United States District Court, W.D. Kentucky, Louisville Division
IN RE AMAZON.COM, INC., FULFILLMENT CENTER FAIR LABOR STANDARDS ACT (FLSA) AND WAGE AND HOUR LITIGATION
Integrity Staffing Solutions, Inc., No. 3:14-cv-139-DJH THIS DOCUMENT RELATES TO Busk MDL No. 2504
MEMORANDUM OPINION AND ORDER
J. Hale, United States District Court Judge
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 Amazon.com, 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.
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)
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)
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.
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
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
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.
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. 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
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) ...