United States District Court, D. Nevada
ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS [DOC. 41] AND GRANTING MOTION TO STRIKE [DOC. 42]
JENNIFER A. DORSEY, District Judge.
This is a collective action and putative multi-state class action by Outback Steakhouse Restaurant employees who allege their employer refused to pay wages for required off-the-clock work, overtime, and minimum required wages to many thousands of minimum-wage employees, violating the Fair Labor Standards Act (FLSA) and various state employment laws. Defendants move to dismiss all claims under FRCP 12(b)(6) as insufficiently pled and for lack of commonality, and they argue that plaintiffs' claims for violation of Nevada's wage laws are unsustainable because no private right to enforce these statutes exists. They also ask the court to strike allegations about defendants' treatment of nursing mothers under FRCP 12(f). I find these motions appropriate for disposition without oral argument under Local Rule 78-2, grant the motion to dismiss the Nevada state law claims as pled but with leave to amend, strike the nursing-mother allegations as impertinent, and deny the motion in all other respects.
A. Motion to Dismiss
Defendants offer three arguments for dismissal. They contend that plaintiffs cannot state a viable claim for violations of Nevada's wage laws NRS 608.016 and 608.018 because the right to enforce these statutes rests exclusively with the Labor Commissioner; there is no private right to judicially enforce them. They argue that plaintiffs' allegations are based on nothing more than conclusory statements that lack the factual specificity required to state a plausible claim under Iqbal and Twombly. Finally, they contend that plaintiffs' failure to allege any written corporate policy of wage-and-hour violations prevents plaintiffs from demonstrating commonality and requires the dismissal of all claims. Although I agree that plaintiffs have no right to privately enforce NRS 608.016 and 608.018 and I dismiss those claims, I do so with leave to amend to reframe those claims as contemplated by NRS 608.140. I find that the remaining claims are sufficiently pled to survive 12(b)(6) dismissal.
1. Plaintiffs' Claims for Violation of Nevada's Wage Statutes
Plaintiffs' third claim for relief seeks redress for a "violation of NRS 608.016 and 608.140" and alleges that defendants "have failed to pay Nevada Plaintiffs and Nevada Class members for all hours worked in violation of NRS 608.016 and 608.140." Their fourth claim is similarly structured and alleges that defendants "failed to pay Nevada Plaintiffs and Nevada class members daily and weekly overtime premium pay for all hours worked over" 8 hours each day or 40 hours per week "in violation of 608.018 and NRS 608.140." As plaintiffs recognize, neither NRS 608.016 nor 608.018 expressly creates a private right of action for the enforcement of these statutory provisions. Thus, plaintiffs attempt to bootstrap a private right to enforce these statutes through NRS 608.140, which the Nevada Supreme Court acknowledged in Baldonado v. Wynn  "expressly recognize[s] a civil enforcement action to recoup unpaid wages." I find that NRS 608.140 does not create a vehicle for privately enforcing the legal rights conferred by NRS 608.016 and 608.018, it merely establishes a fee-shifting mechanism in an employee's "suit for wages earned and due according to the terms of his or her employment." Thus, plaintiffs have no claim for a violation of NRS 608.016, 608.018, or 608.140, but they may recover unpaid wages-including overtime pay-under Nevada law if they can truthfully plead that those sums were earned and due according to the terms of their employment.
a. NRS 608.140 is a fee-shifting statute; it does not create a private right of action for violation of any Nevada Labor Code provision.
Defendants argue that NRS 608.140 does not give plaintiffs a vehicle to enforce NRS 608.016 or 608.018; enforcement of these laws is vested exclusively in the Labor Commissioner,  and plaintiffs' claims for violation of these statutory provisions must be dismissed. Plaintiffs urge the court to find that NRS 608.140 recognizes a "broad" private right of action for unpaid wages of all types, specifically including those they seek to recover under their third and fourth claims for relief. Defendants contend that plaintiffs are extending NRS 608.140 beyond its express terms because 608.140 recognizes only a Nevada plaintiff's right to bring a claim for breach of an employment agreement, nothing more.
My task "is to interpret the statute [the Nevada Legislature] has passed to determine whether it displays an intent to create not just a private right but also a private remedy. Statutory intent on this latter point is determinative. Without it, a cause of action does not exist and courts may not create one, no matter how desirable that might be as a policy matter, or how compatible with the statute." The first step in interpreting this statute is to determine whether its language has a plain and unambiguous meaning in the context of this case. Thus, I start with the statutory text.
NRS 608.140 states:
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, and shall establish by decision of the court or verdict of the jury that the amount for which he or she has brought suit is justly due, and that a demand has been made, in writing, at least 5 days before suit was brought, for a sum not to exceed the amount so found due, the court before which the case shall be tried shall allow to the plaintiff a reasonable attorney fee, in addition to the amount found due for wages and penalties, to be taxed as costs of suit.
This statute contains no language that creates a private right to enforce any legislatively created employment right; nor does it acknowledge an employee's right to bring a suit to enforce any employment statute. NRS 608.140's plain language merely creates a fee-shifting mechanism to recover attorney fees in an employee's "suit for wages earned and due according to the terms of his or her employment."
This characterization is also supported by the statute's legislative history. "Nevada follows the American rule that attorney fees may not be awarded absent a statute, rule, or contract authorizing such award." When NRS 608.140 was first enacted in 1925, it was described simply as "[a]n Act authorizing the allowance of a reasonable attorney fee to plaintiff in an action for the recovery of salary or wages, under certain conditions." Thus, NRS 608.140 did not create a private right of action for ...