907 F. Supp. 2d 1214
D. Nev.2013Background
- Plaintiff Gina Dannenbring filed an original complaint on January 3, 2012 asserting wrongful termination and various state/federal wage-hour claims.
- Defendant Wynn Las Vegas, LLC moved to dismiss the complaint; the court granted in part and denied in part a prior partial dismissal of the first amended complaint.
- On August 17, 2012, plaintiff filed a second amended class action complaint containing six causes of action: Title VII, Nevada Equal Opportunities for Employment Act (NRS 613.310 et seq.), retaliation, intentional infliction of emotional distress, Fair Labor Standards Act, and NRS 608.140.
- Defendant moved to dismiss the third (retaliation) and sixth (NRS 608.140) causes, and to strike references to an offer to compromise and unemployment-benefits-related findings.
- Plaintiff moved for leave to amend; the court granted leave nunc pro tunc as to the filing date of the second amended complaint and granted the motions as described in the order.
- The court granted in part and denied in part the motions to dismiss and to strike, and granted leave to amend; the remainder of the order addresses procedural issues and the pleadings at issue.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the third cause of action (retaliation) is plausibly pleaded under Title VII. | Dannenbring engaged in protected activity (NERC charge) and faced retaliation (unemployment-benefits opposition). | No adequate causal link or timing details; the claim remains speculative. | The claim is pleaded plausibly under Rule 8 and survives dismissal. |
| Whether NRS 608.140 provides a private right of action. | Second amended complaint adequately pleads a violation of NRS 608.140. | NRS 608.140 does not imply a private right of action for wage claims; only contract-based relief. | NRS 608.140 does not create a private right of action to enforce wage statutes; dismissed. |
| Whether references to compromise offers and unemployment-benefits findings should be struck under Rule 408 and NRS 612.533. | Offers to compromise show retaliatory motive; unemployment-finding references are relevant. | Rule 408 should strike compromise references; NRS 612.533 bindings are unclear. | Offer to compromise not stricken; unemployment-benefit findings references not stricken at this stage. |
| Whether leave to amend should be granted. | Amendment should be allowed to cure deficiencies. | Amendment would be futile or prejudicial. | Leave to amend granted nunc pro tunc as to the date of the second amended complaint. |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (U.S. Supreme Court 2009) (pleading standards: plausibility required after twombly)
- Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (U.S. Supreme Court 2007) (facial plausibility required for pleading)
- Starr v. Baca, 652 F.3d 1202 (9th Cir. 2011) (requires fair notice and plausible entitlement to relief; discovery to follow)
- Erie R. Co. v. Tompkins, 304 U.S. 64 (U.S. Supreme Court 1938) (federal common law of choice of law; procedural rules)