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Jaffee v. Wynn Las Vegas LLC

United States District Court, D. Nevada

June 4, 2019

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.


          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


         Plaintiffs 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 follows:

         WHEREAS, on May 22, 2019, Defendant filed its Motion to Dismiss Plaintiffs' Complaint (“Motion”) (ECF No. 21);

         WHEREAS, the foregoing Motion is pending before this Court, decision on which the Parties do not request a stay or delay;

         WHEREAS, 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;

         WHEREAS, 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);

         WHEREAS, 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

         WHEREAS, 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 following briefing:

         1. 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. Nev. 2013).

         2. 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).

         3. With 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 Media factor.

         4. With 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.

         5. The 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 ...

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