FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

THELMA BOUCHER, ARDITH  Nos. 05-15454

BALLARD, JOSEPH W. KENNEDY III 05-15702

and LOCAL 226, AFL-CIO, D.C. No.

Plaintiffs-Appellants, CV-04-01738-PMP

v.  ORDER

DAN SHAW, MICHAEL VILLAMOR, CERTIFYING A

JAMES VAN WOERKOM, DOES 1-50, QUESTION TO

Defendants-Appellees. THE SUPREME

COURT OF

NEVADA 

Filed April 6, 2007

Before: J. Clifford Wallace, Richard D. Cudahy,* and

M. Margaret McKeown, Circuit Judges.

COUNSEL

Richard G. McCracken and Kristin L. Martin, McCracken,

Stemerman, Bowen & Holsberry, 1630 South Commerce

Street, Suite A-1, Las Vegas, Nevada 89102, for the

plaintiffs-appellants. 

Constance L. Akridge and Matthew T. Milone, Jones Vargas,

3773 Howard Hughes Parkway, 3rd Floor South, Las Vegas,

Nevada 89109, for the defendants-appellees. 

*The Honorable Richard D. Cudahy, Senior United States Circuit Judge

for the Seventh Circuit, sitting by designation. 

3937
ORDER

Pursuant to Rule 5 of the Nevada Rules of Appellate Procedure, we respectfully certify to the Nevada Supreme Court the

question of law set forth in Section III of this order. This

question of law will be determinative of a question pending

before this court, and there is no clearly controlling precedent

in the decisions of the Nevada Supreme Court. 

We hold the issue concerning union standing and the Fair

Labor Standards Act claim in abeyance pending the result of

certification.

I. Background

The Castaways Hotel, Casino and Bowling Center (the

“Castaways”) closed in January 2004.1 The plaintiffs in the

present case are three former employees of the Castaways and

the labor union that represented those employees. The individual plaintiffs, Ardith Ballard, Thelma Boucher and Joseph

Kennedy III, seek to recover unpaid wages for themselves and

for a class of Castaways employees. Ballard alleges that she

has not been paid for the last pay period that she worked at

the Castaways. Boucher alleges that she was not paid for the

final pay period until two weeks after her employment was

terminated. All three individual plaintiffs allege that they have

not been paid their accrued vacation and holiday pay. Culinary Workers Union, Local 226 (“Local 226”) seeks to

recover wages which were withheld as dues from the paychecks of Thelma Boucher and other employees. The plaintiffs assert claims under Chapter 608 of the Nevada Revised

Statutes and under the Fair Labor Standards Act (FLSA), 29

U.S.C. § 206(a). For the purposes of this certification order,

only the Nevada state law claims are at issue. 

1The defendants in their brief refer to the Castaways as VSS Enterprises

LLC dba The Castaways Hotel, Casino and Bowling Center (“VSS”). 

3938 BOUCHER v. SHAW
The defendants in the present case are three Castaways’

managers. Dan Shaw was the Chairman and Chief Executive

Officer of the Castaways at the time the plaintiffs were discharged. Michael Villamor was responsible for handling labor

and employment matters at the Castaways. And, James Van

Woerkom was the Castaways’ Chief Financial Officer. Shaw

and Villamor were also members of VSS Enterprises LLC

dba The Castaways. Shaw had a 70 percent ownership in the

Castaways, and Villamor had a 30 percent ownership interest.

The plaintiffs allege that each defendant had custody or control over the “plaintiffs, their employment, or their place of

employment at the time that the wages were due.” 

The Castaways had filed for Chapter 11 bankruptcy protection on June 26, 2003. In January 2004, at the time the individual plaintiffs were discharged, the Castaways was

operating as a debtor in possession. On February 10, 2004,

after the plaintiffs were discharged, the Chapter 11 petition

was converted to a Chapter 7 petition. The Castaways ceased

operating around the time the bankruptcy case was converted

to Chapter 7.

The plaintiffs filed this lawsuit in Nevada state court on

October 14, 2004. On December 21, 2004, Defendant Dan

Shaw removed the case to the United States District Court for

the District of Nevada and filed a motion to dismiss pursuant

to Federal Rule of Civil Procedure 12(b)(6). Villamor and

Van Woerkom separately filed motions to dismiss as well,

alleging the same grounds for dismissal as Shaw. The district

court granted each of the defendant’s motions in full. Boucher

v. Shaw, No. CV-S-04-1738-PMP (PAL) (D. Nev. Jan. 25,

2005); Boucher v. Shaw, No. CV-S-04-1738-PMP (PAL) (D.

Nev. Feb. 18, 2005); Boucher v. Shaw, No. CV-S-04-1738-

PMP (PAL) (D. Nev. Apr. 11, 2005). The district court concluded: (1) that the defendants were not “ ‘employer[s]’ under

Chapter 608 of the Nevada Revised Statutes”; (2) “Local 226

lacks standing to bring a claim of violation of NRS 608”; and

(3) the “plaintiffs cannot maintain a cause of action under the

BOUCHER v. SHAW 3939
Fair Labor Standards Act” against the defendants. Boucher v.

Shaw, No. CV-S-04-1738-PMP (PAL), slip op. at 1-2 (D.

Nev. Jan. 25, 2005). 

On appeal to this court, the plaintiffs challenged the district

court’s determination that the defendants were not “employers” under Chapter 608 of the Nevada Revised Statutes,

among other arguments.

II. Discussion

Chapter 608 of the Nevada Revised Statutes provides a

statutory scheme for wage protection. “An employer shall pay

to the employee wages for each hour the employee works.”

Nev. Rev. Stat. § 608.016. “Whenever an employer discharges an employee, the wages and compensation earned and

unpaid at the time of such discharge shall become due and

payable immediately.” Nev. Rev. Stat. § 608.020. “If an

employer fails to pay: (a) Within 3 days after the wages or

compensation of a discharged employee becomes due . . . the

wages or compensation of the employee continues at the same

rate from the day he . . . was discharged until paid or for 30

days, whichever is less.” Nev. Rev. Stat. § 608.040(1). 

The application of these statutes to the present case

depends on whether the defendants were “employers” under

Chapter 608. “ ‘Employer’ includes every person having control or custody of any employment, place of employment or

any employee.” Nev. Rev. Stat. § 608.011. The question in

this case is whether the defendants as individual managers are

“employers” under § 608.011. This is a question of first impression.2

 Neither the Nevada Supreme Court nor the Ninth Cir2Only the district court in the present case has encountered this specific

question. In Westbrook v. GES Exposition Servs., Inc., No. 2:05-CV00532-KJD-GWF, 2006 WL 3751052, at *1 (D. Nev. Dec. 18, 2006), the

district court determined that the individual defendants in that case did not

meet the definition of “employer” under Nevada Revised Statutes

3940 BOUCHER v. SHAW
cuit has published an opinion analyzing the definition of

employer under Nevada Revised Statutes § 608.011. 

The plaintiffs contend that the broad language of the statute

makes clear that liability for unpaid wages extends beyond the

common law employer to individual managers, like the defendants in the present case. They also urge the court to construe

Chapter 608 of the Nevada Revised Statutes liberally in

accordance with United States Supreme Court, Ninth Circuit

and Nevada Supreme Court precedents which have interpreted other wage statutes liberally. 

The defendants argue that Section 608.011 should be limited to the entity that “created and maintained the employment

relationship.” See Leonard v. McMorris, 63 P.3d 323, 329

(Colo. 2003). The defendants further argue that the plaintiffs’

interpretation of the statute to include individual managers as

employers would be inconsistent with Nevada’s limited liability protection pursuant to Nevada Revised Statutes §§ 86.371,

86.381. 

A number of courts in other states have considered whether

individuals can be liable as “employers” under state wage

protection statutes. At least three states have held that their

respective states’ wage protection statutes permit individual

managers to be held liable as employers. Butler v. Hartford

Technical Inst., Inc., 704 A.2d 222, 227 (Conn. 1997); Chu

Chung v. New Silver Palace Rest., Inc., 272 F. Supp. 2d 314,

318-19 (S.D.N.Y. 2003); Ellerman v. Centerpoint Prepress,

Inc., 22 P.3d 795, 799 (Wash. 2001). However, the definition

of “employer” provided in Section 608.011 is unique to

Nevada. 

§ 608.011 because they did not “control the purse strings.” Whether the

defendants in the present case actually had control or custody of the plaintiffs is not at issue, since the present appeal concerns a motion to dismiss

where an allegation of control or custody is sufficient, not a motion for

summary judgment as was the case in Westbrook. 

BOUCHER v. SHAW 3941
Most of the case law on this question concerns whether an

individual as an officer or agent of the corporation (and not

necessarily as an employer) can be held liable under a state’s

wage protection statutory scheme. The state statutes at issue

in these cases explicitly allow for agent or officer liability.

Courts in a number of states have held that an individual acting as an agent or officer of the corporation can be held liable

under the state’s respective wage protection statute. See Richmond v. Hutchinson, 829 A.2d 1075, 1078 (N.H. 2003); Mulford v. Computer Leasing, Inc., 759 A.2d 887, 891 (N.J.

Super. Ct. Law Div. 1999); Mohney v. McClure, 568 A.2d

682, 686 (Pa. Super. Ct. 1990), affirmed 604 A.2d 1021 (Pa.

1992); Dumas v. InfoSafe Corp., 463 S.E.2d 641, 645 (S.C.

Ct. App. 1995); Mullins v. Venable, 297 S.E.2d 866, 868 (W.

Va. 1982). But see Leonard v. McMorris, 63 P.3d 323, 333

(Colo. 2003) (holding that Colorado’s Wage Claim Act does

not make officers and agents of a corporation jointly and severally liable, along with the corporation, for the payment of

wages). Section 608.011 does not allow for officer or agent

liability, nor is this the basis for the plaintiffs’ claims in the

present case. 

We conclude that the statute is ambiguous and that the case

law from other states is of limited use. Because this question

represents an issue of first impression and has significant

implications for Nevada’s wage protection law and because

we cannot be certain how the Nevada Supreme Court would

resolve this matter, we believe certification on this question

of law to be appropriate.

III. Question Certified to the Nevada Supreme Court

The question of law we certify is:

Can individual managers be held liable as employers

for unpaid wages under Chapter 608 of the Nevada

Revised Statutes? 

3942 BOUCHER v. SHAW
IV. Conclusion

The plaintiffs’ appeal presents an issue of Nevada state law

which will be determinative of an issue essential to the resolution of the state claims raised in the present case. For this reason, we request that the Nevada Supreme Court accept and

decide the question herein certified. We agree to abide by the

Nevada Supreme Court’s decision as specified by Rule 5 of

the Nevada Rules of Appellate Procedure, which states that

“[t]he written opinion of the Supreme Court stating the law

governing the questions certified . . . shall be res judicata as

to the parties.” Nev. R. App. P. 5(g). 

The clerk of this court shall forward a copy of this order,

under official seal, to the Nevada Supreme Court, along with

copies of all briefs and excerpts of record that have been filed

with this court. The parties shall notify the clerk of this court

within 14 days of any decision by the Nevada Supreme Court

to accept or decline certification. If the Nevada Supreme

Court accepts certification, the parties shall then notify the

clerk of this court within 14 days of the issuance of that

Court’s opinion. 

IT IS SO ORDERED.

____________________ 

Margaret McKeown 

United States Circuit Judge

BOUCHER v. SHAW 3943
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