                    Entertainment Agreement. Stabile opposed the motion to amend and
                    moved for summary judgment, and Flamingo filed a countermotion for
                    summary judgment. The district court granted summary judgment in
                    favor of Stabile, finding that Flamingo was the statutory employer of
                    Stabile and Shipley• and therefore, under the workers' compensation
                    statutes, FlamingoS had no right to recover from Stabile the workers'
                    compensation benefits paid to Stoian. The district court's order also
                    denied Flamingo's motion for leave to amend the complaint, concluding
                    that the indemnity provision did not apply in the workers' compensation
                    context, and denied Flamingo's countermotion for summary judgment.
                    This appeal followed.
                                 Having considered the parties' briefs and appendices, we
                    conclude that the district court erred in granting summary judgment in
                    Stabile's favor.   See Wood v. Safeway, Inc.,   121 Nev. 724, 729, 121 P.3d
                    1026, 1029 (2005) (explaining that this court reviews de novo a district
                    court summary judgment). Under the Nevada Industrial Insurance Act
                    (NITA), which governs the workers' compensation scheme, independent
                    contractors may be deemed statutory employees immune from suit. To
                    determine whether an independent contractor is a statutory employee of
                    another business, the court must analyze whether the independent
                    contractor is an independent enterprise not in the same trade, business,
                    profession or occupation under NRS 616B.603—that is, under the Meers
                    normal work test, whether the contracted services are normally carried
                    out through employees. See Tucker v. Action Equip. & Scaffold Co.,      113
                    Nev. 1349, 1357, 951 P.2d 1027, 1032 (1997), overruled on other grounds
                    by Richards v. Republic Silver State Disposal, Inc., 122 Nev. 1213, 148




SUPREME COURT
        OP
     NEVADA
                                                          2
(0) I94Th    41D0
                    P.3d 684 (2006); see also Meers v. Haughton Elevator, 101 Nev. 283, 286,
                    701 P.2d 1006, 1007 (1985).
                                Here, the district court based its conclusion that Flamingo was
                    Stabile and Shipley's statutory employer on its findings that Flamingo had
                    "absolute control over the Party Pit," that "Moth the card dealer and Go-
                    Go dancer were an integral part of the gaming entertainment presentation
                    at the Party Pit," and that Flamingo's business model expanded beyond
                    gaming. This court has clarified, however, that the "control test" is not
                    dispositive in determining immunity under the NIIA. Tucker, 113 Nev. at
                    1357, 951 P.2d at 1032. Although the district court appears to also have
                    concluded that Flamingo and Stabile were in the same trade or business,
                    see NRS 616B.603, the appellate record does not contain any evidence to
                    show that Flamingo's casino business included dancing so as to constitute
                    the same business as Stabile, which provides Go-Go dancing
                    entertainment.    See NRCP 56(c) (setting forth the movant's burden in a
                    summary judgment motion); NOLM, LLC v. Cnty. of Clark,           120 Nev. 736,
                    739, 100 P.3d 658, 660-61 (2004) (noting that this court will set aside
                    factual findings that are not supported by substantial evidence). Contrary
                    to Stabile's argument, we do not agree that this fact is subject to judicial
                    notice. See NRS 47.130; United States v. Jones, 29 F.3d 1549, 1553 (11th
                    Cir. 1994) ("Since the effect of taking judicial notice under [Federal Rule of
                    Evidence 201] is to preclude a party from introducing contrary evidence
                    and in effect, directing a verdict against him as to the fact noticed, the fact
                    must be one that only an unreasonable person would insist on disputing.").
                    Moreover, the district court did not analyze whether the Go-Go dancing
                    services Stabile provided fall within the "normal work" test set forth in
                    Meers. See Tucker, 113 Nev. at 1357, 951 P.2d at 1032 (holding that the


SUPREME COURT
        OF
     NEVADA
                                                           3
(0) 1947A    9M10
                      court should analyze an independent contractor's work under NRS
                      616B.603 and the Meers test to determine whether it is a statutory
                      employee for workers' compensation purposes); Meers, 101 Nev. at 286,
                      701 P.2d at 1007 (explaining that the test for finding statutory
                      employment is not whether the independent contractor's activity. "is
                      useful, necessary, or even absolutely indispensable to the statutory
                      employer's business" but rather whether the contracted services are, in
                      the purported statutory employer's business, "normally carried on through
                      employees rather than independent contractors" (quotation marks
                      omitted)). Therefore, we conclude that the district court erred in granting
                      summary judgment, and we reverse and remand for further proceedings
                      on this issue.'
                                   Flamingo also challenges the portion of the district court's
                      order that denied its motion for leave to amend the complaint. Flamingo,
                      however, failed to provide any authority to support its assertion that it
                      could bring an indemnity action to recover for workers' compensation
                      benefits paid, which are typically, recovered through a subrogation action.
                      See NRS 616C.215(2). And nothing in the indemnity provision expressly
                      allows Flamingo to recover for workers' compensation benefits. See    MGM
                      Grand Hotel-Reno, Inc. u. Insley, 102 Nev. 513, 518, 728 P.2d 821, 824
                      (1986) ("The obligation to pay compensation benefits and the right to
                      receive them exists as a matter of statute independent of any rights
                      established by contract"); Hortman u. Otis Erecting Co., 322 N.W.2d 482,
                      486 (Wis. Ct. App. 1982) (narrowly construing an indemnity provision

                            1 Whilewe reverse the district court's order and remand for further
                      proceedings, we express no opinion regarding the merits of Flamingo's
                      countermotion for summary judgment.



SUPREME COURT
        OF
     NEVADA
                                                           4
(0) I947A    .04/P0
                   against the argument that - it covered the indemnitee's obligations under
                   the workers' compensation statutes despite lacking such express
                   language); see also Parman v. Petricciani, 70 Nev. 427, 430-32, 272 P.2d
                   492, 493-94 (1954) (disregarding a party's construction of the contract
                   where it was unreasonable under the facts and circumstances of the case),
                   abrogated on other grounds by Wood, 121 Nev. at 729-32, 121 P.3d at
                   1029-31. Therefore, the district court did not abuse its discretion in
                   denying Flamingo's motion to amend. See Halcrow, Inc. v. Eighth Judicial
                   Dist. Court, 129 Nev. , 302 P.3d 1148, 1152 (2013) (recognizing
                   that leave to amend a complaint will not be granted if the plaintiff seeks to
                   plead an impermissible claim); Holcomb Condo. Homeowners' Ass'n, Inc. v.
                   Stewart Venture, LLC, 129 Nev. „ 300 P.3d 124, 130-31 (2013)
                   (setting forth the standard of review). Accordingly, we
                               ORDER the judgment of the district court AFFIRMED IN
                   PART AND REVERSED IN PART AND REMAND this matter to the
                   district court for proceedings consistent with this order.




                                                                                          J.
                   Gibbons                                     Pickering


                   cc:   Hon. Valerie Adair, District Judge
                         Persi J. Mishel, Settlement Judge
                         Alverson Taylor Mortensen & Sanders
                         Floyd, Skeren & Kelly
                         Pyatt Silvestri & Hanlon
                         Eighth District Court Clerk

SUPREME COURT
       OF
    NEVADA
                                                          5
(0) 1947A c1e44)
