Avendano et al v. Security Consultants Group, Inc. et al

Filing 106

ORDER denying 62 Motion to Dismiss. Signed by Judge Howard D. McKibben on 9/15/2014. (Copies have been distributed pursuant to the NEF - KR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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ISAAC AVENDANO and ROLAND DUENAS, )
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Plaintiffs,
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vs.
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SECURITY CONSULTANTS GROUP, INC., )
et al.,
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Defendants.
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_________________________________ )

3:13-cv-00168-HDM-VPC
ORDER

Before the court is a motion to dismiss pursuant to Federal

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Rule of Civil Procedure 12(b)(6) (#62), filed by defendants

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Security Consultants Group, Inc. (“SCG”), Paragon Systems, Inc.

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(“Paragon”), and Securitas Security Services USA, Inc.

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(“Securitas”).

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defendants have replied (#71).

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The plaintiffs have opposed (#68), and the

The plaintiffs, who were employees of SCG (Compl. ¶¶ 12-13),

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assert in their complaint eleven different claims for relief

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against defendants SCG, Paragon, and Securitas.

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multiple Title VII claims, a claim under § 1981, claims under NRS

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§§ 613.330 and 613.340, a breach of contract claim under
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These include

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NLRA § 301, and a claim of “tortious interference with prospective

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business relationship / economic advantage.”

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197, 204-212.)

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NLRA § 301 against defendants United Government Security Officers

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of America, International Union (“UGSOA International”) and United

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Government Security Officers of America, Local 283 (“UGSOA Local

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238").

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and UGSOA Local 238 are not parties to the motion (#62) presently

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before the court.

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(See Compl. ¶¶ 112-

Plaintiffs also assert one claim for relief under

(See Compl. ¶¶ 198-203.)

Defendants UGSOA International

Standard
In considering a motion to dismiss under Rule 12(b)(6), the

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court must accept as true all material allegations in the complaint

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as well as all reasonable inferences that may be drawn from such

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allegations.

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2000).

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the light most favorable to the nonmoving party.

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States, 234 F.3d 428, 435 (9th Cir. 2000).

LSO, Ltd. v. Stroh, 205 F.3d 1146, 1150 n.2 (9th Cir.

The allegations of the complaint also must be construed in
Shwarz v. United

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“Under the notice pleading standard of the Federal Rules,

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plaintiffs are only required to give a ‘short and plain statement’

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of their claims in the complaint.”

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1061, 1071 (9th Cir. 2009) (quoting Diaz v. Int’l Longshore &

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Warehouse Union, Local 13, 474 F.3d 1202, 1205 (9th Cir. 2007)).

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While this rule “does not require ‘detailed factual allegations,’ .

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. . it demands more than an unadorned, the-defendant-unlawfully-

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harmed-me accusation.”

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(citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

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A pleading is insufficient if it offers only labels and

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conclusions, a formulaic recitation of the elements of a cause of

Paulsen v. CNF, Inc., 559 F.3d

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

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action, or “naked assertions devoid of further factual

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enhancement.”

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complaint “must contain sufficient factual matter . . . to state a

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claim to relief that is plausible on its face.”

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plausibility standard demands “more than a sheer possibility that a

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defendant has acted unlawfully.”

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Procedural History

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Id. (internal punctuation omitted).

Thus, a

Id.

The

Id.

Defendants SCG, Paragon, and Securitas previously filed a
Motion to Dismiss pursuant to Federal Rule of Civil Procedure

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12(b)(6), or in the alternative a motion for a more definite

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statement pursuant to Federal Rule of Civil Procedure 12(e) (#17).

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The court denied the motion to dismiss without prejudice and

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granted the motion for a more definite statement, ordering

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plaintiffs to file an amended complaint “that clearly identifies

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the alleged conduct engaged in by defendants Paragon and Securitas

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that forms the basis for their liability under the plaintiffs’

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claims.”

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(#51 at 6.)

Plaintiffs filed their first amended complaint on February 14,

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2014 (#58).

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filed their renewed motion to dismiss pursuant to Federal Rule of

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Civil Procedure 12(b)(6) as to Defendant Securitas only.

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Analysis

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Defendants SCG, Paragon, and Securitas subsequently

Defendants SCG, Paragon, and Securitas jointly move to dismiss

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all claims against Securitas.

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time of the plaintiffs’ alleged injuries, the plaintiffs were

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employed by SCG, not by Securitas.

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defendants assert plaintiffs “have failed to make any legally-

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significant allegations against Securitas USA to differentiate them

The defendants state that at the

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(#62 at 3.)

Additionally,

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from Plaintiffs’ employer SCG.”

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Id.

Plaintiffs aver they “are not and have never claimed any

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theory of liability based on a parent/subsidiary or piercing the

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corporate veil or even . . . an indirect employer theory.”

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2-3).

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acted with such interrelation of operations that they are, for the

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purpose of liability to their employees . . . operating as one and

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the same consolidated entity since April 2011.

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Amended Complaint clearly alleges that the Company Defendants are

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(#68 at

Plaintiffs instead assert SCG, Paragon, and Securitas “have

Plaintiff’s [sic]

‘Joint Employers.’” (Id. at 3).
Plaintiffs attempt to apply an integrated enterprise test to

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demonstrate defendants are joint employers.

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determine joint liability as the parties suggest, but instead

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determines whether a defendant can meet the statutory criteria of

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an ‘employer’ for Title VII applicability.”

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Maritime Association, 336 F.3d 924, 928 (9th Cir. 2003).

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This test “does not

Anderson v. Pacific

The correct standard is the joint employment standard, which
is made up of various factors, such as:
(A) The nature and degree of control of the workers;
(B) The degree of supervision, direct or indirect, of
the work; (C) The power to determine the pay rates or
the methods of payment of the workers; (D) The right,
directly or indirectly to hire, fire, or modify the
employment conditions of the workers; [and]
(E) Preparation of payroll and payment of wages.

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E.E.O.C. v. Pacific Maritime Ass’n, 351 F.3d 1270, 1275 (9th

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Cir. 2003) (alteration in original).

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the standard explains the employer is “the person, or group of

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persons, who owns and manages the enterprise.

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hire and fire employees, can assign tasks to employees and

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supervise their performance, and can decide how the profits and
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An alternative phrasing of

The employer can

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losses of the business are to be distributed.”

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Gastroenterology Assocs. V. Wells, 538 U.S. 440, 450, 123 S.Ct.

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1673, 1680 (2003).

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Clackamas

¶ 12 of the amended complaint reads:
In its capacity as the Plaintiffs’ employer, since on
our [sic] about April, 2011, Securitas maintained
employee records on the Plaintiffs, tracked their hours
of work and maintained payroll records, provided them
with a vacation plan, provided them with insurance
benefits, maintained a Securitas employee number form
[sic] them, coordinated labor relations issues and
responses to unfair labor practice charges pertaining
to the Plaintiffs, handled their employment claims,
coordinated and prepared responses to Plaintiffs [sic]
EEOC charges, maintained employment records and
performed other employment related functions.

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Amended Compl. ¶ 12.

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relation of operations including common financial control.

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Amended Compl. ¶ 17.

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Additionally, plaintiffs allege interSee

The court must accept the plaintiffs’ material allegations as

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true (LSO, 205 F.3d at 1150 n.2) and construe them in the light

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most favorable to the plaintiffs (Shwarz v. United States, 234 F.3d

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at 435).

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sufficient to allow defendant Securitas to prepare a response.

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Plaintiffs aver common financial control, that defendant Securitas

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coordinated the preparation of a response to plaintiffs’ EEOC

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charges, and that defendant Securitas controlled Plaintiffs’

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benefits.

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E.E.O.C. v. Pacific Maritime Ass’n, and accepting the material

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allegations of the amended complaint as true, plaintiffs have

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stated a claim that entitles them to relief.

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At this stage, the averments in the amended complaint are

Under the joint employment standard enumerated in

Defendant Securitas may renew its assertion that it is not a
joint employer at the summary judgment stage or at trial, when the
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court need not construe the material allegations of the amended

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complaint in the light most favorable to plaintiff.1

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The motion of defendants Security Consultants Group, Inc.,

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Paragon Systems, Inc., and Securitas Security Services USA, Inc. to

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dismiss defendant Securitas is DENIED.

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IT IS SO ORDERED.

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DATED: This 15th day of September, 2014.

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____________________________
UNITED STATES DISTRICT JUDGE

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The issue of joint employment is routinely deferred until the parties are
able to conduct discovery. See e.g., Courtland v. GCEP-Surprise, LLC, 119 Fair
Empl.Prac.Cas. (BNA) 806 (2013); Garcia v. Courtesy Ford, Inc., 2007 WL 1192681
(2007); Ford-Torres v. Cascade Valley Telecom, Inc., 374 Fed.Appx. 698 (2010).

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