United States District Court, D. Nevada
C. JONES United States District Judge.
a putative wage and hour class action arising primarily from
the Defendants' alleged failure to pay their employees
minimum wages under Article 15, Section 16 of the Nevada
Constitution. Now pending before the Court are five Motions
to Dismiss, (ECF Nos. 35, 37, 55, 66, 74), and a Motion for
Leave to File Excess Pages, (ECF No. 75). For the reasons
given herein, the Court grants the motions to dismiss
Plaintiffs' First Amended Complaint.
FACTS AND PROCEDURAL BACKGROUND
Abel Cántaro Castillo (Cántaro) and Alcides
Inga Ramos (“Inga”) are Peruvian citizens
lawfully admitted to the United States under the Department
of Labor's (“DOL”) H-2A guestworker visa
program, pursuant to 8 U.S.C. §§
1101(a)(15)(H)(ii)(a), 1188(a)(1), and 20 C.F.R. Part 655,
Subpart B. (Am. Compl. ¶¶ 4, 29-32, 59-62, ECF No.
45.) Cántaro alleges that he was recruited into the
H-2A visa program in 2007 by Defendant Western Range
Association (“WRA”). (Id. at
¶¶ 29-30.) WRA assisted Cántaro through the
process of obtaining his H-2A visa, and eventually assigned
him to work for a “particular WRA ranch, Defendant El
Tejon Sheep Company, which is owned and managed by Defendant
[Melchor] Gragirena.” (Id. at ¶¶
30-32.) Cántaro alleges that he was jointly employed
by WRA, El Tejon, and Gragirena while working in the United
States from approximately 2007 through June 2014.
(Id. at ¶ 43.)
alleges that he was recruited into the H-2A visa program in
early 2012 by Defendant Mountain Plains Agricultural Service
(“MPAS”). (Id. at ¶¶ 59-60.)
MPAS assisted Inga with the visa process and assigned him to
work for a “particular MPAS ranch, Defendant Estill
Ranches, LLC (‘Estill Ranches'), which is owned and
managed by Defendant John Estill.” (Id. at
¶¶ 60- 62.) Inga alleges that he was jointly
employed by MPAS, Estill Ranches, and Estill while working in
the United States from about April 2012 through February
2013. (Id. at ¶ 72.)
were employed as range sheep herders, engaged to be on call
twenty-four hours a day and seven days a week. (Am. Compl.
¶¶ 46-48, 73-75, ECF No. 45.) Accordingly, under 20
C.F.R. Part 655, Subpart B, Defendants were required to pay
Plaintiffs “a wage that is the highest of the monthly
AEWR established under this section, the agreed-upon
collective bargaining wage, or the applicable minimum wage
imposed by Federal or State law or judicial action.” 20
C.F.R. § 655.211(a)(1). Plaintiffs allege that
Defendants paid them the monthly AEWR-or Adverse Effect Wage
Rate-despite the fact that the Nevada state
minimum wage mandated a higher rate of pay. Accordingly, this
lawsuit centers on Defendants' alleged failure to pay
Plaintiffs at least the Nevada minimum wage as set forth in
the Minimum Wage Amendment (“MWA”) to the Nevada
Constitution. Nev. Const. art. 15, § 16.
filed this action against El Tejon, Gragirena, and WRA on May
3, 2016, asserting claims under the Fair Labor Standards Act
(“FLSA”) and the MWA. (Compl., ECF No. 1.) On
September 16, 2016, El Tejon, Gragirena, and WRA filed
motions to dismiss. (ECF Nos. 35, 37.) Rather than oppose the
motions, Cántaro filed a First Amended Complaint
(“FAC”), adding Inga as co-plaintiff and MPAS,
Estill Ranches, and Estill as defendants. (Am. Compl., ECF
No. 45.) In the FAC, Plaintiffs have eschewed any claim based
on the FLSA. Accordingly, all of their claims now arise under
Nevada state law: failure to pay minimum wages in violation
of the MWA, failure to pay wages due upon termination under
NRS Chapter 608, breach of contract, promissory estoppel,
unjust enrichment, and quantum meruit.
WRA, El Tejon, Gragirena, Estill Ranches, and Estill have
filed motions to dismiss the FAC. (ECF Nos. 55, 66, 74.)
Based on the absence of any claim expressly arising under
federal law, Defendants seek dismissal for lack of subject
matter jurisdiction. In the alternative, Defendants argue
that Plaintiffs have failed to state a plausible claim for
relief, and request dismissal under Federal Rule of Civil
PRE-AMENDMENT MOTIONS TO DISMISS (ECF NOS. 35, 37)
Rule of Civil Procedure 15(a) provides that a plaintiff may
amend his complaint “as a matter of course”
within 21 days after (1) service of the complaint, (2)
service of a responsive pleading, or (3) service of a motion
under Rule 12(b), (e), or (f). The Ninth Circuit construes
“the phrase ‘matter of course' as consonant
with ‘as of right, ' implying, if not expressly
declaring, that Rule 15 confers a ‘right' to amend
upon the parties.” Ramirez v. Cty. of San
Bernardino, 806 F.3d 1002, 1007 (9th Cir. 2015). When an
amended complaint is filed, it “supersedes the
original, the latter being treated thereafter as
non-existent.” Forsyth v. Humana, Inc., 114
F.3d 1467, 1474 (9th Cir. 1997) (internal citation omitted),
overruled on other grounds by Lacey v. Maricopa
Cty., 693 F.3d 896, 927-28 (9th Cir. 2012).
motions to dismiss Plaintiffs' original Complaint were
filed on September 16, 2016. (ECF Nos. 35, 37.) Plaintiffs
then filed the FAC on October 3, 2016. (Am. Compl., ECF No.
40-1.) Because the FAC was filed within 21 days of the
service of Defendants' Rule 12(b) motions, the effect of
the FAC is to supersede and replace the original Complaint,
such that “the original pleading no longer performs any
function, ” and effectively “ceases to
exist.” Ramirez, 806 F.3d at 1008.
Accordingly, because the pre-amendment motions to dismiss
target Plaintiffs' original Complaint, which is no longer
in effect, those motions are moot. See id.
DISMISSAL UNDER FRCP 12(b)(1)
Rule of Civil Procedure 12(b)(1) provides for dismissal of a
claim based on the lack of subject-matter jurisdiction. While
the defendant is the moving party in a motion to dismiss, the
plaintiff is the party invoking the court's jurisdiction.
Consequently, “the plaintiff bears the burden of
proving that the case is properly in federal court.”
Wright v. Incline Vill. Gen. Imp. Dist., 597
F.Supp.2d 1191, 1198 (D. Nev. 2009) (citing McCauley v.
Ford Motor Co., 264 F.3d 952, 957 (9th Cir. 2001)). A
motion to dismiss for lack of subject-matter jurisdiction
pursuant to Rule 12(b)(1) may take one of two forms.
Thornhill Publ'g Co. v. Gen. Tel. & Elec.
Corp., 594 F.2d 730, 733 (9th Cir. 1979). It may be a
“facial” challenge or it may be a
“factual” challenge. Id. “In a
facial attack, the challenger asserts that the allegations
contained in a complaint are insufficient on their face to
invoke federal jurisdiction.” Safe Air for Everyone
v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004).
“[I]n a factual attack, the challenger disputes the
truth of the allegations that, by themselves, would otherwise
invoke federal jurisdiction.” Id.
movant's challenge is a facial one, then the “court
must consider the allegations of the complaint to be true and
construe them in the light most favorable to the
plaintiff.” Nevada ex rel. Colo. River Comm'n
of Nev. v. Pioneer Cos., 245 F.Supp.2d 1120, 1124 (D.
Nev. 2003) (citing Love v. United States, 915 F.2d
1242, 1245 (9th Cir. 1989)). If the attack is factual,
however, “no presumptive truthfulness attaches to
plaintiff's allegations, and the existence of disputed
material facts will not preclude the trial court from
evaluating for itself the merits of jurisdictional
claims.” Thornhill, 594 F.2d at 733 (quoting
Mortensen v. First Fed. Sav. & Loan Ass'n,
549 F.2d 884, 891 (3d Cir. 1977)). The plaintiff has the
“burden of establishing that the court, in fact,
possesses subject-matter jurisdiction” by present[ing]
affidavits or any other evidence necessary.” St.
Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir.
1989). Indeed, the district court is “free to hear
evidence regarding jurisdiction and to rule on that issue
prior to trial, resolving factual disputes where
necessary.” Augustine v. United States, 704
F.2d 1074, 1077 (9th Cir. 1983) (citing Thornhill,
594 F.2d at 733).
includes only claims arising under Nevada state law.
Nonetheless, Plaintiffs assert two bases for federal
jurisdiction in this case. First, Plaintiffs argue that
federal question jurisdiction (28 U.S.C. § 1331) applies
to the “claims brought under the contracts, ”
because these claims “require the Court to resolve
significant and serious questions of federal law.” (Am.
Compl. ¶ 6, ECF No. 45.) Second, Plaintiffs argue that
diversity jurisdiction under the Class Action Fairness Act
(“CAFA”) (28 U.S.C. § 1332(d)) applies to
the “state-law claims against WRA, ” (Am. Compl.
¶ 6), which in turn supports supplemental jurisdiction
(28 U.S.C. § 1367) over the remaining Defendants, (Resp.
9-11, ECF No. 77).
Federal Question Jurisdiction Under 28 U.S.C. §
courts have original jurisdiction over civil actions
“arising under the Constitution, laws, or treaties of
the United States.” 28 U.S.C. § 1331. For a case
to “arise under” federal law, a plaintiff's
well-pleaded complaint must establish “either that
federal law creates the cause of action or that the
plaintiff's right to relief necessarily depends on
resolution of a substantial question of federal law.”
Empire Healthchoice Assur., Inc. v. McVeigh, 547
U.S. 677, 690 (2006) (citing Franchise Tax Bd. of Cal. v.
Constr. Laborers Vacation Trust for S. Cal., 463 U.S. 1,
27- 28 (1983)).
“in certain cases federal-question jurisdiction will
lie over state-law claims that implicate significant federal
issues.” Grable & Sons Metal Prod., Inc. v.
Darue Eng'g & Mfg., 545 U.S. 308, 312 (2005).
However, there is a “long-settled understanding that
the mere presence of a federal issue in a state cause of
action does not automatically confer federal-question
jurisdiction.” Merrell Dow Pharm. Inc. v.
Thompson, 478 U.S. 804, 813 (1986). The Supreme Court
has consistently explained that “federal jurisdiction
demands not only a contested federal issue, but a substantial
one, indicating a serious federal interest in claiming the
advantages thought to be inherent in a federal forum.”
Id. at 313. In other words, a state-law claim will
not arise under federal law “unless it really and
substantially involves a dispute or controversy respecting
the validity, construction or effect of such a law, upon the
determination of ...