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