                       IN THE SUPREME COURT OF THE STATE OF NEVADA


                SOUTHERN NEVADA LABOR                                  No. 65547
                MANAGEMENT COOPERATION
                COMMITTEE, BY AND THROUGH ITS
                TRUSTEES ELVA MELENDEZ, AN
                INDIVIDUAL AND FRANCISCO DEL
                RIO, AN INDIVIDUAL,
                                                                            FILE
                Appellants,                                                 JAN 28 2016
                vs.
                                                                           TRACE K. LINDEMAN
                CLARK COUNTY SCHOOL DISTRICT;                           CLER     - UPREME COURT

                AND CLARK COUNTY BOARD OF                              BY
                                                                             DEPUTY CLERK
                SCHOOL TRUSTEES,
                Respondents.

                                        ORDER OF AFFIRMANCE

                             This is an appeal from a district court order dismissing a
                complaint for lack of standing. Eighth Judicial District Court, Clark
                County; Elissa F. Cadish, Judge.
                             We review questions of standing and statutory construction de
                novo, Arguello v. Sunset Station, Inc., 127 Nev. 365, 368, 252 P.3d 206, 208
                (2011); Citizens for Cold Springs v. City of Reno,   125 Nev. 625, 629, 218
                P.3d 847, 850 (2009), and must determine whether labor-management
                committees have standing to maintain a private action independent of the
                administrative process to enforce public bidding laws under NRS 338.143.
                We affirm.
                             On December 24, 2013, Southern Nevada Labor Management
                Cooperation Committee (LMCC) filed a complaint against Clark County



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                School District (CCSD) for injunctive and declaratory relief.' LMCC
                alleged that CCSD violated provisions of NRS Chapter 338 by painting ten
                different schools without following public bidding or prevailing wage laws.
                Through an employment service, CCSD hired appellants Elva Melendez
                and Francisco Del Rio at an hourly rate of $16.13, instead of the prevailing
                wage, which ranges from $46.64 to $50.16. An LMCC compliance officer
                discovered the work CCSD was performing, which LMCC valued at over
                $100,000. Thereafter, LMCC filed suit against CCSD for failing to open
                the project for qualified bidders and to pay prevailing wages to workers,
                while also moving for a preliminary injunction. CCSD filed a
                countermotion to dismiss for lack of standing arguing that NRS Chapter
                338 does not include a private cause of action, but is, instead, entrusted to
                the enforcement powers of the Labor Commissioner. 2 The district court
                agreed, and dismissed LMCC's complaint. On appeal, LMCC is only
                challenging the district court's dismissal for lack of standing under the
                public bidding requirements, not the prevailing wage laws.


                     "LMCC subsequently amended its complaint to include a writ of
                mandate and/or a writ of prohibition, and for payment of wages.

                      2 Appellantsfiled a notice of supplemental authorities on December
                30, 2015, attaching the final decision of the Labor Commissioner, which
                determined that CCSD violated public bidding and prevailing wage laws,
                and ordered CCSD to pay appellants Melendez and Del Rio $55,282.64
                and $53,685, respectively. The Labor Commissioner also assessed a
                $20,000 administrative penalty against CCSD for its violation of public
                bidding laws and failure to investigate the violation. Appellants suggest
                this decision demonstrates "that the Labor Commissioner cannot protect
                the marketplace, due to her lack of injunction and writ powers, from an
                awarding body's anticompetitive conduct." This argument does not
                persuade us that the administrative remedy afforded to appellants was
                deficient enough for this court to reverse its standing jurisprudence.

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                             The question of standing overlaps with the inquiry into
                whether a party is considered a real party in interest; both questions
                "focus[ ] on the party seeking adjudication rather than on the issues
                sought to be adjudicated." Szilagyi v. Testa, 99 Nev. 834, 838, 673 P.2d
                495, 498 (1983); Arguello, 127 Nev. at 368, 252 P.3d at 208. To qualify as
                a real party in interest under NRCP 17(a), one must possess the right to
                enforce a claim and have "a significant interest in the litigation."   Szilagyi,
                99 Nev. at 838, 673 P.2d at 498; see also NRCP 17(a). To decide if one has
                the right to enforce a claim—meaning a private cause of action exists—
                this court first looks at the plain language of the statute to determine if it
                expressly provides a private cause of action. See Baldonado v. Wynn Las
                Vegas, LLC, 124 Nev. 951, 958, 194 P.3d 96, 100 (2008). If not, this court
                employs the Baldonado factors to determine if an implied private cause of
                action exists. Id. at 958-59, 194 P.3d at 101.
                             The Baldonado factors determine whether in the absence of
                clear, statutory language authorizing a private right of action, one may be
                implied. Id. at 958, 194 P.3d at 100. This court is guided by "the entire
                statutory scheme, reason, and public policy," id. at 958, 194 P.3d at 101,
                which translates into three factors: "(1) whether the plaintiffs are of the
                class for whose [e]special benefit the statute was enacted; (2) whether the
                legislative history indicates any intention to create or to deny a private
                remedy; and (3) whether implying such a remedy is consistent with the
                underlying purposes of the legislative scheme." Id. at 958-59, 194 P.3d at
                101 (internal quotation marks omitted) (alteration in original) (citing Cort
                v. Ash, 422 U.S. 66, 78 (1975) (setting out factors that determine whether
                an implied private right of action exists)).



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                            Here, under the first Baldonado factor, LMCC is not a
                member of the class the statute was enacted to benefit, except to the
                extent the statute was intended to benefit taxpayers generally.          See
                Associated Builders & Contractors, Inc. v. S. Nev. Water Auth.,     115 Nev.
                151, 158, 979 P.2d 224, 229 (1999) ("The purpose of bidding is to secure
                competition, save public funds, and to guard against favoritism,
                improvidence and corruption. Such statutes are deemed to be for the
                benefit of the taxpayers and not the bidders, and are to be construed for
                the public good."); Laborers' Int'l Union of N. Am., Local Union No. 169 v.
                Truckee Carson Irrigation Dist., Docket No. 60528 (Order of Affirmance,
                April 23, 2014) (concluding standing did not exist for union and
                subcontractor to challenge bidding laws based on "potential for
                employment" because it was "speculative, rather than [a] direct and
                substantial interest" and the "purported benefit" of union members
                receiving "future employment is beyond NRS 338.141's zone of interests").
                In this case, LMCC never bid on the project, nor is it capable of bidding.
                LMCC does not represent contractors' interests that would be qualified to
                bid on the project had CCSD opened it up for public bidding. Rather,
                LMCC is claiming that it has been harmed because of potential
                employment and wages employees would have earned had their employer
                been awarded the public contract—a speculative interest this court has
                already rejected. See id.
                            Second, the legislative history under NRS 338.143 reveals an
                intention to deny a private remedy.       See Hearing on S.B. 189 Before the
                Senate Governmental Affairs Comm., 75th Leg., at 23 (Nev., March 18,
                2009) ("Mhere is no statutory recognized private cause of
                action.... There is not in NRS 338."). Moreover, "the absence of an

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                  express provision providing for a private cause of action to enforce a
                  statutory right strongly suggests that the Legislature did not intend to
                  create a privately enforceable judicial remedy."   Baldonado, 124 Nev. at
                  959, 194 P.3d at 101.
                              Finally, under the third factor of Baldonado, implying a
                  private cause of action is inconsistent with the underlying purpose of NRS
                  338.143. This factor's analysis overlaps with the reasoning in the first
                  factor because both discuss that the purpose of the bidding statutes is to
                  protect the public. See Associated Builders, 115 Nev. at 158, 979 P.2d at
                  229. Therefore, implying a private cause of action into NRS 338.143
                  would not serve the underlying purpose of the bidding statutes, but would
                  rather "encourage lengthy and expensive litigation between bidders and
                  public entities. Such litigation could prove costly to public funds and
                  would not serve the public good." Richardson Constr., Inc. v. Clark Cty.
                  Sch. Dist., 123 Nev. 61, 66, 156 P.3d 21, 24 (2007). Consequently, all three
                  Baldonado factors weigh against implying a private cause of action into
                  NRS 338.143.
                              Amicus curiae argue that Associated Builders implicitly grants
                  standing to LMCC. Associated Builders, however, is distinguishable from
                  this case for three reasons. First, in Associated Builders, American
                  Asphalt was a licensed contractor that actually bid on the project, where,
                  in this case, Melendez and Del Rio were painters and, thus, unable to bid
                  on the project. 115 Nev. at 153, 979 P.2d at 226. Second, ABC, a national
                  trade association, sued in conjunction with American Asphalt, which
                  suffered harm and so had standing, along with two American Asphalt
                  workers.   Id.   Here, on the other hand, LMCC is suing on behalf of
                  Melendez and Del Rio as its trustees. Third, American Asphalt and ABC

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                 challenged the use of Southern Nevada Water Authority's adoption of a
                 project labor agreement as a matter of law.      Id. In this case, however,
                 LMCC is claiming harm from a violation of the competitive bidding laws
                 and seeking injunctive relief. Instead of this court being able to address
                 questions as a matter of law, as it did in Associated Builders, id. at 156,
                 979 P.2d at 227, LMCC would require this court to conduct a factual
                 analysis of whether CCSD violated the competitive bidding laws and
                 harmed LMCC. Therefore, Associated Builders does not grant an implicit
                 holding of standing to LMCC.
                             Accordingly, as the district court did not err in dismissing
                 LMCC's complaint for lack of standing, we
                             ORDER the judgment of the district court AFFIRMED.



                                                                    , J.
                                         Hardesty


                                                                                      J.
                 Saitta                                      Pickering



                 cc:   Hon. Elissa F. Cadish, District Judge
                       Ara H. Shirinian, Settlement Judge
                       Christensen James & Martin
                       Kolesar & Leatham, Chtd.
                       McCracken, Stemerman & Holsberry
                       Eighth District Court Clerk




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