United States District Court, D. Nevada
JAMES C. MAHAN, District Judge.
Presently before the court is plaintiff's motion for reconsideration. (Doc. # 62). Defendant has responded (doc. # 63) and plaintiff has replied (doc. # 65).
Plaintiff Charde Evans was formerly employed by Walmart as a stocker/cashier from September 25, 2008, to June 5, 2010. (Compl., doc. # 1, ¶ 3). In her complaint, plaintiff alleged that she and others similarly situated were required to work in excess of eight hours within a twenty-four hour period without receiving overtime pay. ( Id., ¶ 6). Plaintiff further alleged that Walmart did not pay the due overtime wages within the time period required by statute, and that she and others similarly situated were therefore entitled to waiting time penalties. ( Id., ¶ 18-22). On July 22, 2010, plaintiff filed a complaint stating causes of action for shift jamming (count one) and waiting time penalties (count two). ( Id. ).
On November 17, 2010, this court entered an order approving the parties' stipulation for dismissal of certain claims which overlapped with a separate class action settlement approved in the matter of In re: Employment Practices Litigation, MDL No. 1735, 2:06-cv-225-PMP-PAL. ( See doc. # 33). In particular, this court's order dismissed all claims occurring prior to February 27, 2009. ( Id. ). As a result, the time period for the underlying claims was limited to February 27, 2009, through June 5, 2010, which is the day plaintiff's employment with Walmart terminated.
In 2010, Walmart conducted a self-audit and entered into a settlement with the Nevada labor commissioner regarding alleged shift jamming and failure to pay overtime for the period from August 1, 2007, through July 31, 2010. ( See labor commissioner's order, doc. # 49, ex. 2). As a result of that settlement, Walmart issued checks to 11, 246 former and current employees, including plaintiff, to compensate them for the unpaid overtime. (Doc. # 57, p. 3). Of those 11, 246, plaintiff alleged that 4, 358 are employees who ended their employment before the overtime checks were paid, and therefore constitute the prospective class members to whom waiting time penalties are due. (Doc. # 49, p. 5). The checks included a waiver which read: "By cashing or retaining the enclosed check, you will be accepting it as full payment of any incorrectly calculated overtime that may be owed to you under state law through the date reflected on your check." ( See id. at 12). Plaintiff conceded she was issued a back-wage check in the amount of $234.90. ( Id. ).
Based on these facts, plaintiff sought class certification for her and others similarly situated seeking waiting time penalties for the delinquent overtime pay pursuant to Nevada statute. Defendant opposed certification (doc. # 53) and separately filed for summary judgment (doc. # 52). The court granted summary judgment in favor of the defendant and denied the motion for class certification as moot. (Doc. # 60).
In granting summary judgment, however, the court found that the labor commission's order and the check's language did not conclusively demonstrate that plaintiff had waived her claim to waiting time penalties. ( Id. at 4-5). Accordingly, the court examined the waiting time statutes and concluded that, as a matter of law, waiting time penalties were not available for delinquent overtime pay. ( Id. at 5-8). Plaintiff now asks the court to set aside the entry of judgment and reconsider its ruling.
II. Legal Standard
A motion for reconsideration "should not be granted, absent highly unusual circumstances." Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000). "Reconsideration may be appropriate if a district court: (1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) there has been an intervening change in controlling law." Rich v. TASER Int'l, Inc., 917 F.Supp.2d 1092, 1094 (D. Nev. 2013); see also Nunes v. Ashcroft, 375 F.3d 805, 807-08 (9th Cir. 2004); School Dist. No. IJ, Multnomah County v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993), cert. denied, 512 U.S. 1236 (1994).
Under Rule 60(b), a court may relieve a party from a final judgment, order or proceeding in the following circumstances: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence; (3) fraud; (4) the judgment is void; (5) the judgment has been satisfied; or (6) any other reason justifying relief from the judgment. Backlund v. Barnhart, 778 F.2d 1386, 1388 (9th Cir. 1985); see also De Saracho v. Custom Food Mach., Inc., 206 F.3d 874, 880 (9th Cir. 2000) (noting that the district court's denial of a Rule 60(b) motion is reviewed for an abuse of discretion).
While a motion for reconsideration allows a party to bring a material oversight to the court's attention, it is not appropriate for a party to request reconsideration merely to force the court to "think about [an] issue again in the hope that [it] will come out the other way the second time." Teller v. Dogge, 2013 WL 508326, at *6 n. 6 (D. Nev. 2013); see also Palmer v. Champion Mortgage, 465 F.3d 24, 30 (1st Cir. 2006).
The court's prior order granting summary judgment in favor of the defendant was based on its conclusion that overtime pay is not subject to waiting time penalties under Nevada law. Plaintiff asserts that conclusion was in error because (1) defendant agreed to pay plaintiff overtime compensation, and (2) overtime pay qualifies as ...