United States District Court, D. Nevada
ROBERT G. GREENE,, Plaintiffs,
JACOB TRANSPORTATION SERVICES, LLC,, Defendants.
M. Navarro, Chief Judge United States District Judge
before the Court is the Motion to Dismiss, (ECF No. 222),
filed by Defendants Carol Jimmerson and James Jimmerson
(collectively “the Jimmersons”), to which
Plaintiffs Robert G. Greene (“Greene”), Thomas
Schemkes, and Gregory Green (collectively
“Plaintiffs”) filed a Response, (ECF No. 225).
pending before the Court is the Motion to Dismiss filed by
the Jimmersons and Defendant Jacob Transportation Services,
LLC (“Jacob Transportation”) (collectively
“Defendants”), to which Plaintiffs filed a
Response, (ECF No. 239). Defendants did not file a reply to
either Response, and the deadline to do so has passed. For
the reasons discussed below, the Motions to Dismiss are both
GRANTED in part and DENIED in part.
March 10, 2009, Greene initiated this case alleging state law
minimum wage claims and federal claims under the Fair Labor
Standards Act (“FLSA”) against Executive Coach
& Carriage (“Executive”). (See
Compl., ECF No. 1). Discovery later revealed that Executive
was actually the dba of Bentley Transportation Services, LLC
(“Bentley Transportation”). (See Order
1:23-24, ECF No. 16).
a series of motions, the Court dismissed Greene's state
law claims. First, Judge Jones, to whom this case was
originally assigned, held that Greene's “state law
minimum wage claim must be dismissed because limousine
drivers are specifically excluded from Nevada's minimum
wage laws under Nevada Revised Statute 608.250(2)(e).”
(Id. 3:20-22, ECF No. 16). Further, Judge Jones held
that NRS § 608.250(2)(e) was not impliedly repealed by
the Nevada Minimum Wage Amendment passed in 2006.
(Id. 3:22-4:2). In that same Order, Judge Jones
dismissed Greene's state law overtime claim, improper
wage deduction claim, and claim for waiting penalties,
holding that the statute upon which Greene based those
claims, NRS § 608.100, did not confer a private right of
action. (Id. 10:2-12:15). Judge Jones later granted
judgment on Greene's only remaining state law claim,
failure to pay for all hours worked pursuant to NRS §
608.016. (Order 7:7-8, ECF No. 31) (“[Greene's]
claims based on § 608.016 are inapplicable to
commission-based pay structures like the one entered into by
[Greene] and [Bentley Transportation].”).
9, 2010, after the state claims had been dismissed, Bentley
Transportation filed a Motion to Dismiss/Motion for Summary
Judgment on Greene's remaining FLSA claims, alleging that
Greene had named the wrong party as his employer.
(See Mot. to Dismiss, ECF No. 39). Bentley
Transportation's Reply further clarified that
Greene's true employer was Jacob Transportation and
argued that no amendment could cure the Complaint because
Greene had in the meantime opted into another suit against
Jacob Transportation, Schemkes v. Presidential
Limousine, No. 09-cv-01100-GMN-PAL (D. Nev.), that
raised only FLSA claims. (Reply 3:8-21, ECF No. 44). The
Court denied Bentley Transportation's Motion and,
“[i]n order to simplify the confusion that the parties
have created in the present case, ” consolidated
Greene's case with the portion of the Schemkes
litigation involving Jacob Transportation. (Order 4:20-22,
ECF No. 54).
in Greene was scheduled to close on June 15, 2011,
but Greene moved on May 25, 2011, to modify the Court's
Scheduling Order. (See Mot. to Extend Time, ECF No.
73). Specifically, Greene proposed August 31, 2011, as the
new discovery cut-off date and June 15, 2011, as the deadline
for any motion to amend or supplement the pleadings.
(Id.). Magistrate Judge Johnston granted
Greene's Motion on June 21, 2011. (Order, ECF No. 73).
That same day, Greene filed a Motion for Leave to Amend to
substitute Jacob Transportation for Bentley Transportation
and to add the Jimmersons “as joint employer party
defendants.” (See Mot. for Leave to File 8:10,
ECF No. 82). The Motion further alleged that:
Jim Jimmerson is the sole owner, founder, and managing member
of Jacob, whereas his wife Carol Jimmerson is Jacob's
CEO. Between them, Jim Jimmerson and Carol Jimmerson are
solely responsible for the terms and conditions of
Plaintiff's employment, including the payment of and
deductions from Plaintiff's wages.
August 31, 2011, Magistrate Judge Johnston denied
Greene's Motion after applying Rule 16(b) rather than
Rule 15 and concluding that Greene had failed to show
“good cause” for the untimely amendment. (Order,
2:22-3:24, ECF No. 113). Magistrate Judge Johnston also
awarded sanctions under 28 U.S.C. § 1927. (Id.
6:6-14). The Court ultimately dismissed the case because
Greene had named the wrong party and because he was already
suing the proper party in Schemkes. (Order 3:2-5:4,
ECF No. 159). As a result, the Court unconsolidated the
Schemkes case and ordered that the Clerk of Court
refile it under Case No. 11-cv-00355. (Id.
appealed the Court's dismissal of his state law wage
claims and denial of his Motion to Amend the FLSA claims so
as to name the correct entity. (See Notice of
Appeal, ECF No. 163). On January 27, 2015, the Ninth Circuit
issued a Memorandum reversing and remanding the case back to
this Court. (See Mem. Op., ECF No. 170).
Specifically, the Ninth Circuit reversed the Court's
dismissal of Greene's claim under the Nevada Minimum Wage
Amendment in light of an intervening case issued by the
Nevada Supreme Court, Thomas v. Nevada Yellow Cab
Corp., 327 P.3d 518 (Nev. 2014). (Id. ¶
1). Next, the Ninth Circuit held that the Court “erred
in finding that § 608.016 does not apply to
commission-based pay arrangements.” (Id.
¶ 2). Finally, the Ninth Circuit reversed the
Court's decision denying Greene's Motion for Leave to
Amend for holding Greene to a “deadline with which
Greene of course could not have complied” and
ordered that “on remand Greene will be allowed to file
an amended complaint.” (Id. ¶ 3).
March 27, 2015, Greene filed his Amended Complaint, (ECF No.
175), against Jacob Transportation and the Jimmersons.
Subsequently, the Court again ordered the consolidation of
Greene's case and the Schemkes case and required
Plaintiffs to file a new consolidated complaint. (Order, ECF
No. 200). Pursuant to the Court's Order, Plaintiffs filed
their First Amended Consolidated Complaint
(“FACC”), (ECF No. 204), alleging the following
causes of action: (1) failure to pay minimum wages under the
FLSA, 29 U.S.C. § 206; (2) failure to pay minimum wages
under the Nevada Constitution, art. XV, § 16; (3)
failure to pay overtime wages under the FLSA, 29 U.S.C.
§ 207(a)(1); (4) failure to pay overtime wages under
Nevada law, NRS § 608.100(1)(b); (5) failure to pay for
each hour worked under Nevada law, NRS § 608.016; (6)
improper wage deductions under Nevada law, NRS §
608.100(2); (7) waiting penalties under Nevada law, NRS
§ 608.020; and (8) liquidated damages under the FLSA, 29
U.S.C. § 216(b). (See FACC ¶¶ 32-99).
instant Motions to Dismiss, Defendants seek, inter
alia, dismissal of ...