Avendano et al v. Security Consultants Group, Inc. et al, No. 3:2013cv00168 - Document 106 (D. Nev. 2014)

Court Description: ORDER denying 62 Motion to Dismiss. Signed by Judge Howard D. McKibben on 9/15/2014. (Copies have been distributed pursuant to the NEF - KR)
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Avendano et al v. Security Consultants Group, Inc. et al Doc. 106 1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 DISTRICT OF NEVADA 11 12 13 14 15 16 17 18 ISAAC AVENDANO and ROLAND DUENAS, ) ) Plaintiffs, ) ) vs. ) ) SECURITY CONSULTANTS GROUP, INC., ) et al., ) ) Defendants. ) _________________________________ ) 3:13-cv-00168-HDM-VPC ORDER Before the court is a motion to dismiss pursuant to Federal 19 Rule of Civil Procedure 12(b)(6) (#62), filed by defendants 20 Security Consultants Group, Inc. (“SCG”), Paragon Systems, Inc. 21 (“Paragon”), and Securitas Security Services USA, Inc. 22 (“Securitas”). 23 defendants have replied (#71). 24 The plaintiffs have opposed (#68), and the The plaintiffs, who were employees of SCG (Compl. ¶¶ 12-13), 25 assert in their complaint eleven different claims for relief 26 against defendants SCG, Paragon, and Securitas. 27 multiple Title VII claims, a claim under § 1981, claims under NRS 28 §§ 613.330 and 613.340, a breach of contract claim under These include 1 Dockets.Justia.com 1 NLRA § 301, and a claim of “tortious interference with prospective 2 business relationship / economic advantage.” 3 197, 204-212.) 4 NLRA § 301 against defendants United Government Security Officers 5 of America, International Union (“UGSOA International”) and United 6 Government Security Officers of America, Local 283 (“UGSOA Local 7 238"). 8 and UGSOA Local 238 are not parties to the motion (#62) presently 9 before the court. 10 11 (See Compl. ¶¶ 112- Plaintiffs also assert one claim for relief under (See Compl. ¶¶ 198-203.) Defendants UGSOA International Standard In considering a motion to dismiss under Rule 12(b)(6), the 12 court must accept as true all material allegations in the complaint 13 as well as all reasonable inferences that may be drawn from such 14 allegations. 15 2000). 16 the light most favorable to the nonmoving party. 17 States, 234 F.3d 428, 435 (9th Cir. 2000). LSO, Ltd. v. Stroh, 205 F.3d 1146, 1150 n.2 (9th Cir. The allegations of the complaint also must be construed in Shwarz v. United 18 “Under the notice pleading standard of the Federal Rules, 19 plaintiffs are only required to give a ‘short and plain statement’ 20 of their claims in the complaint.” 21 1061, 1071 (9th Cir. 2009) (quoting Diaz v. Int’l Longshore & 22 Warehouse Union, Local 13, 474 F.3d 1202, 1205 (9th Cir. 2007)). 23 While this rule “does not require ‘detailed factual allegations,’ . 24 . . it demands more than an unadorned, the-defendant-unlawfully- 25 harmed-me accusation.” 26 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). 27 A pleading is insufficient if it offers only labels and 28 conclusions, a formulaic recitation of the elements of a cause of Paulsen v. CNF, Inc., 559 F.3d Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 2 1 action, or “naked assertions devoid of further factual 2 enhancement.” 3 complaint “must contain sufficient factual matter . . . to state a 4 claim to relief that is plausible on its face.” 5 plausibility standard demands “more than a sheer possibility that a 6 defendant has acted unlawfully.” 7 Procedural History 8 9 Id. (internal punctuation omitted). Thus, a Id. The Id. Defendants SCG, Paragon, and Securitas previously filed a Motion to Dismiss pursuant to Federal Rule of Civil Procedure 10 12(b)(6), or in the alternative a motion for a more definite 11 statement pursuant to Federal Rule of Civil Procedure 12(e) (#17). 12 The court denied the motion to dismiss without prejudice and 13 granted the motion for a more definite statement, ordering 14 plaintiffs to file an amended complaint “that clearly identifies 15 the alleged conduct engaged in by defendants Paragon and Securitas 16 that forms the basis for their liability under the plaintiffs’ 17 claims.” 18 (#51 at 6.) Plaintiffs filed their first amended complaint on February 14, 19 2014 (#58). 20 filed their renewed motion to dismiss pursuant to Federal Rule of 21 Civil Procedure 12(b)(6) as to Defendant Securitas only. 22 Analysis 23 Defendants SCG, Paragon, and Securitas subsequently Defendants SCG, Paragon, and Securitas jointly move to dismiss 24 all claims against Securitas. The defendants state that at the 25 time of the plaintiffs’ alleged injuries, the plaintiffs were 26 employed by SCG, not by Securitas. 27 defendants assert plaintiffs “have failed to make any legally- 28 significant allegations against Securitas USA to differentiate them 3 (#62 at 3.) Additionally, 1 from Plaintiffs’ employer SCG.” Id. Plaintiffs aver they “are not and have never claimed any 2 3 theory of liability based on a parent/subsidiary or piercing the 4 corporate veil or even . . . an indirect employer theory.” 5 2-3). 6 acted with such interrelation of operations that they are, for the 7 purpose of liability to their employees . . . operating as one and 8 the same consolidated entity since April 2011. 9 Amended Complaint clearly alleges that the Company Defendants are 10 11 (#68 at Plaintiffs instead assert SCG, Paragon, and Securitas “have Plaintiff’s [sic] ‘Joint Employers.’” (Id. at 3). Plaintiffs attempt to apply an integrated enterprise test to 12 demonstrate defendants are joint employers. 13 determine joint liability as the parties suggest, but instead 14 determines whether a defendant can meet the statutory criteria of 15 an ‘employer’ for Title VII applicability.” 16 Maritime Association, 336 F.3d 924, 928 (9th Cir. 2003). 17 18 19 20 21 22 This test “does not Anderson v. Pacific The correct standard is the joint employment standard, which is made up of various factors, such as: (A) The nature and degree of control of the workers; (B) The degree of supervision, direct or indirect, of the work; (C) The power to determine the pay rates or the methods of payment of the workers; (D) The right, directly or indirectly to hire, fire, or modify the employment conditions of the workers; [and] (E) Preparation of payroll and payment of wages. 23 E.E.O.C. v. Pacific Maritime Ass’n, 351 F.3d 1270, 1275 (9th 24 Cir. 2003) (alteration in original). 25 the standard explains the employer is “the person, or group of 26 persons, who owns and manages the enterprise. 27 hire and fire employees, can assign tasks to employees and 28 supervise their performance, and can decide how the profits and 4 An alternative phrasing of The employer can 1 losses of the business are to be distributed.” 2 Gastroenterology Assocs. V. Wells, 538 U.S. 440, 450, 123 S.Ct. 3 1673, 1680 (2003). Clackamas 4 ¶ 12 of the amended complaint reads: 5 In its capacity as the Plaintiffs’ employer, since on our [sic] about April, 2011, Securitas maintained employee records on the Plaintiffs, tracked their hours of work and maintained payroll records, provided them with a vacation plan, provided them with insurance benefits, maintained a Securitas employee number form [sic] them, coordinated labor relations issues and responses to unfair labor practice charges pertaining to the Plaintiffs, handled their employment claims, coordinated and prepared responses to Plaintiffs [sic] EEOC charges, maintained employment records and performed other employment related functions. 6 7 8 9 10 11 12 Amended Compl. ¶ 12. 13 relation of operations including common financial control. 14 Amended Compl. ¶ 17. 15 Additionally, plaintiffs allege interSee The court must accept the plaintiffs’ material allegations as 16 true (LSO, 205 F.3d at 1150 n.2) and construe them in the light 17 most favorable to the plaintiffs (Shwarz v. United States, 234 F.3d 18 at 435). 19 sufficient to allow defendant Securitas to prepare a response. 20 Plaintiffs aver common financial control, that defendant Securitas 21 coordinated the preparation of a response to plaintiffs’ EEOC 22 charges, and that defendant Securitas controlled Plaintiffs’ 23 benefits. 24 E.E.O.C. v. Pacific Maritime Ass’n, and accepting the material 25 allegations of the amended complaint as true, plaintiffs have 26 stated a claim that entitles them to relief. 27 28 At this stage, the averments in the amended complaint are Under the joint employment standard enumerated in Defendant Securitas may renew its assertion that it is not a joint employer at the summary judgment stage or at trial, when the 5 1 court need not construe the material allegations of the amended 2 complaint in the light most favorable to plaintiff.1 3 The motion of defendants Security Consultants Group, Inc., 4 Paragon Systems, Inc., and Securitas Security Services USA, Inc. to 5 dismiss defendant Securitas is DENIED. 6 IT IS SO ORDERED. 7 DATED: This 15th day of September, 2014. 8 ____________________________ UNITED STATES DISTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 1 27 28 The issue of joint employment is routinely deferred until the parties are able to conduct discovery. See e.g., Courtland v. GCEP-Surprise, LLC, 119 Fair Empl.Prac.Cas. (BNA) 806 (2013); Garcia v. Courtesy Ford, Inc., 2007 WL 1192681 (2007); Ford-Torres v. Cascade Valley Telecom, Inc., 374 Fed.Appx. 698 (2010). 6