS)

Case 2:20-cv-02149-KJD-NJK Document 27 Filed 09/09/21 Page 1 of 5

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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JEFF CORBETT, et al.,

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Plaintiffs,
v.

ORDER GRANTING DEFENDANT’S
MOTION TO DISMISS

PUBLIC EMPLOYEES’ RETIREMENT
SYSTEM, EX REL. STATE OF NEVADA;
LAS VEGAS METROPOLITAN POLICE
DEPARTMENT, a political subdivision of the
State of Nevada; and DOES I-X, inclusive,

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Case No. 2:20-cv-02149-KJD-NJK

Defendants.
Before the Court is Defendant Public Employees’ Retirement System’s (“PERS”) Motion

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to Dismiss (ECF #9). Defendant Las Vegas Metropolitan Police Department (“Metro”) filed a

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notice of non-opposition (ECF #14). Plaintiffs responded in opposition (ECF #16) and PERS

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replied (ECF #18).

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I.

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Plaintiffs allege that Defendants PERS and Metro have failed to contribute and pay out

Factual and Procedural Background

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the proper amount of retirement benefits. Plaintiffs are employees or retirees from Metro and

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have worked as canine handlers for periods ranging between 14 and 20 years. (ECF #1-2, at 3).

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Canine handlers are required to be on call 24 hours per day and ready to be on the road within 30

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minutes of a call. Id. at 4. They also routinely work varying hours, shifts, and overtime and

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accept responsibility for the complete care, control, custody, and actions of police service dogs.

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Id. A canine handler’s shift is defined as the span of hours during which an individual is assigned

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to work. Id. Plaintiffs allege that they are assigned to work 24 hours per day and 365 days per

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year. Id. Canine handlers are paid for either 10 or 15 hours per pay period depending on the

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number of dogs they are assigned. Id. Plaintiffs refer to this pay as Canine Pay. Id. Plaintiffs

Case 2:20-cv-02149-KJD-NJK Document 27 Filed 09/09/21 Page 2 of 5

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allege that they work more than the number of hours allotted per pay period. Id.

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Plaintiffs are enrolled in the PERS Police and Firefighters’ Retirement Fund. Id.

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According to Plaintiffs, PERS has wrongfully withheld pay from Plaintiffs’ pension calculations

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and benefits and Metro has failed to pay contributions to PERS. Id. at 5. As such, Plaintiffs

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brought claims for unpaid pension contributions, unpaid overtime, breach of contract, breach of

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fiduciary duty, breach of statutory duty, negligence, unjust enrichment, and unpaid wages. Id. at

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3–12. Plaintiffs seek liquidated damages, attorney fees, a declaratory judgment of their rights and

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obligations, injunctive relief, and to compel PERS to audit Metro to determine what benefits

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have been paid out. Id. at 10–14. Defendant Metro answered the complaint and filed a notice of

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non-opposition to PERS’ motion to dismiss. (ECF #14).

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II.

Legal Standard

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Under Rule 8, a pleading must contain “a short and plain statement of the claim showing

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that the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). A complaint does not require

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“detailed factual allegations,” but “requires more than labels and conclusions, and a formulaic

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recitation of the elements of a cause of action will not do.” Bell Atlantic Co. v. Twombly, 550

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U.S. 544, 555 (2007). “To survive a motion to dismiss, a complaint must contain sufficient

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factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft

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v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 557). A complaint does not

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suffice “if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Id. (quoting

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Twombly, 550 U.S. at 557). All “[f]actual allegations must be enough to raise a right to relief

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above the speculative level.” Twombly, 550 U.S. at 555. While the court “must take all of the

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factual allegations in the complaint as true, we ‘are not bound to accept as true a legal conclusion

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couched as a factual allegation.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).

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“When the claims in a complaint have not crossed the line from conceivable to plausible, the

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complaint must be dismissed.” Hendon v. Geico Ins. Agency, 377 F.Supp.3d 1194, 1196 (D.

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Nev. 2019).

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III.

Analysis

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Plaintiffs’ complaint stems from a wage dispute with Metro. PERS argues that it cannot

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Case 2:20-cv-02149-KJD-NJK Document 27 Filed 09/09/21 Page 3 of 5

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be held liable for Metro’s conduct or wage disputes arising from an employment contract

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because it merely collects contributions made by employers. Plaintiffs argue that PERS must be

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held liable for its conduct that the complaint alleges was improper regardless of the dispute with

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Metro. Plaintiffs’ response to PERS’ motion to dismiss points out two causes of action that

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include specific allegations that PERS acted improperly. In the first claim, Plaintiffs allege that

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PERS wrongfully withheld benefits from Plaintiffs or made improper benefit calculations. In the

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fourth claim, Plaintiffs allege that PERS supplied Plaintiffs with a Summary Plan Description

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(“SPD”), the SPD created a contract between Plaintiffs and PERS, and PERS is liable for the

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promises made in the contract. While the response focuses on these two claims, the complaint

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names PERS in multiple causes of action. Having reviewed the complaint and motion, the Court

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will grant PERS’ motion to dismiss because it agrees that PERS cannot be liable for relying on

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the information provided by Plaintiffs’ employers and because Plaintiffs have failed to allege

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facts to support their claims against PERS.

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The first claim is for unpaid pension contributions and benefits. The complaint details the

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wages canine handlers earn and alleges that Plaintiffs are entitled to more pay. The only

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allegation against PERS is that it “has wrongly withheld Canine Pay from [Plaintiffs’] pension

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calculations and benefits.” (ECF #1-2, at 6). There are no facts alleged to support the allegation.

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Plaintiffs do not explain how much was withheld, when the wrongdoing occurred, or how PERS

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miscalculated the benefits after Metro supplied its contributions. The complaint focuses on

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Metro’s failure to pay a proper wage, which resulted in fewer benefits. If Plaintiffs are right and

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Metro did not pay proper wages, PERS is not liable because it is not responsible “for inaccurate

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or misleading information provided by an officer or employee or a participating public employer

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or any other person.” NEV. REV. STAT. §286.288. Unless Plaintiffs can allege facts to support the

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claim that PERS wrongfully withheld or miscalculated benefits, the claim cannot survive.

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Plaintiffs’ fourth claim fails for the same reason. Plaintiffs allege that the SPD that PERS

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provided to Plaintiffs is a contract and that PERS breached said contract. The SPD is not

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included with the complaint, but Plaintiffs allege that the SPD states that benefit calculations

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include average compensation of the thirty-six highest consecutive months of compensation.

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Because PERS did not include Canine Pay in the calculation of benefits, Plaintiffs allege that

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PERS breached its contract. Again, Plaintiffs do not allege facts supporting the claim. Instead,

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they allege that Metro did not pay them properly, and because they were not paid properly by

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Metro, PERS did not distribute sufficient retirement benefits. There is no allegation that Metro

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supplied correct information that PERS ignored or that PERS intentionally withheld benefits in

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breach of the contract. PERS is not responsible for inaccurate information provided by

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employers. NEV. REV. STAT. §286.288. If Metro failed to pay Plaintiffs according to their

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contract, PERS is not responsible. Because a complaint does not suffice if it tenders naked

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assertions devoid of further factual enhancement, these claims against PERS are dismissed.

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Iqbal, 556 U.S. at 678.
The fifth claim is for breach of a fiduciary duty against all defendants. Plaintiffs allege

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that PERS ignored or failed to recognize that Canine Pay is made without regard to actual hours

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worked and that it failed to properly audit Metro. PERS argues again that it cannot be

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responsible for the inaccurate reporting from employers. Plaintiffs argue that dismissing this

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claim would require the Court to assume that Metro failed to accurately report the information,

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and such assumptions are inappropriate when ruling on a motion to dismiss. However, the vast

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majority of the complaint focuses on Metro’s failure to compensate Plaintiffs for time worked.

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Metro has the responsibility as Plaintiffs’ employer to contribute the proper amount to PERS.

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Plaintiffs have not alleged facts to support the allegation that PERS ignored improper

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contributions, why it should be liable for such inaccurate contributions when Nevada statutes

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state otherwise, or why it had a duty or reason to audit Metro. As such, this claim against PERS

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is dismissed. The sixth and eighth claims against PERS are dismissed for the same reason.

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Plaintiffs’ tenth claim is for unjust enrichment. Plaintiffs recognize in their response that

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if PERS withheld money that should have been paid out to Plaintiffs then they would be unjustly

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enriched. If they did not withhold money, then there is no unjust enrichment. Plaintiffs state that

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discovery is required to determine if PERS was unjustly enriched. Again, this claim stems from

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Plaintiffs’ dispute with Metro regarding their pay. Plaintiffs have not alleged facts to support this

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claim and their strategy to use discovery to find out if PERS was unjustly enriched does not meet

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the Iqbal/Twombly pleading standard. Plaintiffs claim “that [they] should be permitted discovery

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to find facts showing that [defendants] are in someway liable . . . [but] Iqbal and Twombly

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prohibit such fishing expeditions.” Valenzuela v. Culinary Training Academy, No. 2:10-cv-

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02012-RLH-PAL, 2011 WL 2609861, at *3 (D. Nev. June 29, 2011).

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Plaintiffs have a duty to plead facts sufficient to permit the court to infer more than the

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mere possibility of misconduct. Id. “When the claims in a complaint have not crossed the line

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from conceivable to plausible, [a] plaintiff’s complaint must be dismissed.” Id. Plaintiffs’

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complaint has not alleged facts to cross the line from conceivable to probable. The action is a

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wage dispute with Metro and if Plaintiffs discover facts to support a claim against PERS, they

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may seek leave to amend their complaint and provide the proper supporting factual allegations.

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Id. However, as pled, the claims against PERS are dismissed.

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IV.

Conclusion

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Accordingly, IT IS HEREBY ORDERED that Defendant’s Motion to Dismiss (ECF #9)

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is GRANTED.

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Dated this 9th day of September, 2021.

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_____________________________
Kent J. Dawson
United States District Judge

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