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Andersen v. Briad Restaurant Group, LLC

United States District Court, D. Nevada

September 26, 2019

JEFFREY ANDERSEN, an individual, on behalf of himself and all similarly situated individuals, Plaintiff,


          Gloria M. Navarro, District Judge

         Pending 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 No. 187).

         For the 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.

         I. BACKGROUND

         This 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).

         Plaintiff 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).

         On 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. 154).

         Plaintiff 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.

         The Court begins with Defendant’s Motion for Summary Judgment, followed by Plaintiff’s Motion to Certify.


         A. Legal Standard

         The 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).

         In 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).

         If the 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.

         At 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.

         B. Discussion

         Defendant’s 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. (Id.).

         As a 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).

         The 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”).

         In 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 ...

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