United States District Court, D. Nevada
JAMES C. MAHAN, District Judge.
Presently before the court is defendant Boyd Gaming Corporation's motion to dismiss the fourth and fifth cause of action from the master second amended complaint. (Doc. # 46). The plaintiffs responded (doc. # 48), and defendant replied (doc. # 53).
Also before the court is plaintiffs' motion for conditional certification and circulation of notice of a pending FLSA § 216(b) collective action, (doc. # 44), and appendix (doc. #45). Defendant filed a response in opposition (doc. # 48), to which the plaintiffs filed a reply (doc. # 55).
The instant case involves claims of violations of the Fair Labor Standards Act ("FLSA") by plaintiff Gamble and those similarly situated against their former employer, defendant Boyd Gaming Corporation. The named plaintiffs work at either the Orleans or the Gold Coast properties. For the purposes of clarity, the court will address the defendant's motion to partially dismiss followed by the plaintiffs' motion for conditional certification of the collective action.
I. Factual background
Plaintiffs Craig Gamble and Michael Simmons filed a complaint on May 9, 2013, in the Eighth Judicial District Court for Clark County Nevada, alleging that defendant violated the FLSA and NRS § 608.005 et seq., by failing to pay overtime wages for work performed in excess of forty (40) hours per week. (Doc. # 1). After defendant removed the case to this court, but before filing an answer, the plaintiffs filed a first amended complaint which added a third plaintiff, Richard Caldwell. (Doc. # 4). The defendant moved to dismiss this complaint for failure to state a claim. (Doc. # 13). On September 11, 2013, plaintiffs filed an emergency motion to amend and included a proposed second amended complaint with additional facts and allegations under Nevada wage-and-hour laws. (Doc. # 18).
A second case, Belmonte v. Boyd Gaming Corp. , 2:13-cv-01043, was filed on June 12, 2013, and assigned to the Honorable Judge Navarro. The original plaintiffs in Belmonte were Kathy Belmonte and Maria High. A third case, Hernandez v. Boyd Gaming Corp. , 2:13-cv-01801, was filed by plaintiff Salvador Hernandez on October 1, 2013, and was assigned to the Honorable Judge Jones. On November 7, 2013, Boyd Gaming filed notices of related cases pursuant to Local Rule 7-2.1, and on November 20, 2013, the court ordered that the cases be consolidated pursuant to Federal Rule of Civil Procedure 42. On that same day the plaintiffs filed a master second amended complaint in the consolidated action, which is the operative complaint here. (Doc. # 42).
The operative complaint alleges (1) violations of the FLSA for failure to pay wages due to a scheme by the defendant to "round down" employees' time, resulting in the improper calculation of wages and unpaid time; (2) violations of the FLSA for failure to pay wages due to a scheme by defendant to require employees to work "off-the-clock;" (3) violation of the FLSA for those employees who were subject to the defendant's scheme to "round down" and to require "off-the-clock" work; (4) violation of NRS §608.010 et. seq. for plaintiffs who were subject to defendant's scheme to "round down" and to require "off-the-clock" work; and (5) violation of NRS § 608.020 for failure to pay all wages due and owing upon termination and the associated penalty. (Doc. # 42).
II. Legal standards
A. Rule 12(b)(6)
A court may dismiss a plaintiff's complaint for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). A properly pled complaint must provide "[a] short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2); Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555 (2007). While Rule 8 does not require detailed factual allegations, it demands "more than labels and conclusions" or a "formulaic recitation of the elements of a cause of action." Ashcroft v. Iqbal , 129 S.Ct. 1937, 1949 (2009) (citation omitted).
"Factual allegations must be enough to rise above the speculative level." Twombly , 550 U.S. at 555. Thus, to survive a motion to dismiss, a complaint must contain sufficient factual matter to "state a claim to relief that is plausible on its face." Iqbal , 129 S.Ct. at 1949 (citation omitted).
In Iqbal , the Supreme Court clarified the two-step approach district courts are to apply when considering motions to dismiss. First, the court must accept as true all well-pled factual allegations in the complaint; however, legal conclusions are not entitled to the assumption of truth. Id. at 1950. Mere recitals of the elements of a cause of action, supported only by conclusory statements, do not suffice. Id. at 1949.
Second, the court must consider whether the factual allegations in the complaint allege a plausible claim for relief. Id. at 1950. A claim is facially plausible when the plaintiff's complaint alleges facts that allows the court to draw a reasonable inference that the defendant is liable for the alleged misconduct. Id. at 1949.
Where the complaint does not permit the court to infer more than the mere possibility of misconduct, the complaint has "alleged - but not shown - that the pleader is entitled to relief." Id . (internal quotations omitted). When the allegations in a complaint have not crossed the line from conceivable to plausible, plaintiff's claim must be dismissed. Twombly , 550 U.S. at 570.
The Ninth Circuit addressed post- Iqbal pleading standards in Starr v. Baca , 652 F.3d 1202, 1216 (9th Cir. 2011). The Starr court stated, "First, to be entitled to the presumption of truth, allegations in a complaint or counterclaim may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively. Second, the factual allegations that are taken as true must plausibly suggest an entitlement to ...