Eikleberry v. Washoe County

Filing 8

ORDERED that the # 5 Motion to Dismiss for Improper Venue is GRANTED. IT IS FURTHER ORDERED that the Clerk shall close the case. Signed by Chief Judge Robert C. Jones on 4/25/2013. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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KEVIN EIKLEBERRY,

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This is a federal wage dispute arising out of unpaid “on-call” time. Pending before the

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Plaintiff,
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vs.
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WASHOE COUNTY,
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Defendant.

3:12-cv-00607-RCJ-WGC
ORDER

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Court is a Motion to Dismiss for Improper Venue (ECF No. 5). For the reasons given herein, the

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Court grants the motion as an unenumerated 12(b) motion.

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I.

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FACTS AND PROCEDURAL HISTORY
From September 27, 2010 to August 18, 2011, Plaintiff Kevin Eikleberry was a Sergeant

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for the Washoe County Sheriff’s Office (“WCSO”) serving as a supervising sergeant for

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WCSO’s Search and Rescue Team. (Compl. ¶¶ 6–7, Nov. 15, 2012, ECF No. 1). These duties

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required Plaintiff to remain “on-call,” usually on weekends, but Defendant did not pay Plaintiff

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for time spent “on-call,” which time totaled 5655 hours, equating to $53,722.50 in pay.

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(Id. ¶¶ 7–8). Plaintiff sued Defendant in this Court for unpaid wages pursuant to § 16(b) of the

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Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 216(b). Defendant has asked the Court to

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dismiss under Rule 12(b)(3) for improper venue.

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II.

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LEGAL STANDARDS
Federal Rule of Civil Procedure 12(b)(3) mandates that a court dismiss a cause of action

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when venue does not lie. Fed. R. Civ. P. 12(b)(3). However, Defendant’s arguments are based

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upon Plaintiff’s alleged failure to exhaust administrative remedies, i.e., arbitration. Motions to

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dismiss for failure to exhaust non judicial remedies, such as arbitration requirements in

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collective bargaining agreements, are treated as “‘non-enumerated’ Rule 12(b) motion[s].”

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Inlandboatmens Union of Pac. v. Dutra Grp., 279 F .3d 1075, 1078 & n.2 (9th Cir. 2002)

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(quoting Ritza v. Int’l Longshoremen’s & Warehousemen’s Union, 837 F.2d 365, 369 (9th Cir.

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1988)). Non-exhaustion is a matter in abatement related to jurisdiction and properly addressed

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via a motion to dismiss but under which a district court is to examine and interpret the relevant

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arbitration clause and determine whether it requires arbitration of the claims as a matter of law.

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See id. at 1078 n.2, 1083–84. Arbitration clauses in collective bargaining agreements

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presumptively apply to any labor dispute requiring the interpretation of the agreement. See id. at

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1078–79.

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III.

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ANALYSIS
Defendant notes that “on-call” time is a topic of mandatory bargaining for public

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employees under both the FLSA and Chapter 288 of the Nevada Revised Statutes (“NRS”).

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Accordingly, Article 14 of the Collective Bargaining Agreement (“CBA”), to which the parties

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are subject, addresses and governs disputes concerning “on-call” time. Defendant adduces the

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CBA as Exhibit A to the present Motion. Article 14 appears on pages 10–11 (pages 14–15 of

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ECF No. 5-1). There are two types of “on-call” time potentially covered by the present dispute.

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First, “call-in” time consists of time actually worked when an employee is called in to work at a

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time not normally scheduled. (See CBA art. 15, para. F., at 11, ECF No. 5-1, at 15). Hours

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worked during “call-in” time must be paid at time-and-a-half, and at least two hours of work

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must be credited for a “call-in.” (Id.). Second, “standby time” consists of time not actually

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worked but for which the employee is restricted so that he may be called in for “call-in” time, and

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it specifically excludes any time during which an employee wears a pager. (See id. art. 15, para.

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G., at 11, ECF No. 5-1, at 15). Hours worked during “standby time” time must be paid at one-

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fourth the normal wage.

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The Court grants the motion. Plaintiff has not alleged having grieved and arbitrated the

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dispute, which is plainly covered by the CBA. (See CBA art. 33, at 22–23, ECF No. 5-1, at

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26–27). Also, Plaintiff failed to respond by the stipulated extended deadline of February 21,

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2013.

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CONCLUSION
IT IS HEREBY ORDERED that the Motion to Dismiss for Improper Venue (ECF No. 5)
is GRANTED.

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IT IS FURTHER ORDERED that the Clerk shall close the case.

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IT IS SO ORDERED.

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Dated this 25th day April, 2013.
Dated this 15th day of of April, 2013.

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_____________________________________
ROBERT C. JONES
United States District Judge

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