good morning your honour's ma'am please the court my name is leah jones and i represent the plaintiff appellant and a putative class of nonexempt hourly paid call center employees of the defendant capital one i would like to reserve about four minutes of my time for rebuttal argument this appeal bows down to the question of whether plaintiff has met the pleading standards as set forth by the lander's v quality communications if she has district court impermissibly turned capital once motion to dismiss and to a motion for summary judgment by looking outside the complaint to make factual determination without the benefit of any discovery whatsoever if she has not the pleading standards then she must be allowed to amend the complaint either way the district court should be reversed and this case remanded back to the district court there are forty three dollars matic errors made by the district court  procedural error whereby the district court looked outside of the complaint two untested documents provided by defended and its opposition to plaintiff's motion for circulation of notice pursuant to section two  the federal fair labor standards act an opposition that was actually filed sixty five dollars days after the motion to dismiss was fully briefed nd the district court suicide dismissed the nevada state laws wage claims for all hours worked overtime and the derivative penalties by ignoring the unanimous decision by the nevada supreme court in the novel v eight judicial district court holding whereby the court confirmed that employ plaintiffs in the state of nevada do you have a private right of action to bring statutory wage claims rd notwithstanding the district courts and permission a fact finding the district court so correctly applies both federal and state wage and hour laws to plaintiffs over time claims specific to the f l us a claims the district court and collectively in correctly applies a gap time theory to plaintiffs a fellow say over time claims even though the plaintiff clearly alleges that the off the talk clock work that she completed approximately thirty minutes per shift was in addition to the forty hours of week she was scheduled for and did indeed work this is not a gap time issue because the time alleged is over forty hours in a week all the time alleged that was unpaid is on top of the forty hours likewise the district court applied a gap time argument to plaintiffs nevada constitutional minimum wage claims nevada specifically allows for each hour the employer works and expressly prohibits using a work word or an average over the whole work week seems to be a matter of st impression you grew that i don't think so your honor because the nevada rezai revised statutes are very clear and what  constitutes regular rate pay and overtime pay for instance an arrest six dollars o eight dot on one sec says every employee shall be paid for each hour worked including time outside the regular direction of the employer including time work by the employee that is outside the scheduled time if the employer and nd if the employer pays the employee only in a manner other than an hourly wage of paid people are paid their hourly wage for every wage they worked and that doesn't limit it to just a minimum wage which in about at seven hundred and twenty five or a twenty five dollars depending on the two tiered system if you're paid by a piece straight or a salary or some other rate than that what that means is that yes you do have to pay the minimum wage but if you're an hourly paid worker then it doesn't matter if it's seven hundred and twenty five dollars or eight hundred and thirty eight dollars which is the case in this and  there has been no discovery and under both devout a law and also under dust mite circuit law pleading under information and belief is not prohibited  sure that the defendant has knowledge or house facts sufficient to allow them to defend against the claim defendant has obviously been able to discern what is going on in the complaint because they filed a motion to dismiss there is no actual authority that defendant has cited to that prevents an information belief pleading at this stage perhaps if a further stage of the pleadings as we are as we argue in our briefs that if the court had turned this into a rule fifty six motion for summary judgment and that discovery had finally in to also answer your question your honor regarding if there's any case law specific to the nevada law not falling the f l s a as far as the overtime cases go in amazon fulfillment wage claim that nevada looks to the statutory statutory scheme as a whole and that the contrary to the limit that the court look to at will employment doctor doctrine and dismissing plaintiffs contract claims these employees are not volunteers they obviously applied for a job with capital one capital one gave them the job they gave capital one call center services and exchange for payment of at an agreed upon right to rage weight rate of wage at eighteen dollars thirty eight cents capital one hundred now refuses prospectively to pay for them for that work that they've already completed so based on our argument not withstanding the issues of law that the district court was incorrect on the court should have procedure only either turn this motion and to a motion for summary judgment and allowed sue summary allowed discovery to continue so that the court could look at both sides of the facts or it should have given plain f leave to remain amend her complaint to fix any pleading deficiencies that it noted st and foremost under lander's which is the standard in this district you have to plead to three things you have to plead that you worked forty a week forty hours in a week you have to plead that you worked over forty hours in a week and that you were either not paid for that time or you were not paid for the minimum wage in the excerpts of record volume two out one hundred and four dollars plaintiffs complaint clearly at section nine says that plaintiffs were scheduled for and they did work forty hours in a week at section twelve the last week that employ that the employee believes she worked was in april and she worked thirty minutes of off the clock time each and every sheet shift worked which is to point out hours of top two five hours of time at section ten dollars twelve fifteen minute breaks and one hundred and thirty minute lunch break what do you explain the discrepancy if you're correct your honor and the discrepancy is a copy editing error with a mission of the word between she was scheduled between eight and to a motion for summary judgment we believe that based on the pleadings in the complaint we have passed that possibility standard we have given defendant notice of what they're being sued for and i see that i'm just about three and a half minutes so i would like to reserve the rest of my time  and unfair policies of capital one that required her in the class to perform the alleged off the clock work this is in paragraphs seven through fifteen and also specifically in paragraph and twenty of the st amended complaint she alleges on information and belief that during the week of april rd through seven she worked more than forty hours and was not paid for the alleged off the clock work as the courts noted or as  inquired what was the rationale behind pleading on information in belief with respect to these allegations appellants counsel contends that on for on information in believe is acceptable in this jurisdiction yet the cases she relies upon in their in their briefing include prisoner rights cases under section one thousand nine hundred and eighty three and the th circuit has held that it's only in those cases effectively that on information and belief claims are appropriate there's only one district court case that they identify as approving of on information and belief allegations but there is no explanation or analysis done by the court and that decision new england life insurance company about why on information and belief pleadings are acceptable and furthermore it's not an f l s a case opportunity to amend the one that's highly unusual not when the court has the record before it your honor that's the problem that may be the problem but it's also but it's solution because again if you look at the complaint and specifically paragraphs twenty b and e there in plaintiff's alleges that because of capital one's policies procedures and plans which she describes as illegal unlawful and unfair that's how she describes the policies she says those policies are responsible for the off the clock work not any one person not that there was a subversion within capital one to disregard the existing you may be right ultimately we're talking about a complaint it's not a motion for summary of another court converted it but the reality is it looks like the court just took all the data all this other information that would normally not be part the response to a pleading meaning a complaint unless there was a specific reference to it in the complaint where it was attached and in this case it seems to me the court just wholesale it its own discovery you notice where as the materials that were attached to the circulation notice circulation whatever it was here are not that us that is correct but the the doctrine of incorporation by reference allows both documents to come in through judicial notice or because they're incorporated sisyphean it did not incorporate those documents by well of course she did your honor look at paragraphs twenty  circuit that where the pleadings refer to documents but you not attach them and where the claims rely on them and no one questions the authenticity of those documents that the court can look at those documents and in analyzing rule twelve the motion without converting it to a rule fifty six motion i'd also note and the judge's order points this out as well that in plaintiff's reply in support of her motion for notice to motion to circulate notice she had the opportunity to object to capital one's policies and procedures she didn't do that she had the opportunity to further clarify any of her pleadings and she didn't do that and to address your point your honor about why it is that leave to amend would be futile it would be futile in this case because if plaintiff continues to maintain that she was forced to perform off the clock work her capital one's illegal unlawful and unfair policies we know that on their face those documents which are now part of the court record are not i legal and unlawful and continuing to meet in that fashion would subject her to rule eleven sanctions with respect counsel i you know i would gauges and this one just seems like the judge like to do discovery and just went out there and grab these documents and threw them in there until we're going to look at the documents and when i do that i'm going to decide the case that's not the weather system works and you know it all probably all that's all great but the question here is based upon the complaint was there a plausible claim made she made all the belief ale because of the very documents that the court ultimately looked at but the court went right to them you didn't ask them to do it she didn't ask you to do it the court just did and i don't see how that's justifiable under our case law i believe it's justifiable given the specific allegations contained in the complaint and again i would ask the court to review the allegations a set forth and paragraphs one thousand and twenty dollars of the st amended complaint per all of her claims not only turn on the operation of these policies which she said forced to be off the clock work she's also alleging there was pleading when the court has before it the policy is at issue in the complaint which the complainant says force the off the clock work but for example counsel i mean we get complaints dealing with  or where people claim that officers are carrying out the and studied policy of a county or a city to do x or y and then that's what's brought about these constitutional damages well the district court doesn't say  well before i rule on this i'm going to do a little discovery over at the county courthouse and see if i can find any documents that would show a pattern or practice that's what you have discovery for that's what you then parties bring it in and let the court decided that point or take it to a jury or other fact finder but here the fact that the judge made the alley like that the allegations and may or may not have agreed with them it's just a complaint and you deny it and say it's not true then a policy driven in agreement driven complaint and if this were a business case we wouldn't be having this argument if it were a business to business case or street of contract case nobody would bat an eye about the fact that the underlying document the documents that her only option given the record before the court is to amend the complaint in such a way that she specifically alleges not withstanding capital one's policies and procedures and frankly her training that she nevertheless performed off the clock work when we know when forrester when an employee that's different it would be a twelve the six motion that is a matter of law would be granted and which is why the line any clear the forester is pleading standard i'm sorry your honor i don't think we've ever held that forester i wanted to touch on a question that you raised your honor with respect to whether or not it's a matter of st impression under the minimum wage amendment about what it means to pay for all hours wor fifteen is that it mirrors the language of the f l s a specifically seven hundred and seventy six point four which is the work week standard and also specifically says and uses the same terms employees must be paid for all time work it goes on to say that any covered work performed any work week must be paid in accordance with the wage in our laws of the f l s say those two should and must be read harmoniously together and terry view sapphire gentlemen's club does not dictate a why in terry supreme court adopted the economic realities test from the f l s say because it didn't feel like the definition of employer under the nevada revised statutes was sufficient to allow it to analyze the issue before it if we were able to ascertain from the face of the complaint that there was no gap time claim i'm pretty sure we would not have wasted our time in a motion to dismiss arguing that she's pled a gap time claim the fact of the matter is that there are only a handful of allegations by my count ten out of sixty three in the complaint that contain factual allegations paragraph one hundred and twenty nine through twelve are the paragraphs that she uses in an attempt to catapult past or satisfy her pleading obligation under landers but she fails your honor was correct in noting that there are internal inconsistency is in paragraph twelve it's not even clear whether she worked a ten hour schedule or an eight hour schedule and i would submit to you that your cause for confusion is the same as our cause for confusion because if the plaintiff was only scheduled to work eight hours a day with a thirty minute meal period and she works thirty minutes of off the clock work she would only be working a total of eight hours a day and she would not be working more than forty hours a week to trigger an overtime obligation under the f s a or than about a revised statutes which means that she's pled a gap time claim i c m down to only fifteen seconds so gap time claim defendant did not make that gap time claim and their motion to dismiss the court used that language the quote unquote gap time in their motion to in their order in their motion to dismiss that as why plaintiff here is arguing that gap time issue gap time is for instance and example if if the plaintiff had alleged that she only worked thirty eight hours per week plus the two five hour she's allege alleging she's working off the clock those two hours to get you up to forty would be the gap time the point five after that is actually time that needs to be paid at the employee's regular saying that the company has these policies in fact works on the ground your clients are working hours or are you seeing these policies as applied are the ones that are creating this problem your nd your nd statement your honor when defendant says that amendment would could before would be futile so for instance again if there confusion in the complaint that plaintiff should be granted lead to amend how would plaintiff amend the complaint hopefully to please the district court we would add additional paragraph for factual brands the court indicated that written policies do not immunize an employer from f l s a violations it's true that the defendant employer here could have policies it is also can be true that they do not follow those policies in practice that is the just of complaint of the plaintiff's complaint that for that reason i'm question maybe you could have made that more clear  and i agree with you and that would be a great issue for on a given leave to amend the complaint to clear that up to clear up the between that was left out in the in the complaint and i also wanted to direct the court to there's only three times that plaintiff actually uses the word policy in her complaint and they're both included in legal conclusions based on as counsel noted in the excerpts of record beginning not page eighty four dollars of the complaint says at paragraph nineteen that the policies of the defendant go to the  section twenty that it's a policy still those are statements of law those aren't statements of fact so under the incorporation by reference doctrine plaintiff has not encrypt rated the documents by reference as your honour's ha good one last quick thing is it's interesting that plaintiff or that defendant is arguing that if it was a business case and there was an agreement or a contract of some sort you just look at those terms  however defendant is arguing that there is no contract in this case also so this court has already said in wal mart that there is an underlying employment contract that's a red herring issue so that's