United States District Court, D. Nevada
CORISSA JONES, on behalf of herself and on behalf of all others similarly situated, Plaintiff,
SHAC LLC, D/B/A SAPPHIRE GENTLEMEN'S CLUB; SHAC MT. LLC; DAVID MICHAEL TALLA; and PETER FEINSTEIN, Defendants.
RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE.
action is brought pursuant to the Fair Labor Standards Act
(“FLSA”) by Plaintiffs, a class of exotic dancers
who worked at Sapphire Gentlemen's Club during the class
period. Plaintiffs allege that Defendants-Shac, LLC, d/b/a
Sapphire Gentlemen's Club; Shac Mt. LLC; David Michael
Talla; and Peter Feinstein-misclassified them as independent
contractors and therefore violated the FLSA by failing to
compensate them for hours worked.
the Court are several motions: Defendants' Motion to
Dismiss Opt-In Plaintiffs Pursuant to FRCP 12(b)(1) (ECF No.
92); Plaintiffs' Motion to Compel Deposition of Tami
Cowden (ECF No. 156); Plaintiffs' Motion to Compel
Against Defendant Shac, LLC (ECF No. 159); Plaintiffs'
Motion to File Supplemental and Recently Discovered Evidence
(ECF No. 186); Plaintiffs' Motion for Partial Summary
Judgment on Liability (ECF No. 189); Plaintiffs' Motion
for Partial Summary Judgment on Individual Liability of
Defendants Peter Feinstein and David Michael Talla (ECF No.
190); Plaintiffs' Motion for Partial Summary Judgment on
Willfulness and Liquidated Damages (ECF No. 191); and
Intervenor-Cross Claimants' Motion to Intervene (ECF No.
Court finds the following facts to be undisputed.
were employed as exotic dancers at Defendants' dance
club, which advertises and bills itself as “the
world's largest strip club.” Defendant Shac Mt. LLC
is the 100% member of Defendant Shac, LLC, which operates as
the Sapphire Gentlemen's Club. At all relevant times,
Defendant Peter Feinstein was the manager of the club and
Defendant David Michael Talla was the owner of the club.
were classified as independent contractors. Defendants did
not provide Plaintiffs with wages or any other compensation.
were required to sign in and sign out to work in the club.
Plaintiffs paid a house fee, a marketing fee, and a DJ fee
for each sign-in. Plaintiffs paid an additional fee if they
declined to dance on-stage. Defendants set a minimum price
that Plaintiffs were required to charge for dances.
Defendants received a 10% cut of any payments made with
“dance dollars, ” though Plaintiffs could decline
to dance for any customer intending to pay with dance
distributed written rules to a number of Plaintiffs when they
first contracted to perform. Defendants posted these rules in
the club. The rules have several tips and guidelines
regarding dancing and conduct, such as requiring toplessness
after the first song, requiring dancing and no standing while
on stage, and checking in and out with the DJ. ECF No. 194-6.
The rules include appearance-relate prohibitions on oil, body
glitter, self-tanning lotion, heels under four inches, and
boots. The rules state that shifts are six hours and that
dancers may not prepare to leave early without a manger's
approval. According to the express language of the document,
“adherence to these guidelines is mandatory.”
Penalties include fines ranging from $40 to $150 and
automatic termination. The rules state that dancers will be
automatically terminated for offenses such as failing to
clock in or declining to order a drink. Defendant Feinstein,
the manager of Sapphire, testified that all dancers were
required to read and acknowledge that they would comply with
the rules when they first contracted to dance at the club,
that the club expects dancers to comply with the rules, and
that the club can terminate any dancers who violate the
rules. ECF No. 192-1 at 17.
invested significantly in the club. Defendants provided
financially for marketing, overhead costs, lights, and music.
Plaintiffs paid for their costumes, cosmetics, and any travel
did not require Plaintiffs to have prior experience, formal
dance training, or references.
2009, a lawsuit was filed against Shac, LLC in Clark County
District Court which alleged that Sapphire misclassified its
exotic dancers as independent contractors under Nevada wage
laws. The Clark County District Court issued an August 18,
2011 decision that the dancers were not employees under
Nevada law. On appeal, the Nevada Supreme Court issued a
contrary October 30, 2014 decision concluding that the
dancers were independent contractors pursuant to state law.
Terry v. Sapphire Gentlemen's Club, 336 P.3d 951
(Nev. 2014). The Nevada Supreme Court remanded the matter to
state court for further proceedings, and a settlement between
the parties was finalized on July 6, 2016. Defendants did not
alter the independent contractor classification of dancers at
any time during or following the Terry litigation.
Court finds that the parties dispute whether the rules
promulgated by the club were in fact enforced. Plaintiffs
allege that they were closely monitored at work and that the
written rules were enforced. Defendants characterize the
rules as “attention getting - but empty threats.”
ECF No. 215 at 14. They allege that the six-hour rule in
particular is “illusory” and provide evidence of
several Plaintiffs working shifts under six hours.
Id. at 10, 20, 24. They further allege that no
dancer has ever been automatically terminated for a rule
filed the Complaint on July 21, 2015, alleging (1) failure to
pay overtime wages in violation of the FLSA and (2) failure
to pay minimum wage in violation of the FLSA. ECF No. 1.
Defendants filed an Answer with five counterclaims on October
5, 2015. ECF No. 20. The Court dismissed these five
counterclaims at a hearing on February 8, 2018. ECF No. 85.
November 25, 2015, the Court granting a stipulation staying
the case pending settlement proceedings. ECF No. 30. On
January 27, 2017, the Court granted a stipulation and order
conditionally certifying the case as a FLSA class action and
agreeing on the notice to be sent to class members. ECF No.
49. The parties also agreed to stay the case during the
notice period, lasting 60 days from the commencement of
mailing of the notices, and for an additional 60 days after
the close of the notice period. Id. From April 2017
to June 2017, opt-in Plaintiffs filed a number of notices of
consent to join the class.
11, 2018, Defendants filed three motions to dismiss: Motion
to Dismiss Opt-In Plaintiffs Pursuant to Rule 12(b)(1) (ECF
No. 92); Motion to Dismiss 110 Opt-In Plaintiffs and All
Claims Pre-October 31, 2014 as Barred by Res Judicata (ECF
No. 93); Motion to Dismiss Opt-In Plaintiffs' Claim for
Fees and Fines (ECF No. 94). These motions were fully briefed
by July 22, 2018. ECF Nos. 100, 101, 104, 105, 111, 112, 113.
closed on October 30, 2018, though several discovery-related
motions remained pending. ECF No. 147.
Court held a hearing on November 5, 2018. ECF No. 167. The
Court denied the Motion to Dismiss 110 Opt-In Plaintiffs and
All Claims Pre-October 31, 2014 as Barred by Res Judicata
(ECF No. 93) and the Motion to Dismiss Opt-In Plaintiffs'
Claim for Fees and Fines (ECF No. 94) without prejudice. The
Court took the remaining Motion to Dismiss (ECF No. 92) under
submission. The Court handled certain outstanding discovery
motions (ECF Nos. 118, 132, 150, 152, 153), permitted three
additional depositions, and stayed further discovery. The
Court also unreferred, but did not decide, two motions to
compel (ECF No. 156, 159).
January 10, 2019, Plaintiffs filed the instant Motion for
Leave to File Supplemental and Recently Discovered Evidence
in Relation to Defendants' Motion to Dismiss Opt-In
Plaintiffs Pursuant to FRCP 12(b)(1). ECF No. 186. Defendants
responded on January 24, 2019 and Plaintiffs replied on
January 31, 2019. ECF Nos. 187, 188.
February 4, 2019, Plaintiffs filed the instant three motions
for partial summary judgment: Plaintiffs' Motion for
Partial Summary Judgment on Liability (ECF No. 189);
Plaintiffs' Motion for Partial Summary Judgment on
Individual Liability of Defendants Peter Feinstein and David
Michael Talla (ECF No. 190); and Plaintiffs' Motion for
Partial Summary Judgment on Willfulness and Liquidated
Damages (ECF No. 191). These motions were fully briefed by
April 26, 2019. ECF Nos. 204, 205, 215, 220, 221, 224.
Amos, Jamie Asher, Samantha Baraldi, Nicole Beckwith,
Samantha Christian, Oana E. Ciolacu, Cara DeBona, Amphayvon
Dythavon, Susana Faas, Tiffany Francis, Linsey Gile, Unique
Hairston, Markie Henderson, Sarah Henscheid, Samantha
Hopkins, Jenny Knaus, Rinrada Lishnoff, Erika Luevano, Arza
Mubarispur, Allison Morton, Tasha Pablo, Kamila Persse,
Brandy Pisano, Leslie Scott, Brenna Sharp, Kayla Szabo, Cara
Thornberry, Irina Tugui, Bonnie Turechek, and Adrienne Zager
(“Intervenors”) filed the instant Motion to
Intervene on May 7, 2019. ECF No. 226. Plaintiffs responded
on May 21, 2019 and Intervenors replied on May 31, 2019. ECF
Nos. 230, 234.
31, 2019, the Court held a hearing on all pending motions and
took the motions under submission. ECF No. 238.
Motion to Dismiss (Mandatory Arbitration)
the court determines at any time that it lacks subject-matter
jurisdiction, the court must dismiss the action.”
Fed.R.Civ.P. 12(h)(3). The Court lacks subject matter
jurisdiction to determine matters subject to mandatory
arbitration. See Ass'n of Flight Attendants, AFL-CIO
v. Horizon Air Indus., Inc., 280 F.3d 901, 903 (9th Cir.
previously binding Ninth Circuit case law, compelled
arbitration of employees' concerted legal claims
regarding wages, hours, and terms and conditions of
employment was not enforceable. Morris v. Ernst &
Young, LLP, 834 F.3d 975, 979 (9th Cir. 2016). However,
the governing interpretation of the law changed on May 21,
2018, when the Supreme Court held that federal courts must
“enforce arbitration agreements according to their
terms-including terms providing for individualized
proceedings” in wage and hour actions. Epic Systems
Corp. v. Lewis, 138 S.Ct. 1612, 1619 (2018).
Motions for Summary Judgment
judgment is appropriate when the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, show “that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a);
accord Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). When considering the propriety of summary judgment,
the court views all facts and draws all inferences in the
light most favorable to the nonmoving party. Gonzalez v.
City of Anaheim, 747 F.3d 789, 793 (9th Cir. 2014). If
the movant has carried its burden, the non-moving party
“must do more than simply show that there is some
metaphysical doubt as to the material facts. . . . Where the
record taken as a whole could not lead a rational trier of
fact to find for the nonmoving party, there is no genuine
issue for trial.” Scott v. Harris, 550 U.S.
372, 380 (2007) (citation and internal quotation marks
omitted) (alteration in original).
Motions to Compel
to Rule 37 of the Federal Rules of Civil Procedure,
“[o]n notice to other parties and all affected persons,
a party may move for an order compelling disclosure or
discovery. The motion must include a certification that the
movant has in good faith conferred or attempted to confer
with the person or party failing to make disclosure or
discovery in an effort to obtain it without court
action.” Fed.R.Civ.P. 37(a)(1). In relevant part, the
rule permits a party to seek an order to compelling
production of documents or compelling attendance at a
deposition. Sali v. Corona Reg'l Med. Ctr., 884
F.3d 1218, 1222 (9th Cir. 2018)