United States District Court, D. Nevada
LATONYA TYUS, an individual, on behalf of herself and all similarly situated individuals, et al., Plaintiffs,
WENDY’S OF LAS VEGAS, INC.; CEDAR ENTERPRISES, INC. Defendants.
M. Navarro, District Judge United States District Court
before the Court is the Second Renewed Motion for Summary
Judgment, (ECF No. 110), filed by Defendants Wendy’s of
Las Vegas, Inc. and Cedar Enterprises, Inc. (collectively
“Defendants”). Plaintiffs Latonya Tyus, Raissa
Burton, Florence Edjeou, David Hunsicker, Lee Jones, Collins
Kwayisi, Jeremy McKinney, Terron Sharp, and Linda Davis
(collectively “Plaintiffs”) filed a Response,
(ECF No. 119), and Defendants filed a Reply, (ECF No. 122).
Also pending before the Court is Plaintiffs’ Renewed
Motion to Certify Class, (ECF No. 108), to which Defendants
filed a Response, (ECF No. 117), and Plaintiffs filed a
Reply, (ECF No. 118).
reasons discussed herein, Defendants’ Motion for
Summary Judgment is DENIED and
Plaintiffs’ Motion to Certify Class is
case arises out of Defendants’ alleged violations of
Nevada’s Minimum Wage Amendment, Nev. Const. art. XV,
§ 16 (the “MWA”). During all relevant times,
Defendants owned and operated approximately thirty
Wendy’s Restaurants (collectively
“Restaurants”) in Nevada; and Plaintiffs are
either current or former employees of Defendants’
Restaurants. (Mot. to Certify 4:22-5:12, ECF No. 108).
Plaintiffs bring this action in their individual capacities
and on behalf of other similarly situated employees of the
Restaurants whom Defendants allegedly failed to offer
MWA-compliant health benefits plans. (Id); (Am.
Compl. ¶¶ 2-23, 79-105, ECF No. 3).
September 2017, the Court granted summary judgment in favor
of Defendants for Plaintiffs’ wage-violation claim,
reasoning that Defendants’ health plan was consistent
with the MWA and its corresponding regulations. (See
Order 12:1-3, ECF No. 92). The Court based its conclusion on
two decisions in which the Nevada Supreme Court stated the
MWA is governed by the standards set forth in Nevada
Administrative Code (“NAC”) 608.102.
(Id. 7:1-11) (citing MDC Rests., LLC v. Eighth
Judicial Dist. Court, 383 P.3d 262, 268 (Nev. 2016)
(“MDC I ”); W. Cab Co. v. Eighth
Judicial Dist. Court, 390 P.3d 662, 670 (Nev. 2017)
(“ Western Cab”)). Applying NAC 608.102,
this Court found that Defendants’ health-benefits plan
met the four-factor test for defining health insurance.
(Id. 7:22-12:3). Consequently, the Court denied as
moot Plaintiffs motion to certify class and instructed the
clerk of court to enter judgment in favor of Defendant.
(Id. 12:4-9); (see also Clerk’s J.,
ECF No. 93).
appealed the Court’s decision, (ECF No. 94), and during
the appeal’s pendency, the Nevada Supreme Court issued
its decision in MDC Rests., LLC v. Eighth Jud. Dist.
Court, 419 P.3d 148 (Nev. 2018) (“MDC II
”). In MDC II, the Supreme Court addressed
“whether there is some minimum quality or substance of
health insurance that an employer must provide for the
employer to pay the lower-tier minimum wage under the
MWA.” See MDC II, 419 P.3d at 154. To answer
this question, the MDC II Court looked to the
“text, history, and purpose of the MWA, ” and
stated that “NAC 608.102 is an unworkable standard for
making such a determination.” Id. Declining to
stray from the “simple meaning found within the text
and purpose of the MWA, ” the Nevada Supreme Court
[A]n employer is qualified to pay the lower-tier minimum wage
to an employee if the employer offers a benefit to the
employee in the form of health insurance of a value greater
than or equal to the wage of an additional dollar per hour,
and covers “the employee and the employee’s
dependents at a total cost to the employee for premiums of
not more than 10 percent of the employee's gross taxable
income from the employer.” Nev. Const. art. 15, §
16. An employer who pays the lower-tier minimum wage will
have the burden of showing that it provided the employee with
a benefit in the form of health insurance equal to a value of
at least an additional dollar per hour in wages. If an
employer cannot offer such insurance to an employee, the
employer must pay the employee the upper-tier minimum wage.
Id. at 155–56. In light of this holding, the
Ninth Circuit Court of Appeals remanded this case for
consideration. (Mem. Op., ECF No. 102). Shortly thereafter,
Plaintiffs filed the instant renewed Motion to Certify, and
Defendants filed its second renewed Motion for Summary
Court begins with Defendants’ Motion for Summary
Judgment, followed by Plaintiff’s Motion to Certify.
MOTION FOR SUMMARY JUDGMENT
Federal Rules of Civil Procedure provide for summary
adjudication when the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, 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).
Material facts are those that may affect the outcome of the
case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). A dispute as to a material fact is genuine if
there is sufficient evidence for a reasonable jury to return
a verdict for the nonmoving party. Id.
“Summary judgment is inappropriate if reasonable
jurors, drawing all inferences in favor of the nonmoving
party, could return a verdict in the nonmoving party’s
favor.” Diaz v. Eagle Produce Ltd.
P’ship, 521 F.3d 1201, 1207 (9th Cir. 2008)
(citing United States v. Shumway, 199 F.3d 1093,
1103–04 (9th Cir. 1999)). A principal purpose of
summary judgment is “to isolate and dispose of
factually unsupported claims.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323–24 (1986).
determining summary judgment, a court applies a
burden-shifting analysis. “When the party moving for
summary judgment would bear the burden of proof at trial, it
must come forward with evidence which would entitle it to a
directed verdict if the evidence went uncontroverted at
trial. In such a case, the moving party has the initial
burden of establishing the absence of a genuine issue of fact
on each issue material to its case.” C.A.R. Transp.
Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480
(9th Cir. 2000) (citations omitted). In contrast, when the
nonmoving party bears the burden of proving the claim or
defense, the moving party can meet its burden in two ways:
(1) by presenting evidence to negate an essential element of
the nonmoving party’s case; or (2) by demonstrating
that the nonmoving party failed to make a showing sufficient
to establish an element essential to that party’s case
on which that party will bear the burden of proof at trial.
Celotex Corp., 477 U.S. at 323–24. If the
moving party fails to meet its initial burden, summary
judgment must be denied and the court need not consider the
nonmoving party’s evidence. Adickes v. S.H. Kress
& Co., 398 U.S. 144, 159–60 (1970).
moving party satisfies its initial burden, the burden then
shifts to the opposing party to establish that a genuine
issue of material fact exists. Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). To
establish the existence of a factual dispute, the opposing
party need not establish a material issue of fact
conclusively in its favor. It is sufficient that “the
claimed factual dispute be shown to require a jury or judge
to resolve the parties’ differing versions of the truth
at trial.” T.W. Elec. Serv., Inc. v. Pac. Elec.
Contractors Ass’n, 809 F.2d 626, 631 (9th Cir.
1987). In other words, the nonmoving party cannot avoid
summary judgment by relying solely on conclusory allegations
that are unsupported by factual data. Taylor v.
List, 880 F.2d 1040, 1045 (9th Cir. 1989). Instead, the
opposition must go beyond the assertions and allegations of
the pleadings and set forth specific facts by producing
competent evidence that shows a genuine issue for trial.
Celotex Corp., 477 U.S. at 324.
summary judgment, a court’s function is not to weigh
the evidence and determine the truth but to determine whether
there is a genuine issue for trial. Anderson, 477
U.S. at 249. The evidence of the nonmovant is “to be
believed, and all justifiable inferences are to be drawn in
his favor.” Id. at 255. But if the evidence of
the nonmoving party is merely colorable or is not
significantly probative, summary judgment may be granted.
Id. at 249–50.
Motion for Summary Judgment presents a purely legal issue:
whether the MDC II decision applies retroactively.
(Defs.’ MSJ 3:23–4:2, ECF No. 110). Defendants
argue that, because MDC II overruled Western
Cab-a decision which Defendants claim they modeled their
health benefits practices after-the Nevada Supreme Court
would hold that equitable considerations dictate MDC
II applies only prospectively. (Id.
5:17–6:24). Therefore, Defendants contend that
Western Cab supplies the relevant legal standard,
and the Court’s prior Order remains on solid ground.
threshold matter, the Court notes that whether MDC
II is limited to prospective application is a question
of first impression. Because there is no controlling law on
point, “this Court must predict how the Nevada Supreme
Court would decide the question.” Brown v. Kinross
Gold U.S.A., Inc., 531 F.Supp.2d 1234, 1245 (D. Nev.
2008); see also Gravquick A/S v. Trimble Navigation
Int’l Ltd., 323 F.3d 1219, 1222 (9th Cir. 2003).
Court predicts that the Nevada Supreme Court would apply
MDC II retroactively. The Court is persuaded by the
Nevada Supreme Court’s handling of retroactivity in a
pair of cases construing the Nevada Minimum Wage Amendment
(“MWA”). See Nevada Yellow Cab Corp. v.
Eighth Jud. Dist. Court, 383 P.3d 246 (Nev. 2016)
(“Yellow Cab”); Thomas v. Nevada
Yellow Cab Corp., 327 P.3d 518 (Nev. 2014)
Thomas, the Supreme Court held that the MWA
superseded a Nevada statute exempting taxicab drivers from
state minimum wage laws. Thomas, 327 P.3d at
520–22. The legislature’s exemption of taxicab
drivers, according to Thomas, was impliedly repealed
upon the subsequent enactment of the MWA, which defines
employees broadly and carves out specific ...