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McDonagh v. Harrah's Las Vegas, Inc.

United States District Court, D. Nevada

June 17, 2014

NICOLE McDONAGH, et al., Plaintiff(s
HARRAH'S LAS VEGAS, INC., et al., Defendant(s


JAMES C. MAHAN, District Judge.

Presently before the court is a motion to dismiss filed by defendants Harrah's Las Vegas, Inc. and Harrah's Entertainment, LLC. (Doc. # 21). Plaintiffs Nicole McDonagh and David Grucello filed a response in opposition (doc. # 23), and defendants filed a reply (doc. # 28).

Also before the court is plaintiffs' motion for circulation of notice of a pending FLSA 29 U.S.C. ยง 216(b) collective action. (Doc. # 26). Defendants filed a response in opposition (doc. # 33), and plaintiffs filed a reply (doc. # 38).

I. Background

In this case, plaintiffs assert claims on behalf of themselves and a proposed class consisting of all dual-rate supervisors and hourly employees employed by the defendants.

Plaintiffs filed the instant lawsuit alleging several causes of action: (1) violation of the Fair Labor Standards Act ("FLSA"), (2) breach of employment contract and NRS 608.040, (3) violations of NRS 608.016, 608.030, and 608.140, (4) failure to pay minimum wage in violation of the Nevada constitution, (5) failure to pay overtime wages in violation of NRS 6.08.140 and 608.018, and (6) failure to timely pay all wages due and owing upon termination pursuant to NRS 608.140 and 608.020-.050.

Plaintiffs allege that hourly employees and dual-shift supervisors were required to arrive at work ten to fifteen minutes before their shifts began in order to attend management-conducted meetings referred to as "buzz sessions." (Doc. # 20 at p. 3). Plaintiffs further allege that these hourly employees and dual-shift supervisors were not paid for the time they spent at these "buzz sessions." (Doc. # 20 at p. 3).

Plaintiffs argue that the suit is a continuation of Daprizio v. Harrah's Las Vegas Inc., 2:10-cv-00604-GMN, 2013 WL 5328386 (D. Nev. 2013) which was filed in April of 2010. (Doc. # 23 at p. 4). Daprizio attempted to argue similar claims on behalf of a class of plaintiffs. (Doc. # 23 at p. 4). However no class certification was ever requested. (Doc. # 21 at p. 17). Daprizio was dismissed as a result of her failure to disclose the litigation on her bankruptcy schedule which legally estopped her from pursuing the claim. (Doc. # 23 at p. 4).

II. Defendants' Motion to Dismiss

A. Legal Standard

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, 556 U.S. 662, 678 (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, 556 U.S. at 678 (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. Mere recitals of the elements of a cause of action, supported only by conclusory statements, do not suffice. Id. Second, the court must consider whether the factual allegations in the complaint allege a plausible claim for relief. Id. at 679. A claim is facially plausible when the plaintiff's complaint alleges facts that allow the court to draw a reasonable inference that the defendant is liable for the alleged misconduct. Id. at 678.

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.

B. Discussion

1. Tolling

Plaintiffs allege that for purposes of the statute of limitations, the action should be treated as if it was commenced on April 27, 2010, by the filing of Daprizio v. Harrah's Las Vegas, Inc. in the District of Nevada. Plaintiffs' cite to American Pipe in reasoning that the statute of limitations should be tolled. American Pipe & Const. Co. v. Utah, 414 U.S. 538 (1974). Defendants contend that American Pipe does not relate to this case and cite to the Ninth Circuit's opinion in Robbin v. Fluor Corp. which distinguished American Pipe in cases in which class certification has been denied and a new member of the class attempts to re-litigate class certification. 835 F.2d 213, 214 (9th Cir. 1987). Plaintiffs respond by referencing another Ninth Circuit opinion in which the court granted tolling in a class action that had previously been properly certified in a prior case. Catholic Soc. Serv., Inc. v. I.N.S., 232 F.3d 1139, 1140 (9th Cir. 2000) (en banc). In Catholic Social Services, the earlier action had been dismissed due to concerns beyond the merits of the claims or class. Id.

American Pipe allows for the tolling of the statute of limitations for "all asserted members of the class who would have been parties had the suit been permitted to continue." 414 U.S. at 554. Once the statute of limitations has been tolled, it remains tolled for all members of the class until class certification is denied. Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 353 (1983).

Plaintiffs in the present case were members of the proposed Daprizio class. Therefore the question is whether the asserted class in the present action can also qualify under American Pipe.

In order to determine whether American Pipe relates to the current action, a review of the prior action in Daprizio is needed. Daprizio was filed in April 2010, and attempted to bring a class action relating to the same or similar facts as in the present case. Daprizio v. Harrah's Las Vegas, Inc., 2:10-CV-00604-GMN, 2013 WL 5328386 (D. Nev. Sept. 20, 2013). A scheduling order was entered in March, 2012, which provided a deadline of May 31, 2012, to add parties or amend pleadings. Id. The scheduling order also placed a deadline of September 28, 2012, for plaintiffs to file a motion for conditional certification or a motion to certify class. Id. Daprizio failed to ever file a motion for conditional certification or to certify class. Id. In November 2012, Harrah's filed a motion for summary judgment which was granted on September, 20, 2013, for estoppel reasons arising out of an unrelated bankruptcy proceeding Daprizio was involved in. Id.

The parties are correct that neither Robbin nor Catholic Social Services are directly on point about whether American Pipe tolling applies in the present case. Unlike Robbin, class certification was not denied in the prior action and was never actually requested; and unlike Catholic Social Services, class certification was not granted in the prior action, because-again-it was never requested. Plaintiffs correctly point out that the matter of class certification on its merits has not been heard. However, after the deadline for filing a class-certification motion passed in Daprizio, plaintiffs in the present action were on notice that their claim was not being litigated, and that the proposed class that they purported to be a part of was not going to be certified.

Accordingly, the court finds that American Pipe tolling is appropriate for plaintiffs between April 27, 2010, and September 28, 2012, the period during which Daprizio was pending. The statute of limitations then continued to run for plaintiffs from September 29, ...

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