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Walden v. State ex rel. Nevada Department of Corrections

United States District Court, D. Nevada

March 26, 2018

DONALD WALDEN JR., et al., Plaintiffs,
v.
STATE OF NEVADA, ex rel. NEVADA DEPARTMENT OF CORRECTIONS, and DOES 1-50, Defendants.

          ORDER

          MIRANDA M. DU, UNITED STATES DISTRICT JUDGE

         I. SUMMARY

         This action concerns alleged failures to compensate Nevada Department of Corrections (“NDOC”) employees under federal and state law. This Order addresses two motions that are currently pending before the Court: (1) Defendant State of Nevada ex rel. NDOC's Motion to Strike Plaintiffs' Third, Fourth, and Fifth Causes of Action in the First Amended Complaint (“Motion to Strike”) (ECF No. 98); and, (2) Defendant's Motion to Dismiss Plaintiffs' First Amended Collective and Class Action Complaint (“Motion to Dismiss”) (ECF No. 99). Plaintiffs filed responses to both motions (ECF Nos. 104, 105) and Defendant replied (ECF Nos. 111, 112).

         For the reasons discussed herein, the Motion to Strike is denied and the Motion to Dismiss is granted in part and denied in part.

         II. JURISDICTION

         The Court issued an order on March 1, 2018, asking the parties to file supplemental briefs to address whether the State of Nevada has waived its sovereign immunity as to the Fair Labor Standards Act (“FLSA”) claims in this action.[1] (ECF No. 147.) After reviewing the supplemental briefs (ECF Nos. 149, 158), the Court is convinced that Nevada has waived its sovereign immunity in this Court. The Supreme Court has held that a state's removal of suit to federal court constitutes a waiver of its Eleventh Amendment immunity. Lapides v. Bd. Of Regents of Univ. Sys. Of Georgia, 535 U.S. 613, 616 (2002). Here, the State of Nevada removed this action from state court. Therefore, it has waived its sovereign immunity.

         III. BACKGROUND

         A. Relevant Procedural History

         This action was initiated May 12, 2014, in the First Judicial District Court of the State of Nevada in and for Carson City. (ECF No. 1 at 7-21 (Exh. A).) It was timely removed on June 17, 2014, on the basis of federal question jurisdiction, 28 U.S.C. § 1331. (ECF No. 1 at 2.) The Court granted conditional certification of the class in March 2015. (ECF No. 45.) On April 13, 2016, Defendant filed a motion for judgment on the pleadings (ECF No. 86), which this Court granted in part on March 20, 2017. (ECF No. 94.) In that order, the Court dismissed the FLSA claims with leave to amend and correct the deficiencies with those claims as identified in light of the Ninth Circuit's recent decision in Landers v. Quality Commc'n, Inc., 771 F.3d 638 (9th Cir. 2014), as amended (Jan. 26, 2015), cert. denied, 135 S.Ct. 1845 (2015). (ECF No. 94 at 4-5.) In Landers, the court stated that “at a minimum, a plaintiff asserting a violation of the FLSA overtime provisions must allege that she worked more than forty hours in a given workweek without being compensated for the hours worked in excess, ” and may estimate “the length of her average workweek during the applicable period and the average rate at which she was paid, the amount of overtime wages she believes she is owed, or any other facts that will permit the court to find plausibility.” 771 F.3d at 645. The Court did not address Defendant's arguments concerning Plaintiff's state law claims in light of the fact that it no longer had jurisdiction to consider those claims once the FLSA claims were dismissed, and so the Court dismissed the state law claims without prejudice. (Id. at 5.) Plaintiffs filed their First Amended Complaint (“FAC”) on April 19, 2017. (ECF No. 95)

         B. Relevant Facts

         The following facts are taken from the FAC (ECF No. 95) unless otherwise indicated.

         Plaintiffs are individuals who were or are employed with NDOC as non-exempt hourly correctional officers. Plaintiffs are or have been employed at various NDOC facilities including Southern Desert Correctional Center (“SDCC”), High Desert State Prison (“HDSP”), Northern Nevada Correctional Center (“NNCC”), Ely State Prison (“ESP”), and Women's Correctional Center (“WCC”). For all relevant times, NDOC maintained a time recording system for employees referred to as NEATS, which recorded only exceptions to scheduled work hours as well as any workweeks in which a plaintiff or class member worked less or more than the scheduled work times. (ECF No. 95 at ¶ 16.)

         Generally, Plaintiffs were required to and did work a forty-hour workweek. If Plaintiffs worked “an alternative variable workweek schedule, ” they were required to work and did work eighty hours in a two-week period. (ECF No. 95 at ¶ 15.) As a matter of policy, Plaintiffs were only compensated for regularly scheduled shift times at their work stations. However, Plaintiffs were required to perform tasks before and after their shifts (commonly referred to as “preliminary” and “postliminary” activities). They claim that they were not compensated for these activities. As for preliminary activities, Plaintiffs identify the following activities: (1) reporting to the supervisor or sergeant on duty to check in; (2) receiving assignments for the day; (3) having their uniforms inspected; (4) collecting any and all tools needed for daily assignments, such as radios, keys, weapons, tear gas, handcuffs; (5) proceeding to their designated work stations; and (6) receiving debriefing from the outgoing correctional officer. Plaintiffs refer to the first four activities as “muster.” (ECF No. 95 at ¶ 31.) Plaintiffs contend that traveling to their designated work stations could take up to fifteen minutes or more per employee per shift. Plaintiffs also state that only after receiving briefing/instructions from the prior correctional officer at their work stations did a plaintiffs scheduled shift time begins. As to postliminary activities, Plaintiffs were required to conduct mandatory debriefing with the oncoming correctional officer then return to the main office to return various tools they had attained for the day and drop off or complete paperwork.

         Plaintiffs estimate that on average they performed “upwards to 30-minutes of compensable work before their regularly scheduled shifts, each and every shift worked, for which they were not paid” and “upwards to 15 minutes of compensable work after their regularly scheduled shifts, each and every shift worked, for which they were not paid.” (ECF No. 95 at ¶¶ 20, 22.) The FAC identifies at least one workweek where each Plaintiff worked over forty hours in a workweek or over eighty hours in a work period and were not paid overtime for pre- and post-shift activities. Specifically:

• Walden alleges he worked 3.75 hours of overtime at an average hourly rate of $23.50 and is owed $132.19 for each workweek during the pay period between January 7 through January 20, 2013;
• Echeverria alleges he worked 3.75 hours of overtime at an average hourly rate of $23.50 and is owed $132.19 for each workweek during the pay period between September 30 and October 13, 2013;
• Dicus alleges he worked 3.75 hours of overtime at an average hourly rate of $21.17 and is owed $119.110 for each workweek during the pay period between January 16 and January 29, 2017;
• Everist alleges he worked 3.75 hours of overtime at an average hourly rate of $22.80 and is owed $128.25[2] for each workweek during the pay period between January 20 and February 2, 2014;
• Zufelt alleges he worked 3.75 hours of overtime at an average hourly rate of $22.00 and is owed $123.75 for each workweek during the pay period between March 26 and April 9, 2017;
• Redenour alleges he worked 5.25 hours of overtime at an average hourly rate of $24.00 and is owed $189 for the pay period between November 26 and December 9, 2012; and,
• Tracy alleges he worked 3.75 hours of overtime at an average hourly rate of $26.00 and is owed $146.25 for each workweek during the pay period between March 17 through March 30, 2014.

(ECF No. 95 at ¶¶ 44(c), 45(e), 46(f), [3] 47(e), 48(h), 49(g), 50(g).) Each Plaintiff also identifies how much they believe they are owed in overtime per year worked. Specifically:

• Walden alleges he is owed $6, 345.60 per year worked based on .75 hours of overtime per shift and 240 shifts per year;
• Echeverria alleges he is owed $6, 345.60 per year worked based on .75 hours of overtime per shift and 240 shifts per year;
• Dicus alleges he is owed $ 5, 716.80 per year worked based on .75 hours of overtime per shift and ...

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