1 U.S. DISTRICT JUDGE JAMES L. ROBART U.S. MAGISTRATE JUDGE J. RICHARD CREATURA 2
8 UNITED STATES DISTRICT COURT 9 WESTERN DISTRICT OF WASHINGTON SEATTLE DIVISION 10 HELEN THORNTON, on behalf of herself and 11 all others similarly situated, and NATIONAL COMMITTEE TO PRESERVE SOCIAL Civil No. 2:18-cv-01409-JLR-JRC 12 SECURITY AND MEDICARE, 13 NOTICE OF JOINT STIPULATION Plaintiffs, REGARDING NUMEROSITY, AND 14 JOINT MOTION TO VACATE vs. DISCOVERY SCHEDULE 15 COMMISSIONER OF SOCIAL SECURITY, Note on Motion Calendar: June 29, 2020 16
Defendant. 17
20 21 22 23 24 25 26 27 1 The parties, having conferred, (1) jointly notify the Court that the parties have entered into a 2 stipulation (attached to this filing as Exhibit 1) that will resolve the question of numerosity in this 3 litigation, and (2) jointly request that any remaining discovery-related deadlines and the briefing 4 schedule set forth in the Court’s May 18, 2020 Order be vacated, because they are unnecessary in light 5 of the parties’ stipulation. As good cause for this request, the parties jointly offer the following: 6 1. On May 18, 2020, the Court authorized discovery regarding the number of individuals 7 that met the following proposed class definition, from the Report and Recommendation issued in this 8 matter: “All persons nationwide who presented claims for social security survivor’s benefits based on 9 the work history of their same-sex partner and who were barred from satisfying the marriage 10 requirements for such benefits because of applicable laws that prohibited same-sex marriage. This 11 class is intended to exclude any putative class members in Ely v. Saul, No. 4:18-cv-00557-BPV (D. 12 Ariz.).” ECF No. 82. 13 2. On May 29, Plaintiffs served discovery requests: eleven interrogatories, six requests 14 for admission, and fifteen requests for the production of documents. 15 3. As reflected in the attached stipulation, although Defendant represents that identifying 16 the precise number of putative class members is difficult (among other reasons, due to limitations on 17 access to some of Defendant’s records and files because of the ongoing pandemic), after a reasonably 18 diligent inquiry, Defendant now believes that that number likely exceeds 150, based on the records 19 that have been reviewed. Accordingly, Defendant no longer disputes that the putative class (as defined 20 above and in the Report & Recommendation) is sufficiently numerous to satisfy Rule 23(a)(1). See, 21 e.g., Sullivan v. City of Berkeley, 328 F.R.D. 352, 355-56 (N.D. Cal. 2018) (“The numerosity requirement 22 is not tied to any fixed numerical threshold, but courts generally find the numerosity requirement 23 satisfied when a class includes at least forty members.”). 24 4. Defendant continues to argue that certification of any class in this matter is 25 inappropriate, for the reasons stated in Defendant’s prior filings, with which Plaintiffs disagree. 26 27 Page 1 U.S. Department of Justice Civil Division, Federal Programs Branch 1 5. As a result of the parties’ stipulation and Defendant’s concession, the parties 2 respectfully request that the Court vacate any remaining discovery deadlines and the briefing schedule 3 set forth in the Court’s May 18, 2020 Order. 4 Dated: June 29, 2020 Respectfully submitted,
5 JOSEPH H. HUNT Assistant Attorney General 6
7 BRAD P. ROSENBERG Assistant Branch Director 8 /s/ Stephen M. Pezzi 9 STEPHEN M. PEZZI Trial Attorney 10 United States Department of Justice 11 Civil Division, Federal Programs Branch 1100 L Street NW 12 Washington, DC 20005 Phone: (202) 305-8576 13 Fax: (202) 616-8470 Email: stephen.pezzi@usdoj.gov 14 Attorneys for Defendant 15
16 /s/ Linda R. Larson 17 Linda R. Larson (WSBA No. 9171) NOSSAMAN LLP 18 601 Union Street, Suite 5305 Seattle, WA 98101 19 Email: llarson@nossaman.com 20 Telephone: 206-395-7630
21 Robert D. Thornton (admitted pro hac vice) NOSSAMAN LLP 22 18101 Von Karman Avenue, Ste. 1800 Irvine, CA 92612 23 Email: rthornton@nossaman.com Telephone: 949-833-7800 24
25 Peter C. Renn (admitted pro hac vice) LAMBDA LEGAL DEFENSE AND 26 EDUCATION FUND, INC. 27 Page 2 U.S. Department of Justice Civil Division, Federal Programs Branch 1 4221 Wilshire Blvd., Suite 280 Los Angeles, CA 90010 2 Email: prenn@lambdalegal.org Telephone: 213-382-7600 3
4 Karen L. Loewy (admitted pro hac vice) LAMBDA LEGAL DEFENSE AND 5 EDUCATION FUND, INC. 120 Wall Street, 19th Floor 6 New York, NY 10005 Email: kloewy@lambdalegal.org 7 Telephone: 212-809-8585
8 Tara L. Borelli (WSBA No. 36759) 9 LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. 10 730 Peachtree Street NE, Ste. 640 Atlanta, GA 30308 11 Email: tborelli@lambdalegal.org Telephone: 404-897-1880 12
13 Counsel for Plaintiffs Helen Josephine Thornton and National Committee to Preserve Social Security and 14 Medicare
15 16 17 18 19 20 21 22 23 24 25 26 27 Page 3 U.S. Department of Justice Civil Division, Federal Programs Branch 1 U.S. DISTRICT JUDGE JAMES L. ROBART U.S. MAGISTRATE JUDGE J. RICHARD CREATURA 2
8 UNITED STATES DISTRICT COURT 9 WESTERN DISTRICT OF WASHINGTON SEATTLE DIVISION 10 HELEN THORNTON, on behalf of herself and 11 all others similarly situated, and NATIONAL COMMITTEE TO PRESERVE SOCIAL Civil No. 2:18-cv-01409-JLR-JRC 12 SECURITY AND MEDICARE, 13 JOINT STIPULATION Plaintiffs, REGARDING NUMEROSITY 14 vs. 15 COMMISSIONER OF SOCIAL SECURITY, 16
20 21 22 23 24 25 26 27 1 The parties HEREBY STIPULATE as follows: 2 1. On May 18, 2020, the Court authorized discovery regarding the number of individuals 3 that met the following proposed class definition, from the Report and Recommendation issued in this 4 matter: “All persons nationwide who presented claims for social security survivor’s benefits based on 5 the work history of their same-sex partner and who were barred from satisfying the marriage 6 requirements for such benefits because of applicable laws that prohibited same-sex marriage. This 7 class is intended to exclude any putative class members in Ely v. Saul, No. 4:18-cv-00557-BPV (D. 8 Ariz.).” ECF No. 82. 9 2. Defendant has represented that, although identifying the precise number of putative 10 class members is difficult (among other reasons, due to limitations on access to some of Defendant’s 11 records and files because of the ongoing pandemic), after a reasonably diligent inquiry, that number 12 likely exceeds 150, based on the records that have been reviewed. Plaintiffs do not dispute that the 13 number of putative class members exceeds 150 individuals. 14 3. The parties therefore agree, for purposes of this litigation, that the putative class (as 15 defined above and in the Report & Recommendation) is sufficiently numerous to satisfy Rule 23(a)(1). 16 4. Defendant continues to argue that certification of any class in this matter is 17 inappropriate, for the reasons stated in Defendant’s prior filings, with which Plaintiffs disagree. 18 5. Defendant’s deadline to respond to Plaintiffs’ discovery requests is tolled pending the 19 Court’s consideration of the parties’ joint motion to vacate the discovery schedule in this matter, to 20 be filed concurrently with this stipulation. 21 22 23 24 25 26 27 1 Dated: June 29, 2020 Respectfully submitted,
2 JOSEPH H. HUNT Assistant Attorney General 3
4 BRAD P. ROSENBERG Assistant Branch Director 5 /s/ Stephen M. Pezzi 6 STEPHEN M. PEZZI Trial Attorney 7 United States Department of Justice Civil Division, Federal Programs Branch 8 1100 L Street NW 9 Washington, DC 20005 Phone: (202) 305-8576 10 Fax: (202) 616-8470 Email: stephen.pezzi@usdoj.gov 11 Attorneys for Defendant 12
13 /s/ Linda R. Larson 14 Linda R. Larson (WSBA No. 9171) NOSSAMAN LLP 15 601 Union Street, Suite 5305 Seattle, WA 98101 16 Email: llarson@nossaman.com Telephone: 206-395-7630 17
18 Robert D.
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1 U.S. DISTRICT JUDGE JAMES L. ROBART U.S. MAGISTRATE JUDGE J. RICHARD CREATURA 2
8 UNITED STATES DISTRICT COURT 9 WESTERN DISTRICT OF WASHINGTON SEATTLE DIVISION 10 HELEN THORNTON, on behalf of herself and 11 all others similarly situated, and NATIONAL COMMITTEE TO PRESERVE SOCIAL Civil No. 2:18-cv-01409-JLR-JRC 12 SECURITY AND MEDICARE, 13 NOTICE OF JOINT STIPULATION Plaintiffs, REGARDING NUMEROSITY, AND 14 JOINT MOTION TO VACATE vs. DISCOVERY SCHEDULE 15 COMMISSIONER OF SOCIAL SECURITY, Note on Motion Calendar: June 29, 2020 16
Defendant. 17
20 21 22 23 24 25 26 27 1 The parties, having conferred, (1) jointly notify the Court that the parties have entered into a 2 stipulation (attached to this filing as Exhibit 1) that will resolve the question of numerosity in this 3 litigation, and (2) jointly request that any remaining discovery-related deadlines and the briefing 4 schedule set forth in the Court’s May 18, 2020 Order be vacated, because they are unnecessary in light 5 of the parties’ stipulation. As good cause for this request, the parties jointly offer the following: 6 1. On May 18, 2020, the Court authorized discovery regarding the number of individuals 7 that met the following proposed class definition, from the Report and Recommendation issued in this 8 matter: “All persons nationwide who presented claims for social security survivor’s benefits based on 9 the work history of their same-sex partner and who were barred from satisfying the marriage 10 requirements for such benefits because of applicable laws that prohibited same-sex marriage. This 11 class is intended to exclude any putative class members in Ely v. Saul, No. 4:18-cv-00557-BPV (D. 12 Ariz.).” ECF No. 82. 13 2. On May 29, Plaintiffs served discovery requests: eleven interrogatories, six requests 14 for admission, and fifteen requests for the production of documents. 15 3. As reflected in the attached stipulation, although Defendant represents that identifying 16 the precise number of putative class members is difficult (among other reasons, due to limitations on 17 access to some of Defendant’s records and files because of the ongoing pandemic), after a reasonably 18 diligent inquiry, Defendant now believes that that number likely exceeds 150, based on the records 19 that have been reviewed. Accordingly, Defendant no longer disputes that the putative class (as defined 20 above and in the Report & Recommendation) is sufficiently numerous to satisfy Rule 23(a)(1). See, 21 e.g., Sullivan v. City of Berkeley, 328 F.R.D. 352, 355-56 (N.D. Cal. 2018) (“The numerosity requirement 22 is not tied to any fixed numerical threshold, but courts generally find the numerosity requirement 23 satisfied when a class includes at least forty members.”). 24 4. Defendant continues to argue that certification of any class in this matter is 25 inappropriate, for the reasons stated in Defendant’s prior filings, with which Plaintiffs disagree. 26 27 Page 1 U.S. Department of Justice Civil Division, Federal Programs Branch 1 5. As a result of the parties’ stipulation and Defendant’s concession, the parties 2 respectfully request that the Court vacate any remaining discovery deadlines and the briefing schedule 3 set forth in the Court’s May 18, 2020 Order. 4 Dated: June 29, 2020 Respectfully submitted,
5 JOSEPH H. HUNT Assistant Attorney General 6
7 BRAD P. ROSENBERG Assistant Branch Director 8 /s/ Stephen M. Pezzi 9 STEPHEN M. PEZZI Trial Attorney 10 United States Department of Justice 11 Civil Division, Federal Programs Branch 1100 L Street NW 12 Washington, DC 20005 Phone: (202) 305-8576 13 Fax: (202) 616-8470 Email: stephen.pezzi@usdoj.gov 14 Attorneys for Defendant 15
16 /s/ Linda R. Larson 17 Linda R. Larson (WSBA No. 9171) NOSSAMAN LLP 18 601 Union Street, Suite 5305 Seattle, WA 98101 19 Email: llarson@nossaman.com 20 Telephone: 206-395-7630
21 Robert D. Thornton (admitted pro hac vice) NOSSAMAN LLP 22 18101 Von Karman Avenue, Ste. 1800 Irvine, CA 92612 23 Email: rthornton@nossaman.com Telephone: 949-833-7800 24
25 Peter C. Renn (admitted pro hac vice) LAMBDA LEGAL DEFENSE AND 26 EDUCATION FUND, INC. 27 Page 2 U.S. Department of Justice Civil Division, Federal Programs Branch 1 4221 Wilshire Blvd., Suite 280 Los Angeles, CA 90010 2 Email: prenn@lambdalegal.org Telephone: 213-382-7600 3
4 Karen L. Loewy (admitted pro hac vice) LAMBDA LEGAL DEFENSE AND 5 EDUCATION FUND, INC. 120 Wall Street, 19th Floor 6 New York, NY 10005 Email: kloewy@lambdalegal.org 7 Telephone: 212-809-8585
8 Tara L. Borelli (WSBA No. 36759) 9 LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. 10 730 Peachtree Street NE, Ste. 640 Atlanta, GA 30308 11 Email: tborelli@lambdalegal.org Telephone: 404-897-1880 12
13 Counsel for Plaintiffs Helen Josephine Thornton and National Committee to Preserve Social Security and 14 Medicare
15 16 17 18 19 20 21 22 23 24 25 26 27 Page 3 U.S. Department of Justice Civil Division, Federal Programs Branch 1 U.S. DISTRICT JUDGE JAMES L. ROBART U.S. MAGISTRATE JUDGE J. RICHARD CREATURA 2
8 UNITED STATES DISTRICT COURT 9 WESTERN DISTRICT OF WASHINGTON SEATTLE DIVISION 10 HELEN THORNTON, on behalf of herself and 11 all others similarly situated, and NATIONAL COMMITTEE TO PRESERVE SOCIAL Civil No. 2:18-cv-01409-JLR-JRC 12 SECURITY AND MEDICARE, 13 JOINT STIPULATION Plaintiffs, REGARDING NUMEROSITY 14 vs. 15 COMMISSIONER OF SOCIAL SECURITY, 16
20 21 22 23 24 25 26 27 1 The parties HEREBY STIPULATE as follows: 2 1. On May 18, 2020, the Court authorized discovery regarding the number of individuals 3 that met the following proposed class definition, from the Report and Recommendation issued in this 4 matter: “All persons nationwide who presented claims for social security survivor’s benefits based on 5 the work history of their same-sex partner and who were barred from satisfying the marriage 6 requirements for such benefits because of applicable laws that prohibited same-sex marriage. This 7 class is intended to exclude any putative class members in Ely v. Saul, No. 4:18-cv-00557-BPV (D. 8 Ariz.).” ECF No. 82. 9 2. Defendant has represented that, although identifying the precise number of putative 10 class members is difficult (among other reasons, due to limitations on access to some of Defendant’s 11 records and files because of the ongoing pandemic), after a reasonably diligent inquiry, that number 12 likely exceeds 150, based on the records that have been reviewed. Plaintiffs do not dispute that the 13 number of putative class members exceeds 150 individuals. 14 3. The parties therefore agree, for purposes of this litigation, that the putative class (as 15 defined above and in the Report & Recommendation) is sufficiently numerous to satisfy Rule 23(a)(1). 16 4. Defendant continues to argue that certification of any class in this matter is 17 inappropriate, for the reasons stated in Defendant’s prior filings, with which Plaintiffs disagree. 18 5. Defendant’s deadline to respond to Plaintiffs’ discovery requests is tolled pending the 19 Court’s consideration of the parties’ joint motion to vacate the discovery schedule in this matter, to 20 be filed concurrently with this stipulation. 21 22 23 24 25 26 27 1 Dated: June 29, 2020 Respectfully submitted,
2 JOSEPH H. HUNT Assistant Attorney General 3
4 BRAD P. ROSENBERG Assistant Branch Director 5 /s/ Stephen M. Pezzi 6 STEPHEN M. PEZZI Trial Attorney 7 United States Department of Justice Civil Division, Federal Programs Branch 8 1100 L Street NW 9 Washington, DC 20005 Phone: (202) 305-8576 10 Fax: (202) 616-8470 Email: stephen.pezzi@usdoj.gov 11 Attorneys for Defendant 12
13 /s/ Linda R. Larson 14 Linda R. Larson (WSBA No. 9171) NOSSAMAN LLP 15 601 Union Street, Suite 5305 Seattle, WA 98101 16 Email: llarson@nossaman.com Telephone: 206-395-7630 17
18 Robert D. Thornton (admitted pro hac vice) NOSSAMAN LLP 19 18101 Von Karman Avenue, Ste. 1800 Irvine, CA 92612 20 Email: rthornton@nossaman.com Telephone: 949-833-7800 21
22 Peter C. Renn (admitted pro hac vice) LAMBDA LEGAL DEFENSE AND 23 EDUCATION FUND, INC. 4221 Wilshire Blvd., Suite 280 24 Los Angeles, CA 90010 Email: prenn@lambdalegal.org 25 Telephone: 213-382-7600
26 Karen L. Loewy (admitted pro hac vice) 27 LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. 1 120 Wall Street, 19th Floor New York, NY 10005 2 Email: kloewy@lambdalegal.org Telephone: 212-809-8585 3
4 Tara L. Borelli (WSBA No. 36759) LAMBDA LEGAL DEFENSE AND 5 EDUCATION FUND, INC. 730 Peachtree Street NE, Ste. 640 6 Atlanta, GA 30308 Email: tborelli@lambdalegal.org 7 Telephone: 404-897-1880
8 Counsel for Plaintiffs Helen Josephine Thornton and 9 National Committee to Preserve Social Security and Medicare 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 1 U.S. DISTRICT JUDGE JAMES L. ROBART U.S. MAGISTRATE JUDGE J. RICHARD CREATURA 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 WESTERN DISTRICT OF WASHINGTON SEATTLE DIVISION 10 HELEN THORNTON, on behalf of herself and 11 all others similarly situated, and NATIONAL COMMITTEE TO PRESERVE SOCIAL Civil No. 2:18-cv-01409-JLR-JRC 12 SECURITY AND MEDICARE, 13 ORDER Plaintiffs, 14 vs. 15 COMMISSIONER OF SOCIAL SECURITY, 16 Defendant. 17 18 19 20 21 22 23 24 25 26 27 1 Upon consideration of the parties’ stipulation regarding numerosity, the parties’ joint motion 2 to vacate the discovery schedule, and the entire record herein, it is hereby 3 ORDERED that the parties’ joint motion is GRANTED; and it is further 4 ORDERED that any remaining discovery deadlines and the briefing schedule set forth in 5 the Court’s May 18, 2020 Order are hereby VACATED. 6 SO ORDERED. 7 8 DATED this __9t_h___ day of __Ju_l_y_______, 2020. 9 A 10 _______________________________________ 11 JAMES L. ROBART 12 United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27