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In re Amazon.Com, Inc., Fulfillment Center Fair Labor Standards Act (Flsa) and Wage and Hour Litigation

United States District Court, W.D. Kentucky, Louisville Division

June 7, 2017

Integrity Staffing Solutions, Inc., No. 3:14-cv-139-DJH THIS DOCUMENT RELATES TO Busk MDL No. 2504


          David J. Hale, United States District Court Judge

         The plaintiffs in this purported class action allege that they were unlawfully denied compensation for time they spent waiting in line to undergo mandatory security checks at their places of employment. After the United States Supreme Court held that they could not recover under the Fair Labor Standards Act, the plaintiffs amended their complaint to assert only state-law claims. (Docket No. 91) Defendants Integrity Staffing Solutions, Inc. and, Inc. now seek dismissal of those claims, arguing that the plaintiffs have failed to state a plausible claim for relief under Nevada or Arizona law. (D.N. 97, 98) The Court agrees and will therefore grant the motions to dismiss.

         I. BACKGROUND

         This action was filed in the District of Nevada in October 2010. (D.N. 1) That court dismissed the plaintiffs' first amended complaint for failure to state a claim, agreeing with Integrity Staffing Solutions (which was then the only defendant) that time spent going through security screenings or walking to and from lunch was not compensable work time under the Fair Labor Standards Act. (D.N. 20, PageID # 215-17) As to the plaintiffs' claims under Nevada law for unpaid wages arising from the security checks and shortened meal periods, the Nevada district court found that the plaintiffs properly asserted a private cause of action under Nevada Revised Statutes § 608.140 but failed to allege sufficient facts to support their claim. (See id., PageID # 219)

         The plaintiffs appealed to the Ninth Circuit, which affirmed the dismissal of the meal-period claims but reversed as to the security-check claims. Busk v. Integrity Staffing Solutions, Inc., 713 F.3d 525 (9th Cir. 2013). The Supreme Court disagreed, holding that the time related to the security checks was not compensable under the FLSA. Integrity Staffing Solutions, Inc. v. Busk, 135 S.Ct. 513 (2014). Specifically, the Court found that the security screenings were “noncompensable postliminary activities” under the Portal-to-Portal Act, 29 U.S.C. § 254(a)(2). Busk, 135 S.Ct. at 518. Following that decision, the plaintiffs again amended their complaint. The third amended complaint asserts claims under Nevada and Arizona law for unpaid wages and overtime, as well as minimum-wage violations. (D.N. 91, PageID # 1020-26) The defendants seek dismissal of all four claims. (See D.N. 97, 98)

         II. ANALYSIS

         To survive a motion to dismiss for failure to state a claim, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible on its face “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Factual allegations are essential; “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice, ” and the Court need not accept such statements as true. Id. A complaint whose “well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct” does not satisfy the pleading requirements of Rule 8 and will not withstand a motion to dismiss. Id. at 679.

         A. Nevada Plaintiffs

         1. Statutory Claims

         Integrity and Amazon primarily assert that there is no private cause of action for recovery of unpaid wages under Nevada law. (See D.N. 97-1, PageID # 1064-65; D.N. 98-1, PageID # 1090-1100) According to the plaintiffs, this argument is barred by the law of the case. They point to the District of Nevada's previous determination that a private cause of action for unpaid wages exists under § 608.140, and they contend that this Court may not reconsider the issue. (D.N. 99, PageID # 1137-38; see D.N. 20, PageID # 219) The Court disagrees.

         The law-of-the-case doctrine provides that “findings made at one stage in the litigation should not be reconsidered at subsequent stages of that same litigation.” Burley v. Gagacki, 834 F.3d 606, 618 (6th Cir. 2016) (quoting Dixie Fuel Co., LLC v. Dir., Office of Workers' Comp. Programs, 820 F.3d 833, 843 (6th Cir. 2016)). It “merely expresses the practice of courts generally to refuse to reopen what has been decided, not a limit to their power.” Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 817 (1988) (quoting Messenger v. Anderson, 225 U.S. 436, 444 (1912)). “A court has the power to revisit prior decisions of its own or of a coordinate court in any circumstances, although as a rule courts should be loathe to do so in the absence of extraordinary circumstances such as where the initial decision was ‘clearly erroneous and would work a manifest injustice.'” Id. (quoting Arizona v. California, 460 U.S. 605, 618 n.8 (1983)). The Court finds that extraordinary circumstances exist here.

         First, the District of Nevada appears not to have considered whether the private right of action provided by § 608.140 applies only to claims based on employment contracts, as the defendants argue here. (See D.N. 20, PageID # 218-19; D.N. 97-1, PageID # 1064-66; D.N. 98-1, PageID # 1090-91) Second, the bulk of authority since the District of Nevada's July 19, 2011 decision supports the defendants' position. See, e.g., Sargent v. HG Staffing, LLC, No. 3:13-CV-00453-LRH-WGC, 2016 U.S. Dist. LEXIS 5621, at *12-*14 (D. Nev. Jan. 12, 2016); Johnson v. Pink Spot Vapors Inc., No. 2:14-CV-1960 JCM (GWF), 2015 U.S. Dist. LEXIS 13499, at *12-*15 (D. Nev. Feb. 3, 2015); Cardoza v. Bloomin' Brands, Inc., No. 2:13-cv-01820-JAD-NJK, 2014 U.S. Dist. LEXIS 103874, at *4-*13 (D. Nev. July 30, 2014); Descutner v. Newmont U.S.A. Ltd., No. 3:12-cv-00371-RCJ-VPC, 2012 U.S. Dist. LEXIS 156656, at *5-*15 (D. Nev. Nov. 1, 2012). While these decisions are not binding, they represent the considered opinions of no fewer than four District of Nevada judges as to how the Nevada Supreme Court would rule on the issue, and the Court agrees with their reasoning.[1]

         Finally, Amazon did not become a defendant in this case until more than two years after the Nevada court's decision. (See D.N. 20, 47) It thus should not be barred from relying on what is now the majority rule. See 18B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 4478.5 (2d ed. 2016) (“[A] party joined in in action after a ruling has been made should be free to reargue the matter without the constraints of law-of-the-case analysis.”). And it would be unjust to deny dismissal to Integrity on law-of-the-case grounds while dismissing the claims against Amazon on the ground that no private right of action exists. In sum, given the significant shift in precedent since the prior decision and the addition of Amazon as a defendant, the Court finds that “extraordinary circumstances” warrant reconsideration of-and deviation from-that decision. Christianson, 486 U.S. at 817. For the reasons explained in Descutner, Cardoza, and similar cases, the Court concludes that no private right of action exists for violations of Nevada Revised Statutes §§ 608.005-.195 in the absence of a contractual claim.[2] See Sargent, 2016 U.S. Dist. LEXIS 5621, at *12-*14 (collecting cases); Sheffer v. U.S. Airways, Inc., 107 F.Supp.3d 1074, 1077-78 (D. Nev. 2015); Dannenbring v. Wynn Las Vegas, LLC, 907 F.Supp.2d 1214, 1219 (D. Nev. 2013). As the Nevada plaintiffs do not allege that they had employment contracts with Integrity or Amazon, their claims under Nev. Rev. Stat. §§ 608.020-050, .016, .018, and .140 are not viable.

         Even if a private right of action existed, the Nevada plaintiffs' claims would fail because the plaintiffs are not owed wages for time related to the security screenings. In deciding wage-and-hour issues, Nevada courts look to federal law unless the state statutory language is “materially different” from or inconsistent with federal law. Rivera v. Peri & Sons Farms, Inc., 735 F.3d 892, 900-01 (9th Cir. 2013); see Terry v. Sapphire Gentlemen's Club, 336 P.3d 951, 955-56 (Nev. 2014). The Nevada Supreme Court “has signaled its willingness to part ways with the FLSA where the language of Nevada's statutes has so required, ” Terry, 336 P.3d at 955-56, but there is no statutory language requiring such a departure here. Indeed, the Nevada Supreme Court, in a recent unpublished decision, “turn[ed] to the federal courts' interpretation of hours worked under the federal Fair Labor Standards Act” after finding “little guidance” in Nevada law on this issue. Rite of Passage v. Nevada, No. 66388, 2015 Nev. Unpub. LEXIS 1561, at *3 (Nev. Dec. 23, 2015) ...

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