Descutner v. Newmont USA Ltd.

• Court: U.S. District Court — District of Nevada
• Writing for the Court: ROBERT C. JONES
• Decision Date: 01 November 2012
• Docket Number: 3:12-cv-00371-RCJ-VPC
• Citation: Descutner v. Newmont USA Ltd., 3:12-cv-00371-RCJ-VPC (D. Nev. Nov 01, 2012)
• Parties: TODD DESCUTNER, Plaintiff, v. NEWMONT USA LIMITED et al., Defendants.

TODD DESCUTNER, Plaintiff,

v.NEWMONT USA LIMITED et al., Defendants.

3:12-cv-00371-RCJ-VPC

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

Dated: November 1, 2012

ORDER

This case arises out of an employer's alleged failure to pay its employees for time worked during "breaks" and its alleged failure to pay overtime despite the fact that employees are entitled to it when the "working breaks" are considered. Pending before the Court is Defendants' motion to dismiss. For the reasons given herein, the Court grants the motion.

I. FACTS AND PROCEDURAL HISTORY

Plaintiff Todd Descutner worked for Defendant Newmont USA Ltd. or Defendant Newmont Mining Co. between January 2006 and June 2010. (See Compl. ¶¶ 4, May 18, 2012, ECF No. 1).¹ Defendants require certain hourly employees to work uncompensated during lunch and break periods, referring to the policy as keeping a "vigilant shift." (Id. ¶¶ 3, 9). Because Plaintiff must work during his putative break and lunch periods, he in fact works more than eighthours per day and more than forty hours per week, yet he is not compensated at all for work performed during these periods, and he therefore of course does not receive overtime pay for the hours worked in excess of forty hours per week. (See id. ¶¶ 29, 37-38).

Plaintiff sued Defendants in this Court on three causes of action: (1) Violation of the Fair Labor Standards Act ("FLSA") § 216(b) (class or collective action); (2) Violation of Nevada Revised Statutes ("NRS") Section 608.018 (individual claim); and (3) Violation of NRS Section 608.100 (individual claim). Defendants have moved to dismiss.

II. LEGAL STANDARDS

Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief" in order to "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 47 (1957). Federal Rule of Civil Procedure 12(b)(6) mandates that a court dismiss a cause of action that fails to state a claim upon which relief can be granted. A motion to dismiss under Rule 12(b)(6) tests the complaint's sufficiency. See N. Star Int'l v. Ariz. Corp. Comm'n, 720 F.2d 578, 581 (9th Cir. 1983). When considering a motion to dismiss under Rule 12(b)(6) for failure to state a claim, dismissal is appropriate only when the complaint does not give the defendant fair notice of a legally cognizable claim and the grounds on which it rests. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In considering whether the complaint is sufficient to state a claim, the court will take all material allegations as true and construe them in the light most favorable to the plaintiff. See NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986). The court, however, is not required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences. See Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). A formulaic recitation of a cause of action with conclusory allegations is not sufficient; a plaintiff must plead facts pertaining to his own case making a violation plausible, not just possible. Ashcroft v. Iqbal, 556 U.S. 662, 677-79(2009) (citing Twombly, 550 U.S. at 556) ("A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged."). In other words, under the modern interpretation of Rule 8(a), a plaintiff must do more than specify the legal theory under which he seeks to hold a defendant liable; he also must identify the theory of his own case so that the court can properly determine not only whether any such legal theory exists (Conley review), but also whether he has any basis for relief under such a theory even assuming the facts are as he alleges (Twombly-Iqbal review).

"Generally, a district court may not consider any material beyond the pleadings in ruling on a Rule 12(b)(6) motion. However, material which is properly submitted as part of the complaint may be considered on a motion to dismiss." Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990) (citation omitted). Similarly, "documents whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered in ruling on a Rule 12(b)(6) motion to dismiss" without converting the motion to dismiss into a motion for summary judgment. Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994). Moreover, under Federal Rule of Evidence 201, a court may take judicial notice of "matters of public record." Mack v. S. Bay Beer Distribs., Inc., 798 F.2d 1279, 1282 (9th Cir. 1986). Otherwise, if the district court considers materials outside of the pleadings, the motion to dismiss is converted into a motion for summary judgment. See Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 925 (9th Cir. 2001).

III. ANALYSIS

Defendants ask the Court to dismiss for five reasons: (1) the claims are preempted by the LMRA; (2) Plaintiff has failed to exhaust his administrative remedies under the collectivebargaining agreement ("CBA");² (3) there is no private right of action under the state statutes Plaintiff invokes; (4) there is no personal jurisdiction over Newmont Mining Co.; and (5) as to the class or collective action under the FLSA, Plaintiff has not sufficiently pled facts indicating similarities between the putative class members.

The Court rules that there is no private right of action under NRS sections 608.100 or 608.018. The Nevada Supreme Court has explicitly ruled there is no private right of action to enforce section 608.100. See Baldanado v. Wynn Las Vegas, LLC, 194 P.3d 96, 100-05 (Nev. 2008) (finding no private right of action under section 608.100 and two other sections of Chapter 608); see also Lucas v. Bell Trans, No. 2:08-cv-01792, 2009 WL 2424557 at *2-5 (D. Nev. June 24, 2009) (Jones, J.) (citing id.). Another court of this District has ruled that there is a private right of action for violations of section 608.018 pursuant to section 608.140. See Buenaventura v. Champion Drywall, Inc., 803 F. Supp .2d 1215, 1218-19 (D. Nev. 2011). Although the Nevada Supreme Court has not directly addressed the question, the Buenaventura court reasoned that because section 608.018 governs payment of overtime wages, and because there is a private right of action to recover unpaid wages under section 608.140, an employee may sue to recover wages owed under the standards of section 608.018 via a section 608.140 action. See id. at 1218.

The Court disagrees, however, and rules that section 608.140 does not imply a private right of action to sue under the labor code, but only to sue in contract. Section 608.140 clearly presumes the availability of some kind of private right of action to recover wages, because it governs attorney's fees and costs in such actions. See Nev. Rev. Stat. § 608.140 ("Whenever a mechanic, artisan, miner, laborer, servant or employee shall have cause to bring suit for wages earned and due according to the terms of his or her employment . . . ."). However, section 608.140 only implies a private right of action to recover wages "earned and due according to theterms of his or her employment," and therefore appears to govern fees and costs only in common law contractual suits. Id. (emphasis added). The statute does not imply a private remedy to enforce the labor statutes, which impose external standards for wages and hours. The Baldanado Court was emphatic that "the absence of an express provision providing for a private cause of action to enforce a statutory right strongly suggests that the Legislature did not intend to create a privately enforceable judicial remedy." Baldanado, 194 P.3d at 101. In ruling that there was no private right of action under sections 608.100, 608.160, and 613.120, the Baldanado Court indicated that the Labor Commissioner's authority covered sections 608.005 to 608.195 and that "when an administrative official is expressly charged with enforcing a section of laws, a private cause of action generally cannot be implied." Id. at 102. In light of Baldanado''s broad language and warning against lightly implying private causes of action, the Court believes that section 608.018 is within the Labor Commissioner's exclusive jurisdiction, just as section 608.100 is.

Plaintiff relies on footnote 33 of Baldanado, which notes, "a private cause of action to recover unpaid wages is entirely consistent with the express authority under NRS 608.140 to bring private actions for wages unpaid and due." See 194 P.3d at 104 n.33. But the Baldanado Court did not directly address the question of whether section 608.140 authorized a private suit or, more importantly, what kinds of suits it implied. Rather, it made the comment in footnote 33 to contrast those sections of the labor code under which there was no language possibly implying any kind of private right of action at all.

Section 608.140 implies only a cause of action to recover wages unpaid and due "according to the terms of his or her employment," which strongly implies a contractual remedy, not a remedy to enforce the labor laws. The phrase "according to the terms of . . . employment" means "according to the contractual terms of . . . employment," as opposed to something like "according to the laws concerning . . . employment." This result depends on whether "terms" under section 608.140 more reasonably means "contractual terms," "regulatory standards," orboth. The Court finds that it means something more like "contractual terms." A contemporary dictionary defines the word "term" (along with irrelevant definitions) as "[c]ondition; arrangement." Webster's New Standard Dictionary of the English Language 379 (Laird & Lee, 1920). Another, more comprehensive, contemporary dictionary defines "term" ...