United States District Court, D. Nevada
TIFFANY SARGENT, BAILEY CRYDERMAN, SAMANTHA L. IGNACIO formerly SCHNEIDER, VINCENT M. IGNACIO, HUONG “ROSIE” BOGGS, and JACQULYN WIEDERHOLT on behalf of themselves and all others similarly situated, Plaintiffs,
HG STAFFING, LLC; MEI-GSR HOLDINGS, LLC d/b/a GRAND SIERRA RESORT; and DOES 1 through 50, inclusive, Defendants.
R. HICKS UNITED STATES DISTRICT JUDGE.
the court is Plaintiffs' motion to reconsider this
court's January 12, 2016 order. ECF No. 194. Defendants
have filed a response (ECF No. 198), to which Plaintiffs
replied (ECF No. 201). The court finds that the Ninth
Circuit's unpublished memorandum disposition that
Plaintiffs cite as the basis for reconsideration is
inapposite to the issue that the court considered in its
order (ECF No. 172) and that relief under Federal Rule of
Civil Procedure 60(b) is therefore unwarranted. Accordingly,
the court will deny the instant motion.
are current and former employees of Defendants HG Staffing,
LLC and MEI-GSR Holdings, LLC. Plaintiffs allege that
Defendants' wage practices resulted in several violations
of the Fair Labor Standards Act and Nevada law. See ECF
No. 47. Defendants eventually moved for partial summary
judgment on all but one of Plaintiffs' wage-based state-law
causes of action, arguing that Nevada's wage laws under
NRS Chapter 608 do not create a private right of action. ECF
No. 135 at 9. After reviewing the relevant case law from the
Nevada Supreme Court and other courts within this district,
this court agreed with Defendants and granted their motion.
ECF No. 172. Plaintiffs now move for reconsideration of that
may move for relief from a final judgment or order under
Federal Rule of Civil Procedure 60(b). A motion under Rule
60(b) is an “extraordinary remedy, to be used sparingly
in the interests of finality and conservation of judicial
resources.” Kona Enters., Inc. v. Estate of
Bishop, 229 F.3d 887, 890 (9th Cir. 2000). A district
court may reconsider a prior order where the court is
presented with newly discovered evidence, an intervening
change of controlling law, manifest injustice, or where the
prior order was clearly erroneous. Fed.R.Civ.P. 60(b)(1)-(6);
United States v. Cuddy, 147 F.3d 1111, 1114 (9th
Cir. 1998); School Dist. No. 1J, Multnomah County v.
ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993).
motion is solely premised on the Ninth Circuit Court of
Appeals' recent unpublished decision in Evans v.
Wal-Mart Stores, Inc., 656 F.App'x 882 (9th Cir.
2016). There, the Ninth Circuit reviewed and ultimately
reversed a summary-judgment order issued by another court
within this district. See Evans v. Wal-Mart Stores,
Inc., No. 2:10-CV-1224-JCM-VCF, 2014 WL 298632 (D. Nev.
Jan. 24, 2014). As in this case, the Evans
plaintiffs claimed that their employer engaged in shift
jamming (see supra n. 1) and thus deprived them of
overtime pay that they had earned. Id. at *4.
Plaintiffs here argue that the Evans district court
held that there was no private right of action for statutory
overtime under NRS 608.018 and that the Ninth Circuit
reversed the court on this specific point. ECF No. 194 at 5.
Plaintiffs thus argue that this court, in granting Defendants
summary judgment on Plaintiffs' state-law causes of
action, relied “upon a line of District Court opinions,
which now conflict with the holding of the Ninth Circuit in
Evans.” Id. at 7.
reviewing the Evans district court order and Ninth
Circuit memorandum disposition, the court finds that the case
does not address the issue of whether NRS Chapter 608 creates
a private right of action. The sole issue before the district
court was whether statutory waiting-time penalties apply only
to contractually agreed-upon wages or also to
statutorily-required overtime pay. Evans, 2014 WL
298632, at *4-5. Under NRS §§ 608.040 and 608.050,
such penalties attach when an employer fails to timely pay a
discharged employee's wages, permitting such
“employees to collect up to 30 days of wages at their
regular rate.” Id. at *4 (emphasis removed).
Because the district court determined that both statutes'
use of the word “wages” did not refer to
statutorily-required overtime pay, it held that waiting-time
“penalties are therefore limited to the contractually
agreed upon rate of pay, which necessarily does not
include” overtime pay. Id. at *5.
appeal, the Ninth Circuit merely “conclude[d] that
overtime pay is a form of wages under Nevada law.”
Evans, 656 F.App'x at 882. The court thus held
that the plaintiff was “also entitled to seek waiting
time penalties under [NRS] § 608.050.”
Id. at 883.
point did either the district court or Ninth Circuit raise,
let alone analyze, whether NRS Chapter 608 creates a private
right of action. Moreover, the district court specifically
distinguished between cases addressing that issue and the
issue of waiting-time penalties the parties raised at summary
The cases cited by plaintiff deal with the question of
whether there exists a private right of action to enforce the
payment of overtime under N.R.S. § 608.018. They do not
squarely address whether waiting time penalties are available
for unpaid overtime under N.R.S. §§ 608.040 or
608.050. The only case cited by either party which does
address those provisions in this context is this court's
decision in Orquiza [v. Walldesign, Inc., 2012 WL
2327685 (D. Nev. June 19, 2012)].
Evans, 2014 WL 298632, at *5 n. 1.
Plaintiffs argue that the similarity of facts between their
case and Evans, as well as the fact that the
Evans plaintiffs brought a private action,
establishes that NRS Chapter 608 creates a private right of
action. This argument, however, is without merit. The Ninth
Circuit's decision in Evans is unpublished and
thus non-binding and, most importantly, does not address or
analyze the issue that Plaintiffs assert and therefore lacks
any precedential value in this context. See MM. v.
Lafayette Sch. Dist.,681 F.3d 1082, 1088 (9th Cir.
2012) (“Statements made in passing, without analysis,
are not binding precedent.”); O 'Neal v.
Price,531 F.3d 1146, 1152 at n. 6 ...