-RJJ Busk v. Integrity Staffing Solutions, No. 2:2010cv01854 - Document 20 (D. Nev. 2011)
Court Description: ORDER Granting 16 Motion to Dismiss. Clerk is directed to close this case. Signed by Judge Roger L. Hunt on 7/19/11. (Copies have been distributed pursuant to the NEF - MMM)
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-RJJ Busk v. Integrity Staffing Solutions Doc. 20 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 DISTRICT OF NEVADA 10 *** 11 12 13 14 15 16 17 18 19 JESSE BUSK and LAURIE CASTRO, ) individually and on behalf of all others similarly ) situated; ) ) Plaintiffs, ) ) vs. ) ) INTEGRITY STAFFING SOLUTIONS INC., ) and DOES no. 1 through 50, inclusive, ) ) Defendant. ) _______________________________________) Case No.: 2:10-cv-01854-RLH-RJJ ORDER (Motion to Dismiss–#16) Before the Court is Defendant Integrity Staffing Solutions’ (“Integrity”) Motion to 20 Dismiss Plaintiffs’ First Amended Complaint (#16, filed Jan. 18, 2011). The Court has also 21 considered Plaintiffs Jesse Busk and Laurie Castro’s Opposition (#17, filed Feb. 4, 2011), and 22 Integrity’s Reply (#18, filed Feb. 14). 23 24 BACKGROUND This case arises out of Plaintiffs’ allegations that Integrity violated several state and 25 federal statutes by withholding wages from Plaintiffs and other Integrity employees whom 26 Plaintiffs allege are a class of similarly situated individuals. Defendant Integrity sub-contracts AO 72 (Rev. 8/82) 1 Dockets.Justia.com 1 hourly employees in warehouses throughout the United States. Plaintiffs are former employees of 2 Integrity. Plaintiffs describe themselves as warehouse employees who fulfilled orders made by 3 Amazon.com customers. (Dkt. #11, Am. Compl. ¶ 13.) Plaintiffs allege that they and other 4 Integrity employees were routinely required to participate in security check activities while “off- 5 the-clock.” Plaintiffs contend that they were not properly compensated for these security checks, 6 which could last up to 25 minutes after their shift. Plaintiffs further allege that they and other 7 Integrity employees were not properly compensated for up to one-third of their 30-minute meal 8 period. Specifically, they claim they were required to walk long distances to clock out and clock 9 back in, which allegedly diminished their meal period by as much as 10 minutes (five minutes 10 each way). Plaintiffs bring this class action suit against Integrity to recover unpaid wages and 11 overtime, liquidated damages, and attorneys’ fees and costs under the Fair Labor Standards Act 12 (“FLSA”), 29 U.S.C. §§ 201–216, and Nevada labor law, NRS §§ 608.018, 608.019, and 608.030. 13 Plaintiffs filed their original Complaint (#1) on October 22, 2010. Integrity filed a 14 Motion to Dismiss (#6) and Plaintiffs subsequently filed a Notice of Non- Opposition (#8) 15 informing Integrity that an amended complaint would be filed. Plaintiffs filed the Amended 16 Complaint (#11) on December 15, prior to the Court’s dismissal of the original complaint on 17 January 7, 2011. (Dkt. #15, Order.) Integrity has now filed a second motion to dismiss. For the 18 reasons discussed below, the Court grants Integrity’s motion. DISCUSSION 19 20 21 I. Motion to Dismiss the First Amended Complaint A. Legal Standards 22 A court may dismiss a plaintiff’s complaint for “failure to state a claim upon which 23 relief can be granted.” Fed. R. Civ. P. 12(b)(6). A properly pled complaint must provide “a short 24 and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 25 8(a)(2); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). While Rule 8 does not require 26 detailed factual allegations, it demands “more than labels and conclusions” or a “formulaic AO 72 (Rev. 8/82) 2 1 recitation of the elements of a cause of action.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) 2 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). “Factual allegations must be enough to rise 3 above the speculative level.” Twombly, 550 U.S. at 555. Thus, to survive a motion to dismiss, a 4 complaint must contain sufficient factual matter to “state a claim to relief that is plausible on its 5 face.” Iqbal, 129 S. Ct. at 1949 (internal citation omitted). In Iqbal, the Supreme Court recently clarified the two-step approach district courts 6 7 are to apply when considering motions to dismiss. First, a district court must accept as true all 8 well-pled factual allegations in the complaint; however, legal conclusions are not entitled to the 9 assumption of truth. Id. at 1950. Mere recitals of the elements of a cause of action, supported 10 only by conclusory statements, do not suffice. Id. at 1949. Second, a district court must consider 11 whether the factual allegations in the complaint allege a plausible claim for relief. Id. at 1950. A 12 claim is facially plausible when the plaintiff’s complaint alleges facts that allows the court to draw 13 a reasonable inference that the defendant is liable for the alleged misconduct. Id. at 1949. Where 14 the complaint does not permit the court to infer more than the mere possibility of misconduct, the 15 complaint has “alleged—but not shown—that the pleader is entitled to relief.” Id. (internal 16 quotation marks omitted). When the claims in a complaint have not crossed the line from 17 conceivable to plausible, plaintiff’s complaint must be dismissed. Twombly, 550 U.S. at 570. B. 18 Analysis Integrity raises four arguments in its motion. First, Integrity argues that Plaintiffs 19 20 consented to dismissal of the first amended complaint. Second, Integrity asserts that Plaintiffs’ 21 claims seeking class treatment under state labor law are preempted by their class claims asserted 22 under the FLSA. Third, Integrity argues that Plaintiffs’ individual claims under state labor law are 23 invalid because the statutes lack a private right of action. Finally, Integrity contends that Plaintiffs 24 failed to state a claim in their first, second, and sixth causes of action under Nevada labor laws. 25 The Court will address the propriety of each argument individually. 26 /// AO 72 (Rev. 8/82) 3 1 1. 2 A party may amend a pleading once “as a matter of course” within 21 days after Consent to Dismissal of the First Amended Complaint 3 serving it. Fed. R. Civ. P. 15(a)(1)(A). However, if the pleading is one to which a responsive 4 pleading is required or a motion brought under Rule 12(b), (e), or (f), then within 21 days after 5 service of the responsive pleading or Rule 12 motion, whichever occurs earlier. Fed. R. Civ. P. 6 15(a)(1)(B). After the time for amendment as a matter of course has expired, a party may amend 7 its complaint only by leave of the court or by the adverse party’s written consent. Fed. R. Civ. P. 8 15(a)(2). The court has discretion to grant leave and should freely do so “when justice so 9 requires.” Id.; see also Allen v. City of Beverly Hills, 911 F.2d 367, 373 (9th Cir. 1990). 10 Integrity argues that the amended complaint should be dismissed because the Court 11 dismissed the original complaint and Integrity presumed the dismissal to be with prejudice. 12 However, the Court’s Order (#6) dismissing the original complaint was issued after Plaintiffs filed 13 the amended complaint and did not indicate that the dismissal was with prejudice. The Court, 14 therefore, allowed Plaintiffs’ amended complaint to proceed. Furthermore, as Plaintiffs correctly 15 point out, Rule 15(a)(1)(B) gives a party 21 days after an opposing party files a Rule 12(b) motion 16 to amend a pleading as a matter of course. Thus, Plaintiffs were allowed to amend as a matter of 17 course. Accordingly, this argument for dismissal fails. 18 2. Class Action Claims Under State Labor Law 19 The FLSA states, “[n]o employee shall be a party plaintiff to any such action 20 unless he gives consent in writing to become such a party and such consent is filed in the court in 21 which such action is brought.” 29 U.S.C. § 216(b). This so-called “opt-in” mechanism is used for 22 FLSA collective actions and requires class members to affirmatively consent to be included in the 23 litigation. Conversely, Rule 23 of the Federal Rules of Civil Procedure governing traditional class 24 action suits states, “the court will exclude from the class any member who requests exclusion.” 25 Fed. R. Civ. P. 23(c)(2)(B)(v). This “opt-out” provision requires class members to affirmatively 26 opt-out of the class or be bound by the resulting litigation. As a result, the FLSA and Rule 23 AO 72 (Rev. 8/82) 4 1 appear to have conflicting mechanisms for class membership. Fetrow-Fix v. Harrah's Entm't, 2 Inc., No. 2:10-cv-00560-RLH-PAL, 2010 WL 4774255 (D. Nev. Nov. 16, 2010), reconsideration 3 denied, 2011 WL 2313650, June 9, 2011. This Court and others have held that state law class 4 claims which are predicated on the same acts and circumstances as a simultaneously asserted 5 FLSA claim collective action must be dismissed due to the conflicting “opting” mechanisms.1 Here, Plaintiffs have asserted state class claims and FLSA class claims arising out 6 7 of the same acts and circumstances. Integrity argues that Plaintiffs’ state class claims are 8 preempted by the FLSA because of the conflicting mechanisms. In opposition, Plaintiffs rely on a 9 decision by the Honorable Gloria M. Navarro to grant a motion for reconsideration in Daprizio v. 10 Harrah’s Las Vegas, Inc., No. 2:10-cv-00604-GMN-RJJ, 2010 U.S. Dist. LEXIS 135113 (D. Nev. 11 Dec. 7, 2010), where Judge Navarro allowed the Daprizio plaintiffs to proceed with conflicting 12 class mechanisms. Plaintiffs ask the Court to follow Judge Navarro’s lead and find their two class 13 mechanisms compatible. Although Plaintiffs may have some similar circumstances to the 14 plaintiffs in Daprizio, that decision is not binding on this Court. Furthermore, the Court finds 15 Plaintiffs’ analogous arguments for proceeding with conflicting class mechanisms unpersuasive. 16 Accordingly, the Court dismisses the state class claims. 17 3. Plaintiffs’ FLSA claims and the Portal-to-Portal Act 18 The FLSA guarantees covered employees a minimum hourly wage for their work 19 and entitles them to one and one-half times their regular wage for overtime. 29 U.S.C. §§ 206, 20 207. A recurrent question under the FLSA has been when the compensable workday begins and 21 ends. The question often arises where employees perform some tasks before productive work 22 23 24 25 26 AO 72 (Rev. 8/82) 1 Williams v. Trendwest Resorts, Inc., No. 2:05-cv-0605-RCJ-LRL, 2007 U.S. Dist LEXIS 62396, at *10–12 (D. Nev. Aug. 20, 2007) (“the class action mechanisms of the FLSA and Rule 23 are incompatible.”); Leuthold v. Destination America, Inc., 224 F.R.D. 462, 469–70 (N.D. Cal. 2004) (finding that Congress’ intent to have FLSA plaintiffs opt-in would be thwarted if plaintiffs could include unnamed parties through state statutes with only opt-out requirements); Otto v. Pocono Health System, 457 F. Supp. 2d 522 (M.D. Pa. 2006). 5 1 begins or after it ends.” Sepulveda v. Allen Family Foods, Inc., 591 F.3d 209, 217–18 (4th Cir. 2 2009) (discussing the FLSA’s history and the legislation that limited expansive interpretation). 3 Congress passed the Portal-to-Portal Act (the “Act”), 29 U.S.C. §§ 251–62, in 1947 4 amending the FLSA. Id. The Act provides that employers shall not be subject to liability or 5 punishment under the FLSA for failing to pay an employee minimum wages or overtime 6 compensation for preliminary or postliminary activities such as walking, riding, or traveling to and 7 from the place of performance of the principle activities. 29 U.S.C. § 254(a). Principal activities 8 are defined as those “which the employee is employed to perform.” 29 C.F.R. § 790.8(a). The 9 phrase ‘preliminary activity’ means an activity engaged in by an employee before he commences 10 his ‘principal’ activity or activities, and the words ‘postliminary activity’ means an activity 11 engaged in by an employee after he completes his ‘principal’ activity or activities.” 29 C.F.R. § 12 790.7(b). “Under this provision, activities like changing clothes and washing which are performed 13 before or after the regular work shift are ‘ordinarily’ considered preliminary or postliminary 14 activities and are therefore ‘excluded from compensable work time’ by default.” Sepulveda, 591 15 F.3d at 213 (citing Steiner v. Mitchell, 350 U.S. 247, 249 (1956)). 16 As a result, to state a valid claim against an employer for a FLSA violation, a 17 plaintiff must allege that he was not compensated for activities that were “an integral and 18 indispensable part of the principal activities for which [he is] employed.” Rutti v. Lojack Corp. 19 Inc., 596 F.3d 1046, 1055 (9th Cir. 2010) (citing Lindow v. United States, 738 F.2d 1057, 1060 20 (9th Cir. 1984)). Courts must give “principal activities” a liberal construction no matter when the 21 work is performed and must also consider “the extent to which the work impacts the employee’s 22 freedom to engage in other activities.” Id. (citation omitted); see also 29 C.F.R. § 790.8(a). To 23 determine that an activity is “integral and indispensable,” and therefore compensable, a court must 24 conclude that the activity is performed as part of the employee’s regular work in the ordinary 25 course of business—not that the activity in question is uniquely related to the predominant 26 business activity. Id. at 1056. AO 72 (Rev. 8/82) 6 1 a. 2 Security Screening Waiting time generally does not qualify as integral and indispensable. See 29 3 C.F.R. § 790.7(g) (stating that “when performed under the conditions normally present,” 4 “checking in and out and waiting in line to do so” are considered non-compensable preliminary or 5 postliminary activities). As the Supreme Court has distinguished, “the fact that certain preshift 6 activities are necessary for employees to engage in their principal activities does not mean that 7 those preshift activities are integral and indispensable to a principal activity.” IBP, Inc. v. Alvarez, 8 546 U.S. 21, 40 (2005) (internal citation omitted). 9 Integrity contends that the time Plaintiffs’ allegedly spent waiting in line for post- 10 work security screenings is not actionable under the FLSA because this activity is not integral and 11 indispensable to their principal activities of employment. Plaintiffs allege that this was a principle 12 activity because this exercise was a daily requirement and took a significant amount of 13 time—approximately 25 minutes. They further allege that the screening is mandatory for all 14 employees. These allegations, however, do not demonstrate that the security process is integral 15 and indispensable to their principal activities as warehouse employees fulfilling online purchase 16 orders. Instead, these allegations fall squarely into a non-compensable category of postliminary 17 activities such as checking in and out and waiting in line to do so and “waiting in line to receive 18 pay checks,” 29 C.F.R. § 790.7(g), because Plaintiffs could perform their warehouse jobs without 19 such daily security screenings. Plaintiffs therefore fail to state a valid claim that the security 20 screens were a part of their regular work. The weight of authority concerning preliminary and 21 postliminary security screenings supports this conclusion.2 These cases pose difficult hurdles for a 22 2 23 24 25 26 AO 72 (Rev. 8/82) See, e.g., Gorman v. The Consolidated Edison Corp., 488 F.3d 586, 592–93 (2d. Cir. 2007) (holding that while security procedures including “waiting in line and passing through a radiation detector, x-ray machine, and explosive metal detector” were necessary because they served an “essential purpose of security,” they were not “integral” to the nuclear power station’s employees principal activities); Bonilla v. Baker Concrete Construction, Inc., 487 F.3d 1340,1345 (11th Cir. 2007) (concluding that time spent going through airport security to report to work was not compensable under the FLSA); De Asencio v. Tyson Foods, Inc., 500 F.3d 361, 364 n. 5 (3d Cir. 2007); Sleiman v. DHL Express, 2009 WL 1152187, at *4 (E.D. Pa. 2009) (collecting cases and concluding that a security screening was “not compensable under the FLSA”). 7 1 plaintiff to overcome because the necessity of the security screenings in those cases was great, yet 2 it was still not integral and indispensable to the principal activities of employment. Accordingly, 3 the Court dismisses Plaintiffs’ claims with respect to security screening. b. 4 Meal Period 5 Under FSLA regulations, an “employee must be completely relieved from duty for 6 the purpose of eating regular meals. Ordinarily 30 minutes or more is long enough for a bona fide 7 meal period.” 29 C.F.R. § 785.19(a). “Bona fide meal periods are not work time,” Id.; and are 8 therefore excluded from compensable work time under the FLSA. See 29 C.F.R. § 785.18. 9 However, if an employee is required to perform any duties while eating, he is not “completely 10 relieved from duty” and the time should be considered “hours worked” for purposes of calculating 11 overtime. Id.; see also Marshall v. Valhalla Inn, 590 F.2d 306, 308 (9th Cir. 1979). The parties disagree with respect to which test the Ninth Circuit employs to 12 13 determine whether a meal period is “bona fide.” Integrity urges the Court to follow the 14 “predominant benefit test,” which examines whether the meal time is spent primarily for the 15 employer’s or employee’s benefit. See, e.g., Nelson v. Waste Mgmt. of Alameda County, Inc., No. 16 C 99-0120 SI, 2000 WL 868523, at * 3 (N.D. Cal. June 19, 2000). Plaintiffs, however, assert that 17 the proper test is the “completely relieved from duty” standard, Brennan v. Elmer’s Disposal 18 Service, Inc., 510 F.2d 84, 88 (9th Cir. 1975), under which an employee cannot be subject to 19 “significant affirmative responsibilities” during his meal period. Kohlheim v. Glynn County, Ga., 20 915 F.2d 1473, 1477 (11th Cir. 1990).3 In Brennan, the Ninth Circuit held that “[a]n employee 21 cannot be docked for lunch breaks during which he is required to continue with any duties related 22 to his work.” Brennan, 510 F.2d at 88. In other words, the “essential consideration” is whether an 23 3 24 25 26 AO 72 (Rev. 8/82) The Ninth Circuit has not directly addressed either test since deciding Brennan except for a brief reference in Alvarez v. IBP, Inc, 339 F.3d 894, aff’d, 543 U.S. 1144 (2005), wherein the court compared the two FLSA-based standards with Washington’s administrative code governing 30-minute meal breaks. Id. at 913; see also Chao v. Tyson Foods, Inc., 568 F. Supp. 2d 1300, 1306–07 n.4 (N.D. Ala. 2008) (examining the circuit split between the two tests and concluding that the Ninth and Eleventh Circuits still employ the “completely relieved from duty” standard). 8 1 employee is “in fact relieved from work for the purpose of eating a regularly scheduled meal.” 2 Kohlheim, 915 F.2d at 1477. 3 The Court finds that Plaintiffs have failed to state a valid claim under either 4 standard. Integrity argues that Plaintiffs’ allegation that it did not provide a bona fide, 30-minute 5 meal period are insufficient under the Act because they were not expected—nor was it 6 possible—to perform any duty during that time. Plaintiffs allege they were not free from the 7 employer’s control because they were required to walk long distances to clock in and out during 8 their 30-minute meal period. They further allege that they were not relieved from their duties 9 because the time spent walking to the remote cafeteria meant they only received a 20-minute 10 uninterrupted meal period. In the Court’s view, these allegations are inadequate because 29 11 C.F.R. § 785.19 does not require an uninterrupted meal period to be free of an employer’s control, 12 only free of employment duties. Plaintiffs have not alleged that they performed any duty related 13 to their job as warehouse workers either during the walk or once they arrived at the cafeteria. 14 Thus, Plaintiffs did not allege they performed a significant affirmative responsibility while on 15 their meal breaks. The Court therefore finds that Plaintiffs’ allegations fail to state a valid claim 16 with respect to meal periods. 17 18 c. The De Minimis Rule In the alternative, the Court finds that Plaintiffs’ allegations related to shortened 19 meal periods would easily fall under the “de minimis rule,” which moderates an employer’s 20 obligation to pay for an employee’s efforts. Rutti, 596 F.3d at 1056. In determining whether 21 otherwise compensable time is de minimis, a court will consider: “(1) the practical administrative 22 difficulty of recording the additional time; (2) the aggregate amount of compensable time; and (3) 23 the regularity of the additional work.” Id. at 1057. This test reflects “a balance between requiring 24 an employer to pay for activities it requires of its employees and the need to avoid ‘split-second 25 absurdities’ that ‘are not justified by the actuality of the working conditions’.” Id. (quoting 26 Lindow, 738 F.2d at 1062). Although it has not adopted a categorical ten or fifteen minute bright- AO 72 (Rev. 8/82) 9 1 line approach to the de minimis rule, the Ninth Circuit has noted that “most courts have found 2 daily periods of approximately 10 minutes de minimis even though otherwise compensable.” Id. 3 at 1058 (citation excluded). 4 Plaintiffs claim that they “were required to spend up to 10 minutes per day during 5 their meal period walking to and from the cafeteria and/or undergoing security clearances.” (Dkt. 6 #11, Am. Compl. ¶ 11.) In addition, Plaintiffs spent “a significant amount of time walking from 7 one end of the facility to another” throughout the work day. (Id. ¶ 13.) As the Court previously 8 explained, the Act excludes activities such as walking to and from the place of performance of the 9 principle activities from compensable wages under the FLSA. 29 U.S.C. § 254(a). Thus, on its 10 face, the two five-minute walks were not compensable. 11 Nevertheless, taking Plaintiffs allegations as true, the Court concludes that the two 12 five-minute walks per day were de minimis because recording such time would pose a practical 13 administrative difficulty to record each warehouse employee’s time spent walking. This is 14 particularly true because employees spent their work days traversing the entire warehouse. Thus, 15 Plaintiffs may have spent little or no time walking to and from the time-keeping system on certain 16 days if they happened to be next to the system when their meal period began. Further bolstering 17 this conclusion, Plaintiffs do not allege they walked 10 minutes during each day’s meal period; 18 therefore, regularity in this activity cannot be concluded. Although the Court cannot say that 10 19 minutes per day is a split-second absurdity, Ninth Circuit precedent and the actualities of working 20 conditions in this case compel a finding that this time is de minimis and non-compensable. 21 5. 22 NRS §§ 608.018 and 608.019 state that an employee must be compensated for 23 overtime worked and be provided meal and rest periods. Although there is no private right of 24 action expressly stated in these two statutes, NRS § 608.140 provides a private right of action to 25 recoup unpaid wage violations when stating that other fees may be added in addition to the 26 amount due for unpaid wages. Furthermore, the Nevada Supreme Court has recognized that NRS AO 72 (Rev. 8/82) Private Right of Action to Recoup Unpaid Wages 10 1 § 608.140 contains an express civil remedy in the form of a civil action by employees to recoup 2 unpaid wages. Baldonado v. Wynn Las Vegas, LLC, 194 P.3d 96, 104 (Nev. 2008). Integrity argues that there is no private right of action under NRS §§ 608.018 and 3 4 608.019 for Plaintiffs to recoup unpaid wages. In essence, Integrity argues that overtime pay is 5 not wages but it is special compensation for work in excess of 40 hours per week. Integrity urges 6 the Court to follow an unpublished decision in this District, Lucas v. Bell Trans, No. 2:08-cv- 7 01792-RCJ-RJJ, 2009 WL 2424557 (D. Nev. June 24, 2009), which seemingly supports 8 Integrity’s argument by stating that a private right of action for unpaid wages “does not extend to 9 minimum wages or overtime compensation.” Id. at *5. However, Integrity fails to recognize that 10 the circumstances in Lucas were quite different than the case at bar because its plaintiffs were 11 limousine drivers who were subject to a statutory exclusion from overtime pay. Id. at *8. The 12 Lucas court did not conclude that unpaid overtime pay is not unpaid wages for which NRS § 13 608.140 provides a private right of action. Buenaventura v. Champion Drywall, Inc., 2011 WL 14 1071760, at *3–4 (D. Nev. Mar. 21, 2011) (discussing Lucas and concluding that a plaintiff may 15 pursue a claim to enforce NRS § 608.018 for unpaid overtime either directly or via NRS § 16 608.140). Therefore, Integrity’s argument fails. The Court finds that Plaintiffs correctly use NRS § 608.140 as the private right of 17 18 action to recoup unpaid wages period under NRS §§ 608.018 and 608.019. Nevertheless, 19 Plaintiffs have failed to allege fact scenarios that would support a valid claim under these Nevada 20 statutes. Their entire amended complaint relates to the security clearance and shortened meal 21 periods. Since the predicate to Plaintiffs’ claims for violation of NRS §§ 608.018 and 608.019 has 22 failed, these claims are legal conclusions that do not permit the court to infer more than the mere 23 possibility of misconduct. See Iqbal, 129 S. Ct. at 1949. Accordingly, Plaintiffs have failed to 24 state sufficient facts to proceed with their claims under NRS §§ 608.018 and 608.019. 25 /// 26 /// AO 72 (Rev. 8/82) 11 1 6. NRS § 608.030 2 NRS §§ 608.020 and 608.030 address the timing for payment of unpaid wages to 3 former employees. Plaintiffs allege that Integrity failed to pay them and members of the proposed 4 class their unpaid wages within the time set forth in these statutes. Conversely, Integrity asserts 5 that Plaintiffs do not set forth a claim under Nevada state law because their FLSA claims for 6 security clearance and shortened meal periods fail as a matter of law. Although Integrity’s 7 conclusion would not be true in every instance, here, Plaintiffs have failed to allege fact scenarios 8 other than the security clearance and shortened meal periods that would support a valid claim 9 under NRS § 608.030. Thus, as previously explained, the remainder of Plaintiffs’ state law labor 10 claims are legal conclusions that do not permit the Court find that their allegations rise above the 11 speculative level. See Twombly, 550 U.S. at 555. Accordingly, Plaintiffs have failed to state a 12 claim under NRS § 608.030 and the Court grants Integrity’s motion. CONCLUSION 13 14 Accordingly, and for good cause appearing, 15 IT IS HEREBY ORDERED that Defendants’ Motion to Dismiss (#16) is 16 17 GRANTED in its entirety. The Clerk of the Court is directed to close this case. Dated: July 19, 2011. 18 ____________________________________ ROGER L. HUNT United States District Judge 19 20 21 22 23 24 25 26 AO 72 (Rev. 8/82) 12
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