If the court grants a motion to dismiss a complaint, it must then decide whether to grant plaintiff leave to amend. Lucatelli v. Texas De Brazil (Las Vegas) Corp., No. 2:11-CV-01829-RCJ, 2012 WL 1681394, at *2 (D. Nev., May 11, 2012). The court should "freely give" leave to amend where there is no "undue delay, bad faith or dilatory motive on the part of the movant . . . undue prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of the amendment."
If the court grants a motion to dismiss a complaint, it must then decide whether to grant plaintiff leave to amend. Lucatelli v. Texas De Brazil (Las Vegas) Corp., No. 2:11-CV-01829-RCJ, 2012 WL 1681394, at *2 (D. Nev., May 11, 2012). The court should "freely give" leave to amend where there is no "undue delay, bad faith or dilatory motive on the part of the movant . . . undue prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of the amendment."
However, the Nevada Supreme Court has specifically rejected this argument and found that NRS § 608.040 provides a private right of action because the "legislative scheme is consistent with a private cause of action for employees." Csomos v. Venetian Casino Resort, LLC, Case No. 55203, 2011 WL 4378744, at *2 (Nev. Sept. 19, 2011); see also Lucatelli v. Texas De Brazil (Las Vegas) Corp., Case No. 2:11-cv-01829-RCJ-VCF, 2012 WL 1681394, at *3 (D. Nev. May 11, 2012). Nevertheless, this second claim is clearly dependent upon Plaintiff's success in her first claim. (See Pl. Resp. to Def. MSJ 23:23 - 25, ECF No. 17) (Plaintiff's "right to a statutory penalty under NRS 608.040 does not arise unless she first can prove that she is entitled to overtime compensation.").
The current landscape regarding whether chapter 608 of the NRS creates private rights of action is anything but clear. However, this court has previously held that no private right of action exists to enforce labor statutes arising from NRS §§ 608.010 et. seq. and 608.020 et. seq. Dannenbring v. Wynn Las Vegas, LLC, 907 F. Supp. 2d 1214, 1219 (D. Nev. 2013); see also Descutner v. Newmont USA Ltd., 3:13-cv-00371-RCJ-VPC, 2012 WL 5387703, *2 (D. Nev. 2012) (finding no private right of action under NRS 608.018); Lucatelli v. Texas De Brazil (Las Vegas)Corp., 2:11-cv-01829-RCJ, 2012 WL 1681394, *3 (D. Nev. 2012) (dismissing plaintiff's claims under NRS 608.018, 608.020, and 608.040, for overtime pay, payment at time of discharge, and penalty for failure to pay at time of discharge, respectively, and finding that the violations of Nevada labor statutes could not be asserted as private rights of action). The current tide of common law appears to show that NRS 608.140 "does not imply a private remedy to enforce labor statutes, which impose external standards for wages and hours," but only provides private rights of action for contractual claims.
This court has previously held in Dannenbring v. Wynn Las Vegas, LLC, 907 F. Supp. 2d 1214 (D. Nev. 2013) that no private right of action exists to enforce labor statutes arising from NRS §§ 608.010 et. seq. and 608.020 et. seq. See also, Descutner v. Newmont USA Ltd., no. 3:13-cv-00371-RCJ-VPC, 2012 WL 5387703 (D. Nev. Nov. 1, 2012) (finding no private right of action under NRS §608.018); Lucatelli v. Texas De Brazil (Las Vegas) Corp., 2:11-cv-01829-RCJ, 2012 WL 1681394 (D. Nev. May 11, 2012) (dismissing plaintiff's claims under NRS §§ 608.018, 608.020, and 608.040, for overtime pay, payment at time of discharge, and penalty for failure to pay at time of discharge, respectively, and finding that the violations of Nevada labor statutes could not be asserted as private rights of action). It is settled law that NRS § 608.140 "does not imply a private remedy to enforce labor statutes, which impose external standards for wages and hours," but only provides private rights of action for contractual claims.
The court found that NRS §§ 608.018, 608.020, and 608.040 could not be asserted as private rights of action. The court followed Lucatelli v. Texas De Brazil (Las Vegas) Corp., 2:11–CV–01829–RCJ, 2012 WL 1681394 (D.Nev. May 11, 2012), in making this determination. Plaintiff's seconded amended complaint alleges a violation of NRS § 608.140.