Young v. Cate
Filing
84
ORDER signed by Judge Kimberly J. Mueller on 1/7/14 DENYING 70 Motion to amend certification order and GRANTING in part and DENYING in part 77 Motion for Sanctions. Plaintiff's counsel shall file a declaration attesting they have paid defendant's counsel $1,500 and have not passed this cost on to their client within 7 days. (Manzer, C)
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
EASTERN DISTRICT OF CALIFORNIA
10
11
12
RYAN YOUNG, individually and on
behalf of those similarly situated,
Plaintiff,
13
16
ORDER
v.
14
15
No. 2:11-cv-02491-KJM-AC
DR. JEFFREY BEARD,1 in his capacity as
the Secretary of the California Department
of Corrections and Rehabilitation,
Defendant.
17
18
19
Before the court are plaintiff’s motion to amend certification order (ECF 70) and
20
defendant’s motion for sanctions (ECF 77), which the court has decided on the papers. For the
21
reasons below, plaintiff’s motion is DENIED and defendant’s motion is GRANTED in part and
22
DENIED in part.
23
I.
24
ALLEGED FACTS AND PROCEDURAL BACKGROUND
Plaintiff, a corrections officer at Mule Creek State Prison, claims that the
25
California Department of Corrections and Rehabilitation’s (“CDCR”) policy to request time off
26
illegally requires him and other putative class members to work without being paid. (FAC ¶¶ 1-3,
27
28
1
The court effects substitution of Dr. Jeffrey Beard for Matthew Cate, to name the current CDCR
Secretary. FED. R. CIV. P. 25(d).
1
1
13–15.) Plaintiff alleges that all adult CDCR facilities in the state of California utilize this same
2
policy, which requires that Holiday Time Off (“HTO”) request forms be submitted exactly thirty
3
days prior to the holiday requested and exactly thirty minutes prior to the start of the shift on the
4
day the request is submitted. (Id. ¶¶ 13–15.) Plaintiff alleges this policy also requires
5
correctional officers to wear their uniforms as they submit their HTO forms. (Id. ¶ 14.)
6
Moreover, upon arriving at work to submit HTO forms, plaintiff alleges corrections officers are
7
often asked to perform tasks before their assigned work time begins. (Id.) Officers are not paid
8
for this additional time worked. (Id. ¶ 15.)
9
This court granted plaintiff’s motion for conditional certification on February 22,
10
2013. (ECF 58.) The court defined the conditional class as rank-and-file correctional officers
11
currently employed at Mule Creek State Prison. (Id. at 9.) The court approved the parties’ class
12
notice procedures on March 1, 2013 (ECF 59), and plaintiff filed dozens of opt-in forms signed
13
by correctional officers currently working at Mule Creek on June 11, 2013 (ECF 66; ECF 67).
14
Plaintiff now seeks to expand the scope of this conditional class to include “[a]ll current and
15
former Corrections Officers employed by the California Department of Corrections during the
16
relevant time period, who requested holiday time off but were not paid wages during all or part of
17
their employment.” (ECF 70 at 3.)2
18
Plaintiff filed the instant motion to amend certification order on August 22, 2013.
19
Defendant opposed on September 13, 2013 (ECF 72), and plaintiff replied on September 20, 2013
20
(ECF 74). Defendant then filed the instant motion for sanctions on October 1, 2013. (ECF 77.)
21
Plaintiff opposed on October 25, 2013 (ECF 78), and defendant replied on November 1, 2013
22
(ECF 81).
23
/////
24
/////
25
/////
26
27
28
2
Plaintiff has submitted documents in connection with the instant motion (Ex. 3) that this court
already declined to consider due to lack of authentication. (See ECF 58 at 4–5.) The court again
disregards these documents.
2
1
2
3
II.
MOTION TO AMEND CERTIFICATION ORDER
A.
Standard
The parties do not agree on what standard the court should apply to plaintiff’s
4
motion to amend the class certification order. Plaintiff asserts modification is proper under both
5
Federal Rule of Civil Procedure 23(c)(1)(C), which authorizes amendment to traditional Rule 23
6
class action certification orders, and Rule 60(b), which permits a court to vacate a final judgment
7
or order when, among other things, new evidence is discovered. (ECF 70 at 2–3.) Defendant
8
argues neither of these standards applies and urges the court to treat the instant motion as a
9
motion for reconsideration, which defendant argues is disfavored and must be denied when
10
movants attempt to “‘raise arguments or present evidence for the first time when they could
11
reasonably have been raised earlier in the litigation.’” (ECF 72 at 6 (quoting Kona Enters., Inc. v.
12
Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000)).)
13
No clear authority exists on what standard a district court should apply to a motion
14
to modify a conditionally certified class under the Fair Labor Standards Act (“FLSA”). FLSA
15
collective actions are fundamentally different from Rule 23 class actions. See, e.g., Genesis
16
Healthcare Corp. v. Symczyk, __ U.S. __, 133 S. Ct. 1523, 1532 (2013) (“Whatever significance
17
‘conditional certification’ may have in § 216(b) proceedings, it is not tantamount to class
18
certification under Rule 23.”). Moreover, FLSA conditional class certification, by its very nature,
19
is conditional and therefore interlocutory, so Rule 60(b) is inapplicable. Cf. United States v.
20
Martin, 226 F.3d 1042, 1048 n.8 (9th Cir. 2000) (“Rule 60(b). . . applies only to motions
21
attacking final, appealable orders . . . .”).
22
It is clear, however, that the standard applicable to initial conditional certification
23
under the FLSA is more lenient than class certification under Rule 23. Lewis v. Wells Fargo &
24
Co., 669 F. Supp. 2d 1124, 1127 (N.D. Cal. 2009) (“The requisite showing of similarity of claims
25
under the FLSA is considerably less stringent than the requisite showing under Rule 23 of the
26
Federal Rules of Civil Procedure.” (citation and internal quotations marks omitted)). Under Rule
27
23, district judges have an obligation to “define, redefine, subclass and decertify as appropriate in
28
response to the progression of the case from assertion to facts.” Richardson v. Byrd, 709 F.2d
3
1
1016, 1019 (5th Cir. 1983). This is because “the class certification is usually made early in the
2
case,” and therefore “it may become necessary to modify the class definition after further
3
discovery or other events which alter the parameters of the class.” Moeller v. Taco Bell Corp.,
4
No. C 02-5849 MJJ, 2004 WL 5669683, at *1 (N.D. Cal. Dec. 7, 2004) (citation and internal
5
quotations marks omitted). This reasoning applies with even greater force to conditional
6
certification under the FLSA because conditional certification is held to a lower standard and can
7
occur still earlier in a case’s life.
8
9
Here, having previously granted limited conditional class certification, the court
will apply the standard for a motion for reconsideration of an interlocutory order, for two reasons.
10
Cf. Melancon v. Texaco, Inc., 659 F.2d 551, 553 (5th Cir. 1981) (“As long as a district (or an
11
appellate) court has jurisdiction over the case, then (in absence of prohibition by statute or rule), it
12
possesses the inherent procedural power to reconsider, rescind, or modify an interlocutory order
13
for cause seen by it to be sufficient.”). First, both parties agree that plaintiff’s motion is properly
14
granted if it contains new evidence not available at the time plaintiff moved for conditional
15
certification. (See ECF 70 at 3–4 (stating plaintiff will prevail under Rule 60(b) because his
16
evidence is newly discovered and could not be discovered earlier); ECF 72 at 6 (agreeing plaintiff
17
bears this burden but concluding the opposite).) Second, judicial economy is favored if the court
18
is not required to reassess the class parameters based upon evidence plaintiff reasonably could
19
have procured at the time he originally moved for class certification. See Carter v. Variflex, Inc.,
20
No. CV 98-0167 WJR(RNBX), 2000 WL 35789500, at *1 (C.D. Cal. Apr. 18, 2000) (stating
21
while reconsidering an interlocutory order that “[f]or reasons of judicial economy, motions for
22
reconsideration are disfavored”).
23
Local Rule 230(j) provides that a motion for reconsideration may be made if it sets
24
forth the material facts and circumstances demonstrating why reconsideration is being sought,
25
including “why the facts or circumstances were not shown at the time of the prior motion.” L.R.
26
230(j)(4). “To succeed [on a motion for reconsideration], a party must set forth facts or law of a
27
strongly convincing nature to induce the court to reverse its prior decision.” Enriquez v. City of
28
Fresno, No. CV F 10–0581 AWI DLB, 2011 WL 1087149, at *1 (E.D. Cal. Mar. 23, 2011). “A
4
1
motion for reconsideration ‘may not be used to raise arguments or present evidence for the first
2
time when they could reasonably have been raised earlier in the litigation.’” Marlyn
3
Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009) (quoting
4
Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000)) (original emphasis).
5
B.
6
Analysis
Plaintiff argues this court should now conditionally certify a class consisting of
7
former and current rank-and-file corrections officers throughout the state of California. (ECF 70
8
at 3.) Plaintiff asserts this expansion of the class is warranted based upon the declaration of Stella
9
Miles. (Id. at 4.) Miles states that she has been employed by defendant since April 1995 and has
10
worked at Valley State Prison for Women and California State Prison, Chowchilla.3 (Decl. of
11
Stella Miles ¶ 2, Ex. 1, ECF 70.) While working at these two facilities, Miles avers she was
12
subject to the holiday time off (“HTO”) policy that required her to submit time off requests in
13
uniform prior to her shift, during which time she often was required to work without pay. (Id.
14
¶¶ 3-4.) Plaintiff contends this information only became available during the notice and opt-in
15
period after plaintiff’s motion for conditional certification was granted because “Plaintiffs did not
16
and cannot solicit clients, thus Plaintiffs had no way of uncovering this information without the
17
formal notice process.” (ECF 70 at 4.) The Miles declaration supports plaintiff’s proposed class,
18
plaintiff argues, because it proves plaintiff needs access to the entire correctional officer
19
workforce, as plaintiff has no way of knowing how many other officers currently employed at
20
other prisons previously worked at one of the three prisons plaintiffs have discovered so far that
21
utilize the HTO policy nor which other prisons engage in the unlawful HTO procedures. (Id.)
22
Defendant argues plaintiff does not meet his burden on a motion for
23
reconsideration. (ECF 72 at 7.) Defendant asserts plaintiff bears the burden to show why he
24
could not have discovered with reasonable diligence the Miles declaration at the time he first
25
3
26
27
28
The typed declaration states “California State Prison, Sacramento,” but Sacramento is
crossed out and “Chowchilla, CA” is written above it along with plaintiff’s initials. (Miles Decl.
¶ 2.) Therefore, the court understands Miles to have worked at California State Prison in
Chowchilla, not in Sacramento, despite Miles referring again in the next paragraph of her
declaration to her employment at “California State Prison, Sacramento.” (Id. ¶ 3.)
5
1
moved for conditional certification. (Id. at 8.) Defendant contends plaintiff had the benefit of
2
much discovery, including 2,600 pages of documents encompassing the written procedures of
3
approximately thirty adult correctional institutions, when moving originally. (Id. at 9.) Even if
4
the court considered the Miles declaration, defendant argues, it does not support conditional
5
certification as a matter of law, it lacks foundation, and Miles lacks sufficient knowledge. (Id. at
6
9–15.) Finally, defendant asserts that amending the certification order would unduly prejudice
7
defendant. (Id. at 15–16.)
8
9
The court first addresses whether plaintiff has borne his burden by demonstrating
he could not reasonably have produced the Miles declaration when he first moved for conditional
10
certification. Then the court turns to whether the Miles declaration supports expanding the
11
definition of the conditionally certified class. As discussed below, the court finds plaintiff has
12
borne his burden but concludes the declaration is not sufficient to support expanding the
13
conditionally certified class.
14
1.
15
Plaintiff has demonstrated why he could not reasonably have produced the Miles
16
declaration when he moved initially for conditional certification. While plaintiff had conducted
17
some discovery prior to moving for certification, that discovery, as defendant concedes, largely
18
produced only formal written policies at defendant’s institutions. (See ECF 72 at 9.) In contrast,
19
the declarations of corrections officers at Mule Creek, which supported the original conditional
20
certification, suggest that Mule Creek follows an unwritten procedure that, according to plaintiff,
21
violates the law. (See Exs. E–O ¶¶ 3–4, ECF 45-5.) The Miles declaration states that a similar
22
HTO procedure existed at two other institutions. (Miles Decl. ¶¶ 3–4.) Moreover, in defendant’s
23
opposition to the original certification motion, defendant resisted plaintiff’s request that defendant
24
provide the names, addresses, and other information on correctional officers because these
25
officers are afforded strong privacy protections under California law. (ECF 48 at 19 (citing CAL.
26
PENAL CODE §§ 832.7, 832.8; CAL. EVID. CODE §§ 1043, 1046).) Plaintiff represents he could not
27
have produced this declaration from Miles, a correctional officer, without the formal notice
28
process that took place after the conditional certification of the original class. (ECF 70 at 4.)
Burden
6
1
This assertion is credible and is enough to meet his burden such that the court can grant
2
reconsideration to consider plaintiff’s request to expand the present class.
3
2.
4
Expanding the Conditional Class
a.
FLSA Class Certification Standard
5
Most courts use a two-step approach to certification of a FLSA collective action.
6
First, the court undertakes an initial inquiry, based primarily on the pleadings and any affidavits
7
submitted by the parties, to determine whether plaintiff is similarly situated to the proposed class
8
so that notice may be sent to the potential class members. Troy v. Kehe Food Distribs., Inc.,
9
276 F.R.D. 642, 649 (W.D. Wash. 2011); Leuthold v. Destination Am., 224 F.R.D. 462, 466–67
10
(N.D. Cal. 2004). At this first stage, “the Court requires little more than substantial allegations,
11
supported by declarations or discovery, that the putative class members were together the victims
12
of a single decision, policy, or plan.” Troy, 276 F.R.D. at 649 (internal quotation marks, citations
13
omitted). Second, after class members have opted in, the court employs a stricter standard in
14
determining whether a collective action is warranted and whether the ultimate settlement is fair.
15
Knipsel v. Chrysler Grp., LLC, No. 11-11886, 2012 WL 553722, at *1 (E.D. Mich. Feb. 21,
16
2012); Khait v. Whirlpool Corp., No. 06-6381 (ALC), 2010 WL 2025106, at *7 (E.D.N.Y.
17
Jan. 20, 2010).
18
Because plaintiff is moving to expand conditional certification, this motion is
19
governed by the more lenient standard under step one. Thus, the court’s inquiry is whether the
20
Miles declaration is sufficient proof that plaintiff’s proposed additional members are similarly
21
situated by being subject to a single policy.
22
b.
The Miles Declaration
23
The relevant portion of Miles’s declaration provides:
24
2.
Defendant has employed me since 04/1995. I worked at
Valley State Prison For Women and California State Prison,
Chowchilla, CA. I am employed as a correctional officer. My
duties subject me to the uniform policies and procedure of the
Defendant.
25
26
27
/////
28
/////
7
1
2
3
4
3.
During my course of employment at Valley State Prison For
Women and California State Prison, Sacramento. I have needed to
utilize Holiday Time Off (“HTO”). In order to utilize HTO, I have
to wait until less than thirty days to make my request. Then, I have
to come in before my shift, complete the form and submit it prior to
beginning my shift. This requires me to dress in my work uniform
in the morning. I am required to follow all instructions from
supervisors and all policies during this time.
5
6
7
4.
This policy has directly affected me. It requires me to
rearrange my daily activities whenever I need to make a request.
Often times during this period, other work related issues arise and I
am required to address those before the start of my official shift.
However, I am not compensated for this work.
8
9
10
(Miles Decl. ¶¶ 2–4.)
Plaintiff’s assertion that this single declaration is sufficient to support conditional
11
certification of a class of all former and current rank-and-file corrections officers throughout
12
California strains credulity. First, this court has already held that plaintiff may seek prospective
13
relief only. (ECF 16.) Therefore, the class may not consist of former corrections officers.
14
Second, the declaration purports to speak to the policies at only two of defendant’s facilities; no
15
evidence is provided about the dozens of other facilities throughout the state. As this court has
16
already held, the scope of such a declarant’s knowledge is insufficient as a matter of law to
17
support a state-wide class. (ECF 58 at 7–8 (“However, the officers at a single correctional facility
18
cannot be presumed to have knowledge of the policies at dozens of facilities across the state,
19
without more evidence than plaintiff provides here.”).)
20
Nor is Miles’s declaration sufficient to support a narrower class of officers at
21
Valley State Prison for Women and at California State Prison, Chowchilla. First, California State
22
Prison in Chowchilla is not one of the facilities plaintiff alleges to be violating law in his first
23
amended complaint, which is the operative complaint. (See FAC ¶ 11.) Therefore, California
24
State Prison in Chowchilla is not properly a part of this action. Second, Miles provides no other
25
information in her declaration indicating when she worked at Valley State Prison for Women or
26
whether the HTO policy continues there. Accordingly, Miles’s averments lack foundation and
27
scope to support the assertion that Valley State, like Mule Creek, currently harbors an informal
28
8
1
HTO policy that allegedly violates the law.4 See Fernandez v. Wells Fargo Bank, N.A., No. 12
2
CIV. 7193 PKC, 2013 WL 4540521, at *17 (S.D.N.Y. Aug. 28, 2013) (denying conditional
3
certification in part because plaintiffs declarations were deficient). Plaintiff has not demonstrated
4
corrections officers at Valley State are similarly situated to those at Mule Creek. See Troy, 276
5
F.R.D. at 649.
6
7
Plaintiff’s motion is DENIED.
III.
8
MOTION FOR SANCTIONS
A.
9
Standard
Under Federal Rule of Civil Procedure 11, by signing a document, an attorney
10
certifies that (1) he has read the pleadings or motions he filed and (2) the pleading or motion is
11
“well-grounded in fact,” has a colorable basis in law, and is not filed for an improper purpose.
12
FED. R. CIV. P. 11; accord Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 393 (1990). The
13
Rule requires that the lawyer undertake “an inquiry reasonable under the circumstances” to
14
determine whether his legal contentions are “warranted by existing law” and that his factual
15
claims either “have evidentiary support or, if specifically so identified, will likely have
16
evidentiary support after a reasonable opportunity for further investigation.” FED. R. CIV. P.
17
11(b). When considering apparent Rule 11 violations, the court utilizes an objective standard of
18
reasonable inquiry, which does not require a finding of bad faith. Chambers v. NASCO, Inc.,
19
501 U.S. 32, 47 (1991).
20
B.
21
Analysis
Defendant argues plaintiff’s motion to amend the conditional certification order is
22
frivolous, because it is not supported by fact or law, for four reasons. (ECF 77-2 at 1.) First,
23
plaintiff’s motion seeks to amend the certification order to include more than thirty-two additional
24
correctional institutions based upon documents previously submitted and disregarded by this
25
court and upon a single declarant with no personal knowledge as to the policies at these additional
26
4
27
28
The court denies defendant’s request to strike paragraphs three and four of Miles’s declaration
because they are immaterial and lack foundation. The information contained therein is material
and the attack on foundation here goes to weight, not admissibility. Bisno v. United States, 299
F.2d 711, 715 (9th Cir. 1961).
9
1
institutions. (Id.) Second, the Miles declaration is not new evidence because it could have been
2
discovered with reasonable diligence prior to plaintiff’s original motion to certify. (Id.) Third,
3
plaintiff, in contravention of this court’s prior orders, again seeks to certify a class consisting of
4
former correctional officers. (Id.) Fourth, plaintiff admits he does not have sufficient evidence
5
entitling him to statewide conditional certification by premising his motion in part on this lack of
6
knowledge. (Id.) Accordingly, defendant argues plaintiff brought the motion for improper
7
purposes and therefore defendant is entitled to attorney’s fees to make defendant whole. (Id. at
8
14–16.)
9
Plaintiff counters that the premise of defendant’s motion, that the Miles
10
declaration is not newly discovered evidence, is incorrect. (ECF 78 at 3.) Moreover, plaintiff
11
contends he brought his motion for proper purposes: to seek extension of the class in good faith
12
and to preserve his record for appeal. (See id. at 5.) In sum, plaintiff asserts, defendant’s motion
13
is nothing more than an additional opposition to the merits of plaintiff’s motion to amend
14
certification order. (Id.)
15
Having reviewed the parties’ filings, the court finds a sanction is warranted based
16
upon plaintiff’s attempt, in contravention of this court’s prior orders, to certify a class consisting
17
of former correctional officers and officers in over thirty-two additional facilities without
18
supporting evidence. (See ECF 16 (permitting plaintiff to seek prospective relief only); ECF 58
19
at 7–8 (“[O]fficers at a single correctional facility cannot be presumed to have knowledge of the
20
policies at dozens of facilities across the state, without more evidence than plaintiff provides
21
here.”).) Plaintiff’s argument that he needs to preserve his record for appeal is also frivolous.
22
Plaintiff has already made his record; raising issues already decided without support warrants
23
sanctions. See Buster v. Greisen, 104 F.3d 1186, 1190 (9th Cir. 1997), overruled on other
24
grounds by Fossen v. Blue Cross & Blue Shield of Mont., Inc., 660 F.3d 1102, 1121 (9th Cir.
25
2011) (“[S]uccessive complaints based upon propositions of law previously rejected may
26
constitute harassment under Rule 11.” (citation and internal quotations marks omitted)).
27
The court finds that sanctions are not warranted on any other ground. As
28
concluded above, plaintiff has demonstrated why he could not reasonably have produced the
10
1
Miles declaration when he moved initially for conditional certification. Moreover, plaintiff’s
2
attempt to expand the class to two other facilities based upon the Miles declaration, while not
3
successful, was not frivolous.
4
The court finds a sanction in the form of attorney’s fees payable by plaintiff’s
5
counsel to defendant’s counsel is justified. See Islamic Shura Council of S. Cal. v. F.B.I.,
6
725 F.3d 1012, 1014 (9th Cir. 2013) (attorney’s fees may be granted under Rule 11). Defendant
7
seeks a sanction in the form of attorney’s fees defendant incurred in opposing plaintiff’s motion
8
and in preparing the instant motion for sanctions. (ECF 77-2 at 20.) Defendant attests these fees
9
amount to more than $9,579.50. (Id.) While defendant’s counsel claims they have billed at least
10
$9,579.50 in opposing plaintiff’s motion and in preparing the instant motion for sanctions (Decl.
11
of Jennifer M. Garten ¶ 13, ECF 77-1), defendant’s declaration in support of their fee amount
12
does not disaggregate fees, for example, those incurred by their opposition to plaintiff’s motion
13
from those incurred by their motion for sanctions.
14
Because only part of plaintiff’s motion was frivolous, defendant would have
15
undertaken much the same effort to oppose it regardless of the frivolity. On balance, the court
16
finds a sanction in the amount of $1,500 in attorney’s fees, payable from plaintiff’s counsel to
17
defendant’s counsel, is justified.
18
19
20
Defendant’s motion for sanctions is GRANTED in part and DENIED in part.
IV.
CONCLUSION
For the foregoing reasons, plaintiff’s motion to amend certification order (ECF 70)
21
is DENIED, and defendant’s motion for sanctions (ECF 77) is GRANTED in part and DENIED
22
in part. Plaintiff’s counsel shall file a declaration within seven days of this order attesting they
23
have (1) paid defendant’s counsel $1,500; and (2) have not passed this cost on to their client.
24
25
IT IS SO ORDERED.
DATED: January 7, 2014.
26
27
UNITED STATES DISTRICT JUDGE
28
11
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?