1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 Case No.: 3:24-cv-00149-ART-CSD CAMERON CHURCH, 4 Order Plaintiff 5 Re: ECF No. 5 v. 6 MATT BURNS, et al., 7 Defendants 8
9 Plaintiff has filed an amended complaint, which the court screens pursuant to 28 U.S.C. 10 § 1915(e). 11 I. BACKGROUND 12 The undersigned issued a report and recommendation to grant Plaintiff’s application to 13 proceed in forma pauperis (IFP) and screened Plaintiff’s complaint. It was recommended that 14 Plaintiff be permitted to proceed with the following: claims under the Fair Labor Standards Act 15 (FLSA) based on the alleged failure to pay overtime and retaliation; claims for violation of 16 Nevada Revised Statute (NRS) Chapter 608 for the alleged failure to pay overtime, failure to pay 17 wages and commissions due and owing; and state claims for breach of contract, and fraudulent 18 and negligent misrepresentation. 19 It was recommended that the following claims be dismissed with prejudice: the FLSA 20 claim for failure to keep accurate records; the NRS Chapter 608 meal and rest break claims as 21 well as Chapter 608 claims for unlawful deductions from wages; his claim his was misclassified 22 as an independent contract (but those allegations may be used to support his claims under the 23 FLSA and Chapter 608); the wrongful termination claim for being a whistleblower as it is 1 duplicative of his FLSA retaliation claim and there is no corollary claim under Chapter 608. It 2 was further recommended that defendant Warren be dismissed with prejudice. The following 3 claims were recommended to be dismissed with leave to amend: the FLSA failure to provide 4 required information about pay and working conditions; the Chapter 608 claim for failure to
5 withhold applicable state and federal taxes; the intentional infliction of emotional distress claim; 6 the civil conspiracy claim; and the breach of the implied covenant of good faith and fair dealing. 7 It was recommended that Plaintiff be given 30 days from the date of any order adopting the 8 report and recommendation to file an amended complaint. (ECF No. 4.) 9 30 days later, but before District Judge Traum had ruled on the report and 10 recommendation, Plaintiff filed an amended complaint. (ECF No. 5.) 11 District Judge Traum subsequently issued an order adopting the report and 12 recommendation. (ECF No. 6.) 13 The court now screens the amended complaint. 14 II. SCREENING
15 A. Standard 16 “[T]he court shall dismiss the case at any time if the court determines that-- (A) the 17 allegation of poverty is untrue; or (B) the action or appeal-- (i) is frivolous or malicious; (ii) fails 18 to state a claim upon which relief may be granted; or (iii) seeks monetary relief against a 19 defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(A), (B)(i)-(iii). 20 Dismissal of a complaint for failure to state a claim upon which relief may be granted is 21 provided for in Federal Rule of Civil Procedure 12(b)(6), and 28 U.S.C. § 1915(e)(2)(B)(ii) 22 tracks that language. As such, when reviewing the adequacy of a complaint under this statute, the 23 court applies the same standard as is applied under Rule 12(b)(6). See e.g. Watison v. Carter, 668 1 F.3d 1108, 1112 (9th Cir. 2012) (“The standard for determining whether a plaintiff has failed to 2 state a claim upon which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the 3 Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a claim.”). Review under 4 Rule 12(b)(6) is essentially a ruling on a question of law. See Chappel v. Lab. Corp. of America,
5 232 F.3d 719, 723 (9th Cir. 2000) (citation omitted). 6 The court must accept as true the allegations, construe the pleadings in the light most 7 favorable to the plaintiff, and resolve all doubts in the plaintiff’s favor. Jenkins v. McKeithen, 8 395 U.S. 411, 421 (1969) (citations omitted). Allegations in pro se complaints are “held to less 9 stringent standards than formal pleadings drafted by lawyers[.]” Hughes v. Rowe, 449 U.S. 5, 9 10 (1980) (internal quotation marks and citation omitted). 11 A complaint must contain more than a “formulaic recitation of the elements of a cause of 12 action,” it must contain factual allegations sufficient to “raise a right to relief above the 13 speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “The pleading 14 must contain something more … than … a statement of facts that merely creates a suspicion [of]
15 a legally cognizable right of action.” Id. (citation and quotation marks omitted). At a minimum, a 16 plaintiff should include “enough facts to state a claim to relief that is plausible on its face.” Id. at 17 570; see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 18 A dismissal should not be without leave to amend unless it is clear from the face of the 19 complaint that the action is frivolous and could not be amended to state a federal claim, or the 20 district court lacks subject matter jurisdiction over the action. See Cato v. United States, 70 F.3d 21 1103, 1106 (9th Cir. 1995); O’Loughlin v. Doe, 920 F.2d 614, 616 (9th Cir. 1990). 22 / / / 23 / / / 1 B. Plaintiff’s Amended Complaint 2 Plaintiff’s amended complaint names Matthew Burns as well as Outdoor Lighting 3 Perspectives (OLP) of Reno and Tahoe as defendants. Like the original complaint, Plaintiff 4 alleges that he was hired to work as an outdoor lighting installer for OLP, and that he was
5 mischaracterized as an independent contractor when he was actually an employee. 6 Plaintiff asserts claims for violation of the FLSA based on the alleged failure to pay him 7 overtime for hours worked over 40 hours in a week and for firing him for complaining about and 8 asserting his rights under the FLSA. He also asserts claims under Chapter 608 of the NRS for 9 failing to pay him overtime for hours worked over 40 per week, failing to provide him with 10 required meal and rest breaks, failing to pay him all wages and commissions due and owing, and 11 failing to withhold all applicable state and federal taxes. Finally, he asserts claims for breach of 12 contact as well as fraudulent and negligent misrepresentation. 13 The court finds Plaintiff may proceed with the claims asserted in the amended complaint 14 for violation of the FLSA for overtime and retaliation, for violation of Chapter 608 of the NRS
15 related to overtime and the failure to pay all wages and commissions due and owing, and for 16 breach of contract and fraudulent and negligent misrepresentation against Burns and OLP. 17 As the court explained in the prior report and recommendation, there is no private right of 18 action to enforce NRS 608.019
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1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 Case No.: 3:24-cv-00149-ART-CSD CAMERON CHURCH, 4 Order Plaintiff 5 Re: ECF No. 5 v. 6 MATT BURNS, et al., 7 Defendants 8
9 Plaintiff has filed an amended complaint, which the court screens pursuant to 28 U.S.C. 10 § 1915(e). 11 I. BACKGROUND 12 The undersigned issued a report and recommendation to grant Plaintiff’s application to 13 proceed in forma pauperis (IFP) and screened Plaintiff’s complaint. It was recommended that 14 Plaintiff be permitted to proceed with the following: claims under the Fair Labor Standards Act 15 (FLSA) based on the alleged failure to pay overtime and retaliation; claims for violation of 16 Nevada Revised Statute (NRS) Chapter 608 for the alleged failure to pay overtime, failure to pay 17 wages and commissions due and owing; and state claims for breach of contract, and fraudulent 18 and negligent misrepresentation. 19 It was recommended that the following claims be dismissed with prejudice: the FLSA 20 claim for failure to keep accurate records; the NRS Chapter 608 meal and rest break claims as 21 well as Chapter 608 claims for unlawful deductions from wages; his claim his was misclassified 22 as an independent contract (but those allegations may be used to support his claims under the 23 FLSA and Chapter 608); the wrongful termination claim for being a whistleblower as it is 1 duplicative of his FLSA retaliation claim and there is no corollary claim under Chapter 608. It 2 was further recommended that defendant Warren be dismissed with prejudice. The following 3 claims were recommended to be dismissed with leave to amend: the FLSA failure to provide 4 required information about pay and working conditions; the Chapter 608 claim for failure to
5 withhold applicable state and federal taxes; the intentional infliction of emotional distress claim; 6 the civil conspiracy claim; and the breach of the implied covenant of good faith and fair dealing. 7 It was recommended that Plaintiff be given 30 days from the date of any order adopting the 8 report and recommendation to file an amended complaint. (ECF No. 4.) 9 30 days later, but before District Judge Traum had ruled on the report and 10 recommendation, Plaintiff filed an amended complaint. (ECF No. 5.) 11 District Judge Traum subsequently issued an order adopting the report and 12 recommendation. (ECF No. 6.) 13 The court now screens the amended complaint. 14 II. SCREENING
15 A. Standard 16 “[T]he court shall dismiss the case at any time if the court determines that-- (A) the 17 allegation of poverty is untrue; or (B) the action or appeal-- (i) is frivolous or malicious; (ii) fails 18 to state a claim upon which relief may be granted; or (iii) seeks monetary relief against a 19 defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(A), (B)(i)-(iii). 20 Dismissal of a complaint for failure to state a claim upon which relief may be granted is 21 provided for in Federal Rule of Civil Procedure 12(b)(6), and 28 U.S.C. § 1915(e)(2)(B)(ii) 22 tracks that language. As such, when reviewing the adequacy of a complaint under this statute, the 23 court applies the same standard as is applied under Rule 12(b)(6). See e.g. Watison v. Carter, 668 1 F.3d 1108, 1112 (9th Cir. 2012) (“The standard for determining whether a plaintiff has failed to 2 state a claim upon which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the 3 Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a claim.”). Review under 4 Rule 12(b)(6) is essentially a ruling on a question of law. See Chappel v. Lab. Corp. of America,
5 232 F.3d 719, 723 (9th Cir. 2000) (citation omitted). 6 The court must accept as true the allegations, construe the pleadings in the light most 7 favorable to the plaintiff, and resolve all doubts in the plaintiff’s favor. Jenkins v. McKeithen, 8 395 U.S. 411, 421 (1969) (citations omitted). Allegations in pro se complaints are “held to less 9 stringent standards than formal pleadings drafted by lawyers[.]” Hughes v. Rowe, 449 U.S. 5, 9 10 (1980) (internal quotation marks and citation omitted). 11 A complaint must contain more than a “formulaic recitation of the elements of a cause of 12 action,” it must contain factual allegations sufficient to “raise a right to relief above the 13 speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “The pleading 14 must contain something more … than … a statement of facts that merely creates a suspicion [of]
15 a legally cognizable right of action.” Id. (citation and quotation marks omitted). At a minimum, a 16 plaintiff should include “enough facts to state a claim to relief that is plausible on its face.” Id. at 17 570; see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 18 A dismissal should not be without leave to amend unless it is clear from the face of the 19 complaint that the action is frivolous and could not be amended to state a federal claim, or the 20 district court lacks subject matter jurisdiction over the action. See Cato v. United States, 70 F.3d 21 1103, 1106 (9th Cir. 1995); O’Loughlin v. Doe, 920 F.2d 614, 616 (9th Cir. 1990). 22 / / / 23 / / / 1 B. Plaintiff’s Amended Complaint 2 Plaintiff’s amended complaint names Matthew Burns as well as Outdoor Lighting 3 Perspectives (OLP) of Reno and Tahoe as defendants. Like the original complaint, Plaintiff 4 alleges that he was hired to work as an outdoor lighting installer for OLP, and that he was
5 mischaracterized as an independent contractor when he was actually an employee. 6 Plaintiff asserts claims for violation of the FLSA based on the alleged failure to pay him 7 overtime for hours worked over 40 hours in a week and for firing him for complaining about and 8 asserting his rights under the FLSA. He also asserts claims under Chapter 608 of the NRS for 9 failing to pay him overtime for hours worked over 40 per week, failing to provide him with 10 required meal and rest breaks, failing to pay him all wages and commissions due and owing, and 11 failing to withhold all applicable state and federal taxes. Finally, he asserts claims for breach of 12 contact as well as fraudulent and negligent misrepresentation. 13 The court finds Plaintiff may proceed with the claims asserted in the amended complaint 14 for violation of the FLSA for overtime and retaliation, for violation of Chapter 608 of the NRS
15 related to overtime and the failure to pay all wages and commissions due and owing, and for 16 breach of contract and fraudulent and negligent misrepresentation against Burns and OLP. 17 As the court explained in the prior report and recommendation, there is no private right of 18 action to enforce NRS 608.019 related to meal and rest breaks, but Plaintiff may allege he can 19 recover unpaid wages related to meal and rest breaks under his claim for unpaid wages under 20 NRS 608.135. The court will construe the amended complaint as not asserting a separate claim 21 related to meal and rest breaks, but as including allegations to support his claim for unpaid wages 22 related to meal and rest breaks. 23 1 The court also previously explained that Plaintiff did not cite authority for his claim 2 under NRS Chapter 608 for the failure to withhold applicable federal and state taxes. The 3 amended complaint also does not appear to cite such authority. However, Plaintiff can proceed 4 with this allegation to the extent the amended complaint is construed as alleging he is entitled to
5 recover any amounts related to the failure to withhold taxes under his claim for unpaid wages. 6 Finally, Plaintiff’s amended complaint contains an allegation that Defendants 7 misclassified Plaintiff and Plaintiff’s brother as independent contractors, but Plaintiff’s brother is 8 not a plaintiff in this action. 9 III. CONCLUSION 10 (1) Plaintiff may PROCEED with the claims in the amended complaint (ECF No. 5) as 11 outlined in this Order. The amended complaint (ECF No. 5) is now the operative complaint. 12 (2) The Clerk of Court shall ISSUE summonses for defendants Matthew Burns and OLP, 13 and deliver the same, to the U.S. Marshal for service. The Clerk also shall also SEND sufficient 14 copies of the amended complaint (ECF No. 5) and this Order to the U.S. Marshal for service on
15 the defendants. The Clerk shall SEND to Plaintiff 2 USM-285 forms. Plaintiff will have 21 16 days within which to furnish to the U.S. Marshal the required USM-285 forms with relevant 17 information as to each defendant on each form at 400 S. Virginia Street, 2nd floor, Reno, Nevada 18 89501. Within 20 days after receiving from the U.S. Marshal a copy of the USM-285 forms 19 showing whether service has been accomplished, if any of the defendants were not served, and if 20 Plaintiff wants service to be attempted again, he must file a motion with the court providing a 21 more detailed name and/or address for service, or indicating that some other method of service 22 should be attempted. 23 1 (3) Plaintiff is reminded that under Federal Rule of Civil Procedure 4(m), service must be 2 completed within 90 days of the date of this Order. If Plaintiff requires additional time to meet 3 any of the deadlines set by the court, he must file a motion for extension of time under Local 4 Rule 1A 6-1 before the expiration of the deadline, and the motion must be supported by a
5 showing of good cause. A motion filed after a deadline set by the court, or applicable rules, will 6 be denied absent a showing of excusable neglect. 7 (4) The notice previously issued under Federal Rule of Civil Procedure 4(m) with respect 8 to the original complaint (ECF No. 8) is now MOOT in light of this order allowing the amended 9 complaint to proceed. 10 (5) Plaintiff shall serve upon defendant(s) or, if an appearance has been entered by 11 counsel, upon the attorney(s), a copy of every pleading, motion or other document submitted for 12 consideration by the court. If Plaintiff electronically files a document with the court’s electronic 13 filing system, no certificate of service is required. Fed. R. Civ. P. 5(d)(1)(B); LR IC 4-1(b); LR 14 5-1. If Plaintiff mails the document to the court, Plaintiff shall include with the original
15 document submitted for filing a certificate stating the date that a true and correct copy of the 16 document was mailed to the defendants or counsel for the defendants. 17 / / / 18 / / / 19 / / / 20 21 22 23 ] If counsel has entered a notice of appearance, Plaintiff shall direct service to the individual attorney named in the notice of appearance, at the physical or electronic address stated 3] therein. The court may disregard any document received by a district judge or magistrate judge which has not been filed with the Clerk, and any document received by a district judge, magistrate judge, or the Clerk which fails to include a certificate showing proper service when required. IS SO ORDERED. 8|| Dated: July 7, 2025 oc Ss Craig S. Denney 10 United States Magistrate Judge 1] 12 13 14 15 16 17 18 19 20 21 22 23