Owino v. CoreCivic, Inc.

• Court: District Court, S.D. California
• Decided: January 13, 2021
• Docket: 3:17-cv-01112
• Status: Unknown

Opinion

1 2

8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 SYLVESTER OWINO and JONATHAN Case No.: 17-CV-1112 JLS (NLS) GOMEZ, on behalf of themselves and all 12 others similarly situated, ORDER DENYING 13 DEFENDANT’S MOTION Plaintiffs, FOR RECONSIDERATION 14 v. 15 (ECF No. 181) CORECIVIC, INC., a Maryland 16 corporation, 17 Defendant. 18 CORECIVIC, INC., 19 Counter-Claimant, 20 v. 21 SYLVESTER OWINO and JONATHAN 22 GOMEZ, on behalf of themselves and all 23 others similarly situated, 24 Counter-Defendants. 25

26 Presently before the Court is Defendant and Counter-Claimant CoreCivic, Inc.’s 27 (“Defendant”) Motion for Reconsideration (“Mot.,” ECF No. 181), as well as the 28 Declaration of Nicholas D. Acedo in support thereof (“Acedo Decl.,” ECF No. 182), 1 Plaintiffs and Counter-Defendants Sylvester Owino and Jonathan Gomez’s (collectively, 2 “Plaintiffs”) opposition thereto (“Opp’n,” ECF No. 188), and Defendant’s Reply in support 3 thereof (“Reply,” ECF No. 190). The Court vacated the hearing on the Motion and took it 4 under submission pursuant to Civil Local Rule 7.1(d)(1). See ECF No. 189. Having 5 carefully considered the Parties’ arguments, the evidence, and the law, the Court DENIES 6 Defendant’s Motion. 7 BACKGROUND 8 The Court incorporates by reference the factual background as detailed in the Court’s 9 April 1, 2020 Order, see ECF No. 179 (the “Order”) at 2–4. 10 On April 1, 2020, the Court issued the 59-page Order, denying without prejudice 11 Plaintiffs’ motion for partial summary judgment, denying Defendant’s motion for 12 judgment on the pleadings, denying as moot Plaintiffs’ motion to exclude, and granting in 13 part and denying in part Plaintiffs’ motion for class certification. See generally Order. The 14 Court certified Plaintiffs’ proposed California and National Forced Labor Classes in their 15 entirety and Plaintiffs’ proposed California Labor Law Class as to the causes of action for 16 failure to pay minimum wage, failure to provide wage statements for actual damages, 17 failure to pay compensation upon termination, and imposition of unlawful conditions of 18 employment. See id. at 59. 19 On April 15, 2020, Defendant filed the present Motion, seeking reconsideration of 20 several portions of the Order. 21 LEGAL STANDARD 22 Federal Rule of Civil Procedure 59(e) permits a party to move a court to alter or 23 amend its judgment. In the Southern District of California, a party may apply for 24 reconsideration “[w]henever any motion or any application or petition for any order or 25 other relief has been made to any judge and has been refused in whole or in part.” CivLR 26 7.1(i)(1). The moving party must provide an affidavit setting forth, inter alia, “what new 27 or different facts and circumstances are claimed to exist which did not exist, or were not 28 shown, upon such prior application.” Id. 1 “A district court may grant a Rule 59(e) motion if it ‘is presented with newly 2 discovered evidence, committed clear error, or if there is an intervening change in the 3 controlling law.’” Wood v. Ryan, 759 F.3d 1117, 1121 (9th Cir. 2014) (internal quotation 4 marks omitted) (quoting McDowell v. Calderon, 197 F.3d 1253, 1255 (9th Cir. 1999) (en 5 banc)) (emphasis in original). “Clear error or manifest injustice occurs when ‘the 6 reviewing court on the entire record is left with the definite and firm conviction that a 7 mistake has been committed.’” Young v. Wolfe, CV 07-03190 RSWL-AJWx, 2017 WL 8 2798497, at *5 (C.D. Cal. June 27, 2017) (quoting Smith v. Clark Cnty. Sch. Dist., 727 F.3d 9 950, 955 (9th Cir. 2013)). 10 Reconsideration is an “extraordinary remedy, to be used sparingly in the interests of 11 finality and conservation of judicial resources.” Kona Enters., Inc. v. Estate of Bishop, 229 12 F.3d 877, 890 (9th Cir. 2000). Ultimately, whether to grant or deny a motion for 13 reconsideration is in the “sound discretion” of the district court. Navajo Nation v. Norris, 14 331 F.3d 1041, 1046 (9th Cir. 2003) (citing Kona Enters., 229 F.3d at 883). A party may 15 not raise new arguments or present new evidence if it could have reasonably raised them 16 earlier. Kona Enters., 229 F.3d at 890 (citing 389 Orange St. Partners v. Arnold, 179 F.3d 17 656, 665 (9th Cir. 1999)). 18 ANALYSIS 19 Defendant contends that the Order “overlooked or misapprehended several 20 arguments and facts, resulting in clear error.” Mot. at 1. Broadly, Defendant asserts: (1) 21 the Court misapprehended Defendant’s challenge to the Court’s personal jurisdiction over 22 the National Forced Labor Class, see id. at 2–7; (2) the Court impermissibly reversed the 23 Parties’ burdens in concluding that there was “significant proof” of a class-wide policy of 24 forced labor, see id. at 7–19; (3) the class period for the California Forced Labor Class 25 must be narrowed to reflect the appropriate statute of limitations, see id. at 19–20; and (4) 26 the Court “overlooked Plaintiffs’ failure to analyze commonality and predominance” for 27 / / / 28 / / / 1 the California Labor Law Class claims, see id. at 20–25. The Court will address each of 2 these arguments, and any sub-arguments, in turn.1 3 I. Personal Jurisdiction over the National Forced Labor Class 4 First, Defendant asserts that the Court misapprehended its argument regarding 5 personal jurisdiction, “which is that a personal jurisdiction defense to a putative class 6 members’ claims cannot be available prior to class certification because ‘[a] class 7 complaint is filed only by a named plaintiff or plaintiffs,’ and ‘[i]t does not become a class 8 action until certified by the district court.’” Mot. at 3 (citations omitted). Because of this, 9 Defendant claims “there is no legal basis to raise a personal jurisdiction challenge to 10 putative class claims before [certification].” Id. (citations omitted). Defendant points to 11 the recent decisions Molock v. Whole Foods Market Group, Incorporated, 952 F.3d 293 12 (D.C. Cir. 2020), and Cruson v. Jackson National Life Insurance Company, No. 18-40605, 13 2020 WL 1443531 (5th Cir. Mar. 25, 2020), for the proposition that personal jurisdiction 14 challenges are not available prior to class certification and thus not subject to the waiver 15 principles of Federal Rules of Civil Procedure 12(g) and (h). See Mot. at 4–7. 16 Plaintiffs argue that the Court should deny reconsideration of the personal 17 jurisdiction ruling. First, Plaintiffs posit that, procedurally, Defendant only seeks 18 reconsideration of the Court’s certification order, but this argument concerns Defendant’s 19 motion for judgment on the pleadings rather than the motion for class certification, 20 rendering this challenge improper. See Opp’n at 4–5. Second, Plaintiffs claim that 21 22 1 The Court notes that, in its Reply, Defendant raises an entirely new request that the Court “modify” and/or clarify the scope of the Forced Labor Classes. See Reply at 6–7. Defendant claims these classes 23 should contain “only non-VWP workers,” “[a]lthough the proposed class definition includes detainees 24 who were ‘paid or unpaid.’” Id. at 6. Although Defendant argues that “[c]larification now is critical,” id., consistent with the weight of authority in the Ninth Circuit and this District, the Court declines to address 25 an argument raised for the first time on reply. See Autotel v. Nev. Bell Tel. Co., 697 F.3d 846, 852 n.3 (9th Cir. 2012) (“‘[A]rguments raised for the first time in a reply brief are waived.’”) (alteration in 26 original) (quoting Turtle Island Restoration Network v. U.S. Dep’t of Commerce, 672 F.3d 1160, 1166 n.8 (9th Cir. 2012)); United States v. Boyce, 148 F. Supp. 2d 1069, 1085 (S.D. Cal. 2001), amended (Apr. 27, 27 2001) (collecting cases declining to consider arguments first raised in reply briefs and “noting that 28 considering arguments raised for first time in reply brief deprives opposing party of adequate opportunity 1 Defendant does not show that the Court committed clear error or misapprehended 2 Defendant’s argument. See id. at 5. Plaintiffs point out that, during oral argument, 3 Defendant stated, as to the waiver issue, “[t]here’s cases on both sides, admittedly, but what 4 I think that that allows, what I think that gives you is the discretion. It gives you discretion. 5 It’s not a hard-and-fast rule.” Id. at 6 (citing ECF No. 159 (“Tr.”) at 40:20–41:8) (emphasis 6 and internal quotation marks omitted). If the Court had discretion in deciding the issue, its 7 decision was not clearly erroneous. Id. Plaintiffs also claim that Defendant’s argument 8 that the defense was “unavailable,” but that Defendant also preserved it by asserting it in 9 its Answer, illustrates the flaws in Defendant’s argument. Id. at 7–8. If the defense was 10 available to preserve, it was available to assert in Defendant’s pre-answer motion, and 11 therefore was waived by Defendant’s failure to do so. Id. Even if the defense could have 12 been preserved in the Answer, Defendant did not, because it admitted the personal 13 jurisdiction allegations in its original answer. Id. at 8–9. Moreover, “[Defendant’s] 14 argument fails to appreciate the distinction between when a defense is available to a 15 defendant and when the defense is ripe for adjudication,” a distinction addressed in the 16 Order. Id. at 9 (emphasis in original). Plaintiffs argue that Molock is inapposite, as there, 17 the defendant raised the jurisdictional issue in its pre-answer motion and therefore 18 preserved it. Id. Plaintiffs assert that Cruson does not warrant reconsideration, given that 19 it is not controlling authority, it departs from the view of a majority of district courts 20 considering the waiver issue, its reasoning is flawed, and it is inapposite given Defendant’s 21 admission to personal jurisdiction here. Id. at 9–11. Plaintiffs invite the Court to consider 22 the recent decision in Mussat v. IQVIA, Incorporated, 953 F.3d 441 (7th Cir. 2020), “[i]f 23 the Court is inclined to accept CoreCivic’s invitation to follow non-binding authority.” 24 Opp’n at 11. 25 In its Reply, Defendant argues that Plaintiffs’ procedural argument is “frivolous.” 26 Reply at 1. Moreover, Defendant contends that it “has consistently maintained that a 27 personal-jurisdiction challenge to the putative class members’ claims is not available until 28 and unless the class is certified,” Reply at 2 (citation omitted) (emphasis in original), and 1 the statement from oral argument quoted by Plaintiffs was merely an argument “in the 2 alternative” that there is no “‘hard-and-fast’ waiver rule,” id. (citation omitted). Defendant 3 argues that Plaintiffs “avoid entirely, however, the crux of CoreCivic’s argument that, until 4 and unless the class is certified, there is no ‘legal basis’ to raise the defense, and therefore 5 it was not ‘available’ at that time for purposes of Rule 12(g)(2),” thereby “conced[ing] that 6 neither the Court’s Order nor McCurley and its progeny have addressed this argument.” 7 Id. at 1–2 (citation omitted). 8 Although the Court would not go so far as to call the argument “frivolous,” the Court 9 agrees that Plaintiffs’ procedural argument is not compelling, and therefore the Court will 10 not deny Defendant’s Motion as to this point on that ground. Nonetheless, the Court 11 concludes that Defendant has failed to raise any argument meriting reconsideration of the 12 Order’s waiver ruling. Defendant has presented no newly discovered evidence or 13 intervening change in controlling law to merit reconsideration; rather, Defendant simply 14 contends that this Court misapprehended, and therefore failed to address, its argument 15 concerning personal jurisdiction. Respectfully, the Court disagrees. 16 By necessity, a 59-page order addressing four distinct motions will not be able to 17 devote significant real estate to each and every argument advanced by the parties or the 18 bases for the Court’s decision. However, the Court considered Defendant’s argument and 19 rejected it. The Order noted Defendant’s claims that “‘courts have approved such 20 jurisdictional challenges at the class-certification stage,’” Order at 9 (citation omitted), and 21 that “‘CoreCivic had no good faith basis to challenge personal jurisdiction over the non- 22 plaintiff, putative class members’ claims’ prior to class certification,” id. (citation omitted), 23 but nonetheless found that the defense was “available” at the time Defendant filed its pre- 24 answer motion and therefore waived, see id. at 10. In so deciding, the Court cited 25 Defendant’s Notice of Supplemental Authority, which argued that it is not appropriate to 26 challenge personal jurisdiction over nationwide putative class claims in a Rule 12(b) 27 motion, see id. (citing ECF No. 171 at 2–4; Molock, 2020 WL 1146733, at *2–3), and cited 28 several class-action cases where a court found that failure to assert the personal jurisdiction 1 defense at the time of the initial response to the complaint constituted a waiver, see id. 2 (citing McCurley v. Royal Seas Cruises, Inc., 331 F.R.D. 142, 165 (S.D. Cal. 2019); Mussat 3 v. Enclarity, Inc., 362 F. Supp. 3d 468, 470 (N.D. Ill. 2019)), which support the Court’s 4 conclusion, despite Defendant’s contrary argument, that the defense is “available” before 5 class certification. While it may very well be that courts have decided this issue both ways, 6 the Court did not commit clear error in finding the defense waived on the facts before it. 7 Accordingly, the Court DENIES Defendant’s request to reconsider the Order’s waiver 8 ruling. 9 II. “Significant Proof” of a Class-wide Policy of Forced Labor 10 Second, Defendant argues that the Court erred in concluding that there was adequate 11 evidence that Defendant instituted a class-wide policy. Mot. at 7–8. Defendant argues 12 that, in arriving at this conclusion, “the Court impermissibly placed the burden on 13 CoreCivic to disprove Plaintiffs’ interpretation of the policies, and relieved Plaintiffs of 14 their burden to present ‘significant proof’ that the policies were implemented as they say 15 they were.” Id. at 8 (emphasis in original). Defendant urges the Court to reconsider its 16 determination “that it was ‘not clear from the face of the policies’ that they do not require 17 all detainees to clean common living areas,” id. at 11 (citing Order at 40), as that conclusion 18 “fails to consider the policy as a whole,” id. Defendant further claims that the Court’s 19 conclusion that Plaintiffs’ “four declarations created at least an issue of fact that it could 20 not resolve at this stage . . . is erroneous.” Id. at 15 (citing Order at 41). Defendant argues 21 that the Court’s ruling is inconsistent with the Supreme Court’s ruling in Wal-Mart Stores, 22 Incorporated v. Dukes and therefore cannot stand. Id. at 15–16 (citing 564 U.S. 338, 350– 23 51 (2011)). Finally, Defendant asserts that, even if the policy requires all detainees to clean 24 common living areas, the Court “overlook[ed] key evidence not mentioned or discussed in 25 the Order” in concluding that Defendant “‘may … procure[] this labor under threat of 26 punishment,’” id. at 16 (citing Order at 41) (alteration and ellipses in original), and further, 27 / / / 28 / / / 1 “[s]uch speculation is insufficient to establish a uniform classwide policy,” id. at 19 (citing 2 Koike v. Starbucks Corp., 378 F. App’x 659, 661 (9th Cir. 2010)).2 3 Plaintiffs respond that Defendant’s burden-shifting argument “does not find any 4 support in the Court’s Certification Order, nor does CoreCivic point to any supposed 5 burden shifting. Rather, CoreCivic merely reasserts the exact same arguments that the 6 Court duly considered and rejected in ruling on Plaintiffs’ Motion for Class Certification.” 7 Opp’n at 20–21 (citation omitted). Plaintiffs further contend that Defendant’s reliance on 8 Wal-Mart is inapt, as there the “plaintiffs alleged a general corporate policy of conferring 9 discretion on local managers to make employment decisions,” id. at 21 (citing 564 U.S. at 10 339), while here, “CoreCivic implemented an enterprise-wide policy and practice, 11 memorialized in writing, which required ICE detainees to work under threat of discipline,” 12 id. (citing Order at 33–34). Plaintiffs argue that Defendant’s arguments concerning the 13 interpretation of its policies “ha[ve] already been rejected by the Court, and the Motion 14 does nothing to alter that result here.” Id. at 22 (citation omitted). Plaintiffs cite evidence 15 they contend refutes Defendant’s interpretation of the policy at issue. Id. at 23–25. 16 Plaintiffs argue that, to the extent Defendant’s argument presents “disputed questions of 17 fact regarding the terms of its written policies . . . , they cannot be resolved at the class 18 certification stage.” Id. at 25 (citing Negrete v. ConAgra Foods, Inc., No. CV 16-0631 19 FMO (AJWx), 2019 WL 1960276, at *11 (C.D. Cal. Mar. 29, 2019))). 20 / / / 21

22 2 Defendant makes one further argument, “that the Court erred in ruling that the federal TVPA and 23 California TVPA do not include a subjective element and are otherwise subject to a classwide causation 24 inference,” but does not substantively address this argument, instead “recogniz[ing] that these issues are more suitable for appellate review and mention[ing] them here to further preserve them.” Mot. at 19 n.5. 25 The Court declines to address an argument only raised in a footnote and not substantively briefed by the parties. See Cheever v. Huawei Device USA, Inc., No. 18-CV-06715-JST, 2019 WL 8883942, at *3 (N.D. 26 Cal. Dec. 4, 2019) (“‘Arguments raised only in footnotes, or only on reply, are generally deemed waived’ and need not be considered.”) (citing Estate of Saunders v. Comm’r, 745 F.3d 953, 962 n.8 (9th Cir. 2014); 27 Sanders v. Sodexo, Inc., No. 2:15-cv-00371-JAD-GWF, 2015 WL 4477697, at *5 (D. Nev. July 20, 2015) 28 (“Many courts will disregard arguments raised exclusively in footnotes.” (quoting Bryan Garner, The 1 On reply, Defendant contends that “[P]laintiffs do not address at all CoreCivic’s 2 argument that the text of the Sanitation and Hygiene Policy contradicts the Court’s ruling 3 that it requires all detainees to clean common living areas,” Reply at 4 (citing Order at 19– 4 21), “[n]or do they address CoreCivic’s argument that the text of the Detainee Handbook 5 contradicts the Court’s ruling that detainees may be coerced to clean these areas under 6 threat of punishment,” id. (citing Order at 24–27). Defendant claims Plaintiffs likewise 7 “do not confront CoreCivic’s contention that the Court impermissibly placed the burden 8 on CoreCivic to disprove Plaintiffs’ interpretation of the policies.” Id. (citing Order at 16– 9 19, 22–24) (emphasis in original). Finally, Defendant argues that Negrete, cited by 10 Plaintiffs for the proposition that factual disputes should not be resolved at the class 11 certification stage, relied on authority rejected by the Supreme Court in Wal-Mart. Id. at 12 5 (citations omitted). 13 The Court finds Defendant’s arguments to be without merit. First, the Court did not 14 reverse the burden of proof. The Order unequivocally “concludes that Plaintiffs 15 sufficiently have demonstrated for purposes of class certification that Defendant 16 implemented common sanitation and discipline policies that together may have coerced 17 detainees to clean areas of Defendant’s facilities beyond the personal housekeeping tasks 18 enumerated in the ICE PBNDS,” Order at 40 (emphasis added), and “that, for purposes of 19 class certification, Plaintiffs sufficiently have established that Defendant instituted 20 uniform sanitation and disciplinary policies that were applied class-wide,” id. at 42 21 (emphasis added). Thus, on its face, the Order determined that Plaintiffs provided 22 adequate evidence at this stage of the litigation. Defendant, of course, was entitled to refute 23 that evidence, and attempted to do so. However, the Court, in engaging in its “rigorous 24 analysis” of the satisfaction of the Rule 23 requirements, see Wal-Mart, 564 U.S. at 350– 25 51 (citation and internal quotation marks omitted), simply found the evidence offered by 26 / / / 27 / / / 28 / / / 1 Defendant to be less persuasive than Plaintiffs’. That is entirely different, and a far cry, 2 from shifting the burden of proof to Defendant to “disprove” Plaintiffs’ interpretation. See 3 Mot. at 8. 4 To the extent Defendant argues that the Court erred, in light of the Supreme Court’s 5 ruling in Wal-Mart, in finding the evidence presented by Plaintiffs to be “significant proof,” 6 the Court again disagrees. The Court instead agrees with Plaintiffs that Wal-Mart is 7 distinguishable, given that, here, Plaintiffs presented proof of a written company-wide 8 policy. See Opp’n at 21 (citing 564 U.S. at 339; Order at 33–34). Had Plaintiffs rather 9 generally alleged the policy and submitted only four declarations to evidence that policy, 10 Wal-Mart very likely would have compelled a different conclusion in this case. But that 11 was not the evidence before this Court. In finding that the written policy in combination 12 with the declarations was “significant proof” adequate to certify the class, the Order was 13 not clearly erroneous. 14 Defendant further claims that, “when construed in context,” the policies at issue 15 “refute any suggestion of coercion,” Mot. at 8, and urges the Court to “reconsider th[e] 16 determination [that it is not clear from the face of the policies that they do not require all 17 detainees to clean common living areas] because it fails to consider the policies as a whole,” 18 19 20 3 Importantly, the Order did not state that the Court could not, or would not, resolve any factual disputes, solely that it could not resolve factual disputes “of this nature at this stage in the litigation.” Order at 41 21 (citations omitted) (emphasis added). This statement of the law is accurate and not clearly erroneous. The relevant inquiry at the class certification stage is whether Plaintiffs have produced adequate proof of a 22 class-wide policy, not whether they are able to succeed on the merits of their claims. See, e.g., Ellis v. Costco Wholesale Corp., 285 F.R.D. 492, 524 (N.D. Cal. 2012) (“Defendant’s response on this point is 23 unpersuasive and irrelevant to commonality. It does not argue that there are any intra-class differences in 24 the rate of AGM or GM promotions; rather, it makes a classwide argument that there is in fact no disparity in the promotion rate to GM. The Court need not resolve this factual question at the certification stage; 25 rather, it presents a common question suitable for classwide resolution.” (citing Ellis v. Costco Wholesale Corp., 657 F.3d 970, 983 n.8 (9th Cir. 2011)); Ellis, 657 F.3d at 983 n.8 (rejecting Costco’s argument that 26 “[t]here is no commonality absent (a) statistical proof of under-promotion of women and (b) a plausible link between the practice and the impact,” because it would essentially “turn class certification into a mini- 27 trial”) (emphasis omitted)). The Court found, on the evidence before it, that Plaintiffs met this burden. 28 Refusing to turn the class certification inquiry into a “mini trial” and reach the merits of issues not 1 id. at 11. However, the Court did consider the policies as a whole. In fact, Defendant 2 points out that the Court relied in part on Subsection C of the at-issue policy to arrive at its 3 conclusion, but argues that “Plaintiffs did not take issue with Subsection C in their Motion, 4 and thus CoreCivic did not have an opportunity to provide sworn explanations.” Id. at 14. 5 Thus, having considered the policies in full in arriving at the conclusions expressed in the 6 Order—more fully, apparently, than Defendant would like—the Court declines to 7 reanalyze the policies based on substantive arguments Defendant either could have raised 8 earlier or has already raised. The Court does not believe its interpretation of the policy at 9 issue to rise to the high standard of “clearly erroneous.” 10 Finally, Defendant claims that the Court’s conclusion “that the policy ‘may have 11 coerced’ detainees to clean common living areas” is “speculation . . . insufficient to 12 establish a uniform classwide policy,” citing the Ninth Circuit’s decision in Koike. Mot. 13 at 19 (citations omitted) (emphasis in original). But the language Defendant relies on does 14 not support its argument. Indeed, the language highlighted by Defendant in Koike is not 15 concerned with speculation (a word that does not even appear in the decision), but rather 16 with whether the evidence at issue was adequate to establish satisfaction of the Rule 23 17 requirements. See 378 F. App’x at 661. The Ninth Circuit held it was not. See id. 18 However, in Koike, it appears that, similar to Wal-Mart, the evidence at issue was 19 distinguishable from that before this Court. Here, there is a written, company-wide policy 20 to support Plaintiffs’ claims. In Koike, the plaintiffs instead relied on nebulous “business 21 pressures.” See id. Thus, the Court does not find that its reasoning was clearly erroneous 22 in light of Koike; rather, Koike supports the Court’s conclusions.4 Again, it would be 23 improper for the Court to determine, at the class certification stage, whether the policy in 24

25 4 At any rate, the Court’s decision was not based on speculation. The Ninth Circuit in Blackie v. Barrack 26 rejected a similar argument that the district court “improperly engaged in speculation when determining whether a common question exists.” See 524 F.2d 891, 901 (9th Cir. 1975) (“Neither the possibility that 27 a plaintiff will be unable to prove his allegations, nor the possibility that the later course of the suit might 28 unforeseeably prove the original decision to certify the class wrong, is a basis for declining to certify a 1 fact coerced the class members to clean; the Court only needed to assess whether Plaintiffs 2 had offered sufficient proof of a class-wide policy that could plausibly be read to do so. 3 The Court found that Plaintiffs did, and that decision was well supported. Accordingly, 4 the Court DENIES Defendant’s request for reconsideration of this portion of the Order. 5 III. Narrowing of the Class Period for the California Forced Labor Class 6 Third, Defendant argues that the seven-year statute of limitations for the California 7 Trafficking Victims Protection Act means that the start of the class period for the California 8 Forced Labor Class should be May 31, 2010, seven years before the filing of the Complaint, 9 rather than January 1, 2006. Mot. at 19. Defendant states that “[t]he Court did not 10 expressly address this dispute,” but “should resolve it now so that the parties understand 11 the scope of class-notice and merits discovery.” Id. at 20 (citations and footnote omitted). 12 Plaintiffs argue that “[t]he Court previously addressed this issue in its ruling on 13 CoreCivic’s Motion to Dismiss, where the Court concluded that Plaintiffs ‘cannot state a 14 claim for events that occurred prior to January 1, 2006,’ which resolved the question of the 15 appropriate Class Period for Plaintiffs’ claims under the California TVPA.” Opp’n at 21 16 n.18 (citing ECF No. 38 at 29). Plaintiffs assert this issue “is more suitable for 17 consideration as a dispositive motion after Plaintiffs are afforded discovery on this issue.” 18 Id. 19 Defendant counters that the Court’s order on its motion to dismiss “only concluded 20 that the Class cannot go further back than January 1, 2006, because that is when the 21 California TVPA was enacted.” Reply at 5 (citing ECF No. 38 at 29). Defendant further 22 claims that “[t]his is a legal question that will help define and limit the scope of discovery,” 23 and Plaintiffs “do not explain why more discovery is necessary” on this issue. Id. at 6 24 (citation omitted). 25 Again, Defendant is not requesting reconsideration on the basis of newly discovered 26 evidence or an intervening change in controlling law, so it appears Defendant is arguing 27 that the Court committed clear error in failing to address explicitly this one-paragraph 28 argument raised in Defendant’s opposition to class certification. See ECF No. 118 at 17– 1 18. The Court does not find, on the record before it, that its failure to narrow the class 2 period pursuant to Defendant’s request was clear error. In certifying the class without 3 narrowing the class period, the Court did not ignore or overlook Defendant’s argument, but 4 rather implicitly rejected it. In its motion to dismiss, Defendant argued that Plaintiffs’ 5 federal TVPA claim was time-barred to the extent it relied on conduct before May 31, 6 2007, in light of the ten-year statute of limitations applicable to such claims. ECF No. 18- 7 1 at 12–13. The Court rejected that argument, “declin[ing] to impose a statute of limitations 8 bar at this stage in the proceedings.” ECF No. 38 at 26. It is the Court’s view that the same 9 reasoning applies to the California TVPA claim at the class certification stage. See, e.g., 10 In re Northrop Grumman Corp. ERISA Litig., No. CV 06-06213 MMM JCX, 2011 WL 11 3505264, at *12 (C.D. Cal. Mar. 29, 2011) (collecting cases noting it would be premature 12 to make a determination on a tolling claim at the class certification stage); see also Aldapa 13 v. Fowler Packing Co. Inc., No. 115CV00420DADSAB, 2018 WL 10322910, at *2 (E.D. 14 Cal. Feb. 16, 2018) (same). If discovery indicates that the class period should be limited, 15 the Court will entertain a motion to that effect; however, at this stage in the litigation and 16 on the record before it, the Court is not inclined to narrow the class period. In short, the 17 Order’s refusal to narrow the class period at this stage is supported by the case law and not 18 clearly erroneous. Accordingly, the Court DENIES Defendant’s Motion as to this ground. 19 IV. Commonality and Predominance as to the California Labor Law Class Claims 20 Finally, Defendant argues that, “[c]iting Hernandez v. City of El Monte, 138 F.3d 21 393 (9th Cir. 1998), the Court overlooked Plaintiffs’ failure to analyze commonality and 22 predominance for each of its Labor Law claims.” Mot. at 20 (citing Order at 44). 23 Defendant urges the Court to “reconsider its decision to excuse Plaintiffs’ failure and deny 24 certification of the CA Labor Law Class.” Id. at 21. Defendant argues that, “[a]t a 25 minimum,” the Court should revisit its decision certifying this class to pursue the ninth 26 claim for waiting time penalties. Id. Defendant argues that Plaintiffs omitted this claim 27 from the list of claims pursued by this class, and Defendant therefore presumed Plaintiffs 28 were not pursuing this class claim and failed to address it in their opposition. Id. 1 Regardless, Plaintiffs “failed to make any showing that it satisfied Rule 23.” Id. (emphasis 2 in original). Defendant also challenges the Court’s “decision to come up with a classwide 3 damages formula” for the minimum wage claim. Id. (citing Order at 44). First, Defendant 4 argues that Plaintiffs bear the burden of providing a valid formula, but they failed to do so, 5 and this failure should defeat certification. Id. at 21–23 (citations omitted). Second, 6 Defendant claims “the Court’s proposed model is faulty.” Id. at 23. Defendant claims that 7 the model “will not allow an accurate estimation as to how many hours each detainee 8 actually worked,” id., and “is impermissibly based on averages,” id. at 24. 9 Plaintiffs counter that, while Defendant’s Motion argues against certification of the 10 entire class, Defendant offers no arguments regarding the claims for imposition of unlawful 11 terms and conditions of employment or failure to provide timely and accurate wage 12 statements. Opp’n at 13. Nor does Defendant offer any substantive analysis of the waiting 13 time penalties claim, merely asserting an argument—rejected by the Court in its Order— 14 that Defendant did not have notice that this claim was to be asserted by this class. See id. 15 (citing Order at 12 n.3). As to Defendant’s argument “that individual damages calculations 16 preclude a finding that common issues predominate,” Plaintiffs argue that this issue “was 17 addressed in the briefing on the class certification motion,” and “[t]he Ninth Circuit has 18 consistently rejected this argument.” Id. (citation omitted). Plaintiffs argue that 19 Defendant’s reliance on non-wage-and-hour class actions should be disregarded in light of 20 the Ninth Circuit’s analysis in Vaquero v. Ashley Furniture Industries. Id. at 14–15 (citing 21 824 F.3d 1150 (9th Cir. 2016)). Here, there can be no dispute that Defendant caused the 22 class’s injury. Id. at 15–16. Furthermore, Defendant’s own recordkeeping failures should 23 not preclude certification due to the inability to calculate damages based on complete 24 employment records. Id. at 16. Plaintiffs contend that both “[t]he Supreme Court and 25 Ninth Circuit have repeatedly rejected this argument in wage and hour class actions,” 26 finding that representative evidence is permitted to establish damages when the employer 27 has failed to keep proper records. Id. at 16–19 (citations omitted). Plaintiffs argue that the 28 / / / 1 cases cited by Defendant prohibiting averaging “have no application here, as they have 2 nothing to do with calculating unpaid wages on a class-wide basis.” Id. at 20. 3 In its Reply, Defendant asserts that “Plaintiffs do not defend the Court’s reliance on 4 Hernandez,” “[n]or do they defend the Court’s decision to allow Claim Nine to be 5 certified.” Reply at 7 (citations omitted). Defendant takes issue with Plaintiffs’ 6 interpretation of Vaquero and the import of Comcast Corporation v. Behrend, 569 U.S. 27 7 (2013), in wage-and-hour class actions. Id. at 7–8. Defendant maintains that certification 8 must be denied because Plaintiffs failed to propose a reliable model, and “the record [does 9 not] enable t[he] court to do so.” Id. at 8–9. Defendant finally asserts that Plaintiffs “miss 10 the important point that damages in a wage-and-hour case must be based on the number of 11 hours that the employee actually worked rather than an average.” Id. at 10. 12 Starting with Defendant’s argument that the Court should reconsider its supposed 13 excusing of Plaintiffs’ burden, as an initial matter, the Court believes Defendant to have 14 waived this argument by failing to raise it in its opposition to Plaintiffs’ motion for class 15 certification. See, e.g., CG Tech. Dev., LLC v. 888 Holdings PLC, No. 16 216CV00856RCJVCF, 2017 WL 10259732, at *2 (D. Nev. Oct. 5, 2017) (“Because 17 Plaintiffs failed to raise this issue earlier, Plaintiffs have waived this argument on 18 reconsideration.”). Plaintiffs’ failure to address this issue in detail in their certification 19 motion was, or should have been, as readily apparent to Defendant as it was to the Court. 20 Nonetheless, the Court did not clearly err in deciding to assess the merits of Plaintiffs’ 21 claims on the substantial evidence before it. The Court did not apply the wrong standard, 22 or certify the class without making a finding that adequate support existed to do so. The 23 Court merely avoided prolonging this litigation with another round of briefing by 24 undertaking its “rigorous analysis” of Plaintiffs’ claims on the voluminous record already 25 before it. 26 The Court also declines to reconsider its decision to certify the class as to Plaintiffs’ 27 ninth cause of action for waiting time penalties pursuant to the California Labor Code. The 28 motion for class certification clearly states that the class is pursuing claims for “violations 1 of the California Labor Code.” ECF No. 84 at 17. Thus, the decision to consider this claim 2 on the merits was not clearly erroneous, nor was the Court’s application of the law to this 3 claim. 4 Finally, Defendant’s challenges to the damages issues are not well taken. None of 5 the cases Defendant cites for the proposition that “[c]ourts in this District consistently rule 6 that such a failure of proof alone defeats class certification” are binding on this Court; they 7 are all district court decisions from the Northern and Central Districts of California. Mot. 8 at 22–23. At any rate, the cases Defendant cites do not stand for the proposition that a 9 plaintiff must present a fully formed damages model in order for a class to be certified. For 10 instance, in In re Myford Touch Consumer Litigation, cited by Defendant, the court noted, 11 in finding certification inappropriate, that the problem was that 12 Plaintiffs have not even told the Court what data it should look for. For example, where Plaintiffs seek incidental and 13 consequential damages, do they seek to recover for the loss of 14 time in taking their vehicles to Ford for repair? Without knowing the scope and methodology of the claim and nature of underlying 15 data to be used, the Court cannot conduct the inquiry required by 16 Comcast. 17 No. 13-CV-03072-EMC, 2016 WL 7734558, at *15 (N.D. Cal. Sept. 14, 2016), on 18 reconsideration in part, No. 13-CV-03072-EMC, 2016 WL 6873453 (N.D. Cal. Nov. 22, 19 2016). Similarly, in Longest v. Green Tree Servicing LLC, the court found it could not 20 assess whether the proffered model, which had been accepted in other cases, was adequate 21 “without evidence of the data upon which [the expert who formulated the model] relies and 22 consideration of whether that data is pertinent to the facts of this case.” 308 F.R.D. 310, 23 333 (C.D. Cal. 2015) (emphasis in original). And in Daniel F. v. Blue Shield of California, 24 the court noted that a plaintiff seeking to certify a class “must establish through evidentiary 25 proof that damages are capable of measurement on a classwide basis.” 305 F.R.D. 115, 26 130 (N.D. Cal. 2014) (Comcast, 133 S. Ct. at 1432–33 (citation omitted)) (internal 27 quotation marks omitted). Accordingly, the burden on Plaintiffs is an evidentiary one, to 28 present proof that damages are capable of being measured on a class-wide basis; it is not 1 necessarily Plaintiffs’ burden at the class-certification stage to present a fully formed 2 damages model, when discovery was not yet complete and pertinent records may have been 3 still within Defendant’s control. The Court was satisfied that Plaintiffs proffered adequate 4 evidence that damages could be potentially assessed on a class-wide basis, and the Court 5 does not believe that conclusion to be clearly erroneous. 6 As to Defendant’s belief that “the Court’s proposed model is faulty,” Mot. at 23, the 7 Court respectfully disagrees. Defendant argues that Kamar v. Radio Shack is inapposite, 8 but the Court finds the decision in Kamar supports the Court’s conclusions in multiple 9 respects. First, it is clear the court in Kamar rejected, at least in part, the plaintiffs’ damages 10 model, as the court noted that, “[c]ontrary to Plaintiffs’ suggestions, the Court cannot 11 simply presume an eight hour workday.” 254 F.R.D. 387, 401 (C.D. Cal. 2008), aff’d sub 12 nom. Kamar v. RadioShack Corp., 375 F. App’x 734 (9th Cir. 2010). This undercuts the 13 argument the Court already rejected supra that a plaintiff must provide an affirmative 14 damages model that the court accepts in order to merit class certification. Furthermore, 15 while RadioShack kept certain records, it may not have kept all the records necessary to 16 determine, for example, its reporting time obligations, making it more analogous to this 17 case than Defendant suggests. See id. at 401–03 (explaining that RadioShack argued that 18 it lacked “the daily or weekly schedules that store managers generate for all the years within 19 the class period,” and, “[w]ithout those schedules, how could it be determined whether 20 RadioShack’s total hours data reflect only the hours actually worked, or also include 21 additional hours of pay that are mandated by the reporting time regulation?”). Ultimately, 22 the court concluded: “RadioShack’s representations about its record keeping and payment 23 practices have been unclear and inconsistent. The Court will not presume that it lacks the 24 records that it is statutorily required to maintain in determining whether or not common 25 proof of Plaintiffs’ claims is possible.” Id. at 403; see also In re Wells Fargo Home Mortg. 26 Overtime Pay Litig., 527 F. Supp. 2d 1053, 1068 (N.D. Cal. 2007) (“As numerous courts 27 have recognized, it is manifestly disingenuous for a company to treat a class of employees 28 as a homogenous group for the purposes of internal policies and compensation, and then 1 assert that the same group is too diverse for class treatment in overtime litigation. This is 2 particularly true in a situation such as this, where the difficulty of proving hours worked 3 and compensation received is exacerbated by defendant’s complete failure to maintain 4 pertinent records. Accordingly, plaintiffs have satisfied their burden and demonstrated that 5 common issues predominate.”). This Court did not err in applying the same logic on the 6 basis of the facts before it. 7 Finally, contrary to Defendant’s assertions, there is no rule prohibiting the use of 8 averages in assessing damages, particularly in situations like this one where the evidentiary 9 difficulties are a product of Defendant’s own timekeeping deficiencies. The Court agrees 10 with Plaintiffs’ interpretation of Bluford v. Safeway Stores, Incorporated, 216 Cal. App. 11 4th 864 (2013), and Aldapa, see Opp’n at 19–20. The prohibition on averaging concerns 12 an employer’s compliance with California’s minimum wage laws, not the calculation of 13 damages in class actions. See, e.g., Wright v. Renzenberger, Inc., No. 14 CV136642FMOAGRX, 2018 WL 1975076, at *5–6 (C.D. Cal. Mar. 8, 2018) 15 (summarizing California case law regarding “pay averaging”). Moreover, Bell v. Farmers 16 Insurance Exchange, which Defendant cites for the proposition that averaging is not 17 allowed, see Mot. at 25, actually supports the Order’s damages conclusions, as there, the 18 court upheld all but a small portion of the damages award, reasoning: “In our view, it was 19 within the discretion of the trial court to weigh the disadvantage of statistical inference— 20 the calculation of average damages imperfectly tailored to the facts of particular 21 employees—with the opportunity it afforded to vindicate an important statutory policy 22 without unduly burdening the courts.” 115 Cal. App. 4th 715, 751, as modified on denial 23 of reh’g (Mar. 9, 2004). In short, the Court did not clearly err in finding that a possible 24 means of assessing class-wide damages exists in this case. Accordingly, the Court 25 DENIES Defendant’s Motion as to this ground. 26 / / / 27 / / / 28 / / / 1 CONCLUSION 2 In light of the foregoing, the Court DENIES Defendant’s Motion.° 3 IT IS SO ORDERED. 4 ||Dated: January 13, 2021 al. :

5 on. Janis L. Sammartino United States District Judge 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 > The Court notes that this is the second motion for reconsideration filed by Defendant in this matter. See 26 No. 47. The Court finds it prudent to remind Defendant that reconsideration is an “extraordinary 7 remedy, to be used sparingly in the interests of finality and conservation of judicial resources.” Kona 7 Enters., 229 F.3d at 890. Reconsideration should not be routinely requested and used to rehash arguments 2g the merits. The Court urges Defendant to use discretion in seeking reconsideration of future orders and to be mindful of the Court’s finite resources.