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Ruiz v. Apco Construction

United States District Court, D. Nevada

June 17, 2014

Anabel Ruiz, et al., individually and on behalf of other persons similarly situated, Plaintiffs,
v.
APCO Construction et al., Defendants.

ORDER [Doc. 108, 128]

JENNIFER A. DORSEY, District Judge.

Plaintiffs Alfredo Damudio, Juan Magallenes, and Vicente Cuevas allege they were employees of All-American and Associates[1] who performed work on the Atrium project, a City of Las Vegas public-works construction project.[2] Plaintiffs contend that All-American failed to pay them, and they seek to hold APCO Construction-the general contractor who subcontracted with their employer All-American-responsible for their unpaid wages under the Federal Fair Labor Standards Act, 29 U.S.C. § 201 et seq. ("FLSA"), the Nevada labor code, and Nevada common law.

This case began as an action by numerous former All-American employees against the subcontractor, [3] its purported owners Jim and Donna Spallitta, and Penta Building Group, Inc. (the general contractor on the Hilton Grand Vacations project, which All-American was a subcontractor on). Doc. 38. Default was entered against the All-American entities, Docs. 13, 102, Jim Spallitta is deceased, and Donna Spallitta filed for bankruptcy protection. Docs. 16, 17, 18, 24-11, 88. The Court dismissed the claims against Penta in 2011 and permitted Plaintiffs leave to add APCO as a defendant. Doc. 37. These developments have left an active dispute only between three of the Plaintiffs who claim they worked for All-American on the Atrium project (Zamudio, Magallanes, and Cuevas) and general contractor APCO.[4]

APCO now moves the Court for various relief under the umbrella of a summary-judgment motion. Doc. 108. The Court has exercised jurisdiction over this case on federal-question and supplemental jurisdiction based on the Plaintiffs' pleading of FLSA claims. APCO asks the Court to grant summary judgment in its favor on the FLSA claims because APCO was not Plaintiffs' employer-a prerequisite for a viable FLSA claim-and then decline to continue to exercise supplemental jurisdiction over the remaining state-law claims. APCO also contends that Plaintiffs have no private right of action for their prevailing-wage, overtime, or waiting-time-penalty claims, and their sole remedy is an administrative one with Nevada's Labor Commissioner under NRS Chapter 338. And, finally, APCO seeks judgment in its favor on Plaintiffs' contract claims arguing that Plaintiffs are not parties to, or beneficiaries of, any contract with APCO.

Having considered the parties' papers on file and the oral arguments presented at the hearing on this matter, the Court concludes that Plaintiffs have failed to demonstrate that APCO was Plaintiffs' employer for purposes of the FLSA and grants summary judgment in APCO's favor on Plaintiffs' FLSA claims. The Court then declines to continue to exercise supplemental jurisdiction over Plaintiffs' remaining state-law claims against APCO and dismisses those claims under 28 U.S.C. § 1367(c). And finding that Plaintiffs' supplemental brief exceeds the scope of the Court's permission for Plaintiffs to submit citations to additional authorities after the summary-judgment hearing, the Court strikes the Plaintiffs' unsolicited 10-page brief.

A. APCO's Emergency Motion to Strike [Doc. 128]

At the oral argument on APCO's motion for summary judgment, the Court authorized Plaintiffs to submit, via letter, several citations not provided in the original briefing, as well as authority for the proposition that the Court should certify a question to the Nevada Supreme Court. Plaintiffs exceeded those directions and submitted a 10-page supplemental brief that added a sevenpage discussion of NRS § 608.150. Doc. 127 at 1-7. The unsolicited brief also raises new issues. Id. at 7. APCO moves to strike it as a fugitive document, Doc. 128 at 2-3, and Plaintiffs dispute that it exceeds the Court's instructions and ask, alternatively, to permit it. Doc. 130 at 1-3.

Having reviewed the transcript of the hearing, the Court finds it did not "impliedly authorize[]" Plaintiffs to engage in a carte blanche revision of the arguments they chose to raise-or not raise-in their response to the motion for summary judgment or during the oral argument. This motion was pending for more than a year before the hearing convened, and Plaintiffs had more than sufficient time to seek to supplement their filings with additional points during that time. Plaintiffs have not offered good cause for this Court to consider their additional authorities (none of which are very recent) now. The supplemental brief (Doc. 127) will be disregarded.

B. APCO's Renewed Motion for Summary Judgment [Doc. 108]

Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." See Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986) (citing Fed.R.Civ.P. 56(c)). When considering the propriety of summary judgment, the court views all facts and draws all inferences in the light most favorable to the nonmoving party. Kaiser Cement Corp. v. Fishbach & Moore, Inc., 793 F.2d 1100, 1103 (9th Cir. 1986). If reasonable minds could differ on the material facts at issue, summary judgment is not appropriate because the purpose of summary judgment is to avoid unnecessary trials when the facts are undisputed. Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995); Nw. Motorcycle Ass'n v. U.S. Dep't of Agric., 18 F.3d 1468, 1471 (9th Cir. 1994).

"A party asserting that a fact cannot be or is genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record... or other materials; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed.R.Civ.P. 56(c). Once the moving party satisfies Rule 56 by demonstrating the absence of any genuine issue of material fact, the burden shifts to the party resisting summary judgment to "set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986); Celotex, 477 U.S. at 323. The nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts, " Bank of Am. v. Orr, 285 F.3d 764, 783 (9th Cir. 2002) (internal citations omitted); he "must produce specific evidence, through affidavits or admissible discovery material, to show that" there is a sufficient evidentiary basis on which a reasonable fact finder could find in his favor. Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991); Anderson, 477 U.S. at 248-49. The Court may only consider properly authenticated, admissible evidence in deciding a motion for summary judgment. Fed.R.Civ.P. 56(c); Orr, 285 F.3d at 773-74.

1. Plaintiffs' FLSA Claims-Counts 1 and 2

Plaintiffs allege that they were not paid at least a minimum wage in violation of 29 U.S.C. § 206 (Count 1), and overtime wages in violation of 29 U.S.C. § 207 (Count 2). Doc. 38 at 9-11. Plaintiffs acknowledge that they were employed by All-American, not APCO, at the time All-American failed to pay them. Doc. 38 at ¶¶ 14-15, 42. While they allege that All-American's owners are Plaintiffs' "employers or joint employers for purposes of the FLSA, " id. at ¶ 23, they make no similar allegations against APCO. Instead, they allege that APCO is liable with their defunct employer by operation of NRS § 608.150, which provides that "Every original contractor... for the... construction... of any building... shall assume and is liable for the indebtedness for labor incurred by any subcontractor...." Nev. Rev. Stat. § 608.150(1); Doc. 38 at ¶ 60; Doc. 112 at 4.

A defendant must be an "employer" of the plaintiff in order to be liable under the FLSA. Bonnette v. California Health & Welfare Agency, 704 F.2d 1465, 1468 (9th Cir. 1983), disapproved of on other grounds by Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985). FLSA defines "employer" as "any person acting directly or indirectly in the interest of an employer in relation to an employee." 29 U.S.C. § 203(d). Whether an ...


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