Opinion
2:09-CV-00944-PMP-PAL.
March 22, 2011
ORDER
On March 16, 2011, the Court conducted a hearing regarding Defendants' fully briefed Motion to Deny Class Certification (Doc. #31). Encompassed within said hearing were the arguments of counsel in support of and in opposition to Plaintiff's Motion to Certify Class under Rule 23 and For Final Collective Action Certification Under 29 U.S.C. § 216(b), and to File a Supplementary Response to Defendants' Motion to Deny Class Certification (Doc. #56).
This action was commenced April 30, 2009 by the filing of Plaintiff's Complaint in the Eighth Judicial District Court, in and for the County of Clark, State of Nevada, alleging three claims for relief. Plaintiff's first cause of action states a claim for relief on behalf of Plaintiff Dennis Tallman and all other persons who choose to file a written consent to join this action as a plaintiff pursuant to 29 U.S.C. § 216(b) of the Fair Labor Standards Act ("FLSA"). Plaintiff's second cause of action states a claim for class action relief on behalf of Plaintiff Dennis Tallman and all persons similarly situated pursuant to Nevada Labor Law. Plaintiff's third cause of action states a class action claim for relief under N.R.S. § 608.040 on behalf of Plaintiff Dennis Tallman and all other persons similarly situated.
Defendants' removed the action to this Court on May 26, 2009. Discovery was stayed for a period of time to enable the Parties to engage in an unsuccessful effort at mediation of Plaintiff's claims. Now before the Court are the cross-motions of the Parties regarding the viability of class certification (Doc. #31 and #56).
The Court finds that Plaintiff's second and third state law class action claims substantially predominate over Plaintiff's first claim for relief under the Fair Labor Standards Act, 29 U.S.C. § 216(b). Under the circumstances, and as recognized by both Parties to this action, the Court may decline to exercise supplemental jurisdiction over Plaintiff's state law class action claims. 28 U.S.C. § 1367(c). The Court finds it is appropriate in this case to decline exercise of supplemental jurisdiction over Plaintiff's state law claims, and to sever them from Plaintiff's FLSA claim, and to remand Plaintiff's state law claims to the Eighth Judicial Court in and for the County of Clark where the action originated.
IT IS THEREFORE ORDERED that Plaintiff's Second Cause of Action stating a claim for class action relief on behalf of Plaintiff Dennis Tallman and all persons similarly situated pursuant to Nevada's Labor Law, and Plaintiff's Third Cause of Action stating a claim for class action relief under N.R.S. § 608.040 on behalf of Plaintiff Dennis Tallman and all persons similarly situated, are hereby severed from this action, and remanded to the Eighth Judicial District Court in and for the County of Clark, State of Nevada in Case No. A09589249.
IT IS FURTHER ORDERED that Plaintiff's Motion for Class Certification (Doc. #56) is DENIED without prejudice to renew the same before the State Court wherein Plaintiff's class action claims shall proceed. IT IS FURTHER ORDERED that Defendants' Motion to Deny Class Certification (Doc. #31) is DENIED without prejudice to renew said motion before the State Court before which Plaintiff's Second and Third Claims for Relief shall proceed.
IT IS FURTHER ORDERED that Plaintiff's Motion for Acceptance of Consents Under the Fair Labor Standards Act (Doc. #49) and Plaintiff's Motions for Leave to File a Supplement Thereto (Doc. #51, #54, #60 and #71) are DENIED without prejudice to re-file said consents to the extent they reflect the consent of each putative plaintiff in question to "opt in" to the collective action alleged by Plaintiff Tallman in Plaintiff's First Cause of Action under the Fair Labor Standards Act, 29 U.S.C. § 216(b).