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VINCENT D. HOWARD, State Bar No. 232478 vhoward@howardlawpc.com HOWARD LAW, PC 675 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 l.williamson@thewilliamsonfirm.com WILLIAMSON LAW FIRM, LLC 218 Delaware St. Suite 207 Kansas City, Missouri 64105 Telephone: (816) 256-4150 Facsimile: (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, ) ) ) ) ) ) ) ) ) ) ) ) ) ) CASE NO.: 2:11-cv-02491-KJM-JFM PLAINTIFFS MOTION TO AMEND CERTIFICATION ORDER HON. Kimberly J. Mueller

Plaintiffs, vs. MATTHEW CATE, in his capacity as the Secretary of the California Department of Corrections and Rehabilitation, Defendant.

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 PLAINTIFFS MOTION TO AMEND CERTIFICATION ORDER -1-

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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. Dept 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), affd, 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 Defendants control. The court denied that request, but granted certification to only one facility because Plaintiffs only had the declaration of officers 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 PLAINTIFFS MOTION TO AMEND CERTIFICATION ORDER -3-

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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. (Plaintiffs First Amended Complaint 10) Additionally, the Class is subject to Defendants policies regarding requesting Holiday Time Off. (Plaintiffs 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 Defendants 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, Esquire Vincent 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 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 s/ Lawrence W. Williamson, Jr. Lawrence W. Williamson, Jr. Attorneys for Defendant I hereby certify that on August 22, 2013, I emailed a copy of the foregoing to the following:

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