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Yousif v. The Venetian Casino Resort, LLC

United States District Court, D. Nevada

July 11, 2018

MUSTAFA YOUSIF and SHARONE WALKER on behalf of themselves and all others similarly situated, Plaintiffs,
v.
THE VENETIAN CASINO RESORT, LLC; LAS VEGAS SANDS, CORP. and DOES 1 through 50, inclusive, Defendants.

          THIERMAN BUCK, LLP, Mark R. Thierman, Esq, Joshua D. Buck, Esq. Attorneys for Plaintiffs Mustafa Yousif and Sharone Walker on behalf of themselves and All others similarly situated

          OGLTREE, DEAKINS, NASH, SMOAK, & STEWART, P.C, Anthony L. Martin, Esq., Dana B. Salmonson, Esq, Patrick F. Hulla (admitted pro hac vice) Attorneys for Defendants Venetian Casino Resort, LLC and Las Vegas Sands Corp.

          STIPULATION AND ORDER TO FILE PLAINTIFFS' PROPOSED FOURTH AMENDED COMPLAINT

          RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE

         Plaintiffs MUSTAFA YOUSIF and SHARONE WALKER (“Plaintiffs”), by and through their counsel of record THIERMAN BUCK, LLP, and Defendants VENETIAN CASINO RESORT, LLC; LAS VEGAS SANDS, CORP., by and through their counsel of record OGLETREE, DEAKINS, NASH, SMOAK, & STEWART, P.C., hereby stipulate and agree that Plaintiffs may file with the Court, without further motion, the Proposed Fourth Amended Complaint, a copy of which is attached hereto as Exhibit A.

         At the hearing held on May 24, 2018 the Court granted in part and denied in part Defendant's Motion to Dismiss Plaintiffs' Second Amended Complaint and instructed Plaintiffs to file a Third Amended Complaint . (ECF No. 83.) On May 29, 2018, Plaintiffs filed their Third Amended Complaint (ECF No. 84); on June 12, 2018 Defendants filed their Motion to Dismiss Plaintiffs' Third Amended Complaint. (ECF No. 88). After reviewing and meeting and conferring with Defendants regarding the same, Plaintiffs now seek to amend their complaint for a fourth time by further narrowing Plaintiffs' claims and removing allegations that are not supported by the evidence.

         By agreeing to Plaintiffs filing the Proposed Fourth Amended Complaint, Defendants are not agreeing to the merits of any claim, the factual allegations in the Fourth Amended Complaint, or waiving any defenses they may assert.

         The Parties further stipulate and agree that Defendants have twenty-one (21) days from the date the Fourth Amended Complaint is filed to respond accordingly.

         ORDER

         IT IS SO ORDERED.

         Exhibit List

         Exhibit A Plaintiffs' Proposed Fourth Amended Complaint

         FOURTH AMENDED COMPLAINT COLLECTIVE AND CLASS ACTION COMPLAINT

         1) Failure to Pay Overtime in Violation of 29 U.S.C. § 207;

         2) Failure to Compensate for All Hours Worked in Violation of NRS 608.140 and 608.016;

         3) Failure to Pay Overtime in Violation of NRS 608.140 and 608.018;

         4) Failure to Timely Pay All Wages Due and Owing in Violation of NRS 608.140 and 608.020-050; and

         5) Violation of the Fair Credit Reporting Act, 15 U.S.C. §§ 1681, et seq.

         JURY TRIAL DEMANDED

         COMES NOW Plaintiffs MUSTAFA YOUSIF and SHARONE WALKER, on behalf of themselves and all others similarly situated and alleges the following:

         All allegations in the Complaint are based upon information and belief except for those allegations that pertain to the Plaintiffs named herein and their counsel. Each allegation in the Complaint either has evidentiary support or is likely to have evidentiary support after a reasonable opportunity for further investigation and discovery.

         JURISDICTION AND VENUE

         1. This Court has original jurisdiction over the federal claims alleged herein pursuant to the Fair Labor Standards Act (“FLSA”) 29 U.S.C. § 216(b) which states: “An action to recover the liability prescribed in either of the preceding sentences may be maintained against any employer (including a public agency) in any Federal or State court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated.” Plaintiffs have filed with this court consents to join this action.

         2. This Court also has jurisdiction over the federal claims alleged under the Fair Credit and Reporting Act (“FCRA”), 15 U.S.C. § 1681p which states: “An action to enforce any liability created under [the FCRA] may be brought in any appropriate United States district court, without regard to the amount in controversy, or in any other court of competent jurisdiction” within the earlier of “2 years after the date of discovery by the plaintiff or the violation that is the basis for such liability” or “5 years after the date on which the violation that is the basis for such liability occurs.” 3. This Court has supplemental jurisdiction over the state law claims alleged herein pursuant to 28 U.S.C. § 1367 because the state law claims alleged herein all arise out of the same transaction and occurrence, i.e. the failure to properly pay all wages due-and there is no conflict between the procedures applicable to the FLSA and State law claims. Integrity Staffing Solutions, Inc., 2013 U.S. App. LEXIS 7397 (9th Cir. Nev. Apr. 12, 2013) (“In sum, we agree with the other circuits to consider the issue that the fact that Rule 23 class actions use an opt-out mechanism while FLSA collective actions use an Opt-in mechanism does not create a conflict warranting dismissal of the state law claims.”)

         4. In addition, this Court has jurisdiction over the Nevada statutory claims alleged herein because the Parties seeking to recover unpaid wages have a private right of action pursuant to Nevada Revised Statute (“NRS”) sections 608.050 and 608.140, among others. See e.g., Neville v. Eighth Judicial District Court in & for Cty. of Clark, No. 70696, 133 Nev.Adv.Op. 95, 2017 WL 6273614, at *4 (Dec. 7, 2017).

         5. Venue is proper in this Court because one or more of the Defendants named herein maintains a principal place of business or otherwise is found in the judicial district the acts complained of herein occurred in Clark County, Nevada.

         PARTIES

         6. Plaintiff MUSTAFA YOUSIF, (hereinafter “Plaintiff” or “YOUSIF”) is a natural person who is and was a resident of the State of Nevada and had been employed by Defendants as a non-exempt hourly employee from on or about September 22, 2014 to on or about September 7, 2016.

         7. Plaintiff SHARONE WALKER, (hereinafter “Plaintiff” or “WALKER”) is a natural person who is and was a resident of the State of Nevada and had been employed by Defendants as a non-exempt hourly employee from on or about August 2015 to September 19, 2017.

         8. Defendant LAS VEGAS SANDS, CORPORATION is a Nevada limited-liability company with its principal place of business at 3355 Las Vegas Boulevard South, Las Vegas, Nevada. Defendant owns and operates the Venetian and the Palazzo luxury hotels in Las Vegas, Nevada.

         9. Defendant THE VENETIAN CASINO RESORT, LLC is a luxury hotel and casino complex located on the Las Vegas Strip, Nevada and, upon information and belief, is part of a larger complex, operated as one hotel comprising the adjoining Palazzo and the Sands Convention Center. The VENETIAN and The PALAZZO are operated as one hotel by the LAS VEGAS SANDS, CORP, with its principal place of business at 3355 Las Vegas Boulevard South, Las Vegas, Nevada.

         10. Defendants LAS VEGAS SANDS CORP. and THE VENETIAN CASINO RESORT are collectively referred to throughout this complaint as “Defendants” or “Venetian/Palazzo.” 11. Defendants, and each of them, are employers under the FLSA and are engaged in commerce for the purposes of the FLSA, 29 U.S.C.§ 201 et. seq. Defendants, and each of them, are employers under the provisions of Nevada Revised Statutes Chapter 608. For labor relations purposes, Defendants are each and together constitute the employer and/or joint employer of Plaintiffs and all Plaintiff class members (hereinafter referred to as “Class Members”).

         12. The identity of DOES 1-50 is unknown at this time and this Complaint will be amended at such time when the identities are known to Plaintiffs. Plaintiffs are informed and believe that each of Defendants sued herein as DOE is responsible in some manner for the acts, omissions, or representations alleged herein and any reference to “Defendant, ” “Defendants, ” or “Venetian/Palazzo” herein shall mean “Defendants and each of them.”

         FACTUAL ALLEGATIONS

         13. Plaintiffs were employed by Defendants as non-exempt hourly paid housekeepers at the Venetian/Palazzo. At the time of separation of employment Plaintiff Yousif was making about $17.44 per hour. At the time of separation of employment Plaintiff Walker was making about $17.44 per hour.

         14. Plaintiffs were scheduled for, and regularly worked, five (5) shifts per week, at least eight (8) hours per shift, forty (40) hours per workweek, and worked hours over eight (8) in a day and/or over forty (40) in a workweek. Upon information and belief, all other persons employed as housekeepers by Defendants were scheduled for and regularly worked the same or similar schedules.

         15. Plaintiff YOUSIF's usual schedule required him to work Thursday through Monday with Tuesday and Wednesday off. His schedule varied between a swing shift start time and a 9:00 a.m. start time on the weekend. He was always scheduled for the weekends.

         16. Plaintiff WALKER's usual schedule required her to work Thursday through Monday with Tuesday and Wednesday off. She was always scheduled for the weekends and was unable to take a lunch break due to volume of rooms to be cleaned during busy periods.

         DEFENDANTS' PRE-SHIFT WORK REQUIREMENTS

         17. Defendants required Plaintiffs and all employees who worked as housekeepers to engage in pre-shift work activities off the clock and without compensation each and every single shift worked. Housekeepers were required to fill their carts with cleaning supplies and linens prior to clocking in for their regularly scheduled shift.

         18. Employees could not complete their job duties without filling their carts and were not allowed to start their shifts unless and until their carts were filled with supplies needed to complete their job duties. These tasks were completed off the clock and without compensation. Based on Plaintiffs' knowledge and belief all employees who were similarly employed as housekeepers followed the same policy and procedure mandated by Defendants.

         19. Plaintiffs first principal work activity took place approximately fifteen (15) to twenty-five (25) minutes prior to their regular scheduled shift, when Plaintiffs and all housekeepers were required to enter through the employee entrance at the Venetian and review a large white board outside of the Housekeeping office in order for them to receive their floor/room/station assignments for the day. This information was not available to employees until the day of their shift at the board, at the housekeeping office, and on the property.

         20. Once a housekeeper knows what floor and rooms they are assigned to clean they go to that floor and the corresponding station to retrieve their cleaning carts and then fill those cleaning carts with items required to complete their daily work duties.

         21. In addition to linens (sheets, pillow cases, duvets), which housekeepers had to collect and fold themselves prior to loading their carts, housekeepers had to collect soap products (shampoo, conditioner, soap bars, bathroom items), towels, toilet tissue, tissue, magazines, laundry bags, extra note pads and pens, as well as a safety bag for hazardous material disposal and place them on their cleaning carts.

         22. Housekeepers are required to fill up their carts each and every shift worked.

         DEFENDANTS' ...


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