United States District Court, D. Nevada
ORDER GRANTING DEFENDANT'S MOTION TO
RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE.
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.
alleges the following facts in his Complaint filed on March
30, 2016. ECF No. 1.
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
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.
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
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).
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).
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).
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 ...