Opinion
2:09-CV-01797-PMP-RJJ.
September 13, 2010
ORDER
Before the Court for consideration is Defendant Cox Communications Las Vegas, Inc.'s fully briefed Motion for Summary Judgment (Doc. #74). The Court conducted a hearing regarding Defendant's Motion on August 2, 2010.
Also before the Court for consideration is Plaintiff's Motion Under FRCP Rule 56(f) for an Order Directing Additional Discovery (Doc. #120), and Plaintiff's Motion to file a Supplement of New Authority in Opposition to Defendant Cox's Motion for Summary Judgment (Doc. #130).
Defendant's Motion for Summary Judgment (Doc. #74) is combined with Defendant's Motion to Disqualify Plaintiff as the Class Representative (Doc. #75) which is the subject of a separate Order of this Court (Doc. #112) entered June 30, 2010.
Defendant's Motion for Summary Judgment is predicated on its argument that Cox Communications Las Vegas Inc., is not a joint employer for purposes of FLSA liability under 29 U.S.C. § 216(b). Additionally, Defendant Cox argues that it cannot be liable under NRS § 608.150, because Nevada state law conflicts with the FLSA.
Turning first to Defendant's Motion for Summary Judgment with regard to Plaintiff's claim under NRS § 608.150, the Court finds a plain reading of the statute entitles Defendant Cox to the relief requested. NRS § 608.150 is expressly limited to original contractors engaged in the "erection, construction, alteration or repair of any building or structure, or other work." The record before the Court does not support a finding that Defendant Cox is engaged in such a construction business. The Court will therefore grant Defendant Cox's Motion for Summary Judgment with respect to Plaintiffs claim under NRS § 608.150.
The Court finds, however, the question of whether Defendant Cox may be construed as a "joint employer" for purposes of liability under the FLSA is more problematic. The parties cite a host of factors to be considered in determining whether Defendant Cox qualifies as a joint employer under the FLSA. The Court finds that Plaintiff has raised reasonable issues of material fact whether Defendant Cox could be found by a reasonable fact finder to be a joint employer. Moreover, although Defendant Cox is correct that Plaintiff's Motion for Additional Discovery under Rule 56(f) of the Federal Rules of Civil Procedure is procedurally defective, the Court finds that Plaintiff has shown good cause to warrant limited additional discovery as outlined in Plaintiff's Motion for Rule 56(f) discovery (Doc. #120). IT IS THEREFORE ORDERED that Defendant Cox Communications Las Vegas, Inc.'s Motion for Summary Judgment (Doc. #74) is GRANTED as to Plaintiffs claim under NRS § 608.150.
IT IS FURTHER ORDERED that Defendant Cox's Motion for Summary Judgment (Doc. #74) is DENIED in all other respects.
IT IS FURTHER ORDERED that Plaintiff's Motion Under FRCP Rule 56(f) for an Order Directing Additional Discovery (Doc. #120) is GRANTED to the extent that discovery is reopened for a period of 90 days, to and including December 7, 2010 , within which to conduct additional discovery relevant to the issue of Cox Communications status as a joint employer for purposes of liability under the FLSA. The separate Order of this Court granting Defendant's Motion for Interlocutory Appeal (Doc. #114) shall not preclude the parties from conducting this discovery.
IT IS FURTHER ORDERED that Plaintiff's Motion to File a Supplement New Authority in Opposition to Defendant Cox's Motion for Summary Judgment (Doc. #130) is GRANTED.