Small et al v. University Medical Center of Southern Nevada

Filing 33

ORDER denying without prejudice 23 Motion to Dismiss. Plaintiffs' unauthorized surreply 31 and defendant's reply thereto 32 are STRICKEN. Signed by Judge Howard D. McKibben on 11/14/12. (Copies have been distributed pursuant to the NEF - JC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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DANIEL SMALL, CAROLYN SMALL, and
WILLIAM CURTIN, Individually and
on Behalf of All Other Persons
Similarly Situated,

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Plaintiffs,
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vs.
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UNIVERSITY MEDICAL CENTER OF
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SOUTHERN NEVADA,
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Defendant.
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_________________________________ )

3:12-cv-00395-HDM-VPC
ORDER

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The defendant has filed a motion to dismiss (#23).1
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Plaintiffs have opposed (#29), and defendant has replied (#30).
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On November 5, 2012, plaintiffs filed an unauthorized surreply
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(#31).

On November 13, 2012, defendant filed an unauthorized reply

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to the plaintiffs’ surreply (#32).

Because plaintiffs did not seek

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leave of court to file the surreply, the surreply does not address
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new arguments raised by defendant in its reply, and the surreply is
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in any event unnecessary for the court to consider in deciding the
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Along with its motion defendant filed a request for judicial notice
(#24), which plaintiffs have not opposed.

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motion to dismiss, plaintiffs’ surreply (#31) is hereby STRICKEN.

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Defendant’s reply to plaintiffs’ stricken surreply (#32) is also

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therefore STRICKEN.

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In its motion to dismiss, defendant argues that plaintiffs’

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Fair Labor Standards Act (“FLSA”) claims are subject to the

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grievance-arbitration procedure of their collective bargaining

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agreement (“CBA”).

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independent from any rights conferred by a CBA, and the Ninth

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Circuit has specifically held that “employees are entitled to take

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their FLSA claims to court regardless of whether those claims may

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also be covered by the grievance-arbitration procedure.”

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Albertson’s, Inc. v. United Food & Comm. Workers Union, AFL-CIO &

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CLC, 157 F.3d 758, 760-62 (9th Cir. 1998); see also Barrentine v.

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Arkansas-Best Freight Sys., 450 U.S. 728, 740-45 (1981).

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Accordingly, the mere fact that a CBA contains a grievance-

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arbitration procedure covering pay and overtime pay claims does

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not, of itself, bar the plaintiffs from bringing their FLSA claims

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to court.

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However, FLSA rights are separate and

Nonetheless, defendant argues, a CBA may require employees to

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arbitrate their statutory rights.

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any agreement to submit statutory claims to the grievance and

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arbitration procedure contained in a CBA

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right to a judicial forum for such claims – must be “clear and

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unmistakable.”

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79-81 (1998).

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union and its members, including plaintiffs, to submit pay and

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overtime claims, including the Fair Labor Standards Act (“FLSA”)

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and state wage and hour statutes involved here, to the mandatory

The Supreme Court has held that

– and thus to waive the

Wright v. Univ. Maritime Serv. Corp., 525 U.S. 70,
While defendant asserts that “the CBA requires the

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grievance-arbitration procedures contained in the CBA,” (Def. Reply

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2), it fails to identify any language in the CBA requiring such.

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Instead, it cites broadly to Article 9 of the CBA, which requires

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“[a]ll grievances” to be submitted to the grievance-arbitration

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procedure outline in the article.

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relevant part, as “a dispute regarding the interpretation and

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application of the provisions of the Agreement . . . alleging a

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violation of the terms and provisions of this Agreement.”

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Art. 9, ¶¶ 1-2).

A “grievance” is defined, in

(CBA

This language does not clearly and unmistakably

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require the plaintiffs to submit their statutory claims to the

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CBA’s grievance-arbitration procedure.

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disputes arising out of the agreement itself.

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to point to any other language in the CBA constituting a “clear and

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unmistakable” waiver of plaintiffs’ rights to bring their statutory

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claims in this court, and, at this juncture, there is nothing to

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distinguish this case from Albertson’s, 157 F.3d 758.

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the motion to dismiss plaintiffs’ FLSA claims is DENIED WITHOUT

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PREJUDICE.

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In fact, it is limited to
Defendant has failed

Accordingly,

As to plaintiffs’ state law claims, which defendant argues are

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preempted by the Labor Management Relations Act(“LMRA”), the court

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cannot at this time determine whether such claims are grounded in

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the provisions of the CBA or substantially dependent on the CBA and

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thus require interpretation of the CBA.

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Pac. Corp., 491 F.3d 1053, 1058-60 (9th Cir. 2007).

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dismiss plaintiffs’ state law claims is therefore DENIED WITHOUT

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PREJUDICE to renew at the close of discovery as a motion for

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summary judgment.

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See Burnside v. Kiewit
The motion to

In accordance with the foregoing, the defendant’s motion to
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dismiss (#23) is DENIED WITHOUT PREJUDICE to renew as a motion for

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summary judgment at the close of discovery.

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unauthorized surreply (#31) and the defendant’s reply thereto (#32)

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are hereby STRICKEN.

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IT IS SO ORDERED.

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The plaintiffs’

DATED: This 14th day of November, 2012.

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____________________________
UNITED STATES DISTRICT JUDGE

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