Ana Hernandez v. Lead You LLC, et al.

• Court: District Court, D. Nevada
• Decided: October 1, 2025
• Docket: 2:25-cv-00412
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 * * *

7 ANA HERNANDEZ, Case No.2:25-CV-412 JCM (DJA)

8 Plaintiff(s), ORDER 9 v.

10 LEADE YOU LLC, et al.,

11 Defendant(s).

12 13 Presently before the court is defendants Lead You LLC and Jose Angel Ortiz Ureno 14 (collectively “defendants”)’s motion to dismiss. (ECF No. 5). Plaintiff Ana Hernandez filed a 15 response (ECF No. 14), to which defendants replied (ECF No. 15). 16 I. Background 17 This case centers around a labor dispute between plaintiff and defendants. Plaintiff alleges 18 19 she was employed as a restroom attendant by defendants from January 2020 to April 2024. (ECF 20 No. 1). During plaintiff’s time as an employee, she worked approximately fifty-three hours or 21 more per week during the relevant statutory period beginning on or about February 12, 2023, to 22 April 29, 2024. Id. Plaintiff claims she worked three days per week at one location where she was 23 paid approximately $9.75 per hour, and three days per week at a second location where she was 24 25 compensated only in tips. Id. Plaintiff claims that this violated the minimum wage provisions 26 contained in the Fair Labor Standards Act (“FLSA”) and the Nevada Revied Statute. Id. Plaintiff 27 also alleges defendants failed to pay her overtime for hours worked over forty, which is also a 28 violation of the FLSA and Nevada Revised Statute. Id. 1 Defendants have moved to dismiss the action for failure to state a claim upon which relief 2 can be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (ECF No. 5). 3 II. Legal Standard 4 A court may dismiss a complaint for “failure to state a claim upon which relief can be 5 6 granted.” Fed. R. Civ. P. 12(b)(6). A properly pled complaint must provide “[a] short and plain 7 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2); Bell 8 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). While Rule 8 does not require detailed 9 factual allegations, it demands “more than labels and conclusions” or a “formulaic recitation of the 10 elements of a cause of action.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). 11 12 “Factual allegations must be enough to rise above the speculative level.” Twombly, 550 13 U.S. at 555. Thus, to survive a motion to dismiss, a complaint must contain sufficient factual 14 matter to “state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678 (citation 15 omitted). 16 In Iqbal, the Supreme Court clarified the two-step approach district courts are to apply 17 18 when considering motions to dismiss. First, the court must accept as true all well-pled factual 19 allegations in the complaint; however, legal conclusions are not entitled to the assumption of truth. 20 Id. at 678–79. Mere recitals of the elements of a cause of action, supported only by conclusory 21 statements, do not suffice. Id. at 678. 22 Second, the court must consider whether the factual allegations in the complaint allege a 23 24 plausible claim for relief. Id. at 679. A claim is facially plausible when the plaintiff’s complaint 25 alleges facts that allow the court to draw a reasonable inference that the defendant is liable for the 26 alleged misconduct. Id. at 678. 27 . . . 28 1 Where the complaint does not permit the court to infer more than the mere possibility of 2 misconduct, the complaint has “alleged—but not shown—that the pleader is entitled to relief.” Id. 3 (internal quotation marks omitted). When the allegations in a complaint have not crossed the line 4 from conceivable to plausible, plaintiff's claim must be dismissed. Twombly, 550 U.S. at 570. 5 6 The Ninth Circuit addressed post-Iqbal pleading standards in Starr v. Baca, 652 F.3d 1202, 7 1216 (9th Cir. 2011). The Starr court stated, in relevant part: 8 First, to be entitled to the presumption of truth, allegations in a 9 complaint or counterclaim may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying 10 facts to give fair notice and to enable the opposing party to defend itself effectively. Second, the factual allegations that are taken as 11 true must plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the 12 expense of discovery and continued litigation. 13 Id. 14 If the court grants a Rule 12(b)(6) motion to dismiss, it should grant leave to amend unless 15 the deficiencies cannot be cured by amendment. DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 16 655, 658 (9th Cir. 1992). Under Rule 15(a), the court should “freely” give leave to amend “when 17 18 justice so requires,” and absent “undue delay, bad faith, or dilatory motive on the part of the 19 movant, repeated failure to cure deficiencies by amendments . . . undue prejudice to the opposing 20 party . . . futility of the amendment, etc.” Foman v. Davis, 371 U.S. 178, 182 (1962). The court 21 should grant leave to amend “even if no request to amend the pleading was made.” Lopez v. Smith, 22 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (internal quotation marks omitted). 23 24 III. Discussion 25 A. Defendant Ortiz’s declaration and supporting documents 26 Defendants submitted a declaration from defendant Ortiz and supporting documents with 27 its motion to dismiss. (ECF Nos. 5, 15). Defendants argue that the court should consider the 28 1 declaration and documents when ruling on the motion. Generally, courts cannot consider material 2 outside the complaint when ruling on a Rule 12(b)(6) motion. Arpin v. Santa Clara Valley Transp. 3 Agency 261 F.3d 912, 925 (9th Cir. 2001). Limited exceptions exist, but defendants misstate the 4 law. 5 6 Defendants rely on Knievel v. ESPN, contending that the evidence attached to their motion 7 should be considered. 393 F.3d 1068, 1076 (9th Cir. 2005). Their reliance on Knievel, however, 8 is misplaced. There, the Ninth Circuit recognized the “incorporation by reference doctrine” which 9 permits courts to take into account documents “whose contents are alleged in a complaint and 10 whose authenticity no party questions, but which are not physically attached to the [plaintiff’s] 11 12 pleading.” Id. (citation omitted). The incorporation by reference doctrine is not relevant here. 13 Plaintiff’s claim does not “depend[] on the contents of a document” to which defendants have 14 attached in the motion to dismiss. Id. The only document attached with the motion that is remotely 15 relevant to plaintiff’s claims is the independent contractor agreement, but as discussed below, such 16 an agreement is not necessarily dispositive 17 18 Defendants also rely on Parrino v. FHP, Inc. but again miss the mark. 146 F.3d 699, 706 19 (9th Cir. 1998), as amended (July 28, 1998). The Parrino court stated that “a district court ruling 20 on a motion to dismiss may consider a document the authenticity of which is not contested, and 21 upon which the plaintiff's complaint necessarily relies.” Id. (emphasis added). In Parrino, the 22 plaintiff sued his health insurance provider for improperly denying a claim. Id. at 702. The 23 24 plaintiff’s claims rested on his membership to the defendant’s health insurance plan and, thus, it 25 was proper for the district court o consider the documents governing plan membership, coverage, 26 and administration. Id. at 706. 27 . . . 28 1 Here, plaintiff’s complaint does not necessarily rely on the documents provided by 2 defendants in their motion. Although at a later stage, evidence of the independent contractor 3 agreement and tax filings may be dispositive, they do not form the necessary basis for plaintiff’s 4 claims and are categorically different from the documents considered in both Knievel and Parrino. 5 6 Accordingly, the court will not consider defendant Ortiz’s declaration and other supporting 7 documents when ruling on the motion to dismiss. 8 B. Converting the motion to dismiss to summary judgment 9 Defendants asks the court to convert their motion to dismiss into a motion for summary 10 judgment pursuant to Rule 12(d). If, on a motion under Rule 12(b)(6), matters outside the 11 12 pleadings are presented to and not excluded by the court, the motion must be treated as one for 13 summary judgment under Rule 56. Fed. R. Civ. P. 12(d). In that case, all parties must be given 14 reasonable opportunity to present material that is pertinent to the motion. Id. 15 There has been no reasonable opportunity to gather material pertinent to rule on a summary 16 judgment, as demonstrated by the absence of discovery in this case. Texas Partners v. Conrock 17 18 Co., 685 F.2d 1116, 1119 (9th Cir. 1982) (holding the district court erred when granting summary 19 judgment without affording plaintiffs opportunity to proceed with discovery). Thus, the court 20 denies defendants request to convert the motion to dismiss into a motion for summary judgment. 21 . . . 22 . . . 23 24 . . . 25 . . . 26 . . . 27 . . . 28 1 C. Whether Lead You is an employer under FLSA 2 Plaintiff alleges violations of both Nevada wage and hour law and the FLSA. For the FLSA 3 to apply to an employer, the enterprise must be one that 4 (i) has employees engaged in commerce or in the production of goods for 5 commerce, or that has employees handling, selling, or otherwise working on goods 6 or materials that have been moved in or produced for commerce by any person; and (ii) is an enterprise whose annual gross volume of sales made or business done is 7 not less than $500,000…

8 29 U.S.C. § 203(s)(1)(A). 9 Defendants argue that they do not qualify as an employer under FLSA because they do not, 10 and have never, done business in excess of $500,000. Defendants provide the declaration of 11 12 defendant Ortiz (ECF No. 5-1) and copies of Lead You’s tax returns in support of this contention. 13 (ECF No. 15). However, as discussed above, these will not be considered when ruling on this 14 motion. 15 Plaintiff specifically alleges that defendants meet the enterprise coverage threshold. (ECF 16 No. 1 at 4). Courts have considered the enterprise question one of fact that “speaks directly to the 17 18 merits of [a] plaintiff’s claims,” and “should be determined on summary judgment or a trial.” 19 Serrano v. Marshal Sunshine, Inc., No. 6:13-CV-1977-AA, 2015 WL 1176535, at *2 (D. Or. Mar. 20 10, 2015).1 Accordingly, the court denies defendants’ motion to dismiss the FLSA claims on these 21 grounds. 22 D. Whether defendant Ortiz is an employer 23 24 Defendants challenge, albeit indirectly through a footnote, plaintiff’s claims against 25

26 1 While Serrano was discussing the enterprise issue in relation to a Rule 12(b)(1) motion to dismiss, the court 27 finds the analysis applicable to Rule 12(b)(6) motions as well. See also Ginorio v. Kenco Realty Mgmt. Corp., No. 22-CV-00650 (CM), 2022 WL 825493, at *1 (S.D.N.Y. Mar. 18, 2022) (after denying Rule 12(b)(1) motion to dismiss 28 based on amount earned by alleged employer, the court stated that “this fact issue cannot be resolved on a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) either”). 1 defendant Ortiz. Defendants claim the complaint provides no allegations regarding Ortiz or any 2 indication as to how he is responsible for plaintiff’s claims. 3 The FLSA’s definition of employer incudes “any person acting directly or indirectly in the 4 interest of an employer in relation to an employee.” 29 U.S.C. § 203(d). A corporate officer may 5 6 be deemed an employer under the FLSA if he or she exercises significant economic control over 7 the employment relationship. See Boucher v. Shaw, 572 F.3d 1087, 1091 (9th Cir. 2009) 8 (extending the definition to individuals who exercise “economic control over the [employment] 9 relationship”); U.S. Dep’t of Lab. v. Cole Enters., Inc., 62 F.3d 775, 778 (6th Cir. 1995) 10 (determining that a defendant who held “a significant ownership interest” in the company and 11 12 exercised “operational control of significant aspects of the corporation's day to day functions” was 13 an employer under the FLSA). 14 Here, plaintiff has alleged that Ortiz hired and fired workers, set pay and assigned 15 schedules, supervised day-to-day work, and directed workers during meetings. These allegations 16 plausibly establish that Ortiz exercised sufficient economic control over the employment 17 18 relationship, making Ortiz an employer under the FLSA. 19 E. Employee-employer relationship 20 A plaintiff must establish the existence of an employee-employer relationship if he is to be 21 successful under both Nevada law and the FLSA. Prieur v. D.C.I. Plasma Ctr. of Nevada, Inc., 22 726 P.2d 1372, 1373 (1986). Defendants claim that plaintiff is an independent contractor rather 23 24 than an employer and, therefore, they cannot be liable under Nevada law or the FLSA. 25 However, “the definition of ‘employer’ under the FLSA is not limited by the common law 26 concept of ‘employer,’ but ‘is to be given an expansive interpretation in order to effectuate the 27 FLSA’s broad remedial purposes.’” Boucher, 572 F.3d at 1090 (citing Lambert v. Ackerley, 180 28 1 F.3d 997, 1011–12 (9th Cir. 1999) (en banc)). Indeed, “[e]conomic realities, not contractual labels, 2 determine employment status for the remedial purpose of the FLSA.” Real v. Driscoll Strabwerry 3 Assoc., Inc., 603 F.2d 748, 755 (9th Cir. 1979). 4 The determination of whether an employer-employee relationship does not depend on 5 6 “isolated factors but rather upon the circumstances of the whole activity.” Id. at 1091 (citing 7 Rutherford Food Corp. v. McComb, 331 U.S. 722, 730 (1947)). The touchstone is the “economic 8 reality” of the relationship.2 Goldberg v. Whitaker House Coop., Inc., 366 U.S. 28 (1961). 9 Plaintiff alleges she was employed by defendants and worked approximately 53 hours or 10 more per week. (ECF No. 1). Plaintiff also alleges that she worked 18 hours per week at one 11 12 location and 35 hours per week at another location while employed by defendants. (Id.). 13 Defendants allegedly paid her $9.75 per hour for hours worked at one location and did not pay her 14 for her work at the other, where she instead was paid only in tips. (Id.). 15 Taking plaintiff’s allegations together, the economic reality of the relationship between 16 plaintiff and defendant is plausibly one of employee-employer. Accordingly, because plaintiff’s 17 18 factual allegations are enough to rise above the speculative level and allow the court to draw a 19 reasonable inference that defendants are liable for the alleged misconduct, the claims survive 20 defendants’ motion to dismiss. Iqbal, 556 U.S. at 678–79. 21 . . . 22 23 2 The Ninth Circuit has identified “factors which may be useful in distinguishing employees from independent 24 contractors.” Real, 603 F.2d at 754. The factors include: 1) the degree of the alleged employer's right to control the manner in which the work is to be 25 performed; 2) the alleged employee's opportunity for profit or loss depending upon his managerial skill; 3) the alleged employee's investment in equipment or materials required for his task, or his 26 employment of helpers; 4) whether the service rendered requires a special skill; 5) the degree of permanence of the working relationship; and 6) whether the service rendered is an integral part of 27 the alleged employer's business. Id. Although defendants contend that plaintiff has not satisfied these factors, the court concludes that it is premature 28 to resolve such issues at this stage. A factor-based analysis is more appropriately addressed on summary judgment, after the parties have conducted discovery and developed a factual record to support their respective positions. 1 IV. Conclusion 2 Accordingly, 3 IT IS HEREBY ORDERED, ADJUDGED, and DECREED that defendant’s motion 4 dismiss (ECF No. 5) be, and the same hereby is, DENIED. 5 6 DATED October 1, 2025. 7 8 _______________________________________________ UNITED STATES DISTRICT JUDGE 9

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28