Josephine Tijerino v. Stetson Desert Project, LLC
934 F.3d 968
9th Cir.2019Background
- Three exotic dancers (Tijerino, Toliver, Jane Roe Dancer) sued Lé Girls Cabaret under the FLSA and Arizona wage laws, alleging unpaid minimum wage, overtime, and related state claims; Jane Roe sought collective (opt-in) treatment under 29 U.S.C. § 216(b).
- The district court consolidated the cases, required briefing on whether the plaintiffs were "employees" under the FLSA, and denied conditional certification as "premature."
- The district court then concluded the dancers were independent contractors under the FLSA economic‑realities test, held that employee status was an antecedent jurisdictional issue, and dismissed all claims with prejudice for lack of subject‑matter jurisdiction.
- The dancers appealed the dismissal and denial of conditional certification; the Ninth Circuit reviewed de novo whether the employment‑status requirement is jurisdictional and whether the complaints sufficiently invoked federal jurisdiction.
- The Ninth Circuit held the FLSA "employee" requirement (29 U.S.C. §§ 203(e), 216(b)) is nonjurisdictional, found the complaints were not "wholly insubstantial," reversed the dismissal, and remanded for further proceedings (including consideration of conditional certification and the merits).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FLSA "employee" status is a jurisdictional prerequisite | "Employee" status is an element of an FLSA claim but not jurisdictional; court should not decide it at Rule 12(b)(1) stage | Employee status is antecedent to federal jurisdiction; if not an employee, no federal question | The requirement is nonjurisdictional; Arbaugh framework controls and courts should treat it as merits-related |
| Whether plaintiffs' complaints invoked federal‑question jurisdiction | Complaints allege violations of §§ 206/207 and seek collective relief under § 216(b); allegations are nonfrivolous | Claims are meritless because dancers are independent contractors, so no federal jurisdiction | Complaints are not "wholly insubstantial"; they properly invoke federal jurisdiction under § 1331; supplemental jurisdiction for state claims applies |
| Appropriateness of denying conditional § 216(b) certification as "premature" | Conditional certification should be considered on the merits under Ninth Circuit two‑step approach | Denial justified because lack of jurisdiction (if employment status jurisdictional) | District court erred by tying conditional certification denial to a jurisdictional ruling; remand to consider conditional certification on proper merits track |
| Whether district court should have resolved employment status via economic‑realities test at jurisdictional stage | Employment status (economic realities) is a merits question for summary judgment/trial | Court may resolve contested jurisdictional facts at outset | Court should not treat economic‑realities inquiry as an antecedent jurisdictional gate; economic‑realities test belongs to merits adjudication on remand |
Key Cases Cited
- Arbaugh v. Y & H Corp., 546 U.S. 500 (2006) (statutory restrictions are jurisdictional only if Congress clearly says so)
- Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154 (2010) (text, structure, and history guide jurisdictional analysis)
- Franchise Tax Bd. v. Constr. Laborers Vacation Trust for S. Cal., 463 U.S. 1 (1983) (well‑pleaded complaint rule for federal‑question jurisdiction)
- Leeson v. Transamerica Disability Income Plan, 671 F.3d 969 (9th Cir. 2012) (de novo review and jurisdiction/merits dichotomy guidance)
- Day v. AT&T Disability Income Plan, 698 F.3d 1091 (9th Cir. 2012) (definitions located outside jurisdiction‑granting provisions are typically nonjurisdictional)
- Rutherford Food Corp. v. McComb, 331 U.S. 722 (1947) (FLSA employee determination addressed on the merits, not jurisdictional grounds)
- Real v. Driscoll Strawberry Assocs., Inc., 603 F.2d 748 (9th Cir. 1979) (employment‑status evaluated on summary judgment/merits)