Hanks; et al. v. Briad Restaurant Group, LLC

MOTION for Judgment

D. Nev.March 11, 2015

RICK D. ROSKELLEY, ESQ., Bar # 3192 ROGER L. GRANDGENETT II, ESQ., Bar # 6323 MONTGOMERY Y. PAEK, E$Q., Bar # 10176 KATHRYN B. BLAKEY, ESQ., Bar # 12701 LITTLER MENDELSON, P.C. 3960 Howard Hughes Parkway Suite 300 Las Vegas, Telephone: FaxNo.: Attorneys for Defendant Briad Restaurant Group, LLC ER1N HANKS, an individual; DEATRA ENARI, an individual; JEFFREY ANDERSON, an individual; TOBY EARL, an individual; SHYHEEM SMITH, an individual; ROBERT BAKER, an individual, JAMES SKADOWSKI, an individual, MICHELLE PICKTHALL, an individual, all on behalf of themselves and all similarly-situated individuals; Plaintiffs, DISTRICT OF NEVADA Case No. 2:14-cv-00786-GMN-PAL MOTION FOR PARTIAL JUDGMENT ON THE PLEADINGS PURSUANT TO FRCP 12(C) WITH RESPECT TO ALL CLAIMS FOR DAMAGES OUTSIDE THE TWO- YEAR STATUTE OF LIMITATIONS AND WITH RESPECT TO PUNITIVE DAMAGES 18 19 20 21 22 23 24 25 26 27 28 LITTLER MENDELSON, P. AT1CAEVS AT LAW 3960 HWWA,d Hu9he P,kWy SWIA 303 CAT VOQAT, NV 891605937 702 862 8600 BRIAD RESTAURANT GROUP, LLC., a New Jersey limited liability company; and DOES 1 through 100, inclusive, Defendant. Defendant Briad Restaurant Group, LLC (“Defendant”), by and through its counsel of record, Littler Mendelson, hereby files their Motion for Partial Judgment on the Pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure (“fRCP”) for a Judgment dismissing all claims for damages outside the two-year statute of limitations and punitive damage claims in Plaintiffs’ Amended Complaint, with prejudice. I/I I/I NV 89169-5937 702.862.8800 702.862.8811 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 UNITED STATES DISTRICT COURT vs. Case 2:14-cv-00786-GMN-PAL Document 74 Filed 03/11/15 Page 1 of 15 1 MEMORANDUM OF POINTS & AUTHORITIES 2 I. INTRODUCTION 3 On May 19, 2014, Plaintiffs filed the instant lawsuit alleging that Defendant did not pay the 4 applicable minimum wage to its employees. Plaintiffs’ claims, however, extend beyond the 5 applicable statute of limitations and, additionally, seek damages which are unavailable to parties 6 alleging violations of Nevada’s minimum wage. Accordingly, Defendant requests that the Court 7 enter a judgment on the pleadings and dismiss all of Plaintiffs’ claims in the Amended Class Action 8 Complaint (“Amended Complaint”) which: (1) extend beyond the two-year statute of limitations 9 period applicable to this lawsuit; and (2) seek punitive damages. 10 In regard to the statute of limitations, Plaintiffs allege that Defendant “owes back pay and 11 damages to all employees it has unlawfully underpaid since the passage of the minimum wage 12 amendment in 2006.” Amended Complaint, (Docket No. 6) J 13. Plaintiffs also allege that they 13 were paid a sub-minimum wage for the entirety of their employment, with many of the named 14 Plaintiffs working more than two years from the filing of the lawsuit. Amended Complaint, 15 (Docket No. 6) ¶J 30, 35, 39, 42, 45, 48, 51, 54. Moreover, Plaintiffs assert that Defendant is 16 “liable to Plaintiffs and members of the Class for their unpaid wages for any period during which the 17 Restaurants were ineligible to compensate Plaintiffs and members of the Class at a reduced 1$ minimum wage.” Amended Complaint, (Docket No. 6) ¶ 75. Because the statute of limitation is 19 two years for minimum wage claims and statutes of limitations are strictly construed, Plaintiffs’ 20 class and individual claims falling outside the two year statute of limitations must be dismissed as a 21 matter of law. See Goldberg v. Charter Medical Corp., 98 Nev. 402, 403-04, 651 P.2d 94, 94-95 22 (1982) (discussing the proper method for calculating the last day of the statute of limitations period 23 and determining that the complaint had been filed on the last possible day). 24 Concerning punitive damages, Plaintiffs set forth in their Prayer for Relief that they are 25 seeking punitive damages under the Minimum Wage Amendment (MWA). Amended Complaint, 26 (Docket No. 6) at 14:15-16. Punitive damages, however, are not recoverable under the MWA. 27 Additionally, punitive damages are not available under Nevada law for rights based on employment 2$ obligations, even when implied, and where there is no underlying tort alleged by Plaintiffs. LITTLER MENDELSON, P. 2. 3960 How,d H6o Prk..y “,. 300 L Veg, NV 89169.6937 702 862 8800 Case 2:14-cv-00786-GMN-PAL Document 74 Filed 03/11/15 Page 2 of 15 1 Therefore, Plaintiffs claims for punitive damages should be dismissed. 2 Judgment should be entered in favor for Defendant dismissing Plaintiffs’ punitive damages 3 claims and claims beyond the two year statute of limitations. 4 II. STANDARD FOR REVIEW 5 “After the pleadings are closed-but early enough not to delay trial-a party may move for 6 judgment on the pleadings.” fed. R. Civ. P. 12(c). “Judgment on the pleadings is proper when there 7 are no issues of material fact, and the moving party is entitled to judgment as a matter of law.” Gen. 8 Conference Corp. ofSeventh-Day Adventists v. Seventh-Day Adventist Congregational Church, $87 9 f.2d 22$, 230 (9th Cir. 1989). In ruling on a motion for judgment on the pleadings, the court accepts 10 as true all well-pleaded factual allegations by the nonmoving party and construes the facts in the 11 light most favorable to that party. Id. Thus, motions for judgment on the pleadings pursuant to fed. 12 R. Civ. P. 12(c) are “functionally identical” to motions for failure to state a claim under fed. R. Civ. 13 P. 12(b)(6). Dworkin v. Hustler Magazine Inc., $67 f.2d 1188, 1192 (9th Cir. 1989). 14 Here, dismissal of all class and individual claims falling outside the two year statute of 15 limitations and all claims for punitive damages is appropriate under fRCP 1 2(b)(6), which provides, 16 in pertinent part, that a Court may dismiss a claim for relief for “failure to state a claim upon which 17 relief can be granted.” Specifically, a complaint should be dismissed if it “appears beyond doubt 18 that the Plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” 19 Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); see also Hicks v. Small, 69 20 f.3d 967, 969 (9th Cir.1995). 21 III. ARGUMENT 22 A. ALL CLAIMS OUTSIDE THE TWO YEAR STATUTE OF LIMITATIONS MUST BE DISMISSED AS A MATTER OF LAW 23 24 Plaintiffs have asserted class-based claims for damages based on allegations which fall 25 outside the applicable two-year statute of limitations. See Amended Complaint, ¶75. In Nevada, 26 minimum-wage based claims are subject to an explicit two-year statute of limitations under NRS 27 608.260. See Golden v. Sun Cab Inc., A-13-678109-C (Dec. 5, 2014) (Order attached hereto as 28 Exhibit A); Perry v. Terrible Herbst, Inc., A-14-70442$-C (Dec. 16, 2014) and (February 10, 2015) UTTLER.1ENDELSDN, P 3. 65h*d Hugh,, Pkay Sl, 200 L,s Vega, NV 89169 5937 772 852 8802 Case 2:14-cv-00786-GMN-PAL Document 74 Filed 03/11/15 Page 3 of 15 1 (Order attached hereto as Exhibit B); Williams et al. v. Claim Jumper Acquisition Company, LLC, 2 A-14-702048 (Sept. 22, 2014) (Order attached hereto as Exhibit C); Rivera v. Pen & Sons Farms, 3 Inc., 805 f.Supp.2d 1042 (D. Nev., 2011) aff’d in part, rev’d in part, 735 F.3d $92 (9th Cir. 2013); 4 McDonagh v. Harrah’s Las Vegas, Inc., 2014 WL 2742874 (D. Nev. June 17, 2014).’ Thus, all of 5 Plaintiffs’ class-based claims which fall outside the statute of limitations are statutorily barred and 6 must be dismissed with prejudice as a matter of law. See, Bemis v. Estate ofBemis, 114 Nev. 1021, 7 1024, 967 P.2d 437, 439 (199$) (stating “[a] court [may] dismiss a complaint for failure to state a $ claim upon which relief may be granted if the action is barred by the statute of limitations.”). 9 Accordingly, Defendant requests that this Court dismiss all class-based claims for damages 10 which fall outside the statute of limitations because such claims are subject to a clear two year 11 statute of limitations; and the MWA in the Nevada Constitution preserved the two year statute of 12 limitations for minimum wage based claims. 13 1. All Minimum Wage Violation Claims in Nevada Are Subject to a Two Year Statute of Limitations. 14 15 NRS 608.260 states that an “employee may, at any time within two years, bring a civil action 16 to recover the difference between the amount paid to the employee and the amount of the minimum 17 wage.” NRS 608.260 (emphasis added). This language is in no way ambiguous. Employees must file 1$ their minimum wage claims within two years of the alleged violation. Plaintiffs’ Amended 19 Complaint for minimum wage violations outside the two year statute of limitations should be 20 dismissed with prejudice as a matter of law. See In re Amerco Derivative Litig Glenbrook Capital 21 Ltd P’ship, 252 P.3d 681 (Nev. 2011) (when the allegations contained in a complaint demonstrate 22 that the statute of limitations has run, dismissal upon the pleadings is appropriate). 23 Nonetheless, based on Plaintiffs’ Motion for Partial Summary Judgment (Docket No. 16) 24 Defendant anticipates that Plaintiffs will argue that NRS 608.260 is not the applicable statute of 25 limitations. Specifically, Plaintiffs will assert that Nevada Constitution, Article XV, § 16, the MWA, 26 One Nevada State Court judge has determined NRS 608.260 does not apply to claims brought pursuant to the MWA. See Diaz et al. v. MDC Restaurants et a!., A-14-701633 (Feb. 3, 2015). That decision, however, fails to address the27 Nevada Supreme Court’s decision Thomas v. Nevada Yellow Cab Corp., 130 Nev. Adv. Op. 52, 327 P,3d 518 (2014).and the standard articulated therein which requires Courts to harmonize the Nevada Revised Statutes with the Nevada 28 Constitution. LITTLER MENDELSOF,P 4. L,, V9,, NV 99765 5937 702 862 8800 Case 2:14-cv-00786-GMN-PAL Document 74 Filed 03/11/15 Page 4 of 15 I which was passed in November 2006, was a complete revision of Nevada’s minimum wage laws 2 and, as a result, either created no statute of limitations for minimum wage claims or impliedly 3 repealed NR$ 608.260’s two year statute of limitations. See Plaintiffs’ Motion for Partial 4 Summary Judgment (Docket No. 16). Neither of these arguments is correct or based in reality. 5 As stated above, three Nevada state courts in similar cases have addressed this exact issue 6 and all of them have found that the two-year statute of limitations applies. See Golden v. Sun Cab 7 Inc., A-13-678109-C (Dec. 5, 2014); Ferry v. Terrible Herbst, Inc., A-14-704428-C (Dec. 16, 2014) 8 and (February 10, 2015); Williams et al. v. Claim Jumper Acquisition Company, LLC, A-14-70204$ 9 (Sept. 22, 2014); Exhibits A, B, and C, respectively. Additionally, even before Plaintiffs’ filed their 10 motion, two federal courts applying Nevada law determined that the two-year statute of limitations 11 in NRS 608.260 applies to claims brought pursuant to the MWA. See Rivera v. Pen & Sons Farms, 12 Inc., 805 f.Supp.2d 1042 (D. Nev., 2011) aff’d in part, rev’d in part, 735 F.3d 892 (9th Cir. 2013); 13 McDonagh v. Harrah’s Las Vegas, Inc., 2014 WL 2742874 (D. Nev. June 17, 2014).2 14 NRS 608.260’s two-year statute of limitations is the applicable statute of limitations for 15 minimum wage claims for four reasons: (1) claims alleging that an employee has been paid less than 16 the effective minimum wage arise under NR$ 608.260; (2) the plain language of NRS 608.260 17 provides for a two-year statute of limitations on minimum wage claims; (3) the MWA did not create 18 a limitless statute of limitations for minimum wage claims; and (4) the MWA actually preserved 19 NRS 608.260 as the applicable statute of limitations. 20 a. Claims Alleging That an Employee Has Been Paid Less than the Effective Minimum Wage, Arise Under NRS 608.260 21 22 Pursuant to the MWA, wage rates are set by the Labor Commissioner and not the MWA 23 itself. Therefore, claims alleging a violation of Nevada’s minimum wage rate are in fact alleging 24 violations of the rate set by the Labor Commissioner. Accordingly, because NRS 608.260 provides 25 for a cause of action for minimum wage violation claims, claims styled as violations of the MWA 26 2 One Nevada State Court judge has determined NRS 608.260 does not apply to claims brought pursuant to the MWA. See Diaz ci at. v. MDC Restaurants et at., A-14-701633 (Feb. 3, 2015). That decision, however, fails to address the 27 Nevada Supreme Court’s decision Thomas v. Nevada Yellow Cab Corp., 130 Nev. Adv. Op. 52, 327 P.3d 518 (2014).and the standard articulated therein which requires Courts to harmonize the Nevada Revised Statutes with the Nevada 28 Constitution. LITTLEMENDLSQN, P 5. 3960 Ho..ard hughe, F,!kny 3,1, 300 C, Vegu NV 89169 9937 702 862 8906 Case 2:14-cv-00786-GMN-PAL Document 74 Filed 03/11/15 Page 5 of 15 1 are actually claims arising under NRS 608.260 and the two-year statutory period set forth in NRS 2 608.260 applies. See Williams et al. v. Claim Jumper, A-14-702048, Exhibit C at ¶15. 3 b. The Plain Language of NRS 608.260 Provides for a Two-Year Statute Of Limitations on Minimum Wage Claims 5 As discussed above, the plain language of NRS 608.260 provides for a two-year statute of 6 limitations on minimum wage claims. NRS 608.260 states: 7 If any employer pays any employee a lesser amount than the minimum wage prescribed by regulation of the Labor Commissioner pursuant to the provision 8 of NRS 608.250, the employee may, at any time within two years, bring a civil action to recover the difference between the amount paid to the employee 9 and the amount of the minimum wage. A contract between the employer and the employee or any acceptance of a lesser wage by the employee is not a bar 10 to the action. 11 Thus, NRS 608.260 is clear: minimum wage claims filed outside the two-year statute of 12 limitations are untimely. 13 c. The MWA Did Not Create a Limitless Statute of Limitations 14 Based on Plaintiffs’ counsel’s arguments in the aforementioned similar case, Defendant 15 anticipates that Plaintiffs may assert the ridiculous contention that the MWA created a new 16 “limitless” statute of limitations. This, however, is simply wrong. The MWA is completely silent on 17 the issue of a statute of limitations. When the Nevada legislature intends to create “no limitation,” it 18 specifically provides for “no limitation” in the text of the statute. For example, NRS 11.290 19 specifically states: “in actions brought to recover money or other property deposited with any bank, 20 credit union, banker, trust company or savings and loan society, there is no limitation.” (emphasis 21 added). By contrast, the MWA is completely silent on the statute of limitations. Therefore, it cannot 22 be said that the MWA’s silence on the statute of limitations creates a “limitless” statute of limitation 23 or “no limitation” for minimum wage based claims. 24 Additionally, the Nevada Supreme Court has held that “it is not the business of [the] court to 25 fill in alleged legislative omissions based on conjecture as to what the legislature would or should 26 have done.” falcke v, Douglas Counly,116 Nev. 583, 589 (2000) (Holding that a statute which did 27 not expressly provide for a two-thirds super-majority vote by county board of commissioners did not 2$ authorize the county planning commission to require a super-majority vote for approval of UTTLERMENDELSON, p, 6. 3O S, 300 .o V... IV $9169 9907 702 662 8800 Case 2:14-cv-00786-GMN-PAL Document 74 Filed 03/11/15 Page 6 of 15 I amendments). Thus, it would be nonsensical to assume that the MWA by not addressing the statute 2 of limitations established no statute of limitations or a new statute of limitations for minimum wage 3 claims. 4 d. The MWA Preserved NRS 608.260 As the Applicable Statute of Limitations 5 6 Defendant further anticipates that Plaintiffs, based on an incorrect reading of Thomas v. 7 Nevada Yellow Cab Corp., 130 Nev. Adv. op. 52, 327 P.3d 518 (2014), will attempt to assert that $ the passage of the MWA in November 2006 somehow repealed the two-year statute of limitations 9 set forth in NRS 608.260. This, however, is incorrect. As Judge Tao stated in his recent order, NRS 10 608.260 is “not irreconcilable with the Minimum Wage Amendment, but rather [is] quite obviously 11 intended to be complementary.” Williams et al. v. Claim Jumper, A-14-702048, Exhibit C at ¶14. 12 Moreover, it is clear that the MWA preserved NRS 608.260 as the statute of limitations for 13 three reasons: (1) courts have already determined that the MWA’s silence on the statute of 14 limitations shows an intent to maintain NRS 608.260’s two-year statute of limitations; (2) the 15 Thomas opinion affirmed that statues must be read in harmony with the MWA when reasonably 16 possible; and (3) NRS 608.260 is not in conflict with the MWA. 17 1.) Courts Have Already Determined that the MWA’s Silence on the Statute of Limitations Shows an Intent to Maintain the 18 Two-Year Statute of Limitations in NRS 608.260 19 In Rivera v. Pen & Sons Farms, Inc., the United States District Court for the District of 20 Nevada directly addressed whether NRS 608.260 remains the applicable statute of limitations after 21 the passage of the MWA. Rivera v. Pen & Sons Farms, Inc., 805 f.Supp.2d 1042 (D. Nev., 2011) 22 affd in part, rev’d in part, 735 f.3d 892 (9th Cir. 2013). Specifically, in Rivera, the court determined 23 that because the MWA is silent on the issue of a statute of limitations, it reflects a clear intent to not 24 alter the existing statute of limitations. Id (citing Washington v. State, 117 Nev. 735, 30 P.3d 1134, 25 1137 (2001)) (“The state [...] has a two-year statute of limitations, and Section 16 is silent on the 26 limitation period for minimum wage actions, so the Court will not imply a repeal of section 27 608.260’s two-year limitation period.”). On review, the Ninth Circuit affirmed that “[t]he district 28 court properly dismissed the state constitutional claims to the extent they accrued more than two LITTLER MENDELSON, P 7. v,g... 702 862 8866 Case 2:14-cv-00786-GMN-PAL Document 74 Filed 03/11/15 Page 7 of 15 1 years before the [plaintiffs] filed suit.” Rivera, 735 f.3d at 902. 2 Moreover, in McDonagh v. Harrah ‘s Las Vegas, Inc., the court again directly analyzed 3 whether the MWA’ s silence as to the statute of limitations meant the two-year statute of limitations 4 in NRS 608.260 no longer applied. McDonagh v. Harrah ‘s Las Vegas, Inc., 2014 WL 2742874 (D. 5 Nev. June 17, 2014). The plaintiffs in McDonagh argued that because Article XV, §16 created a 6 private right of action, which does not set forth a statute of limitations, the six-year statute of 7 limitations as provided in NR$ 11.190(b) applied. Id., at *4 The defendant in McDonagh, on the 8 other hand, cited to the two-year statute of limitations period set forth in NRS 608.260 for collection 9 of unpaid minimum wages. Id. The court, relying on the fact that Article XV, § 16 “is silent on 10 whether it changes the two-year statute of limitations in the Nevada Revised Statutes,” held that “the 11 constitutional provision was not intended to change [the] two-year statute of limitations.” hi Thus, 12 the plaintiffs in McDonagh were entitled only to a two year statute of limitations for failure to pay 13 minimum wage in violation of the Nevada Constitution. Id. The court stated: 14 While Article 15, Section 16 of the Nevada Constitution does create a new two-tiered minimum wage in the state, the section is silent on whether it 15 changes the two year statute of limitation in the Nevada Revised Statutes. Therefore, the court finds that the constitutional provision was not 16 intended to change the two year statute of limitations. 17 Indeed, this is the only logical interpretation of the MWA’s silence on the statute of 18 limitations. Accordingly, this Court should find the same as the courts in Rivera and McDonagh. 19 2.) The Thomas Opinion Affirmed that Minimum Wage Statutes Must Be Read in Harmony With the MWA When Reasonably 20 Possible 21 The Nevada Supreme Court recently addressed the interplay of the MWA and Nevada’s 22 minimum wage statutory scheme in Thomas v. Nevada Yellow Cab Corp., 130 Nev. Adv. Op. 52, 23 327 P.3d 518 (2014). In that case, at issue was whether NRS 60$.250(2)’s list of statutory exceptions 24 to the minimum wage had been impliedly repealed by the MWA. Id. The Court, in making its 25 determination, held that “[t]he presumption is against implied repeal unless the enactment conflicts 26 with existing law to the extent that both cannot logically coexist.” Thomas, at 521 (emphasis added) 27 (citing W. Realty Co. v. City of Reno, 63 Nev. 330, 344, 172 P.2d 158, 165 (1946)). The Nevada 28 Supreme Court further stated that courts must construe statutes, “if reasonably possible, so as to be LITTLER MENDELSON, P. $AttORNEyt AT tnw 9AO HAwArd HA90e Pwrkw.y Sun, 300 t, Vw6w NV 891695937 702 862 8800 Case 2:14-cv-00786-GMN-PAL Document 74 Filed 03/11/15 Page 8 of 15 1 in harmony with the constitution.” Thomas, at 521. (citing State i’, Glusman, 98 Nev. 412, 419). 2 Accordingly, the Nevada Supreme Court made clear in Thomas that a statute is impliedly repealed 3 only when it is “irreconcilably repugnant” to a constitutional amendment and conflicts with the 4 amendment to the extent that “both cannot logistically coexist.” Thomas, at 521. 5 Therefore, in this matter, the Court must construe NRS 608.260 if reasonably possible as to 6 be in harmony with the MWA. The only exception would be if the two statutes cannot logically 7 coexist. That, however, is simply not the case. As previously discussed, the MWA is completely 8 silent on the statute of limitations. Thus, to say that it cannot logically coexist with NR$ 608.260 9 which sets forth the statute of limitations, would be completely nonsensical. 10 3.) NRS 608.260 Is Not in Conflict with the MWA 11 The Nevada Supreme Court’s decision in Thomas illustrates perfectly how NRS 608.260 and 12 the MWA are not in conflict. In Thomas, taxicab drivers brought a class action against a taxicab 13 company arguing that they had not been paid pursuant to constitutional minimum wage requirements 14 during the course of their employment. Id., at 519. The taxicab drivers asserted that the MWA, by 15 setting out some exceptions to minimum wage, supplanted the exceptions listed in NRS 608.250(2). 16 Id., at 520. Contrasting the MWA with NR$ 608.250(2), the Court noted that, 17 the Amendment imposes a mandatory minimum wage pertaining to all employees, who are defined for purposes of the Amendment as any persons who are employed by an employer, 18 except for those employees under the age of 18, employees employed by nonprofits for after- school or summer work, and trainees working for no longer than 90 days. Nev. Const. art. 15, 19 § 16(C). In contrast, NRS 608.250(2), which was enacted prior to the Minimum Wage Amendment, excludes six classes of employees from its minimum wage mandate, including 20 taxicab drivers. 21 Thomas, at 521. 22 Thus, the court reasoned, because the Amendment created a “broad definition of employee 23 and listed very specific exemptions necessarily and directly in conflict with the legislative exception 24 for taxicab drivers established by NRS 60$.250(2)(e),” the two are “irreconcilably repugnant,” such 25 that “both cannot stand.” Id., at 521 (emphasis added) (quoting Mengelkamp v. List, 8$ Nev. 542, 26 545-46, 501 P.2d 1032, 1034 (1972) and W. Realty Co., 63 Nev. at 344, 172 P.2d at 165). Based on 27 this reasoning, the court ruled that NRS 608.250(2) is impliedly repealed by the MWA. Thomas, at 2$ 521. LITTLER MENQELSON, . 9ATTORNEyS AT LAW 3800 Aowsrd Hghe Pskwsy Sos 300 tEE 05355 00 691685937 702 863 8600 Case 2:14-cv-00786-GMN-PAL Document 74 Filed 03/11/15 Page 9 of 15 1 Accordingly, applying Thomas to NRS 608.260, the Court must construe NRS 608.260, if 2 reasonably possible, as to be in harmony with the MWA. Unlike NRS 608.250(2) and the MWA 3 which both list “very specific exemptions” to minimum wage, NRS 608.260 and the MWA address 4 entirely different aspects of minimum wage law. The MWA establishes a two tiered minimum wage 5 system and creates a private right of action. NRS 608.260, on the other hand, provides for the 6 limitations period for minimum wage violation claims. The statute of limitations is not even 7 addressed by the MWA. Therefore, unlike the statute at issue in Thomas, NRS 602.260 does not 8 provide for “very specific” regulations “directly in conflict” with the MWA. See Thomas, at 521. As 9 such, because NRS 608.260 does not conflict with the MWA, pursuant to the Nevada Supreme Court 10 decision in Thomas, NRS 608.260 must be construed in harmony with the MWA and it remains the 11 applicable statute of limitations. 12 NRS 608.260 is not in conflict with the MWA and it is the applicable statute of limitations in 13 this lawsuit. 14 B. PLAINTIFFS’ CLAIMS FOR PUNITIVE DAMAGES MUST BE DISMISSED AS A MATTER OF LAW 15 16 Plaintiffs set forth in the Prayer for Relief that they are seeking “punitive and exemplary 17 damages against the Defendant pursuant to law.” Amended Complaint, (Docket No. 6) at 14:15- 18 16. However, punitive damages are not available to Plaintiffs in this lawsuit as a matter of law for 19 three reasons: (1) the MWA does not provide for punitive damages; (2) punitive damages do not 20 apply to the agreement to pay minimum wage; and (3) unless explicitly stated otherwise, punitive 21 and exemplary damages are only available in tort cases. 22 1. The MWA Does Not Provide for Punitive Damages 23 An award of punitive damages is not a remedy available under the MWA. Rather, the 24 MWA makes clear that the remedies available therein must be remedial in nature. The MWA states 25 “[ajn employee claiming violation of this section. . . shall be entitled to all remedies available under 26 the law or in equity appropriate to remedy any violation of this section . . .“ The MWA does not 27 provide for damages which are aimed at “punishing” the alleged wrongdoers. Indeed, the Nevada 22 Supreme Court has established a few general principles regarding punitive damages. For instance, UTTLERMENDELSONP. 10. Las Vegas IV 89569-5937 702 862 9800 Case 2:14-cv-00786-GMN-PAL Document 74 Filed 03/11/15 Page 10 of 15 1 punitive damages are not designed to compensate the victim of a tortious act but rather to punish and 2 deter oppressive, fraudulent or malicious conduct. Turnbow v. Department of Human Resources, 3 109 Nev. 493, 853 P.2d 97, 99 (1993); $iggelkow v. Phoenix Insurance Co., 109 Nev. 42, 846 P.2d 4 303, 304 (1993); Ace Truck and Equip. Rental, Inc. v. Kahn, 103 Nev. 503, 746 P.2d 132, 134 5 (1987). Furthermore, “punitive damages are not awarded as a matter of right to an injured litigant, 6 but are awarded in addition to compensatory damages as a means of punishing the tortfeasor and 7 deterring the tortfeasor and others from engaging in similar conduct.” $iggelkow, 846 P.2d at 304- 8 305 (emphasis added). The underlying purpose of a punitive damage award is grounded in “public 9 policy concerns unrelated to the compensatory entitlements of the injured party.” Id. at 305 (citing 10 Kahn, 746 P.2d at 134). These same principles prompted the Nevada Supreme Court in Siggelkow to 11 reaffirm its language in Kahn regarding punitive damages. As the court explained: 12 Punitive damages provide a means by which the community, usually through a jury, can express community outrage or distaste for the misconduct of an oppressive, fraudulent or 13 malicious defendant and by which others may be deterred and warned that such conduct will not be tolerated. The allowance of punitive damages also provides a benefit to society by 14 punishing undesirable conduct that is not punishable by the criminal law. 15 846 P.2d at 305 (quoting Kahn, 746 P.2d at 134). In other words, punitive damages are in no way 16 related to making the allegedly injured party whole. The MWA explicitly limits its remedies to those 17 which make the allegedly injured party whole. Accordingly, the MWA does not provide for punitive 18 damages and Plaintiffs’ claims for such damages must be dismissed as a matter of law. 19 2. Punitive Damages Do Not Apply to the Agreement to Pay Minimum Wage 20 Next, punitive damages are also not recoverable in this lawsuit because the nature of a 21 minimum wage violation claim is based in contract and not tort. The MWA makes clear that 22 Plaintiffs are entitled only to “remedies available under the law or in equity appropriate to remedy 23 any violation” of the MWA including but not limited to “back pay, damages, reinstatement or 24 injunctive relief.” As discussed above, there is no mention of punitive damages in the MWA nor is 25 there any indication that punitive damages were contemplated as an additional remedy without being 26 specifically set forth in the MWA. Rather, in Nevada, under NR$ 42.005, the statute that addresses 27 when punitive damages are recoverable in Nevada, punitive damages are y available “in an action 28 for the breach of an obligation not arising from contract...” Therefore, punitive damages are only UTTLERMENDELSON, P, 11. 3960 How,d llgh P.kw.y 9,e 000 L NV 59l696631 700 860 8800 Case 2:14-cv-00786-GMN-PAL Document 74 Filed 03/11/15 Page 11 of 15 1 available under the law in actions not arising from contract. In the minimum wage context, an action 2 for minimum wage is based on an agreement between the parties to pay minimum wage, rather than 3 ex delicto obligations arising by law. Brewer v. Premier GofProperties, LP., (200$) 16$ Cal. App. 4th 1243; 86 Cal. Rptr. 3d 225. In other words, when a party claims they have not been paid the 5 minimum wage, the nature of the claim is one of contractual obligation, not of tortious injury. Id. 6 Accordingly, punitive damages are not appropriate. Id. 7 California case law is instructive on this concept. Specifically, California courts have 8 addressed whether parties may bring claims for punitive damages for violations of a minimum wage 9 statute. Id. For example, in Brewer, the court held that punitive damages claims were not 10 recoverable for minimum wage violation claims and other wage and hour causes of action. There, 11 the plaintiff alleged that defendant Premier Golf had violated California’s minimum wage laws, as 12 set forth in California labor codes. Id. A jury found in favor of the plaintiff and awarded punitive 13 damages, on top of the statutory damages set forth in the Code. Premier Golf appealed and argued 14 that punitive damages were not appropriate, as the action arose from rights based on an employment 15 contract and, as such, did not support tort recoveries. Id. The court agreed and reversed the award. 16 Id. 17 In reaching its decision, the court first set forth that under California law, “punitive damages 12 are constrained generally by the restriction that they are ordinarily recoverable only in ‘an action for 19 the breach of an obligation not arising from contract’ where the requisite culpable conduct is also 20 present.” Id. at 1251. This statutory language mirrors that of Nevada’s punitive damages statute, 21 NRS 42.005(1). The court in Brewer continued that California labor code provisions governing 22 minimum wages “constitute statutory obligations imposed only when the parties have entered into an 23 employment contract and are obligations arising from the employment contract.” The court stated: 24 “The breach of an obligation arising out of an employment contract, even when the obligation is 25 implied in law, permits contractual damages but does not support tort recoveries. (emphasis in 26 __________________________ California’s punitive damages statute contains the identical language as Nevada’s in that punitive damages are not27 recoverable from a breach of contract. “In fact, NRS 42.010, enacted in 1965, intentionally tracked the punitive damages statute of California as it existed at 2$ that time. See Countiywide Home Loans, Inc. v, Tt?itchener, 192 ?.3d 243 (Nev. 2008), !JTTLERMENDELSON, 12. 3960 Hw,3 Nqhe P,kwy 9V 200 60, Voo, NV 89169 5937 702 802 8800 Case 2:14-cv-00786-GMN-PAL Document 74 Filed 03/11/15 Page 12 of 15 1 original).” Id. at 1256. Thus, it is clear that, between an employer and employee, the obligations to 2 pay an employee are contractual in nature and not subject to punitive damages in the event of a 3 violation of that obligation. 4 Here, Plaintiffs claim that as employees of Defendant, they are entitled to payment as 5 required under the MWA. Thereunder, an employer is required to pay an employee at least minimum 6 wage for all hours worked, regardless of the existence of an actual contract between the parties. It 7 follows that Plaintiffs’ minimum wage claims arise under an obligation from a contract to pay 8 employees. Accordingly, because punitive damages for claims arising under contract are not 9 recoverable under NRS Chapter 42, Plaintiffs’ claims for punitive damages must be dismissed as a 10 matter of law. 11 3. Punitive and Exemplary Damages Are Only Available In Tort Cases 12 finally, it is also well established law that, in the absence of an underlying tort, punitive 13 damages do not lie. See Restatement (Second) of Contracts §355 (1979). Here, Plaintiffs’ Complaint 14 contains no tort claims or tort allegations. The underlying allegations are based on Defendant’s 15 purported failure to pay the correct minimum wage in Nevada, causing punitive damages to not be 16 available. Indeed, only one state in the United States expressly allows for punitive damages in 17 connection with wage claims, Illinois, where the legislature specifically included punitive damages 18 to be recoverable. Most states follow the federal remedial scheme where punitive damages are not 19 recoverable under the fair Labor Standards Act. (See, e.g. American Bar Ass’n Section of Labor 20 and Employment, Wage and Hour Laws: A State-by-State Survey (2010 & 2014 Supp.) There is no 21 express authority in Nevada for the proposition that punitive damages can be awarded for a violation 22 of the Minimum Wage Act, and the full weight of persuasive authority indicates the contrary. 23 IV. CONCLUSION 24 In regard to the statute of limitations in this matter, two federal district court judges and three 25 state court judges that have analyzed the issue have held that a two year statute of limitations applies 26 for minimum wage violations brought under the MWA. Nevada’s constitutional, statutory, and case 27 law is clear: minimum wage violation claims are subject to a two-year statute of limitations. The 28 passage of the Minimum Wage Amendment did not change that. NRS 608.260 clearly provides for a UTTLEMENDLON, P. 13. 0960 Hw,d H96 Pkw,y 91 300 NV 89369-5937 703 960 8800 Case 2:14-cv-00786-GMN-PAL Document 74 Filed 03/11/15 Page 13 of 15 1 two-year statute of limitations for minimum wage causes of action. Accordingly, all of Plaintiffs’ 2 claims which extend beyond the applicable two-year statute of limitations should be dismissed. 3 Plaintiffs’ claims for punitive damages must also be dismissed as the MWA does not allow 4 for such damages. Moreover, Plaintiffs’ claims deal with breach of contractual obligations where 5 punitive damages are not recoverable and there is no underlying tort cause of action. 6 Defendant respectfully requests that this Court grant their Motion for Partial Judgment on the 7 Pleadings and issue an Order dismissing all of Plaintiffs’ claims which extend beyond the applicable $ two-year statute of limitations and their punitive damages claims. 9 10 Dated: March11, 2015 11 12 Respectfully submitted, RIC OSKE EY, ESQ 15 ROGER L. GRA GENETT, ESQ. KATHRYN BLA Y, E$Q. 16 LITTLER MEND SON, P.C. Attorneys for Defendant 17 1$ 19 20 21 22 23 24 25 26 27 2$ MENDELSON, P. 14. 96O How,rd bghes Parkway se,,, OO t N 89I69-67 702 62 8800 Case 2:14-cv-00786-GMN-PAL Document 74 Filed 03/11/15 Page 14 of 15 1 2 3 4 5 6 7 $ 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 2$ L)TTLER MENDELSON, P.C ATTORNEYS AT LAW 3908 Aow,,d AU9TRE P,,Asy SNOT 300 C,S VeE,, NA 893695937 702 802 8800 PROOF OF SERVICE I am a resident of the State of Nevada, over the age of eighteen years, and not a party to the within action. My business address is 3960 Howard Hughes Parkway, Suite 300, Las Vegas, Nevada, $9169. On March 11, 2015, I served the within document: DEFENDANT’S MOTION FOR PARTIAL JUDGMENT ON THE PLEADINGS PURSUANT TO FRCP 12(C) j By CM/ECf filing - Pursuant to FRCP 5(b)(3) and LR 5-4, the above-referenced document was electronically filed and served upon the parties listed below through the Court’s Case Management and Electronic Case filing (CM/ECf) system: Don Springmeyer, Esq. Bradley Schrager, Esq. Daniel Bravo, Esq. Wolf, Rifldn, Shapiro, Schulman & Rabkin, LLP 3556 E. Russell Road, 2nd floor Las Vegas, NV 89 120-2234 I declare under penalty of perjury that the foregoing is true and correct. Executed on March 15. 11, 2015, at Las Vegas, Nevada. firmwide:13 1988541.1 058582.1012 Case 2:14-cv-00786-GMN-PAL Document 74 Filed 03/11/15 Page 15 of 15