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Greene v. Jacob Transportation Services, LLC

United States District Court, D. Nevada

February 3, 2017

ROBERT G. GREENE,, Plaintiffs,


          Gloria M. Navarro, Chief Judge United States District Judge

         Pending 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).

         Also 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.

         I. BACKGROUND

         On 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).

         Following 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 Further, Judge Jones held that NRS § 608.250(2)(e) was not impliedly repealed by the Nevada Minimum Wage Amendment passed in 2006.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].”).

         On July 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).

         Discovery 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.

(Id. 9:12-16).

         On 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. 9:25-10:4).

         Greene 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).

         On 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).

         In the instant Motions to Dismiss, Defendants seek, inter alia, dismissal of ...

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