United States District Court, D. Nevada
JEFFREY ANDERSEN, an individual, on behalf of himself and all similarly situated individuals, Plaintiff,
BRIAD RESTAURANT GROUP, LLC, Defendant.
M. Navarro, District Judge
before the Court is the Second Renewed Motion for Summary
Judgment, (ECF No. 181), filed by Defendant Briad Restaurant
Group, LLC (“Defendant”). Plaintiff Jeffrey
Andersen (“Plaintiff”) filed a Response, (ECF No.
188), and Defendant filed a Reply, (ECF No. 191). Also
pending before the Court is Plaintiff’s Renewed Motion
to Certify Class, (ECF No. 179), to which Defendant filed a
Response, (ECF No. 186), and Plaintiff filed a Reply, (ECF
reasons discussed herein, Defendant’s Motion for
Summary Judgment is DENIED and
Plaintiff’s Motion to Certify Class is GRANTED
in part and DENIED in part.
case arises out of Defendant’s alleged violations of
Nevada’s Minimum Wage Amendment, Nev. Const. art. XV,
§ 16 (the “MWA”). During all relevant times,
Defendant owned and operated eight TGI Friday’s
restaurants (collectively the “Restaurants”) in
Nevada. (Mot. Certify 5:14–16, ECF No. 179). Plaintiff
Andersen worked as a server at one of Defendant’s
restaurants between July 2009 and March 2013. (Am. Compl.
¶¶ 16, ECF No. 6).
brings this action individually and on behalf of other
similarly situated employees of the Restaurants for whom
Defendant allegedly failed to offer MWA-compliant health
benefits plans. (Id. ¶¶ 2, 36–39,
64); (Mot. Certify 5:10–12).
September 29, 2017, the Court granted Defendant summary
judgment on Plaintiff’s wage-violation claim, reasoning
that Defendant’s health plan was consistent with the
MWA and its corresponding regulations. (See Order
11:6–8, ECF No. 153). 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. 6:16–7:12) (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, 670–71
(Nev. 2017) (“Western Cab”)). Applying
NAC 608.102, this Court found that Defendant’s
health-benefits plan met the four-factor test for defining
health insurance. (Id. 7:13–11:8).
Consequently, the Court denied as moot Plaintiff’s
motion to certify class and instructed the clerk of court to
enter judgment in favor of Defendant. (Id.
11:10–14); (see also Clerk’s J., ECF No.
appealed the Court’s decision, (ECF No. 161), 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
expressly 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 held:
[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. 172). Thereafter, Plaintiff
filed the instant renewed Motion to Certify and Defendant
filed its second renewed Motion for Summary Judgment.
Court begins with Defendant’s 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.
(Def.’s MSJ 5:2–15, ECF No. 181). Defendant
argues that, because MDC II overruled Western
Cab-a decision which Defendant claims it modeled it
health benefits practices after-the Nevada Supreme Court
would hold that equitable considerations dictate that MDC
II applies only prospectively. (Id.
6:16–24). Therefore, Defendant contends 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 ...