relatively run of the mill wage case plaintiff seeking below in the district court minimum wage and over time under state and federal law in addition to additional state claims under the new york wage theft wage and over time claims of some of the plaintiffs appellant and just for a question about the caption at the start some of the plaintiffs have settled correct yes and so the ones least there is one at least one plaintiff that i saw maria plays or who appears to be a signatory to the settlement agreement but she's still in the caption in so is there a reason for that or is it just a capt and within a week in just correct the caption for us that would be a help from the court absolutely none for the purpose of analyzing this appeal we believe that the there are several  subgroups of plaintiffs it need to be focused on given the large number approximately one hundred and eighty plaintiffs initially in the district court judge ross granted i'm sorry so what we had were home care workers all of them being home attendants or home health aides in new york state and they would work either eight hundred and twelve or twenty four hour shifts twenty four hour shifts frequently in that industry are referred to as sleep in or live in shifts and with respect to those point judge were essentially for all the plaintiffs below we pled that they worked quote unquote worked either eight dollars or twenty four hour shifts and so judge ross found that that pleading was inadequate with respect to the twenty four hour plaintiffs on their minimum wage claims and on the overtime claims for twenty four hour plaintiffs a parent who worked either to only two or only three hundred and twenty four hour shifts per week so she divided the twenty four hour plaintiffs in three groups  those who did had pled weeks which in which they did to twenty four hour shifts three or four now we believe where she departed from the applicable the three cases that were the central focus of her decision lundy not the hot and the and in each of those cases what happened is the pleading was arithmetically defective because the overtime claims when the added up all the hours that were pled the plaintiffs could not get to over forty hours and therefore it failed under that trio of cases here interesting that's not the case we played that they worked through the entirety of their shifts and will required to attend to and monitor their patients or consumers throughout this shift at all times and what judge  sensually did was incorporate this industry custom practice a rule in the home health industry in new york that says twenty four hour shift employees will be paid  thirteen hours of a twenty four hour shift and the other eleven would be attributable to eight for sleep and three for meals the operative complaint clearly indicated not only did my clients work through the entirety of their respective that are assigned to a consumer in this industry those those consumers who have needs that required tendency around the clock or those who are assigned twenty four hour home care workers or home attendan so that they may not sleep in the traditional sense as you or i would simply because they have to do night time medications they have to monitor the consumers throughout the evening and break periods well alleged break periods problem here for instance those who pled they did to sleep in shifts to get over the forty hours threshold you need to plead an additional fifteen hours of work and maybe there wasn't  maybe say i had to work through meal times on you know x number of occasions or i was interrupted in my sleep during the night and i didn't get five hours of uninterrupted sleep that instead this was this sort of broad brush all of them worked all the time and that's at i mean i agree with you on that that's a central focus and the stab a global standard on a twelve b six motion requires judge ross or any district court in that situation to take the facts as put she did that with respect to the eight and twelve hour point she did not with respect to the twenty four hour plaintiffs she said she incorporated this industry standard and most importantly there by looking beyond the four corners of the complaint which is not allow old pursuant to the optical standard so she's now treated the eight and ten hour shift workers substantively differently than the twenty four  workers even though the allegations are identical i understand correctly these these workers if during their sleep if while you're sleeping during using using their allocated sleeping time or using their allocated eating time if the person they're caring for has a disturbance needs whatever needs to go to the bathroom whenever they need to interrupt their sleep need to interrupt their whatever they're doing the meal and go and take care of that or clean up a mess that's been made with it is that correct that that's correct except for we take issue with the supposition that they were in fact ever sleep or on those break periods because frequently during the meal the quote unquote meal periods they would eat with their can tumors so they were even assuming even assuming that they are sleeping at a time that they should be sleeping in their job requires them to interrupt that sleep absolutely that meal if it's a separate meal absolutely on and that is why those ideas as i understand the arithmetic at least with respect to the ones who are on three shifts who are on three consecutive twenty four hour shifts that they need they only need to have one hour plus of of interruption of any sleep that there's posed to be getting or meals separate meals of this posed to be getting to be that that that's correct if and only if you make the assumption that the district court did that they only work hours allowable work shifts and forty hours allowable for the whole week before you read over to correct so for any particular week right and and to support that assumption for any particular week that was pl you'd have to believe that the plaintiffs contrary to what they pled received all three mil periods each day and a full eight hours asleep were they able to do that get the full eight hours of sleep and all the military those consumers would not need twenty four hour home already when the rule was interrupted because of the special needs of the individual being will that yes you're on it and the reason we didn't do that is like i said i mean you blanket lee said this applied to all of these people and they all it wouldn't be plausible your honor if i were alleging that each of my client who work twenty four hour shifts never got a minute break or rest but what we're talking about what was played in the th amended complaint the operative complaint were st two or three week period so we allege that those for those weeks identified pursuant to the trio of nd circuit cases we identified specific weeks and said during those weeks these people worked eight dollars or twenty four hour shifts she took it is true with respect to the eight in twelve she had she had to resort to something outside the four corners of the complaint in order to conclude something different on the twenty four hours we think there is where the departure from the standard occur of the mill f l s a case we have here a situation where we have some one hundred and seventy seven plaintiffs in the caption ordinarily you would see a situation where you have some identified named plaintiffs pleading as a class or collective action but here we have a number of plaintiffs who we really don't have any allegations for we plaintiffs amended their complaint three times judge ross asked for their last and best and this is what we are given and the court had given plaintiffs every opportunity to plead however we do not have that here we are given broad allegations that plaintiffs had rarely received uninterrupted sleep and in this situation where we have a complaint that basically provides us with a list of one hundred and seventy seven names spread sheet with just the dates of employment we are left with a situation where rife with the potential for abuse and to their ability to try to circumvent the collective in class action principles in this circuit and i just want to address a few i can just make  understand the math for those who are leading they work to sleep and ships in a given in a given week they would need in that week to plead they were fifteen hours in order to get over the four thousand and forty hour threshold they would need to say fifteen hours i missed my meals or had to get up in the middle of the night so i missed the time that was supposed to be my own but for the people that pledged three sleep ins really is only one or a small number of hours so is there a difference between whether those two groups in terms is in terms of whether there's enough plan in this complaint i think the most important of this year and the rule there which i want to distinguish is that it's not that plaintiffs need to have eight solid hours of sleep are entitled to eight hours of sleep including five hours of uninterrupted sleep and three meal breaks and so the difference here is not ok there's some sort of interruption and now the whole thing is  out the difference here is that they only need to have five hours of uninterrupted sleep nothing implausible with this kind of work there's nothing implausible about their never getting five hours of uninterrupted sleep because if they're if they're if the person they're taking care of his elderly infirm person who doesn't sleep well who needs to go to the bathroom many times during the night who need these are these are disabled people and   between the thirty nine hours of work that that that they're required to do in a three hour shift and forty that's just a one hour difference so if there was one hour of one hour well st of all i would like to know that with respect to this particular complaint the th man the complaint that was set forth by plaintiffs they do not pleased that they received less less than five uninterrupted hours of sleep and it's really important to note that because they never pled that particular allegation and they worked on into  it's not it's not that they constantly work that they never sleep if they work on schedules really have chunks of days when they work and then they have the rest of the week off so they can sleep their hearts out during the rest of the week with their work is concentrated in as is the case i'm in in the hospital in terms of residents of hospitals for a very very intensive concentrated work period and you sleep when you can well in the particular circumstance that we're discussing right now your honor in the circumstance where somebody is working say three hundred and twenty four hour shifts let's say continuously it is fairly impossible that say would not be getting that level of sleep you know the population people lose folks who are serving do we know what the what the parameters are with regard to when someone qualifies for a home health a twenty four hour whether they're house keepers or home health aides they do we know the particular people that these folks were serving and what their conditions were so tha seems to me that you have to know who they're taking care of before you can figure out whether an elevation is plausible or not as yet yes your honor in fact plaintiffs counsel mentioned suffering from dementia and just need somebody around to stay with them whereas someone else who's got significant physical disability unable to move on able to toilet themselves on able to wash themselves would require far more extensive regular care than the individual would be that people who were working twelve hour shifts oftentimes were working what we call a split shift so there would be somebody working a twelve hour shift and then another person working a twelve hour shift would come to relieve that person and generally speaking the people working those split shifts the twelve hour shifts they would be the people who would need more intensive care people who are assigned to say a twenty four hour shift are people who maybe need all bit of attention is there may occasionally be some needs in the evening however they are trained to address those needs and generally speaking you know if they're the requirement is that they would notify their supervisor if there was an issue at night they would let them know because there may be a need for that person to be reassessed if their needs are greater than the compl judge ross went through rationally calculated each of these periods and found that there simply was not possible for the plaintiffs who were dismissed to state a cl and judge also also found that there was a group of plaintiffs who for whom the allegations were possible and treasure aust permitted those claims so here we're really in a similar that there were specific weeks pled the weeks pled were only plaintiff x y and z worked this many shifts drawing these weeks and was paid x amount this not know nowhere in those pleadings in paragraph thirty eight dollars or forty seven dollars of the th amended complaint to plaintive state that plaintiffs were interrupted in their sleep that they received less than five hours of uninterrupted sleep or that they missed their meal breaks so were left here to kind of assume and frankly giving plaintiffs all of the reasonable inferences and disregarding what we  allegations regarding the overtime worked i think that it is entirely fair for this court to you know quite honestly i don't see any other way but for this court to affirm the dismissal of these claims are there any other questions failed to mention and what comes before that in that applicable standard is the court must take the factual allegations is true but you would have to appreciate whether what you've alleged is plausible you have to appreciate who you are taking care of don't  household work amongst other things meaning among other things and so generally what you're doing is challenges helping take care of older folks who are want to live in their homes and don't have someone that lives with them or relative that's there these are folks if they have to do hard work which is exceptional cleaning that falls within the work that where the clock is running right and so this is not this is cleaning bathrooms cooking going minute most of whom i'm just looking at you complain so i'm all i'm wondering how is it that you didn't have to at least juxtapose these people to the people they were caring for to have it be plausible that they work twenty four hours for three or four times in a row for example someone who's completely bedridden had bed sores had all kinds of particular needs that required somebody to be up next to them all the time as opposed to someone is ambulatory somewhat confused able to be around watches t v i mean those are the types of people that you might be caring for and want to know an allegation twenty four hours three times or four times in a given week might t more importantly again we're not they are legation is not that the twenty four plaintiffs worked twenty four hours through their full shift every day for the past ten years there were two or three weeks identified for which they claim to have worked the entirety of their shifts that has to be taken as true had it been done so though their minimum wage and overtime claims would have survived she incorporated this thirteen hour rule my complaint makes no reference to it she's not supposed to look past the four corners of the complaint when evaluating the two will be six she did we think that where the departure thank you honors you th