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Nye v. Burberry Ltd.

United States District Court, D. Nevada

April 3, 2017

BRETT NYE, Plaintiff,




         Before the Court for consideration is Defendant Burberry Limited's Motion to Dismiss. ECF No. 7. Plaintiff Brett Nye is asserting a class and collective action on behalf of all former and current nonexempt, hourly employees who worked for Defendant in the last three years. Plaintiff pleads three causes of action in his complaint: 1) violations of 29 U.S.C. §§ 206, 207 of the Fair Labor Standards Act (“FLSA”) for failure to pay minimum wages and overtime; 2) violations of N.R.S 608.018, 608.125, 608.260 for failure to pay minimum wages and overtime; 3) violations of N.R.S 608.040, 608.050 for failure to timely pay wages.


         Plaintiff alleges the following facts in his Complaint filed on March 30, 2016. ECF No. 1.

         Plaintiff worked for Defendant during the relevant time periods in this case. Defendant is an employer doing business in the State of Nevada, including Clark County. Defendant's stores in this case were located at The Forum Shops at Caesars and The Shoppes at the Palazzo. Plaintiff worked at these locations until 2014 and was paid hourly. Employees such as Plaintiff are nonexempt hourly employees, entitled to overtime pay. All employees were subject to the same job duties and descriptions. All employees were subject to identical or nearly-identical policies and procedures related to employee compensation.

         Defendant's policy and practice is to deny earned wages, including overtime pay, to its hourly employees. Defendant requires employees to perform work in excess of forty hours per week, but fails to pay them overtime at the rate of time and one-half, and also fails to pay for straight time worked. Throughout the relevant period, Defendant had a practice of substituting comp time to pay employees, rather than paying overtime wages when employees worked in excess of forty hours per week. Comp time is future time off that a given employee may have that pays at their regular hourly rate. Managers and other supervisors required employees to accept this practice, rather than receiving overtime wages. This resulted in employees receiving their normal rate of pay for time worked in excess of forty hours.

         Further, Defendant also had a compensation structure that included non-discretionary bonus pay or “incentive” pay. There were times where Plaintiff worked in excess of forty hours during pay periods in which he earned bonus or “incentive” pay. Additionally, Defendant used a centralized time keeping system to record employee hours. Defendant engaged in systematic and uniform time-keeping practices that were unfair and deceptive. Defendant failed to pay minimum wage and overtime compensation, and failed to keep accurate time records, so that it could save payroll costs.


         An initial pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a). The court may dismiss a complaint for failing to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). In ruling on a motion to dismiss, “[a]ll well-pleaded allegations of material fact in the complaint are accepted as true and are construed in the light most favorable to the non-moving party.” Faulkner v. ADT Sec. Servs., Inc., 706 F.3d 1017, 1019 (9th Cir. 2013) (citations omitted).

         To survive a motion to dismiss, a complaint need not contain “detailed factual allegations, ” but merely asserting “‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action'” is not sufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In other words, a claim will not be dismissed if it contains “sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face, ” meaning that the court can reasonably infer “that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citation and internal quotation marks omitted). In elaborating on the pleading standard described in Twombly and Iqbal, the Ninth Circuit has held that for a complaint to survive dismissal, the plaintiff must allege non-conclusory facts that, together with reasonable inferences from those facts, are “plausibly suggestive of a claim entitling the plaintiff to relief.” Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).

         “As a general rule, a district court may not consider any material beyond the pleadings in ruling on a Rule 12(b)(6) motion.” Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001) (citation and internal quotation marks omitted). In deciding a motion to dismiss under Rule 12(b)(6), the district court's review is limited to the complaint itself; the court does not decide at this stage whether the plaintiff will ultimately prevail on her claims, but rather whether he or she may offer evidence to support those claims. Cervantes v. City of San Diego, 5 F.3d 1273, 1274 (9th Cir. 1993) (citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). If the district court relies on materials outside the pleadings submitted by either party to the motion to dismiss, the motion must be treated as a Rule 56 motion for summary judgment. Anderson v. Angelone, 86 F.3d 932, 934 (9th Cir. 1996). However, two exceptions to this rule exist. First, the court may consider extrinsic material “properly submitted as part of the complaint, ” meaning documents either attached to the complaint or upon which the plaintiff's complaint necessarily relies and for which authenticity is not in question. Lee, 250 F.3d at 688 (citation omitted). Second, the court “may take judicial notice of matters of public record.” Id. (citation and internal quotation marks omitted).


         Defendant seeks dismissal of all three causes of action in Plaintiff's Complaint arguing that Plaintiff fails to state plausible FLSA claims, and that Nevada law does not provide a ...

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