MICHAEL SARGEANT, INDIVIDUALLY AND ON BEHALF OF OTHERS SIMILARLY SITUATED, Appellant,
HENDERSON TAXI, Respondent.
from an order granting summary judgment and an order denying
class certification in a Minimum Wage Amendment case, Nev.
Const, art. 15, § 16. Eighth Judicial District Court,
Clark County; Michael Villani, Judge.
Greenberg Professional Corporation and Leon M. Greenberg and
Dana Sniegocki, Las Vegas, for Appellant.
Holland & Hart LLP and Anthony L. Hall and R. Calder
Huntington, Las Vegas; Holland & Hart LLP and Ricardo N.
Cordova, Reno, for Respondent.
DOUGLAS, GIBBONS and PICKERING, JJ.
Michael Sargeant filed a class-action lawsuit against
respondent Henderson Taxi seeking back pay and equitable
relief under the Minimum Wage Amendment of the Nevada
Constitution, Article 15, Section 16 (MWA). In response to
Sargeant's motion to certify the class action, Henderson
Taxi produced an agreement that resolved an earlier-filed
grievance for wage adjustments under the MWA brought by the
union that represented Henderson Taxi cab drivers. Based on
the grievance's resolution, the district court denied
class certification. Thereafter, the district court granted
Henderson Taxi's motion for summary judgment against
Sargeant. We affirm.
district court granted summary judgment against Sargeant, in
part, because Sargeant did not file a substantive opposition
to the summary judgment motion. The summary judgment order
Not only did the opposition not include any facts
contradicting the fact that the Union settled any minimum
wage claims Henderson Taxi's drivers may have had prior
to the settlement, none were presented at oral
argument either. Further, at the hearing on Henderson
Taxi's Motion, [Sargeant's] counsel conceded that if
this Court construed its prior order as holding Mr.
Sargeant's right to bring any legal action as alleged in
his complaint was extinguished by the Union's grievance
settlement with Henderson Taxi, nothing would substantively
remain in this case to litigate as a settlement had occurred
and judgment would be proper.
appellate appendix does not include a transcript of the oral
argument on the summary judgment motion, copies of most of
the exhibits to the motion, including the charge Sargeant
filed with the National Labor Relations Board (NLRB)
protesting the union's resolution of its grievance
against Henderson Taxi, or Henderson Taxi's reply.
Although we review an order granting summary judgment de
novo, Wood v. Safeway, Inc., 121 Nev. 724, 729, 121
P.3d 1026, 1029 (2005), to the extent these omissions impair
meaningful review of the summary judgment proceedings, we
presume the omitted materials support the district
court's decision. See Cuzze v. Univ. & Cmty.
Coll. Sys. of Nev., 123 Nev. 598, 604, 172 P.3d 131, 135
district court's description of Sargeant's opposition
to Henderson Taxi's motion for summary judgment is
accurate. The opposition did not comply with NRCP 56(b),
which requires "a concise statement setting forth each
fact material to the disposition of the motion which the
party claims is or is not genuinely in issue, citing the
particular portions of any pleading, affidavit, deposition,
interrogatory, answer, admission, or other evidence upon
which the party relies." And the opposition offered no
facts or legal authority to counter Henderson Taxi's
arguments that (1) under the Collective Bargaining Agreement
(CBA), the union was '"the exclusive representative
for all taxicab drivers employed by the Company in accordance
with the certification of the National Labor Relations Board
Case # 31-RC-5197'" (quoting the CBA § 1.1);
(2) "[w]hen Yellow Cab was issued, the Union
exercised the right granted to it by the CBA and the NLRA
[(National Labor Relations Act)] to negotiate and resolve
'matters of wages, hours, and other conditions of
employment'" by grieving and then resolving
Henderson Taxi's payment of MWA wages (quoting CBA §
2.1 and citing 29 U.S.C. § 158(d)); (3) there existed a
"bona fide dispute as to whether Henderson Taxi's
cab drivers were owed minimum wage for any period of time
prior to the issu[ance] of the Yellow Cab
decision and what the statute of limitations was when the
Union filed its Grievance, " making it permissible to
settle the accrued claims (citing Chindarah v. Pick Up
Stix, Inc., 90 Cal.Rptr.3d 175, 180 (Ct App. 2009)); and
(4) if Sargeant believed the union acted against the interest
of its members in resolving the MWA grievance it lodged
against Henderson Taxi, Sargeant's recourse lay in a
breach of duty of fair representation claim against the union
(citing and then distinguishing 14 Penn Plaza LLC v.
Pyett, 556 U.S. 247, 249 (2009)).
opposing summary judgment, Sargeant focused not on his i
individual claims but on his then-pending motion for partial
reconsideration of the earlier order denying class
certification (and on the battle over fees and costs he saw
coming). Thus, Sargeant confined his opposition to the
argument that he did not know about the union's grievance
or its resolution when he filed his complaint and moved for
class certification. In his opposition, Sargeant stated that:
(1) the motion for class certification "was predicated
upon there being no union involvement with
defendant's 'settlement' payment conduct";
(2) if judgment was to be entered, it should be entered in
Sargeant's favor for $107.23 (this being the sum due
Sargeant under Henderson Taxi's settlement with the
union); and (3) Henderson Taxi should interplead any funds
not yet distributed pursuant to the settlement with the
Taxi presented a properly supported motion for summary
judgment that Sargeant did not meaningfully oppose. And, on
appeal, Sargeant does not reraise the issues he raised in
district court to oppose summary judgment. On this record, we
affirm summary judgment in favor of Henderson Taxi. See
Schuck v. Signature Flight Support of Nevada, Inc.,
126 Nev. 434, 437, 245 P.3d 542, 544 (2010) (noting that, in
general, a party may not seek reversal of summary judgment
based on theories not presented to the district