United States District Court, D. Nevada
SHAWN JAFFEE and DEREK KRITZ, individually and on behalf of all others similarly situated, Plaintiffs,
WYNN LAS VEGAS, LLC a Nevada domestic limited-liability company, EMPLOYEES/AGENTS DOES 1-10; and ROE CORPORATIONS 11-20, inclusive, Defendant.
CHRISTIAN J. GABROY, ESQ., KAINE M. MESSER, ESQ., JON R.
MOWER, ESQ., THEODORA ORINGHER PC Attorneys for Plaintiffs
MICHAEL A. FREIMANN, ESQ. (admitted Pro Hac Vice) MARTINE T.
WELLS, ESQ., (admitted Pro Hac Vice) TRAVIS F. CHANCE, ESQ.,
Attorneys for Defendant Wynn Las Vegas, LLC
RENEWED STIPULATION AND ORDER FOR STAY OF DISCOVERY
PENDING RESOLUTION OF DEFENDANT'S MOTION TO
SHAWN JAFFEE AND DEREK KRITZ (“Plaintiffs”), by
and through their undersigned counsel of record, Christian J.
Gabroy, Esq. and Kaine M. Messer, Esq., of the Gabroy Law
Offices and Jon R. Mower, Esq., of the law firm of Theodora
Ohringer, P.C., and Defendant WYNN LAS VEGAS, LLC
(“Defendant”), by and through its undersigned
counsel of record Michael A. Freimann, Esq., Martine T.
Wells, Esq., and Travis F. Chance, Esq., of the law firm of
Brownstein Hyatt Farber Schreck, LLP (collectively, the
“Parties”), hereby stipulate and agree as
on May 22, 2019, Defendant filed its Motion to Dismiss
Plaintiffs' Complaint (“Motion”) (ECF No.
the foregoing Motion is pending before this Court, decision
on which the Parties do not request a stay or delay;
until decision on the Motion, the Parties mutually desire to
conserve Court resources as well as their own and have agreed
to stay discovery until the Motion is decided;
on May 29, 2019, the Parties submitted a Stipulation and
Order for Stay of Discovery Pending Resolution of
Defendant's Motion to Dismiss (ECF No. 23);
this Court denied that Stipulation without prejudice on May
30, 2019 (ECF No. 24) due to the failure to address the
factors required by case law in this district when
determining whether a stay of discovery pending decision on a
responsive motion is appropriate (ECF No. 24); and
the Parties desire to address those factors for the Court,
NOW, therefore, the Parties hereby stipulate and agree that
discovery in this matter be stayed, including the
requirements of LR 26-1(b) and FRCP 26(a)(1), pending
resolution of the Defendant's Motion, based upon the
Requests to stay all discovery may be granted in this
District when: (1) a pending motion is potentially
dispositive; (2) the potentially dispositive motion can be
decided without additional discovery; and (3) the Court has
taken a “preliminary peek” at the merits of the
potentially dispositive motion and is convinced that the
plaintiff will be unable to state a claim for relief. See
Kor Media Group, LLC v. Green, 294 F.R.D. 579, 581 (D.
Plaintiffs have set forth three causes of action in their
Complaint: (1) violations of the Fair Labor Standards Act;
(2) unjust enrichment; and (3) conversion. (ECF No. 1-2, at
¶¶ 65-95). These claims are based upon the
allegation that Plaintiffs were forced to participate in a
mandatory tip pool that included employees that were not
customarily and ordinarily tipped. (Id., at
¶¶ 30, 32).
respect to the first factor, Defendant filed its Motion on
May 22, 2019 (ECF No. 21). That Motion seeks dismissal of all
three causes of action, in full and with prejudice. (ECF No.
21, at 13:9-11, 14:26-27, 15:22-24, 16:7-9, 20:1-7, 20:9-19).
Thus, the pending Motion is potentially dispositive of all of
Plaintiffs' claims, satisfying the first Kor
respect to the second factor, Defendant's Motion can be
decided without any discovery at all. The Motion first argues
that Plaintiffs' FLSA claim is barred as a matter of
federal law because of Congress' 2018 amendment to 29
U.S.C. § 203(m). (ECF No. 21, at 11-13). Specifically,
the Motion asserts that Congress declared that a handful of
2011 Department of Labor (“DOL”) regulations upon
which Plaintiffs' FLSA claim relies were to have no
further force or effect. (Id., at 12:9-13:8).
Resolution of this issue requires reference to nothing more
than federal statutes and regulations (and potentially other
instructive legislative materials), which requires no
discovery whatsoever. Thus, the second Kor Media
factor is satisfied.
second factor is also satisfied by the Motion's
alternative basis for dismissal for lack of subject matter
jurisdiction. The Motion contends the Court lacks subject
matter jurisdiction because the Plaintiffs have failed to
exhaust the remedies provided for by the Collective
Bargaining Agreement (“CBA”) that governed their
employment relationship with Defendant during their
employment. (Id., at 15-20). The Motion argues that
each of Plaintiffs' claims requires interpretation of the
rights granted to both Parties under the CBA. (Id.,
at 18:12-13). While it is true that the Court may review
documents outside the pleadings when determining subject
matter jurisdiction, St. Clair v. City of Chico, 880
F.2d 199, 201 (9th Cir. 1989), it is undisputed that the CBA
governed Plaintiffs' positions when working for
Defendant, given the admissions in ...