United States District Court, D. Nevada
before the court is defendant Capital One Servs., II,
LLC's motion to dismiss plaintiff's first amended
collective and class action complaint. (ECF No. 12).
Plaintiff Natasha Porteous filed a response (ECF No. 15), to
which defendant replied (ECF No. 16).
before the court is plaintiff's motion for circulation of
notice. (ECF No. 17). Defendant responded (ECF No. 28), to
which plaintiff replied (ECF No. 39).
before the court is defendant's motion to strike
declarations offered in support of plaintiff's motion for
circulation of notice. (ECF No. 38). Plaintiff filed a
response (ECF No. 40), to which defendant replied (ECF No.
a collective and class action brought by plaintiff and on
behalf of all similarly situated individuals. (ECF No. 6).
Plaintiff was employed by defendant as a non-exempt, hourly,
full-time, personal banker/customer service representative at
defendant's Las Vegas call center location from November
30, 2015, until April 11, 2017. Id. at 3.
each eight-hour shift, plaintiff was entitled to two
fifteen-minute paid rest breaks and one thirty-minute unpaid
lunch period. (ECF No. 6). Plaintiff alleges that, although
she took her thirty-minute lunch daily, she was
“rarely” able to take her two allotted
fifteen-minute breaks. Id. at 3-4. According to
plaintiff, she was not paid for the breaks she was unable to
take despite working during that time. Id. In
addition, plaintiff claims that defendant did not include her
“non-discretionary” monthly incentive payment-a
form of compensation paid to call center employees for
meeting defendant's production standards-when defendant
calculated plaintiff's regular hourly rate of pay.
Id. at 4. Plaintiff asserts that this omission meant
that defendant failed to properly calculate her hourly wage,
resulting in defendant's subsequent failure to properly
calculate plaintiff's overtime pay. Id. at 4-5.
alleges that all call center employees, including plaintiff,
were required to perform daily pre-shift activities and
post-shift activities “off-the-clock, ” without
compensation. Id. at 4. Plaintiff asserts that the
FLSA class consists of all hourly paid call center employees
for the “relevant” time period. Id. at
simultaneously asserts both federal and state claims.
Plaintiff's federal claims implicate the Fair Labor
Standards Act (“FLSA”). Id. Plaintiff
makes similar allegations with respect to the Nevada class
under Nevada's constitution and Nevada's Revised
Statutes (“NRS”). Id. at 5-8. Like the
FLSA class, plaintiff asserts that the Nevada class consists
of all hourly paid call center employees employed in the
state of Nevada during the “relevant” time
period, as well as a Nevada sub-class consisting of
“wages due and owing” to all members of the
Nevada class that are former employees of defendant.
Id. at 5. In total, plaintiff alleges that there are
approximately 700 former and current call center employees
who are class members, over 500 of whom are in the Nevada
class. Id. at 6.
filed the original complaint in state court on October 5,
2017. (ECF No. 1). Defendant removed the action to federal
court on November 15, 2017, based upon federal question
jurisdiction. Id. On December 6, 2017, plaintiff
filed a first amended complaint. (ECF No. 6). In the instant
motion, defendant move to dismiss plaintiff's complaint
for failure to state a claim pursuant to Rule 12(b)(6).
first amended complaint alleges seven causes of action: (1)
failure to pay overtime in violation of the FLSA, 29 U.S.C.
§ 207; (2) failure to pay the correct overtime rate in
violation of the FLSA, 29 U.S.C. § 207(e); (3) failure
to compensate for all hours worked in violation of NRS
608.140 and 608.016; (4) failure to pay minimum wages in
violation of the Nevada constitution; (5) failure to pay
overtime in violation of NRS 608.140 and 608.018; (6) failure
to timely pay all wages “due and owing” in
violation of NRS 608.140 and 608.020-050; and (7) breach of
contract. (ECF No. 6).
asserts these claims on behalf of herself and the following
proposed classes: (i) FLSA class consisting of all hourly
paid call center employees employed by defendant in the
United States at any time during the relevant time period
herein; (ii) Nevada class consisting of all hourly paid call
center employees employed by defendant in the United States
at any time during the relevant time period herein; and (iii)
wages due and owing class consisting of all members of the
Nevada class who are former employees of defendant.
Id. at 5.
filed a motion to dismiss plaintiff's complaint on
November 22, 2017. (ECF No. 12).
considering a Rule 12(b)(6) motion for failure to state a
claim, the court must accept as true all factual allegations
in the complaint as well as all reasonable inferences that
may be drawn from such allegations. LSO, Ltd. v.
Stroh, 205 F.3d 1146, 1150, n.2 (9th Cir. 2000). Such
allegations must be construed in the light most favorable to
the moving party. Shwarz v. U.S., 234 F.3d 428, 435
(9th Cir. 2000). Generally, the court should only look to the
contents of the complaint during its review of a 12(b)(6)
motion to dismiss; however, the court may consider documents
attached to the complaint or referred to in the complaint
whose authenticity no party questions. Id.; see also
Durning v. First Bos. Corp., 815 F.2d 1265, 1267 (9th
purpose of a Rule 12(b)(6) motion to dismiss for failure to
state a claim is to test the legal sufficiency of a
complaint. Navarro v. Block, 250 F.3d 729, 732 (9th
Cir. 2001). The issue is whether a claimant is entitled to
offer evidence to support the claims, not whether the
claimant will ultimately prevail. Gilligan v. Jamco Dev.
Corp., 108 F.3d 246, 249 (9th Cir. 1997) (quotations
properly pled complaint must provide “[a] short and
plain statement of the claim showing that the pleader is
entitled to relief.” Fed.R.Civ.P. 8(a)(2); Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).
While Rule 8 does not require detailed factual allegations,
it demands “more than labels and conclusions” or
a “formulaic recitation of the elements of a cause of
action.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citation omitted). “Nor does a complaint
suffice if it tenders ‘naked assertion[s]' devoid
of ‘further factual enhancements.'”
Id. (quoting Twombly, 550 U.S. at 557).
allegations must be enough to rise above the speculative
level.” Twombly, 550 U.S. at 555. Thus, to
survive a motion to dismiss, a complaint must contain
sufficient factual matter to “state a claim to relief
that is plausible on its face.” Iqbal, 556
U.S. at 678 (citation omitted).
Iqbal, the Supreme Court clarified the two-step
approach district courts are to apply when considering
motions to dismiss. First, the court must accept as true all
well-pled factual allegations in the complaint; however,
legal conclusions are not entitled to the assumption of
truth. Id. at 678-79. Mere recitals of the elements
of a cause of action, supported only by conclusory
statements, do not suffice. Id. at 678.
the court must consider whether the factual allegations in
the complaint allege a plausible claim for relief.
Id. at 679. A claim is facially plausible when the
plaintiff's complaint alleges facts that allow the court
to draw a reasonable inference that the defendant is liable
for the alleged misconduct. Id. at 678.
the complaint does not permit the court to infer more than
the mere possibility of misconduct, the complaint has
“alleged-but not shown-that the pleader is entitled to
relief.” Id. (internal quotation marks
omitted). When the allegations in a complaint have not
crossed the line from conceivable to plausible,
plaintiff's claim must be dismissed. See
Twombly, 550 U.S. at 570.
Ninth Circuit addressed post-Iqbal pleading
standards in Starr v. Baca, 652 F.3d 1202, 1216 (9th
Cir. 2011). The Starr court stated, in relevant
First, to be entitled to the presumption of truth,
allegations in a complaint or counterclaim may not simply
recite the elements of a cause of action, but must contain
sufficient allegations of underlying facts to give fair
notice and to enable the opposing party to defend itself
effectively. Second, the factual allegations that are taken
as true must plausibly suggest an entitlement to relief, such
that it is not unfair to require the opposing party to be
subjected to the expense of discovery and continued
court grants a motion to dismiss a complaint, it must then
decide whether to grant plaintiff leave to amend.
Lucatelli v. Texas De Brazil (Las Vegas) Corp., No.
2:11-CV-01829-RCJ, 2012 WL 1681394, at *2 (D. Nev., May 11,
2012). The court should “freely give” leave to
amend where there is no “undue delay, bad faith or
dilatory motive on the part of the movant . . . undue
prejudice to the opposing party by virtue of allowance of the
amendment, [or] futility of the amendment.”
Fed.R.Civ.P. 15(a)(2); Foman v. Davis, 371 U.S. 178,
182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962). Generally,
leave to amend is only denied when it is clear that the
deficiencies of the complaint cannot be cured by amendment.
See DeSoto v. Yellow Freight Sys., Inc., 957 F.2d
655, 658 (9th Cir. 1992).
moves to dismiss all seven of plaintiff's claims.
Plaintiff's claims will be addressed in turn to determine
whether dismissal is appropriate.
The Fair Labor Standards Act
Fair Labor Standards Act (“FLSA”) was created to
provide a uniform national policy of guaranteeing
compensation for all work or employment covered by the
Barrentine v. Arkansas-Best Freight Sys., Inc., 450
U.S. 728, 741 (1981). The FLSA sets minimum wage and overtime
standards for employment. 29 U.S.C. § 201 et
seq. Specifically, the FLSA requires employers to pay
employees not less than $7.25 per hour (minimum wage). 29
U.S.C. § 206(a)(C). The FLSA also requires employers to
pay employees who work in excess of forty hours per week
“at a rate not less than one and one-half times”
their normal wages (maximum hours). 29 U.S.C. §
FLSA grants individual employees broad access to the courts
and permits an action to recover minimum wages, overtime
compensation, liquidated damages, or to gain injunctive
relief. Barrentine, 450 U.S. at 740.
the FLSA does not mandate paid break time, it allows for
consideration of work during these periods in calculating
potential failure to pay minimum wage or overtime. Nelson
v. Waste Mgmt. of Alameda City., Inc., 33 Fed. App'x
273, 274 (9th Cir. 2002) (holding that while FLSA does not
require compensation for work during break times, it
“requires that both hours worked and meal periods
treated as hours worked be included in wage and overtime
plaintiff's claims do not “arise under or relate
to” the FLSA unless they implicate the statute's
overtime or minimum wage requirements. See 29 U.S.C.
order to bring a claim for failure to pay minimum wage in
violation of 29 U.S.C. § 207 (maximum hours), plaintiff
must first show that her hourly pay fell below the statutory
minimum wage of $7.25 per hour worked. 29 U.S.C. §
206(a); Sargent v. HG Staffing, LLC, 171 F.Supp.3d
1063, 1077 (D. Nev. 2016) (quoting Adair v. City of
Kirkland, 185 F.3d 1055, 1063 (9th Cir. 1999)
(“The district court properly rejected any minimum wage
claim the officers might have brought by finding that their
salary, when averaged across their total time worked, still
payed them above minimum wage.”); Sullivan v.
Riviera Holdings Corp., No. 2:14-cv-165-APG-VCF, 2014 WL
2960303, at *2 (dismissing FLSA claim because plaintiffs'
allegations did not meet this standard). In other words,
before plaintiff can bring FLSA minimum wage claims on behalf
of herself and similarly situated employees, plaintiff must
show that her compensation, when averaged across all hours
worked, dropped her pay below the $7.25 statutory threshold.
FLSA's overtime compensation provision entitles covered
employees to time-and-a-half wages for hours worked in excess
of forty hours in a workweek. 29 U.S.C. § 207(a)(1).
“Accordingly, to state a claim the plaintiff must
allege that she worked more than 40 hours per workweek and
did not receive the correct overtime pay for that week (or
weeks).” Sullivan, 2014 WL 2960303, at *2.
Here, plaintiff must show that she was not paid for all hours
worked in excess of forty hours in a work week before she can
bring a claim of failure to pay overtime under the FLSA.
Plaintiff's FLSA claims
was an hourly, full-time, personal banker/customer service
representative at defendant's Las Vegas call center
location from November 30, 2015, until April 11, 2017. (ECF
No. 6 at 3).
generally alleges that defendant violated the FLSA because
defendant failed to pay overtime to her and other hourly call
center employees for working through their fifteen minute
breaks and for performing pre- and post-shift work. (ECF Nos.
6, 15, 17, 19, 39, 40). Plaintiff also alleges that defendant
violated the FLSA when defendant failed to consider her
non-discretionary incentive bonuses when calculating her
wages, ultimately resulting in defendant's failure to
properly calculate plaintiff's and other call center
employees' overtime pay. Id.
Defendant's alleged failure to pay overtime for pre- and
post-shift activities in violation of the FLSA, 29 U.S.C.
alleges that defendant failed to pay her overtime for pre-
and post-shift activities in violation of the FLSA. (ECF No.
asserts that plaintiff's allegations are not sustainable.
(ECF No. 12). Defendant contends that plaintiff is trying to
bring a “gap time” claim under the guise of
unpaid overtime in order to trigger the FLSA, but that the
FLSA does not apply where “uncompensated work fails to
trigger a minimum wage claim.” Id. at 8.
Defendant thus maintains that plaintiff's complaint fails
to meet the pleading standard set forth in Landers v.
Quality Commc'ns, Inc., 771 F.3d 638 (9th Cir.
2014), as amended (Jan. 26, 2015). (ECF No. 16 at
survive a motion to dismiss, a plaintiff asserting a claim to
overtime payments must allege that she worked more than forty
hours in a given workweek without being compensated for the
overtime hours worked during that workweek.”
Landers, 771 F.3d at 644-45. However, a
“plaintiff may establish a plausible claim by
estimating 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.” Id. at 645.
even under Landers, “[e]entitlement to relief
requires more than labels and conclusions . . . Factual
allegations must be enough to raise a right to relief above a
speculative level.” Eclectic Prop. E., LLC v.
Marcus & Millchap, Co., 751 F.3d 990, 995 (9th Cir.
2014) (quoting Twombly, 550 U.S. at 555) (where
plaintiff's complaint did not contain adequate factual
allegations to plausibly infer that defendants intended to
defraud and, therefore, plaintiff could not show a plausible
entitlement to relief).
considering plausibility, courts must also consider an
‘obvious alternative explanation' for
defendant's behavior.” Id. (quoting
Twombly, 550 U.S. at 567). It would be unfair to
require defendant to be subjected to the expense of discovery
and continued litigation where defendant's plausible
alternative explanation is “so convincing that
plaintiff's explanation is implausible.”
Id. (emphasis in original); In re Century
Aluminum Co. Secs. Litig.,729 F.3d 1104, 1105 (9th Cir.
2013) (where plaintiff alleged facts that were “merely