rule 60(b) motion for conditional certification (young)

7/27/2019 Rule 60(b) Motion for Conditional Certification (Young)

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PLAINTIFFS‟ MOTION TO AMEND CERTIFICATION ORDER

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VINCENT D. HOWARD, State Bar No. [email protected]

HOWARD LAW, PC675 Anton Boulevard, First Floor

Costa Mesa, CA 92626

Telephone: (800) 872-5925 Facsimile: (888) 533-7310

www.HowardLawPC.com

LAWRENCE W. WILLIAMSON, JR., State Bar No. 21282

[email protected] LAW FIRM, LLC

218 Delaware St. Suite 207

Kansas City, Missouri 64105

Telephone: (816) 256-4150Facsimile: (913) 535-0736

www.thewilliamsonfirm.com

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

RYAN YOUNG, individually and on behalf of those similarly situated,

Plaintiffs,

vs.

MATTHEW CATE, in his capacity as the

Secretary of the California Department of

Corrections and Rehabilitation,

Defendant.

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CASE NO.: 2:11-cv-02491-KJM-JFM

PLAINTIFFS‟ MOTION TO AMEND

CERTIFICATION ORDER

HON. Kimberly J. Mueller

PLAINTIFFS’ MOTION TO AMEND CERTIFICATION ORDER

COMES NOW Plaintiff, by and through his counsel of record, Vincent Howard of

Howard Law P.C. and Lawrence W. Williamson, Jr. of Williamson Law Firm, LLC, and

pursuant to 29 U.S.C. § 216, moves this Court for an Order conditionally certifying a class of

the following:

A. Introduction

mailto:[email protected]


http://www.howardlawpc.com/







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This court has conditionally certified a class limited to one (OFFICIAL LANGUAGE

HERE).

After discovering new evidence, Plaintiffs move this Court to amend the class definitions to as

follows:

All current and former Corrections Officers employed by the

California Department of Corrections during the relevant time period, who requested holiday time off but were not paid wages

during all or part of their employment.

B. Legal Standard

Rule 23(c)(1)(C) of the Federal Rules of Civil Procedure provides simply that “[a]n

order that grants or denies class certification may be altered or amended before final judgment.”

Fed. R. Civ. P. 23(c)(1)(C). This Court has previously stated that “[a] district court has „broad

discretion in determining whether the action may be maintained as a class action,‟ . . . and so

long as the court considers the proper criteria, it is permitted to exercise such discretion.” Doe v.

Lally, 467 F. Supp. 1339, 1345 (D. Md. 1979) (citations omitted). As this court previously held,

“[a] federal district court possesses the same broad discretion in determining whether to modify

or even decertify a class.” Wu v. MAMSI Life & Health Ins. Co., 256 F.R.D. 158, 162 (D. Md.

2008) (citing Gen. Tel. Co. of the Sw. v. Falcon, 457 U.S. 147, 160 (1982)). In fact, a federal

district court judge has an affirmative obligation to ensure that the class membership remains at

all times consistent with the underlying facts and procedural posture of the case. See Richardson

v. Byrd , 709 F.2d 1016, 1019 (5th Cir. 1983).

Additionally, modification is appropriate under Rule 60 (b)(2). Federal Rule of Civil

Procedure 60(b) states that a court “may relieve a party or its legal representative from a final

judgment, order, or proceeding” for any of six enumerated reasons. Under Rule 60(b)(2), newly

discovered evidence is grounds to modify a standing order.

Prior to the application of the rules, it should be noted that it is not clear on whether

Rule 60(b) or Rule 23(c)(1) applies as the conditional certification process is a hybrid of Rule

23. See, e.g., Grayson v. K Mart Corp., 79 F.3d 1086, 1096 n.12 (11th Cir.1996)(“It is clear that




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the requirements for pursuing a § 216(b) class action are independent of, and unrelated to, the

requirements for class action under Rule 23 of the Federal Rules of Civil Procedure.”); Bayles v.

American Med. Response of Colo., Inc., 950 F. Supp. 1053, 1067 (D. Colo. 1996)(“Despite the

unpredictability of an ad hoc approach, I see no basis to conclude that the paradigm of Rule 23

can be engrafted upon § 216(b).”). Regardless of the legal standard, the same result applies.

C. Analysis

Plaintiff initially moved to certify:

All current and former Corrections Officers employed by

the California Department of Corrections during the

relevant time period, who requested holiday time off but

were not paid wages during all or part of their employment.

To determine the propriety of class certification and related motions to serve notice, courts

analyze two essential issues: whether potential plaintiffs are similarly situated concerning “job

requirements” and “pay provisions.” Dybach v. Fla. Dep’t of Corr ., 942 F.2d 1562, 1567-68

(11th Cir. 1991). Different courts have gone about making this determination in different ways.

For example, some courts have examined whether the employees at issue were “victims of a

single decision, policy, or plan.” Bayles ,950 F. Supp. at 1066-67; See also Brooks v. Bellsouth

Telecomms., Inc., 164 F.R.D. 561 (N.D. Ala. 1995), aff‟d, 114 F.3d 1202 (11th Cir. 1997).

Other courts have assessed whether potential plaintiffs work in the same location, are making

similar claims and are seeking substantially the same relief. See, e.g., De Asencio v. Tyson

Foods, Inc., 130 F. Supp. 2d 660, 662 (E.D. Pa. 2001).

Here, Plaintiffs argued for certification at each for Corrections Officers at each of the

adult facilities under Defendant‟s control. The court denied that request, but granted

certification to only one facility because Plaintiffs only had the declaration of officer‟s from

such facility.

During the notice and opt-in period, Plaintiffs learned that the same Holiday Time Off

Policy is implemented in two other facilities that this employee actually worked in.

(_________). NAME worked in FACILITY A from DATE to DATE and at FACILITY B from




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DATE to DATE. Thus, Plaintiffs now have additional and direct proof that the policy was

implemented in other facilities. This information was not available to Plaintiffs prior to filing

motion for conditional certification and Plaintiffs did not and can not solicit clients, thus,

Plaintiffs had no way of uncovering this information without the formal notice process. Now the

question becomes: what does this new evidence mean to the current process?

The revelation of the information proves that Plaintiffs need access to the entire

Correction Officer workforce. We have no way of knowing how many other officers currently

employed at other facilities previously worked at one of the three identified facilities. Moreover,

we do not know what other facilities engage in the HTO practice that deprives California

workers of rightfully due wages. Without this notice, there may be hundreds or thousands of

workers who may have rights and will be unaware of their rights.

Additionally, the declaration also proves that there are putative class members were

subject to a single illegal policy, plan or decision.” Leuthold v. Destination America, Inc., 224

F.R.D. 462, 468 (N.D. Cal. 2004).; see also Adams, 242 F.R.D. at 536. This declaration

provides a “factual basis beyond the mere averments in their complaint for the class

allegations.” Adams v. Inter-Con Security Sys., Inc., 242 F.R.D. 530, 536 (N.D. Cal. 2007)

(internal quotes and citation omitted); Morton v. Valley Farm Transport, Inc., 2007 WL

1113999, *2 (N.D. Cal. April 13, 2007) (describing burden as “not heavy” and requiring

plaintiffs to merely show a “reasonable basis for their claim of class-wide” conduct) (internal

quotes and citation omitted); Stanfield v. First NLC Financial Serv., LLC , 2006 WL 3190527, *

2 (N.D. Cal. Nov. 1, 2006) (holding that the plaintiffs “must be generally comparable to those

they seek to represent.”). Courts usually grant conditional class certification at this stage.

Adams, 242 F.R.D. at 536 (“The usual result is conditional class certification.”); see also

Stanfield , 2006 WL 3190527, * 2 (“The standard is lenient, and conditional collective action is

usually granted.”). Discovery is still not complete, and “the party opposing the certification




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may move to decertify the class once discovery is complete.” Adams, 242 F.R.D. at 536 (citing

Leuthold , 224 F.R.D. at 467).

With the new evidence and applying the lenient standard applicable to the first step,

Plaintiffs have met their burden to show that Plaintiffs are similarly situated and that notice is

appropriate. First, Plaintiffs allege in their Complaint that the same employer employs them.

(Plaintiff‟s First Amended Complaint ¶ 10) Additionally, the Class is subject to Defendant‟s

policies regarding requesting Holiday Time Off. (Plaintiff‟s First Amended Complaint ¶ 13;

Exhibit 1, Exhibit 3, Exhibits ___ -___) Third, Plaintiffs are providing evidence that the HTO

policy has been implemented in multiple facilities. (DECLARATION). The only questions

remain are how many facilities and how many people have been subjected to this policy during

the Relevant Time Period. The only way to faithfully answer these questions is by expanding

notice to all of the facilities under Defendant‟s care and control.

D. Conclusion

For all of the foregoing reasons, this Court should conditionally certify this action as a

FLSA representative action on behalf of a class of all current and former Corrections Officers

employed by the California Department of Corrections during the relevant time period, who

requested holiday time off but were not paid wages during all or part of their employment,

authorize Plaintiffs‟ counsel to issue the notice that is attached to this motion and to send a

follow-up postcard to any class members who have not responded thirty days after the mailing

of the initial notice, and require Defendant to post the attached notice of this lawsuit and

consents to sue in a conspicuous location in the workplace. The Court should also order

Defendant to provide Plaintiffs‟ counsel with the last known addresses of all putative class

members and the telephone number, date of birth, and last four digits of the social security

number of any potential class members whose notice is returned by the post office, so that

Plaintiffs‟ counsel may provide effective notice to the class.




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Respectfully Submitted,

/s/ Vincent D. Howard, EsquireVincent D. Howard

Greg Alumit

HOWARD LAW, PC

/s/ Lawrence W. Williamson, Jr., Esquire

(as authorized on December 27, 2011)

Lawrence W. Williamson, Jr.WILLIAMSON LAW FIRM, LLC

Attorneys for Plaintiff Young and Class

CERTIFICATE OF SERVICE

I hereby certify that on August 22, 2013, I emailed a copy of the foregoing to the

following:

Attorneys for Defendant

s/ Lawrence W. Williamson, Jr.

Lawrence W. Williamson, Jr.

rule 60(b) motion for conditional certification (young)

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