U.S. District Court Southern District of California (San Diego) CIVIL DOCKET FOR CASE #: 3:17−cv−02573−JLS−NLS

STAYED

Gonzalez et al v. CoreCivic, Inc. Assigned to: Judge Janis L. Sammartino Referred to: Magistrate Judge Nita L. Stormes Related Case: 3:17−cv−01112−JLS−NLS Cause: 28:1331dj Fed. Question: Declaratory Judgment
Plaintiff

Date Filed: 12/27/2017 Jury Demand: None Nature of Suit: 790 Labor: Other Jurisdiction: Federal Question

Carlos Gonzalez individually and on behalf of all others similarly situated

represented by Daniel Henry Charest Burns Charest LLP 900 Jackson Street Suite 500 Dallas, TX 75202 469−904−4550 Fax: 469−444−5002 Email: dcharest@burnscharest.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Korey Arthur Nelson Burns Charest LLP 365 Canal Street Suite 1170 New Orleans, LA 70130 504−799−2845 Fax: 504−881−1765 Email: knelson@burnscharest.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Lydia A. Wright Burns Charest LLP 365 Canal Street Suite 1170 New Orleans, LA 70130 504−799−2844 Fax: 504−881−1765 Email: lwright@burnscharest.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Matthew Robert Freda Law Office of R. Andrew Free PO Box 90568 Nashville, TN 37209 844−321−3221 x1 Fax: 615−829−8959 Email: matt@immigrantcivilrights.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Nicole Elizabeth Ramos Paseo Ensenada 1161 Int. B. Seccion Jardines, Playas de Tijuana Tijuana, Baja California, CA 22500

619−786−4866 Fax: 619−202−7752 Email: nicole@alotrolado.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Robert R. Ahdoot Ahdoot and Wolfson APC 10728 Lindbrook Drive Los Angeles, CA 90024 (310) 474−91111 Fax: (310) 474−8585 Email: rahdoot@ahdootwolfson.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Andrew Free Law Office of R. Andrew Free PO Box 90568 Nashville, TN 37209 844−321−3221 x1 Fax: 615−829−8959 Email: Andrew@ImmigrantCivilRights.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Tina Wolfson Ahdoot and Wolfson PC 10728 Lindbrook Drive Los Angeles, CA 90024 (310) 474−9111 Fax: (310) 474−8585 Email: twolfson@ahdootwolfson.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Vanessa Tamara Shakib Ahdoot and Wolfson PC 10728 Lindbrook Drive Los Angeles, CA 90024 310−474−9111 x18 Fax: 310−474−8585 Email: vshakib@ahdootwolfson.com TERMINATED: 08/19/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Warren Tavares Burns Burns Charest LLP 900 Jackson Street Suite 500 Dallas, TX 75202 469.904.4550 Fax: 469.444.5002 Email: wburns@burnscharest.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
William B. Thompson Burns Charest LLP 900 Jackson Street Suite 500

Plaintiff
Juan Jose Merino−Rodas individually and on behalf of all others similarly situated

Dallas, TX 75202 469−904−4550 Fax: 469−444−5002 Email: wthompson@burnscharest.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Daniel Henry Charest (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Korey Arthur Nelson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lydia A. Wright (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew Robert Freda (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Nicole Elizabeth Ramos (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Robert R. Ahdoot (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Andrew Free (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Tina Wolfson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Vanessa Tamara Shakib (See above for address) TERMINATED: 08/20/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Warren Tavares Burns (See above for address) LEAD ATTORNEY PRO HAC VICE

Plaintiff
Maribel Gutierrez−Canchola individually and on behalf of all others similarly situated

ATTORNEY TO BE NOTICED
William B. Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Daniel Henry Charest (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Korey Arthur Nelson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lydia A. Wright (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew Robert Freda (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Nicole Elizabeth Ramos (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Robert R. Ahdoot (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Andrew Free (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Tina Wolfson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Vanessa Tamara Shakib (See above for address) TERMINATED: 08/20/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Warren Tavares Burns (See above for address) LEAD ATTORNEY PRO HAC VICE

Plaintiff
Gladys Carrera−Duarte individually and on behalf of all others similarly situated

ATTORNEY TO BE NOTICED
William B. Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Daniel Henry Charest (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Korey Arthur Nelson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lydia A. Wright (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew Robert Freda (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Nicole Elizabeth Ramos (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Robert R. Ahdoot (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Andrew Free (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Tina Wolfson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Vanessa Tamara Shakib (See above for address) TERMINATED: 08/20/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Warren Tavares Burns (See above for address) LEAD ATTORNEY PRO HAC VICE

Plaintiff
Jennye Pagoada−Lopez individually and on behalf of all others similarly situated

ATTORNEY TO BE NOTICED
William B. Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Daniel Henry Charest (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Korey Arthur Nelson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lydia A. Wright (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew Robert Freda (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Nicole Elizabeth Ramos (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Robert R. Ahdoot (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Andrew Free (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Tina Wolfson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Vanessa Tamara Shakib (See above for address) TERMINATED: 08/20/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Warren Tavares Burns (See above for address) LEAD ATTORNEY PRO HAC VICE

V. Intervenor Plaintiff Sylvester Owino
Intervenor Plaintiff Jonathan Gomez
V. Defendant CoreCivic, Inc.

ATTORNEY TO BE NOTICED
William B. Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Robert L. Teel Law Office of Robert L. Teel 1425 Broadway Mail Code: 20−6690 Seattle, WA 98122 866−833−5529 Fax: 855−609−6911 Email: lawoffice@rlteel.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Eileen Regina Ridley Foley and Lardner LLP 555 California Street Suite 1700 San Francisco, CA 94104−1520 (415) 434−4484 Fax: (415) 434−4507 Email: eridley@foley.com ATTORNEY TO BE NOTICED
Nicholas John Fox Foley & Lardner LLP 11988 El Camino Real Suite 400 San Diego, CA 92130 858−847−6700 Fax: 858−792−6773 Email: nfox@foley.com ATTORNEY TO BE NOTICED
represented by Robert L. Teel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Eileen Regina Ridley (See above for address) ATTORNEY TO BE NOTICED
Nicholas John Fox (See above for address) ATTORNEY TO BE NOTICED
represented by Ashlee Beth Hesman Struck Love Bojanowski & Acedo, PLC 3100 West Ray Road Suite 300

Chandler, AZ 85226 480−420−1600 Email: ahesman@strucklove.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Daniel P Struck Struck Love Bojanowski & Acedo, PLC 3100 West Ray Road Suite 300 Chandler, AZ 85226 (480) 420−1620 Fax: (480) 420−1695 Email: dstruck@strucklove.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ethan H Nelson Law Office of Ethan H. Nelson 4 Park Plaza, Suite 1025 Irvine, CA 92614 949−229−0961 Fax: 949−861−7122 Email: ethannelsonesq@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jacob Brady Lee Struck Love Bojanowski & Acedo, PLC 3100 West Ray Road Suite 300 Chandler, AZ 85226 480−420−1600 Fax: 480−420−1695 Email: JLee@strucklove.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Nicholas D. Acedo Struck Love Bojanowski & Acedo, PLC 3100 West Ray Road Suite 300 Chandler, AZ 85226 480−420−1600 Email: NAcedo@strucklove.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rachel Love Struck Love Bojanowski & Acedo, PLC 3100 West Ray Road Suite 300 Chandler, AZ 85226 (480) 420−1600 Fax: (480) 420−1690 Email: RLove@strucklove.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Date Filed 12/27/2017
12/27/2017 12/28/2017 12/28/2017 12/29/2017 01/02/2018 01/02/2018 01/02/2018 01/03/2018
01/03/2018
01/04/2018 01/05/2018

# Docket Text
1 COMPLAINT Against CoreCivic, Inc. (Filing fee $ 400 receipt number 0974−10760875) filed by Carlos Gonzalez, Juan Jose Merino−Rodas, Gladys Carrera−Duarte, Jennye Pagoada−Lopez, Maribel Gutierrez−Canchola. (Attachments: # 1 Civil Cover Sheet)
The new case number is 3:17−cv−2573−AJB−NLS. Judge Anthony J. Battaglia and Magistrate Judge Nita L. Stormes are assigned to the case. (Thompson, William)(sjm) CA Notified (sjm)(jrd) (Entered: 12/27/2017)
2 Summons Issued. Counsel receiving this notice electronically should print this summons and serve it in accordance with Rule 4, Fed.R.Civ.P and LR 4.1. (sjm)(jrd) (Entered: 12/27/2017)
3 Request to Appear Pro Hac Vice (Filing fee received: $ 206 receipt number 0974−10762465.) (Nelson, Korey)(jrd) (kcm). (Entered: 12/28/2017)
4 Request to Appear Pro Hac Vice (Filing fee received: $ 206 receipt number 0974−10762503.)(Wright, Lydia)(jrd) (kcm). (Entered: 12/28/2017)
5 Request to Appear Pro Hac Vice (Filing fee received: $ 206 receipt number 0974−10765138.) (Burns, Warren)(jrd)(kcm). (Entered: 12/29/2017)
6 NOTICE OF RELATED CASE(S) by Gladys Carrera−Duarte, Carlos Gonzalez, Maribel Gutierrez−Canchola, Juan Jose Merino−Rodas, Jennye Pagoada−Lopez of case(s) 3:17−cv−01112 . (Attachments: # 1 Exhibit A − Owino Complaint, # 2 Exhibit B − Gonzalez Complaint)(Thompson, William) (acc). (Entered: 01/02/2018)
9 ORDER Approving the Pro Hac Vice Application of Korey A. Nelson, re 3 Request to Appear Pro Hac Vice. Signed by Judge Anthony J. Battaglia on 12/28/2017.(kcm) (Entered: 01/04/2018)
10 ORDER Approving the Pro Hac Vice Application of Lydia A. Wright, re 4 Request to Appear Pro Hac Vice. Signed by Judge Anthony J. Battaglia on 12/28/2017.(kcm) (Entered: 01/04/2018)
7 NOTICE of Appearance of Robert Ahdoot by Robert R. Ahdoot on behalf of Gladys Carrera−Duarte, Carlos Gonzalez, Maribel Gutierrez−Canchola, Juan Jose Merino−Rodas, Jennye Pagoada−Lopez (Ahdoot, Robert)Attorney Robert R. Ahdoot added to party Gladys Carrera−Duarte(pty:pla), Attorney Robert R. Ahdoot added to party Carlos Gonzalez(pty:pla), Attorney Robert R. Ahdoot added to party Maribel Gutierrez−Canchola(pty:pla), Attorney Robert R. Ahdoot added to party Juan Jose Merino−Rodas(pty:pla), Attorney Robert R. Ahdoot added to party Jennye Pagoada−Lopez(pty:pla) (acc). (Entered: 01/03/2018)
8 NOTICE of Appearance of Vanessa Shakib by Vanessa Tamara Shakib on behalf of Gladys Carrera−Duarte, Carlos Gonzalez, Maribel Gutierrez−Canchola, Juan Jose Merino−Rodas, Jennye Pagoada−Lopez (Shakib, Vanessa)Attorney Vanessa Tamara Shakib added to party Gladys Carrera−Duarte(pty:pla), Attorney Vanessa Tamara Shakib added to party Carlos Gonzalez(pty:pla), Attorney Vanessa Tamara Shakib added to party Maribel Gutierrez−Canchola(pty:pla), Attorney Vanessa Tamara Shakib added to party Juan Jose Merino−Rodas(pty:pla), Attorney Vanessa Tamara Shakib added to party Jennye Pagoada−Lopez(pty:pla) (acc). (Entered: 01/03/2018)
11 ORDER Approving the Pro Hac Vice Application of Warren Tavares Burns, re 5 Request to Appear Pro Hac Vice. Signed by Judge Anthony J. Battaglia on 1/3/2018.(kcm) (Entered: 01/05/2018)
13 ORDER OF TRANSFER PURSUANT TO LOW NUMBER RULE. This case has been reassigned to Judge Janis L. Sammartino and Magistrate Judge Nita L. Stormes for all further proceedings. Judge Anthony J. Battaglia and Magistrate Judge Nita L. Stormes are no longer assigned to this case. Create association to 3:17−cv−01112−JLS−NLS. The new case number is 17cv2573−JLS−NLS. Signed by Judge Anthony J. Battaglia on 1/4/2018. Signed by Judge Janis L. Sammartino on 1/4/2018.(aef) (Entered: 01/08/2018)

01/08/2018 01/09/2018 01/09/2018 01/10/2018 01/12/2018 01/12/2018 01/12/2018 01/12/2018
01/18/2018 01/19/2018 01/22/2018
01/29/2018 01/29/2018 01/29/2018 01/29/2018 02/02/2018

12 Request to Appear Pro Hac Vice ( Filing fee received: $ 206 receipt number 0974−10786299.) (Application to be reviewed by Clerk.) (Charest, Daniel) (kcm). (Entered: 01/08/2018)
14 Request to Appear Pro Hac Vice ( Filing fee received: $ 206 receipt number 0974−10792780.) (Application to be reviewed by Clerk.) (Freda, Matthew) (kcm). (Entered: 01/09/2018)
15 Request to Appear Pro Hac Vice ( Filing fee received: $ 206 receipt number 0974−10793042.) (Application to be reviewed by Clerk.) (Ramos, Nicole) (kcm). (Entered: 01/09/2018)
16 Request to Appear Pro Hac Vice ( Filing fee received: $ 206 receipt number 0974−10795513.) (Application to be reviewed by Clerk.) (Free, Robert) (kcm). (Entered: 01/10/2018)
17 ORDER Approving the Pro Hac Vice Application of Daniel Henry Charest, re 12 Request to Appear Pro Hac Vice. Signed by Judge Janis L. Sammartino on 1/11/2018.(kcm) (Entered: 01/12/2018)
18 ORDER Approving the Pro Hac Vice Application of Matthew R. Freda, re 14 Request to Appear Pro Hac Vice. Signed by Judge Janis L. Sammartino on 1/11/2018.(kcm) (Entered: 01/12/2018)
19 ORDER Approving the Pro Hac Vice Application of Nicole Elizabeth Ramos, re 15 Request to Appear Pro Hac Vice. Signed by Judge Janis L. Sammartino on 1/11/2018.(kcm) (Entered: 01/12/2018)
20 NOTICE of Appearance of Tina Wolfson by Tina Wolfson on behalf of Gladys Carrera−Duarte, Carlos Gonzalez, Maribel Gutierrez−Canchola, Juan Jose Merino−Rodas, Jennye Pagoada−Lopez (Wolfson, Tina)Attorney Tina Wolfson added to party Gladys Carrera−Duarte(pty:pla), Attorney Tina Wolfson added to party Carlos Gonzalez(pty:pla), Attorney Tina Wolfson added to party Maribel Gutierrez−Canchola(pty:pla), Attorney Tina Wolfson added to party Juan Jose Merino−Rodas(pty:pla), Attorney Tina Wolfson added to party Jennye Pagoada−Lopez(pty:pla) (mpl). (Entered: 01/12/2018)
21 ORDER Approving the Pro Hac Vice Application of Robert Andrew Free (Re: Doc. No. 16 Request to Appear Pro Hac Vice). Signed by Judge Janis L. Sammartino on 1/17/2018.(jrd) (Entered: 01/18/2018)
22 WAIVER OF SERVICE Returned Executed by Carlos Gonzalez, Juan Jose Merino−Rodas, Gladys Carrera−Duarte, Jennye Pagoada−Lopez, Maribel Gutierrez−Canchola, as to CoreCivic, Inc. (Thompson, William) (mpl). (Entered: 01/19/2018)
23 MOTION to Consolidate Cases and Appoint Interim Lead Class Counsel by Gladys Carrera−Duarte, Carlos Gonzalez, Maribel Gutierrez−Canchola, Juan Jose Merino−Rodas, Jennye Pagoada−Lopez. (Attachments: # 1 Memo of Points and Authorities, # 2 Exhibit A − Declaration of K. Nelson, # 3 Exhibit B − Declaration of R. A. Free)(Thompson, William) (mpl). (Entered: 01/22/2018)
24 Request to Appear Pro Hac Vice ( Filing fee received: $ 206 receipt number 0974−10856494.) (Struck, Daniel) (kcm). (Entered: 01/29/2018)
25 Request to Appear Pro Hac Vice ( Filing fee received: $ 206 receipt number 0974−10856552.) (Love, Rachel) (kcm). (Entered: 01/29/2018)
26 Request to Appear Pro Hac Vice ( Filing fee received: $ 206 receipt number 0974−10856592.) (Acedo, Nicholas) (kcm). (Entered: 01/29/2018)
27 Request to Appear Pro Hac Vice ( Filing fee received: $ 206 receipt number 0974−10856610.) (Fletcher, Ashlee) (kcm). (Entered: 01/29/2018)
28 ORDER Approving the Pro Hac Vice Application of Daniel P. Struck, re 24 Request to Appear Pro Hac Vice. Signed by Judge Janis L. Sammartino on 2/1/2018.(kcm) (Entered: 02/02/2018)

02/02/2018 02/02/2018 02/02/2018 02/23/2018
02/23/2018 02/27/2018 02/27/2018 03/06/2018
03/08/2018
03/08/2018 03/08/2018 03/14/2018 03/15/2018
03/16/2018 03/16/2018 04/04/2018

29 ORDER Approving the Pro Hac Vice Application of Rachel Love, re 25 Request to Appear Pro Hac Vice. Signed by Judge Janis L. Sammartino on 2/1/2018.(kcm) (Entered: 02/02/2018)
30 ORDER Approving the Pro Hac Vice Application of Nicholas D. Acedo, re 26 Request to Appear Pro Hac Vice. Signed by Judge Janis L. Sammartino on 2/1/2018.(kcm) (Entered: 02/02/2018)
31 ORDER Approving the Pro Hac Vice Application of Ashlee B. Hesman, re 27 Request to Appear Pro Hac Vice. Signed by Judge Janis L. Sammartino on 2/1/2018.(kcm) (Entered: 02/02/2018)
32 MOTION to Intervene for Limited Purpose of Opposing Consolidation by Sylvester Owino, Jonathan Gomez. (Attachments: # 1 Memo of Points and Authorities in Support of Motion for Limited Intervention, # 2 Proof of Service)(Teel, Robert)Attorney Robert L. Teel added to party Sylvester Owino(pty:intv), Attorney Robert L. Teel added to party Jonathan Gomez(pty:intv)(mpl). (Entered: 02/23/2018)
33 Ex Parte MOTION to Shorten Time to Hear Unopposed Motion for Limited Intervention by Jonathan Gomez, Sylvester Owino. (Attachments: # 1 Proof of Service)(Teel, Robert) (mpl). (Entered: 02/23/2018)
34 NOTICE of Association of Counsel by Jonathan Gomez, Sylvester Owino (Ridley, Eileen)Attorney Eileen Regina Ridley added to party Jonathan Gomez(pty:intv), Attorney Eileen Regina Ridley added to party Sylvester Owino(pty:intv)(mpl). (Entered: 02/27/2018)
35 NOTICE of Association of Counsel by Jonathan Gomez, Sylvester Owino (Fox, Nicholas)Attorney Nicholas J. Fox added to party Jonathan Gomez(pty:intv), Attorney Nicholas J. Fox added to party Sylvester Owino(pty:intv) (mpl). (Entered: 02/27/2018)
36 ORDER: (1) Granting 32 Motion for Limited Intervention; (2) Denying as moot 33 Ex Parte Motion to Shorten Time; (3) Vacating Hearing; and (4) Setting Briefing Schedule. The Owino Plaintiffs shall an Opposition on or before 3/8/2018. The remaining parties shall file a Reply, if any, on or before 3/15/2018. Signed by Judge Janis L. Sammartino on 3/6/2018. (mpl) (Entered: 03/06/2018)
37 RESPONSE in Opposition re 23 MOTION to Consolidate Cases and Appoint Interim Lead Class Counsel filed by Jonathan Gomez, Sylvester Owino. (Attachments: # 1 Declaration of Robert Teel ISO Response, # 2 Supplemental Adequacy Declaration of Robert Teel ISO Response, # 3 Declaration of Eileen Ridley ISO Intervenors Response, # 4 Declaration of J. Mark Waxman ISO Intervenors Response)(Fox, Nicholas) (mpl). (Entered: 03/08/2018)
38 RESPONSE in Opposition re 23 MOTION to Consolidate Cases and Appoint Interim Lead Class Counsel filed by CoreCivic, Inc.. (Acedo, Nicholas) (mpl). (Entered: 03/08/2018)
39 CERTIFICATE OF SERVICE by CoreCivic, Inc. re 38 Response in Opposition to Motion to Consolidate (Acedo, Nicholas) (mpl). (Entered: 03/08/2018)
40 MOTION for Extension of Time to File Answer re 1 Complaint, − Unopposed by CoreCivic, Inc. (Attachments: # 1 Proof of Service)(Acedo, Nicholas) (mpl). (Entered: 03/14/2018)
41 REPLY to Response to Motion re 23 MOTION to Consolidate Cases and Appoint Interim Lead Class Counsel filed by Gladys Carrera−Duarte, Carlos Gonzalez, Maribel Gutierrez−Canchola, Juan Jose Merino−Rodas, Jennye Pagoada−Lopez. (Attachments: # 1 Exhibit A − Affidavit of Korey A. Nelson)(Nelson, Korey) (mpl). (Entered: 03/15/2018)
42 ORDER Vacating Hearing re 23 MOTION to Consolidate Cases. Signed by Judge Janis L. Sammartino on 3/16/2018.(mpl) (Entered: 03/16/2018)
43 ORDER Granting 40 Motion to Extend Deadline to Respond to Complaint. Signed by Judge Janis L. Sammartino on 3/16/2018. (mpl) (Entered: 03/16/2018)
44 ORDER:(1) Denying 23 Motion to Consolidate; and (2) Staying Case. Signed by Judge Janis L. Sammartino on 4/4/2018. (mpl) (Entered: 04/04/2018)

06/05/2018 06/07/2018 08/16/2018 08/20/2018

45 Request to Appear Pro Hac Vice ( Filing fee received: $ 206 receipt number 0974−11293114.) (Application to be reviewed by Clerk.) (Lee, Jacob) (dsn) (Entered: 06/05/2018)
46 ORDER Approving the Pro Hac Vice Application of Jacob B. Lee, re 45 Request to Appear Pro Hac Vice. Signed by Judge Janis L. Sammartino on 06/06/2018.(ajs) (Entered: 06/07/2018)
47 MOTION to Withdraw as Attorney Vanessa Shakib by Gladys Carrera−Duarte, Carlos Gonzalez, Maribel Gutierrez−Canchola, Juan Jose Merino−Rodas, Jennye Pagoada−Lopez. (Ahdoot, Robert) (mpl). (Entered: 08/16/2018)
48 ORDER Granting 47 Motion to Withdraw.Attorney Vanessa Tamara Shakib terminated. Signed by Judge Janis L. Sammartino on 8/20/2018. (mpl) (Entered: 08/20/2018)

 
 Case 3:17-cv-02573-AJB-NLS Document 1 Filed 12/27/17 PageID.1 Page 1 of 25

1 Will Thompson (Cal. Bar No. 289012)

wthompson@burnscharest.com 2 Warren Burns (pro hac vice to be filed)

3

wburns@burnscharest.com Daniel H. Charest (pro hac vice to be filed)

4 dcharest@burnscharest.com BURNS CHAREST LLP

5 900 Jackson St., Suite 500

Dallas, Texas 75202 6 Telephone: (469) 904-4550

7 Facsimile: (469) 444-5002

8 Korey A. Nelson (pro hac vice to be filed) knelson@burnscharest.com

9 Lydia A. Wright (pro hac vice to be filed) lwright@burnscharest.com

10 BURNS CHAREST LLP

365 Canal Street, Suite 1170 11 New Orleans, LA 70130

12

Telephone: (504) 799-2845 Facsimile: (504) 881-1765

13 R. Andrew Free (pro hac vice to be filed)

14 andrew@immigrantcivilrights.com

Matthew Freda (pro hac vice to be filed) 15 matt@immigrantcivilrights.com

16

LAW OFFICE OF R. ANDREW FREE P.O. Box 90568

17 Nashville, TN 37209 Telephone: (844) 321-3221

18 Facsimile: (615) 829-8959

19 Nicole Ramos (pro hac vice to be filed)

nicole@alotrolado.org 20 AL OTRO LADO

21

511 E. San Ysidro Blvd., # 333 San Ysidro, CA 92173

22 Telephone: (619) 786-4866

23 Robert R. Ahdoot (Cal. Bar No. 172098)

rahdoot@ahdootwolfson.com 24 AHDOOT & WOLFSON, APC

25

8424 Santa Monica Blvd., Ste. 575 West Hollywood, CA 90069

26 Telephone: (310) 474-9111 Facsimile: (310) 474-8585

27 Attorneys for Plaintiffs.
28

1

Case 3:17-cv-02573-AJB-NLS Document 1 Filed 12/27/17 PageID.2 Page 2 of 25

1

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA 2

3 CARLOS GONZALEZ,

4 JUAN JOSE MERINO-RODAS, MARIBEL GUTIERREZ-CANCHOLA,
5 GLADYS CARRERA-DUARTE, and

'17CV2573 AJB NLS
Civil Action No. __________________

JENNYE PAGOADA-LOPEZ, 6 individually and on behalf of all others similarly

7 situated,

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND

8 v.

Plaintiffs,

DAMAGES

9 CORECIVIC, INC.,
10

CLASS ACTION

Defendant. 11

12

PRELIMINARY STATEMENT

13 1. This action arises from systematic and unlawful wage theft, unjust enrichment, and
14
forced labor at California’s Otay Mesa Detention Center (the “Otay Mesa Facility” or the “Facility”). 15

16

2. The Otay Mesa Facility is a civil immigration detention facility owned and operated

17 for profit by Defendant CoreCivic, Inc. (“CoreCivic”).

18

3. CoreCivic is a multibillion-dollar corporation that owns and operates detention

19 facilities across the United States. CoreCivic has made hundreds of millions of dollars in profits from

20 its contract to run the Otay Mesa Facility.

21

4. Although it is contractually required to provide for all essential detention services at

22 the Facility, CoreCivic uses the free and nearly-free labor of detainees to perform these services to
23
maximize profits. 24

25

5. CoreCivic pays detainees $1 or $1.50 per day – or nothing at all – to maintain and

26 operate the Facility.

27

28 2

Case 3:17-cv-02573-AJB-NLS Document 1 Filed 12/27/17 PageID.3 Page 3 of 25

1

6. This labor is not voluntary in any meaningful sense. CoreCivic maintains a corporate

2 policy and uniform practice at the Otay Mesa Facility of withholding necessary protection, care, and

3 services from its detainees to ensure a ready supply of available labor needed to operate the Facility.
4 7. As a result, detainees are forced to submit to CoreCivic’s unlawful detainee labor
5 scheme to buy the basic necessities – including food, water, warm clothing, medicine, and hygiene
6
7 products – that CoreCivic unlawfully refuses to provide for them.

8

8. CoreCivic maintains a corporate policy and uniform practice at the Otay Mesa Facility

9 of threatening detainees who refuse to work with solitary confinement, cutting off communication

10 and visitation with family, reporting their actions to the United States Immigration and Customs

11 Enforcement (“ICE”), or referring them for criminal prosecution. Together with CoreCivic’s
12 systemic under-provision for detainee needs, these abusive practices and threats of abuse ensure that 13
detainees will continue working for subminimum wages, or for nothing at all. 14
9. CoreCivic’s scheme significantly reduces its labor costs and expenses, and 15 16 exponentially increases its already vast profits, by unlawfully forcing and coercing detainees to
17 perform labor at subminimum wages or for free. These policies and practices violate California

18 minimum wage law, the California Unfair Competition Law, and federal and state Trafficking Victims

19 Protection Acts, which prohibit forced labor.

20

10. Plaintiffs Carlos Gonzalez, Juan Jose Merino-Rodas, Maribel Gutierrez-Canchola,

21 Gladys Carrera-Duarte, and Jennye Pagoada-Lopez, individually and on behalf of all others similarly
22 situated, brings this class action lawsuit to stop the economic exploitation of detainees at the Otay
23 Mesa Facility, to recover unpaid wages, and to remedy the unjust enrichment resulting from
24
25 CoreCivic’s unlawful failure to pay its detainee workforce legal wages.

26

JURISDICTION AND VENUE

27

11. This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331 because this

28 action arises under the Trafficking Victims Protection Act, 18 U.S.C. §§ 1589 et seq. 3

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1

12. This Court has subject matter jurisdiction pursuant to the Class Action Fairness Act

2 of 2005, 28 U.S.C. § 1332(d), because at least one class member is of diverse citizenship from one

3 defendant; there are more than 100 class members; the aggregate amount in controversy exceeds
4 $5,000,000; and minimal diversity exists.
5 13. Venue is proper in this District under 28 U.S.C. § 1391(b)(2) because the events or
6
7 omissions giving rise to the claims occurred in this District.

8

14. This Court has personal jurisdiction over CoreCivic because the corporation regularly

9 conducts business in California, and has sufficient minimum contacts with California.

10

15. Plaintiffs request that this Court exercise supplemental jurisdiction pursuant to

11 28 U.S.C. § 1367 over their state law claims arising under the California Minimum Wage Act, the

12 California Unfair Competition Law, and California common law.

13
14 A.
15

Plaintiffs

PARTIES

16

16. Plaintiff Carlos Gonzalez is an adult resident of Bakersfield, California. He is a citizen

17 of El Salvador and is seeking asylum in the United States. From May 2017 through November 2017,

18 he was detained at the Otay Mesa Facility. During those months, Mr. Gonzalez was employed by

19 CoreCivic as a kitchen worker, janitor, and administrative clerk. He was paid only $1 or $1.50 per day
20 for his labor – or nothing at all – regardless of how many hours he worked.
21 17. Plaintiff Juan Jose Merino-Rodas is an adult resident of Bakersfield, California. He is
22 a citizen of El Salvador and is seeking asylum in the United States. From May 2017 through
23 November 2017, he was detained at the Otay Mesa Facility. During those months, Mr. Merino Rodas
24 25 was employed by CoreCivic as a kitchen worker and janitor. He was paid only $1 or $1.50 per day for
26 his labor – or nothing at all – regardless of how many hours he worked.

27

28 4

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1

18. Plaintiff Maribel Gutierrez-Canchola is a current detainee at the Otay Mesa Facility.

2 She is a citizen of Mexico and is seeking asylum in the United States. She has been detained at the

3 Facility since on or around June 17, 2017. Ms. Gutierrez-Canchola is currently employed by

4 CoreCivic as a janitor. She is paid only $1.50 per day for her labor – or nothing at all – regardless of
5
how many hours she works. 6

7

19. Plaintiff Gladys Carrera-Duarte is a current detainee at the Otay Mesa Facility. She is

8 a citizen of Guatemala and is seeking asylum in the United States. She has been detained at the

9 Facility since on or around June 30, 2017. Ms. Carrera-Duarte is currently employed by CoreCivic as

10 a janitor. She is paid only $1.50 per day for her labor – or nothing at all – regardless of how many

11 hours she works.

12

20. Plaintiff Jennye Pagoada-Lopez is a current detainee at the Otay Mesa Facility. She is

13 a citizen of Honduras and is seeking asylum in the United States. Ms. Pagoada-Lopez has been
14
detained at the Facility since on or around July 23, 2017. She is employed by CoreCivic as a janitor. 15

16 She is paid only $1.50 per day for her labor – or nothing at all – regardless of how many hours she

17 worked.

18 B. Defendant

19

21. Defendant CoreCivic, formerly the Corrections Corporation of America, is a for-

20 profit corporation providing correctional and detention services. CoreCivic is a Maryland

21 corporation, with its principal office located at 10 Burton Hills Boulevard, Nashville, Tennessee,

22 37215.
23
24

FACTUAL ALLEGATIONS

25 A. Immigration detention is civil—not criminal.

26

22. Each year, hundreds of thousands of individuals are detained in geographically

27 isolated immigration detention facilities while awaiting immigration or citizenship status

28 5

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1 determinations. These detainees include U.S. citizens, lawful permanent residents (green card

2 holders) with longstanding family and community ties, survivors of torture, asylum seekers, victims

3 of human trafficking, children, and pregnant women.
4 23. Some detainees were brought to the United States as children. And thousands
5 ultimately have their United States citizenship or legal residency affirmed by an immigration court or
6
7 federal judge.

8

24. Immigration violations are civil violations, and immigration detention is civil in

9 nature.1 Many detainees have no criminal history at all.

10

25. Notwithstanding immigration detention’s civil nature and purpose, detainees are

11 subjected to prison-like conditions at the Otay Mesa Facility. According to Dora Schriro, former
12 head of ICE’s Office of Detention Policy and Planning, most detainees are held – systematically and
13 unnecessarily – under circumstances inappropriate for immigration detention’s noncriminal
14 purposes.2 Detainees are frequently subjected to punitive and long-term solitary confinement,
15 16 inadequate medical care, sexual and physical assault, lack of access to counsel, and other
17 harsh conditions of confinement, all without a conviction.

18

26. Many detainees accede to deportation simply to obtain release from these intolerable

19 conditions, even when they have valid claims to remain in the United States, including claims for

20 asylum or other discretionary relief.
21 B. The privatization of immigration detention and CoreCivic’s economic windfall.
22 27. Immigration detention expanded roughly eightfold over the past two decades, from a
23 capacity of 5,532 detention beds in 19943 to a current capacity of over 41,000.4
24

25

26

1 See Fong Yue Ting v. United States, 149 U.S. 698, 728–30 (1893) (observing that deportation proceedings have “all the elements of a civil case” and are “in no proper sense a trial or sentence for a crime or offense”).

27

2 Dora Schriro, U.S. Dep’t of Homeland Sec., “Immigration Detention Overview and Recommendations,” at 10, 15 (2009).

3 Sharita Gruberg, “How For-Profit Companies are Driving Immigration Detention Policies, Center for American
28 Progress” (Dec. 18, 2015), available at

6

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1

28. During the same period, CoreCivic and other private prison corporations have spent

2 tens of millions of dollars on lobbying efforts.5

3

29. As immigration detention has expanded, private prison corporations, particularly

4 CoreCivic, have gained an increasing share of the contracts for new detention beds.6
5 30. Contracts with ICE accounted for 28% of CoreCivic’s total revenues in 2016 ($511.8
6
million), up from up from 24% in 2015.7 CoreCivic officials expect these lucrative ICE contracts to 7

8 account for a significant percentage of the corporation’s ongoing revenues.8

9

31. CoreCivic’s 2016 revenues were approximately $1.85 billion, and its stock is publicly

10 traded on the New York Stock Exchange.9

11

32. CoreCivic’s economic windfall, and the profitability of its immigration detention

12 enterprise, arise from its policy of systemically withholding necessary case from detainees to ensure a
13 readily available, captive labor force that cleans, maintains, and operates its facilities for sub-minimal
14 wages under threat of solitary confinement and abuse of legal process. Without this nearly free
15
16 detainee labor, CoreCivic’s windfall from immigrant detention would be substantially decreased.

17 C. CoreCivic withholds necessary care from detainees at the Otay Mesa Facility.

18

33. Since 2005, CoreCivic has contracted with ICE to operate the Otay Mesa Facility,

19 which is a 1,482-bed immigration detention facility in San Diego, California.

20

34. The Otay Mesa Facility is notorious for its poor treatment of detainees.

21

22 https://www.americanprogress.org/issues/immigration/reports/2015/12/18/127769/how-for-profit-companies-are-

driving-immigration-detention-policies/.

23 4 Jenny Jarvie, “This industry stands to benefit from Trump’s crackdown on the border,” Los Angeles Times (Feb. 14,

2017) available at http://www.latimes.com/nation/la-na-immigrant-detention-20170214-story.html.

24 5 Michael Cohen, “How for-profit prisons have become the biggest lobby no one is talking about,” Washington Post
(Apr. 28, 2015), available at https://www.washingtonpost.com/posteverything/wp/2015/04/28/how-for-profit-prisons-

25 have-become-the-biggest-lobby-no-one-is-talking-about/?utm_term=.25de04ae71f9
6 Bethany Carson & Eleana Diaz, “Payoff: How Congress Ensures Private Prison Profit with an Immigrant Detention

26

Quota, Grassroots Leadership,” (Apr. 2015) at 4, Chart 1-AA, available at https://grassrootsleadership.org/sites/default/files/reports/quota_report_final_digital.pdf

27

7 CoreCivic. Inc., 201610-K form at 10, 36, available at https://www.sec.gov/Archives/edgar/data/1070985/000119312517053982/d310578d10k.htm

8 Id. at 56.
28 9 Id. at 54.

7

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1

35. CoreCivic maintains a corporate policy and uniform practice of withholding sufficient

2 protection, food, water, medicine, clothing, and hygiene products from the detainees at the Otay
3 Mesa Facility. As a result, detainees are forced to either purchase these daily necessities from the 4
Facility’s commissary, or go without. 5
36. By maintaining these harsh conditions and purposely withholding basic necessities 6 7 from detainees, CoreCivic ensures an available labor pool of detainees will work for only $1 or $1.50
8 per day, thus allowing it to continue operating the Otay Mesa Facility at an enormous profit.

9 D. CoreCivic uses detainees to clean, maintain, and operate the Otay Mesa Facility.

10

37. Through its so-called Voluntary Work Program (the “Work Program”), CoreCivic

11 hires detainees to perform work that directly contributes to institutional operations, at a rate of $1 or
12 $1.50 per day. 13
38. Despite its name, the Work Program is not “voluntary” in any meaningful sense. 14
Instead, as noted above, CoreCivic maintains a corporate policy and uniform practice at the Otay 15 16 Mesa Facility of withholding necessary care and protection from detainees. As a result, detainees are
17 forced to submit to CoreCivic’s detainee labor scheme in order to buy necessities – including food,

18 water, medicine, clothing, and hygiene products – that CoreCivic refuses to provide for them.

19

39. Further, CoreCivic maintains a corporate policy and uniform practice at the Facility

20 of threatening to place those who refuse to work into solitary confinement. These conditions,

21 policies, and practices ensure that detainees continue working for subminimum wages.
22 40. In the Work Program, detainees are required to work according to an assigned work
23 schedule and to participate in work-related training. At all times, CoreCivic controls detainees’ wages,
24
25 hours, and working conditions.

26

41. CoreCivic provides all necessary personal protection equipment and work uniforms.

27

42. CoreCivic records the hours detainees work and periodically credits wages to their

28 accounts. 8

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1

43. The detainee workers are “employees,” and CoreCivic is an “employer” under

2 California’s minimum wage laws.

3

44. CoreCivic informs all detainees entering the Otay Mesa Facility that the following

4 work assignments may be available through the Work Program:
5
a. Intake 6

7

b. Kitchen Worker

8

c. Recreation

9

d. Library

10

e. Barber

11

f. Laundry

12

g. Living area clean-up/janitorial

13 h. Evening workers (facility janitorial)
14
i. Maintenance 15

16

45. In the course of their labor and employment by CoreCivic, detainees employed in the

17 Work Program performed a wide range of work, including but not limited to:

18

a. Scrubbing bathrooms, showers, toilets, and windows;

19

b. Cleaning and maintaining CoreCivic’s on-site medical facility;

20

c. Cleaning patient rooms and medical staff offices;

21

d. Sweeping, mopping, stripping, and waxing floors throughout the facility;

22 e. Washing detainee laundry;
23
f. Preparing, cooking, and serving detainee meals; 24

25

g. Washing dishes;

26

h. Cleaning the kitchen and cafeteria before and after detainee meals;

27

i. Performing clerical work for CoreCivic;

28

j. Running and managing the law library;

9

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1

k. Providing barber services to detainees;

2

l. Cleaning intake areas and solitary confinement units; and

3

m. Cleaning and maintaining recreational areas.

4 46. The Work Program allows CoreCivic to avoid recruiting from the traditional labor
5
market, complying with the terms of its union contracts, and paying all costs associated with 6

7 potential, current, and former employment relationships, thereby reducing operational costs and

8 increasing its own profits.

9

47. CoreCivic does not pay and has not paid detainees the state minimum wage –

10 currently, $10.50 per hour – for the hours they worked at the Otay Mesa Facility.

11

48. CoreCivic’s contract with ICE requires CoreCivic to comply with all federal, state,

12 and local laws.
13 49. No clause in CoreCivic’s contract with ICE or any rule or standard incorporated by
14 reference into the contract requires CoreCivic to maximize its profits by paying detainees sub-
15
16 minimum wages.

17

50. CoreCivic’s pay policies violate California’s minimum wage laws.

18

PLAINTIFFS’ EMPLOYMENT AT THE OTAY MESA FACILITY

19 A. Plaintiff Carlos Gonzalez

20

51. Mr. Gonzalez is citizen of El Salvador and an asylum seeker in the United States. He

21 lives with his family in Bakersfield, California.
22 52. Mr. Gonzalez was detained at the Otay Mesa Facility from approximately May 7, 2017
23 to approximately November 30, 2017. He was detained along with his stepson, Plaintiff Juan Jose
24
25 Merino-Rodas.

26

53. Mr. Gonzalez has performed work for CoreCivic at the Otay Mesa Facility and was

27 not paid the state minimum wage for the work he has performed.

28 10

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1

54. As a kitchen worker, Mr. Gonzalez prepared, cooked, and served meals, washed

2 dishes, and cleaned the kitchen area. He worked six-hour shifts, starting at 3:00 am, up to seven days

3 per week. He used cleaning supplies and equipment provided by CoreCivic.

4 55. When he was hired to work in the kitchen, Mr. Gonzalez was forced to sign a waiver
5
of his workers’ compensation rights. 6

7

56. As a janitor, Mr. Gonzalez cleaned and maintained the intake area of the Facility. He

8 worked three-hour shifts, up to seven days per week. He used cleaning supplies and equipment

9 provided by CoreCivic.

10

57. Mr. Gonzalez also worked for three weeks cleaning and maintaining the office of the

11 Facility manager. He worked three-hour shifts, up to seven days per week. He used cleaning supplies

12 and equipment provided by CoreCivic.
13 58. Mr. Gonzalez worked in the Facility manager’s office because he was promised
14 payment of $1 per day, plus soda and candy bars, in exchange for his labor. However, he never
15
16 received any payment, soda, or candy bars – or anything else – for his work.

17

59. In return for this labor in the kitchen, intake area, and the manager’s office, Mr.

18 Gonzalez was paid $1 to $1.50 per day – or nothing at all – regardless of the number of hours he

19 worked. CoreCivic credited these wages to Mr. Gonzalez’s commissary account periodically.

20

60. Mr. Gonzalez spent his wages on food and vitamins from the Otay Mesa Facility

21 commissary, among other necessities.
22 61. Officers at the Otay Mesa Facility threatened to put Mr. Gonzalez in disciplinary
23 segregation, i.e., solitary confinement, revoke his family visitation and commissary access rights, and
24
25 withhold mail delivery if he stopped working or encouraged other detainees to stop working.

26

62. If given a meaningful choice, Mr. Gonzalez would not have worked for less than

27 minimum wage.

28 11

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1

63. CoreCivic falsely led Mr. Gonzalez to believe the corporation could not pay him

2 more than $1.50 per day, despite the fact that it does so as a matter of course at several of its other

3 immigration detention facilities.

4 64. CoreCivic falsely led Mr. Gonzalez to believe that it could require him to work in the
5
Facility Manager’s officer for no pay at all. 6

7

65. CoreCivic falsely led Mr. Gonzalez to believe he had to waive his protections under

8 California’s Worker’s Compensation laws while working as an employee at the facility.

9

66. CoreCivic retained the value of Mr. Gonzalez’s labor by realizing this value as

10 corporate profits, rather than using it to provide for safer, more humane living conditions for

11 detainees at the Otay Mesa Facility.

12 B. Plaintiff Juan Jose Merino-Rodas

13 67. Mr. Merino-Rodas is citizen of El Salvador and an asylum seeker in the United States.
14
He lives with his family in Bakersfield, California. 15

16

68. Mr. Merino-Rodas was detained at the Otay Mesa Facility from May 2017 through

17 November 2017.

18

69. Mr. Merino-Rodas has performed work for CoreCivic at the Otay Mesa Facility and

19 was not paid the state minimum wage for the work he has performed.

20

70. As a kitchen worker, Mr. Merino-Rodas washed dishes, prepared and cooked meals,

21 and cleaned the kitchen area. He worked six-hour shifts, up to seven days per week. He used cleaning
22 supplies and equipment provided by CoreCivic.
23 71. While employed by CoreCivic as a kitchen worker, Mr. Merino-Rodas suffered an
24
25 extremely painful burn to his arm that required medical treatment. CoreCivic denied Mr. Merino-

26 Rodas access to California’s Worker’s Compensation protections and required him to return to work

27 just one day later—before he fully recovered.

28 12

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1

72. Detainee laborers at the Otay Mesa Facility have, like Mr. Merino-Rodas, suffered on-

2 the-job injuries for which they received inadequate treatment and compensation.

3

73. Mr. Merino-Rodas was also employed to clean and maintain the intake area of the

4 Facility. In this role, he worked three-hour shifts, seven days per week. He used cleaning supplies and
5
equipment provided by CoreCivic. 6

7

74. In return for this labor, Mr. Merino-Rodas was paid $1.50 per day, regardless of the

8 number of hours he worked. CoreCivic credited these wages to his commissary account periodically.

9

75. Mr. Merino-Rodas spent his wages on food and medicine from the Otay Mesa

10 Facility commissary, among other necessities.

11

76. Officers at the Otay Mesa Facility threatened to put Mr. Merino-Rodas in disciplinary

12 segregation, i.e., solitary confinement, if he stopped working or encouraged other detainees to stop

13 working.
14
77. 15

If given a meaningful choice, Mr. Merino-Rodas would not have worked for less than

16 the minimum wage.

17

78. CoreCivic falsely led Mr. Merino-Rodas to believe the corporation could not pay him

18 more than $1.50 per day, despite the fact that it does so as a matter of course at several of its other

19 immigration detention facilities.

20

79. CoreCivic falsely led Mr. Merino-Rodas to believe he had to waive his protections

21 under California’s Worker’s Compensation laws while working as an employee at the facility.
22 80. CoreCivic retained the value of Mr. Merino-Rodas’ labor by realizing this value as
23 corporate profits, rather than using it to provide for safer, more humane living conditions for
24
25 detainees at the Otay Mesa Facility.

26 C. Plaintiff Maribel Gutierrez-Canchola

27

81. Ms. Gutierrez-Canchola is a citizen of Mexico and an asylum seeker in the United

28 States. 13

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1

82. Ms. Gutierrez-Canchola is currently detained at the Otay Mesa Facility. She has been

2 detained there since approximately June 17, 2017.

3

83. Ms. Gutierrez-Canchola performs work for CoreCivic at the Otay Mesa Facility, and

4 is not paid the state minimum wage for the work she performs.
5
84. As a janitor, Ms. Gutierrez-Canchola cleans and maintains bathrooms, showers, 6

7 kitchens, lobbies, stairwells, offices, and other areas through the Facility. She works up to six hours

8 per day, five days a week. She uses cleaning supplies and equipment provided by CoreCivic.

9

85. In return for this labor, Ms. Gutierrez-Canchola is paid $1.50 per day, regardless of

10 the number of hours she works. CoreCivic credits these wages to Ms. Gutierrez-Canchola’s

11 commissary account periodically.

12

86. Ms. Gutierrez-Canchola spends her wages on food, medicine, clothing, soap, and

13 shampoo from the Otay Mesa Facility commissary, among other necessities.
14
87. If given a meaningful choice, Ms. Gutierrez-Canchola would not work for less than 15

16 the minimum wage.

17

88. CoreCivic falsely led Ms. Gutierrez-Canchola to believe the corporation cannot pay

18 her more than $1.50 per day, despite the fact that it does so as a matter of course at several of its

19 other immigration detention facilities.

20

89. CoreCivic has retained and currently retains the value of Ms. Gutierrez-Canchola’s

21 labor by realizing this value as corporate profits, rather than using it to provide for safer, more

22 humane living conditions for detainees at the Otay Mesa Facility.
23
D. Plaintiff Gladys Carrera-Duarte 24

25

90. Ms. Carrera-Duarte is a citizen of Guatemala and an asylum seeker in the United

26 States.

27

91. Ms. Carrera-Duarte is currently detained at the Otay Mesa Facility. She has been

28 detained there since approximately June 30, 2017. 14

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1

92. Ms. Carrera-Duarte performs work for CoreCivic at the Otay Mesa Facility, and is not

2 paid the state minimum wage for the work she performs.

3

93. As a janitor, Ms. Carrera-Duarte cleans and maintains bathrooms, showers, kitchens,

4 lobbies, stairwells, offices, and other areas through the Facility. She works up to six hours per day,
5
five days a week. She uses cleaning supplies and equipment provided by CoreCivic. 6

7

94. In return for this labor, Ms. Carrera-Duarte is paid $1.50 per day, regardless of the

8 number of hours she works. CoreCivic credits these wages to her commissary account periodically.

9

95. Ms. Carrera-Duarte spends her wages on food, medicine, clothing, soap, and

10 shampoo from the Otay Mesa Facility commissary, among other necessities.

11

96. If given a meaningful choice, Ms. Carrera-Duarte would not work for $1.50 per day.

12

97. CoreCivic falsely led Ms. Carrera-Duarte to believe the corporation cannot pay her

13 more than $1.50 per day, despite the fact that it does so as a matter of course at several of its other
14
immigration detention facilities. 15

16

98. CoreCivic has retained and currently retains the value of Ms. Carrera-Duarte’s labor

17 by realizing this value as corporate profits, rather than using it to provide for safer, more humane

18 living conditions for detainees at the Otay Mesa Facility.

19 E. Plaintiff Jennye Pagoada-Lopez

20

99. Ms. Pagoada-Lopez is a citizen of Honduras and an asylum seeker in the United

21 States.

22 100. Ms. Pagoada-Lopez is currently detained at the Otay Mesa Facility. She has been
23
detained there since approximately June 24, 2017. 24

25

101. Ms. Pagoada-Lopez performs work for CoreCivic at the Otay Mesa Facility, and is

26 not paid the state minimum wage for the work she performs.

27

102. Ms. Pagoada-Lopez was employed for approximately six weeks as a janitor. She

28 cleaned and maintained bathrooms, showers, kitchens, lobbies, stairwells, offices, and other areas 15

Case 3:17-cv-02573-AJB-NLS Document 1 Filed 12/27/17 PageID.16 Page 16 of 25

1 through the Facility. She worked up to six hours per day, five days a week. She used cleaning

2 supplies and equipment provided by CoreCivic.

3

103. In return for this labor, Ms. Pagoada-Lopez was paid $1.50 per day, regardless of the

4 number of hours she worked. CoreCivic credited these wages to her commissary account
5
periodically. 6

7

104. Currently, Ms. Pagoada-Lopez cleans and maintains communal areas in her pod. She

8 works for up to two hours each day.

9

105. In return for this labor, Ms. Pagoada-Lopez is paid nothing at all. Occasionally,

10 CoreCivic has given Ms. Pagoada-Lopez extra rations of toilet paper and shampoo in exchange for

11 her labor.

12

106. Ms. Pagoada-Lopez spends her wages on food, medicine, clothing, soap, and

13 shampoo from the Otay Mesa Facility commissary, among other necessities. She has lost
14
approximately 30 pounds in detention at the Otay Mesa Facility. 15

16

107. If given a meaningful choice, Ms. Pagoada-Lopez would not work for $1.50 per day

17 or for free.

18

108. CoreCivic falsely led Ms. Pagoada-Lopez to believe the corporation cannot pay her

19 more than $1.50 per day, despite the fact that it does so as a matter of course at several of its other

20 immigration detention facilities.

21

109. CoreCivic has retained and currently retains the value of Ms. Pagoada-Lopez’s labor

22 by realizing this value as corporate profits, rather than using it to provide for safer, more humane
23
living conditions for detainees at the Otay Mesa Facility. 24

25

CLASS ACTION ALLEGATIONS

26

110. Plaintiffs bring this lawsuit as a class action on behalf of themselves, and all others

27 similarly situated as members of the proposed class, under Federal Rules of Civil Procedure 23(a) and

28 16

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1 (b)(2). This action satisfies the numerosity, commonality, typicality, adequacy, predominance, and

2 superiority requirements of those provisions.

3 A. 4 5 6 7

Class Definitions
111. Plaintiffs seek to certify the following classes:
a. The Work Program Class: All civil immigration detainees who performed work for CoreCivic at the Otay Mesa Detention Center in the Work Program within the past ten years.

8

b. The Unlawful Inducement Class: All civil immigration detainees held at the

Otay Mesa Facility within the past ten years who performed work for no

9

compensation outside of their pods.

10

c. The Injured Worker Class: All civil immigration detainees held at the Otay

Mesa Facility within the past ten years who were injured while performing work

11

through CoreCivic’s Work Program and denied access to California’s Worker’s

12

Compensation benefits.

13

d. The Unpaid Cleaner Class: All civil immigration detainees held at the Otay

Mesa Facility who performed labor within their pods within the past ten years

14

under threat of solitary confinement, and/or in exchange for basic necessities.

15

112. Excluded from the definition are the Sylvester Owino, Jonathan Gomez, defendants,

16 their officers, directors, management, employees, subsidiaries, and affiliates, and all federal

17 governmental entities. Plaintiffs reserve the right to revise the Class Definitions based upon
18 information learned through discovery.
19
B. Class Certification Requirements under Rule 23 20

21

113. Numerosity: Each class is so numerous that joinder of all members is impracticable.

22 Plaintiffs do not know the exact size of the class since that information is within the control of

23 CoreCivic. However, upon information and belief, Plaintiffs allege that the number of class members

24 is numbered in the thousands. Membership in the class is readily ascertainable from CoreCivic’s 25 detention and employment records. 26

27

28 17

Case 3:17-cv-02573-AJB-NLS Document 1 Filed 12/27/17 PageID.18 Page 18 of 25

1

114. Commonality and Predominance: There are numerous questions of law or fact

2 common to the Class, and those issues predominate over any question affecting only individual class

3 members. The common legal and factual issues include the following:

4 a. Whether Plaintiffs and Class Members were entitled to the protections of the
5
California Minimum Wage Act; 6

7

b. Whether Plaintiffs and Class Members performed compensable work;

8

c. Whether Plaintiffs and Class Members were paid $1 or $1.50 per day for their

9

labor;

10

d. Whether CoreCivic engaged in conduct that violated California law – including

11

the California Minimum Wage Act, the California Unfair Competition Law, and

12

the California Trafficking Victims Protection Act;

13 e. Whether CoreCivic engaged in conduct that violated the federal Trafficking
14
Victims Protection Act; 15

16

f. Whether Plaintiffs and Class Members are entitled to equitable relief, including

17

injunctive and declaratory relief; and

18

g. Whether Plaintiffs and the Class Members are entitled to damages and other

19

monetary relief and, if so, in what amount.

20

115. Typicality: The claims asserted by Plaintiffs are typical of the claims of the Class, in

21 that the representative Plaintiffs, like all Class Members, were paid subminimum wages while

22 employed by CoreCivic at the Otay Mesa Facility. Each member of the proposed Class has been
23
similarly injured financially by CoreCivic’s misconduct. 24

25

116. Adequacy: Plaintiffs will fairly and adequately protect the interests of the Class.

26 Plaintiffs have retained attorneys experienced in class and complex litigation, including wage and

27 hour class action litigation. Plaintiffs intend to vigorously prosecute this litigation. Neither Plaintiffs

28 nor their counsel have interests that conflict with the interests of the other class members. 18

Case 3:17-cv-02573-AJB-NLS Document 1 Filed 12/27/17 PageID.19 Page 19 of 25

1

117. Superiority: Plaintiffs and Class Members have all suffered and will continue to

2 suffer harm and damages as a result of CoreCivic’s wrongful conduct. A class action is superior to
3 other available methods for the fair and efficient adjudication of the controversy. Treatment as a class 4
action will permit a large number of similarly situated persons to adjudicate their common claims in a 5
single forum simultaneously, efficiently, and without the duplication of effort and expense that 6 7 numerous individual actions would engender. Class treatment will also permit the adjudication of
8 claims by many members of the proposed class who could not individually afford to litigate a claim

9 such as is asserted in this complaint. This class action likely presents no difficulties in management

10 that would preclude maintenance as a class action.

11

118. This action satisfies the requirements of Rule 23(b)(2) because CoreCivic has acted

12 and refused to act on grounds generally applicable to the Class, thereby making appropriate final

13 injunctive and/or corresponding declaratory relief with respect to each Class Member.
14
CAUSES OF ACTION 15

16

COUNT I CALIFORNIA MINIMUM WAGE LAW

17

Cal. Labor Code §§ 1194, 1197, 1197.1

18

119. Plaintiffs reallege and incorporate by reference herein all allegations above.

19

120. The California Legislature set the following minimum wages for 2011-2017:10

20

January 1, 2017

$10.50 for employers with 26 employees or more

21

January 1, 2014

$9.00

22

January 1, 2008

$8.00

23

24

25

121. The minimum wage is an obligation of the employer and cannot be waived by any

26 agreement.

27

122. Detainees at the Otay Mesa Facility do not forfeit their rights to wage protections.

28 10 See http://www.dir.ca.gov/iwc/MinimumWageHistory.htm/; https://www.dir.ca.gov/dlse/faq_minimumwage.htm 19

Case 3:17-cv-02573-AJB-NLS Document 1 Filed 12/27/17 PageID.20 Page 20 of 25

1

123. Employees protected by California’s minimum wage laws must be paid at least the set

2 hourly minimum wage.

3

124. Detainees at the Otay Mesa Facility who participate in the Work Program qualify as

4 employees of CoreCivic under California law.
5
125. CoreCivic qualifies as an employer under California law. 6

7

126. Labor in the immigration detention context is not intended as a punitive measure.

8

127. CoreCivic does not compensate detainees the state minimum wage for the work they

9 performed at the Otay Mesa Facility. Instead, CoreCivic pays detainees $1 or $1.50 per day – or

10 nothing at all – for work they perform at its facility.

11

128. Plaintiffs seek to recover, on their own behalf and on behalf of all others similarly

12 situated, unpaid minimum wages and costs of this suit.

13 129. This Count applies to the Work Program Class, the Unlawful Inducement Class, the
14 Injured Worker Class, and the Unpaid Cleaner Class.
15

16

COUNT II UNJUST ENRICHMENT

17

California Common Law

18

130. Plaintiffs reallege and incorporate by reference herein all allegations above.

19

131. CoreCivic materially and significantly reduced its labor costs and expenses, and

20 increased its profits, because Plaintiffs and Class Members perform undercompensated labor.

21

132. Plaintiffs and Class Members conferred non-gratuitous benefits upon CoreCivic by

22 performing work for $1 or $1.50 per day, or for nothing at all, for which CoreCivic would otherwise
23 have had to pay at least the applicable minimum wage or more, thereby significantly and materially
24

25 increasing CoreCivic’s profits, unjustly enriching CoreCivic at the expense of and detriment to

26 Plaintiffs and Class Members.

27

133. CoreCivic’s retention of any benefit collected directly and indirectly from this

28 uncompensated labor violated principles of justice, equity, and good conscience. 20

Case 3:17-cv-02573-AJB-NLS Document 1 Filed 12/27/17 PageID.21 Page 21 of 25

1

134. As a direct and proximate result of CoreCivic’s forced labor practices, Plaintiffs and

2 Class Members have suffered concrete harm and injury, including physical and emotional injury,
3 monetary loss, and the unlawful violation of their rights. 4
135. Plaintiffs and Class Members are entitled to recover from CoreCivic all amounts that 5
CoreCivic has wrongfully and improperly obtained, and CoreCivic should be required to disgorge to 6 7 Plaintiffs and Class Members the benefits it has unjustly obtained. Plaintiffs and Class Members are
8 also entitled to recover exemplary damages. C.R.S. § 13- 21-102.

9

136. This Count applies to the Work Program Class, the Unlawful Inducement Class, the

10 Injured Worker Class, and the Unpaid Cleaner Class.

11

COUNT III

12

CALIFORNIA UNFAIR COMPETITION LAW Cal. Bus. & Prof. Code § 17200, et seq.

13 137. Plaintiffs reallege and incorporate by reference herein all allegations above.
14 138. California’s Unfair Competition Law (“UCL”) prohibits unfair competition, defined
15
16 as “any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or

17 misleading advertising and any act prohibited by [California’s False Advertising Law].” Cal. Bus. &

18 Prof. Code § 17200.

19

139. CoreCivic willfully violated, and continues to violate, the “unlawful” prong of the

20 UCL by violating California labor law.

21

140. The acts, omissions, and practices of CoreCivic constitute unfair and unlawful

22 business acts and practices under the UCL in that CoreCivic’s conduct offends public policy against
23
forced labor, and seeks to profit by violating Plaintiffs’ rights under state and federal law. 24

25

141. As a direct and proximate result of CoreCivic’s unlawful and unfair business practices,

26 Plaintiffs and Class Members have suffered economic injury.

27

142. This Count applies to the Work Program Class, the Unlawful Inducement Class, the

28 Injured Worker Class, and the Unpaid Cleaner Class. 21

Case 3:17-cv-02573-AJB-NLS Document 1 Filed 12/27/17 PageID.22 Page 22 of 25

1

COUNT IV

CALIFORNIA TRAFFICKING VICTIMS PROTECTION ACT

2

Cal. Civ. Code § 52.5

3

143. Plaintiffs reallege and incorporate by reference herein all allegations above.

4 144. Pursuant to the California Trafficking Victims Protection Act, Cal. Civ. Code § 52.5,
5
“a victim of human trafficking, as defined in Section 236.1 of the Penal Code, may bring a civil action 6

7 for actual damages, compensatory damages, punitive damages, injunctive relief, any combination of

8 those, or any other appropriate relief.”

9

145. Human trafficking is defined as the deprivation or violation of the personal liberty of

10 another “with the intent to obtain forced labor or services.” Cal. Penal Code § 236.1.

11

146. Forced labor or services is defined as “labor or services that are performed or

12 provided by a person and are obtained or maintained through force, fraud, duress, or coercion, or

13 equivalent conduct that would reasonably overbear the will of the person.” Cal. Penal Code
14
§ 236.1(h)(5). 15

16

147. CoreCivic materially and significantly reduced its labor costs and expenses, and

17 increased its profits, by unlawfully forcing and coercing Plaintiffs and Class Members to perform

18 uncompensated labor. In order to drive profits, CoreCivic acted with the intent to obtain forced

19 labor or services from its detainees.

20

148. As alleged herein, CoreCivic did not and does not provide detainees at the Otay Mesa

21 Facility with sufficient provisions and necessities for daily life. In order to purchase these necessary

22 items, including food, medicine, hygiene products, and clothing, Plaintiffs and Class Members were
23
and are forced or coerced to perform labor and services for CoreCivic for $1 or $1.50 per day. 24

25

149. Plaintiffs and Class Members are entitled to recover from CoreCivic all amounts that

26 CoreCivic has wrongfully and improperly obtained, and CoreCivic should be required to disgorge to

27 Plaintiffs and Class Members the benefits it has unjustly obtained. Plaintiffs and Class Members are

28 also entitled to recover exemplary damages. C.R.S. § 13- 21-102. 22

Case 3:17-cv-02573-AJB-NLS Document 1 Filed 12/27/17 PageID.23 Page 23 of 25

1

150. This Count applies to the Work Program Class and the Unpaid Cleaner Class.

2

COUNT V

3

ATTEMPTED FORCED LABOR 18 U.S.C. §§ 1589(a) & 1594(a)

4 151. Plaintiffs reallege and incorporate by reference herein all allegations above.
5
152. Plaintiffs and Class Members are victims of attempted forced labor as defined by 6

7 18 U.S.C. § 1589(a).

8

153. CoreCivic violates 18 U.S.C. § 1589(a)(2) by knowingly maintaining a corporate policy

9 and uniform practice at the Otay Mesa Facility aimed at obtaining nearly free detainee labor and

10 services by:

11

a. Withholding daily necessities from Plaintiffs and Class Members, thereby forcing

12

them to work for subminimum wages in order to buy those daily necessities for themselves and avoid serious harm, including, but not limited to, malnutrition,

13

unsanitary living quarters, extreme isolation, and unhygienic conditions of

confinement; and

14

b. Threatening Plaintiffs and Class Members with physical restraint, serious harm,

15

and abuse of law or legal process if they refuse to provide their labor, organize a

16

work stoppage, or participate in a work stoppage.

17

154. CoreCivic further violated 18 U.S.C. § 1589 by maintaining a corporate policy and

18 uniform practice at the Otay Mesa Facility of threatening Plaintiffs and Class Members with serious

19 harm, including solitary confinement, referral to an ICE officer, or criminal prosecution if they

20 refused to work.

21

155. CoreCivic attempted to perpetrate the offense of forced labor against Plaintiffs and

22 Class Members.
23
156. CoreCivic knowingly benefitted financially from participation in a venture CoreCivic 24

25 knew or should have known engaged in unlawful coercion of labor in violation of 18 U.S.C. § 1589.

26

157. Plaintiffs and Class Members have suffered damages in an amount to be determined

27 at trial.

28 23

Case 3:17-cv-02573-AJB-NLS Document 1 Filed 12/27/17 PageID.24 Page 24 of 25

1

158. Plaintiffs and Class Members are entitled to recover compensatory and punitive

2 damages.

3

159. Plaintiffs and Class Members are entitled to recover mandatory restitution in the full

4 amount of their losses.
5
160. Plaintiffs and Class Members are entitled to recover their reasonable attorney’s fees. 6

7

161. This Count applies to the Work Program Class and the Unpaid Cleaner Class.

8

PRAYER FOR RELIEF

9

WHEREFORE, Plaintiffs, individually and on behalf of the Class, requests that the Court:

10

a. Certify this action as a class action, with classes as defined above;

11

b. Find that Plaintiffs are proper representatives of the Classes, and appoint the undersigned

12

as Class Counsel;

13

c. Order CoreCivic to pay for notifying Class Members of the pendency of this suit;

14

d. Order disgorgement of CoreCivic’s unjustly-acquired revenue, profits, and other benefits

resulting from its unlawful conduct;

15

16

e. Award declaratory and other equitable relief as is necessary to protect the interests of Plaintiffs and Class Members;

17 f. Award injunctive relief as is necessary to protect the interests of Plaintiffs and Class

18

Members, including enjoining CoreCivic from continuing to conduct business through

the unlawful and unfair practices alleged herein;

19

g. Award Plaintiffs and Class Members monetary damages for lost wages in an amount to

20

be determined at trial;

21

h. Award Plaintiffs and Class members their reasonable litigation expenses and attorney’s

22

fees; and

23

i. Award any further relief that the Court deems just and equitable.

24 25 Dated: December 27, 2017

Respectfully Submitted,

26 /s/ Will Thompson

27

Korey A. Nelson*

Lydia A. Wright*

28

BURNS CHAREST LLP

24

Case 3:17-cv-02573-AJB-NLS Document 1 Filed 12/27/17 PageID.25 Page 25 of 25

1

365 Canal Street, Suite 1170

New Orleans, LA 70130

2

Telephone: (504) 799-2845

3

Facsimile: (504) 881-1765 knelson@burnscharest.com

4

lwright@burnscharest.com

5

Warren T. Burns*

Daniel H. Charest*

6

Will Thompson (Cal. Bar No. 289012)

7

BURNS CHAREST LLP 900 Jackson St., Suite 500

8

Dallas, Texas 75202

Telephone: (469) 904-4550

9

Facsimile: (469) 444-5002

wburns@burnscharest.com

10

dcharest@burnscharest.com

wthompson@burnscharest.com 11

12

R. Andrew Free* andrew@immigrantcivilrights.com

13

Matthew Freda*

Matt@immigrantcivilrights.com

14

LAW OFFICE OF R. ANDREW FREE

P.O. Box 90568

15

Nashville, TN 37209

16

Telephone: (844) 321-3221 Facsimile: (615) 829-8959

17 Nicole Ramos*

18

nicole@alotrolado.org

AL OTRO LADO

19

511 E. San Ysidro Blvd., # 333

San Ysidro, CA 92173

20

Telephone: (619) 786-4866

21

Robert R. Ahdoot (Cal. Bar No. 172098)

22

rahdoot@ahdootwolfson.com

AHDOOT & WOLFSON, APC

23

8424 Santa Monica Blvd., Ste. 575

West Hollywood, CA 90069

24

Telephone: (310) 474-9111

25

Facsimile: (310) 474-8585

26

*Application for admission pro hac vice

forthcoming.

27 Attorneys for Plaintiffs.
28

25

 
 Case 3:17-cv-02573-JLS-NLS Document 36 Filed 03/06/18 PageID.198 Page 1 of 5

1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10

11 CARLOS GONZALEZ, JUAN JOSE

12

MERINO-RODAS, MARIBEL GUTIERREZ-DUARTE, and JENNYE

13 PAGOADA-LOPEZ, individually and on

14 behalf of all others similarly situated,

15 v.
16

Plaintiffs,

17 CORECIVIC, INC.,

Defendant. 18

Case No.: 17-CV-2573 JLS (NLS)
ORDER: (1) GRANTING MOTION FOR LIMITED INTERVENTION; (2) DENYING AS MOOT EX PARTE MOTION TO SHORTEN TIME; (3) VACATING HEARING; AND (4) SETTING BRIEFING SCHEDULE
(ECF No. 32)

19 Presently before the Court are Sylvester Owino and Jonathan Gomez’s (the “Owino
20 21 Plaintiffs”) Motion for Limited Intervention, (ECF No. 32), and ex parte Motion to Shorten
Time, (ECF No. 33). The Owino Plaintiffs are not parties to this case; they are plaintiffs 22
in a related matter also before this Court, see Owino et al. v. CoreCivic, Inc., No. 17-CV23
1112-JLS-NLS. They seek to intervene in the above-captioned case (the “Gonzalez 24
action”) for the limited purpose of opposing the Motion to Consolidate, currently pending 25 26 before the Court, (see ECF No. 23). The Owino Plaintiffs’ Motion for Limited Intervention
is unopposed. Having considered the proposed intervenors’ arguments and the law, the 27
Court GRANTS the Motion for Limited Intervention, (ECF No. 32), to the extent detailed 28

1 17-CV-2573 JLS (NLS)

Case 3:17-cv-02573-JLS-NLS Document 36 Filed 03/06/18 PageID.199 Page 2 of 5

1 herein. The Court DENIES AS MOOT the ex parte Motion to Shorten Time, (ECF No.

2 33). On its own motion, the Court VACATES the hearing on the Motion for Limited

3 Intervention, (ECF No. 32), presently set for March 22, 2018.

4

BACKGROUND

5

On May 31, 2017, Sylvester Owino and Jonathon Gomez (the “Owino Plaintiffs”)

6 filed suit against Defendant CoreCivic, Inc. in Owino et al. v. CoreCivic, Inc., No. 17-CV-

7 1112-JLS-NLS. On August 11, 2017, Defendant CoreCivic filed a motion to dismiss for

8 failure to state a claim. Then, on December 27, 2017, Plaintiffs Carlos Gonzalez et al. (the

9 “Gonzalez Plaintiffs”) filed a complaint against CoreCivic, Inc. in the Gonzalez action, No.

10 17-CV-2573-JLS-NLS. On January 22, 2018, the Gonzalez Plaintiffs filed a Motion to

11 Consolidate Cases and Appoint Interim Lead Class Counsel, (ECF No. 23). In light of the

12 Motion to Consolidate and the potential common issues between these two actions, the

13 Court stayed the Owino et al. v. CoreCivic case and deferred ruling on Defendant’s motion

14 to dismiss. The Owino Plaintiffs now seek to intervene in the Gonzalez action for the sole

15 purpose of opposing the pending Motion to Consolidate.

16

LEGAL STANDARD

17

Federal Rule of Civil Procedure 24(a)(2) permits a party to intervene as a matter of

18 right. The Ninth Circuit has adopted “[a] four-part test . . . to determine whether

19 applications for intervention as a matter of right pursuant to Rule 24(a)(2) should be

20 granted.” Cnty. of Orange v. Air Cal., 799 F.2d 535, 537 (9th Cir. 1986).

21

An order granting intervention as of right is appropriate if: (1)

22

the applicant’s motion is timely; (2) the applicant has asserted an interest relating to the property or transaction which is the subject

23

of the action; (3) the applicant is so situated that without

24

intervention the disposition may, as a practical matter, impair or impede its ability to protect that interest; and (4) the applicant’s

25

interest is not adequately represented by the existing parties.

26 Id. (quoting United States v. Stringfellow, 783 F.2d 821, 826 (9th Cir. 1986)). “Generally,

27 Rule 24(a)(2) is construed broadly in favor of proposed intervenors and ‘[courts] are guided

28 primarily by practical considerations.’” United States ex rel. McGough v. Covington

2 17-CV-2573 JLS (NLS)

Case 3:17-cv-02573-JLS-NLS Document 36 Filed 03/06/18 PageID.200 Page 3 of 5

1 Techs. Co., 967 F.2d 1391, 1394 (9th Cir. 1992) (quoting Stringfellow, 783 F.2d at 826).

2 “The ‘liberal policy in favor of intervention serves both efficient resolution of issues and

3 broadened access to the courts.’” Peruta v. Cnty. of San Diego, 711 F.3d 570, 577 (9th

4 Cir. 2014) (Thomas, J., dissenting) (quoting United States v. City of Los Angeles, 288 F.3d

5 391, 397–98 (9th Cir. 2002)).

6

Federal Rule of Civil Procedure 24(b) provides that an application for permissive

7 intervention may be granted if the party seeking to intervene “has a claim or defense that

8 shares with the main action a common question of law or fact.” Fed. R. Civ. P. 24(b)(1)(B).

9 “Generally, permissive intervention under Rule 24(b) requires ‘(1) an independent ground

10 for jurisdiction; (2) a timely motion; and (3) a common question of law and fact between

11 the movant’s claim or defense and the main action.’” Blum v. Merrill Lynch Pierce Fenner

12 & Smith Inc., 712 F.3d 1349, 1353 (9th Cir. 2013) (quoting Beckman Indus., Inc. v. Int’l

13 Ins. Co., 966 F.2d 470, 476 (9th Cir. 1992)). “Permissive intervention is committed to the

14 broad discretion of the district court.” Air Cal., 799 F.2d at 539 (citing United States v.

15 $129,374 in U.S. Currency, 769 F.2d 583, 586 (9th Cir. 1985)). “In exercising its

16 discretion, the court must consider whether the intervention will unduly delay or prejudice

17 the adjudication or the original parties’ rights.” Fed. R. Civ. P. 24(b)(3).

18

Additionally, “[t]he district court’s discretion . . . under Rule 24(b), to grant or deny

19 an application for permissive intervention includes discretion to limit intervention to

20 particular issues.” Dep’t of Fair Emp’t & Housing v. Lucent Techs., Inc., 642 F.3d 728,

21 741 (9th Cir. 2011) (quoting Van Hoomissen v. Xerox Corp., 497 F.2d 180, 181 (9th Cir.

22 1974)).

23

ANALYSIS

24

The Owino Plaintiffs argue that the Court should grant their motion as either an

25 intervention as a matter of right, under Rule 24(a)(2), or permissive intervention, under

26 Rule 24(b). (See ECF No. 32-1, at 3–11.) The Court finds that a permissive intervention

27 under Rule 24(b) is appropriate because the Owino Plaintiffs seek to intervene for the

28 limited purpose of opposing the Gonzalez Plaintiffs’ Motion to Consolidate. (See id. at 2.)

3 17-CV-2573 JLS (NLS)

Case 3:17-cv-02573-JLS-NLS Document 36 Filed 03/06/18 PageID.201 Page 4 of 5

1 In so doing, the Court does not decide the merits of the Owino Plaintiffs’ intervention as a

2 matter of right. The Court interprets the Owino Plaintiffs’ motion as limited to opposing

3 the motion to consolidate, rather than intervening in the case as a party. This finding, of

4 course, does not bar the Owino Plaintiffs from moving for such relief in the future.

5

The Court finds that the Owino Plaintiffs’ Motion for Limited Intervention meets

6 Rule 24(b)’s requirements. See Blum, 712 F.3d at 1353. The Owino Plaintiffs have an

7 independent ground for jurisdiction as they are properly before the Court in case number

8 17-CV-1112; their filing is timely because the Motion to Consolidate remains pending; and

9 the Motion to Consolidate implicates common questions of law and fact because all

10 Plaintiffs allege violations of law arising out of Defendant’s operation of its Otay Mesa

11 Detention Facility. Most importantly, the Owino Plaintiffs represent in their Motion for

12 Limited Intervention that no party opposes their Motion. (ECF No. 32, at 2.) Accordingly,

13 the Court GRANTS the Owino Plaintiffs’ Motion to Intervene. However, the Court limits

14 the intervention as follows: the Owino Plaintiffs may oppose, and file briefings as

15 necessary to oppose, the Gonzalez Plaintiffs’ Motion to Consolidate, (ECF No. 23). See

16 Dep’t of Fair Emp’t & Housing, 642 F.3d at 741. The Owino Plaintiffs are not, at this

17 time, parties to the Gonzalez action, No. 17-CV-2573.

18

CONCLUSION

19

Good cause appearing, the Court GRANTS the Motion for Limited Intervention,

20 (ECF No. 32), to the extent detailed above. The Court DENIES AS MOOT the ex parte

21 Motion to Shorten Time, (ECF No. 33). On its own motion, the Court VACATES the

22 hearing on the Motion for Limited Intervention, presently set for March 22, 2018. The

23 Owino Plaintiffs represent that they are prepared to file an Opposition brief to the Motion

24 to Consolidate on or before March 8, 2018. (ECF No. 32, at 2.)

25 / / /

26 / / /

27 / / /

28 / / /

4 17-CV-2573 JLS (NLS)

Case 3:17-cv-02573-JLS-NLS Document 36 Filed 03/06/18 PageID.202 Page 5 of 5

1 Accordingly, the Court sets the following briefing schedule. The Owino Plaintiffs SHALL

2 FILE an Opposition on or before March 8, 2018. The remaining parties SHALL FILE a

3 Reply, if any, on or before March 15, 2018. If any party or limited intervenor cannot meet

4 the briefing schedule, he or she may move for appropriate relief.

5

IT IS SO ORDERED.

6 Dated: March 6, 2018 7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

5 17-CV-2573 JLS (NLS)

 
 Case 3:17-cv-02573-JLS-NLS Document 44 Filed 04/04/18 PageID.366 Page 1 of 10

1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10

11 CARLOS GONZALEZ, JUAN JOSE

12

MERINO-RODAS, MARIBEL GUTIERREZ-DUARTE, and JENNYE

13 PAGOADA-LOPEZ, individually and on

14 behalf of all others similarly situated,

15 v.
16

Plaintiffs,

17 CORECIVIC, INC.,

Defendant. 18

Case No.: 17-CV-2573 JLS (NLS)
ORDER: (1) DENYING MOTION TO CONSOLIDATE; AND (2) STAYING CASE
(ECF No. 23)

19

20

Presently before the Court is Plaintiffs Carlos Gonzalez, Juan Jose Merino-Rodas,

21 Maribel Gutierrez-Canchola, Gladys Carrera-Duarte, and Jennye Pagoada-Lopez’s

22 (“Gonzalez Plaintiffs”) Motion to Consolidate, (“MTN,” ECF No. 23). The Court

23 permitted the plaintiffs (“Owino Plaintiffs”) in a related matter, Owino v. CoreCivic, 17-

24 CV-1112, to intervene for the limited purpose of filing an opposition to this Motion, (ECF

25 No. 36). Accordingly, Owino Plaintiffs filed a Response in Opposition, (“Owino Opp’n,”

26 ECF No. 37), as did Defendant CoreCivic, Inc., (“Def. Opp’n,” ECF No. 38), to the

27 Gonzalez Plaintiffs’ Motion. The Gonzalez Plaintiffs filed a Reply in Support of, (“Reply,”

28 ECF No. 41), their Motion. The Court vacated the hearing and took the matter under

1 17-CV-2573 JLS (NLS)

Case 3:17-cv-02573-JLS-NLS Document 44 Filed 04/04/18 PageID.367 Page 2 of 10

1 submission without oral argument pursuant to Civil Local Rule 7.1(d)(1). (ECF No. 42.)

2 Having considered the Parties’ arguments and the law, the Court rules as follows.

3

BACKGROUND

4

This case involves two related class actions. On May 31, 2017, Owino Plaintiffs

5 filed a putative class action against Defendant in this Court. (“Owino Compl.,” ECF No.

6 1, Case No. 17-CV-1112.) The Owino Plaintiffs are former civil immigration detainees

7 and allege they were paid $1 a day for labor while they were interred at Defendant’s Otay

8 Mesa Detention Facility. (Id. ¶ 10.) They also allege that other detainees were forced to

9 work for no pay. (Id. ¶ 13.) Owino Plaintiffs seek to certify a class of “all civil immigration

10 detainees who performed Forced Labor uncompensated work for CoreCivic at any

11 Detention Facility owned or operated by it between November 2, 2004 to the applicable

12 opt-out date, inclusive.” (Id. ¶ 30.)

13

On December 27, 2017, Gonzalez Plaintiffs filed a second putative class action

14 lawsuit against Defendant in the Southern District. (“Gonzalez Compl.,” ECF No. 1.) The

15 case was transferred from Judge Anthony J. Battaglia’s calendar to this Court pursuant to

16 Civil Local Rule 40.1. The Gonzalez Plaintiffs, like Owino Plaintiffs, are former civil

17 immigration detainees housed at Defendant’s Otay Mesa facility. They allege that they

18 received $1 or $1.50 a day for their labor at the detention facility. The Gonzales Plaintiffs

19 seek to certify classes, including “[a]ll civil immigration detainees who performed work

20 for CoreCivic at the Otay Mesa Detention Center in the Work Program within the past ten

21 years.” (Id. ¶ 111.) Gonzalez Plaintiffs now seek to consolidate the two class actions.

22

LEGAL STANDARD

23

Consolidation of actions is appropriate “[i]f actions before the court involve a

24 common question of law or fact.” Fed. R. Civ. P. 42(a)(2). A district court has broad

25 discretion in determining whether to consolidate actions pending in the same district. See

26 Investors Research Co. v. U.S. Dist. Court for Cent. Dist. Of Cal., 877 F.2d 777, 777 (9th

27 Cir. 1989) (citing 9 Charles A. Wright et al., Federal Practice and Procedure § 2383

28 (1971); and A/S J. Ludwig Mowinckles Rederi v. Tidewater Const. Co., 559 F.2d 928 (4th

2 17-CV-2573 JLS (NLS)

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1 Cir. 1977)). “In determining whether to consolidate cases, a court should also weigh any

2 time and effort saved by consolidation against any ‘inconvenience, delay, or expense that

3 [consolidation] would cause.’” Fialkov v. Celladon Corp., No. 15CV1458 AJB (DHB),

4 2015 WL 11658717, at *2 (S.D. Cal. Dec. 9, 2015) (alteration in original) (citing Huene v.

5 United States, 743 F.2d 703, 704 (9th Cir. 1984)).

6

ANALYSIS

7

All parties across both actions agree that the Owino and Gonzalez actions involve

8 related facts and claims. The parties diverge, however, on what steps the Court should take

9 to manage its docket and proceed forward with this case and the Owino case. Gonzalez

10 Plaintiffs argue that their action involves common questions of law and fact such that

11 consolidation of their action with the Owino action would be appropriate. (See MTN 4.)1

12 Both Owino Plaintiffs and Defendant argue that the Court should exercise its discretion to

13 dismiss, rather than consolidate, the Gonzalez action because the Gonzalez action is

14 duplicative of the Owino action. (Def Opp’n 11; Owino Opp’n 7.) In response, Gonzalez

15 Plaintiffs argue that dismissal of their action would be inappropriate because the two

16 actions are not duplicative. (Reply 6.) The Court proceeds as follows. First, the Court

17 determines whether the Gonzalez action is duplicative of the Owino action. Second, the

18 Court determines which procedural action best serves the interests of judicial economy and

19 preserves the rights of all parties going forward.

20 I. Whether the Gonzalez Action is Duplicative

21

As a threshold matter, the Court clarifies which rules or standards it applies in the

22 analysis here. There are three similar rules the Court could apply to the issue before the

23 Court. The Gonzalez Plaintiffs urge the Court apply Federal Rule of Civil Procedure 42,

24 which permits the Court to consolidate actions involving “common question of law or

25 fact.” The Owino Plaintiffs would have the Court adopt a “first-to-file” rule, which applies

26 when two similar actions are filed in different federal courts. Defendant submits the rule

27

28 1 Pin citations refer to the page numbers electronically stamped on the EM/CMF filings.

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1 against claim splitting applies, which courts invoke when a plaintiff files two actions

2 against the same defendant based on the same facts. District courts in this circuit have

3 analyzed duplicative class actions under both the first-to-file rule, see Weinstein v. Metlife,

4 Inc., No. C 06-4444 SI, 2006 WL 3201045, at *4 (N.D. Cal. Nov. 6, 2006), and the claim-

5 splitting rule, see Chowning v. Kohl’s Dep’t Stores, Inc., No. CV 15-8673 RGK (SPx),

6 2016 WL 7655752, at *2 (C.D. Cal. Mar. 2, 2016). The Court applies the claim-splitting

7 rule because the first-to-file rule applies to cases between different districts. See Moore v.

8 Roadway Express, Inc., No. CV 09-1588, 2009 WL 10670954, at *4 (C.D. Cal. Oct. 7,

9 2009).

10

“District courts retain broad discretion to control their dockets and ‘[i]n the exercise

11 of that power they may impose sanctions including, where appropriate, default or

12 dismissal.’” Adams v. Cal. Dep’t of Health Servs., 487 F.3d 684, 688 (9th Cir. 2007)

13 (alteration in original) (quoting Thompson v. Hous. Auth. of City of L.A., 782 F.2d 829, 831

14 (9th Cir. 1986) (per curiam); and citing Link v. Wabash R.R., 370 U.S. 626, 629–30 (1962)),

15 abrogated in part by Taylor v. Sturgell, 553 U.S. 880, 904 (2008). “Plaintiffs generally

16 have ‘no right to maintain two separate actions involving the same subject matter at the

17 same time in the same court and against the same defendant.’” Id. (quoting Walton v. Eaton

18 Corp., 563 F.2d 66, 70 (3d Cir. 1977) (en banc)).

19

To determine whether a suit is duplicative, courts apply the test for claim preclusion.

20 See The Haytian Republic, 154 U.S. 118, 124 (1894). This is a two-part standard. Thus, a

21 court must first determine whether the causes of action and relief sought in the two suits

22 are identical. Adams, 487 F.3d at 689. Then a court determines whether the parties, or

23 their privies, are the same. Id.

24

A. Same Causes of Action

25

To determine whether two causes of action are similar, courts apply a transactional

26 test. Id. “Whether two events are part of the same transaction or series depends on whether

27 they are related to the same set of facts and whether they could conveniently be tried

28 together.” Id. (quoting W. Sys., Inc. v. Ulloa, 958 F.2d 864, 871 (9th Cir. 1992); and citing

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1 Restatement (Second) of Judgments § 24(1) (1982)). Courts examine four criteria:

2

(1) whether rights or interests established in the prior judgment

3

would be destroyed or impaired by prosecution of the second action; (2) whether substantially the same evidence is presented

4

in the two actions; (3) whether the two suits involve infringement

5

of the same right; and (4) whether the two suits arise out of the same transactional nucleus of facts.

6

7 Id. (quoting Costantini v. Trans World Airlines, 681 F.2d 1199, 1201–02 (9th Cir. 1982)).

8 “The last of these criteria is the most important.” Constantini, 681 F.2d at 1202.

9

Gonzalez Plaintiffs argue that while the two actions involve substantially similar

10 questions of fact and law such that consolidation is appropriate the claims are not identical.

11 (Reply 7.) According to Gonzalez Plaintiffs, their Complaint brings five causes of action

12 compared to the twelve “scattershot” causes of action brought by Owino Plaintiffs. (Id.)

13 Gonzalez Plaintiffs also point to at least two factual differences: they allege that some

14 members of the putative class were paid more than $1 a day and they allege that Defendant

15 obtains labor through unlawful means. (Id.)

16

Both Owino Plaintiffs and Defendant explain, in detail, the commonality between

17 the two suits. For example, both the Gonzalez and Owino Plaintiffs allege that Defendant

18 pays civil detainees who voluntarily participate in work programs less than the minimum

19 wage, (Def. Opp’n 7 (comparing Gonzalez Compl. ¶¶ 40–47, 127, 132 with Owino Compl.

20 ¶¶ 11, 13–15, 73, 123)), and that Defendant coerces or forces detainees to work under threat

21 of solitary confinement or loss of privileges, (id. (comparing Gonzalez Compl. ¶¶ 8, 32,

22 38–39, 147–48, 153–54 with Owino Compl. ¶¶ 13, 16, 42, 47, 57–59)). Both Owino

23 Plaintiffs and Defendant point to Gonzalez Plaintiffs’ own Motion to Consolidate where

24 Gonzalez Plaintiffs argue “both Actions seek to stop the economic exploitation and abuse

25 of detainees at the Otay Mesa Facility, to recover unpaid wages, and to remedy unjust

26 enrichment resulting from CoreCivic’s unlawful failure to pay its detainee workforce legal

27 wages.” (Id. (quoting MTN 5); see Owino Opp’n 10–11.) Finally, both cases bring causes

28 of action sounding in violation of the same laws and both cases ask for similar relief. (Def.

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1 Opp’n 9–10.)

2

The Court agrees with Owino Plaintiffs and Defendant. Both cases arise from the

3 same transactional nucleus of fact. Both cases argue that Defendant is not following

4 California minimum wage laws and both cases argue that Defendant coerces its detainees

5 to participate in a work program at its Otay Mesa detention facility. Both cases bring

6 similar causes of action and request similar relief. Indeed, the entire bases for Gonzalez

7 Plaintiffs’ Motion of Consolidation are the common questions of law and fact. The test is

8 not, as Gonzalez Plaintiffs suggest, whether the two cases are exactly identical. The test is

9 transactional. Here, it is clearly met—the facts are duplicative.

10

B. Same Parties

11

At this point, the Court’s analysis must diverge from Adams. The Adams court asked

12 whether a party in an earlier-filed action could be said to have “virtually represented” a

13 party in a later-filed action. 487 F.3d at 691. The Supreme Court has since made clear that

14 “virtual representation” is not consonant with the claim preclusion test. See Taylor, 553

15 U.S. at 901. Gonzalez Plaintiffs direct the Court to the Supreme Court’s decision in Smith

16 v. Bayer Corp., 564 U.S. 299 (2011), which concerned the preclusive effect of an earlier-

17 filed class action on a later filed class action. The Supreme Court explained that for claim

18 preclusion to apply the later filed suit must have presented the same issues as the prior case

19 and the later filed plaintiff must have been a party to the earlier-filed suit or else fall within

20 one of a few discrete exceptions to the general rule against binding nonparties. See id. at

21 307–08. The Supreme Court held that “[n]either a proposed class action nor a rejected

22 class action may bind nonparties.” Id. at 315.

23

Here, the Owino Plaintiffs have not been certified as a class under Federal Rule of

24 Civil Procedure 23. Instead, Owino is a proposed class action. The Court agrees with

25 Gonzalez Plaintiffs that the Owino action cannot bind nonparties, like Gonzalez Plaintiffs.

26 See Bayer, 553 U.S. at 315. Because the Owino action does not have preclusive effect

27 against the Gonzalez Plaintiffs, the claim-splitting rule must also fail. See Chowning, 2016

28 WL 7655752, at *3 (applying Bayer to find earlier-filed class action that was rejected in

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1 part was not binding on later-filed class action and declining to dismiss later-filed action).

2 The Court finds that dismissing the Gonzalez action is not appropriate at this time, given

3 the early stage of the Owino action and that its class has not been certified.

4 II. Consolidation vs. Stay

5

While the claim-splitting rule is not appropriate at this time, such a finding does not

6 resolve the issue before the Court: how to proceed with two nearly identical putative class

7 actions. The district court in Moreno v. Castlerock Farming & Transport, No. CIV-F-12-

8 0556 AWI JLT, 2013 WL 1326496 (E.D. Cal. Mar. 29, 2013), encountered a similar issue.

9 There, two putative class actions were pending before the same court; neither class action

10 had been certified. Id. at *1. The district court reasoned that the scope of the putative class

11 in the earlier-filed action would depend greatly on an order granting or denying class

12 certification. Id. at *2. Further, the later-filed class would depend on the scope of the

13 earlier-filed class. The court stated:

14

If the class in [the earlier-filed action] is certified as narrow, then

15

the [later-filed] Plaintiffs can move forward to represent all other workers at [the defendant’s] facilities. Indeed, all pre-class

16

certification discovery received by [earlier-filed plaintiff] could

17

be directly given to the [later-filed] Plaintiffs to save time and effort in that circumstance. If the class certified in [the earlier-

18

filed action] is wide, then [the later-filed action] would probably

19

be considered duplicative and subject to dismissal. If class certification is denied for some other reason not having to do

20

with [the earlier-filed plaintiff’s] status, then [the later-filed

21

action] may or may not be able to proceed depending upon the specific circumstance.

22

23 Id. (citing Bayer, 564 U.S. at 314).

24

The Moreno court’s reasoning and conclusion are persuasive. Here, the Owino

25 Plaintiffs seek to certify sub-classes potentially broader in scope than the Gonzalez

26 Plaintiffs. For example, both lawsuits endeavor to certify a civil detainee sub-class who

27 performed work for less than California’s minimum wage. The Gonzalez Plaintiffs’

28 putative minimum wage sub-class is limited to all detainees who performed work for

7 17-CV-2573 JLS (NLS)

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1 Defendant at the Otay Mesa Detention Center within the past ten years. (Gonzalez Compl.

2 ¶ 111a.) The Owino Plaintiffs’ putative minimum wage sub-class covers all detainees at

3 any facility located in California owned or operated by Defendant between November 2,

4 2004 and the applicable opt-out date. (Owino Compl. ¶ 30.) The remaining sub-classes

5 follow similar limitations: the Gonzalez Plaintiffs limit the classes to only the Otay Mesa

6 facility for the past ten years; the Owino Plaintiffs limit the classes to any Defendant-owned

7 facility in California since 2004. (Compare Gonzalez Compl. ¶ 111 with Owino Compl.

8 ¶ 30.)

9

Thus, the Owino Plaintiffs could potentially certify a broad class that subsumes the

10 Gonzalez Plaintiffs’ class. Or, the Owino Plaintiffs could certify a narrower class that does

11 not include the putative Gonzalez class. At the pre-certification stage, the Court cannot

12 determine the size or composition of a class in either case. Like Moreno, a stay appears to

13 be the equitable solution. See also Clardy v. Pinnacle Foods Grp., LLC, No. 16-cv-4385-

14 JST, 2017 WL 57310 (N.D. Cal. Jan. 5, 2017) (staying later-filed class action).

15

The other course of action is to consolidate the cases. Certainly, the Gonzalez

16 Plaintiffs strongly advocate for this outcome. Yet, both Owino Plaintiffs and Defendant

17 object to consolidation. Gonzalez Plaintiffs warns that “it would be an abuse of discretion

18 to appoint an attorney as class counsel solely because he may have won the race to the

19 courthouse.” (Reply 6 (quoting Northstar Fin. Advisors Inc. v. Schwab Invs., 779 F.3d

20 1036, 1048 (9th Cir. 2015)).) Indeed, Federal Rule of Civil Procedure 23(g) lays out

21 objective standards to determine appointment of lead class counsel. Appointment of

22 interim class counsel, however, is not the issue presently before the Court. The issue here

23 is whether to consolidate or whether to stay—not appointment of interim class counsel.

24

Courts have the power to stay proceedings sua sponte. Ali v Trump, 241 F. Supp.

25 3d 1147, 1152 (W.D. Wash. 2017); Fed. Home Loan Mortg. Corp. v. Karma, No. 14-00137

26 ACK-KSC, 2016 WL 922780, at *8–9 (D. Haw. Mar. 9, 2016). The issues involved in the

27 pending proceedings need not be “controlling of the action before the court” for the court

28 to issue a stay. Leyva v. Certified Grocers of Cal., Ltd., 593 F.2d 857, 864 (9th Cir. 1979).

8 17-CV-2573 JLS (NLS)

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1 Indeed, for a court to issue a stay, the parties in the two cases need not be the same and the

2 issues need not be identical. See Landis v. N. Am. Co., 299 U.S. 248, 254 (1936).

3

In determining whether to grant a motion to stay, “the competing interests [that] will

4 be affected by the granting or refusal to grant a stay must be weighed.” Lockyer v. Mirant

5 Corp., 398 F.3d 1098, 1110 (9th Cir. 2005) (citing CMAX, Inc. v. Hall, 300 F.2d 265, 268

6 (9th Cir. 1962)). Those interests include: (1) “the possible damage which may result from

7 the granting of a stay,” (2) “the hardship or inequity which a party may suffer in being

8 required to go forward,” and (3) “the orderly course of justice measured in terms of the

9 simplifying or complicating of issues, proof, and questions of law which could be expected

10 to result from a stay.” Id.

11

Here, the Court again finds the Moreno court’s reasoning persuasive as to the first

12 and second factors. If the class in Owino is certified as narrow then the Gonzalez Plaintiffs

13 can move forward to represent all other detainees at Defendant’s facilities. All pre-class

14 certification discovery received by Owino Plaintiffs could, in theory, be given to Gonzalez

15 Plaintiffs to save time and effort. If the class certified in Owino is wide, then Gonzalez

16 would probably be considered duplicative and subject to dismissal. If class certification is

17 denied for a reason beyond Owino Plaintiffs’ status then Gonzalez Plaintiffs may or may

18 not be able to proceed. See Moreno, 2013 WL 1326496, at *2. The Court recognizes there

19 is some possibility of damage to the Gonzalez Plaintiffs—if the Owino Plaintiffs certify a

20 narrow class or their claim is dismissed then the Gonzalez Plaintiffs suffer from the delay

21 in litigating. However, the potential damage to the Gonzalez Plaintiffs is mitigated, in part,

22 because the Court will only stay their proceedings until resolution of the Owino Plaintiffs’

23 class certification.2 As to the second factor, the Court finds the hardship on all parties to

24 be significant if parallel litigation is allowed to proceed on the same issues and the same

25 Defendant. On the other hand, the hardship on the Gonzalez Plaintiffs’ is measured in the

26

27 2 This assumes that the Owino Plaintiffs reach the class certification stage. If Defendant prevails on its 28 motion to dismiss or some other unforeseen event occurs then the Gonzalez Plaintiffs may request
appropriate relief from the stay.

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1 potential delay in resolving their rights. As to the third factor, all parties agree that the

2 Court should simplify the issues by eliminating the parallel proceedings, either by

3 consolidation or by stay or dismissal. In sum, the Court finds that the Gonzalez Plaintiffs’

4 interest is outweighed by the potential claim-splitting concerns as well as judicial economy.

5

The Court is under no illusion as to the stakes of this Motion. Gonzalez Plaintiffs

6 filed a nearly identical cause of action as the Owino Plaintiffs, seek to consolidate the cases,

7 and wrest control of interim class counsel from the Owino Plaintiffs. Owino Plaintiffs and

8 Defendant seek to dismiss the later-filed action as duplicative to send a strong message

9 against copy-cat filings. The truth lies somewhere in between. Thus, the Court exercises

10 its discretion to chart a course between the two positions. The Court will stay this case

11 pending the outcome of Owino Plaintiffs’ future class certification. At such a time, the

12 Gonzalez Plaintiffs may request appropriate relief from the stay.

13

CONCLUSION

14

For the reasons stated above, the Court DENIES Gonzalez Plaintiffs’ Motion to

15 Consolidate, (ECF No. 23). On its own motion, the Court STAYS the present case until it

16 rules on class certification (or other dispositive motions, such as a motion to dismiss with

17 prejudice) in Owino.

18

IT IS SO ORDERED.

19 Dated: April 4, 2018 20

21

22

23

24

25

26

27

28

10 17-CV-2573 JLS (NLS)

 
 Case 3:17-cv-01112-JLS-NLS Document 1 Filed 05/31/17 PageID.1 Page 1 of 36

1 LAW OFFICE OF ROBERT L. TEEL ROBERT L. TEEL (SBN 127081)
2 lawoffice@rlteel.com 3 207 Anthes Ave., Suite 201
Langley, Washington 98260 4 Telephone: (866) 833-5529 5 Facsimile: (855) 609-6911
6 Attorney for Plaintiffs and the Proposed Class

7

8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10 SYLVESTER OWINO and JONATHAN Case No.: '17CV1112 JLS NLS

11 GOMEZ, on behalf of themselves, and all

others similarly situated,

CLASS ACTION

12

13

Plaintiffs,

COMPLAINT FOR:

14

v.

(1) FORCED LABOR AND VIOLATION OF THE

15 CoreCivic, Inc., a Maryland corporation,

16

Defendant.

TRAFFICKING VICTIMS PROTECTION ACT, 18 U.S.C. § 1589, et seq.;

17

(2) FORCED LABOR AND

VIOLATION OF THE

18

CALIFORNIA

19

TRAFFICKING VICTIMS

PROTECTION ACT, CAL.

20

CIVIL CODE § 52.5;

21

(3) UNFAIR COMPETITION, CAL. BUS. & PROF.

22

CODE §§ 17200, et seq.;

23

(4) VIOLATIONS OF THE CAL. LABOR CODE;

24

(5) VIOLATION OF CAL.

INDUSTRIAL WELFARE

25

COMMISSION ORDERS;

26

(6) NEGLIGENCE; AND

(7) UNJUST ENRICHMENT

27

28

DEMAND FOR JURY TRIAL

Sylvester Owino, et al. v. CoreCivic, Inc. CLASS ACTION COMPLAINT

Case 3:17-cv-01112-JLS-NLS Document 1 Filed 05/31/17 PageID.2 Page 2 of 36

1

INTRODUCTION

2

1.

Plaintiffs Sylvester Owino ("Owino") and Jonathan Gomez ("Gomez")

3 (individually referred to herein as a “Plaintiff” and collectively as the "Plaintiffs"),

4 individually and on behalf of all other persons similarly situated, by their

5 undersigned attorney(s), for their complaint against Defendant, CoreCivic, Inc.

6 (“CoreCivic” or “Defendant”) files this lawsuit to stop CoreCivic’s

7 engagement/implementation of illegal practices and to obtain damages and

8 restitution from CoreCivic for said practices of forcing/coercing detainees to clean,

9 maintain, and operate CoreCivic’s detention facilities in violation of both federal

10 and state human trafficking and labor laws. Plaintiffs allege the following based

11 upon personal knowledge as to themselves and their own acts, and information and

12 belief as to all other matters, and based upon, inter alia, the investigation conducted

13 by and through their attorneys, which includes, without limitation, a review of

14 Defendant’s public documents, announcements, and wire and press releases

15 published by and regarding CoreCivic, and information readily obtainable on the

16 internet.

17

JURISDICTION AND VENUE

18

2.

This Court has federal question jurisdiction because this case arises out

19 of violations of the federal Trafficking in Victims Protection Act under

20 18 U.S.C. §§ 1589, et seq. (the "TVPA").

21

3.

This Court has original jurisdiction pursuant to the Class Action

22 Fairness Act, 28 U.S.C. § 1332(d) because:

23

a. the amount in controversy exceeds $5,000,000, exclusive of interest and

24

costs;

25

b. the proposed Class consists of more than 100 Class Members; and

26

c. none of the exceptions under the subsection apply to this action.

27

4.

This Court has supplemental jurisdiction over the violations of the

28 California Trafficking in Victims Protection Act, Cal. Civil Code § 52.5

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Sylvester Owino, et al. v. CoreCivic, Inc. CLASS ACTION COMPLAINT

Case 3:17-cv-01112-JLS-NLS Document 1 Filed 05/31/17 PageID.3 Page 3 of 36

1 (“CTVPA”), Cal. Bus. & Prof. Code §§ 17200, et seq. (“UCL”), and the California

2 Labor Code and California Industrial Welfare Commission Wage Orders, as well as

3 other state statutory and common law claims pursuant to 28 U.S.C. § 1367

4 (supplemental jurisdiction over pendant state law claims).

5

5.

This Court has personal jurisdiction over Defendant because:

6

a. CoreCivic is registered to, and in fact does, conduct business in

7

California; and

8

b. CoreCivic has sufficient minimum contacts in California, and

9

c. CoreCivic has intentionally availed itself by participating in the

10

markets within California through the sale and provision of its services.

11

6.

Venue is proper in this District under 28 U.S.C. § 1391 because:

12

a. Plaintiffs are residents of, and domiciled in, this District,

13

b. Defendant conducts substantial business in this District, and

14

c. a substantial part of the events giving rise to Plaintiffs’ claims alleged

15

herein occurred in this District.

16

PARTIES

17

7.

Plaintiff Sylvester Owino is a resident of the County of San Diego, in

18 the State of California. Mr. Owino was a civil immigration detainee who worked at

19 CoreCivic's Otay Mesa Detention Center at various times from November 7, 2005

20 through March 9, 2015.

21

8.

Plaintiff Jonathan Gomez is a resident of the County of San Diego, in

22 the State of California. Mr. Gomez was a civil immigration detainee who worked at

23 CoreCivic's Otay Mesa Detention Center at various times from June 14, 2012

24 through September 18, 2013.

25 9.

Defendant CoreCivic, Inc. is a Maryland corporation with its principal

26 place of business at 10 Burton Hills Blvd., Nashville, Tennessee 37125.

27

28

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Sylvester Owino, et al. v. CoreCivic, Inc. CLASS ACTION COMPLAINT

Case 3:17-cv-01112-JLS-NLS Document 1 Filed 05/31/17 PageID.4 Page 4 of 36

1

SUMMARY AND COMMON FACTUAL ALLEGATIONS

2

10. Plaintiffs are former civil immigration detainees who bring this

3 proposed class action lawsuit on behalf of all civil immigration detainees who were

4 incarcerated and forced to work by CoreCivic, a for-profit corporation engaged in

5 the business of owning and operating detention facilities and prisons from

6 January 1, 2004 to the opt-out date, inclusive (the “Class Period”).

7 11. CoreCivic owns and operates detention facilities around the country,

8 including the Otay Mesa Detention Center, a 1,492 bed detention center located in

9 Otay Mesa, California (the “Otay Facility”). CoreCivic unlawfully forces, coerces,

10 and uses detainees to clean, maintain, and operate their facility. In some instances

11 CoreCivic pays detainees $1 per day, and in other instances detainees are not

12 compensated with wages at all, for their labor and services. In 2016, CoreCivic

13 reported $1.79 billion in total revenues.

14 12. Plaintiffs seek injunctive relief requiring CoreCivic to implement and

15 maintain policies and practices to comply with all applicable laws and regulations

16 designed to protect human rights, prevent and remedy these types of unlawful

17 trafficking and forced labor practices, and protect detainees' employment rights,

18 well-being and safety, as well as restitution, damages, statutory remedies,

19 disgorgement, and other further relief this Court may deem proper.

20 13. Plaintiffs also seek to recover, inter alia, on their own behalf and on

21 behalf of all others similarly situated, the difference between the fair value of the

22 labor or work they performed and what they were paid (i.e., the $1 per day).

23 CoreCivic violated federal law prohibiting forced labor when CoreCivic forced,

24 coerced, and used Plaintiffs and others to work for no pay, cleaning the “pods” where

25 they were housed, and cleaning, maintaining, and operating other areas of the

26 CoreCivic detention facilities under threat of punishment, including lockdown and

27 solitary confinement.

28

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1 14. Plaintiffs were engaged, suffered, and permitted to work by CoreCivic

2 at, without limitation, the Otay Facility. CoreCivic controlled the wages, hours, and

3 working conditions of Plaintiffs. In the course of their labor and employment by

4 CoreCivic, Plaintiffs and other putative class members, without limitation:

5

a. scrubbed bathrooms, showers, toilets, and windows;

6

b. cleaned and maintained CoreCivic’s on-site medical facility;

7

c. cleaned the medical facility’s toilets, floors, and windows;

8

d. cleaned patient rooms and medical staff offices;

9

e. swept, mopped, stripped, and waxed the floors of the medical facility;

10

f. washed medical facility laundry;

11

g. swept, mopped, stripped, and waxed floors throughout the facility;

12

h. washed detainee laundry;

13

i. prepared and served detainee meals;

14

j. assisted in preparing catered meals for law enforcement events sponsored

15

by CoreCivic;

16

k. performed clerical work for CoreCivic;

17

l. prepared clothing for newly arriving detainees;

18

m. provided barber services to detainees;

19

n. ran and managed the law library;

20

o. cleaned intake areas and solitary confinement unit;

21

p. cleaned and prepared vacant portions of the facility for newly arriving

22

detainees;

23

q. cleaned the facility’s warehouse; and

24

r. maintained the exterior and landscaping of the CoreCivic buildings.

25 15. Detainees who "volunteered" for such work were paid $1 per day. The

26 foregoing labor and services for which detainees were paid $1 per day are referred

27 to herein as the "Dollar-A-Day Work." In addition, Plaintiffs and detainees are/were

28

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Sylvester Owino, et al. v. CoreCivic, Inc. CLASS ACTION COMPLAINT

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1 only allowed to spend their $1 per day at the CoreCivic "company store" or

2 commissary.

3

CoreCivic’s Unlawful Labor and Human Trafficking Practices

4 16. In addition to the Dollar-A-Day Work, CoreCivic forced and coerced

5 Plaintiffs and members of the putative class, to clean, maintain, scrub, sweep, and

6 mop floors, bathrooms, showers, toilets, and windows for no pay at all, not only in

7 their living areas ("pods"), but also throughout the other interior and exterior areas

8 of CoreCivic’s detention facilities by threatening to punish not only those who

9 refused to work, but also other detainees in the pods with confinement, physical

10 restraint, substantial and sustained restriction, deprivation, and violation of their

11 liberty, and solitary confinement, all with the intent to obtain forced labor or services

12 and as punishment for any refusal to work causing Plaintiffs severe mental pain and

13 suffering. The foregoing forced and coerced labor and services under threat of

14 punishment, confinement, physical restraint, and deprivation of liberty for which

15 Detainees were paid nothing at all are referred to herein as the "Forced Labor."

16 17. Defendant paid Plaintiffs and all its other civil immigration detainee-

17 employees one dollar ($1) per day for Dollar-A-Day Work and nothing at all for

18 their Forced Labor and acted with malice, oppression, fraud, and duress in

19 committing the foregoing acts. As a result of Defendant’s violations of the law,

20 CoreCivic was unjustly enriched.

21

Federal and State Trafficking Victims Protection Acts

22 18. As a result of the foregoing, Defendant violated federal law prohibiting

23 forced labor. 18 U.S.C. § 1589. In addition, Defendant violated California law

24 prohibit human trafficking and forced labor. Civ. Code § 52.5. Plaintiffs seek actual

25 damages, compensatory damages, punitive damages, treble damages, injunctive

26 relief, and mandatory restitution on their own behalf and on behalf of all Defendant’s

27 other similarly situated detainees, as well as attorneys’ fees and costs, pursuant to

28 18 U.S.C. §§ 1593 and 1595 and Cal. Civ. Code § 52.5(a). Plaintiffs also seeks the

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1 greater of treble damages or ten thousand ($10,000) pursuant to Cal. Civ. Code § 2 52.5(b). 3 19. Plaintiffs and the putative class members have suffered, and are 4 continuing to suffer, real-world, actual, concrete harm by, without limitation, 5 Defendant's use of Forced Labor and human trafficking, violations of applicable 6 labor laws and orders, unfair and unlawful business practices, and negligence. The 7 putative class members are presently facing the same imminent real, actual, and 8 concrete harm and injury from CoreCivic’s illegal conduct and its failure to redress 9 the harm. 10 20. The total number of civil immigration detainees who were subjected to 11 Defendant's Forced Labor and human trafficking practices, and Defendant's illegal 12 Dollar-A-Day Work practices is currently unknown, but these illegal practices appear 13 endemic to the Core-Civic operations on a California-wide, and indeed a nationwide, 14 scale. However, Core-Civic can provide the information regarding how many civil 15 immigration detainees were subjected to these illegal practices through its solitary 16 confinement and detention logs and also through its business records. 17 21. CoreCivic has been wrongly and unjustly enriched by its use of Forced 18 Labor and human trafficking practices, Dollar-A-Day Work practices, unlawful 19 business practices, and the retention of such revenues and profits resulting therefrom 20 is grossly unfair. CoreCivic should not be allowed to retain the revenues, proceeds, 21 profits and other benefits conferred upon it by Plaintiffs and the putative class 22 members. 23 22. Defendant’s unlawful conduct complained of herein constitutes a 24 continuing pattern and course of conduct as opposed to unrelated discrete acts. 25 Defendant’s pattern and course of conduct has continued from November 2, 2004 until 26 the present and is a continuing violation since that date. Neither Plaintiffs nor the Class 27 Members were/are aware of or discovered their legal rights or claims, or could have 28 discovered with any amount of reasonable diligence, the true facts regarding their
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1 claims until the present. Plaintiffs and the Class Members were/are ignorant of the true

2 facts regarding Defendant’s unlawful and illegal acts, and lacked the ability to have

3 earlier discovered the true facts, until the present due to false statements made by

4 Defendant regarding the legality of their False Labor and Dollar-A-Day Work

5 practices. Discovery of the true facts did not actually occur, and could not have

6 occurred, until after any applicable statutes of limitations.

7

The For-Profit Detention Industry

8 23. Throughout the country, undocumented individuals lacking legal

9 permission to enter or remain in the United States are typically brought to a detention

10 facility and placed in removal proceedings in front of an immigration judge. These

11 individuals may include refugees seeking asylum. Individuals detained at the border

12 are only released on a case-by-case basis by the authority of U.S. Bureau of

13 Immigration and Customs Enforcement (“ICE”) officials.

14 24. ICE uses a combination of publicly and privately owned and operated

15 facilities to detain immigrants. Those in detention include immigrants in the country

16 illegally, asylum seekers, green card holders, and those awaiting immigration hearings

17 (referred to herein as a “detainee” or civil immigration detainee”). Nine (9) of the

18 country’s ten (10) largest immigration detention facilities are operated by private

19 companies like CoreCivic, and they hold about two-thirds of the civil immigration

20 detainees in a system that currently keeps more than 31,000 people in custody on a

21 typical day.

22 25. The for-profit civil immigration detention business is worth over $3

23 billion dollars a year. While some centers are located in border areas, others are far

24 from the border because deportation officers arrest migrants living in the interior of the

25 country as well. Although they have denied lobbying, private prison corporations

26 such as Core-Civic specifically target legislators over immigration "reform." The

27 companies' success in lobbying for immigrant detention has been so successful that

28 by 2015, CoreCivic derived 51% of its revenue from federal contracts.

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1 26. In March of 2017 it was announced that the United States' civil

2 immigrant detention capacity would be increased by over four-hundred fifty per cent

3 (450%). This signals the largest increase in immigrant detention since World War II

4 and is, in essence, a "get into jail and work for free card" from which Defendant

5 derives nearly $1 billion dollars a year in revenue.

6

PLAINTIFF’S EXPERIENCE

7 27. Plaintiff Sylvester Owino is a resident of the county San Diego, in the

8 State of California. Mr. Owino was a detainee at CoreCivic's Otay Facility from

9 November 7, 2005 through March 9, 2015. During the Class Period, Mr. Owino

10 performed Dollar-A-Day Work for $1 per day in an unsafe work environment and

11 was forced and coerced to perform Forced Labor at, without limitation, the Otay

12 Facility.

13 28. Plaintiff Owino was employed by CoreCivic to provide labor and

14 services in an unsafe working environment cleaning and maintaining CoreCivic's

15 on-site medical facility without personal protective equipment ("PPE"). PPE is

16 special equipment worn to create a barrier between health care workers and germs.

17 This barrier reduces the chance of touching, being exposed to, and spreading germs

18 and helps protect people from infections caused by contact with blood or other

19 bodily fluids.

20 29. Plaintiff Jonathan Gomez is a resident of San Diego, California and the

21 county of San Diego who formerly was a detainee at the Otay Facility from June 14,

22 2012 through September 18, 2013. During the Class Period, Mr. Gomez performed

23 Dollar-A-Day Work for $1 per day in an unsafe work environment and was forced

24 and coerced to perform Forced Labor at the Otay Facility.

25

CLASS ACTION ALLEGATIONS

26 30. Plaintiffs bring this action pursuant to Federal Rule of Civil Procedure

27 23 on behalf of themselves and all members of the “Forced Labor Class,”

28 preliminarily defined as:

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1

The Nationwide Forced Labor Class

2

All civil immigration detainees who performed Forced Labor

3

uncompensated work for CoreCivic at any Detention Facility owned or

4

operated by it between November 2, 2004 to the applicable opt-out

date, inclusive.

5

6 Such persons are collectively referred to herein individually as a “Nationwide

7 Forced Labor Class Member” and collectively as the “Nationwide Forced Labor

8 Class” or “Nationwide Forced Labor Class Members.”

9

The California Forced Labor Class

10

All civil immigration detainees who performed Forced Labor uncompensated work for CoreCivic at any Detention Facility located

11

in California owned or operated by it at time during the period from

12

November 2, 2004 to the applicable op-out date, inclusive.

13 Such persons are collectively referred to herein individually as a “California Forced

14 Labor Class Member” and collectively as the “California Forced Labor Class” or

15 “California Forced Labor Class Members.”

16

The California Labor Law Class

17

All civil immigration detainees who performed Dollar-A-Day Work for

18

CoreCivic and were paid one dollar ($1) per day at any Detention Facility

19

located in California owned or operated by it at any time between

November 2, 2004 to the applicable op-out date, inclusive.

20

21 Such persons are collectively referred to herein individually as a “California Labor

22 Law Class Member” and collectively as the “California Labor Law Class.”

23 31. The Classes described in this Complaint may be jointly referred to as

24 the “Class” and proposed Members of the Classes may be jointly referred to as

25 “Class Members.”

26 32. Excluded from the Class are the Defendant herein, law enforcement

27 agencies and personnel, members of the foregoing persons’ immediate families and

28 their legal representatives, heirs, successors, or assigns, and any entity or person in

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1 which Defendant has or had a controlling or supervisory interest or control over at

2 all relevant times.

3 33. Plaintiffs satisfy the numerosity, commonality, typicality, adequacy,

4 and predominance prerequisites for suing as representative parties pursuant to Rule

5 23 of the Federal Rules of Civil Procedure.

6 34. Numerosity. The exact number of proposed Class Members is

7 currently not known, but is believed to consist of thousands if not tens of thousands

8 of former or current CoreCivic detainees who have been forced and/or coerced to

9 work, whether for one dollar ($1) per day or no pay whatsoever, making joinder of

10 each individual Class Member impracticable.

11 35. Commonality. Common questions of law and fact exist for the

12 proposed Class’ claims and predominate over questions affecting only individual

13 Class Members. Common questions include, without limitation:

14 a. whether Plaintiffs and the Class Members were entitled to the protections

15

of the California labor laws and California Industrial Welfare Commission

16

wage orders;

17

b. whether Plaintiffs and the Class Members performed compensable work;

18

c. whether Plaintiffs and the Class Members were paid $1 per day for their

19

labor;

20

d. whether forcing and coercing Plaintiffs and the Class Members to perform

21

Forced Labor constitutes a violation of each Class Member’s TVPA and

22

CTVPA, human rights, California labor law and California Industrial

23

Welfare Commission wage orders, and other statutory and common law

24

rights as set forth herein;

25

e. what monitoring, limiting, and supervisory procedures and practices should

26

CoreCivic be required to implement to ensure ongoing protection of each

27

Class Member’s TVPA, CTVPA, California labor law, and other legal rights

28

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1

and as part of any prohibitory and mandatory injunctive relief ordered by the

2

Court;

3

f. whether CoreCivic acted deliberately or negligently by unlawfully, without

4

limitation:

5

i. failing to adequately protect Class Members TVPA, CTVPA, and

6

California labor law rights

7

ii. forcing and coercing detainees to perform Forced Labor;

8

iii. failing to follow applicable laws; and

9

iv. failing to maintain adequate monitoring, limiting, and supervisory

10

procedures, policies, and practices; and

11 g. whether Plaintiffs and Class Members may obtain damages, restitution,

12

disgorgement, declaratory, and prohibitory and mandatory injunctive relief

13

against CoreCivic.

14 36. Typicality. Plaintiffs’ claims are typical of the claims of the proposed

15 Class because, among other things, Plaintiffs and Class Members legal claims all

16 arise from CoreCivic’s unlawful practices, and Plaintiffs and Class members

17 sustained similar injuries and statutory damages as a result of CoreCivic’s uniform

18 illegal conduct.

19 37. Adequacy. Plaintiffs will fairly and adequately protect the interests of

20 the Class. Their interests do not conflict with Class Members’ interests and they

21 have retained counsel competent and experienced in complex and class action

22 litigation to vigorously prosecute this action on behalf of the Class. In addition to

23 satisfying the prerequisites of FRCP 23(a), Plaintiffs satisfy the requirements for

24 maintaining a class action under FRCP 23(b)(2) and (3).

25 38. Common questions of law and fact predominate over any questions

26 affecting only individual Class Members and a Class action is superior to individual

27 litigation because:

28

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1

a. the amount of damages available to individual Plaintiffs are insufficient to

2

make litigation addressing CoreCivic’s conduct economically feasible in

3

the absence of the Class action procedure;

4

b. individualized litigation would present a potential for inconsistent or

5

contradictory judgments, and increases the delay and expense to all parties

6

and the court system; and

7

c. the Class action device presents far fewer management difficulties and

8

provides the benefits of a single adjudication, economy of scale, and

9

comprehensive supervision by a single court.

10 39. In addition, Class certification is appropriate under FRCP Rule

11 23(b)(1) or (b)(2) because:

12 a. the prosecution of separate actions by the individual Members of the

13

proposed Class would create a risk of inconsistent or varying adjudication

14

which would establish incompatible standards of conduct for CoreCivic;

15 b. the prosecution of separate actions by individual Class Members would create

16

a risk of adjudications with respect to them which would, as a practical matter,

17

be dispositive of the interests of other Class Members not parties to the

18

adjudications, or substantially impair or impede their ability to protect their

19

interests; and

20 c. CoreCivic has acted or refused to act on grounds that apply generally to the

21

proposed Class, thereby making final injunctive relief or declaratory relief

22

described herein appropriate with respect to the proposed Class as a whole.

23

FIRST CAUSE OF ACTION

24

Violation of the Trafficking Victims Protection Act

25

18 U.S.C. §§ 1589, et seq.

26

(On Behalf of the Plaintiffs Individually and the Class)

27 40. Plaintiffs and Class Members incorporate by reference the foregoing

28 allegations.

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1 41. 18 U.S.C. § 1589(a) of the Federal Trafficking Victims Protection Act

2 provides that:

3 “Whoever knowingly provides or obtains the labor or services of a person by any
4 one of, or by any combination of, the following means — (1) by means of force,
5 threats of force, physical restraint, or threats of physical restraint to that person or another person; (2) by means of serious harm or threats of serious harm to that
6 person or another person; (3) by means of the abuse or threatened abuse of law
7 or legal process; or (4) by means of any scheme, plan, or pattern intended to cause the person to believe that, if that person did not perform such labor or services,
8 that person or another person would suffer serious harm or physical restraint,
9 shall be punished as provided under [18 U.S.C. § 1589] subsection (d).”

10

42.

Plaintiffs and Class Members were forced, coerced, and made to

11 perform labor and services, including Forced Labor, for CoreCivic by means of:

12

a. force, threats of force, physical restraint and threats of physical restraint;

13

b. serious harm and threats of serious harm; and

14

c. abuse and threatened abuse of law or legal process to Plaintiffs and the

15

Class Members, and by means of a scheme, plan, pattern, and uniform

16

policy intended to cause Plaintiffs and the Class to believe that, if they did

17

not perform such labor or services, that they would suffer serious harm

18

and/or physical restraint.

19 CoreCivic was unjustly enriched by the unlawful practice of forcing and coercing

20 Plaintiffs and the Class Members to perform uncompensated Forced Labor through

21 human trafficking. By exploiting these unlawful practices CoreCivic materially and

22 significantly reduced its labor costs and expenses, in addition to increasing its

23 profits.

24

43. Plaintiffs and the Class Members are victims of Forced Labor under

25 18 U.S.C. § 1589. CoreCivic committed the illegal and unlawful offense(s) of

26 Forced Labor against the Plaintiffs and the Class Members under

27 18 U.S.C. § 1589, et seq. CoreCivic knowingly and financially benefitted from

28 implementing/participating in a venture, plan, scheme, pattern of conduct, and

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1 practice CoreCivic knew, or should have known, was unlawful and in violation of

2 Forced Labor laws under to 18 U.S.C. § 1589. Plaintiffs and the Class Members are

3 entitled to, without limitation, the remedies set forth in 18 U.S.C. § § 1593 and

4 18 U.S.C. § 1595(a).

5 44.

18 U.S.C. § 1593 states:

6

(a) “Notwithstanding section 3663 or 3663A, and in addition to any other

7

civil or criminal penalties authorized by law, the court shall order

restitution for any offense under this chapter.”

8

(b)

9

(1) “The order of restitution under this section shall direct the

10

defendant to pay the victim (through the appropriate court

mechanism) the full amount of the victim’s losses, as determined by

11

the court under paragraph (3) of this subsection.”

12

13

(2) “An order of restitution under this section shall be issued and enforced in accordance with section 3664 in the same manner as an

14

order under section 3663A.”

15

(3) “As used in this subsection, the term “full amount of the victim’s

16

losses” has the same meaning as provided in section 2259(b)(3) and

17

shall in addition include the greater of the gross income or value to

18

the defendant of the victim’s services or labor or the value of the victim’s labor as guaranteed under the minimum wage and overtime

19

guarantees of the Fair Labor Standards Act (29 U.S.C. § 201 et seq.).”

20

(4) “The forfeiture of property under this subsection shall be

21

governed by the provisions of section 413 (other than subsection (d)

22

of such section) of the Controlled Substances Act (21 U.S.C. § 853).”

23

(c) “As used in this section, the term “victim” means the individual

24 harmed as a result of a crime under this chapter, including, in the case of

25

a victim who is under 18 years of age, incompetent, incapacitated, or

deceased, the legal guardian of the victim or a representative of the

26

victim’s estate, or another family member, or any other person appointed

27

as suitable by the court, but in no event shall the defendant be named such

representative or guardian.”

28

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1 45. 18 U.S.C. § 1595(a) states:

2

"An individual who is a victim of a violation of this chapter may bring a

3 civil action against the perpetrator (or whoever knowingly benefits,

4

financially or by receiving anything of value from participation in a

venture which that person knew or should have known has engaged in an

5

act in violation of this chapter) in an appropriate district court of the

6

United States and may recover damages and reasonable attorneys fees."

7

46. Accordingly, Plaintiffs and the Class Members respectfully request that

8 the Court issue declaratory relief declaring CoreCivic’s practice(s) involving Forced

9 Labor and human trafficking – forcing and coercing Plaintiffs and Class Members to

10 perform labor and services under threat of confinement, physical restraint, substantial

11 and sustained restriction, deprivation, solitary confinement - to be illegal and

12 unlawful.

13

47. Plaintiffs and Class Members request the Court to grant an injunction

14 requiring CoreCivic to cease its unlawful practices described herein and enjoin

15 CoreCivic from forcing and coercing Plaintiffs and the Class Members to perform

16 labor and services under threat of confinement, physical restraint, substantial and

17 sustained restriction, deprivation, and solitary confinement.

18

48. Plaintiffs and the Class Members request the Court to enter an injunction

19 in connection with the foregoing ordering that CoreCivic:

20

a. engage a third party ombudsman as well as internal compliance

21

personnel to monitor, conduct inspection, and audit CoreCivic’s

22

safeguards and procedures on a periodic basis;

23

b. audit, test, and train its internal personnel regarding any new or modified

24

safeguards and procedures;

25

c. conduct regular checks and tests on its safeguards and procedures;

26

d. Periodically conduct internal training and education to inform internal

27

personnel how to identify violations when they occur and what to do in

28

response; and

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1

e. periodically and meaningfully educate its personnel and detainees about

2

their labor and human trafficking rights through, without limitation,

3

educational programs and classes upon detention, as well as any steps

4

that must be taken to safeguard such rights.

5 49. Plaintiffs and the Class Members have suffered damages in an amount

6 to be determined at trial. Plaintiffs and the Class Members request the Court enter

7 an order pursuant to 18 U.S.C. § 1595(a) awarding Plaintiffs and the Class Members

8 compensatory and punitive damages.

9 50. Plaintiffs and the Class Members request this Court to enter an order

10 pursuant to 18 U.S.C. § 1593 awarding Plaintiffs and the Class Members mandatory

11 restitution in addition to the recovery of their reasonable attorneys’ fees they are

12 entitled to recover pursuant to 18 U.S.C. § 1595(a).

13 51. Plaintiffs and the Class Members also seek pre-and-post-judgment

14 interest and attorneys’ fees and costs as allowed by statute and as they are entitled

15 to recover pursuant to 18 U.S.C. § 1595(a).

16

SECOND CAUSE OF ACTION

17

Violation of the California Trafficking Victims Protection Act

18

Cal. Civ. Code § 52.5

19 (On Behalf of the Plaintiffs Individually and the California Forced Labor Class)

20

52. Plaintiffs and California Forced Labor Class Members incorporate by

21 reference the foregoing allegations.

22 53. Cal. Civ. Code § 52.5 - The California Trafficking Victims Protection

23 Act provides, inter alia, that:

24

(a) “A victim of human trafficking, as defined in Section 236.1 of the

25

Penal Code, may bring a civil action for actual damages, compensatory

damages, punitive damages, injunctive relief, any combination of those,

26

or any other appropriate relief. A prevailing plaintiff may also be

27

awarded attorney's fees and costs.”

28

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1

(b) “In addition to the remedies specified herein, in any action under

subdivision (a), the plaintiff may be awarded up to three times his or her

2

actual damages or ten thousand dollars ($10,000), whichever is greater.

3

In addition, punitive damages may also be awarded upon proof of the

4

defendant's malice, oppression, fraud, or duress in committing the act of human trafficking."

5

54. Cal. Penal Code § 236.1 provides:

6

(a) “Any person who deprives or violates the personal liberty of another

7

with the intent to obtain forced labor or services, is guilty of human

8

trafficking and shall be punished by imprisonment in the state prison for

5, 8, or 12 years and a fine of not more than five hundred thousand dollars

9

($500,000).”

10

(b) “Any person who deprives or violates the personal liberty of another

11

with the intent to effect or maintain a violation of Section 266, 266h, 266i,

12

266j, 267, 311.1, 311.2, 311.3, 311.4, 311.5, 311.6, or 518 is guilty of

13

human trafficking and shall be punished by imprisonment in the state prison for 8, 14, or 20 years and a fine of not more than five hundred

14

thousand dollars ($500,000).”

15

55. Cal. Penal Code § 236.1 also provides in relevant part,

16

(g) "The Legislature finds that the definition of human trafficking in this

17

section is equivalent to the federal definition of a severe form of

trafficking found in Section 7102(8) of Title 22 of the United States

18

Code.”

19

(h) For purposes of this chapter, the following definitions apply: 20

(1) “Coercion” includes any scheme, plan, or pattern intended to

21

cause a person to believe that failure to perform an act would result

22

in serious harm to or physical restraint against any person;  the abuse

23

or threatened abuse of the legal process;  debt bondage;  or providing

and facilitating the possession of any controlled substance to a person

24

with the intent to impair the person's judgment.”

25

(3) “Deprivation or violation of the personal liberty of another”

26

includes substantial and sustained restriction of another's liberty

27

accomplished through force, fear, fraud, deceit, coercion, violence,

28

duress, menace, or threat of unlawful injury to the victim or to another person, under circumstances where the person receiving or

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1

apprehending the threat reasonably believes that it is likely that the

person making the threat would carry it out.”

2

3

(4) “Duress” includes a direct or implied threat of force, violence,

4

danger, hardship, or retribution sufficient to cause a reasonable person to acquiesce in or perform an act which he or she would

5

otherwise not have submitted to or performed;  a direct or implied

6

threat to destroy, conceal, remove, confiscate, or possess any actual

or purported passport or immigration document of the victim;  or

7

knowingly destroying, concealing, removing, confiscating, or

8

possessing any actual or purported passport or immigration

document of the victim.” 9

10

(5) “Forced labor or services” means labor or services that are

11

performed or provided by a person and are obtained or maintained

through force, fraud, duress, or coercion, or equivalent conduct that

12

would reasonably overbear the will of the person.”

13

(6) “Great bodily injury” means a significant or substantial physical

14

injury.”

15

16

(8) “Serious harm” includes any harm, whether physical or nonphysical, including psychological, financial, or reputational

17

harm, that is sufficiently serious, under all the surrounding

18

circumstances, to compel a reasonable person of the same

background and in the same circumstances to perform or to continue

19

performing labor, services, or commercial sexual acts in order to

20

avoid incurring that harm.”

21

56. Plaintiffs and Class Members were forced, coerced, and made to

22 perform labor and services, including Forced Labor, for CoreCivic by means of:

23

a. force, threats of force, physical restraint and threats of physical

24

restraint;

25

b. serious harm and threats of serious harm; and

26

c. abuse and threatened abuse of law or legal process to Plaintiffs and the

27

Class Members; and

28

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1

d. a scheme, plan, pattern, and uniform policy intended to cause Plaintiffs

2

and the Class Members to believe that, if they did not perform such

3

Forced Labor, that they would suffer serious harm and/or physical

4

restraint.

5

57. Core Civic materially and significantly reduced its labor costs and

6 expenses, and increased its profits, by unlawfully forcing and coercing Plaintiffs and

7 the Class Members to perform uncompensated Forced Labor and human trafficking.

8 Plaintiffs and the Class Members are victims of Forced Labor under Cal. Civ.

9 Code § 52.5. CoreCivic committed the illegal and unlawful offense of Forced Labor

10 against Plaintiffs and the Class Members under Cal. Civ. Code § 52.5. CoreCivic

11 knowingly and financially benefitted from participation in a venture, plan, scheme,

12 pattern of conduct, and practice CoreCivic knew, or should have known, were

13 unlawful and in violation California Forced Labor laws pursuant to Cal. Civ.

14 Code § 52.5.

15 58. Accordingly, Plaintiffs and the Class Members respectfully request that

16 the Court issue declaratory relief declaring CoreCivic’s practice(s) involving Forced

17 Labor and human trafficking – forcing and coercing Plaintiffs and Class Members to

18 perform labor and services under threat of confinement, physical restraint, substantial

19 and sustained restriction, deprivation, solitary confinement to be illegal and unlawful.

20

59. Plaintiffs and the Class Members request the Court to enter an injunction

21 requiring CoreCivic to cease the unlawful practices described herein and enjoin

22 CoreCivic from using Forced Labor by forcing and coercing Plaintiffs and the Class

23 Members to perform labor and services under threat of confinement, physical

24 restraint, substantial and sustained restriction, and solitary confinement.

25 60.

Plaintiffs and the Class Members request the Court to enter an

26 injunction in connection with the foregoing ordering that CoreCivic:

27

28

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1

a. engage a third party ombudsman as well as internal compliance personnel

2

to monitor, conduct inspection, and audit CoreCivic’s safeguards and

3

procedures on a periodic basis;

4

b. audit, test, and train its internal personnel regarding any new or modified

5

safeguards and procedures;

6

c. conduct regular checks and tests on its safeguards and procedures;

7

d. periodically conduct internal training and education to inform internal

8

personnel how to identify violations when they occur and what to do in

9

response; and

10

e. periodically and meaningfully educate its personnel and detainees about

11

their labor and human trafficking rights through, without limitation,

12

educational programs and classes upon detention, as well as any steps that

13

must be taken to safeguard such rights.

14

61. Plaintiffs and the Class Members have suffered damages in an amount

15 to be determined at trial. Plaintiffs and the Class Members request the Court enter

16 an order pursuant to Cal. Civ. Code § 52.5 awarding Plaintiffs and the Class

17 Members compensatory and punitive damages.

18

62. Plaintiffs and the Class Members request the Court enter an order

19 pursuant to Cal. Civ. Code § 52.5 awarding Plaintiffs and the Class Members

20 mandatory restitution. Plaintiffs and the Class Members are entitled to recover their

21 reasonable attorneys’ fees pursuant to Cal. Civ. Code § 52.5(a). Plaintiffs and the

22 Class Members therefor also seek pre-and-post-judgment interest and attorneys’ fees

23 and costs as allowed by statute and as they are entitled to recover pursuant Cal. Civ.

24 Code § 52.5(s).

25

26

27

28

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1

THIRD CAUSE OF ACTION

2

Violation of California’s Unfair Competition Law

3

Cal. Bus. & Prof. Code §§ 17200, et seq.

4 (On Behalf of Plaintiffs Individually and the California Forced Labor Class

5

and California Labor Law Class)

6

63. Plaintiffs and Class Members incorporate the above allegations by

7 reference.

8 64. California’s Unfair Competition Law (“UCL”) prohibits unfair

9 competition, defined as “any unlawful, unfair or fraudulent business act or practice

10 and unfair, deceptive, untrue or misleading advertising and any act prohibited by

11 [California’s False Advertising Law].” Cal. Bus. & Prof. Code § 17200.

12 65. CoreCivic willfully violated, and continues to violate, the "unlawful"

13 prong of the UCL by violating the federal Trafficking Victims Protection Act, 18

14 U.S.C. § 1589, et seq., the California Trafficking Victims Protection Act, Cal. Civ.

15 Code § 52.5, and the California labor laws and orders of the California Industrial

16 Welfare Commission, and other applicable statutes and laws alleged herein.

17 66. CoreCivic willfully violated, and continues to violate, the “unfair”

18 prong of the UCL by gaining unjust profits from “Dollar-A-Day Work” and Forced

19 Labor practices in violation of Plaintiffs and the Class Members' statutorily protected

20 rights.

21 67. The acts, omissions, and practices of Defendant, as described herein,

22 further constitutes “unfair” and "unlawful" business acts and practices under the

23 UCL in that Defendant’s conduct offends public policy against human trafficking

24 and Forced Labor, and seeks to profit and capitalize on the violations of Plaintiffs'

25 and the Class Members' applicable federal and state human and labor law rights.

26 68. As a direct and proximate result of Defendant’s unlawful and unfair

27 business practices, Plaintiffs and putative Class Members have suffered injury,

28 including but not limited to, monetary loss in connection with their Dollar-A-Day

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1 Work and Forced Labor services directly and proximately caused by CoreCivic’s

2 unlawful and unfair conduct and business practices, as well as, the violation of their

3 human rights and labor law rights.

4 69. Accordingly, Plaintiffs and the California Forced Labor Class Members

5 and California Labor Law Class members are entitled to, and hereby seek, an order

6 of this Court enjoining Defendant from continuing to conduct business through

7 unlawful, unfair, and/or fraudulent acts and practices, and to take corrective action

8 pursuant to Section 17203 of the UCL.

9 70. Plaintiffs and Class Members are further entitled to, and hereby seek an

10 order for disgorgement and restitution of all monies acquired from the sales of the

11 CoreCivic’s services which were unjustly acquired through acts of unlawful, unfair,

12 and/or fraudulent competition by CoreCivic, as well as any other further equitable

13 relief this Court may deem necessary, just, and proper under the circumstances.

14 Additionally, Plaintiffs and the Class seek pre-and-post judgment interest and

15 attorneys’ fees and costs as allowed by statute. See e.g., Cal. Code of Civ.

16 Proc. § 1021.5.

17

FOURTH CAUSE OF ACTION

18

Failure to Pay Minimum Wage

19

Cal. Labor Code §§ 1194, 1197, 1197.1

20

& I.W.C. Wage Orders No. 5-2001, 15-20011

21 (On behalf of Plaintiffs Individually and the California Labor Law Class)

22

71. Plaintiffs and Class Members incorporate by reference the foregoing

23 allegations.

24 72. California Labor Code §§ 1194, 1197, 1197.1 and Industrial Welfare

25 Commission Wage Orders 5-2001 and 15-2001 entitle non-exempt employees to an

26 amount equal to or greater than the minimum wage for all hours worked. All hours

27 must be paid at the statutory or agreed rate and no part of this rate may be used as a

28 credit against a minimum wage obligation.

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1 73. CoreCivic did not and does not compensate Detainees, including

2 Plaintiffs and the California Labor Law Class at the minimum wage for all “Dollar-

3 A-Day Work” hours performed.

4 74. As a result of violations of Cal. Labor Code §§ 1194, 1197, 1197.1 and

5 Industrial Welfare Commission Wage Orders 5-2001, 15-2001 for failure to pay

6 minimum wage, CoreCivic is liable for civil penalties pursuant to Cal. Labor Code

7 §§ 558, 1197.1, and 2698 et seq.

8 75. Accordingly, Plaintiffs and Class Members are entitled to, and hereby

9 seek, actual damages, punitive damages, reasonable attorneys’ fees and costs under

10 Cal. Code of Civ. Proc. § 1021.5, pre-and post-judgment interest at the applicable

11 legal rate, and any and all further equitable relief that this Court deems appropriate.

12

FIFTH CAUSE OF ACTION

13

Failure to Pay Overtime Wages

14

Cal. Labor Code §§ 204, 510, 1194, and Wage Orders 5-2001, 15-2001

15 (On behalf of Plaintiffs Individually and the California Labor Law Class)

16 76. Plaintiffs and Class Members incorporate the above allegations by

17 reference.

18 77. California Labor Code § 510 and the "Hours & Days of Work" Section

19 of the Wage Orders entitles non-exempt employees to one and one-half times their

20 hourly pay for any and all hours worked in excess of eight hours in any work day,

21 for the first eight hours worked on the seventh consecutive day of work in a work

22 week, and for any work in excess of forty hours in any one work week. Employees

23 are entitled to the one and one-half times their hourly pay for any and all hours

24 worked in excess of twelve (12) hours in any work day and in excess of eight (8)

25 hours on the seventh (7th) consecutive work day.

26 78. Plaintiffs and Class Members regularly worked in excess of eight (8)

27 hours per day and/or forty (40) hours per week without overtime compensation. By

28 failing to pay overtime compensation to Plaintiffs and Class Members, CoreCivic

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1 violated and continues to violate Cal. Labor Code §§ 204, 510 and 1194 and Wage

2 Orders 5-2001, 15-2001.

3 79. As a result of CoreCivic's unlawful acts, Plaintiffs and Class Members

4 have been deprived of overtime compensation in an amount to be determined at trial,

5 and are entitled to recovery of such amounts, plus interest thereon, attorneys' fees

6 and costs, under Cal. Labor Code § 1194.

7

SIXTH CAUSE OF ACTION

8

Failure to Provide Mandated Meal Periods

9 Cal. Labor Code §§ 226.7, 512, and I.W.C. Wage Orders 5-2001, 15-2001

10 (On behalf of Plaintiffs Individually and the California Labor Law Class)

11 80. Plaintiffs and Class Members incorporate the above allegations by

12 reference.

13 81.

CoreCivic failed to maintain a policy of providing meal breaks as

14 required by Cal. Labor Code §§ 226.7, 512 and Wage Orders 5-2001, 15-2001.

15 82.

Since at least three years prior to the filing of this action, Plaintiffs and

16 Class Members have worked in excess of five hours and at times ten hours a day

17 without being provided at least half hour meal periods in which they were relieved of

18 their duties, as required by Cal. Labor Code §§ 226.7 and 512 and Wage Orders 5-

19 2001, 15-2001. See Brinker Restaurant Corp., et al. v. Superior Court (2012) 53 Cal.

20 4th 1004, 1040-41 ("The employer satisfies this obligation if it relieves its employees

21 of all duty, relinquishes control over their activities and permits them a reasonable

22 opportunity to take an uninterrupted 30—minute break, and does not impede or

23 discourage them from doing so... [A] first meal period [is required] no later than the

24 end of an employee's fifth hour of work, and a second meal period [is required] no

25 later than the end of an employee's 10th hour of work.").

26 83.

Because CoreCivic failed to provide proper meal periods, it is

27 liable to all Plaintiffs and Class Members for one hour of additional pay at the

28 regular rate of compensation for each work day that the proper meal periods

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1 were not provided, pursuant to Cal. Labor Code §§ 226.7 and 512 and Wage

2 Orders 5-2001, 12-2001, as well as interest thereon, plus reasonable attorneys'

3 fees and costs of suit pursuant to Cal. Code of Civ. Proc. Code § 1021.5.

4

SEVENTH CAUSE OF ACTION

5

Failure to Provide Mandated Rest Periods

6

Cal. Labor Code § 226.7 and I.W.C. Wage Orders 5-2001, 15-2001

7 (On behalf of Plaintiffs Individually and the California Labor Law Class)

8

84. Plaintiffs and Class Members incorporate the above allegations by

9 reference.

10 85. Since at least three years prior to the commencement of this action.

11 Plaintiffs and Class Members have regularly worked without any rest periods that

12 are required by Wage Orders 5-2001, 15-2001. See Brinker, 53 Cal. 4th 1004 at 1029

13 ("Employees are entitled to 10 minutes rest for shifts three and one-half to six hours

14 in length, 20 minutes for shifts of more than six hours up to 10 hours; 30 minutes for

15 shifts of more than 10 hours up to 14 hours, and so on.").

16 86. Because CoreCivic failed to provide proper rest periods, it is liable to

17 Plaintiffs and Class Members for one (1) hour of additional pay at the regular rate of

18 compensation for each workday that the proper rest periods were not provided,

19 pursuant to Cal. Labor Code § 226.7 and Wage Orders 5-2001, 152001, as well as

20 interest thereon, plus reasonable attorneys' fees and costs of suit pursuant to Cal.

21 Code of Civ. Proc. § 1021.5.

22

EIGHTH CAUSE OF ACTION

23

Failure to Furnish Timely and Accurate Wage Statements

24

Cal. Labor Code § 226

25 (On behalf of Plaintiffs Individually and the California Labor Law Class)

26

87. Plaintiffs and Class Members incorporate the above allegations by

27 reference.

28

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1

88.

California Labor Code § 226 requires an employer to furnish its

2 employees with an accurate itemized statement in writing showing, among other things:

3

a. all applicable hourly rates in effect during each respective pay period and the

4

corresponding number of hours worked by each respective individual;

5

b. total hours worked by each respective individual;

6

c. gross wages earned;

7

d. net wages earned;

8

e. all deductions;

9

f. inclusive dates of the period for which the employee is paid;

10

g. the name of the employee and an employee identification or social security

11

number; and

12

h. the name and address of the legal entity that is the employer.

13

89.

As a pattern and practice, in violation of Labor Code § 226(a),

14 CoreCivic did not provide Plaintiffs or Class Members with accurate itemized wage

15 statements in writing showing:

16

a. all applicable hourly rates in effect during each respective pay period and

17

the corresponding number of hours worked by each respective individual;

18

b. number of hours worked;

19

c. gross wages earned;

20

d. net wages earned;

21

e. all deductions;

22

f. inclusive dates of the period for which the employee is paid;

23

g. the employee identification or social security number; and

24

h. the address of the legal entity that is the employer.

25

90.

As a result of CoreCivic's failure to provide accurate itemized wages

26 statements, Plaintiffs and Class Members suffered actual damages and harm by being

27 unable to determine their applicable hourly rate or the amount of overtime worked for

28

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1 each pay period, which prevented them from becoming aware of these violations and

2 asserting their statutory protections under California law.

3 91. CoreCivic has knowingly and intentionally failed to comply with Cal.

4 Labor Code § 226(a) and failed to provide a wage statement to Plaintiffs and Class

5 Members.

6

92.

Pursuant to Cal. Labor Code § 226(e), the Plaintiffs and Class

7 Members are entitled to recover the greater of all actual damages or fifty dollars

8 ($50.00) for the initial pay period in which a violation occurs and one hundred

9 dollars ($100.00) per employee for each violation in a subsequent pay period, not

10 exceeding an aggregate penalty of four thousand dollars ($4,000.00).

11

93.

The Plaintiffs and Class Members are entitled to an award of costs and

12 reasonable attorneys' fees pursuant to Cal. Labor Code § 226(h).

13

NINTH CAUSE OF ACTION

14 Failure to Pay Compensation Upon Termination/Waiting Time Penalties

15

Cal. Labor Code §§ 201-2031

16 (On behalf of Plaintiffs Individually and the California Labor Law Class)

17

94. Plaintiffs and Class Members incorporate the above allegations by

18 reference.

19

95. California Labor Code §§ 201 and 202 require CoreCivic to pay all

20 compensation due and owing to Plaintiffs and Class Members immediately upon

21 discharge or within seventy-two hours of their termination of employment. Cal.

22 Labor Code § 203 provides that if an employer willfully fails to pay compensation

23 promptly upon discharge or resignation, as required by §§ 201 and 202, then the

24 employer is liable for such "waiting time" penalties in the form of continued

25 compensation up to thirty workdays.

26

96. CoreCivic willfully failed to pay Plaintiffs and Class Members who are

27 no longer employed by CoreCivic compensation due upon termination as required

28 by Cal. Labor Code §§ 201 and 202. As a result, CoreCivic is liable to Plaintiffs and

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1 former employee Class Members waiting time penalties provided under Cal. Labor

2 Code § 203, plus reasonable attorneys' fees and costs of suit.

3

TENTH CAUSE OF ACTION

4

Imposition of Unlawful Terms and Conditions of Employment

5

Cal. Labor Code § 432.5

6 (On behalf of Plaintiffs Individually and the California Labor Law Class)

7

97. Plaintiffs and Class Members incorporate the above allegations by

8 reference.

9

98. Cal. Labor Code § 432.5 provides that no employer shall require any

10 employee to agree, in writing, to any term or condition which is known by the

11 employer to be prohibited by law.

12

99. CoreCivic requires, as a condition of employment, that Plaintiffs and

13 Class Members sign a written agreement which includes numerous terms that are

14 prohibited by law, including but not limited to agreeing to work for less than

15 minimum wage or without appropriate overtime compensation.

16

100. Provisions of the employment contract, as described above, that

17 Plaintiffs and Class Members were required to sign as a condition of employment,

18 explicitly and unquestionably, violate several provisions of California law and

19 public policy. Upon information and belief, CoreCivic knew that such provisions

20 violated California law and public policy.

21

101. As a result of Defendant's unlawful conduct as alleged herein, Plaintiffs

22 and Class Members have sustained damages.

23

ELEVENTH CAUSE OF ACTION

24

Negligence

25

(On Behalf of Plaintiffs Individually and the Class)

26

102. Plaintiffs and the Class Members incorporate the above allegations by

27 reference.

28

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1

103. In engaging Plaintiffs and the Class members to provide labor and

2 services to CoreCivic, CoreCivic owed a duty to exercise reasonable and ordinary

3 care in complying with all applicable local, state, and federal laws and to furnish a

4 safe working place for its employees.

5

104. This duty included, among other things, taking reasonable measures to

6 implement and maintain reasonable procedures to provide a safe working

7 environment and workplace and to protect the rights of Class Members in compliance

8 with applicable law, including, but not limited to procedures and policies:

9

a. to supervise, restrict, limit, and determine whether any Plaintiffs and the

10

Class Members were subject to Forced Labor practices by CoreCivic or

11

perform other labor and services under threat of punishment, confinement,

12

physical restraint, and deprivation of liberty;

13

b. to notify Plaintiffs and the Class Members of their rights under the TVPA

14

and CTVPA; and

15

c. when and how to notify Plaintiffs and the Class Members of CoreCivic's

16

unlawful Forced Labor practices.

17

105. In providing services to the Plaintiffs and the Class, CoreCivic owed

18 them a duty to exercise reasonable care, without limitation in:

19

a. adequately providing a safe working environment and workplace;

20

b. adequately protecting the rights of Class Members in compliance with

21

applicable law;

22

c. prohibiting and adequately ensuring Plaintiffs and the Class Members

23

were not subject to Forced Labor practices;

24

d. adequately ensuring Plaintiffs and the Class Members had a safe work

25

environment; and

26

e. protecting the rights of Plaintiffs and the Class’ under the TVPA and

27

CTVPA from CoreCivic's Forced Labor practices.

28

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1 106. CoreCivic’ systems, policies, and procedures for adequately ensuring

2 the rights of Plaintiffs and the Class Members under the TVPA and CTVPA were

3 adequately protected were intended to, and did, affect Plaintiffs and the Class

4 Members. CoreCivic was aware that by utilizing Plaintiffs' and the Class Members

5 labor and services, it had a responsibility to take reasonable measures to protect their

6 rights under applicable law.

7 107. The duty CoreCivic owed to Plaintiffs and Class Members to protect

8 their rights under applicable law is underscored by the Federal and California

9 Trafficking Victims Protection Act, which recognizes the importance of preventing

10 the crime of trafficking of a person for forced labor or services.

11

108. Additionally, CoreCivic had a duty to timely disclose to and/or warn

12 Plaintiffs and Class Members of their rights under the TVPA, CTVPA, California

13 labor laws, and other applicable laws, rules, and regulations. Timely disclosure was

14 necessary and appropriate so that Plaintiffs and Class Members could have, among

15 other things, timely pursued and exhausted available remedies, and undertaken

16 appropriate measures to avoid, prevent or mitigate the violations of their rights under

17 applicable laws.

18

109. There is a very close connection between CoreCivic’s failure to take

19 reasonable measures to provide a safe and lawful work environment and timely

20 disclosure of Plaintiffs' and the Class Members' rights and the injury to Plaintiffs and

21 the Class.

22

110. When individuals have their human and labor law rights violated they

23 are at risk for personal, financial, physical, and emotional injury, distress, and

24 damage and need to incur additional costs and expense to protect themselves and

25 seek and obtain redress from such invasions of their legal rights.

26

111. CoreCivic is legally responsible for such unlawful violations of

27 Plaintiffs and the Class Members' human and labor law rights and their right to a

28 safe working environment because it failed to take reasonable measures in

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1 connection therewith. If CoreCivic had taken reasonable measures in connection

2 with their employment of Plaintiffs and the Class Members, their legal rights would

3 not have been violated.

4

112. The policy of preventing future harm weighs in favor of finding a

5 special relationship between CoreCivic and the Class. CoreCivic’s civil immigration

6 detainees have no choice to but to perform the Forced Labor when and how

7 CoreCivic demands it. If CoreCivic is not held accountable for failing to take

8 reasonable measures to protect the human rights and labor law rights of its detainees,

9 they will not take the steps that are necessary to protect against future invasions of

10 such rights.

11

113. It was foreseeable that if CoreCivic did not take reasonable measures,

12 the human rights and labor law rights of Plaintiffs and Members of the Class would

13 be violated. CoreCivic should have known to take precautions to prevent such

14 abuses.

15

114. CoreCivic breached its duty to exercise reasonable care in providing a

16 safe work environment for, and protecting the human rights and labor law rights of,

17 Plaintiffs and the Class Members by, without limitation:

18

a. failing to implement and maintain adequate measures to safeguard

19

detainees' rights;

20

b. failing to monitor its operations to identify unlawful activity;

21

c. requiring and/or allowing Plaintiffs and the Class to work in an unsafe

22

environment; and

23

d. failing to otherwise prevent human rights and labor law abuses.

24

115. CoreCivic breached its duty to timely warn or notify Plaintiffs and the

25 Class about its unlawful Forced Labor and “Dollar-A-Day Work” practices and

26 programs. CoreCivic has failed to issue any warnings to its current and former

27 detainees affected by these unlawful practices. Additionally, CoreCivic was, or

28 should have been, aware of its unlawful practices as early as November 2, 2004.

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1

116. But for CoreCivic’s failure to implement and maintain adequate

2 measures to provide a safe working environment for, and protect the human rights

3 and labor law rights of, Plaintiffs and the Class Members, and its failure to monitor

4 its operations to identify unlawful Forced Labor and Dollar-A-Day Work violations

5 of the labor laws, Plaintiffs' and Class Members' rights would not have been violated

6 and Class Members would not be at a heightened risk of unlawful Forced Labor and

7 other labor law violations in the future.

8

117. CoreCivic’s negligence was a substantial factor in causing harm to

9 Plaintiffs and Class Members, and in violating their human rights and labor law

10 rights. As a direct and proximate cause and result of CoreCivic’ failure to exercise

11 reasonable care and use reasonable measures to provide a safe working environment

12 and safeguard the human rights and labor law rights of Plaintiffs and the Class

13 Members, Plaintiffs and the Class Members were subjected to Forced Labor and the

14 labor law violations set forth herein. Class Members face a heightened risk of such

15 unlawful practices in the future.

16

118. Neither Plaintiffs nor other Class Members contributed to the unlawful

17 conduct set forth herein, nor did they contribute to CoreCivic’s unlawful Forced

18 Labor practices and other labor law violations, nor to the insufficient measures to

19 provide a safe working environment and to safeguard the human rights and labor law

20 rights of Plaintiffs and the Class Members.

21

119. Plaintiffs and the Class Members seek compensatory damages and

22 exemplary damages with pre-and-post judgment interest, the costs of suit, attorneys’

23 fees, and other and further relief as this Court deems just and proper.

24

TWELFTH CAUSE OF ACTION

25

Unjust Enrichment

26

(On Behalf of Plaintiffs Individually and the Class)

27 120. Plaintiffs and the Class Members incorporate the above allegations by

28 reference.

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1 121. “Under California law, the elements of unjust enrichment are: 2 (a) receipt of a benefit; and (b) unjust retention of the benefit at the expense of 3 another.” Valencia v. Volkswagen Grp. of Am. Inc., No. 15-CV-00887-HSG, 2015 4 WL 4747533, at *8 (N.D. Cal. Aug. 11, 2015). See also, Munoz v. MacMillan, 195 5 Cal. App. 4th 648, 661 (2011) (“Common law principles of restitution require a party 6 to return a benefit when the retention of such benefit would unjustly enrich the 7 recipient; a typical cause of action involving such remedy is ‘quasi-contract.”) 8 122. “When a plaintiff alleges unjust enrichment, a court may construe the 9 cause of action as a quasi-contract claim seeking restitution.” Astiana v. Hain 10 Celestial Grp., Inc., 783 F.3d 753, 762 (9th Cir. 2015). “Whether termed unjust 11 enrichment, quasi-contract, or quantum meruit, the equitable remedy of restitution 12 when unjust enrichment has occurred “is an obligation (not a true contract [citation]) 13 created by the law without regard to the intention of the parties, and is designed to 14 restore the aggrieved party to his or her former position by return of the thing or its 15 equivalent in money.” F.D.I.C. v. Dintino, 167 Cal. App. 4th 333, 346 (2008). 16 123. Plaintiffs and Class Members conferred non-gratuitous benefits upon 17 CoreCivic by performing “Dollar-A-Day Work” for all hours worked for which 18 CoreCivic would otherwise have had to pay at least the applicable minimum wage 19 or more, thereby significantly and materially increasing CoreCivic's profit margins, 20 and unjustly enriching CoreCivic at the expense of and to the detriment of Plaintiffs 21 and the Class Members. 22 124. CoreCivic’s retention of any benefit collected directly and indirectly 23 from Plaintiffs’ and Class Members' labor and services violated principles of justice, 24 equity, and good conscience. As a result, CoreCivic has been unjustly enriched. 25 Plaintiffs and Class Members are entitled to recover from CoreCivic all amounts that 26 CoreCivic has wrongfully and improperly obtained, and CoreCivic should be 27 required to disgorge to Plaintiffs and Class Members the benefits it has unjustly 28 obtained.
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1 125. CoreCivic accepted or retained such benefits with knowledge that

2 Plaintiffs' and Class Members' human rights and labor law right were being violated

3 for financial gain. CoreCivic has been unjustly enriched in retaining the revenues

4 and profits from Plaintiffs and Class Members’ Dollar-A-Day Work, which retention

5 under these circumstances is unjust and inequitable.

6 126. As a direct and proximate result of CoreCivic’s Forced Labor practices

7 and the Dollar-A-Day Work program, Plaintiffs and Class Members have suffered

8 concrete harm and injury, including, but not limited to, physical and emotional

9 injury, monetary loss in connection with their labor and services provided CoreCivic

10 purchases of services, and the unlawful violation of their human rights and labor law

11 rights, as alleged herein.

12 127. CoreCivic’s retention of the non-gratuitous benefits conferred on them

13 by Plaintiffs and Class Members would be unjust and inequitable. Plaintiffs and Class

14 Members are entitled to seek disgorgement and restitution of wrongful profits,

15 revenue, and benefits conferred upon CoreCivic in a manner established by this Court.

16 128. Plaintiffs and Class Members are further entitled to, and hereby seek,

17 reasonable attorneys’ fees and costs under Cal. Code of Civ. Proc. § 1021.5, pre-and

18 post-judgment interest at the applicable legal rate, as well as any and all further

19 equitable relief that this Court deems appropriate.

20

PRAYER FOR RELIEF

21

WHEREFORE, Plaintiffs, individually and on behalf of the proposed Class,

22 request the Court:

23

a. certify this case as a class action on behalf of the Class Members

24 defined above, appoint Sylvester Owino and Jonathan Gomes as Class

25 representatives, and appoint the Law Office of Robert L. Teel as Class counsel;

26

b. award declaratory and other equitable relief as is necessary to protect

27 the interests of Plaintiffs and Class Members;

28

- 34 -
Sylvester Owino, et al. v. CoreCivic, Inc. CLASS ACTION COMPLAINT

Case 3:17-cv-01112-JLS-NLS Document 1 Filed 05/31/17 PageID.36 Page 36 of 36

1

c. award injunctive relief as is necessary to protect the interests of

2 Plaintiffs and the Class Members;

3

d. award restitution, damages, treble damages, and punitive damages to

4 Plaintiffs and Class Members in an amount to be determined at trial;

5

e. order disgorgement of CoreCivic’s unjustly acquired revenue, profits,

6 and other benefits resulting from their unlawful conduct for the benefit of Plaintiffs

7 and Class Members in an equitable and efficient manner determined by the Court;

8

f. order the imposition of a constructive trust upon CoreCivic such that its

9 enrichment, benefit, and ill-gotten gains may be allocated and distributed equitably by

10 the Court to and for the benefit of Plaintiffs and the Class Members.

11

g. award Plaintiffs and Class Members their reasonable litigation

12 expenses and attorneys’ fees;

13

h. award Plaintiffs and Class Members pre- and post-judgment interest to

14 the extent allowable; and

15

i. award such other and further relief as equity and justice may require.

16

JURY DEMAND

17 Plaintiffs hereby demand a trial by jury on all issues so triable.

18 Dated: May 31, 2017 19 20 21 22 23 24

/s/ Robert L. Teel By: Robert L. Teel LAW OFFICE OF ROBERT L. TEEL ROBERT L. TEEL lawoffice@rlteel.com 207 Anthes Ave., Suite 201 Langley, Washington 98260 Telephone: (866) 833-5529 Facsimile: (855) 609-6911

25

Attorney for Plaintiffs

and the Proposed Class 26

27

28

- 35 -
Sylvester Owino, et al. v. CoreCivic, Inc. CLASS ACTION COMPLAINT

 
 ENE,PROTO,SEALDC
U.S. District Court Southern District of California (San Diego) CIVIL DOCKET FOR CASE #: 3:17−cv−01112−JLS−NLS

Owino et al v. CoreCivic, Inc. Assigned to: Judge Janis L. Sammartino Referred to: Magistrate Judge Nita L. Stormes Demand: $5,000,000 Related Case: 3:17−cv−02573−JLS−NLS Cause: 28:1331 Fed. Question
Plaintiff
Sylvester Owino on behalf of themselves, and all others similarly situated

Date Filed: 05/31/2017 Jury Demand: Both Nature of Suit: 890 Other Statutory Actions Jurisdiction: Federal Question
represented by Geoffrey M. Raux Foley & Lardner LLP 111 Huntingon Ave. Suite 2500 Boston, MA 02199 617−342−4000 Fax: 617−342−4001 Email: graux@foley.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Robert L. Teel Law Office of Robert L. Teel 1425 Broadway Mail Code: 20−6690 Seattle, WA 98122 866−833−5529 Fax: 855−609−6911 Email: lawoffice@rlteel.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alan R Ouellete Foley & Lardner LLP 555 California Street, Suite 1700 San Francisco, CA 94104 415−434−4484 Email: AOuellette@foley.com ATTORNEY TO BE NOTICED
Eileen Regina Ridley Foley and Lardner LLP 555 California Street Suite 1700 San Francisco, CA 94104−1520 (415) 434−4484 Fax: (415) 434−4507 Email: eridley@foley.com ATTORNEY TO BE NOTICED
J. Mark Waxman Foley & Lardner LLP 3579 Valley Centre Drive Suite 300 San Diego, CA 92130 858−847−6700 Fax: 858−792−6773 Email: mwaxman@foley.com ATTORNEY TO BE NOTICED

Plaintiff Jonathan Gomez on behalf of themselves, and all others similarly situated
V. Defendant CoreCivic, Inc. a Maryland corporation

Nicholas John Fox Foley & Lardner LLP 11988 El Camino Real Suite 400 San Diego, CA 92130 858−847−6700 Fax: 858−792−6773 Email: nfox@foley.com ATTORNEY TO BE NOTICED
represented by Geoffrey M. Raux (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Robert L. Teel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alan R Ouellete (See above for address) ATTORNEY TO BE NOTICED
Eileen Regina Ridley (See above for address) ATTORNEY TO BE NOTICED
J. Mark Waxman (See above for address) TERMINATED: 01/29/2020 ATTORNEY TO BE NOTICED
Nicholas John Fox (See above for address) ATTORNEY TO BE NOTICED
represented by Ashlee Beth Hesman Struck Love Bojanowski & Acedo, PLC 3100 West Ray Road Suite 300 Chandler, AZ 85226 480−420−1600 Email: ahesman@strucklove.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Daniel P Struck Struck Love Bojanowski & Acedo, PLC 3100 West Ray Road Suite 300 Chandler, AZ 85226 (480) 420−1620 Fax: (480) 420−1695 Email: dstruck@strucklove.com LEAD ATTORNEY

Counter Claimant
CoreCivic, Inc. a Maryland corporation

PRO HAC VICE ATTORNEY TO BE NOTICED
Ethan H Nelson Law Office of Ethan H. Nelson 4 Park Plaza, Suite 1025 Irvine, CA 92614 949−229−0961 Fax: 949−861−7122 Email: ethannelsonesq@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jacob Brady Lee Struck Love Bojanowski & Acedo, PLC 3100 West Ray Road Suite 300 Chandler, AZ 85226 480−420−1600 Fax: 480−420−1695 Email: JLee@strucklove.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Nicholas D. Acedo Struck Love Bojanowski & Acedo, PLC 3100 West Ray Road Suite 300 Chandler, AZ 85226 480−420−1600 Email: NAcedo@strucklove.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rachel Love Struck Love Bojanowski & Acedo, PLC 3100 West Ray Road Suite 300 Chandler, AZ 85226 (480) 420−1600 Fax: (480) 420−1690 Email: RLove@strucklove.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Ashlee Beth Hesman (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Daniel P Struck (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ethan H Nelson (See above for address) LEAD ATTORNEY

V. Counter Defendant Jonathan Gomez on behalf of themselves, and all others similarly situated
Counter Defendant Sylvester Owino on behalf of themselves, and all others similarly situated

ATTORNEY TO BE NOTICED
Jacob Brady Lee (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nicholas D. Acedo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rachel Love (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Geoffrey M. Raux (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Robert L. Teel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Eileen Regina Ridley (See above for address) ATTORNEY TO BE NOTICED
J. Mark Waxman (See above for address) TERMINATED: 01/29/2020 ATTORNEY TO BE NOTICED
Nicholas John Fox (See above for address) ATTORNEY TO BE NOTICED
represented by Geoffrey M. Raux (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Robert L. Teel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Eileen Regina Ridley (See above for address) ATTORNEY TO BE NOTICED
J. Mark Waxman (See above for address) ATTORNEY TO BE NOTICED

Counter Claimant CoreCivic, Inc. a Maryland corporation
V. Counter Defendant Jonathan Gomez on behalf of themselves, and all others similarly situated

Nicholas John Fox (See above for address) ATTORNEY TO BE NOTICED
represented by Ashlee Beth Hesman (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Daniel P Struck (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ethan H Nelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jacob Brady Lee (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nicholas D. Acedo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rachel Love (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Geoffrey M. Raux (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert L. Teel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alan R Ouellete (See above for address) ATTORNEY TO BE NOTICED
Eileen Regina Ridley (See above for address) ATTORNEY TO BE NOTICED
J. Mark Waxman (See above for address) TERMINATED: 01/29/2020 ATTORNEY TO BE NOTICED

Counter Defendant
Sylvester Owino on behalf of themselves, and all others similarly situated

Nicholas John Fox (See above for address) ATTORNEY TO BE NOTICED
represented by Geoffrey M. Raux (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert L. Teel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alan R Ouellete (See above for address) ATTORNEY TO BE NOTICED
Eileen Regina Ridley (See above for address) ATTORNEY TO BE NOTICED
J. Mark Waxman (See above for address) ATTORNEY TO BE NOTICED
Nicholas John Fox (See above for address) ATTORNEY TO BE NOTICED

Date Filed 05/31/2017
06/01/2017 06/16/2017 06/20/2017 06/20/2017 06/21/2017 06/21/2017 06/26/2017

# Docket Text
1 COMPLAINT with Jury Demand against All Defendants (Filing fee $400 receipt number 0974−10125194.), filed by Sylvester Owino, Jonathan Gomez. (Attachments: # 1 Civil Cover Sheet)
The new case number is 3:17−cv−1112−JLS−NLS. Judge Janis L. Sammartino and Magistrate Judge Nita L. Stormes are assigned to the case. (Teel, Robert)(mxn) (sjt). (Entered: 06/01/2017)
2 Summons Issued. Counsel receiving this notice electronically should print this summons and serve it in accordance with Rule 4, Fed.R.Civ.P and LR 4.1. (mxn) (Entered: 06/01/2017)
3 Request to Appear Pro Hac Vice ( Filing fee received: $ 206 receipt number 0974−10172060.) (Application to be reviewed by Clerk.) (Acedo, Nicholas) (kcm). (Entered: 06/16/2017)
4 Request to Appear Pro Hac Vice, No payment Submitted. (Application to be reviewed by Clerk.) (Struck, Daniel)(jrd) (Entered: 06/20/2017)
5 Request to Appear Pro Hac Vice, No payment Submitted. (Application to be reviewed by Clerk.) (Love, Rachel)(jrd) (Entered: 06/20/2017)
6 Request to Appear Pro Hac Vice ( Filing fee received: $ 206 receipt number 0974−10182709.) (Application to be reviewed by Clerk.) (Fletcher, Ashlee) (Entered: 06/21/2017)
7 ORDER Approving Pro Hac Vice Application of Nicholas D. Acedo, re 3 Request to Appear Pro Hac Vice. Signed by Judge Janis L. Sammartino on 6/20/2017.(jrd) (Entered: 06/21/2017)
8 MOTION for Extension of Time to File Answer by CoreCivic, Inc.. (Acedo, Nicholas) (dxj). (Entered: 06/26/2017)

06/26/2017 06/26/2017 06/26/2017 06/26/2017 06/26/2017 06/28/2017
07/25/2017 07/25/2017 07/27/2017
08/11/2017 08/11/2017 08/28/2017 08/29/2017
08/31/2017 08/31/2017 09/05/2017 09/07/2017

9 CERTIFICATE OF SERVICE by CoreCivic, Inc. re 8 MOTION for Extension of Time to File Answer (Acedo, Nicholas) QC Mailer re: Only attorneys can use s/ (dxj). (Entered: 06/26/2017)
10 SUMMONS Returned Executed by Sylvester Owino, Jonathan Gomez. CoreCivic, Inc. served. (Teel, Robert) (dxj). (Entered: 06/26/2017)
11 ORDER Approving Pro Hac Vice Application of Daniel P Struck, re 4 Request to Appear Pro Hac Vice. Signed by Judge Janis L. Sammartino on 6/22/2017.(jrd) (Entered: 06/26/2017)
12 ORDER Approving Pro Hac Vice Application of Ashlee Beth Fletcher, re 6 Request to Appear Pro Hac Vice. Signed by Judge Janis L. Sammartino on 6/22/2017.(jrd) (Entered: 06/26/2017)
13 ORDER Approving Pro Hac Vice Application of Rachel Love, re 5 Request to Appear Pro Hac Vice. Signed by Judge Janis L. Sammartino on 6/22/2017.(jrd) (Entered: 06/26/2017)
14 ORDER Granting Unopposed 8 Motion for Extension of Time. It is ordered that defendant shall file an answer, or otherwise respond to plaintiff's complaint on or before 7/28/2017. Signed by Judge Janis L. Sammartino on 6/28/2017. (dxj) (Entered: 06/28/2017)
15 MOTION for Extension of Time to File , MOTION for Extension of Time to File Answer by CoreCivic, Inc.. (Fletcher, Ashlee) (dxj). (Entered: 07/25/2017)
16 CERTIFICATE OF SERVICE by CoreCivic, Inc. re 15 MOTION for Extension of Time to File MOTION for Extension of Time to File Answer (Fletcher, Ashlee) (dxj). (Entered: 07/25/2017)
17 ORDER Granting Unopposed 15 Motion for Extension of Time. It is ordered that Defendant shall file an answer, or otherwise respond, to Plaintiff's Complaint on or before 8/11/2017. Signed by Judge Janis L. Sammartino on 7/27/2017. (dxj) (Entered: 07/27/2017)
18 MOTION to Dismiss for Failure to State a Claim (Including Notice of Motion) by CoreCivic, Inc.. (Attachments: # 1 Memo of Points and Authorities, # 2 Proof of Service)(Acedo, Nicholas) (mpl). (Entered: 08/11/2017)
19 NOTICE of Party With Financial Interest by CoreCivic, Inc. . No Parties With Financial Interest. (Attachments: # 1 Proof of Service)(Acedo, Nicholas) (mpl). (Entered: 08/11/2017)
20 Joint MOTION for Leave to File Excess Pages by Jonathan Gomez, Sylvester Owino. (Attachments: # 1 Proof of Service Certificate of Service)(Teel, Robert) (mpl). (Entered: 08/28/2017)
21 ORDER Granting 20 Motion to Exceed Page Limitation. It is ordered that the Plaintiffs may file a 31 page memorandum in opposition to Defendant's Motion to Dismiss, and Defendant may file a 13 page reply memorandum in support of its motion. Signed by Judge Janis L. Sammartino on 8/29/2017. (mpl) (jao). (Entered: 08/29/2017)
22 RESPONSE in Opposition re 18 MOTION to Dismiss for Failure to State a Claim (Including Notice of Motion) filed by Jonathan Gomez, Sylvester Owino. (Attachments: # 1 Proof of Service)(Teel, Robert)(mpl). (Entered: 08/31/2017)
23 NOTICE of Change of Address by Robert L. Teel (Attachments: # 1 Proof of Service)(Teel, Robert) (mpl). (Entered: 08/31/2017)
24 NOTICE of Change of Address by Ashlee Beth Fletcher (Attachments: # 1 Proof of Service)(Fletcher, Ashlee) (mpl). (Entered: 09/05/2017)
25 ORDER Vacating Hearing. The Court vacates the hearing on Defendant's Motion, presently set for 9/14/2017, and takes the matter under submission without oral argument pursuant to Local Rule 7.1(d)(1). Signed by Judge Janis L. Sammartino on 9/7/2017.(mpl) (jao). (Entered: 09/07/2017)

09/07/2017 12/06/2017
12/15/2017 12/15/2017 12/15/2017 01/03/2018
02/11/2018
02/16/2018 02/27/2018
02/27/2018
03/02/2018 04/20/2018
05/14/2018 05/17/2018 05/23/2018 05/30/2018 05/30/2018

26 REPLY to Response to Motion re 18 MOTION to Dismiss for Failure to State a Claim (Including Notice of Motion) filed by CoreCivic, Inc.. (Attachments: # 1 Certificate of Service)(Acedo, Nicholas) (mpl). (Entered: 09/07/2017)
27 REQUEST FOR JUDICIAL NOTICE by Jonathan Gomez, Sylvester Owino re 22 Response in Opposition to Motion and Notice of Supplemental Authority (Attachments: # 1 Exhibit 1 to Notice of Supplemental Authority and Request for Judicial Notice, # 2 Proof of Service)(Teel, Robert) (mpl). (Entered: 12/06/2017)
28 NOTICE of Name Change by CoreCivic, Inc. (Fletcher, Ashlee)(acc). (Entered: 12/15/2017)
29 CERTIFICATE OF SERVICE by CoreCivic, Inc. re 28 Notice (Other) (Fletcher, Ashlee) (mpl). (Entered: 12/15/2017)
30 REQUEST FOR JUDICIAL NOTICE by CoreCivic, Inc. re 27 Request for Judicial Notice, − Defendant's Response (Attachments: # 1 Proof of Service)(Acedo, Nicholas)(mpl). (Entered: 12/15/2017)
31 NOTICE OF RELATED CASE(S) by Carlos Gonzalez, Juan Jose Merino−Rodas, Maribel Gutierrez−Canchola, Gladys Carrera−Duarte, Jennye Pagoada−Lopez of case(s) 17−cv−02573 . (Attachments: # 1 Exhibit A − Owino Complaint, # 2 Exhibit B − Gonzalez Complaint)(Thompson, William)(mpl). (Entered: 01/03/2018)
32 REQUEST FOR JUDICIAL NOTICE by Jonathan Gomez, Sylvester Owino re 22 Response in Opposition to Motion to Dismiss; Notice of Supplemental Authority (Attachments: # 1 Exhibit 1 to Notice of Supplemental Authority and Request for Judicial Notice, # 2 Proof of Service)(Teel, Robert) (mpl). (Entered: 02/11/2018)
33 ORDER Staying Case and Deferring Ruling on 18 Motion to Dismiss. Signed by Judge Janis L. Sammartino on 2/16/2018. (mpl) (Entered: 02/16/2018)
34 NOTICE of Association of Counsel by Jonathan Gomez, Sylvester Owino (Fox, Nicholas)Attorney Nicholas J. Fox added to party Jonathan Gomez(pty:pla), Attorney Nicholas J. Fox added to party Sylvester Owino(pty:pla)(mpl). QC mail re wrong event used. (Entered: 02/27/2018)
35 NOTICE of Association of Counsel by Jonathan Gomez, Sylvester Owino (Ridley, Eileen)Attorney Eileen Regina Ridley added to party Jonathan Gomez(pty:pla), Attorney Eileen Regina Ridley added to party Sylvester Owino(pty:pla)QC Mail re wrong event used (mpl). (Entered: 02/27/2018)
36 REQUEST FOR JUDICIAL NOTICE by CoreCivic, Inc. re 26 Reply to Response to Motion, 32 Request for Judicial Notice, (Attachments: # 1 Proof of Service)(Acedo, Nicholas) (mpl). (Entered: 03/02/2018)
37 NOTICE of Appearance by J. Mark Waxman on behalf of Jonathan Gomez, Sylvester Owino (Waxman, J.)Attorney J. Mark Waxman added to party Jonathan Gomez(pty:pla), Attorney J. Mark Waxman added to party Sylvester Owino(pty:pla) (mpl). (Entered: 04/20/2018)
38 Order Granting in Part and Denying in Part Defendant's 18 Motion to Dismiss and Lifting Stay on Proceedings. Signed by Judge Janis L. Sammartino on 5/14/2018.(mpl) (Entered: 05/14/2018)
39 Request to Appear Pro Hac Vice (Filing fee received: $ 206 receipt number 0974−11227148.)(Application to be reviewed by Clerk.) (Attachments: # 1 Certificate of Service)(Lee, Jacob)(jrd) (Entered: 05/17/2018)
40 ORDER Approving the Pro Hac Vice Application of Jacob Brady Lee (Re: Doc. No. 39 Request to Appear Pro Hac Vice). Signed by Judge Janis L. Sammartino on 5/21/2018.(jrd) (Entered: 05/23/2018)
41 Joint MOTION for Extension of Time to File Answer by CoreCivic, Inc. (Lee, Jacob) (mpl). (Entered: 05/30/2018)
42 CERTIFICATE OF SERVICE by CoreCivic, Inc. re 41 Joint MOTION for Extension of Time to File Answer (Lee, Jacob) (mpl). (Entered: 05/30/2018)

05/31/2018 06/08/2018 06/08/2018 06/11/2018
06/11/2018 06/27/2018 06/27/2018 06/28/2018 07/19/2018
07/19/2018 07/19/2018 07/26/2018 07/26/2018 07/26/2018
07/27/2018 08/01/2018 08/10/2018

43 ORDER Granting 41 Joint Motion for Extension of Time to Answer. Defendant shall file a responsive pleading on or before 6/8/2018. Signed by Judge Janis L. Sammartino on 5/31/2018. (mpl) (Entered: 05/31/2018)
44 ANSWER to 1 Complaint, with Jury Demand , COUNTERCLAIM against Jonathan Gomez, Sylvester Owino by CoreCivic, Inc. (Attachments: # 1 Proof of Service)(Struck, Daniel) (mpl). (Entered: 06/08/2018)
45 DEMAND for Trial by Jury by CoreCivic, Inc. (Attachments: # 1 Proof of Service)(Struck, Daniel) (mpl). (Entered: 06/08/2018)
46 NOTICE AND ORDER Setting Telephonic Early Neutral Evaluation Conference and Case Management Conference. The Early Neutral Evaluation and Case Management Conference is set for 7/26/2018 at 2:30 p.m. before Magistrate Judge Nita L. Stormes. The Joint Discovery Plan is due 7/13/2018. Signed by Magistrate Judge Nita L. Stormes on 6/11/2018.(mpl) (Entered: 06/11/2018)
47 MOTION for Reconsideration re 38 Order Lifting Stay by CoreCivic, Inc.. (Attachments: # 1 Memo of Points and Authorities, # 2 Index to Exhibit, # 3 Exhibit 1, # 4 Certificate of Service)(Acedo, Nicholas)(mpl). (Entered: 06/11/2018)
48 Request to Appear Pro Hac Vice (Filing fee received: $ 206 receipt number 0974−11379387.)(Application to be reviewed by Clerk.) (Raux, Geoffrey)(jrd) (Entered: 06/27/2018)
49 PRO HAC APPROVED: Geoffrey M. Raux appearing for Plaintiffs Jonathan Gomez, Sylvester Owino, Counter Defendants Jonathan Gomez, Sylvester Owino (no document attached) (jrd) (Entered: 06/27/2018)
50 Plaintiffs' ANSWER to 44 Answer to Complaint, Counterclaim CoreCivic's Counterclaims by Jonathan Gomez, Sylvester Owino.(Fox, Nicholas) (mpl). (Entered: 06/28/2018)
51 NOTICE of Appearance by Alan R Ouellete on behalf of Jonathan Gomez, Sylvester Owino (Ouellete, Alan)Attorney Alan R Ouellete added to party Jonathan Gomez(pty:pla), Attorney Alan R Ouellete added to party Sylvester Owino(pty:pla) (mpl). (Entered: 07/19/2018)
52 RESPONSE in Opposition re 47 MOTION for Reconsideration re 38 Order Lifting Stay filed by Jonathan Gomez, Sylvester Owino. (Ridley, Eileen) (mpl). (Entered: 07/19/2018)
53 AMENDED COUNTERCLAIM against Jonathan Gomez, Sylvester Owino, filed by CoreCivic, Inc.. (Attachments: # 1 Proof of Service) (Struck, Daniel) (mpl). (Entered: 07/19/2018)
54 ORDER Vacating Hearing re 47 MOTION for Reconsideration. Signed by Judge Janis L. Sammartino on 7/26/2018.(mpl) (Entered: 07/26/2018)
55 REPLY to Response to Motion re 47 MOTION for Reconsideration re 38 Order Lifting Stay filed by CoreCivic, Inc. (Attachments: # 1 Proof of Service)(Acedo, Nicholas) (mpl). (Entered: 07/26/2018)
56 Minute Entry for proceedings held before Magistrate Judge Nita L. Stormes: Early Neutral Evaluation and Case Management Conference held on 7/26/2018. Scheduling Order to issue. (Plaintiffs' Attorneys Mark Waxman, Robert Teel, Nick Fox, Geoffrey Raux). (Defendant's Attorneys Dan Struck, Rachel Love, Nicholas Acedo, Jacob Lee). (no document attached) (bm1) (Entered: 07/26/2018)
57 SCHEDULING ORDER Regulating Discovery and Class Certification Motion Filing Deadline. Signed by Magistrate Judge Nita L. Stormes on 7/27/2018.(mpl) (Entered: 07/27/2018)
58 Plaintiffs' and Counter−Defendants' ANSWER to Amended Counterclaim by Jonathan Gomez, Sylvester Owino.(Fox, Nicholas) (mpl). (Entered: 08/01/2018)
59 Joint MOTION for Protective Order by Jonathan Gomez, Sylvester Owino. (Attachments: # 1 Exhibit A)(Fox, Nicholas) (mpl). (Entered: 08/10/2018)

08/13/2018 08/17/2018 08/17/2018
08/22/2018 09/11/2018
10/04/2018 10/09/2018 10/12/2018 10/15/2018 10/26/2018 10/26/2018 11/08/2018
11/08/2018 11/16/2018 11/27/2018 11/29/2018 01/15/2019

60 ORDER Granting 59 Joint Motion for Entry of Protective Order. Signed by Magistrate Judge Nita L. Stormes on 8/13/2018. (mpl) (Entered: 08/13/2018)
61 Joint MOTION for Protective Order /Entry of Order Regarding Discovery of Electronically Stored Information by Jonathan Gomez, Sylvester Owino. (Attachments: # 1 Exhibit A)(Fox, Nicholas) (mpl). (Entered: 08/17/2018)
62 NOTICE of Errata Regarding Joint Motion for Entry of Order Regarding Discovery of Electronically Stored Information (D.I. 61) by Jonathan Gomez, Sylvester Owino re 61 Joint MOTION for Protective Order /Entry of Order Regarding Discovery of Electronically Stored Information (Attachments: # 1 Exhibit A)(Fox, Nicholas) QC Mail re Notice of Errata (mpl). (Entered: 08/17/2018)
63 ORDER Regarding Discovery of Electronically Stored Information as Modified by the Court. Signed by Magistrate Judge Nita L. Stormes on 8/22/2018. (mpl) (Entered: 08/22/2018)
64 MOTION for Leave to File First Amended Complaint by Jonathan Gomez, Sylvester Owino. (Attachments: # 1 Memo of Points and Authorities, # 2 Declaration of Eileen R. Ridley, # 3 Exhibit 1, # 4 Exhibit 2, # 5 Exhibit 3, # 6 Exhibit 4, # 7 Exhibit 5)(Ridley, Eileen) (jpp). (Entered: 09/11/2018)
65 NON Opposition re 64 MOTION for Leave to File First Amended Complaint filed by CoreCivic, Inc.. (Attachments: # 1 Proof of Service)(Struck, Daniel) (rmc). (Entered: 10/04/2018)
66 ORDER: (1) Granting Motion to File First Amended Complaint; (2) Vacating Hearing. Signed by Judge Janis L. Sammartino on 10/9/2018. (anh) (Entered: 10/10/2018)
67 First AMENDED COMPLAINT with Jury Demand against CoreCivic, Inc., filed by Jonathan Gomez, Sylvester Owino. (Ridley, Eileen) (dlg). (Entered: 10/12/2018)
68 Joint MOTION for Discovery Dispute Determination No. 1 by Jonathan Gomez, Sylvester Owino. (Attachments: # 1 Declaration of Geoffrey M. Raux, # 2 Declaration of Jacob B. Lee)(Ridley, Eileen) (acc). (Entered: 10/15/2018)
69 ORDER on Joint Motion for Determination of Discovery Dispute No. 1 (ECF No. 68 ). Signed by Magistrate Judge Nita L. Stormes on 10/26/2018. (jdt) (Entered: 10/26/2018)
70 ANSWER to 67 Amended Complaint , COUNTERCLAIM against Jonathan Gomez, Sylvester Owino by CoreCivic, Inc.. (Attachments: # 1 Certificate of Service)(Lee, Jacob) (jpp). (Entered: 10/26/2018)
71 Ex Parte MOTION for Extension of Time to File Joint Motion For Determination Of Discovery Dispute As To Plaintiffs Subpoena For Production Of Documents To Third−Party Trinity Services Group, Inc. by Jonathan Gomez, Sylvester Owino. (Attachments: # 1 Declaration Of Alan R. Ouellette In Support Of Plaintiffs' Unopposed Ex Parte Application)(Ouellete, Alan) (jpp). (Entered: 11/08/2018)
72 ORDER (1) Granting 71 ex parte application to extend deadline to submit discovery dispute; and (2) Setting deadline for production of document. Signed by Magistrate Judge Nita L. Stormes on 11/08/2018. (jpp) (Entered: 11/09/2018)
73 ANSWER to 70 Answer to Amended Complaint, Counterclaim by Jonathan Gomez, Sylvester Owino.(Ridley, Eileen) (jpp). (Entered: 11/16/2018)
74 Joint MOTION for Extension of Time to File Re: Discovery Motion Deadline as to ESI (Second Request) by CoreCivic, Inc. (a Maryland corporation). (Attachments: # 1 Certificate of Service)(Lee, Jacob) (jpp). (Entered: 11/27/2018)
75 ORDER granting 74 Joint Motion for Extension of Time to submit discovery motion regarding ESI. Signed by Magistrate Judge Nita L. Stormes on 11/29/2018. (jpp) (Entered: 11/29/2018)
76 Joint MOTION for Extension of Time to File Discovery Motion as to ESI (Third Request) by CoreCivic, Inc.. (Attachments: # 1 Proof of Service)(Lee, Jacob) (jpp). (Entered: 01/15/2019)

01/16/2019 02/28/2019 03/01/2019 03/01/2019 03/05/2019 03/26/2019 04/11/2019 04/15/2019 04/15/2019
04/15/2019 04/15/2019

77 ORDER granting 76 Joint Motion for extension of time to submit discovery motion regarding ESI. Signed by Magistrate Judge Nita L. Stormes on 1/16/2019. (jpp) (Entered: 01/16/2019)
78 Joint MOTION for Discovery Dispute Determination No. 2 by Jonathan Gomez, Sylvester Owino. (Attachments: # 1 Exhibit A, # 2 Declaration of Alan R. Ouellette)(Ouellete, Alan) (jpp). (Entered: 02/28/2019)
79 Joint MOTION for Extension of Time to File Discovery Motion as to ESI (Fourth Request) by CoreCivic, Inc. (a Maryland corporation). (Attachments: # 1 Proof of Service)(Lee, Jacob) (jpp). (Entered: 03/01/2019)
80 ORDER on 78 Joint Motion for Determination of Discovery Dispute No. 2. Signed by Magistrate Judge Nita L. Stormes on 3/1/2019. (sjt) (Entered: 03/01/2019)
81 ORDER granting 79 Joint Motion to submit discovery motion regarding ESI. Signed by Magistrate Judge Nita L. Stormes on 3/05/2019. (jpp) (Entered: 03/05/2019)
82 ORDER: (1) Denying 47 Motion for Reconsideration ; and (2) Denying certification for interlocutory appeal. Signed by Judge Janis L. Sammartino on 3/26/2019. (jpp) (Entered: 03/26/2019)
83 Joint MOTION for Extension of Time to Complete Discovery /Extend Discovery Motion Deadline As to Plaintiffs' Responses to Defendant's Requests for Production of Documents and Interrogatories [First Request] by Jonathan Gomez, Sylvester Owino. (Fox, Nicholas) (jpp). (Entered: 04/11/2019)
84 MOTION to Certify Class by Jonathan Gomez, Sylvester Owino. (Attachments: # 1 Memo of Points and Authorities, # 2 Declaration of Robert Teel, # 3 Declaration of Sylvester Owino, # 4 Declaration of Jonathan Gomez, # 5 Declaration of Nehemias Emmanuel Nunez Carrillo, # 6 Declaration of Jonathan Ortiz Dubon)(Ridley, Eileen) (jpp). (Entered: 04/15/2019)
85 DECLARATION re 84 MOTION to Certify Class (Eileen R. Ridley) by Plaintiffs Jonathan Gomez, Sylvester Owino. (Attachments: # 1 Index of Exhibits to Ridley Declaration, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4 [Sealed], # 6 Exhibit 5 [Sealed], # 7 Exhibit 6 [Sealed], # 8 Exhibit 7 [Sealed], # 9 Exhibit 8, # 10 Exhibit 9 [Sealed], # 11 Exhibit 10, # 12 Exhibit 11 [Sealed], # 13 Exhibit 12 [Sealed], # 14 Exhibit 13 [Sealed], # 15 Exhibit 14, # 16 Exhibit 15 [Sealed], # 17 Exhibit 16 [Sealed], # 18 Exhibit 17 [Sealed], # 19 Exhibit 18 [Sealed], # 20 Exhibit 19 [Sealed], # 21 Exhibit 20 [Sealed], # 22 Exhibit 21, # 23 Exhibit 22, # 24 Exhibit 23, # 25 Exhibit 24, # 26 Exhibit 25, # 27 Exhibit 26, # 28 Exhibit 27[Sealed], # 29 Exhibit 28 [Sealed], # 30 Exhibit 29 [Sealed], # 31 Exhibit 30 [Sealed], # 32 Exhibit 31 [Sealed], # 33 Exhibit 32 [Sealed], # 34 Exhibit 33 [Sealed], # 35 Exhibit 34 [Sealed], # 36 Exhibit 35 [Sealed], # 37 Exhibit 36 [Sealed], # 38 Exhibit 37 [Sealed], # 39 Exhibit 38 [Sealed], # 40 Exhibit 39 [Sealed], # 41 Exhibit 40 [Sealed], # 42 Exhibit 41 [Sealed], # 43 Exhibit 42 [Sealed], # 44 Exhibit 43 [Sealed], # 45 Exhibit 44, # 46 Exhibit 45 [Sealed], # 47 Exhibit 46 [Sealed], # 48 Exhibit 47 [Sealed], # 49 Exhibit 48 [Sealed], # 50 Exhibit 49 [Sealed], # 51 Exhibit 50 [Sealed], # 52 Exhibit 51 [Sealed], # 53 Exhibit 52 [Sealed], # 54 Exhibit 53 [Sealed], # 55 Exhibit 54 [Sealed], # 56 Exhibit 55 [Sealed], # 57 Exhibit 56 [Sealed], # 58 Exhibit 57 [Sealed], # 59 Exhibit 58 [Sealed], # 60 Exhibit 59 [Sealed], # 61 Exhibit 60 [Sealed], # 62 Exhibit 61 [Sealed], # 63 Exhibit 62 [Sealed], # 64 Exhibit 63 [Sealed], # 65 Exhibit 64 [Sealed], # 66 Exhibit 65 [Sealed], # 67 Exhibit 66 [Sealed], # 68 Exhibit 67 [Sealed], # 69 Exhibit 68 [Sealed], # 70 Exhibit 69 [Sealed], # 71 Exhibit 70 [Sealed], # 72 Exhibit 71 [Sealed], # 73 Exhibit 72 [Sealed], # 74 Exhibit 73 [Sealed], # 75 Exhibit 74 [Sealed], # 76 Exhibit 75 [Sealed], # 77 Exhibit 76 [Sealed], # 78 Exhibit 77 [Sealed], # 79 Exhibit 78 [Sealed], # 80 Exhibit 79 [Sealed], # 81 Exhibit 80 [Sealed], # 82 Exhibit 81 [Sealed], # 83 Exhibit 82 [Sealed], # 84 Exhibit 83 [Sealed], # 85 Exhibit 84 [Sealed], # 86 Exhibit 85 [Sealed], # 87 Exhibit 86 [Sealed], # 88 Exhibit 87 [Sealed], # 89 Exhibit 88 [Sealed])(Ridley, Eileen) (Entered: 04/15/2019)
86 MOTION to File Documents Under Seal (With attachments)(Ridley, Eileen) (aef). (Entered: 04/15/2019)
87 SEALED LODGED Proposed Document re: 86 MOTION to File Documents Under Seal. Document to be filed by Clerk if Motion to Seal is granted. (With attachments)(Ridley, Eileen)(aef). (Entered: 04/15/2019)

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06/05/2019

88 Joint MOTION to Continue / Extend Discovery Motion Deadline as to Electronically Stored Information (Fifth Request) by Jonathan Gomez, Sylvester Owino. (Fox, Nicholas) (jpp). (Entered: 04/16/2019)
89 ORDER granting in part 88 Joint Motion to extend time to submit discovery motion regarding electronically store information (fifth request). Signed by Magistrate Judge Nita L. Stormes on 4/17/2019. (jpp) (Entered: 04/17/2019)
90 ORDER granting 83 Motion to extend time to submit discovery motion deadline as to Plaintiffs' responses to Defendant's requests for production of documents and interrogatoris. Signed by Magistrate Judge Nita L. Stormes on 4/17/2019. (jpp) (Entered: 04/17/2019)
91 Joint MOTION to Continue / Extend Discovery Dispute Motion Deadline as to Plaintiffs Second Set of Requests for Production of Documents by Jonathan Gomez, Sylvester Owino. (Ouellete, Alan) (jpp). (Entered: 04/29/2019)
92 ORDER extending time to submit discovery motion regarding Plaintiffs' second set of requests for production of documents. Signed by Magistrate Judge Nita L. Stormes on 5/06/2019. (jpp) (Entered: 05/06/2019)
93 Joint MOTION for Extension of Time to File Discovery Motion as to Plaintiffs' Responses to Defendant's First Request for Production and First Interrogatories − Second Request by CoreCivic, Inc. (a Maryland corporation). (Attachments: # 1 Proof of Service)(Lee, Jacob) (jpp). (Entered: 05/22/2019)
94 ORDER extending time to submit discovery motion deadline as to Plaintiffs' responses to Defendant's requests for production of documents and interrogatories (second request) (ECF No. 93 ). Signed by Magistrate Judge Nita L. Stormes on 5/22/2019. (jpp) (Entered: 05/22/2019)
95 Joint MOTION for Extension of Time to File Response/Reply (Extend Deadline for Plaintiffs to File Reply Brief In Support of Motion for Class Certification) by Jonathan Gomez, Sylvester Owino. (Ouellete, Alan) (jpp). (Entered: 05/24/2019)
96 ORDER: (1) Denying without Prejudice 86 Plaintiffs' Motion to File Documents Under Seal, and (2) Granting 95 Motion for Extension of Time. The Court DENIES WITHOUT PREJUDICE Plaintiffs' Motion to Seal and GRANTS the Parties' Joint Motion. The Court CONTINUES the hearing on Plaintiffs' Motion for Class Certification to August 22, 2019, at 2:00 p.m., in Courtroom 4D. Defendant SHALL FILE its Opposition to Plaintiffs Motion for Class Certification on or before July 11, 2019, and Plaintiffs MAY FILE their Reply in support of their Motion for Class Certification on or before August 1, 2019. Signed by Judge Janis L. Sammartino on 5/29/2019. (aef) (Entered: 05/29/2019)
97 MOTION for Partial Summary Judgment by Jonathan Gomez, Sylvester Owino. (Attachments: # 1 Memo of Points and Authorities (Public Redacted Version), # 2 Statement of Facts (Public Redacted Version), # 3 Declaration of Eileen Ridley ISO, # 4 Index to Ridley Decl, # 5 Exhibit 1 to Ridley Decl, # 6 Exhibit 2 to Ridley Decl, # 7 Exhibit 3 to Ridley Decl, # 8 Exhibit 4 to Ridley Decl (Filed Under Seal), # 9 Exhibit 5 to Ridley Decl (Filed Under Seal), # 10 Exhibit 6 to Ridley Decl (Filed Under Seal), # 11 Exhibit 7 to Ridley Decl (Filed Under Seal), # 12 Exhibit 8 to Ridley Decl (Filed Under Seal), # 13 Exhibit 9 to Ridley Decl (Filed Under Seal), # 14 Exhibit 10 to Ridley Decl (Filed Under Seal), # 15 Exhibit 11 to Ridley Decl, # 16 Exhibit 12 to Ridley Decl (Filed Under Seal), # 17 Exhibit 13 to Ridley Decl (Filed Under Seal), # 18 Exhibit 14 to Ridley Decl (Filed Under Seal), # 19 Exhibit 15 to Ridley Decl (Filed Under Seal), # 20 Exhibit 16 to Ridley Decl (Filed Under Seal), # 21 Exhibit 17 to Ridley Decl (Filed Under Seal), # 22 Exhibit 18 to Ridley Decl (Filed Under Seal), # 23 Exhibit 19 to Ridley Decl, # 24 Exhibit 20 to Ridley Decl, # 25 Exhibit 21 to Ridley Decl (Filed Under Seal), # 26 Exhibit 22 to Ridley Decl (Filed Under Seal), # 27 Exhibit 23 to Ridley Decl (Filed Under Seal), # 28 Exhibit 24 to Ridley Decl (Filed Under Seal), # 29 Exhibit 25 to Ridley Decl (Intentionally Omitted), # 30 Exhibit 26 to Ridley Decl (Filed Under Seal), # 31 Exhibit 27 to Ridley Decl (Filed Under Seal), # 32 Exhibit 28 to Ridley Decl (Filed Under Seal), # 33 Exhibit 29 to Ridley Decl (Filed Under Seal), # 34 Exhibit 30 to Ridley Decl (Filed Under Seal), # 35 Exhibit 31 to Ridley Decl (Filed Under Seal), # 36 Exhibit 32 to Ridley Decl (Filed Under Seal), # 37 Exhibit 33 to Ridley Decl (Filed Under Seal), # 38 Exhibit 34 to Ridley Decl (Filed

06/05/2019 06/05/2019 06/10/2019
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Under Seal), # 39 Exhibit 35 to Ridley Decl (Filed Under Seal), # 40 Exhibit 36 to Ridley Decl (Filed Under Seal), # 41 Exhibit 37 to Ridley Decl (Filed Under Seal), # 42 Exhibit 38 to Ridley Decl (Filed Under Seal), # 43 Exhibit 39 to Ridley Decl (Filed Under Seal), # 44 Exhibit 40 to Ridley Decl, # 45 Exhibit 41 to Ridley Decl (Filed Under Seal), # 46 Exhibit 42 to Ridley Decl (Filed Under Seal))(Waxman, J.) (jpp). (Entered: 06/05/2019)
98 MOTION to File Documents Under Seal (With attachments)(Waxman, J.) (aef). (Entered: 06/05/2019)
99 SEALED LODGED Proposed Document re: 98 MOTION to File Documents Under Seal. Document to be filed by Clerk if Motion to Seal is granted. (With attachments)(Waxman, J.)(aef). (Entered: 06/05/2019)
100 ORDER Denying without Prejudice 98 Plaintiffs' Motion to File Documents Under Seal. The Court DENIES WITHOUT PREJUDICE Plaintiffs' Motion and GRANTS Defendant leave to file a renewed motion to file under seal any documents for which "compelling reasons" exist. Should Defendant fail to file a renewed motion on or before June 21, 2019, Plaintiffs SHALL FILE PUBLICLY the underlying proposed documents, currently filed under seal at ECF No. 99. Signed by Judge Janis L. Sammartino on 6/10/2019. (aef) (Entered: 06/10/2019)
101 MOTION to Seal a Previously Filed Document − Renewed re 87 Sealed Lodged Proposed Document by CoreCivic, Inc. (a Maryland corporation). (Attachments: # 1 Proof of Service)(Lee, Jacob) (jpp). (Entered: 06/13/2019)
102 Joint MOTION for Discovery Dispute Determination No. 3 by Jonathan Gomez, Sylvester Owino. (Attachments: # 1 Declaration Declaration of J. Mark Waxman ISO Joint Motion, # 2 Exhibit Ex 1 for Declaration of J. Mark Waxman ISO Joint Motion, # 3 Declaration Declaration of Ashlee Hesman ISO Joint Motion, # 4 Exhibit Ex 1 for Declaration of Ashlee Hesman ISO Joint Motion, # 5 Exhibit Ex 2 Declaration of Ashlee Hesman ISO Joint Motion for Determination of Discovery Dispute)(Waxman, J.) (jpp). (Entered: 06/17/2019)
103 RESPONSE in Opposition re 101 MOTION to Seal a Previously Filed Document − Renewed re 87 Sealed Lodged Proposed Document Plaintiffs' Opposition To Defendant's Renewed Motion To Seal Documents Regarding Plaintiffs' Motion For Class Certification filed by Jonathan Gomez, Sylvester Owino. (Fox, Nicholas) (jpp). (Entered: 06/17/2019)
104 MOTION to Seal a Previously Filed Document − Renewed re 99 Sealed Lodged Proposed Document by CoreCivic, Inc. (a Maryland corporation). (Attachments: # 1 Exhibit 1 − Declaration of Jacob B. Lee, # 2 Proof of Service)(Lee, Jacob) (jpp). (Entered: 06/21/2019)
105 REPLY to Response to Motion re 101 MOTION to Seal a Previously Filed Document − Renewed re 87 Sealed Lodged Proposed Document filed by CoreCivic, Inc. (a Maryland corporation). (Attachments: # 1 Exhibit 1 − Declaration of Jacob Lee, # 2 Proof of Service)(Lee, Jacob) (jpp). (Entered: 06/21/2019)
106 RESPONSE in Opposition re 104 MOTION to Seal a Previously Filed Document − Renewed re 99 Sealed Lodged Proposed Document filed by Jonathan Gomez, Sylvester Owino. (Fox, Nicholas) (jpp). (Entered: 06/24/2019)
107 ORDER Granting in part and Denying in part 101 , 104 Defendant's Renewed Motions to File Documents Under Seal. Signed by Judge Janis L. Sammartino on 6/24/2019. (aef) (Entered: 06/26/2019)
108 NOTICE of Supplemental Authority by CoreCivic, Inc. (a Maryland corporation) re 102 Joint MOTION for Discovery Dispute Determination No. 3 (Attachments: # 1 Exhibit Food Marketing Inst. v. Argus Leader Media Opinion, # 2 Proof of Service)(Fletcher, Ashlee) (jpp). (Entered: 06/26/2019)
109 RESPONSE re 108 Notice (Other), Plaintiffs' Application For Leave To File Supplemental Briefing Regarding Defendant's Notice of Supplemental Authority Regarding Joint Discovery Motion No. 3, filed by Jonathan Gomez, Sylvester Owino. (Fox, Nicholas) (jpp). (Entered: 06/26/2019)

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110 NOTICE Regarding Exhibit Attachment by Jonathan Gomez, Sylvester Owino re 107 Order on Motion to Seal, 97 MOTION for Partial Summary Judgment (Publicly Filed Exhibits to Declaration of Eileen R. Ridley ISO Plaintiff's Motion for Partial Summary Judgment (Per Court Order Dkt. No. 107) (Attachments: # 1 Updated Index to Decl. of E.Ridley ISO Motion for Partial Summary Judgment, # 2 Ex 5 to Ridley Decl. ISO Motion for Partial Summary Judgment, # 3 Ex 6 to Ridley Decl. ISO Motion for Partial Summary Judgment, # 4 Ex 7 to Ridley Decl. ISO Motion for Partial Summary Judgment, # 5 Ex 8 to Ridley Decl. ISO Motion for Partial Summary Judgment, # 6 Ex 9 to Ridley Decl. ISO Motion for Partial Summary Judgment, # 7 Ex 10 to Ridley Decl. ISO Motion for Partial Summary Judgment, # 8 Ex 21 to Ridley Decl. ISO Motion for Partial Summary Judgment, # 9 Ex 22 to Ridley Decl. ISO Motion for Partial Summary Judgment, # 10 Ex 23 to Ridley Decl. ISO Motion for Partial Summary Judgment, # 11 Ex 24 to Ridley Decl. ISO Motion for Partial Summary Judgment, # 12 Ex 26 to Ridley Decl. ISO Motion for Partial Summary Judgment, # 13 Ex 27 to Ridley Decl. ISO Motion for Partial Summary Judgment, # 14 Ex 28 to Ridley Decl. ISO Motion for Partial Summary Judgment, # 15 Ex 29 to Ridley Decl. ISO Motion for Partial Summary Judgment, # 16 Ex 30 to Ridley Decl. ISO Motion for Partial Summary Judgment, # 17 Ex 31 to Ridley Decl. ISO Motion for Partial Summary Judgment, # 18 Ex 32 to Ridley Decl. ISO Motion for Partial Summary Judgment, # 19 Ex 33 to Ridley Decl. ISO Motion for Partial Summary Judgment, # 20 Ex 34 to Ridley Decl. ISO Motion for Partial Summary Judgment, # 21 Ex 35 to Ridley Decl. ISO Motion for Partial Summary Judgment, # 22 Ex 36 to Ridley Decl. ISO Motion for Partial Summary Judgment, # 23 Ex 37 to Ridley Decl. ISO Motion for Partial Summary Judgment, # 24 Ex 41 to Ridley Decl. ISO Motion for Partial Summary Judgment, # 25 Ex 42 to Ridley Decl. ISO Motion for Partial Summary Judgment)(Fox, Nicholas) (jpp). (Entered: 06/27/2019)
111 NOTICE Regarding Exhibit Attachment by Jonathan Gomez, Sylvester Owino re 107 Order on Motion to Seal, 84 MOTION to Certify Class (Publicly Filed Exhibits to Declaration of Eileen R. Ridley In Support of Plaintiffs' Motion for Class Certification) (Attachments: # 1 Updated Index to Declaration of Eileen R. Ridley, # 2 Exhibit 5, # 3 Exhibit 6, # 4 Exhibit 7, # 5 Exhibit 9, # 6 Exhibit 12, # 7 Exhibit 13, # 8 Exhibit 14, # 9 Exhibit 15, # 10 Exhibit 16, # 11 Exhibit 17, # 12 Exhibit 18, # 13 Exhibit 19, # 14 Exhibit 20, # 15 Exhibit 43)(Ridley, Eileen) (Entered: 06/27/2019)
112 ORDER on 102 Discovery Dispute No. 3. Plaintiff's motion for leave to take a second deposition is denied without prejudice. Signed by Nita L. Stormes on 7/3/2019. (jrm)(jao). (Entered: 07/03/2019)
113 MOTION for Leave to File Excess Pages Re: Memorandum in Opposition to Plaintiffs Motion for Class Certification by CoreCivic, Inc.. (Attachments: # 1 Exhibit 1, # 2 Certificate of Service)(Acedo, Nicholas) (mme). (Entered: 07/08/2019)
114 NOTICE Regarding Publicly Filed Documents by Jonathan Gomez, Sylvester Owino re 107 Order on Motion to Seal, 84 MOTION to Certify Class (Attachments: # 1 Exhibit A − Memorandum of Points and Authorities In Support Of Motion For Class Certification, # 2 Updated Index to Declaration of Eileen R. Ridley, # 3 Exhibit 4 (Redacted), # 4 Exhibit 11 (Redacted), # 5 Exhibit 27 (Redacted), # 6 Exhibit 28 (Redacted), # 7 Exhibit 29 (Redacted), # 8 Exhibit 30 (Redacted), # 9 Exhibit 31 (Redacted), # 10 Exhibit 32 (Redacted), # 11 Exhibit 33 (Redacted), # 12 Exhibit 34 (Redacted), # 13 Exhibit 35 (Redacted), # 14 Exhibit 36 (Redacted), # 15 Exhibit 37 (Redacted), # 16 Exhibit 38 (Redacted), # 17 Exhibit 39 (Redacted), # 18 Exhibit 40 (Redacted), # 19 Exhibit 41 (Redacted), # 20 Exhibit 42 (Redacted), # 21 Exhibit 45 (Redacted), # 22 Exhibit 46 (Redacted), # 23 Exhibit 47 (Redacted), # 24 Exhibit 48 (Redacted), # 25 Exhibit 49 (Redacted), # 26 Exhibit 50 (Redacted), # 27 Exhibit 51 (Redacted), # 28 Exhibit 52 (Redacted), # 29 Exhibit 53 (Redacted), # 30 Exhibit 54 (Redacted), # 31 Exhibit 55 (Redacted), # 32 Exhibit 56 (Redacted), # 33 Exhibit 57 (Redacted), # 34 Exhibit 58 (Redacted), # 35 Exhibit 59 (Redacted), # 36 Exhibit 60 (Redacted), # 37 Exhibit 61 (Redacted), # 38 Exhibit 62 (Redacted), # 39 Exhibit 63 (Redacted), # 40 Exhibit 64 (Redacted), # 41 Exhibit 65 (Redacted), # 42 Exhibit 66 (Redacted), # 43 Exhibit 67 (Redacted), # 44 Exhibit 68 (Redacted), # 45 Exhibit 69 (Redacted), # 46 Exhibit 70 (Redacted), # 47 Exhibit 71 (Redacted), # 48 Exhibit 72 (Redacted), # 49 Exhibit 73 (Redacted), # 50 Exhibit 74 (Redacted), # 51 Exhibit 75 (Redacted), # 52 Exhibit 76 (Redacted), # 53 Exhibit 77 (Redacted), # 54 Exhibit 78 (Redacted), # 55 Exhibit 79 (Redacted), # 56 Exhibit 80 (Redacted), # 57 Exhibit 81 (Redacted), # 58 Exhibit 82 (Redacted), # 59 Exhibit 83 (Redacted), # 60 Exhibit 84

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(Redacted), # 61 Exhibit 85 (Redacted), # 62 Exhibit 86 (Redacted), # 63 Exhibit 87 (Redacted), # 64 Exhibit 88 (Redacted))(Ridley, Eileen) (mme). (Entered: 07/08/2019)
115 NOTICE Regarding Publicly Filed Documents by Jonathan Gomez, Sylvester Owino re 107 Order on Motion to Seal, 97 MOTION for Partial Summary Judgment (Attachments: # 1 Exhibit A − Memorandum ISO Plaintiffs' Motion for Partial Summary Judgment (Public), # 2 Exhibit B − Separate Statement ISO Plaintiffs' Motion for Partial Summary Judgment (Public), # 3 Updated Index to Declaration of Eileen R. Ridley, # 4 Exhibit 12 to Ridley Decl. (Redacted), # 5 Exhibit 13 to Ridley Decl. (Redacted), # 6 Exhibit 14 to Ridley Decl. (Redacted), # 7 Exhibit 15 to Ridley Decl. (Redacted), # 8 Exhibit 16 to Ridley Decl. (Redacted), # 9 Exhibit 17 to Ridley Decl. (Redacted), # 10 Exhibit 18 to Ridley Decl. (Redacted), # 11 Exhibit 38 to Ridley Decl. (Redacted), # 12 Exhibit 39 to Ridley Decl. (Redacted), # 13 Exhibit 41 to Ridley Decl. (Redacted), # 14 Exhibit 42 to Ridley Decl. (Redacted))(Fox, Nicholas) (mme). (Entered: 07/08/2019)
116 ORDER granting 113 Defendant's Motion for Leave to Exceed Page Limitation. Defendant may file an opposition to Plaintiffs' motion for class certification not to exceed 35 pages. Signed by Judge Janis L. Sammartino on 7/10/2019. (jrm) (jao). (Entered: 07/10/2019)
117 MOTION for Judgment on the Pleadings by CoreCivic, Inc. (a Maryland corporation). (Attachments: # 1 Memo of Points and Authorities, # 2 Index of Exhibits, # 3 Exhibit 1 − Declaration of S. Simmons, # 4 Exhibit 2 − Declaration of T. Peaks, # 5 Certificate of Service)(Struck, Daniel) *QC Mailer sent re: review G.O. 709* (mme). (Entered: 07/11/2019)
118 RESPONSE in Opposition re 84 MOTION to Certify Class filed by CoreCivic, Inc. (a Maryland corporation). (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1 − 10, # 3 Exhibit 11 (Part 1), # 4 Exhibit 11 (Part 2), # 5 Exhibit 12 − 19, # 6 Exhibit 20 − 21, # 7 Exhibit 22 − 25, # 8 Exhibit 26 − 31, # 9 Exhibit 32 − 33, # 10 Certificate of Service)(Acedo, Nicholas) *QC Mailer sent − re: page length* (mme). (Entered: 07/11/2019)
119 MOTION to File Documents Under Seal (With attachments)(Lee, Jacob) (aef). (Entered: 07/11/2019)
120 ***FILED AS SEALED DOCUMENT ON 7/16/2019*** − SEALED LODGED Proposed Document re: 119 MOTION to File Documents Under Seal. Document to be filed by Clerk if Motion to Seal is granted. (With attachments)(Lee, Jacob) (aef). Modified on 7/16/2019 to add file date of lodgment (aef). (Entered: 07/11/2019)
121 ORDER setting briefing schedule re: Plaintiffs' motion for partial summary judgment. Defendant CoreCivic, Inc's opposition due on or before 9/05/2019. Plaintiff's reply due on or before 9/26/2019. Signed by Judge Janis L. Sammartino on 7/15/2019.(jpp) (Entered: 07/15/2019)
122 ORDER Granting in part and Denying in part 119 Defendant's Motion for Leave to File Documents Under Seal. The Court GRANTS Defendant's Motion as to Exhibits 4, 11, 24 through 26, and 32. The Court GRANTS IN PART AND DENIES IN PART Defendant's Motion as to Exhibit 29. Within three (3) days of the electronic docketing of this Order, Defendant SHALL FILE either an unredacted version of Exhibit 29 or a renewed motion further explaining why "compelling reasons" exist to file the specified portions of Exhibit 29 under seal. Signed by Judge Janis L. Sammartino on 7/16/2019. (aef) (Entered: 07/16/2019)
124 NOTICE Regarding Publicly Filed Document In Support of Defendant's Memorandum in Opposition to Plaintiffs' Motion for Class Certification by CoreCivic, Inc. (a Maryland corporation) re 122 Order on Motion to File Documents Under Seal,, 118 Response in Opposition to Motion, (Attachments: # 1 Exhibit 29 − unredacted, # 2 Proof of Service)(Lee, Jacob) (jpp). (Entered: 07/17/2019)
125 Joint MOTION for Leave to File Excess Pages for Plaintiffs' Reply Brief In Support of Motion for Class Certification by Jonathan Gomez, Sylvester Owino. (Ouellete, Alan) (jpp). (Entered: 07/30/2019)

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126 ORDER granting 125 Joint Motion to extend page limit of Plaintiffs' reply brief in support of motion for class certification by five pages. Signed by Judge Janis L. Sammartino on 7/31/2019. (jpp) (Entered: 07/31/2019)
127 REPLY to Response to Motion re 84 MOTION to Certify Class filed by Jonathan Gomez, Sylvester Owino. (Attachments: # 1 Declaration of Eileen R. Ridley, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Declaration of Diego Santibanez, # 5 Declaration of Sue Jones)(Ridley, Eileen) (jpp). (Entered: 08/01/2019)
128 MOTION to Exclude Exclude Evidence From Class Certification Decision by Jonathan Gomez, Sylvester Owino. (Attachments: # 1 Memo of Points and Authorities, # 2 Declaration of Eileen R. Ridley)(Ridley, Eileen) (jpp). (Entered: 08/01/2019)
129 ORDER continuing hearing and setting briefing schedule. (ECF Nos. 84 , 97 , 117 , 128 ). Motion hearings continued to 10/10/2019 at 1:30pm. Signed by Judge Janis L. Sammartino on 8/07/2019.(jpp) (Entered: 08/07/2019)
130 Joint MOTION to Continue / Extend Discovery Motion Deadline as to Electronically Stored Information and Other Discovery Matters by Jonathan Gomez, Sylvester Owino. (Ouellete, Alan) (jpp). (Entered: 08/15/2019)
131 ORDER granting 130 Joint Motion to extend discovery motion deadline as to electronically stored information and other discovery matters. Signed by Magistrate Judge Nita L. Stormes on 8/19/2019. (jpp) (Entered: 08/19/2019)
132 RESPONSE in Opposition re 128 MOTION to Exclude Exclude Evidence From Class Certification Decision filed by CoreCivic, Inc. (a Maryland corporation). (Attachments: # 1 Declaration of Jacob B. Lee, # 2 Proof of Service)(Lee, Jacob) (jpp). (Entered: 09/05/2019)
133 RESPONSE in Opposition re 97 MOTION for Partial Summary Judgment filed by CoreCivic, Inc. (a Maryland corporation). (Attachments: # 1 Declaration of Jacob B. Lee, # 2 Proof of Service)(Lee, Jacob) (jpp). (Entered: 09/05/2019)
134 RESPONSE in Opposition re 117 MOTION for Judgment on the Pleadings Plaintiffs' Opposition To CoreCivic's Motion for Judgment on the Pleadings filed by Jonathan Gomez, Sylvester Owino. (Fox, Nicholas) (jpp). (Entered: 09/05/2019)
135 MOTION for Leave to File Excess Pages Re: Reply in Support of Motion for Judgment on the Pleadings by CoreCivic, Inc. (a Maryland corporation). (Attachments: # 1 Proof of Service)(Lee, Jacob) (jpp). (Entered: 09/12/2019)
136 RESPONSE in Opposition re 135 MOTION for Leave to File Excess Pages Re: Reply in Support of Motion for Judgment on the Pleadings Plaintiffs' Opposition to CoreCivic's Motion For Excess Pages Regarding Motion for Judgment on the Pleadings filed by Jonathan Gomez, Sylvester Owino. (Fox, Nicholas) (jpp). (Entered: 09/12/2019)
137 REPLY to Response to Motion re 135 MOTION for Leave to File Excess Pages Re: Reply in Support of Motion for Judgment on the Pleadings filed by CoreCivic, Inc. (a Maryland corporation). (Attachments: # 1 Proof of Service)(Lee, Jacob) (jpp). (Entered: 09/13/2019)
138 ORDER granting 135 Defendant's Motion for Leave to exceed page limitation re: reply in support of motion for judgment on the pleadings.. Signed by Judge Janis L. Sammartino on 9/23/2019. (jpp) (Entered: 09/24/2019)
139 REPLY to Response to Motion re 128 MOTION to Exclude Exclude Evidence From Class Certification Decision filed by Jonathan Gomez, Sylvester Owino. (Ridley, Eileen) (jpp). (Entered: 09/26/2019)
140 REPLY to Response to Motion re 117 MOTION for Judgment on the Pleadings filed by CoreCivic, Inc. (a Maryland corporation). (Attachments: # 1 Proof of Service)(Struck, Daniel) (jpp). (Entered: 09/26/2019)
141 REPLY to Response to Motion re 97 MOTION for Partial Summary Judgment Plaintiffs' Reply To CoreCivic's Opposition To Plaintiffs' Motion For Partial Summary Judgment filed by Jonathan Gomez, Sylvester Owino. (Fox, Nicholas) (jpp). (Entered:

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09/26/2019)
142 ORDER continuing hearing on 84 , 97 , [117[, 128 to 11/14/2019 at 1:30pm. Signed by Judge Janis L. Sammartino on 9/27/2019.(jpp) (Entered: 09/27/2019)
143 ORDER (1) ORDERING ADDITIONAL BRIEFING ON PLAINTIFFS MOTION FOR CLASSCERTIFICATION, AND (2) CONTINUING HEARING as to 117 MOTION for Judgment on the Pleadings , 97 MOTION for Partial Summary Judgment , 128 MOTION to Exclude Exclude Evidence From Class Certification Decision, 84 MOTION to Certify Class . Motion Hearing set for 11/14/2019 is continued to 12/19/2019 02:30 PM in Courtroom 4D before Judge Janis L. Sammartino. Signed by Judge Janis L. Sammartino on 11/7/2019.(sjm) (Entered: 11/08/2019)
144 SUPPLEMENTAL BRIEFING by Plaintiffs Jonathan Gomez, Sylvester Owino re 84 MOTION to Certify Class . (Attachments: # 1 Declaration of Sylvester Owino, # 2 Declaration of Jonathan Gomez, # 3 Declaration of Achiri Nelson Geh)(Ridley, Eileen) (jpp). (Entered: 11/15/2019)
145 SUPPLEMENTAL BRIEFING by Counter Claimants CoreCivic, Inc., CoreCivic, Inc., Defendant CoreCivic, Inc. re 144 Supplemental Briefing, 143 Order,,, Set Motion and R&R Deadlines/Hearings,, . (Attachments: # 1 Declaration of Nicholas D. Acedo, # 2 Exhibit Index and Exhibits 1−3, # 3 Proof of Service)(Acedo, Nicholas)(jpp). (Entered: 11/22/2019)
146 ORDER permitting Plaintiffs to file a reply to Defendant's Supplemental Biref (ECF No. 145 ). Signed by Judge Janis L. Sammartino on 11/25/2019.(jpp) (Entered: 11/25/2019)
147 NOTICE of Filing Additional Declaration in Support of Its Response to Plaintiffs' Supplemental Brief Re: Motion for Class Certification by CoreCivic, Inc. (a Maryland corporation) re 145 Supplemental Briefing, (Attachments: # 1 Declaration of Linda Benton, # 2 Proof of Service)(Acedo, Nicholas) (jpp). (Entered: 11/26/2019)
148 SUPPLEMENTAL BRIEFING by Plaintiffs Jonathan Gomez, Sylvester Owino re 145 Supplemental Briefing, (Reply Brief). (Attachments: # 1 Declaration of Eileen R. Ridley, # 2 Index of Exhibits, # 3 Exhibit A, # 4 Exhibit B (Public), # 5 Exhibit C (Public), # 6 Exhibit D (Public))(Ridley, Eileen) (jpp). (Entered: 12/02/2019)
149 MOTION to File Documents Under Seal (With attachments)(Ridley, Eileen) (aef). (Entered: 12/02/2019)
150 SEALED LODGED Proposed Document re: 149 MOTION to File Documents Under Seal. Document to be filed by Clerk if Motion to Seal is granted. (With attachments)(Ridley, Eileen) (aef). (Entered: 12/02/2019)
151 ORDER changing hearing time on 84 , 97 , 117 , 128 to 12/19/2019 at 1:30pm. Signed by Judge Janis L. Sammartino on 12/09/2019.(jpp) (Entered: 12/09/2019)
152 ORDER Granting in part and Denying in part without Prejudice 149 Plaintiffs' Motion for Leave to File Documents Under Seal. The Court GRANTS Defendant leave to file a renewed motion to articulate "compelling reasons" for the filing under seal of identifying information for its personnel. Should Defendant fail to file a renewed motion on or before December 23, 2019, Plaintiffs SHALL FILE PUBLICLY versions of the underlying proposed documents that are redacted in accordance with this Order. Signed by Judge Janis L. Sammartino on 12/16/2019. (aef) (Entered: 12/17/2019)
153 NOTICE of Supplemental Authority by Jonathan Gomez, Sylvester Owino re 84 MOTION to Certify Class (Attachments: # 1 Exhibit 1)(Ridley, Eileen) (jpp). (Entered: 12/18/2019)
154 Minute Order for proceedings held before Judge Janis L. Sammartino: Hearing on 84 MOTION to Certify Class; 97 MOTION for Partial Summary Judgment; 117 MOTION for Judgment on the Pleadings; 128 MOTION to Exclude Evidence From Class Certification Decision held. Plaintiff ordered to file supplemental briefing of up to five pages by 1/17/2020; Defendant ordered to file a responsive brief of up to five pages by 1/31/2020. Motions are taken under submission. Court to issue written order. (Court Reporter/ECR Frank Rangus). (Plaintiff Attorney Eileen Ridley; Alan

12/23/2019 12/30/2019 01/06/2020 01/09/2020 01/10/2020
01/17/2020 01/23/2020 01/27/2020 01/29/2020 01/31/2020 02/05/2020 02/05/2020 02/05/2020

Ouellette; Nicholas fox). (Defendant Attorney Nicholas Acedo; Jacob Lee). (no document attached) (jao) (Entered: 12/19/2019)
155 MOTION to Seal a Previously Filed Document (Renewed) re 152 Order on Motion to File Documents Under Seal,, by CoreCivic, Inc.. (Attachments: # 1 Exhibit 1 − Declaration of Warden C. LaRose, # 2 Certificate of Service)(Lee, Jacob) (jpp). (Entered: 12/23/2019)
156 RESPONSE in Opposition re 155 MOTION to Seal a Previously Filed Document (Renewed) re 152 Order on Motion to File Documents Under Seal,, Plaintiffs' Opposition to Def. CoreCivic's Renewed Motion for Leave to File Documents Under Seal filed by Jonathan Gomez, Sylvester Owino. (Fox, Nicholas) (mme). (Entered: 12/30/2019)
157 REPLY to Response to Motion re 155 MOTION to Seal a Previously Filed Document (Renewed) re 152 Order on Motion to File Documents Under Seal,, filed by CoreCivic, Inc. (a Maryland corporation). (Attachments: # 1 Exhibit 1 − Declaration of Jacob B. Lee, # 2 Proof of Service)(Lee, Jacob) (sjm). (Entered: 01/06/2020)
158 ORDER denying without prejudice 155 Defendant's renewed Motion for leave to file documents under Seal. Signed by Judge Janis L. Sammartino on 1/09/2020. (jpp) (Entered: 01/09/2020)
159 NOTICE OF FILING OF OFFICIAL TRANSCRIPT (Motion Hearing) held on 12/19/2019 before Judge Janis L. Sammartino. Court Reporter/Transcriber: Frank J. Rangus. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 1/31/2020. Redacted Transcript Deadline set for 2/10/2020. Release of Transcript Restriction set for 4/9/2020. (akr) (Entered: 01/10/2020)
160 SUPPLEMENTAL BRIEFING by Plaintiffs Jonathan Gomez, Sylvester Owino re 84 MOTION to Certify Class . (Ridley, Eileen) (jpp). (Entered: 01/17/2020)
161 NOTICE of Supplemental Authority by Jonathan Gomez, Sylvester Owino re 84 MOTION to Certify Class (Attachments: # 1 Exhibit A)(Ridley, Eileen) (jpp). (Entered: 01/23/2020)
162 STATUS REPORT − Joint − Regarding Allocation of Responsibility for Refiling Documents Affected by the January 9, 2020 Order (Doc. 158) by CoreCivic, Inc. (a Maryland corporation). (Attachments: # 1 Proof of Service)(Lee, Jacob)(jpp). (Entered: 01/27/2020)
163 NOTICE of Withdrawal of Counsel for Plaintiffs (J. Mark Waxman) by Jonathan Gomez, Sylvester Owino (Waxman, J.) (jpp). (Entered: 01/29/2020)
164 SUPPLEMENTAL BRIEFING by Counter Claimants CoreCivic, Inc., CoreCivic, Inc., Defendant CoreCivic, Inc. re 82 Order on Motion for Reconsideration . (Attachments: # 1 Proof of Service)(Acedo, Nicholas) (jpp). (Entered: 01/31/2020)
165 NOTICE Regarding Exhibit Attachment by Jonathan Gomez, Sylvester Owino re 84 MOTION to Certify Class , 158 Order on Motion to Seal (Updated Redactions to Publicly Filed Exhibits to Declaration of Eileen R. Ridley In Support of Plaintiffs' Motion for Class Certification) (Attachments: # 1 Exhibit 11)(Ridley, Eileen) (jpp). (Entered: 02/05/2020)
166 NOTICE Regarding Exhibit Attachment by Jonathan Gomez, Sylvester Owino re 97 MOTION for Partial Summary Judgment , 158 Order on Motion to Seal (Updated Redactions to Publicly Filed Exhibits to Declaration of Eileen R. Ridley ISO Plaintiff's Motion for Partial Summary Judgment) (Attachments: # 1 Exhibit 41, # 2 Exhibit 42)(Ridley, Eileen) (jpp). (Entered: 02/05/2020)
167 NOTICE Regarding Exhibit Attachment by Jonathan Gomez, Sylvester Owino re 148 Supplemental Briefing, 158 Order on Motion to Seal (Updated Redactions to Publicly

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04/15/2020 04/15/2020 04/15/2020

Filed Exhibits to Supplemental Declaration of Eileen R. Ridley In Support of Plaintiffs' Reply Brief In Response to Defendant's Supplemental Brief) (Attachments: # 1 Exhibit B, # 2 Exhibit C, # 3 Exhibit D)(Ridley, Eileen) (jpp). (Entered: 02/05/2020)
168 ORDER requesting supplemental reply brief from Plaintiffs. Signed by Judge Janis L. Sammartino on 2/28/2020.(jpp) (Entered: 02/28/2020)
169 SUPPLEMENTAL BRIEFING by Plaintiffs Jonathan Gomez, Sylvester Owino re 84 MOTION to Certify Class . (Attachments: # 1 Declaration of Eileen R. Ridley, # 2 Exhibit A)(Ridley, Eileen) (jpp). (Entered: 03/09/2020)
170 NOTICE of Change of Address by Nicholas John Fox (Fox, Nicholas) (jpp). (Entered: 03/11/2020)
171 NOTICE of Supplemental Authority Re: Motion for Judgment on the Pleadings by CoreCivic, Inc. (a Maryland corporation) re 117 MOTION for Judgment on the Pleadings (Attachments: # 1 Exhibit A, # 2 Proof of Service)(Acedo, Nicholas) (jpp). (Entered: 03/18/2020)
172 NOTICE of Supplemental Authority Re: Opposition to Plaintiffs' Motion for Class Certification and Request for Supplemental Briefing by CoreCivic, Inc. (a Maryland corporation) re 118 Response in Opposition to Motion, (Attachments: # 1 Exhibit A, # 2 Proof of Service)(Acedo, Nicholas) (jpp). (Entered: 03/19/2020)
173 RESPONSE re 172 Notice (Other), Notice of Supplemental Authority and Opposition to Request for Supplemental Briefing filed by Jonathan Gomez, Sylvester Owino. (Ridley, Eileen) (jpp). (Entered: 03/20/2020)
174 NOTICE of Supplemental Authority by Jonathan Gomez, Sylvester Owino re 117 MOTION for Judgment on the Pleadings (Attachments: # 1 Exhibit A)(Ridley, Eileen) (jpp). (Entered: 03/20/2020)
175 REPLY − Other re 173 Response − Other, 172 Notice (Other), in Support of Request for Supplemental Briefing Re: Barrientos filed by CoreCivic, Inc. (a Maryland corporation). (Attachments: # 1 Proof of Service)(Acedo, Nicholas) (jpp). (Entered: 03/23/2020)
176 REPLY − Other re 174 Notice (Other), 117 MOTION for Judgment on the Pleadings − Reply to Plaintiffs' Response to Notice of Supplemental Authority Re: Molock filed by CoreCivic, Inc. (a Maryland corporation). (Attachments: # 1 Proof of Service)(Acedo, Nicholas) (jpp). (Entered: 03/24/2020)
177 RESPONSE re 174 Notice (Other) to Plaintiffs' Notice of Supplemental Authority Re: Mussat filed by CoreCivic, Inc. (a Maryland corporation). (Attachments: # 1 Exhibit A, # 2 Proof of Service)(Acedo, Nicholas) (jpp). (Entered: 03/24/2020)
178 REPLY − Other re 177 Response − Other to Plaintiffs Notice Of Supplemental Authority 174 Regarding Corecivics Motion For Judgment On The Pleadings 117 filed by Jonathan Gomez, Sylvester Owino. (Ridley, Eileen) (jpp). (Entered: 03/26/2020)
179 ORDER: (1) Denying without prejudice Plaintiff's' motion for partial summary judgment, (2) Denying Defendant's motion for judgement on the pleadings, (3) Denying as moot Plaintiffs' motion to exclude, and (4) Granting in part and denying in part Plaintiffs' motion for class certification (ECF Nos. 97 , 117 , 128 . 155 ). Signed by Judge Janis L. Sammartino on 4/01/2020. (jpp) (Entered: 04/01/2020)
180 STATUS REPORT (Joint) by Jonathan Gomez, Sylvester Owino. (Ridley, Eileen) (jpp). (Entered: 04/15/2020)
181 MOTION for Reconsideration re 179 Order on Motion for Partial Summary Judgment,, Order on Motion for Judgment on the Pleadings,, Order on Motion to Exclude, by CoreCivic, Inc.. (Attachments: # 1 Certificate of Service)(Acedo, Nicholas) (jpp). (Entered: 04/15/2020)
182 DECLARATION re 181 MOTION for Reconsideration re 179 Order on Motion for Partial Summary Judgment,, Order on Motion for Judgment on the Pleadings,, Order on Motion to Exclude, Re: Declaration of Nicholas D. Acedo by Defendant CoreCivic, Inc.. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1 − 3, # 3 Certificate of Service)(Acedo, Nicholas) (jpp). (Entered: 04/15/2020)

 
 Case 3:17-cv-01112-JLS-NLS Document 18 Filed 08/11/17 PageID.65 Page 1 of 2

1 STRUCK WIENEKE & LOVE, P.L.C. Daniel P. Struck, AZ Bar #012377
2 (admitted pro hac vice) Rachel Love, AZ Bar #019881
3 (admitted pro hac vice) Nicholas D. Acedo, AZ Bar #021644
4 (admitted pro hac vice) Ashlee B. Fletcher, AZ Bar #028874
5 (admitted pro hac vice) 3100 West Ray Road, Suite 300
6 Chandler, Arizona 85226 Tel.: (480) 420-1600
7 Fax: (480) 420-1696 dstruck@swlfirm.com
8 rlove@swlfirm.com nacedo@swlfirm.com
9 afletcher@swlfirm.com

10 LAW OFFICE OF ETHAN H. NELSON Ethan H. Nelson, CA Bar #262448
11 4 Park Plaza, Suite 1025 Irvine, California 92614
12 Tel.: (949) 229-0961 Fax: (949) 861-7122
13 ethannelsonesq@gmail.com

14 Attorneys for Defendant CoreCivic, Inc.

15

UNITED STATES DISTRICT COURT

16

SOUTHERN DISTRICT OF CALIFORNIA

17 Sylvester Owino and Jonathan Gomez, NO. 3:17-cv-01112-JLS-NLS

on behalf of themselves, and all others

18 similarly situated,

DEFENDANT’S NOTICE OF

MOTION AND MOTION TO

19

Plaintiff,

DISMISS COMPLAINT

20 v.
21 CoreCivic, Inc., a Maryland corporation,
22
Defendant.
23

Date: September 14, 2017 Time: 1:30 p.m. Courtroom: 4D Judge: Honorable Janis L. Sammartino

24 TO: Plaintiffs, through their attorney of record, Robert L. Teel:

25

Please take notice that Defendant CoreCivic, Inc. brings this Motion to

26 Dismiss Complaint, pursuant to Fed. R. Civ. P. 12(b). This Motion is set to be

27

28 Notice of Motion/Motion to Dismiss

17cv01112-JLS-NLS

Case 3:17-cv-01112-JLS-NLS Document 18 Filed 08/11/17 PageID.66 Page 2 of 2

1 heard on September 14, 2017, at 1:30 p.m., before the Honorable Janis L.

2 Sammartino, in Courtroom 4D.

3

Defendant moves the Court to dismiss the Complaint in its entirety because it

4 fails to state a claim upon which relief can be granted. The Motion is supported by

5 the accompanying Memorandum of Points and Authorities.

6 Dated: August 11, 2017

7

8 9 10 11 12 13 14 15 16 17 3355350.1

By s/ Nicholas D. Acedo Daniel P. Struck dstruck@swlfirm.com Rachel Love rlove@swlfirm.com Nicholas D. Acedo nacedo@swlfirm.com Ashlee B. Fletcher afletcher@swlfirm.com STRUCK WIENEKE & LOVE, P.L.C.
Ethan H. Nelson LAW OFFICE OF ETHAN H. NELSON ethannelsonesq@gmail.com
Attorneys for Defendant CoreCivic, Inc.

18

19

20

21

22

23

24

25

26

27

28

Notice of Motion/Motion to Dismiss

2

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1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10

11 SYLVESTER OWINO and JONATHAN

12

GOMEZ, on behalf of themselves and all others similarly situated,

13

Plaintiffs,

14 v.

15 CORECIVIC, INC., a Maryland 16 corporation,

Case No.: 17-CV-1112 JLS (NLS)
ORDER STAYING CASE AND DEFERRING RULING ON MOTION TO DISMISS
(ECF No. 18)

17

Defendant.

18

19

Presently before the Court in the above-captioned action is Defendant CoreCivic,

20 Inc.’s Motion to Dismiss Complaint, (“MTD,” ECF No. 18). Pending before the Court in

21 the related case Gonzalez v. CoreCivic, Inc., 17-cv-2573-JLS (NLS), is a Motion to

22 Consolidate the present case (Owino) with Gonzalez. The Motion to Consolidate is set for

23 hearing on March 22, 2018. The Court STAYS the present case until the Motion to

24 Consolidate is resolved and DEFERS RULING ON Defendant’s Motion to Dismiss.

25

Courts have the power to stay proceedings sua sponte. Ali v Trump, 241 F. Supp. 3d

26 1147, 1152 (W.D. Wash. 2017); Fed. Home Loan Mortg. Corp. v. Karma, No. 14-00137

27 ACK-KSC, 2016 WL 922780, at *8–9 (D. Haw. Mar. 9, 2016). The issues involved in the

28 pending proceedings need not be “controlling of the action before the court” for the court

1 17-CV-1112 JLS (NLS)

Case 3:17-cv-01112-JLS-NLS Document 33 Filed 02/16/18 PageID.335 Page 2 of 3

1 to issue a stay. Leyva v. Certified Grocers of Cal., Ltd., 593 F.2d 857, 864 (9th Cir. 1979).

2 Indeed, for a court to issue a stay, the parties in the two cases need not be the same and the

3 issues need not be identical. See Landis v. N. Am. Co., 299 U.S. 248, 254 (1936).

4

In determining whether to grant a motion to stay, “the competing interests [that] will

5 be affected by the granting or refusal to grant a stay must be weighed.” Lockyer v. Mirant

6 Corp., 398 F.3d 1098, 1110 (9th Cir. 2005) (citing CMAX, Inc. v. Hall, 300 F.2d 265, 268

7 (9th Cir. 1962)). Those interests include: (1) “the possible damage which may result from

8 the granting of a stay,” (2) “the hardship or inequity which a party may suffer in being

9 required to go forward,” and (3) “the orderly course of justice measured in terms of the

10 simplifying or complicating of issues, proof, and questions of law which could be expected

11 to result from a stay.” Id.

12

Here, as to the first factor, the Court finds no damage to Defendant from the

13 imposition of a stay in Owino. The Court anticipates Defendant will file an opposition to

14 the Motion to Consolidate in Gonzalez, regardless of whether or not the Court were to rule

15 on the pending Motion to Dismiss in the present case. The only damage Defendant faces

16 is a short delay in the resolution of its Motion to Dismiss. As to the second factor, the

17 Court finds no hardship to either party in being required to go forward. The Motion to

18 Dismiss is briefed by both Parties and a stay will not harm the Parties. As to the third

19 factor, the Court finds the stay may lead to the simplification of issues. If the Court grants

20 the Motion to Consolidate, it is logical that Defendant will file a Motion to Dismiss in

21 Gonzalez, and the present Motion to Dismiss will be moot. If the Court denies the Motion

22 to Consolidate, the stay in Owino will be lifted and the Court will rule on the Motion to

23 Dismiss. The Court finds the imposition of a stay will promote judicial economy. It is

24 logical for the Court to determine whether the two cases will be consolidated before the

25 Court determines whether one of the cases should be dismissed. The Court exercises its

26 inherent power to stay the proceeding in order to promote the efficiency of its docket. See

27 Landis, 299 U.S. at 254 (holding a court has the inherent power to stay proceedings in order

28 “to control the disposition of the causes on its docket with economy of time and effort for

2 17-CV-1112 JLS (NLS)

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1 itself, for counsel, and for litigants.”); Levya, 593 F.2d at 863–64 (“A trial court may, with

2 propriety, find it is efficient for its own docket and the fairest course for the parties to enter

3 a stay of an action before it, pending resolution of independent proceedings which bear

4 upon the case.”).

5

CONCLUSION

6

The Court STAYS the present case and DEFERS RULING on the Motion

7 to Dismiss, (ECF No. 18), until the Motion to Consolidate is resolved.

8

IT IS SO ORDERED.

9 Dated: February 16, 2018 10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

3 17-CV-1112 JLS (NLS)

 
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1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10

11 SYLVESTER OWINO and JONATHAN

12

GOMEZ, on behalf of themselves and all others similarly situated,

13

Plaintiffs,

14 v.

15 CORECIVIC, INC., a Maryland

16 corporation,

Case No.: 17-CV-1112 JLS (NLS)
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO DISMISS
(ECF No. 18)

17

Defendant.

18

19

Presently before the Court is Defendant CoreCivic, Inc.’s Motion to Dismiss

20 Complaint, (“MTD,” ECF No. 18). Also before the Court is Plaintiffs Sylvester Owino

21 and Jonathan Gomez’s Response in Opposition to the Motion, (“Opp’n,” ECF No. 22), and

22 Defendant’s Reply in Support of, (“Reply,” ECF No. 26), the Motion. The Court vacated

23 the hearing on the Motion and took it under submission pursuant to Civil Local Rule

24 7.1(d)(1). (ECF No. 25.) After the Court vacated the hearing, Plaintiffs filed two Requests

25 for Judicial Notice, (“First RJN,” ECF No. 27; “Second RJN,” ECF No. 32), to which

26 Defendant filed a Response, (“RJN Response,” ECF No. 36). Then, the Court stayed the

27 current proceedings and deferred ruling on Defendant’s Motion, (ECF No. 33), for the

28 purpose of addressing a motion to consolidate in a related case, Gonzalez et al. v.

1 17-CV-1112 JLS (NLS)

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1 CoreCivic, Inc., (No. 17-CV-2573 JLS (NLS)). The Court ruled on the related matter and

2 now LIFTS the stay in these proceedings. After considering the Parties’ arguments and

3 the law, the Court rules as follows.

4

BACKGROUND

5

Plaintiffs are former civil immigration detainees who were incarcerated at the Otay

6 Mesa Detention Center, which is owned and operated by Defendant. (“Compl.,” ECF No.

7 1, ¶¶ 10–11.) Plaintiffs allege while at Otay Mesa, they and other detainees performed a

8 variety of tasks for Defendant ranging from “scrubb[ing] bathrooms, showers, toilets, and

9 windows” to “provid[ing] barber services to detainees” to “perform[ing] clerical work for

10 CoreCivic.” (Id. ¶ 14.) In return for those services, detainees were paid $1.00 per day,

11 which Plaintiffs refer to as “Dollar-A-Day Work.” (Id. ¶ 15.) Detainees could only spend

12 their earnings at Defendant’s “company store” or commissary. (Id.)

13

Plaintiffs also allege that Defendant forced Plaintiffs and other detainees “to clean,

14 maintain, scrub, sweep, and mop floors, bathrooms, showers, toilets, and windows for no

15 pay at all.” (Id. ¶ 16.) Defendant allegedly threatened to punish Plaintiffs and other

16 detainees who refused to work by means of “confinement, physical restraint, substantial

17 and sustained restriction, deprivation, and violation of their liberty, and solitary

18 confinement.” (Id.)

19

Plaintiffs seek to certify three subclasses. Two of those subclasses would include

20 all detainees who performed uncompensated work for Defendant, both nationally—the

21 “Nationwide Forced Labor Class”—and in California—the “California Forced Labor

22 Class.” (Id. ¶ 30.) The third subclass would include all detainees who performed work for

23 Defendant and were paid one dollar per day—the “California Labor Law Class.” (Id.)

24 Plaintiffs bring twelve claims, which can be divided as follows. First, Plaintiffs allege

25 violations of the federal Trafficking Victims Protection Act (“TVPA”), 18 U.S.C. § 1589,

26 et seq., and the California Trafficking Victims Protection Act, Cal. Civ. Code § 52.5. (See

27 Compl. ¶¶ 40–62.) Next, Plaintiffs allege violations of numerous sections of the California

28 Labor Code. (See id. ¶¶ 71–101.) Finally, Plaintiffs bring a negligence claim, (id. ¶¶ 102–

2 17-CV-1112 JLS (NLS)

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1 19), a claim for violation of California’s Unfair Competition Law (“UCL”), Cal. Bus. &

2 Prof. Code § 17200 et seq., and an unjust enrichment claim, (id. ¶¶ 120–28).

3

LEGAL STANDARD

4

Federal Rule of Civil Procedure 12(b)(6) permits a party to raise by motion the

5 defense that the complaint “fail[s] to state a claim upon which relief can be granted,”

6 generally referred to as a motion to dismiss. The Court evaluates whether a complaint

7 states a cognizable legal theory and sufficient facts in light of Federal Rule of Civil

8 Procedure 8(a), which requires a “short and plain statement of the claim showing that the

9 pleader is entitled to relief.” Although Rule 8 “does not require ‘detailed factual

10 allegations,’ . . . it [does] demand more than an unadorned, the-defendant-unlawfully-

11 harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.

12 Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In other words, “a plaintiff’s obligation to

13 provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and

14 conclusions, and a formulaic recitation of the elements of a cause of action will not do.”

15 Twombly, 550 U.S. at 555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). A

16 complaint will not suffice “if it tenders ‘naked assertion[s]’ devoid of ‘further factual

17 enhancement.’” Iqbal, 556 U.S. at 677 (citing Twombly, 550 U.S. at 557).

18

In order to survive a motion to dismiss, “a complaint must contain sufficient factual

19 matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting

20 Twombly, 550 U.S. at 570); see also Fed. R. Civ. P. 12(b)(6). A claim is facially plausible

21 when the facts pled “allow the court to draw the reasonable inference that the defendant is

22 liable for the misconduct alleged.” Iqbal, 556 U.S. at 677 (citing Twombly, 550 U.S. at

23 556). That is not to say that the claim must be probable, but there must be “more than a

24 sheer possibility that a defendant has acted unlawfully.” Id. Facts “‘merely consistent

25 with’ a defendant’s liability” fall short of a plausible entitlement to relief. Id. (quoting

26 Twombly, 550 U.S. at 557). Further, the Court need not accept as true “legal conclusions”

27 contained in the complaint. Id. This review requires context-specific analysis involving

28 the Court’s “judicial experience and common sense.” Id. at 678 (citation omitted).

3 17-CV-1112 JLS (NLS)

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1 “[W]here the well-pleaded facts do not permit the court to infer more than the mere

2 possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the

3 pleader is entitled to relief.’” Id.

4

ANALYSIS

5

The Court’s analysis proceeds as follows. First, the Court briefly analyzes the

6 judicial notice requests. Second, the Court discusses Plaintiffs’ forced labor claims arising

7 from alleged violations of the federal and California TVPA. These claims coincide with

8 Plaintiffs’ putative state and nationwide forced labor classes. Third, the Court addresses

9 Plaintiffs’ “Dollar-A-Day” claims arising from alleged violations of the California Labor

10 Code. These claims coincide with Plaintiffs’ putative California labor law class. Fourth,

11 the Court analyzes Plaintiffs’ derivative claims.

12 I. Request for Judicial Notice

13

Plaintiffs request the Court judicially notice two documents. First, Plaintiffs submit

14 an opinion from Chao Chen v. Geo Group, Inc., No. 17-cv-5769-RJB, 2017 WL 6034365

15 (W.D. Wash. Dec. 6, 2017). (First RJN.) Second, Plaintiffs request the Court notice the

16 Tenth Circuit’s opinion in Menocal v. GEO Group, Inc., 882 F.3d 905 (10th Cir. 2018).

17 (Second RJN.)

18

Defendant opposes both Plaintiffs’ requests because “it is inappropriate to request

19 that the Court take judicial notice of legal authority.” (RJN Response 21 (quoting Stiller v.

20 Costco Wholesale Corp., No. 09-cv-2473-GPC-BGS, 2013 WL 4401371, at *1 (S.D. Cal.

21 Aug. 15, 2013)).) The Court agrees with Defendant. It is well established that that courts

22 may consider legal reasoning and conclusions of other federal courts without resort to Rule

23 201. See, e.g., Derum v. Saks & Co., 95 F. Supp. 3d 1221, 1224 (S.D. Cal. 2015) (citing

24 McVey v. McVey, 26 F. Supp. 3d 980, 984–85 (C.D. Cal. 2014)). The opinions attached to

25 Plaintiffs’ requests are the legal reasoning and conclusion of other federal courts. While

26 the Court will consider relevant legal authority in arriving at its conclusion, the Court

27

28 1 Pin citations refer to the CM/ECF page numbers electronically stamped at the top of each page.

4 17-CV-1112 JLS (NLS)

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1 DENIES Plaintiffs’ Requests for Judicial Notice, (ECF Nos. 27, 32).

2 II. Forced Labor Claims

3 A. Federal TVPA (First Cause of Action)

4

Plaintiffs allege Defendant violated the Federal Trafficking Victims Protection Act,

5 18 U.S.C. § 1589(a).2 (Compl. ¶ 41.) Section 1595 creates a private cause of action for

6 victims of a violation of the TVPA. 18 U.S.C. § 1595(a). Plaintiffs allege they and putative

7 class members were forced to perform labor and services under force, threats, abuse, and

8 other means. (Compl. ¶ 42.)

9

Defendant raises several challenges to the TVPA claim. First, Defendant argues that

10 the TVPA does not extend to civil immigration detainees performing routine housekeeping

11 tasks in lawful detention. (MTD 13.) Second, Defendant contends that Plaintiffs fail to

12 plead sufficient facts to state a TVPA claim. (Id. at 18.) Third, Defendant argues that

13 Congress amended the TVPA in 2008; therefore, at least some of Plaintiffs’ claims are

14 barred because the relevant portions of TVPA cannot be given retroactive effect. (Id. at

15 20.) Fourth, Defendant argues that a portion of Plaintiffs’ claim are barred by the statute

16 of limitations. (Id.) The Court addresses each argument in turn.

17

1. Whether the TVPA Extends to Civil Immigration Detainees

18

Defendant advances two arguments why the TVPA does not apply to civil

19 immigration detainees. First, Congress did not intend for the statute to apply to

20

21

2 18 U.S.C. § 1589(a) provides:

22

(a) Whoever knowingly provides or obtains the labor or services of a person

23

by any one of, or by any combination of, the following means— (1) by means of force, threats of force, physical restraint, or threats of

24

physical restraint to that person or another person;

(2) by means of serious harm or threats of serious harm to that person or

25

another person;

(3) by means of the abuse or threatened abuse of law or legal process; or

26

(4) by means of any scheme, plan, or pattern intended to cause the person

27

to believe that, if that person did not perform such labor or services, that person or another person would suffer serious harm or physical restraint,

28

shall be punished as provided under subsection (d).

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1 Defendant’s conduct. Second, the Thirteenth Amendment, which provides Congress’s

2 authority to create the TVPA, has a “civic duty exception” that Defendant contends

3 exempts its conduct from the TVPA.

4

a. Statutory Interpretation of 18 U.S.C. § 1589

5

Defendant argues that Congress’s purpose in enacting the TVPA, including section

6 1589, was to “combat trafficking in persons.” (Id. at 13 (quoting Pub. L. No. 106-386,

7 § 102(a), 114 Stat. 1464, 1466 (2000)).) The congressional findings all focused on the

8 evils of trafficking in persons. (Id.) For example, Congress found:

9

As the 21st century begins, the degrading institution of slavery

10

continues throughout the world. Trafficking in persons is a modern form of slavery, and it is the largest manifestation of

11

slavery today. At least 700,000 persons annually, primarily

12

women and children, are trafficked within or across international borders. Approximately 50,000 women and children are

13

trafficked into the United States each year.

14 (Id. at 14 (emphasis omitted) (quoting § 102(b)(1), 114 Stat. at 1466).) Defendant goes on

15 to cite several similar congressional findings—all focused on “[t]rafficking in persons.”

16 (Id.) From these findings Defendant concludes that Congress’s clear intent was to

17 prosecute human traffickers, i.e., those who transport persons “across international

18 borders” and force them to work. (Id. at 15.) Because neither the U.S. Immigrations and

19 Customs Enforcement (“ICE”) nor Defendant transported Plaintiffs from their homes or

20 across national borders, then Defendant is beyond Congress’s intended purpose. (Id.)

21 Finally, Defendant cites several cases for the proposition that where literal application of a

22 criminal statute would lead to “extreme or absurd results” then the class of persons subject

23 to the criminal statute should be limited. (Id. (citing, e.g., United States v. Katz, 271 U.S.

24 354, 362 (1926)).) From that rule, Defendant contends that applying a forced labor statute

25 to lawfully-detained civil immigration detainees would be both extreme and absurd.

26

Plaintiffs respond that the plain text of the TVPA, including section 1589, proscribes

27 any kind of forced labor even if that labor does not rise to the level of involuntary servitude

28 as defined prior to enactment of the TVPA. (Opp’n 16 (citing Nunag–Tanedo v. E. Baton

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1 Rouge Parish Sch. Bd., 790 F. Supp. 2d 1134, 1144–46 (C.D. Cal. 2011); and Menocal v.

2 GEO Grp., Inc., 113 F. Supp. 3d 1125 (D. Colo. 2015)).) According to Plaintiffs, the plain

3 meaning of the TVPA is broad enough to encompass their claims. Plaintiffs also argue that

4 the Complaint does not allege any “trafficking” violations under the TVPA, but rather bring

5 violations of the “forced labor” provision of TVPA, § 1589. (Id. at 19.)

6

In reply, Defendant again reiterates its argument that a court must look beyond the

7 plain language of a statute if a literal application would lead to “extreme of absurd results,”

8 (Reply 6–7 (quoting Katz, 271 U.S. at 362)), or if “internal evidence of the statute” suggests

9 a “departure from a literal reading” to “effect the legislative purpose,” (id. at 7 (quoting

10 Wilshire Westwood Assocs. v. Atl. Richfield Corp., 881 F.2d 801, 803–04 (9th Cir. 1989))).

11 Defendant also argues Nunag-Tanedo is factually distinguishable. (See id.)

12

Defendant argues its conduct does not fall under § 1589. This requires the Court to

13 undertake statutory construction. “The plain language of a statute is the starting point for

14 its interpretation.” Wilshire Westwood Assocs., 881 F.2d at 803 (citing Am. Tobacco Co.

15 v. Patterson, 456 U.S. 63, 68 (1982)). A court’s “first step in interpreting a statute is to

16 determine whether the language at issue has a plain and unambiguous meaning with regard

17 to the particular dispute in the case. Our inquiry must cease if the statutory language is

18 unambiguous and ‘the statutory scheme is coherent and consistent.’” Robinson v. Shell Oil

19 Co., 519 U.S. 337, 340 (1997) (quoting United States v. Ron Pair Enters., Inc., 489 U.S.

20 235, 240 (1989)). “The plainness or ambiguity of statutory language is determined by

21 reference to the language itself, the specific context in which that language is used, and the

22 broader context of the statute as a whole.” Id. (citing Estate of Cowart v. Nicklos Drilling

23 Co., 505 U.S. 469, 477 (1992); and McCarthy v. Bronson, 500 U.S. 136, 139 (1991)).

24

18 U.S.C. § 1589 provides:

25

(a) Whoever knowingly provides or obtains the labor or

26

services of a person by any one of, or by any combination of, the following means—

27

(1) by means of force, threats of force, physical restraint,

28

or threats of physical restraint to that person or another person;

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1

(2) by means of serious harm or threats of serious harm to

2

that person or another person; (3) by means of the abuse or threatened abuse of law or

3

legal process; or

4

(4) by means of any scheme, plan, or pattern intended to cause the person to believe that, if that person did not perform

5

such labor or services, that person or another person would suffer

6

serious harm or physical restraint, shall be punished as provided under subsection (d).

7

8 The statute’s express terms do not limit who constitutes a victim of forced labor. Section

9 1589 applies to any “person”—there is no limitation on the type or status of said person.

10 Similarly, the target of the statute is broad: section 1589 criminalizes “[w]hoever

11 knowingly provides or obtains the labor or services.” Nor does the statute contain any

12 language limiting application to those who traffic in persons or transport persons across

13 national borders.

14

Had Congress intended to limit § 1589 to trafficking or transnational crime it could

15 have done so; indeed, other sections of the TVPA contain the limiting language Defendant

16 urges the Court read into § 1589. For example, section 1591 prohibits “[s]ex trafficking of

17 children or by force, fraud, or coercion” and has an explicit interstate or foreign commerce

18 requirement. 18 U.S.C. § 1591 (emphasis added). Section 1584 criminalizes “[w]hoever

19 knowingly and willfully holds to involuntary servitude . . . any other person for any term,

20 or brings within the United States any person so held.” 18 U.S.C. § 1584(a) (emphasis

21 added). The lack of similar language in section 1589 reinforces the conclusion that there

22 is no limitation on who constitutes a “person” for purposes of section 1589.

23

Defendant urges the Court to read Congress’s purpose, purportedly evident from

24 TVPA’s congressional findings, into the statute. (See MTD 13–15.) Yet, courts “have

25 long held that there is a strong presumption that the plain language of [a] statute expresses

26 congressional intent, rebutted only in rare and exceptional circumstances, when a contrary

27 legislative intent is clearly expressed.” Campbell v. Allied Van Lines Inc., 410 F.3d 618,

28 622 (9th Cir. 2005) (alteration in original) (quoting United States v. Tobeler, 311 F.3d

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1 1201, 1203 (9th Cir. 2002)). “The preeminent canon of statutory interpretation requires us

2 to ‘presume that [the] legislature says in a statute what it means and means in a statute what

3 it says there.’” BedRoc Ltd., LLC v. United States, 541 U.S. 176, 183 (2004) (alteration in

4 original) (quoting Conn. Nat. Bank v. Germain, 503 U.S. 249, 253–54 (1992)). If the

5 statutory text is unambiguous, the inquiry ends there. See id.

6

Here, Defendant’s arguments do not illustrate ambiguity in the language or

7 exceptional circumstances to depart from the plain language of the statute. The Sixth

8 Circuit addressed an argument similar to Defendant’s in United States v. Callahan, 801

9 F.3d 606 (6th Cir. 2015). There, two defendants were convicted for violating section 1589

10 when they forced a developmentally-disabled young woman and her minor daughter “to

11 clean the apartment, do yardwork, care for [the defendants’] dogs, and run various errands

12 for [the defendants].” Id. at 613. The court went on to detail more than two years of

13 inhumane conduct—none of which involved transporting people across borders or

14 trafficking in persons. See id. at 613–16. The defendants were convicted at trial and

15 appealed.

16

Like Defendant here, the Callahan defendants argued that the TVPA’s legislative

17 history was passed to combat international trafficking in human beings and Congress did

18 not intend to criminalize their conduct. Id. at 617. The Callahan court reasoned that the

19 plain language of the statute was not limited to immigrant victims or sex workers. The

20 court determined that reference to legislative history was unnecessary when the

21 legislature’s intent was obvious from the statute’s unambiguous language. Id. at 617–18

22 (citations omitted). The court was also unpersuaded by an argument that § 1589 was meant

23 to target those who exploit foreign-born victims because, again, the language of the statue

24 did not include such a restriction. Id. at 618. Accordingly, the court held that § 1589

25 proscribed the defendants’ conduct. Id. at 620.

26

The Court finds the Callahan court’s reasoning and conclusion persuasive. There is

27 no ambiguity in section 1589 and the Court will not read congressional findings into the

28 statute. The next issue is whether the Court should deviate from the plain meaning of the

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1 statute when literal application of the criminal statute would lead to “extreme or absurd

2 results.” Katz, 271 U.S. at 362. Defendant argues that interpreting the phrase “labor or

3 services of a person” to include lawfully-detained civil immigration detainees required to

4 clean up after themselves is both extreme and absurd. Defendant does not explain its

5 reasoning beyond its assertion that it would be absurd to criminalize Defendant’s

6 requirement for lawfully-detained immigration detainees to clean up.3

7

Perhaps Defendant thinks it absurd to criminalize its alleged conduct because the

8 federal government contracts with Defendant to house civil immigration detainees, i.e.,

9 Plaintiffs and other putative class members were lawfully detained. Yet, this Court and

10 courts across this nation routinely hear cases involving violations of constitutional rights

11 of incarcerated prisoners at the state and federal level. These prisoners were lawfully

12 imprisoned. Lawful detention, by itself, is not a shield against illegal conduct against those

13 held in detention.

14

Alternatively, Defendant might argue that the “labor or services” it requires of

15 detainees is miniscule—detainees are only required to clean up their personal and

16 communal areas. Logically, this is a question of degree. If detainees are only forced to

17

18

19

3 Defendant’s concern for an “absurd and extreme” application is tempered by two considerations. First, section 1589 only reaches labor or service achieved through force, “serious harm,” abuse of legal process,

20 or a scheme intended to cause a person to believe that serious harm would befall that person. See
§ 1589(a)(1)–(4). The term “serious harm” is defined broadly. See § 1589(c)(2). As the Ninth Circuit

21 has summarized:

[S]omeone is guilty of forced labor if he intends to cause a person in his

22

employ to believe that if she does not continue to work, she will suffer the

23

type of serious harm—physical or nonphysical, including psychological, financial, reputation harm—that would compel someone in her

24

circumstances to continue working to avoid that harm.

25 United States v. Dann, 652 F.3d 1160, 1169–70 (9th Cir. 2011). Second, section 1589’s scope is narrowed

further still by the requirement of scienter. Id. at 1170 (citing United States v. Calimlim, 538 F.3d 706,
26 712, 714 (7th Cir. 2008)). “The jury must find that the employer intended to cause the victim to believe

27

that she would suffer serious harm—from the vantage point of the victim—if she did not continue to work.” Id. These two limitations mitigate, at a high level of generality, the concern against “absurd or

28 extreme” application of this criminal statute.

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1 make their beds then such conduct likely does not rise to criminal forced labor. Indeed,

2 ICE has published standards requiring civil immigration detainees to make their beds,

3 amongst other personal housekeeping tasks. See U.S. Immigration & Customs

4 Enforcement, Performance-Based National Detention Standards 2011, § 5.8, at 406 (2016

5 ed.), https://www.ice.gov/doclib/detention-standards/2011/5-8.pdf (hereinafter “ICE

6 PBNDS”).4 Conversely, one could imagine forced labor to such an extent and degree as to

7 go well beyond cleaning personal and communal areas. In fact, Plaintiffs allege that

8 Defendant forced them to “clean, maintain, scrub, sweep, and mop floors, bathrooms,

9 showers, toilets, and windows for no pay at all, not only in their living areas (‘pods’), but

10 also throughout the other interior and exterior areas of CoreCivic’s detention facilities.”

11 (Compl. ¶ 16.) The preceding comparison illustrates that Plaintiffs’ claims require a fact-

12 intensive inquiry. The Court raises this hypothetical only to illustrate the following

13 conclusion: the Court only finds that applying § 1589 to Defendant’s alleged conduct does

14 not lead to per se “extreme or absurd” consequences that would warrant deviation from

15 § 1589’s plain meaning.

16

b. Civic Duty Exception

17

Defendant advances a second argument why the TVPA does not apply to its conduct:

18 Defendant may avail itself of the Thirteenth Amendment’s civic duty exception. (See MTD

19 15–18.) Defendant begins with United States v. Kozminski, 487 U.S. 931 (1988), where

20 the Supreme Court examined the phrase “involuntary servitude,” found in 18 U.S.C.

21 § 1584. As Defendant explains, Kozminski determined that Congress intended § 1584 to

22 carry the same meaning as the Thirteenth Amendment’s prohibition against “involuntary

23 servitude.” (Id. at 16 (citing Kozminski, 487 U.S. at 944–45).) The Supreme Court also

24

25
4 A court may take judicial notice of publicly available government documents, including those posted on
26 government web sites. See Gerritsen v. Warner Bros. Entm’t Inc., 112 F. Supp. 3d 1011, 1033–34 (C.D.

27

Cal. 2015) (citing, e.g., Daniels–Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 999 (9th Cir. 2010); and Hansen Beverage Co. v. Innovation Ventures, LLC, No. 08–CV–1166–IEG, 2009 WL 6597891, at *1 (S.D. Cal.

28 Dec. 23, 2009)).

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1 recognized a long-standing “civic duty” exception to the Thirteenth Amendment’s

2 prohibition on involuntary servitude whereby state or federal governments could compel

3 their citizens, by threat of criminal sanction, to perform certain civic duties. (Id. (citing

4 Kozminski, 487 U.S. at 943–44).) Thus, Defendant argues that § 1589, which Congress

5 enacted after Kozminski, incorporates the civic duty exception and the exception is

6 available to Defendant. (Id. at 17 (citing Miles v. Apex Marine Corp., 498 U.S. 19, 32

7 (1990); Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 184–85 (1988)).)

8

Defendant then cites Channer v. Hall, 112 F.3d 214, 215 (5th Cir. 1997), where the

9 Fifth Circuit applied the civic duty exception to an immigration detainee. There, an

10 immigration detainee was compelled to work in the Food Services Department and

11 “intimidated and threatened with solitary confinement if he failed to work.” (MTD 16

12 (quoting Channer, 112 F.3d at 218).) The Channer court held that the detainee was not

13 subjected to “involuntary servitude” because the civic duty exception applied and “the

14 federal government [was] entitled to require a communal contribution by an INS detainee

15 in the form of housekeeping tasks.” (Id. (quoting Channer, 112 F.3d at 218–19).)

16 Defendant urges the Court to adopt the civic duty exception to Plaintiffs’ situation, which

17 appears to be factually similar to Channer.

18

Congress amended the TVPA post-Kozminski, but Defendant argues that the

19 amendment did not alter the civic duty exception’s applicability to TVPA. (See id. at 17.)

20 Defendant cites several decisions from after the TVPA amendment where federal courts

21 applied the civic duty exception to deny claims brought by immigration detainees. (Id. at

22 17–18 (citing, e.g., Owuor v. Courville, No. 11-CV-926, 2013 WL 7877306, at *4 (W.D.

23 La. Aug. 7, 2013)).) Defendant would have the Court find that Channer’s logic controls

24 and the civic duty exception applies to Defendant’s conduct.

25

Finally, Defendant cites 28 C.F.R. § 545.23, which permits the federal Bureau of

26 Prisons to require pretrial inmates to perform “housekeeping tasks in the inmate’s own cell

27 and in the community living area.” (Id. at 18.) Defendant cites cases from the Fourth,

28 Seventh, and Eighth Circuits where courts denied claims from pretrial detainees required

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1 to perform “general housekeeping responsibilities” without pay. (Id. at 16–17 (quoting

2 Bijeol v. Nelson, 579 F.2d 423, 424–25 (7th Cir. 1978) (per curiam); and citing Hause v.

3 Vaught, 993 F.2d 1079, 1085 4th Cir. 1993); and Martinez v. Turner, 977 F.2d 421, 423

4 (8th Cir. 1992)).) Defendant argues that construing 18 U.S.C. § 1589 to criminalize

5 housekeeping tasks required by Defendant would also criminalize the same types of

6 housekeeping tasks required of pretrial detainees and authorized by federal regulation.

7 (Id.)

8

Plaintiffs respond that there is no civic duty exception for section 1589. (Opp’n 19.)

9 Plaintiffs argue that Defendant has not cited any authority for reading a civic duty

10 exception into the TVPA or applying the exception to a private, for-profit venture. (Id.)

11 Plaintiffs distinguish Defendant’s cited cases as all involving Bivens claims for violation

12 of the Thirteenth Amendment in federal government-run detention facilities. (Id.)

13

The Court begins with the basic proposition that the Thirteenth Amendment does

14 not prohibit compelled labor in all situations. There are generally three exceptions to

15 involuntary servitude. First, by its own terms, the Amendment excludes involuntary

16 servitude imposed as legal punishment for a crime. See U.S. Const. amend. XIII. Second,

17 the Supreme Court has recognized that the prohibition against involuntary servitude “does

18 not prevent the State or Federal Governments from compelling their citizens, by threat of

19 criminal sanction, to perform certain civic duties.” Kozminski, 487 U.S. at 943–44. Third,

20 the Thirteenth Amendment does not apply to “exceptional” cases that were well-

21 established in the common law when the Amendment was passed. See id. at 944 (citing

22 Robertson v. Baldwin, 165 U.S. 275, 282, 288 (1897)) (explaining the Amendment does

23 not reach the right of parents to custody of minor children or laws preventing sailors from

24 deserting their ships). Defendant only raises the civic duty exception; thus, the Court’s

25 first task is to determine whether the exception applies to the TVPA in its entirety or only

26 where TVPA refers to “involuntary servitude.” The issue before the Kozminski court was

27 the interpretation of the term “involuntary servitude,” found in 18 U.S.C. § 1584, which

28 the Supreme Court determined to be co-extensive with the scope of the “involuntary

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1 servitude” found in the Thirteenth Amendment. Kozminski, 487 U.S. at 948. Section 1589

2 does not contain the term “involuntary servitude” and it is conceivable that the civic duty

3 exception might not apply to section 1589. Indeed, Plaintiffs contend that there is no

4 authority to read a civic duty exception into the TVPA. (Opp’n 19.)

5

Congress has broad power to determine “what are the badges and the incidents of

6 slavery, and the authority to translate that determination into effective legislation.” Griffin

7 v. Breckenridge, 403 U.S. 88, 105 (1971) (quoting Jones v. Alfred H. Mayer Co., 392 U.S.

8 409, 440 (1968)). Congress enacted the TVPA pursuant to its power to enforce the

9 Thirteenth Amendment. See Kozminski, 487 U.S. at 934. Defendant has not cited any

10 explicit authority applying the civic duty exception to 18 U.S.C. § 1589. The Sixth Circuit

11 has examined whether the “exceptional” case exception to the Thirteenth Amendment

12 applied to § 1589. See United States v. Toviave, 761 F.3d 623, 626 (6th Cir. 2014). There,

13 the federal government attempted to prosecute parents for child abuse under section 1589.

14 Id. at 623–24. The Sixth Circuit reasoned that the Thirteenth Amendment’s exceptional

15 case exception applied to a parent’s control over a child’s work and concluded that section

16 1589 could not criminalize a parent’s control over a child. Id. at 626 (quoting Kozminski,

17 487 U.S. at 944). If the Toviave court applied the exceptional case exception to section

18 1589 then it is logical to apply the civic duty exception to section 1589. The Court reads

19 the civic duty exception as deriving from the Thirteenth Amendment, regardless of whether

20 Congress uses the phrase “involuntary servitude.” Thus, the Court accepts Defendant’s

21 premise that the civic duty exception applies to section 1589.

22

Even so, Plaintiffs raise an important issue bound up in the civic duty analysis: may

23 a private entity avail itself of the civic duty exception to alleged involuntary servitude. (See

24 Opp’n 19.) Indeed, Kozminski summarized the civic duty exception as permitting “the

25 State or Federal Governments from compelling their citizens, by threat of criminal

26

27

28

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1 sanction, to perform certain civic duties.”5 487 U.S. at 943–44 (emphasis added). Here,

2 Defendant is not the government; it is a private, for-profit corporation. In Menocal v. GEO

3 Group, Inc., 113 F. Supp. 3d at 1128, the district court encountered a nearly identical

4 factual scenario and putative class action as the case presently before this Court. There,

5 the plaintiffs were current and former civil immigration detainees held at a private, for-

6 profit immigration detention facility. Like here, the plaintiffs also alleged that they were

7 forced to clean the facility’s pods without compensation under the threat of solitary

8 confinement. Id. The plaintiffs brought claims under 18 U.S.C. § 1589 and, like here, the

9 defendants argued that the civic duty exception applied to bar the plaintiffs’ claims. See

10 id. at 1132. The Menocal court found that “Defendants have cited no authority for reading

11 a civic duty exception into § 1589, or for applying such an exception to a private, for-profit

12 corporation under contract with the government.” Id. at 1133.

13

Defendant argues that the Menocal court’s holding is flawed and urges this Court to

14 apply the civic duty exception because Defendant is a “federal actor.” (Reply 9–10.)

15 Defendant cites several cases in support of its proposition.6 In Doe v. United States, 831

16

17
5 Defendant’s cited authority all involve incidents of purported involuntary servitude at government-run
18 facilities. See Channer, 112 F.3d at 215 (stating that the plaintiff was incarcerated at the Federal

19

Correctional Institution at Oakdale, Louisiana); see also Mendez v. Haugen, No. CV 14-4792 ADM/BRT, 2015 WL 5718967, at *1 (D. Minn. Sept. 29, 2015), aff’d (8th Cir. Feb. 22, 2016) (plaintiff housed in

20 Federal Medical Center in Rochester, Minnesota); Owour v. Courville, No. 11-cv-926, 2013 WL 7877306,
at *1 (W.D. La. Aug. 7, 2013) (plaintiff housed at Federal Detention Center in Oakdale, Louisiana);

21 Hutchinson v. Reese, No. 07CV181-DCB-MTP, 2008 WL 4857449, at *1 (S.D. Miss. Nov. 7, 2008)

(plaintiff housed in the Federal Correctional Complex in Yazoo City, Mississippi).
22 6 Doe v. United States is the representative of Defendant’s other cited precedent. Corrections Corporation

23

of America, which was CoreCivic’s former corporate name, has routinely been deemed a “state actor” for purposes of civil rights complaints. In Johnson v. Corrections Corp. of America, No. 14cv41 LAB

24 (WVG), 2014 WL 2919300, at *2–3 (S.D. Cal. June 26, 2014), the district court construed a pro se
plaintiff’s claim against CCA as a Bivens claim and dismissed the claim because it did not allege violations

25 by an individual. Guzman-Martinez v. Corrections Corp. of America, No. CV-11-2390-PHX-NVW, 2012

WL 5907081, at *9–11 (D. Ariz. Nov. 26, 2012), arrived at the same conclusion as Doe; the court
26 determined CCA to be acting under color of state law. Murray v. Corr. Corp. of America, No. CV 11-

27

2210-PHX-RCB, 2012 WL 2798759, at *1 (D. Ariz. July 9, 2012), likewise determined that CCA was a state actor. See Chuwang v. Corr. Corp. of Am., No. CIV.A. L-86-55, 1987 WL 13814, at *1 (S.D. Tex.

28 May 29, 1987) (concluding CCA was federal actor); see also United States v. Thomas, 240 F.3d 445, 448
(5th Cir. 2001) (determining guard at CCA was a “public official”).

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1 F.3d 309, 314 (5th Cir. 2016), the Fifth Circuit was confronted with a 42 U.S.C. § 1983

2 claim against the Corrections Corporation of America (“CCA”), which was Defendant

3 CoreCivic’s corporate predecessor. Section 1983 only reaches conduct of persons

4 operating under color of law, but the court applied a “public function” test to determine

5 whether a private contractor’s actions were “fairly attributable to the State.” Id. at 314

6 (quoting Cornish v. Corr. Servs. Corp., 402 F.3d 545, 550 (5th Cir. 2005)). The public

7 function test required the court to determine the “specific conduct of which the plaintiff

8 complains.” Id. at 316 (citing Cornish, 402 F.3d at 550)). The specific conduct at issue in

9 Doe was “detaining aliens pending a determination of their immigration status pursuant to

10 ICE specifications.” Id. The court held that this conduct was a federal function and that

11 CCA was exempt from § 1983 because it were performing a federal function. Id.

12

Doe v. United States is exemplary of cases determining whether private conduct is

13 deemed to be fairly attributable to the State and, thus, state action. The Supreme Court has

14 repeatedly held that private actors can be held liable for violations of individual federal

15 rights if the private actions “caus[e] the deprivation of a federal right . . . fairly attributable

16 to the State.” Lugar v. Edmondson Oil Co., 457 U.S. 922, 936 (1982). “As a matter of

17 substantive constitutional law the state-action requirement reflects judicial recognition of

18 the fact that ‘most rights secured by the Constitution are protected only against

19 infringement by governments.’” Id. (quoting Flagg Bros., Inc. v. Brooks, 436 U.S. 149,

20 156 (1978)). Thus, the state action requirement, which Defendant relies on, derives from

21 the Constitution’s guarantee, applied through the Fourteenth Amendment, that a person’s

22 civil rights will not be impaired by the state. See Jackson v. Metro. Edison Co., 419 U.S.

23 345, 349 (1974) (“In 1883, this Court in the Civil Rights Cases, 109 U.S. 3 (1883), affirmed

24 the essential dichotomy set forth in that Amendment between deprivation by the State,

25

26

27

Agyeman v. Corrections Corp. of America, 390 F.3d 1101 (9th Cir. 2004), held that a plaintiff could not sustain a Bivens claim against CCA because the Supreme Court previously held that private

28 corporations were not subject to Bivens claims. Id. at 1103 (citing Corr. Sevs. Corp. v. Malesko, 534 U.S.
61 (2001)).

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1 subject to scrutiny under its provisions, and private conduct, ‘however discriminatory or

2 wrongful,’ against which the Fourteenth Amendment offers no shield.” (citing Shelley v.

3 Kraemer, 335 U.S. 1 (1948))).

4

The Court distinguishes the Fourteenth Amendment’s guarantee of individual civil

5 rights against state action from the federal and state governments’ power to criminalize

6 conduct. The Fourteenth and Fifth Amendments restrict government action. See U.S.

7 Const. amend. V (“No person shall be . . . deprived of life, liberty, or property, without due

8 process of law . . . .:), amend. XIV (“No state shall make or enforce any law which shall

9 abridge the privileges or immunities of citizens of the United States; nor shall any state

10 deprive any person of life, liberty, or property, without due process of law; nor deny to any

11 person within its jurisdiction the equal protection of the laws.”). Conversely, Article I,

12 section 8 of the U.S. Constitution and State constitutions give rise to affirmative powers.

13

The Constitution creates a federal government of enumerated powers. See U.S.

14 Const. art. I, § 8; United States v. Lopez, 514 U.S. 549, 552 (1995). The Necessary and

15 Proper Clause, U.S. Const. art. I, § 8, cl. 18, grants Congress broad power to enact federal

16 legislation, United States v. Comstock, 560 U.S. 126, 133 (2010) (citing McCulloch v.

17 Maryland, 4 Wheat. 316, 405 (1819)). Thus, even though the Constitution does not

18 explicitly authorize federal crimes, the Necessary and Proper Clause allows Congress to

19 criminalize conduct in furtherance of its enumerated powers. See Comstock, 560 U.S. at

20 136. Moreover, the Clause permits Congress to establish a prison system and ensure that

21 system’s “safe and responsible administration.” Id. at 136–37. Likewise, the state

22 governments, as part of their general police powers, routinely criminalize conduct. See

23 Torres v. Lynch, 136 S. Ct. 1619, 1625 (2016) (“State legislatures, exercising their plenary

24 police powers, are not limited to Congress’s enumerated powers; and so States have no

25 reason to tie their substantive offenses to those grants of authority.” (citing United States

26 v. Lopez, 514 U.S. 549, 567 (1995))). Thus, both state and federal governments derive

27 their power to criminalize conduct from specific grants of authority.

28

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1

The remaining question is whether the civic duty exception falls within the

2 restrictions placed on governments by the Fourteenth and Fifth Amendments or is a power

3 granted to the federal or state governments by their respective constitutions. Kozminski

4 characterized the civic duty exception as, “the prohibition against involuntary servitude

5 does not prevent the State or Federal from compelling their citizens, by threat of criminal

6 sanction, to perform certain civic duties.” See 487 U.S. at 943–44. Kozminski cited several

7 examples where the Supreme Court recognized the government’s ability to compel certain

8 labor with the threat of criminal sanction. Thus, in Arver v. United States, 245 U.S. 366,

9 388 (1918), the Supreme Court held a selective military draft law to be constitutional

10 pursuant to Congress’s power to regulate the national militia, see U.S. Const. art. 1, § 8, cl.

11 15. Or, in Butler v. Perry, 240 U.S. 328, 332–33 (1916), the Supreme Court upheld a

12 Florida law requiring citizens to participate in the building and maintenance of public roads

13 because the states possessed the right to require citizens to participate in certain

14 construction at the time the States ratified the Thirteenth Amendment. Thus, the Thirteenth

15 Amendment’s civic duty exception derives from the government’s constitutional authority

16 to criminalize conduct, pursuant to either the federal government’s enumerated powers or

17 the state government’s police powers.

18

The foregoing principles distill into the following. First, the state actor inquiry is

19 necessary to determine whether a private person’s conduct can be attributed to the

20 government. See Lugar, 457 U.S. at 936. When private conduct may be attributed to the

21 state, then that private conduct must adhere to the constitutional limitations placed on state

22 action by the Fourteenth Amendment. See Evans v. Newton, 382 U.S. 296, 299 (1966)

23 (“Conduct that is formally ‘private’ may become so entwined with governmental policies

24 or so impregnated with a governmental character as to become subject to the constitutional

25 limitations placed upon state action.”). Second, the power to criminalize conduct and the

26 resulting exceptions to the Thirteenth Amendment are distinct from the limitations placed

27 on government. Instead, such power is an affirmative grant of authority from either the

28 United States or State constitutions. See U.S. Const. art. I, § 8, cl. 1 (“The Congress shall

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1 have power . . . .”). Defendant’s only argument supporting its civic duty theory is that it is

2 a “federal actor.” The cases supporting Defendant’s argument confirm that CoreCivic

3 (previously Corrections Corporation of America) has been delegated a public function to

4 such an extent that its conduct must adhere to constitutional limitations. It does not follow

5 that the same finding would also mean Congress or the state legislatures delegated to

6 Defendant their power to criminalize conduct. Thus, Defendant cannot lay claim to the

7 civic duty exception—Defendant is a private entity, not a government.

8

Finally, Defendant argues that it would not be logical to allow pretrial inmates to

9 perform housekeeping tasks while criminalizing Defendant’s same conduct under § 1589.

10 (See MTD 18.) 28 C.F.R. § 545.23(b) exempts pretrial inmates committed to the Federal

11 Bureau of Prisons from forced labor “other than housekeeping tasks in the inmate’s own

12 cell.” The Court agrees with Defendant that criminalizing housekeeping tasks in one

13 instance (civil immigration detention) and permitting it in another (pretrial detention)

14 would not be a logical reading of § 1589. ICE’s operations manual, like the Code of

15 Federal Regulations, also requires Plaintiffs to perform personal housekeeping. See ICE

16 PBNDS, at 406. However, Plaintiffs’ Complaint contains factual allegations, which the

17 Court must accept as true, that go beyond the personal housekeeping tasks listed in the ICE

18 manual. (See Comp. ¶ 16 (cleaning floors, bathrooms, and windows not only in Plaintiffs’

19 living areas (“pods”) but also throughout the other interior and exterior areas of

20 CoreCivic’s detention facilities).)

21

In sum, the Court finds that no reason proffered by Defendant removes its alleged

22 conduct from 18 U.S.C. § 1589’s plain meaning.

23 2. Whether Plaintiffs Allege Sufficient Facts to State a Claim

24

Defendant next argues that Plaintiffs’ Complaint fails to allege sufficient facts to

25 state a claim under TVPA. Defendant contends that Plaintiffs do not provide any factual

26 details as to Defendant’s purported force or coercion that compelled Plaintiffs and other

27 detainees to clean their living and community areas. (MTD 19.) Thus, Plaintiffs do not

28 identify who threatened them, how they were threatened, or when they were threatened.

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1 (Id. (citing Compl. ¶¶ 13, 16, 27, 29).) Nor do Plaintiffs connect any purported threat to

2 any specific demand to work or identify what they were forced to do or when they were

3 forced to do it. (Id. (citing Roman v. Tyco Simplex Grinnell, 16-CV-3449-T-33AEP, 2017

4 WL 2427251, at *5 (M.D. Fla. June 5, 2017)).)

5

Plaintiffs argue that they allege sufficient facts to state a claim for relief by alleging

6 the who, what, when, where, and how of the labor and services the detainees were forced

7 to provide. (Opp’n 15 (citing Compl. ¶¶ 10–11, 13–16, 27–29).)

8

The Court begins its analysis with the statute; Plaintiffs allege Defendant violated

9 18 U.S.C. § 1859(a). The first clause of the statute applies to “[w]hoever knowingly

10 provides or obtains the labor or services of a person.” 18 U.S.C. § 1589(a). The term

11 “whoever” is broad and does not limit the potential class of persons that fall under section

12 1589. Here, Plaintiffs allege that Defendant owns and operates the Otay Mesa Detention

13 Center. (Compl. ¶ 11.) The term “labor or services” is not defined by the statute and,

14 therefore, the Court uses the ordinary meaning. United States v. Marcus, 628 F.3d 36, 44

15 (2d Cir. 2010) (citing Smith v. United States, 508 U.S. 223, 228 (1993); Harris v. Sullivan,

16 968 F.2d 263, 265 (2d Cir. 1992)). “Webster’s Third New International Dictionary (1993)

17 defines ‘labor’ as ‘expenditure of physical or mental effort esp. when fatiguing, difficult,

18 or compulsory;’ and ‘service’ is defined as ‘the performance of work commanded or paid

19 for by another.’” Callahan, 801 F.3d at 620. Plaintiffs allege that they and other detainees

20 cleaned, maintained, scrubbed, swept, and mopped floors, bathrooms, showers, toilets, and

21 windows. (Compl. ¶ 16.) These activities are clearly within the definition of labor or

22 service. The term “person” is not limited by the statute and applies to any persons, i.e.

23 victims of forced labor, subject to the conditions dictated by the statute. See Callahan, 801

24 F.3d at 617. Here, Plaintiffs allege that they were civil detainees at the Otay Mesa Facility

25 and that they were engaged to work by Defendant. (Compl. ¶ 14.)

26

Section 1589(a) then requires the foregoing labor or services to be obtained through

27 one of four means. Plaintiffs allege three means used by Defendant: (a) force, threats of

28 force, physical restraint, and threats of physical restraint; (b) serious harm and threats of

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1 serious harm; and (c) abuse and threatened abuse of law and legal process. (Id. ¶ 42.) It is

2 here that Defendant brings to bear its primary argument: Plaintiffs did not allege the means

3 with any factual particularity. Plaintiffs’ Complaint alleges the following:

4

Defendant forced and coerced Plaintiffs . . . by threatening to

5

punish not only those who refused to work, but also other detainees in the pods with confinement, physical restraint,

6

substantial and sustained restriction, deprivation, and violation

7

of their liberty, and solitary confinement, all with the intent to obtain forced labor or services and as punishment for any refusal

8

to work causing Plaintiffs severe mental pain and suffering.

9 (Id. ¶ 16.) Taking the factual allegations as true, the Complaint reveals that Defendant had

10 a policy of forcing detainees to perform labor or services and if the detainees refused then

11 they or other detainees would be placed in solitary confinement.

12

The remaining question is whether allegations of solitary confinement within a

13 detention facility are sufficient to state a claim under TVPA. Plaintiffs argue that solitary

14 confinement has long been recognized as an additional punishment above and beyond day-

15 to-day incarceration. (Opp’n 21 (citing, e.g., In re Medley, 134 U.S. 160 (1890)).) The

16 Court finds this authority persuasive. It has long been recognized that “solitary

17 confinement bears ‘a further terror and peculiar mark of infamy.’” Davis v. Ayala, 135 S.

18 Ct. 2187, 2209 (2015) (Kennedy, J., concurring) (quoting Medley, 134 U.S. at 170). At the

19 very least, solitary confinement constitutes serious harm, which Congress defined to

20 include psychological harm. 18 U.S.C. § 1589(c)(2). Here, solitary confinement, or the

21 threat of solitary confinement, sufficiently alleges the means to achieve forced labor.

22

The case Defendant cites, Roman v. Tyco Simplex Grinnell, is distinguishable.

23 There, a pro se plaintiff alleged the following: “While working for Tyco Simplex Grinnell,

24 I was harassed, eggs, mucus, Grease or tar thrown on company van. Placed in unfair and

25 unsafe work Conditions. Causing me high blood pressure. All because an oral Contract

26 was breached. I seek 7 million dollars in compensation and punitive damages For the

27 wrong done to me.” Roman, 2017 WL 2427251, at *1. Based on those limited factual

28 allegations, the district court dismissed a § 1859 claim, asking “The count does state

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1 Roman was “harassed” and “threatened” but does not clarify who threatened him, how he

2 was threatened, and for what purpose. Was Roman threatened because he refused to work

3 or because he complained about the alleged breach of oral contract? Was he threatened

4 with violence, with being fired, or with something else?” Id. at *5. Here, Plaintiffs allege

5 a specific punishment (solitary confinement) carried out or threatened to be carried out as

6 a direct consequence for refusing to perform labor. The conduct occurred while Plaintiffs

7 were under the exclusive control of Defendant. Such allegations are sufficient here.

8

In sum, the Court finds that Plaintiffs have sufficiently stated a claim for a TVPA

9 violation.

10 3. Whether the 2008 TVPA Amendments Apply Retroactively

11

Defendant argues that Plaintiffs do not have a private cause of action prior to

12 Congress’s 2008 TVPA amendments. (MTD 20.) Congress amended the TVPA to extend

13 the civil remedy provision, 18 U.S.C. § 1595, to allow victims to recover against “whoever

14 knowingly benefits, financially or by receiving anything of value from participation in a

15 venture which that person knew or should have known has engaged in an act in violation

16 of [the TVPA].” (Id. (quoting Pub. L. No. 110-457, § 221, 122 Stat. 5044, 5067 (2008)).)

17 Defendant contends that Congress did not give the amendment retroactive effect and,

18 therefore, any liability under the “financial benefit” prong of § 1595 can only attach to

19 conduct after December 23, 2008—the effective date of the amendment. (Id. (citing Griffin

20 v. Alamo, 14-CV-4065, 2016 WL 7391046, at *3 (W.D. Ark. Dec. 21, 2016)).) Defendant

21 concludes that Plaintiffs only bring a TVPA claim under the “financial benefit” prong and

22 therefore Plaintiffs claims before December 23, 2008 must fail.

23

Plaintiffs respond that at the time Congress enacted the 2008 amendments their

24 TVPA claims were unexpired under the four-year statute of limitations. (Opp’n 24.) As

25 part of the 2008 amendments, Congress replaced the four-year limitations period and

26 enacted a ten-year statute of limitations. 122 Stat. at 5067. Plaintiffs argue that the

27 applicable rule should be that unexpired claims at the time of enactment do not give rise to

28 an impermissible retroactive effect. (Id. (citing, e.g., Landgaf v. USI Film Products, 511

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1 U.S. 244 (1994); Stogner v. California, 539 U.S. 607, 611, 631 (2003)).) According to

2 Plaintiffs, if their claims were alive under the prior limitations period (four years) then

3 those claims would remain valid through the newly enacted ten-year statute of limitations.

4 (Opp’n 24.) Plaintiffs also point out that they also bring a claim under 18 U.S.C. § 1593

5 for mandatory restitution, which has no “financial benefit” requirement. (Opp’n 23 n.7

6 (citing Compl. ¶¶ 1, 12, 18, 44, 50; and subpart d of the Prayer for Relief).)

7

The Fourth Circuit addressed this issue in Cruz v. Maypa, 773 F.3d 138 (4th Cir.

8 2014). There, a plaintiff alleged the defendants violated sections 1589 and 1590 by

9 knowingly obtaining her labor through “means of threats,” “holding her in a position of

10 involuntary servitude,” and “confiscating her passport.” Id. at 143. At the time the alleged

11 violations took place, the TVPA had a four-year statute of limitations. Id. at 143–44; see

12 Oluoch v. Orina, 101 F. Supp. 3d 325, 329 (S.D.N.Y. 2015) (“When first enacted, the

13 TVPRA did not contain a statute of limitations. Thus, claims brought under the TVPRA

14 were subject to the default four-year statute of limitations applying to civil causes of action

15 created by Congress.” (citation omitted) (citing 28 U.S.C. § 1658)). Then, Congress

16 amended the TVPA to provide a ten-year statute of limitations. The plaintiff argued, as

17 our Plaintiffs do here, that the ten-year limitations period applied to her TVPA claims. Id.

18 at 144. The Cruz court applied the Landgraf framework to determine whether the amended

19 ten-year statute of limitations applied retroactively. Landgraf requires a three-step analysis

20 to determine retroactive application. First, a court must determine “whether Congress has

21 expressly prescribed the statute’s proper reach.” Cruz, 773 F.3d at 144 (citing Landgraf,

22 511 U.S. at 280). If Congress prescribed the reach, the inquiry ends. Id. If not, a court

23 must decide whether the statute would operate retroactively, “i.e., whether it would impair

24 rights a party possessed when he acted, increase a party’s liability for past conduct, or

25 impose new duties with respect to transactions already completed.” Id. (quoting Landgraf,

26 511 U.S. at 280). “Finally, if the statute does have a retroactive effect, it will not apply

27 ‘absent clear congressional intent favoring such a result.’” Id. (quoting Landgraf, 511 U.S.

28 at 280).

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1

The Cruz court first determined that Congress did not expressly indicate the 2008

2 TVPA’s proper temporal scope. Id. Then, the court reasoned that applying the new ten-

3 year statute of limitations to unexpired claims would not “attach[] new legal consequences

4 to events completed before its enactment.” Id. at 145 (alteration in original) (quoting

5 Landgraf, 511 U.S. at 270). The court explained that, “in the criminal context, there is a

6 consensus that extending a limitations period before prosecution is time-barred does not

7 run afoul of the Ex Post Facto Clause of the Constitution.” Id. (citing, e.g., United States

8 v. Jeffries, 405 F.3d 682, 685 (8th Cir. 2005)). Under this reasoning, the Cruz court held

9 that applying the ten-year limitations period to claims that were unexpired at the time of its

10 enactment did not give rise to impermissible retroactive effect under Landgraf. Id.

11

Cruz would appear to strongly support Plaintiffs’ argument. Like Cruz, Plaintiffs

12 argue the statute of limitations had not run prior to the 2008 amendments; therefore, there

13 is no new legal consequence for Defendant. However, the case at bar has a critical

14 distinction. Cruz only considered the retroactive application of the TVPA statute of

15 limitations. Here, as Defendant points out, the 2008 amendment also created Plaintiffs’

16 cause of action against Defendant. Plaintiffs’ Complaint rests on TVPA’s “financial

17 benefit” cause of action to the TVPA. See 18 U.S.C. § 1595(a); (Compl. ¶ 43.) Congress

18 created this cause of action as part of the 2008 amendments. 122 Stat. at 5067. Thus, the

19 Court must determine whether the “financial benefit” provision applies retroactively.

20

The first Landgraf step is to determine whether Congress expressly mandated the

21 statute’s “proper reach.” 511 U.S. at 280. As the Cruz court recognized, Congress did not

22 identify the 2008 TVPA amendment’s proper temporal scope. At the second step in the

23 analysis, our path diverges from Cruz. In 2008, Congress created a new cause of action—

24 the financial benefit prong of § 1595(a)—which Plaintiffs utilize. The new cause of action

25 “increase[s] a party’s liability for past conduct.” Landgraf, 511 U.S. at 280. Before the

26 2008 amendments, Defendant was not liable because the “financial benefit” element cause

27 of action did not exist. After the amendments, Defendant is potentially liable. Because

28 Defendant is liable after the amendment, but not liable before, the 2008 amendments create

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1 new legal consequences. Therefore, the 2008 amendments do not apply retroactively

2 barring Congress’s clear intent to do so. The amendments do not contain any clear intent

3 to apply retroactively. See Cruz, 773 F.3d at 144.

4

Accordingly, the Court finds that Plaintiffs may only bring claims under the

5 “financial benefit” prong for violations of the TVPA after the amendments’ effective date.7

6 4. Whether TVPA’s Statute of Limitations Bar Plaintiffs’ Claims

7

Defendant argues that a ten-year statute of limitations governs TVPA claims and

8 Plaintiffs filed their Complaint May 31, 2017. (MTD 20 (citing Compl.).) Thus, Plaintiffs

9 cannot bring any TVPA claims for conduct occurring before May 31, 2007. (Id. at 21.)

10 Plaintiffs respond that dismissal on the basis of statute of limitations is only proper if

11 Defendant shows some obvious bar to securing relief on the face of the Complaint. (Opp’n

12 23 (citing ASARCO, LLC v. Union Pac. R.R. Co., 765 F.3d 999, 1004 (9th Cir. 2014)).)

13 Plaintiffs argue that a factual question exists whether equitable tolling would apply to their

14 claims. Defendant rejoins that Plaintiffs have shown no factual basis for equitable tolling.

15 (Reply 13.)

16

The Court agrees with Plaintiffs. “If, from the allegations of the complaint as well

17 as any judicially noticeable materials, an asserted defense raises disputed issues of fact,

18 dismissal under Rule 12(b)(6) is improper.” ASARCO, LLC, 765 F.3d 999, 1004 (9th Cir.

19 2014) (quoting Scott v. Kuhlmann, 746 F.2d 1377, 1378 (9th Cir. 1984) (per curiam)).

20 Defendant points out that Plaintiffs do not state a factual basis for equitable tolling. The

21 Complaint suggests otherwise. Plaintiffs were held in a civil immigration detention facility

22 and it is plausible that equitable tolling could apply because Plaintiffs were physically

23

24

25 7 Plaintiffs also argue that they seek mandatory restitution under 18 U.S.C. § 1593, which has no “financial

benefit” requirement and, thus, no retroactivity issue. (Opp’n 23 n.7.) Plaintiffs’ argument fails because
26 § 1593’s mandatory restitution provision is a remedy that applies “only to cases in which a defendant has

27

been convicted of an offense under the Trafficking Act.” United States v. Fu Sheng Kuo, 620 F.3d 1158, 1164 (9th Cir. 2010) (citing 18 U.S.C. § 1593(a)). Section 1593 requires a predicate “offense under this

28 chapter.” Even assuming a civil remedy can supply the predicate offense, the above discussion confirms
that Plaintiffs’ TVPA cause of action against Defendant was not available until December 23, 2008.

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1 detained at Defendant’s facility. At the very least, there is a factual dispute concerning

2 Defendant’s affirmative defense. See Scott, 746 F.2d at 1377 (citing C. Wright & A. Miller,

3 Federal Practice and Procedure, § 1277, at 328–30). Therefore, the Court declines to

4 impose a statute of limitations bar at this stage in the proceedings.

5 5. Conclusion

6

In sum, the Court GRANTS IN PART and DENIES IN PART Defendant’s Motion

7 to Dismiss Plaintiffs’ first cause of action. The Court DISMISSES WITH PREJUDICE

8 Plaintiffs’ claims to the extent those claims rely on § 1595(a)’s “financial benefit” element

9 and arose prior to December 23, 2008.

10

B. California TVPA (Second Cause of Action)

11

Plaintiffs bring a cause of action under the California Trafficking Victims Protection

12 Act, Cal. Civ. Code § 52.5, which provides a state civil remedy for victims of human

13 trafficking, (Compl. ¶ 53). Defendant argues that, like the federal TVPA, the California

14 legislature did not intend for the California human trafficking statute to prohibit Defendant

15 from requiring lawfully-held immigration detainees to perform housekeeping tasks. (MTD

16 21.) In support of this contention, Defendant references the legislative intent as only

17 intending to reach “trafficking of a person for forced labor or services.” (Id. (quoting 2005

18 Cal. Legis. Serv. Ch. 240 (A.B. 22)).) Defendant also briefly mentions its preemption

19 argument, which it raises below with regard to Plaintiffs’ minimum wage claims. See infra

20 section III.A. Defendant argues that immigrant detention is a federal function and the

21 California law has no authority to govern the conditions of detention. (MTD 21.) Next,

22 Defendant points out that California Penal Code § 2700 requires prisoners in the custody

23 of the California Department of Corrections and Rehabilitation to perform work. From

24 that premise, Defendant argues the California would not have criminalized conduct in one

25 statute, the California TVPA, that it authorized in a different statute, California Penal Code

26 § 2700. (Reply 13.) Finally, Defendant argues that Plaintiffs’ Complaint fails to allege

27 sufficient facts to state a claim. (MTD 22 (citing Loftus v. Long Beach Veterans Hosp.,

28 214 F. Supp. 3d 908, 916 (C.D. Cal. 2016)).)

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1

Plaintiffs argue that the plain meaning of California Penal Code § 236.1(a) governs

2 their claims. (Opp’n 26.) They further contend that section 236.1 does not contain any

3 limiting language that might restrict application of the statute to only those defendants who

4 traffic in persons. (Id.) Relevant to their argument, section 236.1(g) states that the

5 “Legislature finds that the definition of human trafficking in this section is equivalent to

6 the federal definition of a severe form of trafficking found in Section 7102(9) of Title 22

7 of the United States Code.”8 Cal. Penal Code § 236.1(g). Plaintiffs contend that this

8 definition is merely a declaration of legislative finding and does not control sections

9 236.1(a) and (b). (Opp’n 26.) Next, Plaintiffs argue that they are not prisoners nor in the

10 custody of the California Department of Corrections and Rehabilitations and therefore any

11 comparison to prisoners in state custody is misleading. (Id. at 27.) Finally, Plaintiffs

12 contend that they have alleged sufficient facts to state a claim. (Id. at 27–28 (citing Compl.

13 ¶¶ 10–11, 13–16, 27–29).)

14

California Civil Code § 52.5 states that “[a] victim of human trafficking, as defined

15 in Section 236.1 of the Penal Code, may bring a civil action.” California Penal Code

16 section 236.1 provides, in relevant part, that “[a] person who deprives or violates the

17 personal liberty of another with the intent to obtain forced labor or services, is guilty of

18 human trafficking.” Cal. Penal Code § 236.1(a). “As summarized in the official standard

19 jury instructions for criminal cases, the elements of this offense are (1) the defendant either

20 deprived another person of personal liberty or violated that other person’s personal liberty;

21 and (2) when the defendant did so, he or she intended to obtain forced labor or services

22

23 8 22 U.S.C. § 7102(9) provides:

24

The term “severe forms of trafficking in persons” means—

(A) sex trafficking in which a commercial sex act is induced by force, fraud,

25

or coercion, or in which the person induced to perform such act has not

attained 18 years of age; or

26

(B) the recruitment, harboring, transportation, provision, or obtaining of a

27

person for labor or services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage,

28

or slavery.

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1 from that person.” People v. Halim, 14 Cal. App. 5th 632, 643 (Ct. App. 2017) (citing

2 CALCRIM No. 1243), reh’g denied (Sept. 12, 2017), review denied (Nov. 29, 2017). The

3 statute further defines “[d]eprivation or violation of the personal liberty of another” as

4

substantial and sustained restriction of another’s liberty

5

accomplished through force, fear, fraud, deceit, coercion, violence, duress, menace, or threat of unlawful injury to the

6

victim or to another person, under circumstances where the

7

person receiving or apprehending the threat reasonably believes that it is likely that the person making the threat would carry it

8

out.

9 Cal. Penal Code § 236.1(h)(3).

10

As before, the Court begins with the plain meaning of the statute. See Mt. Hawley

11 Ins. Co. v. Lopez, 215 Cal. App. 4th 1385, 1397 (2013); see also Klein v. United States, 50

12 Cal. 4th 68, 77 (2010) (“We look first to the words of the statute, ‘because the statutory

13 language is generally the most reliable indicator of legislative intent.’” (quoting Hassan v.

14 Mercy Am. River Hosp., 31 Cal. 4th 709, 715 (2003))). The California TVPA differs from

15 18 U.S.C. § 1859 because the former includes an explicit reference to the federal definition

16 of human trafficking, found in 22 U.S.C. § 7102(9). See Cal. Penal Code § 236.1(a), (g).

17 However, the definition of human trafficking is not an element of the substantive offense;

18 instead, it defines the result of the crime. As People v. Halim and the California jury

19 instruction illustrate, the only two elements necessary to prove a § 236.1 crime are: (1) the

20 defendant either deprived another person of personal liberty or violated that other person’s

21 personal liberty; and (2) when the defendant did so, he or she intended to obtain forced

22 labor or services from that person. As in the federal TVPA, there is no language that limits

23 the “person” to someone who was trafficked, nor is trafficking an element of the offense.

24

Defendant argues that the California legislature would not criminalize conduct in

25 one statute, Cal. Penal Code § 236.1, only to explicitly authorize the same conduct in a

26 different statute, Cal. Penal Code § 2700. (Reply 13.) Defendant’s point is well taken;

27 however, the Court distinguishes between the targets of each statute. California Penal Code

28 § 2700 regulates the conduct of prisoners who are expressly exempt from the Thirteenth

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1 Amendment’s prohibition on involuntary servitude. California Penal Code § 236.1

2 regulates conduct of private parties who are not exempt from the Thirteenth Amendment’s

3 prohibition of involuntary servitude. The Court finds that the California TVPA is available

4 to Plaintiffs.9

5

Moreover, the Court finds Plaintiffs state a claim under the California TVPA.

6 Plaintiffs allege that Defendant threatened to place non-compliant detainees in solitary

7 confinement if they refused to perform certain labor. As previously discussed, solitary

8 confinement, even for those in confinement and whose liberty is already deprived,

9 constitutes deprivation of personal liberty. Plaintiffs also allege that the solitary

10 confinement was a punishment for refusing to perform work, which demonstrates

11 Defendant’s intent to obtain labor or services from Plaintiffs. Thus, the Court finds that

12 Plaintiffs state a claim under the California TVPA.

13

Though neither party raises the issue, retroactivity is also relevant here. California

14 Civil Code § 3 states that Civil Code provisions are not retroactive “unless expressly so

15 declared.” Both sections 52.5 and 236.1 were enacted January 1, 2006 and neither statute

16 expressly declared to have retroactive effect. Headley v. Church of Scientology Int’l, No.

17 CV 09-3986 DSF (MANx), 2009 WL 10671565, at *4 (C.D. Cal. Aug. 12, 2009).

18 Therefore, Plaintiffs’ claim cannot state a claim for events that occurred prior to January

19 1, 2006.

20

Therefore, the Court GRANTS IN PART and DENIES IN PART Defendant’s

21 Motion as to Plaintiffs’ second cause of action and DISMISSES WITH PREJUDICE

22 Plaintiffs’ California TVPA claim to the extent that it arose prior to January 1, 2006.

23

24 9 Defendant advances a preemption argument, stating “detention of immigrants is exclusively a federal

25 function; California has no authority to govern the conditions of their detention.” Defendant does not

elaborate on how preemption applies specifically to the California TVPA beyond that statement.
26 Defendant cites two statutes—the Immigration and Nationality Act and the Immigration Reform and

27

Control Act—for its preemption argument. (See MTD 22–25.) The Court addresses Defendant’s preemption argument in detail below, but the holding there applies equally here. The Court finds that

28 federal law does not preempt California labor law from regulating Plaintiffs’ detention conditions; thus,
Defendant has not demonstrated why the California TVPA may not also regulate detention conditions.

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1 III. Voluntary Labor Claims (Fourth through Tenth Causes of Action)

2

In these causes of action, Plaintiffs allege the following violations of the California

3 Labor Code: failure to pay minimum wages; failure to pay overtime wages; failure to

4 provide mandated meal periods; failure to provide mandated rest periods; failure to furnish

5 timely and accurate wage statements; failure to pay compensation upon

6 termination/waiting time penalties; imposition of unlawful terms and conditions of

7 employment. (See Compl. ¶¶ 71–101.) Before turning to the merits of Plaintiffs’ labor

8 claims, the Court must address a threshold issue raised by Defendant: whether federal law

9 preempts California law to the extent the latter seeks to regulate civil immigration

10 detainees.

11

A. Preemption

12

Defendant raises a threshold objection to Plaintiffs’ fourth through tenth causes of

13 action: preemption. (MTD 22.) Article VI, clause 2 of the United States Constitution—

14 the Supremacy Clause—commands that the laws of the United States “shall be the supreme

15 law of the land.” U.S. Const. art. VI, cl. 2. “[T]he Supremacy Clause invalidates all state

16 laws that conflict or interfere with an Act of Congress.” Rose v. Ark. State Police, 479 U.S.

17 1, 3 (1986). Federal law may invalidate, or preempt, state law in three ways: express, field,

18 and conflict preemption. Silvas v. E*Trade Mortg. Corp., 514 F.3d 1001, 1004 (9th Cir.

19 2008). When federal laws regulate conduct in an area in which state law has historic police

20 powers there is a strong presumption against preemption. Id. Accordingly, “courts should

21 assume that ‘the historic police powers of the States’ are not superseded ‘unless that was

22 the clear and manifest purpose of Congress.’” Arizona v. United States, 567 U.S. 387, 400

23 (2012) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)). Conversely,

24 the presumption against preemption does not apply “when [a] States regulates in an area

25 where there has been a history of significant federal presence.” Silvas, 514 F.3d at 1004

26 (alteration in original) (quoting United States v. Locke, 529 U.S. 89, 108 (2000)).

27 Defendant argues both field and conflict preemption bar application of California’s labor

28 laws to Plaintiffs’ claims.

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1

1. Field Preemption

2

Defendant argues that the federal government has “broad, undoubted power over the

3 subject of immigration and the status of aliens.” Arizona, 567 U.S. at 394. Accordingly,

4 Congress has enacted two statutes relevant here. The Immigration and Nationality Act

5 (“INA”) vests responsibility for detaining aliens with the U.S. Attorney General. (MTD

6 23 (citing, e.g., 8 U.S.C. §§ 1103, 1226, 1231).) The Immigration Reform and Control Act

7 (“IRCA”) lays out a “comprehensive scheme prohibiting the employment of illegal aliens

8 in the United States.” (Id. (quoting Hoffman Plastic Compounds, Inc. v. N.L.R.B., 535 U.S.

9 137, 147 (2002)).) Defendant argues that these two statutes reflect a congressional mandate

10 to regulate the detention of unlawful immigrants—including employment and labor

11 practices at detention facilities. (Id.) Thus, Defendant would have the Court find the INA

12 and IRCA preempt California’s labor laws and those state laws cannot regulate

13 Defendant’s conduct towards Plaintiffs. (Id. at 24.)

14

Plaintiffs counter that California labor laws do not intrude on INA and IRCA’s

15 regulatory field. (Opp’n 34.) Plaintiffs cite Arizona v. United States where the Supreme

16 Court held that Congress regulated the field of alien registration, but the Court allowed

17 other provisions of the Arizona law intact. (Id. (citing Arizona, 567 U.S. at 400–15).)

18 Accordingly, Plaintiffs argue that California’s labor laws do not intrude upon INA’s field

19 of alien registration. (Id.)

20

Field preemption occurs “where: (1) the ‘regulatory framework is so pervasive’ that

21 there is no room for state regulation, or (2) where the ‘federal interest [is] so dominant that

22 the federal system will be assumed to preclude enforcement of state laws on the same

23 subject.” Puente Ariz. v. Arpaio, 821 F.3d 1098, 1103 (9th Cir. 2016) (alteration in

24 original) (quoting Arizona, 567 U.S. at 399). Arizona v. United States is the Supreme

25 Court’s most recent pronouncement on preemption and immigration.

26

In Arizona, the Supreme Court examined four provisions of an Arizona law: (1)

27 Section 3 created a misdemeanor for failing to comply with federal alien-registration

28 requirements; (2) Section 5 created a misdemeanor for an unauthorized alien to seek or

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1 engage in work in Arizona; (3) Section 6 authorized law enforcement officers to arrest a

2 person without a warrant if the officer had probable cause to believe the person had

3 committed a public offense to make that person removable from the United States; and (4)

4 Section 2(B) required officers who conducted a stop, detention, or arrest to verify a

5 person’s immigration status. 567 U.S. at 393–94. The Supreme Court applied the field

6 preemption doctrine to Section 3 because that section regulated conduct in the field of alien

7 registration. The Supreme Court held that “[t]he framework enacted by Congress leads to

8 the conclusion here . . . that the Federal Government has occupied the field of alien

9 registration.” Id. at 401 (citing, e.g., Am. Ins. Ass’n v. Garamendi, 539 U.S. 396, 419, n.11

10 (2003)). The Court reasoned “[i]f § 3 of the Arizona statute were valid, every State could

11 give itself independent authority to prosecute federal registration violations, ‘diminish[ing]

12 the [Federal Government]’s control over enforcement’ and ‘detract[ing] from the

13 “integrated scheme of regulation” created by Congress.’” Id. at 402. (alterations in

14 original) (quoting Wis. Dep’t of Indus. v. Gould Inc., 475 U.S. 282, 288–89 (1986)).

15 Accordingly, the Arizona court struck down Section 3 of the state law.

16

Here, Defendant argues that the INA preempts any state regulation in the field of

17 immigration detention. (MTD 23 (citing Medina v. O’Neill, 589 F. Supp. 1028, 1038 (S.D.

18 Tex. 1984)).) At a high level of generality, Defendant’s proposition has support in both

19 the statute and case law. For example, 8 U.S.C. §§ 1226 & 1231 authorize the U.S.

20 Attorney General to take into custody and detain an alien who is to be removed from the

21 United States. Additionally, in Arizona, the Supreme Court struck down the provision

22 authorizing a state officer to arrest an alien without a warrant because the “federal statutory

23 structure instructs when it is appropriate to arrest an alien during the removal process.”

24 567 U.S. at 407. The Supreme Court characterized the relevant field as “alien registration,”

25 id. at 403, and Arizona’s statute regulated conduct precisely in the alien registration field.

26

Yet, the high court defined the relevant field narrowly. None of the statutory

27 sections cited by Defendant discuss the detention of aliens. The Arizona court was

28 concerned when a state framework of sanctions creates a conflict with the plan Congress

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1 put in place. Id. (citing Wis. Dep’t, 475 U.S. at 286 (“[C]onflict is imminent whenever two

2 separate remedies are brought to bear on the same activity.”)). Thus, while Congress

3 authorized the Attorney General to detain unlawful aliens there is no clear congressional

4 framework for regulating detainee conditions, once unlawful aliens are detained in the first

5 instance. There is no clear congressional intent to occupy the field of detention conditions.

6 Without a clear congressional intent, “the historic police powers of the States” are not to

7 be superseded. Wyeth v. Levine, 555 U.S. 555, 565 (2009).

8

Carrying Defendant’s theory to its logical conclusion, if this Court were to find that

9 Congress preempted California law in the entire field of civil immigration detention then

10 California could not enforce state and local ordinances, including building codes, sanitation

11 requirements, and other licensing strictures. In fact, ICE’s operations manual10 explicitly

12 requires contract detention facilities to follow applicable federal, state, and local law with

13 regard to safety and sanitation law, fire safety codes, garbage and hazardous waste disposal,

14 drinking and wastewater compliance, and food service. See ICE PBNDS, at 19–21, 228.

15 The Court finds that the INA does not regulate the entire field of detention conditions

16 within an immigration detention facility.

17

The Court next considers whether the IRCA provides the congressional intent to

18 preempt the field of employment and labor practices in immigration detention facilities.

19 Prior to IRCA’s enactment, the Supreme Court noted that the “States possess[ed] broad

20 authority under their police powers to regulate the employment relationship to protect

21 workers within the State.” Chamber of Commerce of U.S. v. Whiting, 563 U.S. 582, 588

22 (2011) (quoting De Canas v. Bica, 424 U.S. 351, 356 (1976), overruled in part by 8 U.S.C.

23 § 1324a(h)(2)). Again prior to IRCA, the Supreme Court had reasoned that “‘prohibit[ing]

24 the knowing employment . . . of persons not entitled to lawful residence in the United

25 States, let alone to work here, is certainly within the mainstream of [the State’s] police

26

27 10 The ICE PBNDS is a federal agency publication and cannot provide congressional intent, but it at least 28 provides evidence that ICE does not read Congress’s intent as to control the entire field of conditions
within immigration facilities.

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1 power’ and that the Federal Government had ‘at best’ expressed ‘a peripheral concern with

2 [the] employment of illegal entrants’ at that point in time.” Id. (alterations in original)

3 (quoting De Canas, 424 U.S. at 356, 360). Before IRCA, the Court declined to hold that

4 federal immigration law preempted a state law assessing civil fines for the employment of

5 unauthorized aliens. See id. Under this reasoning, a state law regulating the employment

6 and labor of immigration detainees would most certainly withstand a preemption challenge.

7

However, in 1986 Congress enacted IRCA and made it “unlawful for a person or

8 other entity . . . to hire, or recruit or refer for a fee, for employment in the United States an

9 alien knowing the alien is an unauthorized alien.” 8 U.S.C. § 1324(a)(1)(A). As the

10 Supreme Court has stated, “IRCA ‘forcefully’ made combating the employment of illegal

11 aliens central to ‘[t]he policy of immigration law.’” Hoffman Plastic Compounds, 535 U.S.

12 at 147 (alteration in original) (quoting INS v. Nat’l Ctr. for Immigrants’ Rights, Inc., 502

13 U.S. 183, 194 & n.8 (1991)). Yet, Defendant does not cite any cases for the proposition

14 that IRCA preempts the entire field of immigration employment such that a state cannot

15 applying its worker protection and employment regulations to unauthorized aliens. See

16 Salas v. Sierra Chemical Co., 59 Cal. 4th 407, 423 (2014) (holding that “federal regulation

17 imposed by the Immigration Reform and Control Act of 1986 is not so pervasive as to

18 leave no room for any state law on the same subject”).

19

The Court finds that Congress has not preempted state law in the field of immigration

20 detainee labor and employment. See Washington v. Geo Group, Inc., 283 F. Supp. 3d 967,

21 977 (W.D. Wash. 2017) (finding same).

22

2. Conflict Preemption

23

Defendant also argues that Plaintiffs’ minimum wage (fourth cause of action) and

24 overtime wage (fifth cause of action) are preempted because those California laws conflict

25 with federal law. (MTD 24.)

26

Conflict preemption applies in two situations—when it is impossible to comply with

27 both state and federal law, or when the state law poses an obstacle to accomplishing and

28 executing Congress’ purposes and objectives. Bank of Am. v. City & Cnty. of San

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1 Francisco, 309 F.3d 551, 558 (9th Cir. 2002) (citing Fla. Lime & Avocado Growers, Inc.

2 v. Paul, 373 U.S. 132, 142–43 (1963)), as amended on denial of reh’g and reh’g en banc

3 (Dec. 20, 2002); and Hines v. Davidowitz, 312 U.S. 52, 67 (1941)). Like field preemption,

4 the touchstone of the conflict preemption inquiry is congressional intent. Puente Ariz., 821

5 F.3d at 1104 (citing Wyeth, 555 U.S. at 565).

6

Defendant states that 8 U.S.C. § 1555(d) authorizes ICE to pay “allowance (at such

7 rate as may be specified from time to time in the appropriation Act involved) to aliens,

8 while held in custody under the immigration laws, for work performed.” (MTD 24

9 (quoting 8 U.S.C. § 1555(d)).) Defendant argues that Congress set the allowance rate not

10 in excess of $1 per day in the 1978 Department of Justice Appropriation Act. (Id. (citing

11 Pub. L. No. 95-86, 91 Stat. 419, 426 (1977); and Alvarado Guevara v. I.N.S., 902 F.2d 394,

12 396 (5th Cir. 1990)).) Thus, Defendant argues that California’s minimum wage and

13 overtime wages—both of which require well over $1 per day—conflict with the rate fixed

14 by Congress. (Id. at 25 (citing Cal. Labor Code §§ 510(a), 1197).)

15

Plaintiffs point out that the $1 per day requirement was laid out in an appropriations

16 bill. (See Opp’n 35–36.) Plaintiffs argue that Congress did not preempt state labor law

17 through a $1 per day appropriation. (Id. at 36.) Further, Plaintiffs posit that there is nothing

18 in the appropriations bill that makes it impossible for Defendant to comply with

19 California’s labor laws, including payment of the minimum wage. (Id.) Defendant

20 responds by reiterating its position that the 1978 appropriations bill controls the wages

21 Defendant can lawfully pay Plaintiffs. (Reply 15.)

22

The conflict preemption argument depends entirely on the 1978 Department of

23 Justice appropriations bill. See 91 Stat. at 426 (“For expenses not otherwise provided

24 for, . . . including . . . payment of allowances (at a rate not in excess of $1 per day) to aliens,

25 while held in custody under the immigration laws, for work performed.”). Plaintiffs argue

26 “[t]here is nothing in that appropriations bill that makes it impossible for Defendant to

27 comply with California’s labor laws.” (Opp’n 36.) This position is untenable. Plaintiffs

28 provide no authority that Defendant is able to ignore congressional mandates imposed on

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1 ICE and imposed on Defendant by contracting with ICE. It cannot be true that Defendant

2 must follow both California’s minimum wage law (requiring well over $1 per day) and the

3 1978 Appropriations Act (requiring no more than $1 a day) at the same time. The operative

4 question is whether the appropriations bill still controls to this day.

5

The limited case law on this question is clearly split. In 1992, the Federal Circuit

6 determined the Fair Labor Standards Act (“FLSA”) did not apply to INS detainees and

7 cited with approval the 1978 Department of Justice appropriations bill. See Guevara v.

8 I.N.S., 954 F.2d 733, 1992 WL 1029, at *2 (Fed. Cir. 1992) (per curiam) (unpublished

9 decision). More recently, the district court for the District of Washington encountered the

10 same fact pattern presently before this Court: civil immigration detainees sued a private,

11 for-profit immigration detention corporation alleging that the defendant failed to meet the

12 Washington state minimum wage law. See Chao Chen v. Geo Group, Inc., 287 F. Supp.

13 3d 1158, 2017 WL 6034365, at *1 (W.D. Wash. Dec. 6, 2017). The Chao Chen court

14 pointed out that while 8 U.S.C. § 1555(d) is still in effect, Congress has not specified any

15 rate for detainee work since fiscal year 1979, despite knowing how to set a specific rate.

16 Id. at *4 (citing Consolidated Appropriations Act, 2016, Pub. L. No. 114-113, 129 Stat.

17 2242, 2497 (2015)).

18

This is a close question. The Court begins with the general proposition, repeatedly

19 expressed by the Supreme Court, that “[i]n all pre-emption cases, and particularly in those

20 in which Congress has ‘legislated . . . in a field which the States have traditionally

21 occupied,’ . . . we ‘start with the assumption that the historic police powers of the States

22 were not to be superseded by the Federal Act unless that was the clear and manifest purpose

23 of Congress.’” Wyeth, 555 U.S. at 565 (alterations in original) (quoting Medtronic, Inc. v.

24 Lohr, 518 U.S. 470, 485 (1996)). Regulating labor and wages is a historic police power

25 belonging to the States. See Salas, 59 Cal. 4th at 422 (citing De Canas, 424 U.S. at 356).

26 Thus, this Court will only find conflict preemption when Congress provides a clear and

27 manifest purpose. Congress appropriated funds for the federal fiscal year ending

28 September 30, 1978, including funds not to exceed $1 per day for aliens held in custody.

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1 Congress did not include similar language in subsequent years, nor did it codify the $1 per

2 day limitation in the United States Code. This Court does not foreclose the possibility that

3 Congress intended for the $1 per day ceiling to bind future parties, but does not find a clear

4 and manifest purpose on these facts is not warranted. Therefore, the Court declines to

5 apply conflict preemption.11

6

Finally, Defendant does not raise the obstacle preemption element of conflict

7 preemption. See Hines, 312 U.S. at 67. Moreover, given the lack of clear congressional

8 intent as to the “Dollar-A-Day” program, the Court finds the obstacle analysis to be

9 coextensive with the conflict preemption analysis.

10

B. Whether Plaintiffs Are Employees for Purposes of California Law

11

Plaintiffs’ fourth cause of action seeks to recover minimum wages; their fifth cause

12 of action is for recovery of overtime compensation. (See Compl. ¶¶ 71–79.) California

13 Labor Code § 1194 provides the civil remedy for unpaid minimum wages or overtime

14 compensation. See Cal. Labor Code § 1194(a).

15

Defendant offers three reasons why Plaintiffs are not employees under California

16 law. First, the Labor Code defines “employee” differently within the code itself, depending

17 on the chapter, part, article, or section. (See MTD 26.) In some sections the legislature

18 expressly included aliens in the definition of employee. (Id. (citing Cal. Labor Code

19 §§ 350, 2501(c), 3351).) Because the legislature did not define alien in the section relied

20 on by Plaintiffs, many of who are aliens, in their Complaint, they are not employees. (Id.)

21 Second, Defendant argues that IRCA “makes it unlawful to knowingly hire or continue to

22 employ an unauthorized alien.” (Id. (quoting Hilber v. Int’l Lining Tech., No. C 12-3 LB,

23 2012 WL 3542421, at *1 (N.D. Cal. July 24, 2012)).) Thus, according to Defendant it

24 would be absurd to confer employee status on Plaintiffs when IRCA prevents hiring aliens.

25

26
11 Additionally, the ICE manual provides that “[t]he compensation is at least $1.00 (USD) per day.” ICE
27 PBNDS, at 407 (emphasis added). Thus, assuming ICE’s manual were to preempt state law, see Chao 28 Chen, 2017 WL 6034365, at *5 (finding Voluntary Work Program does not preempt Washington
minimum wage law), the ICE manual prescribes a floor, not a ceiling for daily wage.

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1 Third, Defendant cites several Ninth Circuit cases where courts have found that prison

2 inmates are not employees for purposes of the FLSA. (Id. at 27 (citing, e.g., Burleson v.

3 State of Cal., 83 F.3d 311, 313 (9th Cir. 1996)).) Defendant also directs the Court to

4 Alvarado Guevara v. I.N.S., 902 F.2d 394, 395 (5th Cir. 1990), where the Fifth Circuit held

5 that immigration detainees, who performed various tasks for $1 a day, were not employees

6 under the FLSA. Defendant invites the Court to find the FLSA cases analogous to situation

7 at bar.

8

Before addressing Plaintiffs’ rebuttal arguments, the Court addresses the threshold

9 issue of whether Plaintiffs can qualify as employees before considering the idiosyncrasies

10 of the immigration detention situation. The threshold question is not the immigration status

11 of Plaintiffs, whether IRCA prohibits Defendant from employing them, or whether

12 immigration detainees are similar to prisoners. The threshold inquiry is much simpler: are

13 Plaintiffs employees under California Labor Code § 1194. If the answer is in the

14 affirmative, only then does the Court need to consider whether Plaintiffs’ status as aliens

15 or immigration detainees necessitates an exception to the definition of employee. If the

16 answer is in the negative, the inquiry ends.

17

1. Whether Defendant Employs Plaintiffs Pursuant to Martinez v. Combs

18

As Plaintiffs point out, the California Supreme Court addressed the definition of an

19 employee who brings an action under California Labor Code § 1194 in Martinez v. Combs,

20 49 Cal. 4th 35 (2010). (Opp’n 39.) The California Supreme Court noted that generally

21 “employees” may recover unpaid minimum and overtime wages under the terms of the

22 applicable wage order issued by the Industrial Welfare Commission (“IWC”) and

23 California courts generally defer to the IWC’s definition of employee. See id. at 60–61.

24 After discussing the history of the IWC’s definition and the common law definition, the

25 Martinez court went on to hold that “[t]o employ, then under the IWC’s definition, has

26 three alternative definitions. It means: (a) to exercise control over the wages, hours or

27 working conditions, or (b) to suffer or permit to work, or (c) to engage, thereby creating a

28 common law employment relationship. Id. at 64. The court then emphasized that the

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1 IWC’s definition of the term “employ” was in “no sense” based on federal law. Id. at 66.

2 While the IWC has expressly incorporated elements of the FLSA into select wage orders,

3 the California Supreme Court concluded that there was no reason to substitute the FLSA’s

4 “economic reality” test for definitions in wage orders regularly adopted by the IWC. Id. at

5 67.

6

Defendant argues that Plaintiffs’ reliance on Martinez is misplaced. (Reply 16.)

7 Defendant reads Martinez as inapplicable to state prison inmates and therefore similar logic

8 should extend to federal immigration detainees whose labor, wages, and conditions are

9 completely controlled by ICE12 regulations. (Id. at 16 n.5 (citing Cal. Code Reg. tit. 15,

10 § 3041.2, which sets wages for inmate wages at $0.08 to $0.13 per hour).)

11

The Court disagrees with Defendant and applies Martinez. Plaintiffs’ Complaint

12 alleges that Defendant offered $1 per day to participate in a Voluntary Work Program.

13 (Compl. ¶¶ 15, 17.) Plaintiffs list a variety of tasks actually completed by detainees

14 including, but not limited to scrubbing bathrooms, sweeping, mopping, and waxing floors,

15 and preparing and serving detainee meals. (Id. ¶ 16.) These allegations sufficiently support

16 a conclusion that Defendant controlled the hours, wages, and working conditions of

17 detainees in their Otay Mesa facility. ICE’s 2011 PBNDS reinforces such a finding. The

18 PBNDS states that “[d]etainees shall not be permitted to work in excess of 8 hours daily,

19 40 hours weekly.” ICE, PBNDS, at 407. It also provides that “[t]he compensation is at

20 least $1.00 (USD) per day.” Id. Finally, the manual requires that “[a]ll detention facilities

21 shall comply with all applicable health and safety regulations standards.” Id. at 408.

22 Assuming Defendant adheres to ICE’s policies, and there is no reason offered in the record

23

24 12 Defendant refers to the regulations as “INS regulations.” (Reply 16.) The Immigration and

25 Naturalization Service, or INS, was abolished in 2003, see Pub. L No. 107-296, § 471, 116 Stat. 2135,

2205 (2002), and its duties were divided into ICE, Customs and Border Patrol, and U.S. Citizenship and
26 Immigration Services. The Court assumes that Defendant meant to refer to ICE regulations, but Defendant

27

does not cite which specific regulations control housekeeping chores or voluntary work programs. Because the 2011 ICE PBNDS discusses both housekeeping chores and the voluntary work program and

28 applies to “Contract Detention Facilities,” see ICE PBNDS, at 405, the Court again assumes Defendant
refers to that manual.

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1 to think otherwise, then the logical conclusion is that, at a minimum, Defendant controls

2 the wages, hours, and working conditions of Plaintiffs and putative class members. As

3 such, Defendant employed Plaintiffs and putative class members for purposes of California

4 Labor Code § 1194.

5

Defendant’s argument that Martinez does not apply to Plaintiffs is not persuasive.

6 To arrive at its conclusion, Defendant compares Plaintiffs to state prison inmates, who are

7 excluded from the IWC’s scope. (See Reply 16.) Yet, the California Penal Code expressly

8 exempts inmates from the Labor Code’s minimum wage requirements. See Cal. Penal

9 Code § 2811. Indeed, the Thirteenth Amendment’s prohibition on involuntary servitude

10 does not apply to convicted criminals. The only authority Defendant cites for treating civil

11 immigration detainees the same as inmates are ICE regulations. (Reply 16.) Yet, the ICE

12 regulations only set a floor, not a ceiling. ICE PBNDS, at 405 (“The compensation is at

13 least 1.00 (USD) per day.” (emphasis added)). The Court finds such guidance insufficient,

14 especially compared to the clear statement in Penal Code § 2811, to exempt Plaintiffs from

15 Martinez.

16

2. Whether the Labor Code Expressly Includes Immigration Detainees

17

The Court turns to the Defendant’s arguments why the Labor Code should not apply

18 to Plaintiffs, even if Defendant employs detainees. Defendant first argues that the Labor

19 Code defines “employee” deliberately based on the respective chapter, part, article, or

20 section. (MTD 26.) In some Labor Code sections the legislature expressly included aliens

21 in the definition of employee. (Id. (citing Cal. Labor Code §§ 350, 2501(c), 3351).) But,

22 the legislature did not include alien detainees in the definition of employee in the statutes

23 in Plaintiffs’ Complaint and, thus, Defendant urges the Court not to read “immigrant

24 detainee” into the Labor Code. (Id.)

25

Plaintiffs counter that Labor Code § 1171.5 expresses a clear intent by the California

26 Legislature to accord all individuals “regardless of immigration status” the protections,

27 rights, and remedies under state law. Cal. Labor Code § 1171.5(a). Plaintiffs cite Incalza

28 v. Fendi North America, Inc., 479 F.3d 1005, 1009 (9th Cir. 2007), as recognizing that

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1 illegal aliens, like other California employees, cannot be terminated in violation of an

2 express or implied agreement without good cause. (Opp’n 38.) Plaintiffs argue Incalza is

3 exemplary of a multitude of decisions, both state and federal, finding that illegal aliens are

4 protected under the California Labor Code. (Id. at 38 & n.11 (collecting cases).)

5

Defendant responds that Plaintiffs are not employees so Labor Code § 1171.5 does

6 not apply to them. (Reply 16.) Defendant emphasizes that the relevant inquiry is not

7 Plaintiffs’ immigration status, but rather their detention status. (Id. at 15–16.)

8

Plaintiffs bring causes of action under Labor Code § 1194. Martinez describes the

9 applicable test to determine whether a person is engaged in employment for purposes of

10 section 1194. The Court found that Plaintiffs meet the Martinez definition and are therefore

11 engaged in employment and able to bring claims under § 1194. The Court agrees with

12 Defendant that Plaintiffs do not answer the thrust of Defendant’s argument: that the Labor

13 Code does not define employee as an alien held in a detention center. Yet, the inverse is

14 also true, Defendant has not demonstrated that the Labor Code, or any case law, specifically

15 exempts alien detainees from the Labor Code. Defendant invites comparison to Gerard v.

16 Mitchell Systems, No. CV 14-4999 DSF (SHX), 2016 WL 4479987, at *8 (C.D. Cal. Aug.

17 22, 2016), where the district court determined that cosmetology students required to

18 perform housekeeping chores without pay did not fall under the applicable IWC wage

19 order. Defendant argues that the federal ICE regulations are similar to the cosmetology

20 regulations that displaced the IWC wage order. Gerard relied on a California Court of

21 Appeal decision that explicitly held cosmetology students did not fall under the IWC. See

22 2016 WL 4479987, at *7–8 (citing Hutchison v. Clark, 67 Cal. App. 2d 155, 160–61 (Ct.

23 App. 1944)). Defendant does not cite, nor can the Court find, a similar case holding that

24 alien detainees do not fall under the IWC’s sweep. Without any similar precedent, the

25 Court declines to create an exception for civil immigration detainees removing them from

26 IWC’s purview.

27

3. Whether IRCA Prohibits Defendant from Employing Plaintiffs

28

Defendant next argues that Plaintiffs’ legal theory creates an absurdity because of

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1 IRCA. IRCA “makes it unlawful to knowingly hire or continue to employ an unauthorized

2 alien.” (MTD 26 (quoting Hilber, 2012 WL 3542421, at *1).) Thus, if civil immigration

3 detainees are unauthorized aliens then Defendant could not knowingly hire or continue to

4 employ those unauthorized aliens. (See id. at 26–27.)

5

Plaintiffs respond that the California Supreme Court has held that statutory labor

6 provisions are available to all workers “regardless of immigration status.” (Opp’n 37

7 (quoting Salas, 59 Cal. 4th at 426).) According to Plaintiffs, federal law does not preempt,

8 (id. at 38 (citing Salas, 59 Cal. 4th at 421–24)), the California Legislature’s clear intent to

9 provide unauthorized aliens all protections, rights, and remedies under state law, (id.

10 (citing, e.g., Cal. Gov. Code § 7285)).

11

The Court agrees with Defendant’s general principal that IRCA prohibits employers

12 from employing unauthorized aliens and if any detainees were unauthorized aliens then

13 Defendant would be prohibited from employing unauthorized aliens. Civil immigration

14 detention facilities house persons as their immigration status is adjudicated. Logic would

15 suggest at least some of Plaintiffs’ putative class would fall under IRCA—creating a legal

16 Gordian knot for Defendant. Two considerations allow the Court to cut the proverbial

17 knot. First, the Court has no information or allegation concerning Plaintiffs’ immigration

18 status. (See Compl. ¶¶ 27–29.) The Motion before the Court is not class certification, but

19 rather whether these particular Plaintiffs state a claim. Thus, Defendant’s argument, while

20 potentially relevant in future motions, is not dispositive here. Second, as Plaintiffs point

21 out, California law provides a remedy for unauthorized aliens. See Cal. Labor Code

22 §§ 1171.5, 1194; Salas, 59 Cal. 4th at 426. The relevant inquiry is not whether Defendant

23 violated IRCA, but whether Plaintiffs can recover under California law for past wrongs.

24 Thus, the Court finds IRCA does not control the issue of whether Plaintiffs are employees

25 under California law.

26

4. Whether Immigration Detainees Are Analogous to Prisoners

27

The Court turns to the subset of persons perhaps most similarly situated to

28 immigration detainees: state prison inmates. Defendant argues that courts have repeatedly

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1 held prison inmates are not employees for purposes of the FLSA, (MTD 27 (citing, e.g.,

2 Burleson, 83 F.3d at 313; and Hale v. Arizona, 993 F.2d 1387, 1389 (9th Cir.) (en banc),

3 cert. denied, 510 U.S. 946 (1993))), the Americans with Disabilities Act, (id. (citing Castle

4 v. Eurofresh, Inc., 731 F.3d 901, 906–08 (9th Cir. 2013)), and the Toxic Substances Control

5 Act and Clean Air Act, (id. (citing Coupar v. U.S. Dep’t of Labor, 105 F.3d 1263, 1265

6 (9th Cir. 1997))). Defendant also points the Court to Alvarado Guevara v. I.N.S., 902 F.2d

7 at 395, where the Fifth Circuit held that immigrant detainees who performed housekeeping

8 tasks were not employees under the FLSA, (MTD 27).

9

Plaintiffs’ counter that the California Supreme Court has rejected the application of

10 the common law definition of employer as well as the FLSA’s “economic reality” test.

11 (Opp’n 39 (citing Martinez, 49 Cal. 4th at 64).) Plaintiffs also argue that even if the Court

12 applied the FLSA economic reality test then they still qualify as employees. (See id. 39–

13 40.) Plaintiffs point to the Hale court’s statement, quoted with approval in Burleson, that

14 the Ninth Circuit does “not believe that prisoners are categorically excluded from the

15 FLSA.” (Id. at 39 (quoting Burleson, 83 F.3d at 313).) Thus, Plaintiffs argue that if the

16 Court were to apply the economic reality test, articulated in Bonnette v. California Health

17 and Welfare Agency, 704 F.2d 1465 (9th Cir. 1983), then civil immigration detainees would

18 be situated differently than state prisoners. (See Opp’n 40.) Plaintiffs state the single

19 determinative factor under the economic reality test is whether immigration detainees have

20 a legal obligation to work. (Id. (citing Hale, 993 F.2d at 1395).) Thus, Plaintiffs contend

21 that they, unlike prisoners, are under no obligation to work. (See id. at 40–41.) Applying

22 the remaining Bonnette factors, Plaintiffs contend that Defendant controls the hours,

23 wages, and hiring and firing of detainee workers and, therefore, Plaintiffs qualify as

24 employees under the economic reality test. (Id. at 41.)

25

In response, Defendant reiterates that Plaintiffs fail to address Alvarado Guevara

26 and Menocal. (Reply 17.) Alvarado Guevara determined that civil immigration detainees

27 were not employees for purposes of the FLSA. (Id. (citing Alvarado Guevara, 902 F.2d at

28 395).) Moreover, Defendant points to a case cited by Plaintiffs, Menocal, which reasoned

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1 that immigration detainees were similar to prisoners and concluded that immigration

2 detainees were not employees for purposes of Colorado’s minimum wage law. (Id. (citing

3 Menocal, 113 F. Supp. 3d at 1129).)

4

Defendant cites several cases where courts found prison inmates were not employees

5 for purposes of various federal statutes, like the Americans with Disabilities Act and the

6 Clean Air Act. These cases share a common precedent and common analysis framework:

7 Hale v. Arizona, 993 F.2d 1387. Defendant’s diverse array of cases relying on Hale also

8 relies on FLSA’s economic reality test employed in Hale. For example, Castle v.

9 Eurofresh, Inc., 731 F.3d at 906–08, explicitly relied on Hale to hold that an inmate was

10 not an employee. See id. at 908 (“We are equally unpersuaded by [the plaintiff’s] other

11 attempts to distinguish this case from Hale and Coupar.”). Thus, Defendant’s primary

12 argument boils down to the following proposition: courts regularly find that prison inmates

13 not employees under FLSA and the Court should apply this reasoning to immigration

14 detainees under California’s Labor Code.

15

The defect in Defendant’s argument is that California’s employment definition is

16 explicitly different from FLSA’s economic reality test. See Martinez, 49 Cal. 4th at 66–

17 67. The California Supreme Court cannot be much clearer when it said “[i]n no sense is

18 the IWC’s definition of the term ‘employ’ based on federal law.” Id. at 66. Moreover, the

19 Martinez court reiterated that it had “previously cautioned against ‘confounding federal

20 and state labor law.’” Id. at 68 (quoting Ramirez v. Yosemite Water Co., 20 Cal. 4th 785,

21 798 (1999)). And, while the IWC’s wage orders are at times patterned after federal

22 regulations, the wage orders sometimes provide greater protection than is provided under

23 federal law. Ramirez, 20 Cal. 4th at 795 (collecting cases). Defendant’s analysis does not

24 bridge the gap between California’s Labor Code and the FLSA. Put differently, Martinez

25 explicitly distinguishes the California IWC definition of “to employ” from FLSA’s

26 economic reality test. Moreover, Defendant does not offer a convincing reason to apply a

27 test disavowed by the California Supreme Court.

28

Even if the Court were to apply the economic reality test it is not clear that Plaintiffs

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1 do not qualify as employees. Hale held that inmates were not employees of the prison

2 because they “worked for programs structured by the prison pursuant to the state’s

3 requirement that prisoners work at hard labor, the economic reality is that their labor

4 belonged to the institution.” 993 F.2d at 1395. Hale distinguished prisoners from

5 employees in the free market because “[c]onvicted criminal do not have the right to freely

6 sell their labor and are not protected by the Thirteenth Amendment against involuntary

7 servitude.” Id. at 1394 (citing Draper v. Rhay, 315 F.2d 193, 197 (9th Cir.), cert. denied,

8 375 U.S. 915 (1963)).

9

Here, California Penal Code § 2700 mandates that “every able-bodied prisoner

10 imprisoned in any state prison” are required to carry out “as many hours of faithful labor

11 in each day” as prescribed by the Director of Corrections. Like the Hale court’s reasoning,

12 California inmates cannot freely sell their labor and are exempted from the Thirteenth

13 Amendment’s prohibition on involuntary servitude. Defendant has not directed the Court

14 to any similar statute for civil immigration detainees—other than ICE’s regulations. (See

15 Reply 16.) Yet, the ICE regulation clearly states, “Detainees shall be able to volunteer for

16 work assignments but otherwise shall not be required to work, except to do personal

17 housekeeping.” ICE PBNDS, at 405. The ICE regulations are voluntary, not mandatory

18 (excepting certain housekeeping tasks). Plaintiffs are not convicted criminals and are

19 accorded the protections of the Thirteenth Amendment. See supra section II.A.1.b

20 (discussing Thirteenth Amendment’s civic duty exception).

21

Defendant is correct that Plaintiffs do not directly address the holding in Alvarado

22 Guevara, 902 F.2d at 395, (Reply 17). Like here, Alvarado Guevara involved an alien

23 detention facility that offered detainees the opportunity to participate in a voluntary work

24 program for $1 per day. 902 F.2d at 395. The Fifth Circuit held that the detainees were

25 not employees under the FLSA. Id. In doing so, the court relied largely on one factor: that

26 the FLSA’s intent was to protect the “standard of living” and “general well-being” of the

27 worker in the American industry. Id. (quoting Alexander v. Sara, Inc., 559 F. Supp. 42

28 (M.D. La.), aff’d. 721 F.2d 149 (5th Cir. 1983)). Because detainees were removed from

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1 the American economy, they were not employees under FLSA.

2

While the factual situation between this case and Alvarado Guevara is similar,

3 Alvarado Guevara’s reasoning presupposes that the immigration detention facility exerts

4 nearly the same level of control over a detainee as a prison does over a prisoner. The

5 question of control is important. At common law, the employment relationship between

6 an employer and independent contractor tested the amount of control the employer exerted

7 over an independent contractor. See Vanskike v. Peters, 974 F.2d 806, 810 (7th Cir. 1992)

8 (citing Bonnette, 704 F.2d at 1470). In the prison employment inquiry, a court approaches

9 the question of control from the other direction: is there too much control over the

10 purported employee. See id. (“[T]here is obviously enough control over the prisoner; the

11 problematic point is that there is too much control to classify the relationship as one of

12 employment.”). Thus, when Hale discussed the economic reality of a prisoner’s situation

13 the overriding factor was that the relationship between prison and prisoner was

14 “penological, no pecuniary.” 993 F.2d at 1395.

15

Here, it is not clear that Defendant exerts the same level of control over Plaintiffs as

16 a prison does over a prisoner. As discussed, Plaintiffs are not convicted criminals and have

17 no obligation to work (other than the basic housekeeping tasks outlined in the PBNDS

18 manual). Consider the following hypothetical, based on the facts and allegations before

19 the Court. If all civil immigration detainees at Defendant’s Otay Mesa facility refused to

20 participate in the Voluntary Work Program then Defendant could not force detainees to

21 perform labor and services at the facility, beyond basic housekeeping tasks. Moreover, the

22 ICE regulations require the facility administrator to “ensure that staff and detainees

23 maintain a high standard of facility sanitation and general cleanliness.” ICE PBNDS, at

24 21. If detainees are unavailable for sanitation and cleanliness it is conceivable that

25 Defendant would hire persons to perform the tasks previously performed by detainees:

26 cooking meals for detainees, cutting detainees’ hair, and launder detainees’ clothing. (See

27 Compl. ¶ 14.) By comparison, a prison can control their inmates and require them, under

28 the Thirteenth Amendment and California law, to perform those tasks for well under

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1 minimum wage. Such a hypothetical illustrates that the level of control over detainees does

2 not rise to the same level described in Hale and Vanskike.

3

But, the foregoing economic reality discussion is, ultimately, not the applicable test

4 to Plaintiffs’ situation.13 Instead, the IWC wage orders, which the California Supreme

5 Court defers to, controls. See Martinez, 49 Cal. 4th at 66–67. Accordingly, the Court finds

6 Defendant’s analogy to prison employment cases does not address the critical issue in this

7 case—whether Plaintiffs meet the definition of employee under Martinez.

8

C. Whether IWC’s Wage Orders Apply to Plaintiffs

9

Defendant states that Plaintiffs’ fourth, fifth, sixth, and seventh causes of action all

10 rely, in part, on IWC Wage Orders (“WO”) 5-2001 and 15-2001. (MTD 28.) Defendant

11 argues reliance on both orders are misplaced.

12

1. Wage Order 5-2001

13

WO 5-2001 applies to the Public Housekeeping Industry and defines the industry to

14 include “any industry, business, or establishment which provides meals, housing, or

15 maintenance services whether operated as a primary business or when incidental to other

16 operations in an establishment not covered by an industry order of the Commission.” (Id.

17 (quoting Cal. Code Regs. tit. 8, § 11050(2)(P) (2017)).) The Wage Order then provides an

18 exemplary list of businesses that do not include corrections or detention facilities. (Id.

19 (citing Cal. Code Regs. tit. 8, § 11050(2)(P)(1)–(7)).) Defendant concludes that the

20 illustrative list is not remotely similar to the detention of immigration detainees and urges

21 the Court not to apply this Wage Order. In response, Plaintiffs point out that the IWC’s

22 occupations are the same as in their Complaint, e.g., janitorial services, landscaping,

23

24

25 13 Defendant also argues that an employment relationship cannot be found under the common law test

because detention for the purposes of deportation does not support a reasonable belief that an employer-
26 employee relationship existed. (Reply 16–17 (citing Bonnette, 704 F.2d at 1470; and S.G. Borello & Sons,

27

Inc. v. Dep’t of Indus. Relations, 769 P.2d 399, 404 (Cal. 1989)).) The Court acknowledges but does not make a finding as to the common law employment relationship. It does so because Martinez makes clear

28 that the IWC’s employment test is available for those persons, like Plaintiffs, who seek remedy under
California Labor Code § 1194.

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1 catering, boarding, and cleaning of facilities. (Opp’n 43.)

2

WO 5-2001’s plain language answers this issue. Defendant operates a immigration

3 detention facility. In that capacity, Plaintiffs allege that they perform tasks concerning

4 meals, housing, and maintenance. (See Compl. ¶ 14.) The wage order applies to any

5 industry or business which provides meals, housing, or maintenance services even when

6 the services is operated incidental to the business’s other operations in an establishment

7 not covered by an industry order of the IWC. § 11050(2)(P). Meals, housing, or

8 maintenance clearly are not Defendant’s primary business purpose, but those services are

9 provided incidental to its role in housing detainees.

10

Defendant argues that it is not “remotely similar” to the examples listed in the wage

11 order. (MTD 28.) The Court is not convinced the examples are so far afield as Defendant

12 contends. For example, the wage order cites “[p]rivate schools, colleges, or universities,

13 and similar establishments which provide board or lodging in addition to educational

14 facilities.” § 11050(2)(P)(5). It also offers as examples “[h]ospitals, sanitariums, rest

15 homes, child nurseries, child care institutions, homes for the aged, and similar

16 establishments offering board or lodging in addition to medical, surgical, nursing,

17 convalescent, aged, or child care.” § 11050(2)(P)(4). These two examples call to mind an

18 institution where people remain for long periods of time for a purpose (education or

19 healthcare) while receiving meals and lodging that are incidental to that purpose. While

20 the purpose of the institution may differ—education vs. nursing home vs. detention

21 facility—each institution provides essential services for those under their charge. Finally,

22 as Defendant admits, the wage order list is not exhaustive.

23

The Court declines to dismiss Plaintiffs’ Complaint to the extent it relies on Wage

24 Order 5-2001.

25

2. Wage Order 15-2001

26

Defendant also argues that WO 15-2001 should not apply because the wage order

27 only covers “all persons employed in household occupations.” (MTD 28 (citing Cal. Code

28 Regs. tit. 8, § 11050(1)).) “Household Occupations” is further defined as:

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1

[A]ll services related to the care of persons or maintenance of a

2

private household or its premises by an employee of a private householder. Said occupations shall include, but not be limited

3

to, the following: butlers, chauffeurs, companions, cooks, day

4

workers, gardeners, graduate nurses, grooms, house cleaners, housekeepers, maids, practical nurses, tutors, valets, and other

5

similar occupations.

6 (Id. at 28–29 (citing Cal. Code Regs. tit. 8, § 11050(2)(I)).) Defendant argues that it is not

7 a private household, but rather a detention facility. Plaintiffs do not address Defendant’s

8 argument.

9

The Court agrees with Defendant. It is true that Plaintiffs’ allegations include some

10 of these types of occupations like housekeepers, gardeners, and cooks. (See Compl. ¶ 14.)

11 However, WO 15-2001 does not include all cooks, gardeners, and housekeepers; it only

12 includes those services related to a “private household or its premises.” § 11050(2)(I).

13 Plaintiffs raise no argument why a private household includes a civil immigration detention

14 facility. The Court finds that Wage Order 15-2001 does not support Plaintiffs’ claims.

15 Accordingly, the Court GRANTS IN PART Defendant’s Motion and DISMISSES

16 WITHOUT PREJUDICE Plaintiffs’ claims in the fourth through seventh causes of action

17 to the extent they rely on Wage Order 15-2001.

18 IV. Derivative Claims (Third, Eleventh, and Twelfth Causes of Action)

19

Defendant argues that Plaintiffs remaining causes of action must fail to the extent

20 Plaintiffs’ substantive claims are dismissed. (MTD 29.) In addition, Defendant argues

21 Plaintiffs’ unjust enrichment merits special attention and fails regardless of whether

22 Plaintiffs’ substantive claims succeed or fail. (See id.)

23

A. Unjust Enrichment (Twelfth Cause of Action)

24

Defendant posits that Plaintiffs’ unjust enrichment claim must fail because unjust

25 enrichment is an equitable remedy and an equitable theory of recovery is barred if an

26 adequate remedy exists at law against the same person. (MTD 29 (citing Mort v. United

27 States, 86 F.3d 890, 892 (9th Cir. 1996)).) Defendant explains that courts typically find

28 unjust enrichment to be unavailable when a plaintiff’s other claims prove that adequate

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1 remedies exist. (Id. (citing, e.g., Salas v. Toyota Motor Sales, U.S.A., Inc., No. CV 15-

2 8629 FMO (Ex), 2016 WL 7486600, at *13 (C.D. Cal. Sept. 27, 2016)).) Thus, Defendant

3 argues that Plaintiffs’ statutory causes of action under the TVPA and the California Labor

4 Code all seek redress for the same injuries as Plaintiffs’ unjust enrichment claim.

5 Defendant urges the Court to limit Plaintiffs’ unjust enrichment claim accordingly.

6

Plaintiffs counter that Federal Rules of Civil Procedure 8(a)(3) and 8(d)(2) allow

7 them to plead alternative forms of relief. (Opp’n 31.) Furthermore, Plaintiffs point the

8 Court to Astiana v. Hain Celestial Group, Inc., 783 F.3d 753, 762 (9th Cir. 2015), where

9 the Ninth Circuit determined that a unjust enrichment claim should not be dismissed as

10 duplicative of a plaintiff’s other claims according to Rule 8(d)(2). (Opp’n 31.)

11

The issue here falls squarely under Astiana. In California, there is no “standalone

12 cause of action for ‘unjust enrichment.’” Astiana, 783 F.3d at 762 (citing Durell v. Sharp

13 Healthcare, 183 Cal. App. 4th 1350, 1370 (Ct. App. 2010); and Jogani v. Superior Court,

14 165 Cal. App. 4th 901, 911 (Ct. App. 2008)). California state courts are split on whether

15 California law recognizes a cause of action for unjust enrichment. See McMillan v. Lowe’s

16 Home Ctrs., LLC, No. 15-CV-695-KJM-SMS, 2016 WL 232319, at *6 (E.D. Cal. Jan. 20,

17 2016) (citing Paskenta Band of Nomlaki Indians v. Crosby, No. 15-00538, 2015 WL

18 4879650, at *6 (E.D. Cal. Aug. 14, 2015)). However, Astiana interpreted California law

19 to recognize that an unjust enrichment claim may be construed as an action in quasi-

20 contract. 783 F.3d at 762. The Astiana court went on to hold that where a plaintiff states

21 a claim for relief under a quasi-contract cause of action that cause should not be dismissed

22 as “duplicative or superfluous” to the plaintiff’s other claims. Id. (citing Fed. R. Civ. P.

23 8(d)(2)).

24

“To allege unjust enrichment as an independent cause of action, a plaintiff must

25 show that the defendant received and unjustly retained a benefit at the plaintiff’s expense.”

26 ESG Capital Partners, LP v. Stratos, 828 F.3d 1023, 1038–39 (9th Cir. 2016) (citing

27 Lectrodryer v. SeoulBank, 77 Cal. App. 4th 723, 726 (Ct. App. 2000)). Here, Plaintiffs

28 allegations sufficiently state a claim for unjust enrichment or quasi-contract. Defendant

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1 received the value of Plaintiffs’ labor and allegedly did not adequately compensate

2 Plaintiffs. The Court DENIES IN PART Defendant’s Motion as to Plaintiffs’ twelfth

3 cause of action; however, the Court qualifies its holding as follows. Astiana and Federal

4 Rule of Civil Procedure 8(d)(2) allow Plaintiffs to plead alternative causes of action, but

5 the Court understands that Plaintiffs cannot recover twice for the same injury. Gen. Tel.

6 Co. of the Nw., Inc. v. Equal Employment Opportunity Comm’n, 446 U.S. 318, 333 (1980)

7 (citation omitted) (“It also goes without saying that the courts can and should preclude

8 double recovery by an individual.”).

9

B. Remaining Derivative Claims (Third and Eleventh Causes of Action)

10

Defendant argues that Plaintiffs’ derivative causes of action—California Unfair

11 Competition Law and Negligence—should be dismissed as they rely entirely on violations

12 of the federal and California TVPA and California Labor Code. (MTD 29.) Because

13 Plaintiffs claims survive this Motion, the Court will not dismiss Plaintiffs’ derivative

14 claims. Thus, the Court DENIES IN PART Defendant’s Motion as to Plaintiffs’ third and

15 eleventh causes of action.

16

CONCLUSION

17

In light of the following, the Court GRANTS IN PART and DENIES IN PART

18 Defendant’s Motion to Dismiss, (ECF No. 18). Additionally, the Court LIFTS the stay on

19 these proceedings.

20

IT IS SO ORDERED.

21 Dated: May 14, 2018 22

23

24

25

26

27

28

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1 J. MARK WAXMAN (SBN 58579)

2

mwaxman@foley.com NICHOLAS J. FOX (SBN 279577)

3 nfox@foley.com

FOLEY & LARDNER LLP

4 3579 Valley Centre Drive, Suite 300

5

San Diego, CA 92130 T: 858.847.6700 // F: 858.792.6773

ROBERT L. TEEL (SBN 127081) lawoffice@rlteel.com
LAW OFFICE OF ROBERT L. TEEL 1425 Broadway, Mail Code: 20-6690 Seattle, Washington 98122 T: 866. 833.5529 // F:855.609.6911

6 EILEEN R. RIDLEY (SBN 151735)

7

eridley@foley.com ALAN R. OUELLETTE (SBN 272745)

8 aouellette@foley.com

GEOFFREY RAUX (pro hac vice) graux@foley.com
FOLEY & LARDNER LLP 111 Huntington Ave., Suite 2500

9

FOLEY & LARDNER LLP 555 California Street, Suite 1700

Boston, MA 02199-7610 T: 617.342.4000 // F: 617.342.4001

10

San Francisco, CA 94104-1520 T: 415.434.4484 // F: 415.434.4507

11 Attorneys for Plaintiffs SLYVESTER OWINO, 12 JONATHAN GOMEZ, and the Proposed Class(es)

13

UNITED STATES DISTRICT COURT

14

SOUTHERN DISTRICT OF CALIFORNIA

15 SLYVESTER OWINO and JONATHAN ) Case No. 17-CV-01112-JLS-NLS

GOMEZ, on behalf of themselves and all )

16 others similarly situated, 17
vs. 18

Plaintiffs,

) )

CLASS ACTION

) ) )

FIRST AMENDED COMPLAINT FOR:

CORECIVIC, INC., 19

Defendant.

) ) )

(1) FORCED LABOR AND VIOLATION OF THE

20

)

TRAFFICKING VICTIMS

)

PROTECTION ACT,

21 22

) ) ) )

18 U.S.C. § 1589, et seq.; (2) FORCED LABOR AND
VIOLATION OF THE

23

)

CALIFORNIA TRAFFICKING

24

) ) )

VICTIMS PROTECTION ACT, CAL. CIVIL CODE § 52.5;

25

26

27

28

Case No. 17-CV-01112-JLS-NLS

Case 3:17-cv-01112-JLS-NLS Document 67 Filed 10/12/18 PageID.1008 Page 2 of 38

1 CORECIVIC, INC.,

2

Counter-Claimant,

3

) ) ) ) )

(3) UNFAIR COMPETITION, CAL. BUS. & PROF. CODE §§ 17200, et seq.;
(4) VIOLATIONS OF THE CAL.

4

vs.

) )

5 6 7

SLYVESTER OWINO and JONATHAN GOMEZ, on behalf of themselves and all others similarly situated,
Counter-Defendants.

) ) ) ) )

)

8

) )

LABOR CODE; (5) VIOLATION OF CAL.
INDUSTRIAL WELFARE COMMISSION ORDERS; (6) NEGLIGENCE; (7) UNJUST ENRICHMENT; AND (8) PRIVATE ATTORNEY GENERAL ACT, CAL. LABOR

9 10

)

CODE §§ 2698, et seq.

) )

DEMAND FOR JURY TRIAL

)

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Case No. 17-CV-01112-JLS-NLS

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1

INTRODUCTION

2

1. Plaintiffs Sylvester Owino (“Owino”) and Jonathan Gomez (“Gomez”)

3 (individually referred to herein as a “Plaintiff” and collectively as the “Plaintiffs”),

4 individually and on behalf of all other persons similarly situated, by their undersigned

5 attorney(s), for their complaint against Defendant, CoreCivic, Inc. (“CoreCivic” or

6 “Defendant”) files this lawsuit to stop CoreCivic’s engagement/implementation of illegal

7 practices and to obtain damages and restitution from CoreCivic for said practices of

8 forcing/coercing detainees to clean, maintain, and operate CoreCivic’s detention facilities

9 in violation of both federal and state human trafficking and labor laws. Plaintiffs allege

10 the following based upon personal knowledge as to themselves and their own acts, and

11 information and belief as to all other matters, and based upon, inter alia, the investigation

12 conducted by and through their attorneys, which includes, without limitation, a review of

13 Defendant’s public documents, announcements, and wire and press releases published by

14 and regarding CoreCivic, and information readily obtainable on the internet.

15

JURISDICTION AND VENUE

16

2. This Court has federal question jurisdiction because this case arises out of

17 violations of the federal Trafficking in Victims Protection Act under 18 U.S.C. §§ 1589,

18 et seq. (the “TVPA”).

19

3. This Court has original jurisdiction pursuant to the Class Action Fairness

20 Act, 28 U.S.C. § 1332(d) because:

21

a. the amount in controversy exceeds $5,000,000, exclusive of interest

22

and costs;

23

b. the proposed Class consists of more than 100 Class Members; and

24

c. none of the exceptions under the subsection apply to this action.

25

4. This Court has supplemental jurisdiction over the violations of the California

26 Trafficking in Victims Protection Act, Cal. Civil Code § 52.5 (“CTVPA”), Cal. Bus. &

27 Prof. Code §§ 17200, et seq. (“UCL”), the Private Attorney General Act, Cal. Labor

28 Code §§ 2698, et seq. (“PAGA”), and the California Labor Code and California Industrial

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1 Welfare Commission Wage Orders, as well as other state statutory and common law

2 claims pursuant to 28 U.S.C. § 1367 (supplemental jurisdiction over pendant state law

3 claims).

4

5. This Court has personal jurisdiction over Defendant because:

5

a. CoreCivic is registered to, and in fact does, conduct business in

6

California; and

7

b. CoreCivic has sufficient minimum contacts in California, and

8

c. CoreCivic has intentionally availed itself by participating in the

9

markets within California through the sale and provision of its

10

services.

11

6. Venue is proper in this District under 28 U.S.C. § 1391 because:

12

a. Plaintiffs are residents of, and domiciled in, this District,

13

b. Defendant conducts substantial business in this District, and

14

c. a substantial part of the events giving rise to Plaintiffs’ claims alleged

15

herein occurred in this District.

16

PARTIES

17

7.

Plaintiff Sylvester Owino is a resident of the County of San Diego, in

18 the State of California. Mr. Owino was a civil immigration detainee who worked at

19 CoreCivic's Otay Mesa Detention Center at various times from November 7, 2005

20 through March 9, 2015.

21

8.

Plaintiff Jonathan Gomez is a resident of the County of San Diego, in

22 the State of California. Mr. Gomez was a civil immigration detainee who worked at

23 CoreCivic's Otay Mesa Detention Center at various times from June 14, 2012 through

24 September 18, 2013.

25

9. Defendant CoreCivic, Inc. is a Maryland corporation with its principal place

26 of business at 10 Burton Hills Blvd., Nashville, Tennessee 37125.

27

SUMMARY AND COMMON FACTUAL ALLEGATIONS

28

10. Plaintiffs are former civil immigration detainees who bring this proposed

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1 class action lawsuit on behalf of all civil immigration detainees who were incarcerated

2 and forced to work by CoreCivic, a for-profit corporation engaged in the business of

3 owning and operating detention facilities and prisons from January 1, 2004 to the opt-out

4 date, inclusive (the “Class Period”).

5

11. CoreCivic owns and operates detention facilities around the country,

6 including the Otay Mesa Detention Center, a 1,492 bed detention center located in Otay

7 Mesa, California (the “Otay Facility”). CoreCivic unlawfully forces, coerces, and uses

8 detainees to clean, maintain, and operate their facility. In some instances CoreCivic pays

9 detainees $1 per day, and in other instances detainees are not compensated with wages at

10 all, for their labor and services. In 2016, CoreCivic reported $1.79 billion in total

11 revenues.

12

12. Plaintiffs seek injunctive relief requiring CoreCivic to implement and

13 maintain policies and practices to comply with all applicable laws and regulations

14 designed to protect human rights, prevent and remedy these types of unlawful trafficking

15 and forced labor practices, and protect detainees' employment rights, well-being and

16 safety, as well as restitution, damages, statutory remedies, disgorgement, and other

17 further relief this Court may deem proper.

18

13. Plaintiffs also seek to recover, inter alia, on their own behalf and on behalf

19 of all others similarly situated, the difference between the fair value of the labor or work

20 they performed and what they were paid (i.e., the $1 per day). CoreCivic violated federal

21 law prohibiting forced labor when CoreCivic forced, coerced, and used Plaintiffs and

22 others to work for no pay, cleaning the “pods” where they were housed, and cleaning,

23 maintaining, and operating other areas of the CoreCivic detention facilities under threat

24 of punishment, including lockdown and solitary confinement.

25

14. Plaintiffs were engaged, suffered, and permitted to work by CoreCivic at,

26 without limitation, the Otay Facility. CoreCivic controlled the wages, hours, and

27 working conditions of Plaintiffs. In the course of their labor and employment by

28 CoreCivic, Plaintiffs and other putative class members, without limitation:

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1

a. scrubbed bathrooms, showers, toilets, and windows;

2

b. cleaned and maintained CoreCivic’s on-site medical facility;

3

c. cleaned the medical facility’s toilets, floors, and windows;

4

d. cleaned patient rooms and medical staff offices;

5

e. swept, mopped, stripped, and waxed the floors of the medical facility;

6

f. washed medical facility laundry;

7

g. swept, mopped, stripped, and waxed floors throughout the facility;

8

h. washed detainee laundry;

9

i. prepared and served detainee meals;

10

j. assisted in preparing catered meals for law enforcement events

11

sponsored by CoreCivic;

12

k. performed clerical work for CoreCivic;

13

l. prepared clothing for newly arriving detainees;

14

m. provided barber services to detainees;

15

n. ran and managed the law library;

16

o. cleaned intake areas and solitary confinement unit;

17

p. cleaned and prepared vacant portions of the facility for newly arriving

18

detainees;

19

q. cleaned the facility’s warehouse; and

20

r. maintained the exterior and landscaping of the CoreCivic buildings.

21

15. Detainees who “volunteered” for such work were paid $1 per day. The

22 foregoing labor and services for which detainees were paid $1 per day are referred to

23 herein as the “Dollar-A-Day Work.” In addition, Plaintiffs and detainees are/were only

24 allowed to spend their $1 per day at the CoreCivic “company store” or commissary.

25

CoreCivic’s Unlawful Labor and Human Trafficking Practices

26

16. In addition to the Dollar-A-Day Work, CoreCivic forced and coerced

27 Plaintiffs and members of the putative class, to clean, maintain, scrub, sweep, and mop

28 floors, bathrooms, showers, toilets, and windows for no pay at all, not only in their living

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1 areas (“pods”), but also throughout the other interior and exterior areas of CoreCivic’s

2 detention facilities by threatening to punish not only those who refused to work, but also

3 other detainees in the pods with confinement, physical restraint, substantial and sustained

4 restriction, deprivation, and violation of their liberty, and solitary confinement, all with

5 the intent to obtain forced labor or services and as punishment for any refusal to work

6 causing Plaintiffs severe mental pain and suffering. The foregoing forced and coerced

7 labor and services under threat of punishment, confinement, physical restraint, and

8 deprivation of liberty for which Detainees were paid nothing at all are referred to herein

9 as the “Forced Labor.”

10

17. Defendant paid Plaintiffs and all its other civil immigration detainee-

11 employees one dollar ($1) per day for Dollar-A-Day Work and nothing at all for their

12 Forced Labor and acted with malice, oppression, fraud, and duress in committing the

13 foregoing acts. As a result of Defendant’s violations of the law, CoreCivic was unjustly

14 enriched.

15

Federal and State Trafficking Victims Protection Acts

16

18. As a result of the foregoing, Defendant violated federal law prohibiting

17 forced labor. 18 U.S.C. § 1589. In addition, Defendant violated California law prohibit

18 human trafficking and forced labor. Civ. Code § 52.5. Plaintiffs seek actual damages,

19 compensatory damages, punitive damages, treble damages, injunctive relief, and

20 mandatory restitution on their own behalf and on behalf of all Defendant’s other similarly

21 situated detainees, as well as attorneys’ fees and costs, pursuant to 18 U.S.C. §§ 1593 and

22 1595 and Cal. Civ. Code § 52.5(a). Plaintiffs also seeks the greater of treble damages or

23 ten thousand ($10,000) pursuant to Cal. Civ. Code § 52.5(b).

24

19. Plaintiffs and the putative class members have suffered, and are continuing

25 to suffer, real-world, actual, concrete harm by, without limitation, Defendant's use of

26 Forced Labor and human trafficking, violations of applicable labor laws and orders,

27 unfair and unlawful business practices, and negligence. The putative class members are

28 presently facing the same imminent real, actual, and concrete harm and injury from

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1 CoreCivic’s illegal conduct and its failure to redress the harm.

2

20. The total number of civil immigration detainees who were subjected to

3 Defendant's Forced Labor and human trafficking practices, and Defendant's illegal

4 Dollar-A-Day Work practices is currently unknown, but these illegal practices appear

5 endemic to the Core-Civic operations on a California-wide, and indeed a nationwide,

6 scale. However, Core-Civic can provide the information regarding how many civil

7 immigration detainees were subjected to these illegal practices through its solitary

8 confinement and detention logs and also through its business records.

9

21. CoreCivic has been wrongly and unjustly enriched by its use of Forced

10 Labor and human trafficking practices, Dollar-A-Day Work practices, unlawful business

11 practices, and the retention of such revenues and profits resulting therefrom is grossly

12 unfair. CoreCivic should not be allowed to retain the revenues, proceeds, profits and

13 other benefits conferred upon it by Plaintiffs and the putative class members.

14

22. Defendant’s unlawful conduct complained of herein constitutes a continuing

15 pattern and course of conduct as opposed to unrelated discrete acts. Defendant’s pattern

16 and course of conduct has continued from November 2, 2004 until the present and is a

17 continuing violation since that date. Neither Plaintiffs nor the Class Members were/are

18 aware of or discovered their legal rights or claims, or could have discovered with any

19 amount of reasonable diligence, the true facts regarding their claims until the present.

20 Plaintiffs and the Class Members were/are ignorant of the true facts regarding

21 Defendant’s unlawful and illegal acts, and lacked the ability to have earlier discovered

22 the true facts, until the present due to false statements made by Defendant regarding the

23 legality of their False Labor and Dollar-A-Day Work practices. Discovery of the true

24 facts did not actually occur, and could not have occurred, until after any applicable

25 statutes of limitations.

26

The For-Profit Detention Industry

27

23. Throughout the country, undocumented individuals lacking legal permission

28 to enter or remain in the United States are typically brought to a detention facility and

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1 placed in removal proceedings in front of an immigration judge. These individuals may

2 include refugees seeking asylum. Individuals detained at the border are only released on a

3 case-by-case basis by the authority of U.S. Bureau of Immigration and Customs

4 Enforcement (“ICE”) officials.

5

24. ICE uses a combination of publicly and privately owned and operated

6 facilities to detain immigrants. Those in detention include immigrants in the country

7 illegally, asylum seekers, green card holders, and those awaiting immigration hearings

8 (referred to herein as a “detainee” or civil immigration detainee”). Nine (9) of the

9 country’s ten (10) largest immigration detention facilities are operated by private

10 companies like CoreCivic, and they hold about two-thirds of the civil immigration

11 detainees in a system that currently keeps more than 31,000 people in custody on a

12 typical day.

13

25. The for-profit civil immigration detention business is worth over $3 billion

14 dollars a year. While some centers are located in border areas, others are far from the

15 border because deportation officers arrest migrants living in the interior of the country as

16 well. Although they have denied lobbying, private prison corporations such as Core-

17 Civic specifically target legislators over immigration “reform.” The companies' success

18 in lobbying for immigrant detention has been so successful that by 2015, CoreCivic

19 derived 51% of its revenue from federal contracts.

20

26. In March of 2017 it was announced that the United States' civil immigrant

21 detention capacity would be increased by over four-hundred fifty per cent (450%). This

22 signals the largest increase in immigrant detention since World War II and is, in essence,

23 a “get into jail and work for free card” from which Defendant derives nearly $1 billion

24 dollars a year in revenue.

25

PLAINTIFF’S EXPERIENCE

26

27. Plaintiff Sylvester Owino is a resident of the county San Diego, in the State

27 of California. Mr. Owino was a detainee at CoreCivic's Otay Facility from November 7,

28 2005 through March 9, 2015. During the Class Period, Mr. Owino performed Dollar-A-

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1 Day Work for $1 per day in an unsafe work environment and was forced and coerced to

2 perform Forced Labor at, without limitation, the Otay Facility.

3

28. Plaintiff Owino was employed by CoreCivic to provide labor and services in

4 an unsafe working environment cleaning and maintaining CoreCivic's on-site medical

5 facility without personal protective equipment (“PPE”). PPE is special equipment worn

6 to create a barrier between health care workers and germs. This barrier reduces the

7 chance of touching, being exposed to, and spreading germs and helps protect people from

8 infections caused by contact with blood or other bodily fluids.

9

29. Plaintiff Jonathan Gomez is a resident of San Diego, California and the

10 county of San Diego who formerly was a detainee at the Otay Facility from June 14,

11 2012 through September 18, 2013. During the Class Period, Mr. Gomez performed

12 Dollar-A-Day Work for $1 per day in an unsafe work environment and was forced and

13 coerced to perform Forced Labor at the Otay Facility.

14

CLASS ACTION ALLEGATIONS

15

30. Plaintiffs bring this action pursuant to Federal Rule of Civil Procedure 23 on

16 behalf of themselves and all members of the “Forced Labor Class,” preliminarily defined

17 as:

18

The Nationwide Forced Labor Class

19

All civil immigration detainees who performed Forced Labor

20

uncompensated work for CoreCivic at any Detention Facility owned or operated by it between November 2, 2004 to the applicable opt-out date,

21

inclusive.

22 Such persons are collectively referred to herein individually as a “Nationwide Forced

23 Labor Class Member” and collectively as the “Nationwide Forced Labor Class” or

24 “Nationwide Forced Labor Class Members.”

25

The California Forced Labor Class

26

All civil immigration detainees who performed Forced Labor

27

uncompensated work for CoreCivic at any Detention Facility located in California owned or operated by it at time during the period from November

28

2, 2004 to the applicable op-out date, inclusive.

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1 Such persons are collectively referred to herein individually as a “California Forced

2 Labor Class Member” and collectively as the “California Forced Labor Class” or

3 “California Forced Labor Class Members.”

4

The California Labor Law Class

5

All civil immigration detainees who performed Dollar-A-Day Work for

6

CoreCivic and were paid one dollar ($1) per day at any Detention Facility located in California owned or operated by it at any time between November

7

2, 2004 to the applicable op-out date, inclusive.

8 Such persons are collectively referred to herein individually as a “California Labor Law

9 Class Member” and collectively as the “California Labor Law Class.”

10

31. The Classes described in this First Amended Complaint (“FAC”) may be

11 jointly referred to as the “Class” and proposed Members of the Classes may be jointly

12 referred to as “Class Members.”

13

32. Excluded from the Class are the Defendant herein, law enforcement agencies

14 and personnel, members of the foregoing persons’ immediate families and their legal

15 representatives, heirs, successors, or assigns, and any entity or person in which Defendant

16 has or had a controlling or supervisory interest or control over at all relevant times.

17

33. Plaintiffs satisfy the numerosity, commonality, typicality, adequacy, and

18 predominance prerequisites for suing as representative parties pursuant to Rule 23 of the

19 Federal Rules of Civil Procedure.

20

34. Numerosity. The exact number of proposed Class Members is currently not

21 known, but is believed to consist of thousands if not tens of thousands of former or

22 current CoreCivic detainees who have been forced and/or coerced to work, whether for

23 one dollar ($1) per day or no pay whatsoever, making joinder of each individual Class

24 Member impracticable.

25

35. Commonality. Common questions of law and fact exist for the proposed

26 Class’ claims and predominate over questions affecting only individual Class Members.

27 Common questions include, without limitation:

28

a. whether Plaintiffs and the Class Members were entitled to the

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1

protections of the California labor laws and California Industrial

2

Welfare Commission wage orders;

3

b. whether Plaintiffs and the Class Members performed compensable

4

work;

5

c. whether Plaintiffs and the Class Members were paid $1 per day for

6

their labor;

7

d. whether forcing and coercing Plaintiffs and the Class Members to

8

perform Forced Labor constitutes a violation of each Class Member’s

9

TVPA and CTVPA, human rights, California labor law and California

10

Industrial Welfare Commission wage orders, and other statutory and

11

common law rights as set forth herein;

12

e. what monitoring, limiting, and supervisory procedures and practices

13

should CoreCivic be required to implement to ensure ongoing

14

protection of each Class Member’s TVPA, CTVPA, California labor

15

law, and other legal rights and as part of any prohibitory and

16

mandatory injunctive relief ordered by the Court;

17

f. whether CoreCivic acted deliberately or negligently by unlawfully,

18

without limitation:

19

i.

failing to adequately protect Class Members TVPA, CTVPA,

20

and California labor law rights

21

ii.

forcing and coercing detainees to perform Forced Labor;

22

iii.

failing to follow applicable laws; and

23

iv.

failing to maintain adequate monitoring, limiting, and

24

supervisory procedures, policies, and practices; and

25

g. whether Plaintiffs and Class Members may obtain damages,

26

restitution, disgorgement, declaratory, and prohibitory and mandatory

27

injunctive relief against CoreCivic.

28

36. Typicality. Plaintiffs’ claims are typical of the claims of the proposed Class

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1 because, among other things, Plaintiffs and Class Members legal claims all arise from

2 CoreCivic’s unlawful practices, and Plaintiffs and Class members sustained similar

3 injuries and statutory damages as a result of CoreCivic’s uniform illegal conduct.

4

37. Adequacy. Plaintiffs will fairly and adequately protect the interests of the

5 Class. Their interests do not conflict with Class Members’ interests and they have

6 retained counsel competent and experienced in complex and class action litigation to

7 vigorously prosecute this action on behalf of the Class. In addition to satisfying the

8 prerequisites of FRCP 23(a), Plaintiffs satisfy the requirements for maintaining a class

9 action under FRCP 23(b)(2) and (3).

10

38. Common questions of law and fact predominate over any questions affecting

11 only individual Class Members and a Class action is superior to individual litigation

12 because:

13

a. the amount of damages available to individual Plaintiffs are

14

insufficient to make litigation addressing CoreCivic’s conduct

15

economically feasible in the absence of the Class action procedure;

16

b. individualized litigation would present a potential for inconsistent or

17

contradictory judgments, and increases the delay and expense to all

18

parties and the court system; and

19

c. the Class action device presents far fewer management difficulties and

20

provides the benefits of a single adjudication, economy of scale, and

21

comprehensive supervision by a single court.

22

39. In addition, Class certification is appropriate under FRCP Rule 23(b)(1) or

23 (b)(2) because:

24

a. the prosecution of separate actions by the individual Members of the

25

proposed Class would create a risk of inconsistent or varying

26

adjudication which would establish incompatible standards of conduct

27

for CoreCivic;

28

b. the prosecution of separate actions by individual Class Members

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1

would create a risk of adjudications with respect to them which

2

would, as a practical matter, be dispositive of the interests of other

3

Class Members not parties to the adjudications, or substantially impair

4

or impede their ability to protect their interests; and

5

c. CoreCivic has acted or refused to act on grounds that apply generally

6

to the proposed Class, thereby making final injunctive relief or

7

declaratory relief described herein appropriate with respect to the

8

proposed Class as a whole.

9

FIRST CAUSE OF ACTION

10

Violation of the Trafficking Victims Protection Act

11

18 U.S.C. §§ 1589, et seq.

12

(On Behalf of the Plaintiffs Individually and the Class)

13

40. Plaintiffs and Class Members incorporate by reference the foregoing

14 allegations.

15

41. 18 U.S.C. § 1589(a) of the Federal Trafficking Victims Protection Act

16 provides that:

17 “Whoever knowingly provides or obtains the labor or services of a person by any one

18 of, or by any combination of, the following means — (1) by means of force, threats of

19

force, physical restraint, or threats of physical restraint to that person or another person; (2) by means of serious harm or threats of serious harm to that person or

20 another person; (3) by means of the abuse or threatened abuse of law or legal process;

21

or (4) by means of any scheme, plan, or pattern intended to cause the person to believe that, if that person did not perform such labor or services, that person or another

22 person would suffer serious harm or physical restraint, shall be punished as provided

23 under [18 U.S.C. § 1589] subsection (d).”

24

42. Plaintiffs and Class Members were forced, coerced, and made to perform

25 labor and services, including Forced Labor, for CoreCivic by means of:

26

a. force, threats of force, physical restraint and threats of physical

27

restraint;

28

b. serious harm and threats of serious harm; and

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1

c. abuse and threatened abuse of law or legal process to Plaintiffs and

2

the Class Members, and by means of a scheme, plan, pattern, and

3

uniform policy intended to cause Plaintiffs and the Class to believe

4

that, if they did not perform such labor or services, that they would

5

suffer serious harm and/or physical restraint.

6 CoreCivic was unjustly enriched by the unlawful practice of forcing and coercing

7 Plaintiffs and the Class Members to perform uncompensated Forced Labor through

8 human trafficking. By exploiting these unlawful practices CoreCivic materially and

9 significantly reduced its labor costs and expenses, in addition to increasing its profits.

10

43. Plaintiffs and the Class Members are victims of Forced Labor under

11 18 U.S.C. § 1589. CoreCivic committed the illegal and unlawful offense(s) of Forced

12 Labor against the Plaintiffs and the Class Members under 18 U.S.C. § 1589, et seq.

13 CoreCivic knowingly and financially benefitted from implementing/participating in a

14 venture, plan, scheme, pattern of conduct, and practice CoreCivic knew, or should have

15 known, was unlawful and in violation of Forced Labor laws under to 18 U.S.C. § 1589.

16 Plaintiffs and the Class Members are entitled to, without limitation, the remedies set forth

17 in 18 U.S.C. § § 1593 and 18 U.S.C. § 1595(a).

18

44. 18 U.S.C. § 1593 states:

19

(a) “Notwithstanding section 3663 or 3663A, and in addition to any other

20

civil or criminal penalties authorized by law, the court shall order restitution for any offense under this chapter.”

21

(b)

22

(1) “The order of restitution under this section shall direct the

23

defendant to pay the victim (through the appropriate court mechanism) the full amount of the victim’s losses, as determined by

24

the court under paragraph (3) of this subsection.”

25

(2) “An order of restitution under this section shall be issued and enforced in accordance with section 3664 in the same manner as an

26

order under section 3663A.”

27

(3) “As used in this subsection, the term “full amount of the victim’s losses” has the same meaning as provided in section 2259(b)(3) and

28

shall in addition include the greater of the gross income or value to the defendant of the victim’s services or labor or the value of the victim’s

labor as guaranteed under the minimum wage and overtime

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1

guarantees of the Fair Labor Standards Act (29 U.S.C. § 201 et seq.).”

2

(4) “The forfeiture of property under this subsection shall be

governed by the provisions of section 413 (other than subsection (d)

3

of such section) of the Controlled Substances Act (21 U.S.C. § 853).”

4

(c) “As used in this section, the term “victim” means the individual harmed

as a result of a crime under this chapter, including, in the case of a victim

5

who is under 18 years of age, incompetent, incapacitated, or deceased, the

legal guardian of the victim or a representative of the victim’s estate, or

6

another family member, or any other person appointed as suitable by the

court, but in no event shall the defendant be named such representative or

7

guardian.”

8

45. 18 U.S.C. § 1595(a) states:

9

10

c“iAvinl

individual who action against

is a victim of a violation of this the perpetrator (or whoever

chapter may bring a knowingly benefits,

financially or by receiving anything of value from participation in a venture

11

which that person knew or should have known has engaged in an act in

violation of this chapter) in an appropriate district court of the United States

12

and may recover damages and reasonable attorneys fees.”

13

46. Accordingly, Plaintiffs and the Class Members respectfully request that the

14 Court issue declaratory relief declaring CoreCivic’s practice(s) involving Forced Labor

15 and human trafficking – forcing and coercing Plaintiffs and Class Members to perform

16 labor and services under threat of confinement, physical restraint, substantial and

17 sustained restriction, deprivation, solitary confinement - to be illegal and unlawful.

18

47. Plaintiffs and Class Members request the Court to grant an injunction

19 requiring CoreCivic to cease its unlawful practices described herein and enjoin CoreCivic

20 from forcing and coercing Plaintiffs and the Class Members to perform labor and services

21 under threat of confinement, physical restraint, substantial and sustained restriction,

22 deprivation, and solitary confinement.

23

48. Plaintiffs and the Class Members request the Court to enter an injunction in

24 connection with the foregoing ordering that CoreCivic:

25

a. engage a third party ombudsman as well as internal compliance

26

personnel to monitor, conduct inspection, and audit CoreCivic’s

27

safeguards and procedures on a periodic basis;

28

b. audit, test, and train its internal personnel regarding any new or

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1

modified safeguards and procedures;

2

c. conduct regular checks and tests on its safeguards and procedures;

3

d. Periodically conduct internal training and education to inform internal

4

personnel how to identify violations when they occur and what to do

5

in response; and

6

e. periodically and meaningfully educate its personnel and detainees

7

about their labor and human trafficking rights through, without

8

limitation, educational programs and classes upon detention, as well

9

as any steps that must be taken to safeguard such rights.

10

49. Plaintiffs and the Class Members have suffered damages in an amount to be

11 determined at trial. Plaintiffs and the Class Members request the Court enter an order

12 pursuant to 18 U.S.C. § 1595(a) awarding Plaintiffs and the Class Members

13 compensatory and punitive damages.

14

50. Plaintiffs and the Class Members request this Court to enter an order

15 pursuant to 18 U.S.C. § 1593 awarding Plaintiffs and the Class Members mandatory

16 restitution in addition to the recovery of their reasonable attorneys’ fees they are entitled

17 to recover pursuant to 18 U.S.C. § 1595(a).

18

51. Plaintiffs and the Class Members also seek pre-and-post-judgment interest

19 and attorneys’ fees and costs as allowed by statute and as they are entitled to recover

20 pursuant to 18 U.S.C. § 1595(a).

21

SECOND CAUSE OF ACTION

22

Violation of the California Trafficking Victims Protection Act

23

Cal. Civ. Code § 52.5

24 (On Behalf of the Plaintiffs Individually and the California Forced Labor Class)

25

52. Plaintiffs and California Forced Labor Class Members incorporate by

26 reference the foregoing allegations.

27

53. Cal. Civ. Code § 52.5 - The California Trafficking Victims Protection Act

28 provides, inter alia, that:

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1

(a) “A victim of human trafficking, as defined in Section 236.1 of the Penal

Code, may bring a civil action for actual damages, compensatory damages,

2

punitive damages, injunctive relief, any combination of those, or any other

appropriate relief. A prevailing plaintiff may also be awarded attorney's

3

fees and costs.”

4

(b) “In addition to the remedies specified herein, in any action under

subdivision (a), the plaintiff may be awarded up to three times his or her

5

actual damages or ten thousand dollars ($10,000), whichever is greater. In

addition, punitive damages may also be awarded upon proof of the

6

defendant's malice, oppression, fraud, or duress in committing the act of

human trafficking.”

7

8

54. Cal. Penal Code § 236.1 provides:

9

(a) “Any person who deprives or violates the personal liberty of another with

the intent to obtain forced labor or services, is guilty of human

10

trafficking and shall be punished by imprisonment in the state prison for 5,

8, or 12 years and a fine of not more than five hundred thousand dollars

11

($500,000).”

12

(b) “Any person who deprives or violates the personal liberty of another

with the intent to effect or maintain a violation of Section 266, 266h, 266i,

13

266j, 267, 311.1, 311.2, 311.3, 311.4, 311.5, 311.6, or 518 is guilty of

human trafficking and shall be punished by imprisonment in the state prison

14

for 8, 14, or 20 years and a fine of not more than five hundred thousand

dollars ($500,000).”

15

16

55. Cal. Penal Code § 236.1 also provides in relevant part,

17

(g) “The Legislature finds that the definition of human trafficking in this

section is equivalent to the federal definition of a severe form of trafficking

18

found in Section 7102(8) of Title 22 of the United States Code.”

19

(h) For purposes of this chapter, the following definitions apply:

20

(1) ”Coercion” includes any scheme, plan, or pattern intended to

cause a person to believe that failure to perform an act would result in

21

serious harm to or physical restraint against any person;  the abuse or

threatened abuse of the legal process;  debt bondage;  or providing and

22

facilitating the possession of any controlled substance to a person with

the intent to impair the person's judgment.”

23

(3) ”Deprivation or violation of the personal liberty of another”

24

includes substantial and sustained restriction of another's liberty

accomplished through force, fear, fraud, deceit, coercion, violence,

25

duress, menace, or threat of unlawful injury to the victim or to another

person, under circumstances where the person receiving or

26

apprehending the threat reasonably believes that it is likely that the

person making the threat would carry it out.”

27

(4) ”Duress” includes a direct or implied threat of force, violence,

28

danger, hardship, or retribution sufficient to cause a reasonable person

to acquiesce in or perform an act which he or she would otherwise not

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1

have submitted to or performed;  a direct or implied threat to destroy,

conceal, remove, confiscate, or possess any actual or purported

2

passport or immigration document of the victim;  or knowingly

destroying, concealing, removing, confiscating, or possessing any

3

actual or purported passport or immigration document of the victim.”

4

(5) ”Forced labor or services” means labor or services that are

performed or provided by a person and are obtained or maintained

5

through force, fraud, duress, or coercion, or equivalent conduct that

would reasonably overbear the will of the person.”

6

(6) ”Great bodily injury” means a significant or substantial physical

7

injury.”

8

(8) ”Serious harm” includes any harm, whether physical or

nonphysical, including psychological, financial, or reputational harm,

9

that is sufficiently serious, under all the surrounding circumstances, to

compel a reasonable person of the same background and in the same

10

circumstances to perform or to continue performing labor, services, or

commercial sexual acts in order to avoid incurring that harm.”

11

12

56. Plaintiffs and Class Members were forced, coerced, and made to perform

13 labor and services, including Forced Labor, for CoreCivic by means of:

14

a. force, threats of force, physical restraint and threats of physical

15

restraint;

16

b. serious harm and threats of serious harm; and

17

c. abuse and threatened abuse of law or legal process to Plaintiffs and

18

the Class Members; and

19

d. a scheme, plan, pattern, and uniform policy intended to cause

20

Plaintiffs and the Class Members to believe that, if they did not

21

perform such Forced Labor, that they would suffer serious harm

22

and/or physical restraint.

23

57. Core Civic materially and significantly reduced its labor costs and expenses,

24 and increased its profits, by unlawfully forcing and coercing Plaintiffs and the Class

25 Members to perform uncompensated Forced Labor and human trafficking. Plaintiffs and

26 the Class Members are victims of Forced Labor under Cal. Civ. Code § 52.5. CoreCivic

27 committed the illegal and unlawful offense of Forced Labor against Plaintiffs and the

28 Class Members under Cal. Civ. Code § 52.5. CoreCivic knowingly and financially

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1 benefitted from participation in a venture, plan, scheme, pattern of conduct, and practice

2 CoreCivic knew, or should have known, were unlawful and in violation California Forced

3 Labor laws pursuant to Cal. Civ. Code § 52.5.

4

58. Accordingly, Plaintiffs and the Class Members respectfully request that the

5 Court issue declaratory relief declaring CoreCivic’s practice(s) involving Forced Labor

6 and human trafficking – forcing and coercing Plaintiffs and Class Members to perform

7 labor and services under threat of confinement, physical restraint, substantial and

8 sustained restriction, deprivation, solitary confinement to be illegal and unlawful.

9

59. Plaintiffs and the Class Members request the Court to enter an injunction

10 requiring CoreCivic to cease the unlawful practices described herein and enjoin

11 CoreCivic from using Forced Labor by forcing and coercing Plaintiffs and the Class

12 Members to perform labor and services under threat of confinement, physical restraint,

13 substantial and sustained restriction, and solitary confinement.

14

60. Plaintiffs and the Class Members request the Court to enter an injunction in

15 connection with the foregoing ordering that CoreCivic:

16

a. engage a third party ombudsman as well as internal compliance

17

personnel to monitor, conduct inspection, and audit CoreCivic’s

18

safeguards and procedures on a periodic basis;

19

b. audit, test, and train its internal personnel regarding any new or

20

modified safeguards and procedures;

21

c. conduct regular checks and tests on its safeguards and procedures;

22

d. periodically conduct internal training and education to inform internal

23

personnel how to identify violations when they occur and what to do

24

in response; and

25

e. periodically and meaningfully educate its personnel and detainees

26

about their labor and human trafficking rights through, without

27

limitation, educational programs and classes upon detention, as well

28

as any steps that must be taken to safeguard such rights.

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1

61. Plaintiffs and the Class Members have suffered damages in an amount to be

2 determined at trial. Plaintiffs and the Class Members request the Court enter an order

3 pursuant to Cal. Civ. Code § 52.5 awarding Plaintiffs and the Class Members

4 compensatory and punitive damages.

5

62. Plaintiffs and the Class Members request the Court enter an order pursuant

6 to Cal. Civ. Code § 52.5 awarding Plaintiffs and the Class Members mandatory

7 restitution. Plaintiffs and the Class Members are entitled to recover their reasonable

8 attorneys’ fees pursuant to Cal. Civ. Code § 52.5(a). Plaintiffs and the Class Members

9 therefor also seek pre-and-post-judgment interest and attorneys’ fees and costs as allowed

10 by statute and as they are entitled to recover pursuant Cal. Civ. Code § 52.5(s).

11

THIRD CAUSE OF ACTION

12

Violation of California’s Unfair Competition Law

13

Cal. Bus. & Prof. Code §§ 17200, et seq.

14 (On Behalf of Plaintiffs Individually and the California Forced Labor Class and

15

California Labor Law Class)

16

63. Plaintiffs and Class Members incorporate the above allegations by reference.

17

64. California’s Unfair Competition Law (“UCL”) prohibits unfair competition,

18 defined as “any unlawful, unfair or fraudulent business act or practice and unfair,

19 deceptive, untrue or misleading advertising and any act prohibited by [California’s False

20 Advertising Law].” Cal. Bus. & Prof. Code § 17200.

21

65. CoreCivic willfully violated, and continues to violate, the “unlawful” prong

22 of the UCL by violating the federal Trafficking Victims Protection Act, 18 U.S.C. §

23 1589, et seq., the California Trafficking Victims Protection Act, Cal. Civ. Code § 52.5,

24 and the California labor laws and orders of the California Industrial Welfare

25 Commission, and other applicable statutes and laws alleged herein.

26

66. CoreCivic willfully violated, and continues to violate, the “unfair” prong of

27 the UCL by gaining unjust profits from “Dollar-A-Day Work” and Forced Labor

28 practices in violation of Plaintiffs and the Class Members' statutorily protected rights.

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1

67. The acts, omissions, and practices of Defendant, as described herein, further

2 constitutes “unfair” and “unlawful” business acts and practices under the UCL in that

3 Defendant’s conduct offends public policy against human trafficking and Forced Labor,

4 and seeks to profit and capitalize on the violations of Plaintiffs' and the Class Members'

5 applicable federal and state human and labor law rights.

6

68. As a direct and proximate result of Defendant’s unlawful and unfair business

7 practices, Plaintiffs and putative Class Members have suffered injury, including but not

8 limited to, monetary loss in connection with their Dollar-A-Day Work and Forced Labor

9 services directly and proximately caused by CoreCivic’s unlawful and unfair conduct and

10 business practices, as well as, the violation of their human rights and labor law rights.

11

69. Accordingly, Plaintiffs and the California Forced Labor Class Members and

12 California Labor Law Class members are entitled to, and hereby seek, an order of this

13 Court enjoining Defendant from continuing to conduct business through unlawful, unfair,

14 and/or fraudulent acts and practices, and to take corrective action pursuant to Section

15 17203 of the UCL.

16

70. Plaintiffs and Class Members are further entitled to, and hereby seek an

17 order for disgorgement and restitution of all monies acquired from the sales of the

18 CoreCivic’s services which were unjustly acquired through acts of unlawful, unfair,

19 and/or fraudulent competition by CoreCivic, as well as any other further equitable relief

20 this Court may deem necessary, just, and proper under the circumstances. Additionally,

21 Plaintiffs and the Class seek pre-and-post judgment interest and attorneys’ fees and costs

22 as allowed by statute. See e.g., Cal. Code of Civ. Proc. § 1021.5.

23

FOURTH CAUSE OF ACTION

24

Failure to Pay Minimum Wage

25

Cal. Labor Code §§ 1194, 1197, 1197.1

26

& I.W.C. Wage Order No. 5-2001

27

(On behalf of Plaintiffs Individually and the California Labor Law Class)

28

71. Plaintiffs and Class Members incorporate by reference the foregoing

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1 allegations.

2

72. California Labor Code §§ 1194, 1197, 1197.1 and Industrial Welfare

3 Commission Wage Order 5-2001 entitle non-exempt employees to an amount equal to or

4 greater than the minimum wage for all hours worked. All hours must be paid at the

5 statutory or agreed rate and no part of this rate may be used as a credit against a minimum

6 wage obligation.

7

73. CoreCivic did not and does not compensate Detainees, including Plaintiffs

8 and the California Labor Law Class at the minimum wage for all “Dollar-A-Day Work”

9 hours performed.

10

74. As a result of violations of Cal. Labor Code §§ 1194, 1197, 1197.1 and

11 Industrial Welfare Commission Wage Order 5-2001 for failure to pay minimum wage,

12 CoreCivic is liable for civil penalties pursuant to Cal. Labor Code §§ 558, 1197.1, and

13 2698 et seq.

14

75. Accordingly, Plaintiffs and Class Members are entitled to, and hereby seek,

15 actual damages, punitive damages, reasonable attorneys’ fees and costs under Cal. Code

16 of Civ. Proc. § 1021.5, pre-and post-judgment interest at the applicable legal rate, and

17 any and all further equitable relief that this Court deems appropriate.

18

FIFTH CAUSE OF ACTION

19

Failure to Pay Overtime Wages

20

Cal. Labor Code §§ 204, 510, 1194, and Wage Order 5-2001

21

(On behalf of Plaintiffs Individually and the California Labor Law Class)

22

76. Plaintiffs and Class Members incorporate the above allegations by reference.

23

77. California Labor Code § 510 and the “Hours & Days of Work” Section of

24 the Wage Orders entitles non-exempt employees to one and one-half times their hourly

25 pay for any and all hours worked in excess of eight hours in any work day, for the first

26 eight hours worked on the seventh consecutive day of work in a work week, and for any

27 work in excess of forty hours in any one work week. Employees are entitled to the one

28 and one-half times their hourly pay for any and all hours worked in excess of twelve (12)

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1 hours in any work day and in excess of eight (8) hours on the seventh (7th) consecutive

2 work day.

3

78. Plaintiffs and Class Members regularly worked in excess of eight (8) hours

4 per day and/or forty (40) hours per week without overtime compensation. By failing to

5 pay overtime compensation to Plaintiffs and Class Members, CoreCivic violated and

6 continues to violate Cal. Labor Code §§ 204, 510 and 1194 and Wage Order 5-2001.

7

79. As a result of CoreCivic's unlawful acts, Plaintiffs and Class Members have

8 been deprived of overtime compensation in an amount to be determined at trial, and are

9 entitled to recovery of such amounts, plus interest thereon, attorneys' fees and costs,

10 under Cal. Labor Code § 1194.

11

SIXTH CAUSE OF ACTION

12

Failure to Provide Mandated Meal Periods

13

Cal. Labor Code §§ 226.7, 512, and I.W.C. Wage Order 5-2001

14

(On behalf of Plaintiffs Individually and the California Labor Law Class)

15

80. Plaintiffs and Class Members incorporate the above allegations by reference.

16

81. CoreCivic failed to maintain a policy of providing meal breaks as required

17 by Cal. Labor Code §§ 226.7, 512 and Wage Order 5-2001.

18

82. Since at least three years prior to the filing of this action, Plaintiffs and

19 Class Members have worked in excess of five hours and at times ten hours a day without

20 being provided at least half hour meal periods in which they were relieved of their duties,

21 as required by Cal. Labor Code §§ 226.7 and 512 and Wage Order 5-2001. See Brinker

22 Restaurant Corp., et al. v. Superior Court (2012) 53 Cal. 4th 1004, 1040-41 (“The

23 employer satisfies this obligation if it relieves its employees of all duty, relinquishes

24 control over their activities and permits them a reasonable opportunity to take an

25 uninterrupted 30—minute break, and does not impede or discourage them from doing

26 so... [A] first meal period [is required] no later than the end of an employee's fifth hour of

27 work, and a second meal period [is required] no later than the end of an employee's 10th

28 hour of work.”).

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1

83. Because CoreCivic failed to provide proper meal periods, it is liable to all

2 Plaintiffs and Class Members for one hour of additional pay at the regular rate of

3 compensation for each work day that the proper meal periods were not provided, pursuant

4 to Cal. Labor Code §§ 226.7 and 512 and Wage Order 5-2001, as well as interest thereon,

5 plus reasonable attorneys' fees and costs of suit pursuant to Cal. Code of Civ. Proc. Code

6 § 1021.5.

7

SEVENTH CAUSE OF ACTION

8

Failure to Provide Mandated Rest Periods

9

Cal. Labor Code § 226.7 and I.W.C. Wage Order 5-2001

10 (On behalf of Plaintiffs Individually and the California Labor Law Class)

11

84. Plaintiffs and Class Members incorporate the above allegations by reference.

12

85. Since at least three years prior to the commencement of this action. Plaintiffs

13 and Class Members have regularly worked without any rest periods that are required by

14 Wage Order 5-2001. See Brinker, 53 Cal. 4th 1004 at 1029 (“Employees are entitled to

15 10 minutes rest for shifts three and one-half to six hours in length, 20 minutes for shifts

16 of more than six hours up to 10 hours; 30 minutes for shifts of more than 10 hours up to

17 14 hours, and so on.”).

18

86. Because CoreCivic failed to provide proper rest periods, it is liable to

19 Plaintiffs and Class Members for one (1) hour of additional pay at the regular rate of

20 compensation for each workday that the proper rest periods were not provided, pursuant

21 to Cal. Labor Code § 226.7 and Wage Order 5-2001, as well as interest thereon, plus

22 reasonable attorneys' fees and costs of suit pursuant to Cal. Code of Civ. Proc. § 1021.5.

23

EIGHTH CAUSE OF ACTION

24

Failure to Furnish Timely and Accurate Wage Statements

25

Cal. Labor Code § 226

26

(On behalf of Plaintiffs Individually and the California Labor Law Class)

27

87. Plaintiffs and Class Members incorporate the above allegations by reference.

28

88. California Labor Code § 226 requires an employer to furnish its employees

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1 with an accurate itemized statement in writing showing, among other things:

2

a. all applicable hourly rates in effect during each respective pay period

3

and the corresponding number of hours worked by each respective

4

individual;

5

b. total hours worked by each respective individual;

6

c. gross wages earned;

7

d. net wages earned;

8

e. all deductions;

9

f. inclusive dates of the period for which the employee is paid;

10

g. the name of the employee and an employee identification or social

11

security number; and

12

h. the name and address of the legal entity that is the employer.

13

89. As a pattern and practice, in violation of Labor Code § 226(a), CoreCivic did

14 not provide Plaintiffs or Class Members with accurate itemized wage statements in

15 writing showing:

16

a. all applicable hourly rates in effect during each respective pay period

17

and the corresponding number of hours worked by each respective

18

individual;

19

b. number of hours worked;

20

c. gross wages earned;

21

d. net wages earned;

22

e. all deductions;

23

f. inclusive dates of the period for which the employee is paid;

24

g. the employee identification or social security number; and

25

h. the address of the legal entity that is the employer.

26

90. As a result of CoreCivic's failure to provide accurate itemized wages

27 statements, Plaintiffs and Class Members suffered actual damages and harm by being

28 unable to determine their applicable hourly rate or the amount of overtime worked for

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1 each pay period, which prevented them from becoming aware of these violations and

2 asserting their statutory protections under California law.

3

91. CoreCivic has knowingly and intentionally failed to comply with Cal. Labor

4 Code § 226(a) and failed to provide a wage statement to Plaintiffs and Class Members.

5

92. Pursuant to Cal. Labor Code § 226(e), the Plaintiffs and Class Members are

6 entitled to recover the greater of all actual damages or fifty dollars ($50.00) for the initial

7 pay period in which a violation occurs and one hundred dollars ($100.00) per employee

8 for each violation in a subsequent pay period, not exceeding an aggregate penalty of four

9 thousand dollars ($4,000.00).

10

93. The Plaintiffs and Class Members are entitled to an award of costs and

11 reasonable attorneys' fees pursuant to Cal. Labor Code § 226(h).

12

NINTH CAUSE OF ACTION

13

Failure to Pay Compensation Upon Termination/Waiting Time Penalties

14

Cal. Labor Code §§ 201-203

15

(On behalf of Plaintiffs Individually and the California Labor Law Class)

16

94. Plaintiffs and Class Members incorporate the above allegations by reference.

17

95. California Labor Code §§ 201 and 202 require CoreCivic to pay all

18 compensation due and owing to Plaintiffs and Class Members immediately upon

19 discharge or within seventy-two hours of their termination of employment. Cal. Labor

20 Code § 203 provides that if an employer willfully fails to pay compensation promptly

21 upon discharge or resignation, as required by §§ 201 and 202, then the employer is liable

22 for such “waiting time” penalties in the form of continued compensation up to thirty

23 workdays.

24

96. CoreCivic willfully failed to pay Plaintiffs and Class Members who are no

25 longer employed by CoreCivic compensation due upon termination as required by Cal.

26 Labor Code §§ 201 and 202. As a result, CoreCivic is liable to Plaintiffs and former

27 employee Class Members waiting time penalties provided under Cal. Labor Code § 203,

28 plus reasonable attorneys' fees and costs of suit.

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1

TENTH CAUSE OF ACTION

2

Imposition of Unlawful Terms and Conditions of Employment

3

Cal. Labor Code § 432.5

4

(On behalf of Plaintiffs Individually and the California Labor Law Class)

5

97. Plaintiffs and Class Members incorporate the above allegations by reference.

6

98. Cal. Labor Code § 432.5 provides that no employer shall require any

7 employee to agree, in writing, to any term or condition which is known by the employer

8 to be prohibited by law.

9

99. CoreCivic requires, as a condition of employment, that Plaintiffs and Class

10 Members sign a written agreement which includes numerous terms that are prohibited by

11 law, including but not limited to agreeing to work for less than minimum wage or without

12 appropriate overtime compensation.

13

100. Provisions of the employment contract, as described above, that Plaintiffs

14 and Class Members were required to sign as a condition of employment, explicitly and

15 unquestionably, violate several provisions of California law and public policy. Upon

16 information and belief, CoreCivic knew that such provisions violated California law and

17 public policy.

18

101. As a result of Defendant's unlawful conduct as alleged herein, Plaintiffs and

19 Class Members have sustained damages.

20

ELEVENTH CAUSE OF ACTION

21

Negligence

22

(On Behalf of Plaintiffs Individually and the Class)

23

102. Plaintiffs and the Class Members incorporate the above allegations by

24 reference.

25

103. In engaging Plaintiffs and the Class members to provide labor and services

26 to CoreCivic, CoreCivic owed a duty to exercise reasonable and ordinary care in

27 complying with all applicable local, state, and federal laws and to furnish a safe working

28 place for its employees.

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1

104. This duty included, among other things, taking reasonable measures to

2 implement and maintain reasonable procedures to provide a safe working environment

3 and workplace and to protect the rights of Class Members in compliance with applicable

4 law, including, but not limited to procedures and policies:

5

a. to supervise, restrict, limit, and determine whether any Plaintiffs and

6

the Class Members were subject to Forced Labor practices by

7

CoreCivic or perform other labor and services under threat of

8

punishment, confinement, physical restraint, and deprivation of

9

liberty;

10

b. to notify Plaintiffs and the Class Members of their rights under the

11

TVPA and CTVPA; and

12

c. when and how to notify Plaintiffs and the Class Members of

13

CoreCivic's unlawful Forced Labor practices.

14

105. In providing services to the Plaintiffs and the Class, CoreCivic owed them a

15 duty to exercise reasonable care, without limitation in:

16

a. adequately providing a safe working environment and workplace;

17

b. adequately protecting the rights of Class Members in compliance with

18

applicable law;

19

c. prohibiting and adequately ensuring Plaintiffs and the Class Members

20

were not subject to Forced Labor practices;

21

d. adequately ensuring Plaintiffs and the Class Members had a safe work

22

environment; and

23

e. protecting the rights of Plaintiffs and the Class’ under the TVPA and

24

CTVPA from CoreCivic's Forced Labor practices.

25

106. CoreCivic’ systems, policies, and procedures for adequately ensuring the

26 rights of Plaintiffs and the Class Members under the TVPA and CTVPA were adequately

27 protected were intended to, and did, affect Plaintiffs and the Class Members. CoreCivic

28 was aware that by utilizing Plaintiffs' and the Class Members labor and services, it had a

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1 responsibility to take reasonable measures to protect their rights under applicable law.

2

107. The duty CoreCivic owed to Plaintiffs and Class Members to protect their

3 rights under applicable law is underscored by the Federal and California Trafficking

4 Victims Protection Act, which recognizes the importance of preventing the crime of

5 trafficking of a person for forced labor or services.

6

108. Additionally, CoreCivic had a duty to timely disclose to and/or warn

7 Plaintiffs and Class Members of their rights under the TVPA, CTVPA, California labor

8 laws, and other applicable laws, rules, and regulations. Timely disclosure was necessary

9 and appropriate so that Plaintiffs and Class Members could have, among other things,

10 timely pursued and exhausted available remedies, and undertaken appropriate measures

11 to avoid, prevent or mitigate the violations of their rights under applicable laws.

12

109. There is a very close connection between CoreCivic’s failure to take

13 reasonable measures to provide a safe and lawful work environment and timely

14 disclosure of Plaintiffs' and the Class Members' rights and the injury to Plaintiffs and the

15 Class.

16

110. When individuals have their human and labor law rights violated they are at

17 risk for personal, financial, physical, and emotional injury, distress, and damage and need

18 to incur additional costs and expense to protect themselves and seek and obtain redress

19 from such invasions of their legal rights.

20

111. CoreCivic is legally responsible for such unlawful violations of Plaintiffs

21 and the Class Members' human and labor law rights and their right to a safe working

22 environment because it failed to take reasonable measures in connection therewith. If

23 CoreCivic had taken reasonable measures in connection with their employment of

24 Plaintiffs and the Class Members, their legal rights would not have been violated.

25

112. The policy of preventing future harm weighs in favor of finding a special

26 relationship between CoreCivic and the Class. CoreCivic’s civil immigration detainees

27 have no choice to but to perform the Forced Labor when and how CoreCivic demands it.

28 If CoreCivic is not held accountable for failing to take reasonable measures to protect the

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1 human rights and labor law rights of its detainees, they will not take the steps that are

2 necessary to protect against future invasions of such rights.

3

113. It was foreseeable that if CoreCivic did not take reasonable measures, the

4 human rights and labor law rights of Plaintiffs and Members of the Class would be

5 violated. CoreCivic should have known to take precautions to prevent such abuses.

6

114. CoreCivic breached its duty to exercise reasonable care in providing a safe

7 work environment for, and protecting the human rights and labor law rights of, Plaintiffs

8 and the Class Members by, without limitation:

9

a. failing to implement and maintain adequate measures to safeguard

10

detainees' rights;

11

b. failing to monitor its operations to identify unlawful activity;

12

c. requiring and/or allowing Plaintiffs and the Class to work in an unsafe

13

environment; and

14

d. failing to otherwise prevent human rights and labor law abuses.

15

115. CoreCivic breached its duty to timely warn or notify Plaintiffs and the Class

16 about its unlawful Forced Labor and “Dollar-A-Day Work” practices and programs.

17 CoreCivic has failed to issue any warnings to its current and former detainees affected by

18 these unlawful practices. Additionally, CoreCivic was, or should have been, aware of its

19 unlawful practices as early as November 2, 2004.

20

116. But for CoreCivic’s failure to implement and maintain adequate measures to

21 provide a safe working environment for, and protect the human rights and labor law

22 rights of, Plaintiffs and the Class Members, and its failure to monitor its operations to

23 identify unlawful Forced Labor and Dollar-A-Day Work violations of the labor laws,

24 Plaintiffs' and Class Members' rights would not have been violated and Class Members

25 would not be at a heightened risk of unlawful Forced Labor and other labor law

26 violations in the future.

27

117. CoreCivic’s negligence was a substantial factor in causing harm to Plaintiffs

28 and Class Members, and in violating their human rights and labor law rights. As a direct

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1 and proximate cause and result of CoreCivic’ failure to exercise reasonable care and use

2 reasonable measures to provide a safe working environment and safeguard the human

3 rights and labor law rights of Plaintiffs and the Class Members, Plaintiffs and the Class

4 Members were subjected to Forced Labor and the labor law violations set forth herein.

5 Class Members face a heightened risk of such unlawful practices in the future.

6

118. Neither Plaintiffs nor other Class Members contributed to the unlawful

7 conduct set forth herein, nor did they contribute to CoreCivic’s unlawful Forced Labor

8 practices and other labor law violations, nor to the insufficient measures to provide a safe

9 working environment and to safeguard the human rights and labor law rights of Plaintiffs

10 and the Class Members.

11

119. Plaintiffs and the Class Members seek compensatory damages and

12 exemplary damages with pre-and-post judgment interest, the costs of suit, attorneys’ fees,

13 and other and further relief as this Court deems just and proper.

14

TWELFTH CAUSE OF ACTION

15

Unjust Enrichment

16

(On Behalf of Plaintiffs Individually and the Class)

17

120. Plaintiffs and the Class Members incorporate the above allegations by

18 reference.

19

121. “Under California law, the elements of unjust enrichment are: (a) receipt of a

20 benefit; and (b) unjust retention of the benefit at the expense of another.” Valencia v.

21 Volkswagen Grp. of Am. Inc., No. 15-CV-00887-HSG, 2015 WL 4747533, at *8 (N.D.

22 Cal. Aug. 11, 2015). See also, Munoz v. MacMillan, 195 Cal. App. 4th 648, 661 (2011)

23 (“Common law principles of restitution require a party to return a benefit when the

24 retention of such benefit would unjustly enrich the recipient; a typical cause of action

25 involving such remedy is ‘quasi-contract.”)

26

122. “When a plaintiff alleges unjust enrichment, a court may construe the cause

27 of action as a quasi-contract claim seeking restitution.” Astiana v. Hain Celestial Grp.,

28 Inc., 783 F.3d 753, 762 (9th Cir. 2015). “Whether termed unjust enrichment, quasi-

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1 contract, or quantum meruit, the equitable remedy of restitution when unjust enrichment

2 has occurred “is an obligation (not a true contract [citation]) created by the law without

3 regard to the intention of the parties, and is designed to restore the aggrieved party to his

4 or her former position by return of the thing or its equivalent in money.” F.D.I.C. v.

5 Dintino, 167 Cal. App. 4th 333, 346 (2008).

6

123. Plaintiffs and Class Members conferred non-gratuitous benefits upon

7 CoreCivic by performing “Dollar-A-Day Work” for all hours worked for which

8 CoreCivic would otherwise have had to pay at least the applicable minimum wage or

9 more, thereby significantly and materially increasing CoreCivic's profit margins, and

10 unjustly enriching CoreCivic at the expense of and to the detriment of Plaintiffs and the

11 Class Members.

12

124. CoreCivic’s retention of any benefit collected directly and indirectly from

13 Plaintiffs’ and Class Members' labor and services violated principles of justice, equity,

14 and good conscience. As a result, CoreCivic has been unjustly enriched. Plaintiffs and

15 Class Members are entitled to recover from CoreCivic all amounts that CoreCivic has

16 wrongfully and improperly obtained, and CoreCivic should be required to disgorge to

17 Plaintiffs and Class Members the benefits it has unjustly obtained.

18

125. CoreCivic accepted or retained such benefits with knowledge that Plaintiffs'

19 and Class Members' human rights and labor law right were being violated for financial

20 gain. CoreCivic has been unjustly enriched in retaining the revenues and profits from

21 Plaintiffs and Class Members’ Dollar-A-Day Work, which retention under these

22 circumstances is unjust and inequitable.

23

126. As a direct and proximate result of CoreCivic’s Forced Labor practices and

24 the Dollar-A-Day Work program, Plaintiffs and Class Members have suffered concrete

25 harm and injury, including, but not limited to, physical and emotional injury, monetary

26 loss in connection with their labor and services provided CoreCivic purchases of services,

27 and the unlawful violation of their human rights and labor law rights, as alleged herein.

28

127. CoreCivic’s retention of the non-gratuitous benefits conferred on them by

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1 Plaintiffs and Class Members would be unjust and inequitable. Plaintiffs and Class

2 Members are entitled to seek disgorgement and restitution of wrongful profits, revenue,

3 and benefits conferred upon CoreCivic in a manner established by this Court.

4

128. Plaintiffs and Class Members are further entitled to, and hereby seek,

5 reasonable attorneys’ fees and costs under Cal. Code of Civ. Proc. § 1021.5, pre-and

6 post-judgment interest at the applicable legal rate, as well as any and all further equitable

7 relief that this Court deems appropriate.

8

THIRTEENTH CAUSE OF ACTION

9

Violation of Labor Code §§ 2698, et seq., Private Attorney General Act

10

(On Behalf of Plaintiffs Individually and the Class)

11

129. Plaintiffs and the Class Members incorporate the above allegations by

12 reference.

13

130. Under PAGA, an aggrieved employee, on behalf of him or herself and other

14 current or former employees as well as the general public, may bring a representative

15 action as a private attorney general to recover penalties for an employer’s violations of

16 the Cal. Labor Code and IWC Wage Orders. These civil penalties are in addition to any

17 other relief available under the California Labor Code.

18

131. Plaintiffs are aggrieved employees as defined in Labor Code § 2699(a).

19 Plaintiffs bring this cause of action on behalf of themselves and other current and former

20 employees impacted by CoreCivic’s violations of the Cal. Labor Code and IWC Wage

21 Order 5-2001 as described fully herein.

22

132. As set forth above (and specifically in Plaintiffs’ Fourth through Twelfth

23 Causes of Action), CoreCivic committed violations of the California Labor Code against

24 Plaintiffs and, on information and belief, against other current or former employees while

25 they were or are employed by CoreCivic as described in this FAC (and specifically when

26 they were civil detainees in one of CoreCivic’s detention facilities).

27

133. Plaintiffs thus seek to recover civil penalties and attorneys’ fees and costs as

28 authorized under PAGA as a result of CoreCivic’s violations of the California Labor

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1 Code and IWC Wage Order 5-2001.

2

134. Under PAGA, Plaintiffs are entitled to recover the maximum civil penalties

3 permitted by law for the violations of the California Labor Code that are alleged in this

4 FAC.

5

135. Plaintiffs are entitled to civil penalties, to be paid by Defendant and

6 allocated as PAGA requires, pursuant to Cal. Labor Code § 2699(a), for Defendant’s

7 violations of the Cal. Labor Code for which a civil penalty is already specifically

8 provided by law.

9

136. Plaintiffs are also entitled to civil penalties, to be paid by Defendant and

10 allocated as PAGA requires, pursuant to Cal. Labor Code § 2699(f), for Defendant’s

11 violations of the Cal. Labor Code for which a civil penalty is not already specifically

12 provided.

13

137. Additionally, Plaintiffs are entitled to recover their attorney’s fees and costs

14 pursuant to Cal. Labor Code § 2699(g)(1).

15

138. On June 11, 2018, Plaintiffs provided written notice by certified mail to the

16 LWDA of the legal claims and theories of this case (a true and correct cop of the June 11,

17 2018 notice and receipt from the LWDA is attached hereto as Exhibit “A”). Plaintiffs

18 simultaneously provided a copy of that notice by certified mail to CoreCivic and their

19 counsel of record in this action. The LWDA did not provide notice “within 65 calendar

20 days of the postmark date of” Plaintiffs’ notice, so Plaintiffs are entitled to – and hereby

21 do – assert a PAGA claim in this action arising from Defendant’s violations of the Cal.

22 Labor Code IWC Wage Order 5-2001. Cal. Labor Code § 2699.3(a)(2)

23

PRAYER FOR RELIEF

24

WHEREFORE, Plaintiffs, individually and on behalf of the proposed Class,

25 request the Court:

26

a. certify this case as a class action on behalf of the Class Members defined

27 above, appoint Sylvester Owino and Jonathan Gomes as Class representatives, and

28 appoint the Law Office of Robert L. Teel as Class counsel;

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1

b. award declaratory and other equitable relief as is necessary to protect the

2 interests of Plaintiffs and Class Members;

3

c. award injunctive relief as is necessary to protect the interests of Plaintiffs

4 and the Class Members;

5

d. award restitution, damages, treble damages, and punitive damages to

6 Plaintiffs and Class Members in an amount to be determined at trial;

7

e. order disgorgement of CoreCivic’s unjustly acquired revenue, profits, and

8 other benefits resulting from their unlawful conduct for the benefit of Plaintiffs and Class

9 Members in an equitable and efficient manner determined by the Court;

10

f. order the imposition of a constructive trust upon CoreCivic such that its

11 enrichment, benefit, and ill-gotten gains may be allocated and distributed equitably by the

12 Court to and for the benefit of Plaintiffs and the Class Members.

13

g. enter judgment against CoreCivic, awarding Plaintiffs and similarly situated

14 employees past and present amounts pursuant to Labor Code § 2699, et seq.;

15

h. enter judgment against CoreCivic pursuant to Labor Code § 2699 directing

16 that the penalties awarded pursuant to this cause of action be distributed as follows: 75%

17 paid to the LWDA, and 25% paid to the aggrieved Plaintiffs;

18

i. costs of suit pursuant to Labor Code § 2699(g)(1);

19

j. attorneys’ fees pursuant to Labor Code § 2699(g)(1);

20

k. award Plaintiffs and Class Members their reasonable litigation expenses and

21 attorneys’ fees;

22

l. award Plaintiffs and Class Members pre- and post-judgment interest to the

23 extent allowable; and

24

m. award such other and further relief as equity and justice may require.

25

JURY DEMAND

26

Plaintiffs hereby demand a trial by jury on all issues so triable.

27

28

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1 DATED: October 12, 2018 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

FOLEY & LARDNER LLP J. Mark Waxman Eileen R. Ridley Geoffrey Raux Nicholas J. Fox Alan R. Ouellette /s/ Eileen R. Ridley Eileen R. Ridley Attorneys for Plaintiffs SLYVESTER OWINO, JONATHAN GOMEZ, and the Proposed Class(es) LAW OFFICE OF ROBERT L. TEEL Robert L. Teel
lawoffice@rlteel.com 1425 Broadway, Mail Code: 20-6690 Seattle, Washington 98122 Telephone: (866) 833-5529 Facsimile: (855) 609-6911 Attorneys for Plaintiffs SLYVESTER OWINO, JONATHAN GOMEZ, and the Proposed Class(es)
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1

CERTIFICATE OF SERVICE

2

The undersigned hereby certifies that a true and correct copy of the above and

3 foregoing document has been served on October 12, 2018 to all counsel of record who

4 are deemed to have consented to electronic service via the Court’s CM/ECF system per

5 Civil Local Rule 5.4.

6

7

/s/ Eileen R. Ridley Eileen R. Ridley

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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Case No. 17-CV-01112-JLS-NLS

 
 Case 3:17-cv-01112-JLS-NLS Document 97 Filed 06/05/19 PageID.2863 Page 1 of 5

1 J. MARK WAXMAN (SBN 58579)

2

mwaxman@foley.com NICHOLAS J. FOX (SBN 279577)

3

nfox@foley.com FOLEY & LARDNER LLP

4 3579 VALLEY CENTRE DRIVE, SUITE 300

5

SAN DIEGO, CA 92130 T: 858.847.6700 // F: 858.792.6773

ROBERT L. TEEL (SBN 127081) lawoffice@rlteel.com
LAW OFFICE OF ROBERT L. TEEL 1425 Broadway, Mail Code: 20-6690 Seattle, Washington 98122 T: 866. 833.5529 // F:855.609.6911

6 EILEEN R. RIDLEY (SBN 151735)

7 eridley@foley.com

8

ALAN R. OUELLETTE (SBN 272745) aouellette@foley.com

9

FOLEY & LARDNER LLP 555 California Street, Suite 1700

GEOFFREY RAUX (pro hac vice) graux@foley.com
FOLEY & LARDNER LLP 111 Huntington Ave., Suite 2500 Boston, MA 02199-7610 T: 617.342.4000 // F: 617.342.4001

10 San Francisco, CA 94104-1520

T: 415.434.4484 // F: 415.434.4507

11

Attorneys for Plaintiffs SYLVESTER OWINO,

12 JONATHAN GOMEZ, and the Proposed Class(es)

13

UNITED STATES DISTRICT COURT

14

SOUTHERN DISTRICT OF CALIFORNIA

15

16 SYLVESTER OWINO and JONATHAN ) Case No. 3:17-CV-01112-JLS-NLS

GOMEZ, on behalf of themselves and all )

17 others similarly situated,

)

18

Plaintiffs,

) CLASS ACTION )

vs.

)

19

) PLAINTIFFS’ NOTICE OF MOTION

CORECIVIC, INC.,

) AND MOTION FOR PARTIAL

20

) SUMMARY JUDGMENT

Defendant. )

21

)

)

22 CORECIVIC, INC.,

) Date: October 10, 2019

23

Counter-Claimant,

) Time: 1:30 p.m. ) Place: Courtroom 4D

)

24

) Judge: Hon. Janis L. Sammartino

vs.

) Magistrate: Hon. Nita L. Stormes

25

)

SYLVESTER OWINO and JONATHAN )

26 GOMEZ, on behalf of themselves and all ) DEMAND FOR JURY TRIAL

others similarly situated,

)

27

Counter-Defendants.

) )

28

Case No. 17-CV-01112-JLS-NLS

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1

NOTICE OF MOTION AND MOTION

2

TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD:

3

PLEASE TAKE NOTICE that on October 10, 2019, at 1:30 p.m., or as soon

4 thereafter as the matter may be heard in Courtroom 4D of the above-entitled Court,

5 Plaintiffs Sylvester Owino and Jonathan Gomez, on behalf of themselves and the California

6 Labor Law Class (defined below), by and through their undersigned counsel, will and

7 hereby do move this Court, pursuant to Rule 56 of the Federal Rules of Civil Procedure,

8 for an Order granting Plaintiffs’ Motion For Partial Summary Judgment, and ruling as a

9 matter if law that (1) Plaintiffs and the California Labor Law Class are “employees” of

10 Defendant CoreCivic, Inc. (“Defendant”), and therefore are entitled to the protections

11 afforded employees under the California Labor Code and Industrial Welfare Commission

12 (“I.W.C.”) Wage Order No. 5-2001; (2) Defendant violated California Labor Code section

13 226 when it failed to provide Plaintiffs and the California Labor Law Class with wage

14 statements as required by that Code section; and (3) Defendant violated California Labor

15 Code section 1194 when it failed to compensate Plaintiffs and the California Labor Law

16 Class with a minimum hourly wage as required by that Code section (the “Motion”).

17

Plaintiffs bring this Motion individually and on behalf of the putative “California

18 Labor Law Class,” defined in Plaintiffs’ pending Motion For Class Certification as follows:

19

“All I.C.E. detainees who (i) were detained at a CoreCivic facility

20

located in California between May 31, 2013, and the present, and (ii)

21

worked through CoreCivic’s Volunteer Work Program during their

22

period of detention in California (the “CA Labor Law Class”).”1

23

On May 14, 2018, in denying Defendant’s motion to dismiss, this Court held that

24 “. . . at a minimum, Defendant controls the wages, hours and working conditions of

25 Plaintiffs and putative class members. As such, Defendant employed Plaintiffs and

26 putative class members for purposes of California Labor Code § 1194.” (ECF No. 38

27

28 1 Alternatively, should the CA Labor Law Class not be certified such that partial summary judgment cannot be granted as to that class of detainee workers, Plaintiffs still proceed with this Motion as to their individual claims.

-1-

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1 [Order] at 40; see also id. at 37 – 44 (citing Martinez v. Combs, 49 Cal. 4th 35 (2010)).)

2 The undisputed facts establish not only that Plaintiffs and the CA Labor Law Class were

3 employees of Defendant because Defendant controlled the working environment, hours,

4 wages, and conditions to which Plaintiffs and the CA Labor Law Class were subject, but

5 also that Defendant admittedly failed to comply with various provisions of the California

6 Labor Code regarding the work done by Plaintiffs and the CA Labor Law Class, including

7 failure to comply with the requirements of section 226 (wage statements) and section 1194

8 (minimum wage), as well as related provisions in I.W.C. Wage Order 5-2001.

9

Therefore, Plaintiffs and the CA Labor Law Class are entitled to partial summary

10 judgment in their favor determining that, as a matter of law, Plaintiffs and the CA Labor

11 Law Class were (or still are) “employees” of Defendant, and that Defendant is liable to

12 Plaintiffs and the CA Labor Law Class for violations of California Labor Code sections

13 226 and 1194, as well as related provisions in I.W.C. Wage Order No. 5-2001.2

14 ///

15 ///

16 ///

17 ///

18 ///

19 ///

20 ///

21 ///

22 ///

23 ///

24 ///

25 ///

26

27
2 Although Plaintiffs allege additional violations of other California Labor Code provisions 28 in their operative Complaint, the focus of this Motion is on the two identified Code sections
and the overall question of whether Plaintiffs and the CA Labor Law Class are “employees” under California law.

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1

The Motion is based on this Notice of Motion and Motion, the accompanying

2 Memorandum of Points and Authorities, the Declaration of Eileen R. Ridley and all

3 exhibits and evidence attached thereto, the Separate Statement of Undisputed Material

4 Facts, Plaintiffs’ previously filed Motion For Class Certification and all evidence submitted

5 in support thereof (see ECF Nos. 84 – 86), the Proposed Order, the pleadings and papers

6 on file herein, and on such other matters and oral argument as may be presented to the

7 Court at the time of the hearing on this Motion.

8
9 DATED: June 5, 2019
10
11
12

FOLEY & LARDNER LLP J. Mark Waxman Eileen R. Ridley Geoffrey Raux Nicholas J. Fox Alan R. Ouellette

13

14

/s/ J. Mark Waxman

15

J. Mark Waxman Eileen R. Ridley

16

Attorneys for Plaintiffs SYLVESTER OWINO, JONATHAN GOMEZ, and the Proposed

17

Class(es)

18

LAW OFFICE OF ROBERT L. TEEL

19

Robert L. Teel

20

lawoffice@rlteel.com 1425 Broadway, Mail Code: 20-6690

21

Seattle, Washington 98122 Telephone: (866) 833-5529

22

Facsimile: (855) 609-6911

23

Attorneys for Plaintiffs SYLVESTER OWINO,

24

JONATHAN GOMEZ, and the Proposed Class(es)

25

26

27

28

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1

CERTIFICATE OF SERVICE

2

The undersigned hereby certifies that a true and correct copy of the above and

3 foregoing document has been served on June 5, 2019, to all counsel of record who are

4 deemed to have consented to electronic service via the Court’s CM/ECF system per Civil

5 Local Rule 5.4.

6

7

/s/ J. Mark Waxman J. Mark Waxman

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

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Case No. 17-CV-01112-JLS-NLS

 
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1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10

11 SYLVESTER OWINO and JONATHAN

12 GOMEZ, on behalf of themselves and all others similarly situated,

13

Plaintiffs,

14 v.

15 CORECIVIC, INC., a Maryland

16 corporation,

17

Defendant.

18 CORECIVIC, INC.,

19

Counter-Claimant,

20 v.
21

22 SYLVESTER OWINO and JONATHAN GOMEZ, on behalf of themselves and all
23 others similarly situated,

Case No.: 17-CV-1112 JLS (NLS)
ORDER: (1) DENYING WITHOUT PREJUDICE PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT, (2) DENYING DEFENDANT’S MOTION FOR JUDGMENT ON THE PLEADINGS, (3) DENYING AS MOOT PLAINTIFFS’ MOTION TO EXCLUDE, AND (4) GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION
(ECF Nos. 97, 117, 128, 155)

24

Counter-Defendants.

25

26

Presently before the Court are Plaintiffs and Counter-Defendants Sylvester Owino

27 and Jonathan Gomez’s Motion for Class Certification (“Cert. Mot.,” ECF No. 84), Motion

28 for Partial Summary Judgment (“MPSJ,” ECF No. 97), and Motion to Exclude Evidence

1 17-CV-1112 JLS (NLS)

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1 from Class Certification Decision (“Mot. to Exclude,” ECF No. 128), as well as Defendant

2 and Cross-Claimant CoreCivic, Inc.’s Motion for Judgment on the Pleadings (“MJP,” ECF

3 No. 117). The Court held a hearing on December 19, 2019. See ECF Nos. 154, 159 (“Tr.”).

4 Having carefully considered the Parties’ arguments, the evidence, and the law, the Court

5 DENIES WITHOUT PREJUDICE Plaintiffs’ Motion for Partial Summary Judgment

6 (ECF No. 97), DENIES Defendant’s Motion for Judgment on the Pleadings (ECF No.

7 117), DENIES AS MOOT Plaintiffs’ Motion to Exclude (ECF No. 128), and GRANTS

8 IN PART AND DENIES IN PART Plaintiffs’ Motion for Class Certification (ECF No.

9 84), as follows.

10

BACKGROUND

11 I. Factual Background1

12

Plaintiffs are civil immigration detainees who are involuntary confined at

13 Defendant’s detention facilities under the custody of Immigration and Customs

14 Enforcement (“ICE”). See Pls.’ Stmt. of Facts, ECF Nos. 97-2, 99-1 (sealed), ¶¶ 1, 37, 41.

15 During their period of detention, Plaintiffs and other ICE detainees performed work for

16 Defendant through a Voluntary Work Program (“VWP”). Id. Defendant paid those

17 participating in the VWP between $0.75 and $1.50 per day, id. ¶ 18, which is less than

18 California’s minimum wage. See id. ¶ 35. Defendant also coerced detainees to perform

19 additional, uncompensated work under threat of punishment. See id. ¶¶ 11, 13, 16.

20 II. Procedural Background

21

Plaintiffs filed this putative class action on May 1, 2017, alleging seven causes of

22 action for (1) forced labor and violation of the Trafficking Victims Protection Act

23 (“TVPA”), 18 U.S.C. §§ 1589 et seq.; (2) forced labor and violation of the California

24

25
1 Plaintiffs request the Court to exclude “attachment B to Exhibit 1, and all attachments to Exhibits 4, 6,
26 7, 8, 11, and 13” filed in support of Defendant’s opposition to their Motion for Class Certification “on the

27

grounds that they were not timely produced” by the March 15, 2019 deadline to complete class discovery imposed by Magistrate Judge Nita L. Stormes. See ECF No. 128-1 at 1. Because the Court does not rely

28 on any of the attachments Plaintiffs have challenged in ruling on Plaintiffs’ Certification Motion, the Court
DENIES AS MOOT Plaintiffs’ Motion to Exclude (ECF No. 128).

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1 TVPA, Cal. Civ. Code § 52.5; (3) unfair competition, Cal. Bus & Prof. Code §§ 17200 et

2 seq.; (4) violations of the California Labor Code; (5) violation of California Industrial

3 Welfare Commission (“IWC”) Orders; (6) negligence; and (7) unjust enrichment. See

4 generally ECF No. 1. Plaintiffs alleged that the action was being brought on behalf of three

5 classes: (1) a “Nationwide Forced Labor Class” comprised of “[a]ll civil immigration

6 detainees who performed Forced Labor uncompensated work for CoreCivic at any

7 Detention Facility owned or operated by it between November 2, 2004[,] to the applicable

8 opt-out date, inclusive”; (2) a “California Forced Labor Class” comprised of “[a]ll civil

9 immigration detainees who performed Forced Labor uncompensated work for CoreCivic

10 at any Detention Facility located in California owned or operated by it at [any] time during

11 the period from November 2, 2004[,] to the applicable op-out date, inclusive”; and (3) a

12 “California Labor Law Class” comprised of “[a]ll civil immigration detainees who

13 performed Dollar-A-Day Work for CoreCivic and were paid one dollar ($1) per day at any

14 Detention Facility located in California owned or operated by it at any time between

15 November 2, 2004[,] to the applicable op-out date, inclusive.” Id. ¶ 30.

16

On August 11, 2017, Defendant moved to dismiss for failure to state a claim under

17 Federal Rule of Civil Procedure 12(b)(6), see generally ECF No. 18, a motion that the

18 Court later granted in part and denied in part. See generally ECF No. 38. Defendant then

19 answered Plaintiffs’ complaint, “admit[ting] that jurisdiction is proper in this Court.” See

20 ECF No. 44 ¶¶ 2–3, 5. Although Defendant raised several affirmative defenses, it did not

21 raise any jurisdictional defenses. See id. at 21–27.

22

On September 11, 2018, Plaintiffs moved to file an amended complaint “for the

23 purpose of adding a claim for violations of the Private Attorney General Act (“PAGA”),

24 Cal. Labor Code §§ 2698, et seq.,” ECF No. 64, a request Defendant did not oppose. See

25 ECF No. 65. The Court therefore granted Plaintiffs’ motion, see ECF No. 66, and Plaintiffs

26 filed their First Amended Complaint on October 12, 2018, see generally ECF No. 67

27 (“FAC”), adding a new cause of action for violation of PAGA “[o]n [b]ehalf of Plaintiffs

28 [i]ndividually and the Class.” See id. ¶¶ 129–38. Again, Plaintiffs alleged three classes: a

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1 Nationwide Forced Labor Class, a California Forced Labor Class, and a California Labor

2 Law Class. See id. ¶ 30.

3

Defendant answered Plaintiffs’ First Amended Complaint on October 26, 2018. See

4 generally ECF No. 70. For the first time, Defendant “admit[ted] only that this Court has

5 specific personal jurisdiction over CoreCivic as to the claims arising out of CoreCivic’s

6 California facilities” and “denie[d] that this Court has general personal jurisdiction over

7 CoreCivic as to claims arising out of CoreCivic’s non-California facilities.” Id. ¶ 5; see

8 also id. ¶ 31 (“CoreCivic further affirmatively alleges that this Court lacks personal

9 jurisdiction over CoreCivic as to Plaintiffs’ claims arising out of CoreCivic’s non-

10 California facilities.”). CoreCivic also raised a new affirmative defense in its answer to

11 Plaintiffs’ First Amended Complaint: “As a separate defense, and in the alternative,

12 CoreCivic alleges that this Court lacks personal jurisdiction over CoreCivic as to Plaintiffs’

13 claims arising out of Plaintiffs’ non-California facilities.” Id. at 22 ¶ 8.

14

On April 15, 2019, Plaintiffs filed their Certification Motion, seeking to certify five

15 classes, see generally ECF No. 84, and Plaintiffs filed their Motion for Partial Summary

16 Judgment, seeking summary adjudication as to whether Plaintiffs are employees under

17 California law and on Plaintiffs’ claims for violation of California Labor Code sections

18 226 and 1194, on June 5, 2019. See generally ECF No. 97. On July 11, 2019, Defendant

19 filed its Motion for Judgment on the Pleadings, “mov[ing] this Court, pursuant to Fed. R.

20 Civ. P. 12(c) to grant judgment on the pleadings and dismiss all putative class claims that

21 arose outside of California for lack of personal jurisdiction.” See ECF No. 117 at 2.

22 Plaintiffs moved to exclude certain evidence Defendant introduced in its opposition to their

23 Certification Motion on August 1, 2019, “on the grounds that Defendant violated this

24 Court’s scheduling order regarding class discovery, as well as two of the Court’s discovery

25 orders,” by producing documents “to Plaintiffs for the first time months after the close of

26 class discovery.” See ECF No. 128 at 2.

27 / / /

28 / / /

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1

PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT

2 I. Legal Standard

3

Under Federal Rule of Civil Procedure 56(a), a party may move for summary

4 judgment as to a claim or defense or part of a claim or defense. Summary judgment, or

5 partial summary judgment, is appropriate where the Court is satisfied that there is “no

6 genuine dispute as to any material fact and the movant is entitled to judgment as a matter

7 of law.” Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Material

8 facts are those that may affect the outcome of the case. Anderson v. Liberty Lobby, Inc.,

9 477 U.S. 242, 248 (1986). A genuine dispute of material fact exists only if “the evidence

10 is such that a reasonable jury could return a verdict for the nonmoving party.” Id. When

11 the Court considers the evidence presented by the parties, “[t]he evidence of the non-

12 movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Id. at

13 255.

14

The initial burden of establishing the absence of a genuine issue of material fact falls

15 on the moving party. Celotex, 477 U.S. at 323. The moving party may meet this burden

16 by identifying the “portions of ‘the pleadings, depositions, answers to interrogatories, and

17 admissions on file, together with the affidavits, if any,’” that show an absence of dispute

18 regarding a material fact. Id. When a plaintiff seeks summary judgment as to an element

19 for which it bears the burden of proof, “it must come forward with evidence which would

20 entitle it to a directed verdict if the evidence went uncontroverted at trial.” C.A.R. Transp.

21 Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000) (quoting Houghton

22 v. South, 965 F.2d 1532, 1536 (9th Cir. 1992)).

23

Once the moving party satisfies this initial burden, the nonmoving party must

24 identify specific facts showing that there is a genuine dispute for trial. Celotex, 477 U.S.

25 at 324. This requires “more than simply show[ing] that there is some metaphysical doubt

26 as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

27 586 (1986). Rather, to survive summary judgment, the nonmoving party must “by her own

28 affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,’

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1 designate ‘specific facts’” that would allow a reasonable fact finder to return a verdict for

2 the non-moving party. Celotex, 477 U.S. at 324; Anderson, 477 U.S. at 248. The non-

3 moving party cannot oppose a properly supported summary judgment motion by “rest[ing]

4 on mere allegations or denials of his pleadings.” Anderson, 477 U.S. at 256.

5 II. Analysis

6

Plaintiffs seek summary adjudication as to (1) their status as “employees” under

7 California law, and (2) Defendant’s liability to them under California Labor Code sections

8 226 and 1194 and Industrial Welfare Commission (“IWC”) Wage Order No. 5-2001. See

9 ECF No. 97 at 2. Defendant contends that Plaintiffs’ motion must be denied because the

10 “one-way intervention rule” precludes Plaintiffs from seeking summary judgment before

11 class certification.2 ECF No. 133 at 3–4. Plaintiffs respond that “the ‘one-way

12 intervention’ rule is a procedural red herring.” ECF No. 141 at 9.

13

The one-way intervention rule is intended “to protect defendants from unfair ‘one-

14 way intervention,’ where the members of a class not yet certified can wait for the court’s

15 ruling on summary judgment and either opt in to a favorable ruling or avoid being bound

16 by an unfavorable one.” Villa v. San Francisco Forty-Niners, Ltd., 104 F. Supp. 3d 1017,

17 1021 (N.D. Cal. 2015) (citing Am. Pipe & Const. Co. v. Utah, 414 U.S. 538, 547 (1974)).

18 The one-way intervention rule is supported by “[t]he purpose of Rule 23(c)(2)[, which] is

19 to ensure that the plaintiff class receives notice of the action well before the merits of the

20 case are adjudicated.” Schwarzschild v. Tse, 69 F.3d 293, 295 (9th Cir. 1995). This

21 purpose is the result of the “1966 amendments [that] were designed, in part, specifically to

22 mend this perceived defect in the former Rule and to assure that members of the class

23 would be identified before trial on the merits and would be bound by all subsequent orders

24 and judgments.” Am. Pipe & Const. Co., 414 U.S. at 547.

25

26 2 Defendant also asks the Court to deny or defer ruling on Plaintiffs’ Motion for Partial Summary

27

Judgment until Defendant has had the opportunity to conduct “[e]ssential [m]erits [d]iscovery.” ECF No. 133 at 6–10. Although the Court tends to agree with Plaintiffs that Defendant has not made the requisite

28 showing under Federal Rule of Civil Procedure 56(d), see ECF No. 141 at 2–8, the Court need not reach
the issue because the one-way intervention rule is dispositive.

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1

While the one-way intervention rule typically precludes a court from ruling on a

2 merits-based motion before the class is certified and notified, see Schwarzschild, 69 F.3d

3 at 296, there is an exception “when early resolution of a motion for summary judgment

4 seems likely to protect both the parties and the court from needless and costly further

5 litigation.” Wright v. Schock, 742 F.2d 541, 544 (9th Cir. 1984). However, “[d]efendants

6 must consent to this procedure, as the judgment against the individual plaintiff ‘will not be

7 res judicata as to other individual plaintiffs or other members of any class that may be

8 certified.’” Schwarz v. Meinberg, No. CV1300356BROPLAX, 2016 WL 9115353, at *2

9 (C.D. Cal. July 15, 2016) (quoting Wright, 742 F.2d at 544); see also Flo & Eddie, Inc. v.

10 Sirius XM Radio, Inc., No. 13-5693 PSG (RZX), 2015 WL 4476932, at *4 (C.D. Cal. May

11 27, 2015).

12

The Court concludes that the one-way intervention rule applies here. The class was

13 neither certified nor notified prior to Plaintiffs’ filing of their Motion for Partial Summary

14 Judgment; consequently, a ruling on the merits is premature because it has the potential to

15 leave Defendant open to “being pecked to death” by plaintiffs seeking an alternative

16 outcome. See Fireside Bank v. Super. Ct., 40 Cal. 4th 1069, 1078 (2007) (quoting Premier

17 Elec. Constr. Co. v. Nat’l Elec. Contractors Ass’n, Inc., 814 F.2d 358, 363 (7th Cir. 1987)).

18 Further, the exception does not apply here because Defendant did not consent to a pre-

19 certification ruling on Plaintiffs’ Motion for Partial Summary Judgment. See ECF No. 133

20 at 4 (“CoreCivic has not consented—and does not consent—to the adjudication of these

21 merits issues before a class-certification ruling.”) (citing Gessele v. Jack in the Box, Inc.,

22 No. 3:10-cv-960-ST, 2012 WL 3686274, at *3 (D. Or. Aug. 24, 2012)).

23

Because “there is no reason the briefing on the MPSJ could not have been completed

24 already as scheduled,” Plaintiffs suggest that the Court defer ruling on its Motion, without

25 allowing Defendant a second opportunity to brief the merits, until after the class

26 certification procedures have been completed. ECF No. 141 at 9–10. But Plaintiffs do not

27 cite, and the Court has not found, any authority supporting Plaintiffs’ request. See Gomez

28 v. Rossi Concrete Inc., No. 08CV1442 BTM CAB, 2011 WL 666888, at *2 (S.D. Cal. Feb.

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1 17, 2011) (denying pre-certification motion for summary judgement without prejudice);

2 see also Villa, 104 F. Supp. 3d at 1023 (same). Further, Defendant should not be penalized

3 for asserting its rights under the one-intervention rule.

4

Consequently, the Court DENIES WITHOUT PREJUDICE Plaintiffs’ Motion for

5 Partial Summary Judgment. Should Plaintiffs elect to renew their Motion for Partial

6 Summary Judgment following the Court’s resolution of their Motion for Class

7 Certification, Defendant must either respond on the merits or “identify specific facts to be

8 obtained in discovery that [a]re essential to oppose summary judgment.” See Leonard v.

9 Baker, 714 F. App’x 718, 719 (9th Cir. 2018) (citing Family Home & Fin. Ctr., Inc. v. Fed.

10 Home Loan Mortg. Corp., 525 F.3d 822, 827 (9th Cir. 2008)).

11

DEFENDANT’S MOTION FOR JUDGMENT ON THE PLEADINGS

12 I. Legal Standard

13

Any party may move for judgment on the pleadings “[a]fter the pleadings are

14 closed—but early enough not to delay trial.” Fed. R. Civ. P. 12(c). A motion for judgment

15 on the pleadings attacks the legal sufficiency of the claims alleged in the complaint. See

16 Patel v. Contemporary Classics of Beverly Hills, 259 F.3d 123, 126 (2d Cir. 2001). The

17 Court must construe “all material allegations of the non-moving party as contained in the

18 pleadings as true, and [construe] the pleadings in the light most favorable to the [non-

19 moving] party.” Doyle v. Raley’s Inc., 158 F.3d 1012, 1014 (9th Cir. 1998). “Judgment

20 on the pleadings is proper when the moving party clearly establishes on the face of the

21 pleadings that no material issue of fact remains to be resolved and that it is entitled to

22 judgment as a matter of law.” Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896

23 F.2d 1542, 1550 (9th Cir. 1990). “Analysis under Rule 12(c) is ‘substantially identical’ to

24 analysis under Rule 12(b)(6) because, under both rules, ‘a court must determine whether

25 the facts alleged in the complaint, taken as true, entitle the plaintiff to a legal remedy.’”

26 Chavez v. United States, 683 F.3d 1102, 1108 (9th Cir. 2012).

27 / / /

28 / / /

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1 II. Analysis

2

Defendant requests that the Court “grant judgment on the pleadings and dismiss all

3 putative class claims that arose outside of California for lack of personal jurisdiction.” ECF

4 No. 117 at 2; see also ECF No. 117-1 at 1, 9. Defendant contends that “courts have

5 approved such jurisdictional challenges at the class-certification stage.” ECF No. 117-1 at

6 1 (citing Gasser v. Kiss My Face, LLC, No. 17-CV-01675-JSC, 2018 WL 4538729, at *2

7 (N.D. Cal. Sept. 21, 2018)).

8

Plaintiffs urge the Court to “deny Defendant’s Motion for Judgment on the Pleadings

9 . . . because it is a procedurally improper, belated personal jurisdiction challenge Defendant

10 should have raised two years ago when litigation began, and which Defendant waived due

11 to its failure to do so.” ECF No. 134 at 1. Specifically, Plaintiffs argue that “Defendant

12 waived its challenge by failing to raise it in the prior Rule 12(b) motion, and through its

13 extensive litigation conduct.” Id. at 2.

14

Defendant responds that it did not waive its personal jurisdiction defense because

15 “personal jurisdiction is waived only if it was both available and omitted from the earlier

16 motion.” ECF No. 140 at 1 (emphasis in original). Defendant contends that the personal

17 jurisdiction defense was not available to it at the time it filed its Rule 12(b) motion to

18 dismiss because “CoreCivic had no good faith basis to challenge personal jurisdiction over

19 the non-plaintiff, putative class members’ claims” prior to class certification, see id.,

20 rendering “any personal jurisdiction challenge to the putative class members’ claims . . .

21 premature and procedurally improper at the motion-to-dismiss stage.” Id. at 2.

22

The Court concludes that Defendant has waived any challenge to the Court’s

23 personal jurisdiction. “‘Lack of personal jurisdiction’ is a ‘defense to a claim for relief’

24 that the Federal Rules expressly recognize.” McCurley v. Royal Seas Cruises, Inc., 331

25 F.R.D. 142, 164 (S.D. Cal. 2019) (quoting Fed. R. Civ. P. 12(b)(2)). “Challenges to alleged

26 defects in a district court’s personal jurisdiction are expressly waived unless a defendant

27 timely asserts the defense in a motion to dismiss or in a responsive pleading.” Id. (citing

28 Fed. R. Civ. P. 12(h)(1); Glater v. Eli Lilly & Co., 712 F.2d 735, 738 (1983); Williams v.

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1 Life Sav. & Loan, 802 F.2d 1200, 1202 (10th Cir. 1986); Braver v. Northstar Alarm Servs.,

2 329 F.R.D. 320 (W.D. Okla. 2018)). “An exception to this rule exists when a defense or

3 objection was unavailable at the time the defendant filed its earlier motion or responsive

4 pleading.” Id. (citing Fed. R. Civ. P. 12(g)(2)). “A defense is considered ‘available’ unless

5 its legal basis did not exist at the time of the answer or earlier pre-answer motion.” Id. at

6 164–65 (citing Gilmore v. Palestinian Interim Self-Gov’t Auth., 843 F.3d 958, 964 (D.C.

7 Cir. 2016); Tinn v. EMM Labs, Inc., No. 07-cv-00963-AC, 2008 WL 3861889, at *3 (D.

8 Or. Aug. 19, 2008)).

9

Here, “[Defendant] could have asserted a personal jurisdiction challenge to

10 Plaintiffs’ initial May . . . 2017 . . . complaint[], . . . which alleged [a] nationwide T[V]PA

11 class[].” See id. at 165. Bristol-Myers Squibb was decided on June 19, 2017, and

12 Defendant did not respond to Plaintiffs’ initial Complaint until August 11, 2017, see ECF

13 No. 18, or answer Plaintiff’s initial Complaint until June 8, 2018. See ECF No. 44.

14 Whether or not a motion to dismiss under Federal Rule of Civil Procedure 12(b)(2) would

15 have been premature, see ECF No. 171 at 2–4 (citing Molock v. Whole Foods Mktg. Grp.,

16 Inc., No. 187162, 2020 WL 1146733, at *2–3 (D.D.C. Mar. 10, 2020)), the legal basis for

17 the defense was known to the Defendant when it responded to Plaintiff’s initial Complaint,

18 thereby rendered the personal jurisdiction defense available. Consequently,

19 “[Defendant]’s failure to assert personal jurisdiction in its first responsive pleadings to

20 [Plaintiffs’] original complaint[] constitutes a waiver of such a defense.” See McCurley,

21 331 F.R.D. at 165; see also Mussat v. Enclarity, Inc., 362 F. Supp. 3d 468, 470 (N.D. Ill.

22 2019) (denying Rule 12(c) motion to dismiss for lack of personal jurisdiction in putative

23 nationwide class action on grounds that defense was waived under Rules 12(g)(2) and

24 12(h)). The Court therefore DENIES Defendant’s Motion for Judgment on the Pleadings.

25

PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION

26 I. Legal Standard

27

Motions for class certification proceed under Rule 23(a) of the Federal Rules of Civil

28 Procedure. Rule 23(a) provides four prerequisites to a class action: (1) the class is so

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1 numerous that joinder of all members is impracticable (“numerosity”), (2) there are

2 questions of law or fact common to the class (“commonality”), (3) the claims or defenses

3 of the representative parties are typical of the claims or defenses of the class (“typicality”),

4 and (4) the representative parties will fairly and adequately protect the interests of the class

5 (“adequate representation”). Fed. R. Civ. P. 23(a).

6

A proposed class must also satisfy one of the subdivisions of Rule 23(b). Here,

7 Plaintiffs seek to proceed under Rule 23(b)(3), which requires that “the court find[] that

8 the [common questions] predominate over any questions affecting only individual

9 members [‘predominance’], and that a class action is superior to other available methods

10 for fairly and efficiently adjudicating the controversy [‘superiority’].” The relevant factors

11 in this inquiry include the class members’ interest in individually controlling the litigation,

12 other litigation already commenced, the desirability (or not) of consolidating the litigation

13 in this forum, and manageability. Fed. R. Civ. P. 23(b)(3)(A)–(D).

14

“In determining the propriety of a class action, the question is not whether the

15 plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather

16 whether the requirements of Rule 23 are met.” Eisen v. Carlisle & Jacquelin, 417 U.S.

17 156, 178 (1974) (internal quotations omitted). “Rule 23 does not set forth a mere pleading

18 standard.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). Rather, “[a] party

19 seeking class certification must affirmatively demonstrate his compliance with the Rule—

20 that is, he must be prepared to prove that there are in fact sufficiently numerous parties,

21 common questions of law or fact, etc.” Id. The court is “at liberty to consider evidence

22 which goes to the requirements of Rule 23 even though the evidence may also relate to the

23 underlying merits of the case.” Hanon v. Dataprods. Corp., 976 F.2d 497, 509 (9th Cir.

24 1992). A weighing of competing evidence, however, is inappropriate at this stage of the

25 litigation. Staton v. Boeing Co., 327 F.3d 938, 954 (9th Cir. 2003).

26 II. Analysis

27

Pursuant to Federal Rules of Civil Procedure 23(a) and (b)(3), Plaintiffs seek to

28 certify the following five classes:

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1

1. The California Labor Law Class, comprised of “[a]ll ICE detainees who

2 (i) were detained at a CoreCivic facility located in California between May 31, 2013 and

3 the present, and (ii) worked through CoreCivic’s [VWP] during their period of detention

4 in California,” ECF No. 84 at 1;3

5

2. The California Forced Labor Class, comprised of “[a]ll ICE detainees who

6 (i) were detained at a CoreCivic facility located in California between January 1, 2006 and

7 the present, (ii) cleaned areas of the facilities above and beyond the personal housekeeping

8 tasks enumerated in ICE’s Performance Based National Detention Standards 2011 (the

9 “ICE PBNDS”), and (iii) performed such work under threat of discipline irrespective of

10 whether the work was paid or unpaid,” id.;

11

3. The California Basic Necessities Class, comprised of “[a]ll ICE detainees who

12 (i) were detained at a CoreCivic facility located in California between January 1, 2006 and

13 the present, (ii) worked through CoreCivic’s VWP, and (iii) purchased basic living

14 necessities through CoreCivic’s commissary during their period of detention in

15 California,” id. at 1–2;

16

4. The National Forced Labor Class, comprised of “[a]ll ICE detainees who

17 (i) were detained at a CoreCivic facility between December 23, 2008 and the present,

18 (ii) cleaned areas of the facilities above and beyond the personal housekeeping tasks

19 enumerated in the ICE PBNDS, and (iii) performed such work under threat of discipline

20 irrespective of whether the work was paid or unpaid,” id. at 2; and

21

5. The National Basic Necessities Class, comprised of “[a]ll ICE detainees who

22 (i) were detained at a CoreCivic facility between December 23, 2008 to the present,

23 (ii) worked through CoreCivic’s VWP, and (iii) purchased basic living necessities through

24 CoreCivic’s commissary during their period of detention.” Id.

25

26
3 Defendant contends that “Plaintiffs exclude Count Nine (Failure to Pay Compensation Upon
27 Termination/Waiting Time Penalties, Cal. Labor Code §§ 201–203) from the list of claims that this Class 28 is pursuing,” see ECF No. 118 at 12 (citing ECF No. 84-1 at 17); however, Plaintiffs explicitly include
Count Nine in their Notice of Motion, see ECF No. 84 at 1.

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1

A. Preliminary Considerations

2

Before addressing the Rule 23(a) and Rule 23(b)(3) factors, the Court addresses

3 Defendant’s arguments concerning the certification of the Basic Necessities Classes,

4 Plaintiffs’ standing to pursue prospective equitable relief, and the ascertainability of the

5 proposed classes.

6

1. The Basic Necessities Classes

7

As an initial matter, Defendant contends that “[t]he Court cannot certify the Basic

8 Necessities Classes because it ‘is bound to class definitions provided in the complaint and,

9 absent an amended complaint, will not consider certification beyond it.’” ECF No. 118 at

10 13 (citing Reyes v. Educ. Credit Mgmt. Corp., 322 F.R.D. 552, 559 (S.D. Cal. 2017)

11 (quoting Costelo v. Chertoff, 258 F.R.D. 600, 605 (C.D. Cal. 2009)), vacated & remanded

12 on other grounds, 773 Fed. App’x 989 (9th Cir. 2019)); Bee, Denning, Inc. v. Capital All.

13 Grp., 310 F.R.D. 614, 621 (S.D. Cal. 2015)). Defendant notes that, “[a]lthough a Court is

14 not precluded from considering a new class ‘that is narrower than the class definition

15 originally proposed,’ . . . Plaintiffs’ Basic Necessities Classes involve an entirely different

16 theory of liability, based on factual allegations that simply do not exist in the Complaint.”

17 Id. at 13–14 (quoting Bee, Denning, 310 F.R.D. at 621) (emphasis in original).

18

Plaintiffs counter that “the CA and National Basic Necessities Classes assert the

19 same theories of liability that Plaintiffs alleged in the FAC—namely, violations of the CA

20 TVPA, Federal TVPA, and UCL, as well as unjust enrichment and negligence.” ECF No.

21 127 at 6. “Further, the Basic Necessities Classes are also defined more narrowly than the

22 Nationwide and California Forced Labor Classes alleged in the FAC, which refer to ‘[a]ll

23 civil immigration detainees who performed Forced Labor’ generally, without any limiting

24 principle,” whereas “the Basic Necessities Classes tether the definition of ‘Forced Labor’

25 to ICE detainees that worked through CoreCivic’s VWP and purchased basic living

26 necessities at the commissary.” Id. at 6–7 (quoting FAC ¶ 30; ECF No. 84 at 1–2).

27

“Generally, a plaintiff may only seek to certify a class as defined in a complaint—

28 courts will not certify classes different from, or broader than, a class alleged in the

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1 complaint without plaintiff moving to amend the complaint.” Richie v. Blue Shield of Cal.,

2 No. C-13-2693 EMC, 2014 WL 6982943, at *13 (N.D. Cal. Dec. 9, 2014) (citing Savanna

3 Grp., Inc. v. Trynex, Inc., No. 10-cv-7995, 2013 WL 66181, at *2 (N.D. Ill. Jan. 4, 2013);

4 Costelo, 258 F.R.D. at 604–05). Despite Plaintiffs’ assertion that the Basic Necessities

5 Classes are “defined more narrowly” than the Forced Labor Classes alleged in their First

6 Amended Complaint, the Court concludes that those classes are new classes hinging on

7 allegations not appearing in the First Amended Complaint.

8

The First Amended Complaint’s only reference to the commissary is that “Plaintiffs

9 and detainees are/were only allowed to spend their $1 per day at the CoreCivic ‘company

10 store’ or commissary.” FAC ¶ 15. This is entirely different than alleging that Plaintiffs

11 had to spend their earnings at the commissary on basic necessities that were not provided

12 by Defendant. Indeed, the only mention of “basic necessities” is made in Defendant’s

13 Counter-Claim. See, e.g., ECF No. 70 at 31 ¶ 13 (“CoreCivic provides basic necessities to

14 all detainees housed in its California facilities, including but not limited to housing, food,

15 clothing, and recreation.”); id. at 33 ¶ 23 (same); id. at 35 ¶ 33 (“The work performed by

16 these detainees is performed for reasons other than compensation, as detainees

17 participating in the [VWP] do not participate in commerce and do not depend on the wages

18 they earn for basic necessities such as, for example, housing, food, clothing, and recreation,

19 while detained, as those necessities are provided to them at taxpayer expense.”); id. at

20 Prayer ¶ D (requesting “an order awarding CoreCivic all costs and expenses incurred in

21 providing basic necessities to Counter-Defendants and the putative class members,

22 including but not limited to housing, food, clothing, and recreation”).

23

If Plaintiffs uncovered the “basic necessities” theory of liability during discovery,

24 they should have diligently sought leave to amend their First Amended Complaint to assert

25 it. See, e.g., Stuart v. Radioshack Corp., No. C-07-4499 EMC, 2009 WL 281941, at *2

26 (N.D. Cal. Feb. 5, 2009) (granting motion for leave to file second amended complaint “to

27 broaden the scope of the class and then obtain certification of the broader class”); see also

28 Ortiz v. McNeil-PPC, Inc., No. 07CV678-MMA(CAB), 2009 WL 1322962, at *2 (S.D.

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1 Cal. May 8, 2009) (denying motion to file amended complaint to obtain class certification

2 where the “[p]laintiffs failed to exercise the requisite diligence in seeking to amend the

3 consolidated complaint”). But this Plaintiffs failed to do. In her July 27, 2018 Scheduling

4 Order, Magistrate Judge Stormes imposed a deadline of October 26, 2018, by which to file

5 “[a]ny motion to join other parties, to amend the pleadings, or to file additional pleadings.”

6 ECF No. 57 ¶ 3. On September 11, 2018, Plaintiffs sought leave to file the operative First

7 Amended Complaint, see ECF No. 64, which does not mention the provision of—let alone

8 the alleged forced purchase of—basic necessities. See generally FAC. Plaintiffs did not

9 seek leave to modify the Scheduling Order to add these allegations either before or after

10 filing the instant Motion for Class Certification, and they do not even attempt to make a

11 showing of good cause for allowing them to amend their class allegations at this stage. See

12 Ortiz, 2009 WL 1322962, at *2 (setting forth good cause standard under Rule 16(b) for

13 modification of scheduling order and concluding that the plaintiffs failed to exercise

14 diligence or make a showing of good cause); see also infra note 5.

15

Accordingly, the Court DENIES Plaintiffs’ Motion for Class Certification as to the

16 California and Nationwide Basic Necessities Classes, which were neither included in nor

17 narrower than the classes alleged in Plaintiffs’ First Amended Complaint. See, e.g., Davis

18 v. AT&T Corp., No. 15CV2342-DMS (DHB), 2017 WL 1155350, at *3–4 (S.D. Cal. Mar.

19 28, 2017) (declining to certify class where the “proposed class is not simply a narrower

20 version of that proposed in the Complaints” but rather “is an entirely different class”

21 because “the nature of the modification to the class definition (a completely different class),

22 whether additional discovery is required (yes) and whether Defendant will be prejudiced

23 (yes), weigh in favor of declining to address the amended class in this case”); Romero v.

24 Alta-Dena Certified Dairy, LLC, No. CV13-04846 R (FFMX), 2014 WL 12479370, at *1

25 (C.D. Cal. Jan. 30, 2014) (“Plaintiff’s proposed ‘Mandatory Uniform’ and ‘Auto Meal

26 Deduction’ classes encompass allegations and class definitions that are not found in the

27 operative first amended complaint. Certification of those classes is denied on that basis.”)

28 (citing Johnson v. Harley-Davidson Motor Co. Grp., 285 F.R.D. 573, 577 n.2 (E.D. Cal.

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1 2012); Costelo, 258 F.R.D. at 604–05); see also Hoffman v. Blattner Energy, Inc., 315

2 F.R.D. 324, 335 (C.D. Cal. 2016) (denying motion to certify class where the plaintiff had

3 failed to allege the underlying claim in his operative complaint and denying leave to amend

4 the complaint to add such a claim).

5

2. Standing

6

In the context of a putative class action, the plaintiff bears the burden of showing

7 that at least one named plaintiff meets the requirements for Article III standing as to each

8 form of relief sought. See Ellis v. Costco Wholesale Corp., 657 F.3d 970, 978 (9th Cir.

9 2011) (citing Bates v. United Parcel Serv., Inc., 511 F.3d 974, 985 (9th Cir. 2007)).

10

Here, it is undisputed that Plaintiffs have Article III standing for their claims for

11 monetary damages, restitution, interest, penalties, punitive damages, and fees and costs.

12 See ECF No. 144 at 1–2; ECF No. 148 at 2, 8. In addition, however, Plaintiffs seek

13 declaratory relief as to their causes of action for violation of the TVPA and the California

14 TVPA, see FAC ¶¶ 35(g), 39(c), 46, 58; see also id. Prayer ¶ b, as well as injunctive relief

15 as to their causes of action for violation of the TVPA, the California TVPA, and the UCL.

16 See FAC ¶¶ 35(e) & (g), 39(c), 47–48, 59–60, 69; see also id. Prayer ¶ c. To establish

17 standing for such prospective equitable relief, the plaintiff must be able to show “a

18 significant likelihood that she will be wronged again in a similar way.” Ellis, 657 F.3d at

19 978 (citing Bates, 511 F.3d at 985).

20

Mr. Owino’s detention, however, ended on March 9, 2015, see ECF No. 84-3 ¶ 2,

21 and Mr. Gomez’s on September 18, 2013,4 see ECF No. 84-4 ¶ 2, well before their initial

22 complaint was filed on May 31, 2017, see generally ECF No. 1, and the operative First

23

24

25 4 Plaintiffs’ status as former participants in the VWP presents other issues unrelated to standing. For

example, Plaintiffs assert a claim for waiting time penalties, see FAC ¶¶ 94–96; however, such penalties
26 “would be due to severed or terminated class members if Defendant[] were found liable on any of

27

the class claims,” Lusby v. Gamestop Inc., 297 F.R.D. 400, 410 (N.D. Cal. 2013) (emphasis added), whereas Plaintiffs seek to certify a class comprised of both former and current participants in the VWP.

28 See FAC ¶ 30. Accordingly, “[an unspecified portion] of the Class Members would be entitled to certain
penalties sought in the Complaint, but the [rest] would not.” See Lusby, 297 F.R.D. at 410.

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1 Amended Complaint on October 12, 2018. See generally ECF No. 67. On November 7,

2 2019, the Court therefore ordered “the Parties to submit additional briefing on the

3 following issues: (1) Mr. Owino’s and Mr. Gomez’s standing to pursue each form of relief

4 sought in their First Amended Complaint; (2) the implications of their standing (or lack

5 thereof) on their pending Motion for Class Certification; and (3) the redressability of their

6 standing (or lack thereof) by amendment.” ECF No. 143 at 3.

7

a. Named Plaintiffs’ Standing

8

In their supplemental brief, Plaintiffs contend that, “even through Plaintiffs were

9 released from CoreCivic’s custody prior to the filing of their original complaint, Plaintiffs

10 nonetheless have Article III standing to pursue their claims for prospective equitable relief”

11 because “[t]he Supreme Court has recognized that ‘[t]he violation of a procedural right

12 granted by statute can be sufficient in some circumstances to constitute injury in fact.”

13 ECF No. 144 at 3 (alteration in original) (quoting Spokeo, Inc. v. Robins, 578 U.S. ___,

14 136 S. Ct. 1540, 1543 (2016)). “Because Plaintiffs were actually harmed by conduct

15 proscribed by statute, and those statutes authorize prospective relief, Plaintiffs possess

16 Article III standing to pursue recovery in the form of injunctive and declaratory relief on

17 behalf of themselves and the proposed classes.” Id. at 4 (citing Ingalls v. Spotify USA, Inc.,

18 No. C 16-03533 WHA, 2017 WL 3021037, at *7 (N.D. Cal. July 17, 2017)).

19

Defendant counters that “a statute does not automatically confer Article III standing

20 simply because the statute authorizes prospective relief,” ECF No. 145 at 3–4 (citing Rivas

21 v. Rail Delivery Servs., Inc., 423 F.3d 1079, 1083 (9th Cir. 2005)), and “Plaintiffs lack

22 standing because they were not “exposed to a ‘real and immediate threat’ of future injury

23 at the time they filed their original Complaint.” Id. at 3 (citing Nordstrom v. Ryan, 856

24 F.3d 1265, 1270 n.2 (9th Cir. 2017)).

25

Defendant is correct that Spokeo does not relieve Plaintiffs seeking prospective

26 equitable relief from establishing a sufficient likelihood of future harm, see, e.g., Joslin v.

27 Clif Bar & Co., No. 4:18-CV-04941-JSW, 2019 WL 5690632, at *2 (N.D. Cal. Aug. 26,

28 2019) (recognizing after Spokeo that, “to show they have standing to seek injunctive relief,

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1 Plaintiffs must “demonstrate that [they have] suffered or [are] threatened with a ‘concrete

2 and particularized’ legal harm, coupled with a ‘sufficient likelihood that [they] will again

3 be wronged in a similar way’”) (quoting Bates v. United Parcel Serv., Inc., 511 F.3d 974,

4 985 (9th Cir. 2007)), and the Court concludes that Plaintiffs’ have failed to make the

5 requisite showing. There are no allegations in the First Amended Complaint regarding

6 Plaintiffs’ likelihood of being detained at a CoreCivic facility in the future. See generally

7 FAC; see also ECF No. 144 at 5–6 (“Plaintiffs respectfully submit to the Court that they

8 can amend the FAC to add . . . allegations[ that] would clarify Plaintiffs’ . . . ‘sufficient

9 likelihood’ . . . [of] be[ing] detained at a CoreCivic facility in the future.”). The Court

10 therefore concludes that Plaintiffs have failed to establish Article III standing to seek

11 injunctive relief in the operative First Amended Complaint.

12

b. Redressability Through Amendment

13

Because the Court determines that they have failed to establish standing to seek

14 prospective equitable relief, Plaintiffs request leave to amend their First Amended

15 Complaint to add new allegations regarding the “‘sufficient likelihood’ that both Plaintiffs

16 will be detained at a CoreCivic facility in the future and subject to CoreCivic’s challenged

17 policies and practices,” See ECF No. 144 at 6 (citing Davidson v. Kimberly-Clark Corp.,

18 873 F.3d 1103, 1113 (9th Cir. 2017)), or to add a new class representative. See id. at 7–9.

19 Plaintiffs note that their “counsel have been retained by a former detainee and putative

20 class member, Achiri Nelson Geh, who was subject to and harmed by the same policies

21 and practices as Plaintiffs while detained at Otay Mesa Detention Center [(“OMDC”)]

22 between April 24, 2017[,] and October 28, 2019.” Id. at 7. Additionally, “there are putative

23 class members who are presently detained at CoreCivic’s facilities who also have Article

24 III standing to assert a claim for prospective equitable relief.” Id. at 8.

25

Defendant responds that amendment would be futile because Plaintiffs have “waived

26 any classwide prospective relief” by “fail[ing] to seek certification of the putative classes

27 pursuant to Rule 23(b)(2).” ECF No. 145 at 5. Further, “Plaintiffs do not even try to meet

28 their burden under Rule 15 for amending pleadings.” ECF No. 145 at 7 (citing Foman v.

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1 Davis, 371 U.S. 178, 182 (1962)). In any event, “add[ing] a new class representative

2 cannot resurrect the class claims for prospective relief,” id. at 6 (citing Lierboe v. State

3 Farm Mut. Auto. Ins. Co., 350 F.3d 1018, 1023 (9th Cir. 2013)), and Mr. Geh—as a former

4 detainee himself—“would not be a proper substitute anyway.” Id. at 6 n.3. Mr. Owino’s

5 and Mr. Gomez’s proposed amendments also “fall woefully short of establishing a ‘real

6 and immediate threat of repeated injury.’” Id. at 7 (quoting Fortyune v. Am. Multi-Cinema,

7 Inc., 364 F.3d 1075, 1081 (9th Cir. 2004)).

8

On reply, Plaintiffs respond that they have not “‘waived’ their claims for prospective

9 equitable relief by moving for class certification under Rule 23(b)(3)” because “courts

10 routinely certify classes seeking both damages and prospective equitable relief under Rule

11 23(b)(3)” and seeking certification under Rule 23(b)(2) would be “questionable . . . given

12 the significance of the proposed classes’ claims for damages.” ECF No. 148 at 1. Plaintiffs

13 also reiterate that “there is ‘a sufficient likelihood that [plaintiff] will again be wronged in

14 a similar way,’” id. at 9 (quoting Davidson, 873 F.3d at 1113) (alteration in original), and

15 that “other members of the putative class can be substituted into the case as named

16 Plaintiffs in the event the Court finds that Plaintiffs do not possess Article III standing to

17 pursue prospective equitable relief,” including Mr. Geh; “all named plaintiffs in the

18 currently stayed action Gonzalez, et al. v. CoreCivic, Inc., Case No. 17-CV-2573 JLS

19 (NLS)”; and any of the “hundreds of putative class members who are currently incarcerated

20 at CoreCivic’s facilities.” Id. at 9–10.

21

The Court concludes that Plaintiffs cannot cure Mr. Owino’s and Mr. Gomez’s lack

22 of standing through amendment. First, the Court agrees with Defendant that amendment

23 would be futile as to Mr. Owino and Mr. Gomez because their proposed amendments fail

24 to allege a sufficient likelihood of future harm. Although the Court acknowledges and

25 agrees that Mr. Owino and Mr. Gomez “have reasonable, deeply held concerns and fears

26 that they will be detained in the future,” see ECF No. 144 at 6 (citing ECF No. 144-1

27 ¶¶ 6–11; ECF No. 144-2 ¶¶ 6–13), their proposed amendments fall short of establishing

28 that repeat detention is “certainly impending.” See Davidson, 873 F.3d at 1113. As

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1 Defendant notes, Mr. “Owino has been out of ICE custody for four years, [Mr.] Gomez has

2 been out of ICE custody for six years, and neither has been arrested or detained by ICE

3 since—even in the 2 ½ years after filings this lawsuit.” ECF No. 145 at 8 (citing ECF No.

4 144-1 ¶ 3; ECF No. 144-2 ¶ 3). Accordingly, even if the Court were to permit amendment,5

5

6

7

5 Defendant is also correct that Plaintiffs have not attempted to make the requisite showing for leave to amend. See ECF No. 145 at 7. Although Defendant analyzes the propriety of amendment under Federal

8 Rule of Civil Procedure 15, see id., Magistrate Judge Stormes set a deadline to amend the pleadings of
October 26, 2018. See ECF No. 57 ¶ 3. Accordingly, Plaintiffs must establish “good cause” to modify

9 Magistrate Judge Stormes’ scheduling order pursuant to Federal Rule of Civil Procedure 16(b)(4). See,
e.g., Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 608–09 (9th Cir. 1992). “Unlike Rule 15(a)’s
10 liberal amendment policy[,] which focuses on the bad faith of the party seeking to interpose an amendment

11

and the prejudice to the opposing party, Rule 16(b)’s ‘good cause’ standard primarily considers the diligence of the party seeking the amendment.” Id. at 609. If the party seeking to modify the scheduling

12 order “was not diligent, the inquiry should end.” Id. “[C]ourts often find good cause when the motion to
amend the scheduling order is based upon new and pertinent information,” but not where the amendment

13 is “based on information that ha[s] been available to [the party] throughout the suit.” Lyon v. U.S.
Immigration & Customs Enf’t, 308 F.R.D. 203, 216 (N.D. Cal. 2015) (citing Johnson, 975 F.2d at 609;
14 Pumpco, Inc. v. Schenker Int’l, Inc., 204 F.R.D. 667, 668 (D. Colo. 2001)); see also In re W. States

15

Wholesale Nat. Gas Antitrust Litig., 715 F.3d 716, 737 (9th Cir. 2013) (affirming district court’s denial of leave to amend because “[t]he good cause standard typically will not be met where the party seeking to

16 modify the scheduling order has been aware of the facts and theories supporting amendment since the
inception of the action.”), aff’d, 135 S. Ct. 1591 (2015).

17
Here, Plaintiffs have not “specifically request[ed] that the court modify the scheduling order,” Wolf v.
18 Hewlett Packard Co., No. CV1501221BROGJSX, 2016 WL 8931307, at *4 (C.D. Cal. Apr. 18, 2016)

19

(citing C.F. v. Capistrano Unified Sch. Dist., 647 F. Supp. 2d 1187, 1190 (C.D. Cal. 2009)), nor have they attempted to show due diligence. See Coleman v. Quaker Oats Co., 232 F.3d 1271, 1294–95 (9th Cir.

20 2000) (affirming denial of motion to amend where plaintiffs “failed to show diligence”). That alone
suffices to end the Court’s good cause inquiry, see Johnson, 975 F.2d at 609; see also Hoffman, 315 F.R.D.

21 at 336; however, despite Plaintiffs’ well-founded objections to access to Defendant’s detainees, see Tr. at
53:21–57:12, they have been in possession of all facts relevant to their standing since the inception of this
22 suit and, pursuant to Federal Rule of Civil Procedure 11, had an affirmative duty to investigate the

23

theoretical underpinnings of their complaint—including their standing—before filing. See Soto v. Castlerock Farming & Transp., Inc., No. 1:09-CV-00701 AWI, 2011 WL 3489876, at *7 (E.D. Cal. Aug.

24 9, 2011) (“Plaintiffs have known the causes of action since at least the filing of the first complaint in 2005,
and named [the named plaintiffs] as the class representatives in 2009. Plaintiffs were obligated to know

25 at that time whether they adequately represented the claims they brought in that complaint.”) (citing Fed.
R. Civ. P. 11(b)(3)); see also Kunimoto v. Fidell, 26 Fed. App’x 630, 631–32 (9th Cir. 2001) (affirming
26 imposition of Rule 11 sanctions where complaint was filed by plaintiffs lacking standing). Accordingly,

27

denial of leave to amend to cure Plaintiffs’ standing is appropriate. See, e.g., In re W. States, 715 F.3d at 737; Johnson, 975 F.3d at 609–10; Wolf, 2016 WL 8931307, at *6 (denying leave to amend where “it

28 appears Plaintiff has been aware of the facts giving rise to the need for amendment since the inception of
this action” and “Plaintiff therefore fails to establish good cause”); Soto, 2011 WL 3489876, at *7.

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1 Plaintiffs’ proposed amendments would fail to establish Article III standing to pursue their

2 claims for prospective equitable relief. See, e.g., Mendia v. Garcia, 165 F. Supp. 3d 861,

3 895 (N.D. Cal. 2016) (“Although Plaintiff articulates his fear of being subject to another

4 immigration detainer, he does not explain why or how this is likely to occur again.”);

5 Diamond v. Corizon Health, Inc., No. 16-CV-03534-JSC, 2016 WL 7034036, at *5 (N.D.

6 Cal. Dec. 2, 2016) (“Plaintiffs . . . fail to demonstrate a risk of repeated injury because the

7 repeated injury would require a string of contingencies to occur to Plaintiffs. Plaintiffs’

8 alleged threat of injury would first require their arrest and placement in custody at an

9 Alameda County jail.”).

10

Second, the proposed amendment would also be futile as to Mr. Geh. Although

11 Mr. Geh was detained when this action and the operative First Amended Complaint were

12 filed, that does not mean that he would have standing as of the date of a future amendment

13 to add him as a named plaintiff. While generally “[s]tanding is determined by the facts

14 that exist at the time the complaint is filed,” Gonzalez v. Immigration & Customs Enf’t,

15 No. CV1304416BROFFMX, 2014 WL 12605369, at *3 (C.D. Cal. Oct. 24, 2014) (quoting

16 Clark v. City of Lakewood, 259 F.3d 996, 1006 (9th Cir. 2001) (citing Lujan v. Defenders

17 of Wildlife, 504 U.S. 555, 569 n.4 (1992)), “[t]he standing of a later-added plaintiff is

18 determined as of the date of the amended complaint which brought him into the action.”

19 Id. (citing Lynch v. Leis, 382 F.3d 642, 647 (6th Cir. 2004)). Consequently, Mr. Geh “has

20 no standing” because “he is not currently detained [at OMDC] or in ICE custody.” See

21 ECF No. 145 at 6 n.3 (emphasis in original) (citing ECF No. 144-3 ¶¶ 2, 16).

22

Third, Defendant is correct that substitution of one of the named plaintiffs in the

23 Gonzalez action or another current CoreCivic detainee would be improper under these

24 circumstances. See ECF No. 145 at 6. “In a complaint involving multiple claims, at least

25 one named plaintiff must have Article III standing for each asserted claim.” Hoffman, 315

26 F.R.D. at 333 (emphasis in original) (citing In re Carrier IQ, Inc., Consumer Privacy Litig.,

27 78 F. Supp. 3d 1051, 1070 (N.D. Cal. 2015); Newberg on Class Actions § 2:5 (5th ed.)).

28 “A finding that no class representative has standing with respect to a given claim requires

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1 dismissal of that claim.” Id. (quoting Newberg on Class Actions § 2:5 (5th ed.)); see also

2 Lierboe, 350 F.3d at 1023 (remanding with instructions to dismiss where the named

3 plaintiff never had standing to assert claim). Because neither Mr. Owino nor Mr. Gonzalez

4 had standing to assert claims for prospective equitable relief when they initiated this case,

5 the Court DISMISSES WITHOUT PREJUDICE Plaintiffs’ first, second, and third

6 causes of action to the extent they seek injunctive and/or declaratory relief.6 See, e.g.,

7 Davis v. Homecomings Fin., No. C05-1466RSL, 2007 WL 1600809, at *4–5 (W.D. Wash.

8 June 1, 2007) (decertifying class and concluding that “substitution is not warranted because

9 this is not a case where the named plaintiff had a valid claim that later became moot”); In

10 re Admin. Comm. Erisa Litig., No. C03-3302 PJH, 2005 WL 3454126, at *8 (N.D. Cal.

11 Dec. 16, 2005) (denying motion for class certification and dismissing complaint where

12 named plaintiff failed to establish standing); Williams v. Boeing Co., No. C98-761P, 2005

13 WL 2921960, at *10 (W.D. Wash. Nov. 4, 2005) (decertifying class as to certain claims

14 and concluding that “intervention would not be appropriate” because “the named Plaintiffs

15 have not demonstrated standing in the first instance to maintain such claims”), aff’d in part,

16 dismissed in part, 517 F.3d 1120 (9th Cir. 2008).

17

c. Implications for Class Certification

18

Because Plaintiffs have failed to establish standing to pursue injunctive or

19 declaratory relief, the Court DENIES Plaintiff’s Certification Motion as to Plaintiffs’

20 claims for prospective equitable relief and DISMISSES WITHOUT PREJUDICE those

21 claims. See supra Section II.A.2.b; see also, e.g., Slayman v. FedEx Ground Package Sys.,

22 Inc., 765 F.3d 1033, 1047–48 (9th Cir. 2014) (reversing certification of class claims for

23 prospective relief where named plaintiffs were no longer employed by defendant at time

24 class was certified and therefore lacked standing) (citing Bd. of Sch. Comm’rs of

25 Indianapolis v. Jacobs, 420 U.S. 128, 129 (1975) (per curiam), Kuahulu v. Emp’rs Ins. of

26

27 6 The Court therefore does not reach Defendant’s argument that Plaintiffs have “waived any classwide 28 prospective relief” by “fail[ing] to seek certification of the putative classes pursuant to Rule 23(b)(2).”
ECF No. 145 at 5.

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1 Wausau, 557 F.2d 1334, 1336–37 (9th Cir. 1977)); Gustafson v. Goodman Mfg. Co. LP,

2 No. CV-13-08274-PCT-JAT, 2016 WL 1029333, at *8 (D. Ariz. Mar. 14, 2016) (“If a

3 plaintiff lacks standing or has no claim ‘she cannot represent others who may have such a

4 claim, and her bid to serve as a class representative must fail.’”) (quoting Lierboe, 350 F.3d

5 at 1022; Pence v. Andrus, 586 F.2d 733, 736–37 (9th Cir. 1978)); see also B.C. v. Plumas

6 Unified Sch. Dist., 192 F.3d 1260, 1264 (9th Cir. 1999) (affirming district court’s dismissal

7 of class claims for injunctive relief where named plaintiff was no longer a student of the

8 defendant school district and therefore lacked standing to seek injunctive relief);

9 Balasanyan v. Nordstrom, Inc., 294 F.R.D. 550, 562 (S.D. Cal. 2013) (concluding that

10 named plaintiffs who were former employees of the defendant could “[]not establish a

11 sufficient likelihood that they w[ould] again be wronged by [the defendant employer]’s

12 allegedly improper conduct,” meaning that the plaintiffs “ha[d] no standing to pursue

13 injunctive relief and, therefore, their claims are not typical of the proposed class”).

14

But “CoreCivic does not dispute that Plaintiffs possess Article III standing to seek

15 monetary damages, restitution, interest, penalties, punitive damages, and fees and costs for

16 the putative classes. Nor does CoreCivic dispute in its Supplemental Brief that the Court

17 can and should certify the . . . proposed classes as to claims seeking these remedies.” ECF

18 No. 148 at 2. The Court therefore concludes that it may continue the class certification

19 analysis as to Plaintiffs’ remaining claims. See, e.g., Balasanyan, 294 F.R.D. at 562

20 (granting class certification as to remaining claims despite denying certification as to

21 claims for injunctive relief, for which the named plaintiffs failed to establish standing).

22

3. Ascertainability

23

Defendant challenges the “ascertainability” of Plaintiffs’ proposed classes,

24 contending that the Class definitions are over-inclusive and too vague and that the Class

25 periods are overly broad. See ECF No. 118 at 14–18. Plaintiffs respond that “the Ninth

26 Circuit has expressly rejected imposing an ‘ascertainability’ requirement for class

27 certification.” ECF No. 127 at 7 (citing Briseno v. ConAgra Foods, Inc., 844 F.3d 1121,

28 1124 n.4 (9th Cir.), cert. denied, 138 S. Ct. 313 (2017)).

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1

Plaintiffs are correct: In Briseno, the Ninth Circuit clarified that “ascertainability”

2 is not a pre-requisite to class certification and that “the types of alleged definitional

3 deficiencies other courts have referred to as ‘ascertainability’ issues . . . [are addressed]

4 through analysis of Rule 23’s enumerated requirements.” 844 F.3d at 1124 n.4

5 (citing Torres v. Mercer Canyons Inc., 835 F.3d 1125, 1136–39 (9th Cir. 2016); Probe v.

6 State Teachers’ Ret. Sys., 780 F.2d 776, 780 (9th Cir. 1986)). The Court therefore

7 addresses Defendant’s challenges to the breadth and vagueness of the Class definitions and

8 periods below.

9

B. Rule 23(a) Requirements

10

1. Numerosity

11

“[A] proposed class must be ‘so numerous that joinder of all members is

12 impracticable.’” Rannis v. Recchia, 380 Fed. App’x 646, 650 (9th Cir. 2010) (quoting Fed.

13 R. Civ. P. 23(a)(1)). While “[t]he numerosity requirement is not tied to any fixed numerical

14 threshold[,] . . . [i]n general, courts find the numerosity requirement satisfied when a class

15 includes at least 40 members.” Id. at 651.

16

Plaintiffs claim that Rule 23(a)’s numerosity requirement is satisfied because “the

17 CA Labor Law Class has at least 8,346 putative class members” and, “[w]hile the exact

18 size of the other [two] proposed classes are not currently known, general knowledge and

19 common sense indicate that they are large enough to satisfy the numerosity requirement of

20 Rule 23(a).” ECF No. 87 at 15 (citing Ridley Decl. Exs. 45–50 & 88, ECF Nos. 85-46–51

21 & 85-89 (public redacted versions), ECF Nos. 87-33–38 & 87-76 (sealed versions)). This

22 is because “[t]he CA Forced Labor Class and the National Forced Labor Class arise out of

23 CoreCivic’s policy and practice of requiring ‘all’ ICE detainees at its facilities to perform

24 cleaning work outside of the ICE detainees’ immediate living areas under threat of

25 discipline,” meaning those “classes will necessarily include several thousands of former

26 and current ICE detainees, and the requirement of numerosity is satisfied.” Id. at 16

27 (emphasis in original).

28 / / /

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1

Defendant counters that Plaintiffs have failed to meet their burden because “[a]

2 higher level of proof than mere common[-]sense impression or extrapolation from cursory

3 allegations is required.” ECF No. 118 at 18 (quoting Allen v. Similasan Corp.

4 (“Similasan”), 306 F.R.D. 635, 681 (S.D. Cal. 2015)) (alteration in original). Regarding

5 the California Labor Law Class, for example, the exhibits to which Plaintiffs cite “identify

6 only 55 detainees who received an account deposit for ‘Job Pay[,]’” and “Plaintiffs fail to

7 identify the number of detainees who were eligible for, but did not receive, a rest period,

8 meal period, or overtime wages.” Id. at 18–19. Similarly, Plaintiffs’ “speculation

9 [regarding the sizes of the Force Labor Classes] does not satisfy the numerosity

10 requirement.” Id. at 20 (citing Schwartz v. Upper Deck Co., 183 F.R.D. 672, 681 (S.D.

11 Cal. 1999)).

12

Plaintiffs rejoin that “[t]he numerosity requirement is satisfied for each proposed

13 class.” ECF No. 127 at 9. As for the California Labor Law Class, “Plaintiffs filed excerpts

14 of the OMS reports because their size renders them nearly impossible to file on the public

15 docket.” Id. As for the Forced Labor Classes, “each will necessarily include several

16 thousands of former and current ICE detainees” because they “arise out of CoreCivic’s

17 policy and practice of requiring ‘all’ ICE detainees to perform cleaning work outside of

18 the ICE detainees’ immediate living areas under threat of discipline.” Id. at 10 (emphasis

19 in original).

20

The Court concludes that Plaintiffs have satisfied Rule 23(a)’s numerosity

21 requirement for the California Labor Law Class, the California Forced Labor Class, and

22 the Nationwide Forced Labor Class. Plaintiffs need not prove the identity of each class

23 member at the class certification stage, see, e.g., Allen v. Hyland’s Inc. (“Hyland’s”), 300

24 F.R.D. 643, 658 (C.D. Cal. 2014), and the Court concludes that it is readily apparent from

25 the number of ICE detainees Defendant has housed in its various facilities in California

26 and nationwide over the years at issue that the classes are so numerous that it would be

27 impracticable to join all parties here. See, e.g., Similasan, 306 F.R.D. at 644 (concluding

28 that it was “readily apparent that the class is so numerous that it would be impracticable to

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1 join all parties” where the “[d]efendant sells its Products through at least thirteen

2 retailers”); Hyland’s, 300 F.R.D. at 660 (finding that numerosity “is easily satisfied given

3 that the putative class action includes consumers of twelve products sold nationwide over

4 the course of several years”).

5

2. Commonality

6

Rule 23(a)(2) requires that “there are questions of law or fact common to the class.”

7 Fed. R. Civ. P. 23(a)(2). To satisfy this requirement, “[a]ll questions of fact and law need

8 not be common to satisfy the rule. The existence of shared legal issues with divergent

9 factual predicates is sufficient, as is a common core of salient facts coupled with disparate

10 legal remedies within the class.” Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir.

11 1998). The common contention, however, “must be of such a nature that it is capable of

12 classwide resolution—which means that determination of its truth or falsity will resolve an

13 issue that is central to the validity of each one of the claims in one stroke.” Wal-Mart, 564

14 U.S. at 350.

15

Plaintiffs argue that their “claims all hinge on common contentions that are capable

16 of classwide resolution.” ECF No. 87 at 16. Defendant contends that Plaintiffs have failed

17 to establish that Defendant has policies or practices common to all putative class members,

18 see ECF No. 118 at 25–29, and that individual questions predominate. See id. at 29–33.

19 Because Plaintiffs and Defendant have collapsed their arguments concerning the

20 predominance of common issues under Rule 23(b)(3) with their discussion of commonality

21 under Rule 23(a)(2), compare ECF No. 87 at 24; and ECF No. 127 at 10–12, with ECF No.

22 118 at 24–33, the Court discusses both commonality and predominance under the “far more

23 demanding” Rule 23(b)(3) predominance analysis. See infra Section II.C.1; see also ECF

24 No. 118 at 25 (quoting Amchem Prods. Inc. v. Windsor, 521 U.S. 591, 624 (1997)).

25

3. Typicality and Adequacy

26

The Ninth Circuit has explained that “representative claims are ‘typical’ if they are

27 reasonably co-extensive with those of absent class members; they need not be substantially

28 identical.” Staton, 327 F.3d at 957; Hanlon, 150 F.3d at 1019. The test of typicality “is

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1 whether other members have the same or similar injury, whether the action is based on

2 conduct which is not unique to the named plaintiffs, and whether other class members have

3 been injured by the same course of conduct.” Schwartz v. Harp, 108 F.R.D. 279, 282 (C.D.

4 Cal. 1985).

5

Rule 23(a)(4) also requires that “the representative parties will fairly and adequately

6 protect the interests of the class.” “To determine whether the representation meets this

7 standard, [courts] ask two questions: (1) Do the representative plaintiffs and their counsel

8 have any conflicts of interest with other class members, and (2) will the representative

9 plaintiffs and their counsel prosecute the action vigorously on behalf of the class?” Staton,

10 327 F.3d at 957.

11

a. Representative Plaintiffs

12

Plaintiffs contend that their “own claims are typical of the classes that they seek to

13 represent” because, “[l]ike the putative class members, Plaintiffs were also subject to

14 CoreCivic’s uniform policies and practices.” ECF No. 87 at 22. Further, Plaintiffs urge

15 that they will adequately represent the proposed Classes because “Plaintiffs each seek relief

16 on behalf of the class as a whole and have no interest antagonistic to other class members.”

17 Id. at 23. Defendant raises several challenges to Mr. Owino’s and Mr. Gomez’s adequacy

18 and typicality, see ECF No. 118 at 20–24, which the Court addresses in turn.

19

i. Membership in the Proposed Classes

20

First, Defendant argues that neither Mr. Owino nor Mr. Gomez has demonstrated

21 through his declaration that he is a member of any of the proposed classes he seeks to

22 represent. See ECF No. 87 at 21–22, 23. Plaintiffs respond that they need “not specifically

23 define the dates and times on which the labor law violations occurred” and that “CoreCivic

24 failed to submit any documents or records establishing that Plaintiff did not work during

25 the applicable limitations period in spite of the fact that CoreCivic employed Mr. Owino

26 and Mr. Gomez and w[as] better positioned (and required by California law) to maintain

27 such employment records.” ECF No. 127 at 12.

28 / / /

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1

The Forced Labor Classes: The Court concludes that both Mr. Owino and

2 Mr. Gomez have adequately established for purposes of class certification that they are

3 members of the California and National Forced Labor Classes. For example, Mr. Owino

4 and Mr. Gomez both attest that “[d]etainees were . . . responsible for removing trash from

5 the common areas of the living pods on a daily basis, sweeping and mopping floors, and

6 cleaning toilet bowls, sinks, showers, and furniture,” ECF No. 84-3 ¶ 20 (emphasis added);

7 ECF No. 84-4 ¶ 16 (emphasis added), and that they “were not paid for working to clean

8 the common areas when instructed by OMDC staff.” ECF No. 84-3 ¶ 21; ECF No. 84-4

9 ¶ 17. Further, the detainees “almost always complied,” ECF No. 84-3 ¶ 23; ECF No. 84-4

10 ¶ 19, “to avoid any punishment,” ECF No. 84-3 ¶ 24; see also ECF No. 84-4 ¶ 20, because

11 non-compliant detainees “could be subject to more random and frequent searches and cell

12 tossing,” “removed from the general living pod and placed in more restrictive housing,” or

13 saddled with a disciplinary note in their files that “could negatively impact [their] case

14 before the judge.” ECF No. 84-3 ¶ 23; ECF No. 84-4 ¶ 19.

15

The California Labor Law Class: The Court concludes that Mr. Owino and

16 Mr. Gomez adequately have established that they were never paid a minimum wage

17 through the VWP program, see ECF No. 84-3 ¶ 10; ECF No. 84-4 ¶ 8, and that they never

18 received wage statements. See ECF No. 84-3 ¶ 13; ECF No. 84-4 ¶ 10. As such, the Court

19 also concludes that they have established for purposes of class certification that Defendant

20 failed to pay compensation upon termination and imposed unlawful terms and conditions

21 of employment.7

22

As for the claims for failure to pay overtime wages and failure to provide mandated

23 meal and rest periods, however, the Court concludes that Mr. Owino has established that

24 he is a member of the class for his work in the kitchen but that Mr. Owino and Mr. Gomez

25 have failed to establish that they are members of the class for any other positions they held

26

27 7 Mr. Owino’s and Mr. Gomez’s claims for waiting time penalties, however, may not be typical of those 28 of the Class to the extent Mr. Owino and Mr. Gomez seek to represent current detainees still participating
in the VWP. See supra note 4.

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1 while detained by Defendant.8 As for Mr. Owino’s work in the kitchen, he attests that he

2 “worked in the kitchen on and off throughout each period of detention at OMDC.” ECF

3 No. 84-3 ¶ 5. His “normal shift in the kitchen was from 3:00 a.m. – 12:00 p.m., five days

4 per week,” id. ¶ 6, and that his “usual schedule would be to work from 3:00 a.m. until about

5 6:30 a.m.” and from 7:00 a.m. to “12:00 p.m. without any other scheduled rest break.” Id.

6 ¶ 7. Although there was typically a meal “break” between 6:30 a.m. and 7:00 a.m., the

7 kitchen crew had to use at least some of that time to prepare their own meals. Id. Further,

8 “there were many instances where [Mr. Owino] and other kitchen workers would work

9 more than [their] shift[,] . . . including up to 14 working hours in a day.” Id. ¶ 6. Mr. Owino

10 was paid $1.00 per day, id. ¶ 10, regardless of the length of his shift or any extra hours

11 worked. See id. ¶ 11. His pay was also capped at $5.00 per week, meaning that when he

12 worked a sixth and/or seventh day each week, he would not receive any additional

13 payment. See id. ¶ 22. Accordingly, Mr. Owino has proven that, as a member of the

14 kitchen crew, he may not have been paid overtime, provided with mandatory rest periods,

15 and provided with proper meal periods.

16

But the declarations fail to provide sufficient detail as to Mr. Owino’s work as a

17 chemical porter and cleaner or as to Mr. Gomez’s work as a cleaner for the Court to

18 conclude that they are members of the California Labor Class as to the overtime and rest

19 and meal break claims as to those positions. Mr. Owino and Mr. Gomez both attest that

20 there was “no set shift” for these positions and that they were expected to “work ‘until the

21 job was done[,]’” without any “scheduled rest or meal breaks.” ECF No. 84-3 ¶¶ 8–9; ECF

22 No. 84-4 ¶ 7. From the limited evidence in the record, it appears that the “typical” schedule

23 for these positions was between two and six hours per shift, see ECF No. 118-5 at 479

24

25
8 There also may exist typicality issues where, as here, the representative plaintiffs seek to represent a
26 class comprised of individuals holding positions that differ from their own. See, e.g., Kelley v. SBC, Inc.,

27

No. 97-CV-2729 CW, 1998 WL 1794379, at *15 (N.D. Cal. Nov. 18, 1998) (“[T]he typicality requirement is not met for a class that would include both employees in Plaintiffs’ positions, in which there is

28 substantial diversity, and other positions that named Plaintiffs do not hold. The Court thus finds that
Plaintiffs meet the typicality requirement only as to a class comprised of the positions that they held.”).

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1 ¶¶ 40–42;9 however, a rest period is only mandated for shifts lasting at least three-and-a-

2 half hours, IWC Order No. 5-2001, Section 12(A), while a meal break is only required for

3 shifts lasting at least five hours. See Cal. Labor Code § 512(a). Plaintiffs therefore have

4 failed to establish that they were entitled to overtime or meal or rest periods for work

5 performed as chemical porters or cleaners.

6

ii. Statute of Limitations

7

Second, Defendant contends that both Mr. Owino and Mr. Gomez may be time-

8 barred from pursuing claims under the California Labor Code and IWC Orders. See ECF

9 No. 118 at 23–24. Plaintiffs counter that “possible differences in the application of a statute

10 of limitations to individual class members, including the named plaintiff, does not preclude

11 certification of a class action so long as the necessary commonality and, in the 23(b)(3)

12 class action, predominance, are otherwise present.” ECF No. 127 at 13 (quoting Dibb v.

13 Allianceone Receivables Mgmt., Inc., No. 14-5835 RJB, 2015 WL 8970778, at *8 (W.D.

14 Wash. Dec. 16, 2015)).

15

The Court must first determine the applicable class periods. Plaintiffs claim that

16 their “claims for unpaid wages and for violations of the UCL are all governed by a

17 four[-]year statute of limitations.” ECF No. 160 at 3 (citing White v. Home Depot U.S.A.,

18 Inc., No. 17-cv-00752-BAS-AGS, 2019 WL 1171163, at *24 (S.D. Cal. Mar. 13, 2019)).

19 Defendant responds that the California Labor Code claims are time-barred and that

20 Plaintiffs can pursue only the UCL claim. See ECF No. 164 at 2–3 (citing Mendoza v.

21 Bank of Am. Corp., No. 19-cv-02491-LB, 2019 WL 4142140, at *9 (N.D. Cal. Aug. 30,

22 2019); Vasquez v. Randstad US, L.P., No. 17-CV-04342-EMC, 2018 WL 327451, at *4

23 (N.D. Cal. Jan. 9, 2018); Van v. Language Line Servs., Inc., No. 14-CV-03791-LHK, 2016

24 WL 3143951, at *30 (N.D. Cal. June 6, 2016), aff’d in part, 733 F. App’x 349 (9th Cir.

25 2018); Cortez v. Purolator Air Filtration Prods. Co., 23 Cal. 4th 163, 178–79 (2000)).

26

27 28 9 Pin citations to Defendant’s exhibits refer to the pagination provided by Defendant at the bottom of each
page.

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1

For purposes of the Certification Motion, this is a distinction without a difference:

2 Even if Plaintiff’s claims under the California Labor Code are time-barred, they still may

3 recover for the majority of the alleged violations under the UCL. Accordingly, the Class

4 Period for the California Labor Class to the extent it is predicated on Defendant’s alleged

5 failure to pay wages, including the meal and rest break claims, see Tompkins v. C & S

6 Wholesale Grocers, Inc., No. 2:11-CV-02836-GEB, 2012 WL 639349, at *5 (E.D. Cal.

7 Feb. 27, 2012) (citing Tomlinson v. Indymac Bank, F.S.B., 359 F. Supp. 2d 891, 898 (C.D.

8 Cal. 2005)), begins May 31, 2013. Magadia v. Wal-Mart Assocs., Inc., 384 F. Supp. 3d

9 1058, 1076 (N.D. Cal. 2019) (citing Cortez v. Purolator Air Filtration Prods. Co., 23 Cal.

10 4th 163, 179 (2000)). The waiting time claims and wage statement claims, however, seek

11 remedies that cannot be pursued under the UCL. See, e.g., Gomez v. J. Jacobo Farm Labor

12 Contractor, Inc., No. 115CV01489AWIBAM, 2019 WL 5787805, at *25–26 (E.D. Cal.

13 Nov. 6, 2019) (wage statement claims); Pineda v. Bank of Am., N.A., 50 Cal. 4th 1389,

14 1401–02 (2010) (waiting time claims). Consequently, the Class Period for the California

15 Labor Law Class to the extent it is predicated on Defendant’s alleged failure timely to pay

16 compensation upon termination begins May 31, 2014, see Hassan v. Praxair, Inc., No.

17 LACV1802811JAKAFMX, 2019 WL 3064435, at *5 (C.D. Cal. Mar. 4, 2019), and there

18 are two Class Periods for Defendant’s alleged failure to provide wage statements, see

19 Troester v. Starbucks Corp., No. CV1207677CJCPJWX, 2019 WL 2902487, at *2 (C.D.

20 Cal. May 21, 2019) (collecting cases): (1) for purposes of penalties, the Class Period begins

21 May 31, 2016, pursuant to California Code of Civil Procedure section 340; and (2) for

22 purpose of actual damages, the Class Period begins May 31, 2014, pursuant to California

23 Code of Civil Procedure section 338. See Gomez, 2019 WL 5787805, at *23; Troester,

24 2019 WL 2902487, at *2; Franke v. Anderson Merchandisers LLC, No. CV173241

25 DSFAFMX, 2017 WL 3224656, at *8 (C.D. Cal. July 28, 2017).

26 / / /

27 / / /

28 / / /

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1

Mr. Gomez was released from detention on September 18, 2013, see ECF No. 84-4

2 ¶ 2, and Mr. Owino was released on March 9, 2015.10 See ECF No. 84-3 ¶ 2. On the

3 current record, it appears that Mr. Owino is part of the California Labor Law Class for the

4 wage claims, for failure to pay compensation upon termination, and for waiting time

5 penalties and actual damages for the failure to provide wage statements, whereas

6 Mr. Gomez is only part of the California Labor Law Class for the wage claims.

7 Mr. Owino’s inability to pursue penalties under Section 226 and Mr. Gomez’s inability to

8 pursue waiting time penalties under Section 203 and either penalties or actual damages

9 under Section 226 present a legitimate challenge to their typicality. See Lindblom v.

10 Santander Consumer USA, Inc., No. 15-CV-0990-BAM, 2018 WL 573356, at *5 (E.D.

11 Cal. Jan. 26, 2018) (“[T]his Court and other courts in this Circuit routinely preclude

12 potentially time-barred plaintiffs from serving as class representatives when they seek

13 to represent members with timely claims.”) (collecting cases); Deirmenjian v. Deutsche

14 Bank, A.G., No. CV0600774MMMRCX, 2010 WL 11505699, at *25 (C.D. Cal. May 13,

15 2010) (“Because none of the proposed class representatives appears to have a viable claim,

16 the court finds that the typicality requirement is not satisfied.”); Blackwell v. SkyWest

17 Airlines, Inc., 245 F.R.D. 453, 463 (S.D. Cal. 2007) (“Plaintiff experienced no harm within

18 the one year statute of limitations because she did not receive a pay stub that allegedly

19 failed to document exact work hours. . . . Plaintiff therefore lacks standing.”) (citing Sosna

20

21
10 Defendant argued for the first time in its post-hearing supplemental brief that, “[a]lthough Mr. Owino’s
22 last stay at SDCF was from February 9, 2015 to March 9, 2015 (Dkt. 147-1, ¶ 7), the last day he worked

23

at SDCF (the only CoreCivic facility he was detained at) was . . . May 22, 2013 (Dkt. 118-7 at 155, CCOG0000246[3]).” See ECF No. 164 at 2. If this is true, Mr. Owino will not be a member of the

24 California Labor Law Class, the Class Period for which begins May 31, 2013. See supra page 31.
Although the Court permitted Plaintiffs to file a response to Defendant’s supplemental brief, thereby

25 mitigating any due process concerns, the Court is disinclined to resolve this issue at the class certification

stage given Defendant’s belated assertion of this defense and factual disputes concerning whether
26 Mr. Owino worked during the Class Period for the California Labor Law Class, see ECF No. 169 at 1,

27

3–4; compare ECF No. 84-3 ¶ 5 (“During each period of detention at OMDC, I performed work through the ‘Volunteer Work Program.’”), with ECF No. 118-7 at 774 (claiming to show that Mr. Owino’s last

28 date of payment through the VWP was May 22, 2013), particularly given that Mr. Gomez remains a viable
class representative for the majority of the claims of the California Labor Law Class.

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1 v. Iowa, 419 U.S. 393, 402–03 (1975)); see also Troester, 2019 WL 2902487, at *2

2 (“[W]hether [the named plaintiff] can represent . . . class members [who may pursue

3 penalties under Section 226] is a typicality issue for class certification.”); Burton v.

4 Mountain W. Farm Bureau Mut. Ins. Co., 214 F.R.D. 598, 609 (D. Mont. 2003) (“[The

5 proposed class representative’s] claim is time-barred and she cannot serve as a class

6 representative.”).

7

Accordingly, the Court concludes that neither Mr. Owino nor Mr. Gomez is typical

8 of the members of the California Labor Law Class seeking penalties under Section 226 and

9 that Mr. Gomez is not typical of members of the California Labor Law Class seeking

10 waiting time penalties under Section 203 or penalties or actual damages under Section 226.

11

iii. Non-California Facilities

12

Finally, as to the National Forced Labor Class, Defendant urges that because both

13 Mr. Owino and Mr. Gomez were detained at California facilities, “they cannot say that they

14 suffered the same or similar injury as putative class members at these facilities” and “they

15 also have no incentive to pursue a class action on behalf of detainees in facilities they never

16 stepped foot in.” ECF No. 118 at 24. Defendant also contends that Plaintiffs have failed

17 to meet their burden to establish uniform policies as to sanitation and discipline because

18 Plaintiffs have introduced evidence concerning the policies of only ten of Defendant’s

19 twenty-four nationwide facilities and the declarations of only four detainees, all of whom

20 are from Defendant’s California facilities. Id. at 26.

21

Plaintiffs rejoin that they “and the putative class members all worked as a direct

22 result of . . . threats” of discipline and that “Plaintiffs can adequately represent the interests

23 of a national class because they were subjected to CoreCivic’s enterprise-wide policies and

24 practices and their claims are typical of the class.” ECF No. 127 at 14 (citing Evans v.

25 IAC/Interactive Corp., 244 F.R.D. 568, 573, 576 (C.D. Cal. 2007)). Further, “CoreCivic

26 fails to address, and effectively concedes, that (1) its facilities use template policies and

27 procedures that are create by CoreCivic’s Facility Support Center, which functions as

28 CoreCivic’s ‘corporate office,’ and (2) the use of the template policies and procedures are

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1 mandatory such that facilities do not have the ability to ‘opt out’ of them.” ECF No. 127

2 at 10–11 (citing Ridley Decl. Ex. 3 at 50:15–51:25, 54:24–55:4, 59:1–5, 68:1–9; Ridley

3 Decl. Ex. 6 at 59:8–12). “CoreCivic[] . . . also overlooks Mr. Ellis’ testimony that the

4 VWP, sanitation, and discipline policies on which Plaintiffs rely are ‘standard policies’ that

5 are applicable across CoreCivic’s facilities.” Id. at 11 (citing Ridley Decl. Ex. 3 at

6 75:9–25, 77:13–17).

7

The Court concludes that Plaintiffs adequately have established standardized

8 policies concerning the cleaning of common areas under threat of discipline across

9 Defendant’s non-California facilities. The policies from ten of Defendant’s twenty-four

10 facilities, see ECF No. 118 at 3; see also Ridley Decl. Exs. 9, 12–29, coupled with the

11 testimony from Defendant’s Rule 30(b)(6) witness that Defendant uses template policies

12 throughout its facilities from which the facilities cannot opt out, see Ridley Decl. Ex. 3 at

13 49:21–51:147 54:24–55:13, 59:1–5, 68:1–9, 75:9–25, 77:13–17, compel the Court to

14 conclude that Plaintiffs have met their burden at the class certification stage as to the

15 standardization of Defendant’s policies across its facilities. See Alba, 2007 WL 953849,

16 at *2 (noting that contention that policy was applied differently in California “goes to the

17 merits of the dispute”). Consequently, for purposes of class certification, the Court

18 concludes that Plaintiffs have established that their claims under the TVPA are typical of

19 those of the putative members of the National Forced Labor Class given the uniformity of

20 policies across Defendant’s facilities for the cleaning of common areas and discipline for

21 failure to comply. See infra Section II.C.1.a.2; see also Balasanyan, 294 F.R.D. at 562

22 (concluding that California plaintiffs were typical of proposed nationwide class over the

23 defendant employer’s argument “that Plaintiffs have failed to show that their experiences

24 are typical of the experiences of more than 60,000 draw commission salespeople in 30

25 different states at 117 stores” because the defendant “offer[ed] no additional information

26 as to why Plaintiffs fall short of typicality”); In re AutoZone, Inc., Wage & Hour Emp’t

27 Practices Litig., 289 F.R.D. 526, 535 (N.D. Cal. 2012) (“Plaintiffs are typical of the

28 proposed class [of current and former employees from hundreds of retail auto parts stores

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1 in California] because they were subject to the same policy as the proposed class.”), aff’d,

2 No. 17-17533, 2019 WL 4898684 (9th Cir. Oct. 4, 2019); Dilts v. Penske Logistics, LLC,

3 267 F.R.D. 625, 633 (S.D. Cal. 2010) (“Plaintiffs have provided evidence that indicates

4 that they were subject to all of these alleged wrongs and that the relevant policies were

5 common across Defendant’s California facilities.”).

6

b. Plaintiffs’ Counsel

7

Plaintiffs’ counsel indicates that it “does not have any conflicts with other class

8 members and will prosecute the action vigorously on behalf of both the named and absent

9 class members,” ECF No. 87 at 23–24 (citing Ridley Decl. ¶¶ 2–16; Teel Decl. ¶ 4), and

10 that its attorneys “are well qualified, have significant experience in prosecuting complex

11 litigation cases, and have previously been certified as class counsel in a class action

12 involving claims against a prison technology company on behalf of detainees/prisoners.”

13 Id. at 24 (citing Ridley Decl. ¶¶ 2–16; Teel Decl. ¶¶ 9–25). Further, “CoreCivic does not

14 dispute the adequacy of Plaintiffs’ proposed class counsel.” ECF No. 127 at 12.

15 Consequently, the Court concludes that Plaintiffs’ counsel “will fairly and adequately

16 protect the interests of the class.” See Fed. R. Civ. P. 23(a)(4).

17

C. Rule 23(b)(3) Requirements

18

Rule 23(b)(3) states that a class may be maintained if the requirements of Rule 23(a)

19 are fulfilled and if “the court finds that the questions of law or fact common to the class

20 members predominate over any questions affecting only individual members, and that a

21 class action is superior to other available methods for fairly and efficiently adjudicating the

22 controversy.” Fed. R. Civ. P. 23(b)(3).

23

1. Predominance of Common Issues

24

The predominance analysis focuses on “the legal or factual questions that qualify

25 each class member’s case as a genuine controversy” to determine “whether proposed

26 classes are sufficiently cohesive to warrant adjudication by representation.” Amchem

27 Prods., 521 U.S. at 623; see also Fed. R. Civ. P. 23(b)(3) (to certify a class, the court must

28 find that “questions of law or fact common to class members predominate over any

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1 questions affecting only individual members”). “Considering whether questions of law or

2 fact common to class members predominate begins . . . with the elements of the underlying

3 cause of action.” Erica P. John Fund, Inc. v. Halliburton Co., 563 U.S. 804, 809 (2011)

4 (quotation marks omitted). A court must analyze these elements to “determine which are

5 subject to common proof and which are subject to individualized proof.” In re TFT-LCD

6 (Flat Panel) Antitrust Litig., 267 F.R.D. 291, 310–11 (N.D. Cal. 2010), abrogated on other

7 grounds by In re ATM Fee Antitrust Litig., 686 F.3d 741 (9th Cir. 2012).

8

a. Uniformity of Defendant’s Policies

9

As an initial matter, Defendant contends that, “to certify a claim based on a policy

10 or practice, a plaintiff must present ‘significant proof’ that a policy or practice in fact exists

11 and that the entire class was subjected to it.” ECF No. 118 at 25 (citing Wal-Mart, 564

12 U.S. at 353; Ellis, 657 F.3d at 983) (emphasis in original). Defendant challenges Plaintiffs’

13 proof regarding the uniformity of its sanitation and disciplinary policies and overtime and

14 break policies. See id. at 25–29.

15

i. California Labor Law Class: Overtime and Rest and Meal

16

Break Policies

17

Defendant argues that Plaintiffs have failed to “provide any evidence to support any

18 . . . policies” that Defendant does “not pay[] overtime wages and refus[es] to provide rest

19 and meal breaks, in violation of California’s labor laws.” ECF No. 118 at 28. In fact,

20 Defendant argues, its policy explicitly “prohibit[s] detainees from working more than eight

21 hours in a day or forty hours in a week.” Id. (emphasis in original).

22

Plaintiffs counter that “the common policies and practices alleged by Plaintiffs are

23 either confirmed by CoreCivic in its Opposition Brief or established by CoreCivic’s own

24 written policies and Mr. Ellis’ testimony.” ECF No. 127 at 10. “At best, CoreCivic has

25 created a dispute of material fact concerning the existence of the policies and practices that

26 are the subject of Plaintiffs’ class claims[, b]ut merely denying the existence of a policy or

27 practice in the face of overwhelming evidence to the contrary is not sufficient to defeat

28 class certification.” Id. (citing Howell v. Advantage RN, LLC, No. 17-CV-0883 JLS

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1 (BLM), 2018 WL 3437123, at *2 (S.D. Cal. July 17, 2018); Tourgeman v. Collins Fin.

2 Servs., Inc., No. 08-CV-1392 JLS (NLS), 2011 WL 5025152, at *3 (S.D. Cal. Oct. 21,

3 2011)). “Moreover, CoreCivic’s denial of the existence of the policies and practices

4 identified by Plaintiffs create ‘a viable common question’ of whether such a policy existed,

5 ‘and the truth or falsity of that claim will drive the resolution of this case.’” Id. (citing Ruiz

6 v. XPO Last Mile, Inc., No. 5CV2125 JLS (KSC), 2016 WL 4515859, at *7 (S.D. Cal.

7 Feb. 1, 2016)).

8

Overtime Wages: The Court concludes that Plaintiffs have met their burden for class

9 certification of establishing that Defendant implemented common policies and practices in

10 California as to the failure to pay overtime wages. Plaintiffs have introduced several of

11 Defendant’s policies, handbooks, and a VWP Agreement Form. See Ridley Decl. Exs. 9,

12 11, 12, 14, 19, 21, 24, 27. The VWP is among the “standard policies” created by template

13 by Defendant’s own Facility Support Center’s policies and procedures department from

14 which Defendant’s facilities cannot “opt out.” See Ridley Decl. Ex. 3 at 49:21–51:147

15 54:24–55:13, 59:1–5, 68:1–9, 75:9–25, 77:13–17. Not only do these policies not provide

16 for payment of overtime, see generally Ridley Decl. Exs. 9, 12, 14, 19, 21, 24, 27, but it is

17 clear that no overtime wages—if earned—were ever paid because “[c]ompensation [was]

18 $1.00 per day.” Ridley Decl. Ex. 9. Accordingly, the Court concludes that Plaintiffs have

19 established a uniform policy as to the payment of overtime wages.11 See Alba v. Papa

20 John’s USA, Inc., No. CV 05-7487 GAF (CTX), 2007 WL 953849, at *1 (C.D. Cal. Feb.

21 7, 2007); see also id. at *2 (“[To the extent d]efendant[] contend[s] that the policy was

22 applied . . . in accordance with California . . . law, that contention goes to the merits of the

23 dispute and not to the question of whether common issues predominate”) (citing Eisen v.

24 Carlisle & Jacquelin, 417 U.S. 156, 177–78 (1974); Staton, 327 F.3d at 954).

25 / / /

26

27 11 The Court reiterates that this issue is distinct from that of whether Plaintiffs have established their 28 entitlement to overtime wages, i.e., whether there exist uniform policies requiring detainees to work
overtime. See infra Section II.C.1.b.

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1

Rest and Meal Breaks: The Court concludes, however, that Plaintiffs have failed to

2 establish a uniform policy as to the provision of meal and rest breaks. To establish the

3 existence of uniform policies, Plaintiffs cite to their own declarations and the deposition

4 testimony of Jason Ellis and Fred Figueroa, two of Defendant’s employees. See ECF No.

5 87 at 7 (citing ECF No. 84-3 ¶¶ 7–9; ECF No. 84-4 ¶ 7; Ridley Decl. Ex. 3 (ECF No.

6 85-4) at 129:23–130:15; Ridley Decl. Ex. 6 (ECF No. 85-7) at 34:2–8). Mr. Owino, for

7 example, attests that, as a member of the kitchen crew, he received only one, thirty-minute

8 meal “break,” during which he was required to prepare his own meal, and no rest breaks

9 while working a 3:00 a.m. to 12:00 p.m. shift. ECF No. 84-3 ¶ 7. As a chemical porter

10 and cleaner, he would work shifts of an unspecified length with “no scheduled rest or meal

11 breaks.” ECF No. 84-4 ¶¶ 8–9. Similarly, Mr. Gomez worked as a cleaner for shifts of an

12 unspecified length without “scheduled rest or meal breaks.” ECF No. 84-4 ¶ 7. Mr. Ellis

13 testified both that he was “not sure if there are -- there are breaks or not” and that he was

14 “sure there would be breaks, some breaks at least” but that he “d[id]n’t know the length of

15 those breaks or -- or the duration.” Ridley Decl. Ex. 3 at 129:23–130:15. Mr. Figueroa

16 testified that the “outside crew” works between 7:30 a.m. and 3:00 p.m. with “a lunch break

17 in the middle” and “no regularly scheduled break.” Ridley Decl. Ex. 6 at 34:2–8.

18

On this record, the Court concludes that Plaintiffs have failed to establish a uniform

19 policy as to the denial of rest and meal breaks. In the absence of a written policy, “Plaintiffs

20 must show ‘substantial evidence’ of a systematic policy” depriving detainees of rest and

21 meal breaks. See Nevarez v. Costco Wholesale Corp., No. 2:19-CV-03454-SVW-SK, 2019

22 WL 7421960, at *7 (C.D. Cal. Dec. 26, 2019) (citing In re AutoZone, 289 F.R.D. at 539;

23 Brinker Rest. Corp. v. Super. Ct., 53 Cal. 4th 1004, 1051 (2012)). As discussed above, see

24 supra Section II.B.3.a.1, Plaintiffs have failed to meet this burden. Indeed, Plaintiffs have

25 introduced no evidence that detainees in the VWP holding positions other than the morning

26 kitchen shift were deprived of a legally mandated rest or meal break. See id. As for that

27 one shift, Plaintiffs have introduced the sworn testimony of only one detainee, Mr. Owino,

28 to support an allegedly systemic policy of depriving those detainees of legally mandated

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1 breaks. ECF No. 84-3 ¶ 7. The Court cannot conclude that Mr. Owino’s testimony as to

2 his “normal shift,” see id. ¶ 6, amounts to “substantial evidence,” particularly given the

3 testimony of D. Topasna, Chief of Unit Management at the San Diego Correctional Facility

4 (“SDCF”) and OMDC, see Def.’s Ex. at 472 ¶ 3, that Defendant’s practice was that the

5 breakfast shift went from 3 a.m. to 8:30 a.m. with “a meal break and . . . multiple rest

6 periods.”12 Id. at 479 ¶ 39. The Court therefore concludes that, based on the current record,

7 Plaintiffs have failed to establish that Defendant has a uniform policy or practice of denying

8 detainees legally mandated rest and meal breaks.

9

ii. Forced Labor Classes: Sanitation and Discipline Policies

10

Defendant also contends that Plaintiffs have failed to introduce significant proof that

11 the putative class members were subjected to uniform sanitation and disciplinary policies

12 that forced detainees to clean common areas under threat of discipline. See ECF No. 118

13 at 25–26. Specifically, the written policies themselves require only that the detainees clean

14 their assigned living areas, whereas detainees in the VWP program are required to clean

15 the common areas, see id. at 25, and detainees are not disciplined with segregation for

16 failing to clean. See id. at 25–26. Further, the only evidence that detainees are forced to

17 clean common areas under threat of disciplinary segregation comes from the declarations

18 of four detainees, which “is not ‘significant proof’ that more than 120,000 detainees were

19 subject to their claimed policy.” See id. at 26.

20

Plaintiffs dispute Defendant’s reading of the sanitation policy, contending that there

21 is insufficient evidence that the cleaning policies of which Plaintiffs complain apply only

22 to those participating in the VWP. See ECF No. 127 at 3–4. Further, Defendant’s own

23 witness confirmed that “any of the types of discipline is possible,” see id. at 4 (citing Ridley

24 Decl. Ex. 3 at 157:5–16), and this threat of discipline was conveyed to all detainees at

25 intake through the admission handbook and reinforced through Defendant’s enforcement

26

27 12 Although not evidence, this is consistent with Defendant’s counsel’s representation at the hearing that 28 whether breaks were provided was determined by the individual supervising officer. See Tr. at
31:6–33:17.

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1 of the policy, as attested to by half-a-dozen detainees. See id. at 5 (citing Pl.’s Exs. 27–29;

2 Ortiz Decl. ¶ 4; Nunez Decl. ¶ 4; Owino Decl. ¶¶ 23–24; Gomez Decl. ¶¶ 19–20;

3 Santibanez Decl. ¶¶ 3–4; Jones Decl. ¶¶ 3–8).

4

The Court concludes that Plaintiffs sufficiently have demonstrated for purposes of

5 class certification that Defendant implemented common sanitation and discipline policies

6 that together may have coerced detainees to clean areas of Defendant’s facilities beyond

7 the personal housekeeping tasks enumerated in the ICE PBNDS. First, Defendant’s

8 sanitation policies provide that “[a]ll detainees/inmates assigned to a unit are responsible

9 for maintaining the common living area in a clean and sanitary manner” and that

10 “[d]etainee/inmate workers will be assigned to each area on a permanent basis to perform

11 the daily cleaning routine of the common area,” including trash removal, sweeping and

12 mopping, cleaning and scrubbing of bathroom facilities, and wiping off of furniture.

13 Ridley Decl. Ex. 12 (ECF No. 87-7) at 1–2 (OMDC in California); Ridley Decl. Exs. 13

14 (ECF No. 87-8) and 18 (ECF No. 87-13) at 1–2 (Stewart Detention Center in Georgia);

15 Ridley Decl. Exs. 14 (ECF No. 87-9) and 19 (ECF No. 87-14) at 1–2 (SDCF in California);

16 Ridley Decl. Ex. 15 (ECF No. 87-10) at 1–2 (North Georgia Detention Center); Ridley

17 Decl. Ex. 16 (ECF No. 87-11) at 1–2 (Northeast Ohio Correctional Center); Ridley Decl.

18 Ex. 17 (ECF No. 87-12) at 1–2 (T. Don Hutto Residential Center in Texas); Ridley Decl.

19 Ex. 20 (ECF No. 87-15) at 1–2 (La Palma Correctional Center in Arizona). Although

20 Defendant is adamant that these policies “do[] not require detainees to clean the common

21 areas of the housing units,” see, e.g., ECF No. 118 at 4 (emphasis in original), this is not

22 clear from the face of the policies. For example, as for the “COMMON LIVING AREAS,”

23 the policies note not only that “[a]ll detainees/inmates assigned to a unit are responsible for

24 maintaining the common living area in a clean and sanitary manner,” but also that “[t]he

25 officer assigned to that unit will see that all materials needed to carry out this cleaning

26 assignment are provided.” See, e.g., Ridley Decl. Ex. 12 at 1. Further, the policies outline

27 a “CLEANING PROGRAM FOR OTHER AREAS,” indicating that “[a]ll floors will be

28 swept and mopped on a daily basis,” “[t]oilet bowls and sinks will be cleaned daily,” “[t]he

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1 showers and floors will be mopped and scrubbed daily,” “[a]ll furniture will be dusted on

2 a daily basis and cleaned when necessary,” “[a]ll trash will be emptied daily,” “[w]indows

3 will be washed weekly or more often when erquired,” “[w]alls and doors will be wiped

4 daily,” and “[a]ll equipment will be dusted or cleaned on a daily basis.” Id. at 1–2. There

5 is no indication from the face of the policies that these tasks are to be performed only by

6 those participating in the VWP, and there exists a dispute of fact based on the declarations

7 submitted by staff of Defendant, who testified that the sanitation policies did not require

8 detainees to clean up after others, see ECF No. 123 ¶¶ 6–21; ECF No. 118-2 at 68–70

9 ¶¶ 5–20, 130–33 ¶¶ 9–25, 136–38 ¶¶ 6–20; ECF No. 118-5 at 466–69 ¶¶ 6–22, 473–6

10 ¶¶ 6–23, and those submitted by several detainees, who testified that they were required—

11 separate and apart from the VWP—to clean common areas, including windows, floors,

12 toilets, sinks, showers, and furniture, without payment and under threat of punishment. See

13 ECF No. 84-3 ¶¶ 17–24; ECF No. 84-4 ¶¶ 13–20; ECF No. 84-5 ¶¶ 3–4, 6; ECF No. 84-6

14 ¶¶ 3–4, 5.13 As Plaintiffs note, the Court cannot resolve factual disputes of this nature at

15 this stage in the litigation. See ECF No. 127 at 11 (citing Howell v. Advantage RN, LLC,

16 No. 17-CV-0883 JLS (BLM), 2018 WL 3437123, at *2 (S.D. Cal. July 17, 2018)).

17

Second, Defendant’s policies and the declarations of putative class members support

18 Plaintiffs’ contention that Defendant may have procured this labor under threat of

19 punishment. For example, the Detainee Admission and Orientation Handbook for OMDC

20 indicates that “[i]t is expected that staff will receive your full cooperation while you are

21 in this facility,” Ridley Decl. Ex. 21 (ECF No. 85-22) at 8 (emphasis in original); detainees

22 are to “[o]bey all orders as given by staff members,” id.; and detainees are to “ADHERE

23 TO ALL OTHER RULES AS INSTRUCTED BY ANY STAFF MEMBER.” Id. at 39

24 (emphasis in original). As for disciplinary action, the OMDC handbook notes that

25 “[r]efusal to clean assigned living area” or “[r]efus[al] to obey a staff member/officer’s

26

27 28 13 There are two paragraphs numbered “5” in the Declaration of Jonathan Ortiz Dubon. The Court cites
to the second paragraph 5.

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1 order” may be sanctioned with, among other things, “[d]isciplinary transfer

2 (recommended),” “[d]isciplinary [s]egregation (up to 72 hours),” “[l]oss of privileges (e.g.,

3 commissary, vending machines, movies, recreation, etc.),” “[c]hange housing,” or

4 “[r]estrict to housing pod.” Id. at 45. The same recommended disciplinary actions can be

5 found in handbooks from other of Defendant’s facilities, both within and outside of

6 California. See Ridley Decl. Ex. 22 (ECF No. 85-23) at 29 (Florence Correctional Center

7 in Arizona); Ridley Decl. Ex. 23 (ECF No. 85-24) at 29 (SDCF in California); Ridley Decl.

8 Ex. 24 (ECF No. 85-25) at 49 (Laredo Processing Center in Texas); Ridley Decl. Ex. 25

9 (ECF No. 85-26) at 17 (Eloy Detention Center in Arizona); Ridley Decl. Ex. 26 (ECF No.

10 85-27) at 17 (Houston Processing Center in Texas). At this stage, this suffices to show that

11 Defendant had a uniform disciplinary policy that could reasonably be understood to have

12 subjected detainees to discipline for failure to comply with the uniform sanitation policy.

13 This conclusion is bolstered by the declarations of Plaintiffs and other putative class

14 members, who attest that failure to abide by an order to clean the commons areas could

15 result in disciplinary action consistent with the uniform disciplinary policy or even other

16 retaliatory measures. See, e.g., ECF No. 84-3 ¶¶ 19, 23–24; ECF No. 84-4 ¶¶ 15, 19–20;

17 ECF No. 84-5 ¶¶ 3–4; ECF No. 84-6 ¶¶ 3–4.

18

The Court therefore concludes that, for purposes of class certification, Plaintiffs

19 sufficiently have established that Defendant instituted uniform sanitation and disciplinary

20 policies that were applied class-wide and, taken together, may have coerced detainees

21 under threat of discipline into performing cleaning duties beyond those permitted by ICE.

22

b. The California Labor Law Class

23

Plaintiffs urge that the claims of the California Labor Law Class “all turn on a

24 common legal question: whether ICE detainees that worked through the VWP at

25 CoreCivic’s facilities in California are employees of CoreCivic under California law and

26 entitled to the protections for employees set forth in the California Labor Code and the

27 IWC’s Wage Order No. 5-2001.” ECF No. 87 at 17. Although Defendant “does not dispute

28 that [whether detainees who participate in the VWP are CoreCivic’s employees under

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1 California law] is a common question,” it does contest whether it is “a ‘significant aspect

2 of the case.’” ECF No. 118 at 32 (quoting Hanlon, 150 F.3d at 1022). Defendant asserts

3 that “[t]here are many other individual questions needed to fully resolve the putative class

4 member[s’] claims,” including detainees’ status as authorized or unauthorized aliens, hours

5 worked, whether detainees received meal and/or rest periods, the amount of damages, and

6 the amount of any offset. See id. at 32–33.

7

Plaintiffs claim that Defendant “misses the mark entirely” because “Plaintiffs and

8 the putative class members were subjected to the same generally applicable policies and

9 practices while involuntarily confined at CoreCivic as ICE detainees,” meaning “[t]heir

10 claims depend on whether the challenged policies and practices are unlawful and will

11 ‘prevail or fail in unison’ based on the Court’s adjudication of that issue.” ECF No. 127 at

12 12 (citing Amgen Inc. v. Conn. Ret. Plans & Tr. Funds, 568 U.S. 455, 460 (2013)).

13

Plaintiffs are correct that “[c]ertification is appropriate where the legality of a

14 particular policy presents a ‘significant question of law’ that is ‘apt to drive the resolution

15 of the litigation.’” Boyd v. Bank of Am. Corp., 300 F.R.D. 431, 437 (C.D. Cal. 2014)

16 (quoting Abdullah v. U.S. Sec. Assoc., 731 F.3d 952, 963 (9th Cir. 2013) (citing Wal-

17 Mart, 564 U.S. at 350)); see also Moore v. Ulta Salon, Cosmetics & Fragrance, Inc., 311

18 F.R.D. 590, 604–05 (C.D. Cal. 2015) (“The factual issue of whether [the defendant’s]

19 policies actually require—or are interpreted to require—[the alleged labor law violation]

20 is one that is common to the class as a whole, and it is capable of resolution

21 by common proof.”); Alba, 2007 WL 953849, at *14 (“Whether the [defendant’s] policy

22 satisfies the right to meal and rest periods under California law is a question of law . . .

23 common to the proposed subclass.”). Nevertheless, the Court must “take into consideration

24 all factors that militate in favor of, or against, class certification.” Vinole v. Countrywide

25 Home Loans, Inc., 571 F.3d 935, 946 (9th Cir. 2009) (citing In re Wells Fargo Home

26 Mortg. Overtime Pay Litig., 571 F.3d 953, 958–59 (9th Cir. 2009)).

27

“Considering whether ‘questions of law or fact common to the class predominate’

28 begins, of course, with the elements of the underlying cause of action.” Soares v. Flowers

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1 Foods, Inc., 320 F.R.D. 464, 478 (N.D. Cal. 2017) (quoting Erica P. John Fund, 563 U.S.

2 at 809). “[T]he Court identifies the substantive issues related to plaintiff’s claims . . . then

3 considers the proof necessary to establish each element of the claim or defense; and

4 considers how these issues would be tried.” Id. (quoting Gaudin v. Saxon Mortg. Servs.,

5 Inc., 297 F.R.D. 417, 426 (N.D. Cal. 2013)). “The predominance inquiry requires that

6 plaintiff demonstrate that common questions predominate as to each cause of action for

7 which plaintiff seeks class certification.” Gaudin, 297 F.R.D. at 426 (citing Amchem

8 Prods., 521 U.S. at 620). Further, “[a] court evaluating predominance ‘must determine

9 whether the elements necessary to establish liability,’” here, employee status, “‘are

10 susceptible to common proof or, if not, whether there are ways to manage effectively proof

11 of any element that may require individualized evidence.’” Villalpando v. Exel Direct Inc.,

12 303 F.R.D. 588, 608 (N.D. Cal. 2014) (quoting Ayala v. Antelope Valley Newspapers,

13 Inc., 59 Cal. 4th 522, 533 (2014)).

14

Here, Plaintiffs urge that their “claims for violations of the California Labor Code

15 and violations of the IWC’s Wage Order No. 5-2001 all hinge on the common legal issue

16 of whether CoreCivic’s classification of ICE detainees that worked through the VWP as

17 ‘volunteers’ was correct or whether the ICE detainees were employees of CoreCivic under

18 California law.” See ECF No. 87 at 18. Strictly speaking, this does not suffice to meet

19 Plaintiffs’ burden. See, e.g., Abikar v. Bristol Bay Native Corp., No. 317CV01036

20 GPCAGS, 2018 WL 6593747, at *7 (S.D. Cal. Dec. 14, 2018) (concluding that the

21 plaintiffs failed to meet their burden of establishing predominance under Rule 23(b)(3)

22 where their “predominance assertion ma[de] no reference to their underlying claims”);

23 accord Celena King v. Great Am. Chicken Corp., No. CV 17-4510-GW(ASX), 2019 WL

24 6348463, at *3 (C.D. Cal. July 18, 2019) (denying class certification where the plaintiff

25 failed to address predominance as to each cause of action). Nonetheless, “public policy

26 favor[s] disposition of cases on their merits,” Hernandez v. City of El Monte, 138 F.3d 393,

27 399 (9th Cir. 1998); consequently, the Court analyzes each of Plaintiff’s claims.

28 / / /

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1

i. Minimum Wage

2

Plaintiffs’ fourth cause of action is for failure to pay minimum wage in violation of

3 California Labor Code sections 1194, 1197, and 1197.1 and IWC Wage Order No. 5-2001.

4 See FAC ¶¶ 71–75. Whether asserted under the California Labor Code or the UCL, see

5 supra Section II.B.3.a.ii, the Court concludes that common issues predominate as to the

6 minimum wage claim.

7

Here, there are common, predominating questions concerning Defendant’s

8 classification of detainees participating in the VWP as volunteers and, consequently,

9 whether those detainees were paid according to California’s minimum wage statutes and

10 regulations. Previously, the Court expressed concern regarding whether this claim was

11 susceptible to common proof, see, e.g., Tr. at 6:17–20; however, upon further reflection

12 and review of the record, the Court concludes that “[m]ethods of common proof could be

13 devised” to determine whether detainees participating in the VWP were paid a minimum

14 wage. See Kamar v. Radio Shack Corp., 254 F.R.D. 387, 402 (C.D. Cal. 2008), aff’d, 375

15 F. App’x 734 (9th Cir. 2010). Although Defendant does not maintain detailed time-

16 keeping records for its detainees, cf. Novoa v. GEO Group, Inc., No. EDCV172514

17 JGBSHKX, 2019 WL 7195331, at *3 (C.D. Cal. Nov. 26, 2019), there still exist records

18 for days on which detainees worked, see, e.g., Ridley Decl. Exs. 45–50, and—even if the

19 records currently before the Court are not complete—there appear to be set schedules for

20 the various positions held by participants in the VWP. See, e.g., Def.’s Exs. at 479–80

21 ¶¶ 39–42. Together, this evidence may allow the trier of fact to determine which

22 participants in the VWP were paid less than the minimum wage—and by how much—

23 based on the difference between the payment received and the number of hours per shift

24 for the position, thereby “avoid[ing] testimony by every class member.” See Kamar, 254

25 F.R.D. at 402. The Court therefore concludes that there exist common, predominating

26 questions for the California Labor Law Class as to Plaintiffs’ minimum wage cause of

27 action.

28 / / /

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1

ii. Overtime

2

Plaintiff’s fifth cause of action is for failure to pay overtime wages in violation of

3 California Labor Code sections 204, 510, and 1194 and IWC Wage Order No. 5-2001. See

4 FAC ¶¶ 76–79. The Court concludes that Plaintiffs have not met their burden of

5 establishing that common issues predominate as to this claim.

6

Not only have Plaintiffs failed to establish that there exists a common policy that

7 detainees were required to work overtime, see supra Section II.B.3.a.i, but it is not clear to

8 the Court that Plaintiffs’ claim is susceptible to common proof. Should the Court determine

9 that the members of the California Labor Law Class were employees rather than detainees,

10 there must be some means of determining on a class-wide basis which detainees are entitled

11 to overtimes wages, which is a question of liability and not damages. In the absence of a

12 written policy or schedule mandating overtime or substantial evidence that the shifts

13 actually worked by detainees entitled them to overtime, Plaintiffs have failed to establish

14 that the overtime claim is susceptible to common proof.14 See, e.g., Washington v. Joe’s

15 Crab Shack, 271 F.R.D. 629, 642 (N.D. Cal. 2010) (“Plaintiff has provided no evidence of

16 any company-wide or class-wide policy of requiring ‘off-the-clock’ work, and the

17 individualized assessment necessary to ascertain whether there were in fact any employees

18 who were told to work ‘off-the-clock’ would not be susceptible to common proof.”).

19

This issue is exacerbated by the breadth of the defined California Labor Class as

20 “[a]ll ICE detainees . . . detained at a CoreCivic facility located in California . . . [who]

21 worked through CoreCivic’s voluntary work program.” See ECF No. 87 at 14. Essentially,

22 Plaintiffs seek to certify a class comprised of an untold number of unenumerated positions,

23 including cleaners, laundry workers, kitchen crews, clerical workers, barbers, librarians,

24 and landscapers. See FAC ¶ 14. “Because it is highly unlikely that all positions

25

26
14 To be clear, the Court does not conclude that Plaintiffs cannot establish that their overtime claims are
27 susceptible to common proof. For example, the overtime claims may be susceptible to common proof if 28 Plaintiffs can adduce additional evidence as to a written or unspoken policy applying throughout
California requiring VWP participants to work overtime.

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1 and job duties at Defendant[’s facilitie]s are identical, and that all Class Members would

2 be seeking the same relief, the Court is not persuaded[, at least on the current record,] that

3 there are no dissimilarities in the proposed class that could ‘impede the generation of

4 common answers apt to drive the resolution of the litigation.’” See Lusby v. Gamestop

5 Inc., 297 F.R.D. 400, 410–11 (N.D. Cal. 2013) (quoting Wal-Mart, 564 U.S. at 350

6 (quoting Richard A. Nagareda, Class Certification in the Age of Aggregate Proof, 84

7 N.Y.U. L. Rev. 97, 132 (2009))) (citing Nielson v. Sports Authority, No. C 11-4724 SBA,

8 2012 WL 5941614, at *3 (N.D. Cal. Nov. 27, 2012); Tijero v. Aaron Brothers, Inc., No. C

9 10-01089 SBA, 2013 WL 60464, at *4 (N.D. Cal. Jan. 2, 2013); Kelley v. SBC, Inc., No.

10 C 97-2729 CW, 1998 WL 1794379, at *14 (N.D. Cal. Nov. 18, 1998)).

11

For all these reasons, the Court concludes that Plaintiffs have failed to establish that

12 common issues predominate as to the California Labor Law Class for the overtime claims.

13

iii. Meal Breaks

14

Plaintiff’s sixth cause of action is for failure to provide mandated meal breaks in

15 violation of California Labor Code sections 226.7 and 512 and IWC Wage Order No.

16 5-2001. FAC ¶¶ 80–83. Again, the Court concludes that Plaintiffs have not met their

17 burden of establishing that common issues predominate as to this claim.

18

As with the overtime claims, see supra Section II.C.1.b.ii, Plaintiffs have failed to

19 introduce evidence of a common policy that detainees in the VWP were denied meal

20 breaks, see supra Section II.B.3.a.i, or that the meal break claims are susceptible to

21 common proof. Should the Court determine that the members of the California Labor Law

22 Class were employees rather than detainees, there must be some means of determining on

23 a class-wide basis which detainees were entitled to a meal break and which detainees did

24 not receive the mandated meal break. Again, these are questions going to liability and not

25 only to damages. Because Plaintiffs have failed to introduce evidence concerning the

26 entitlement to meal breaks for the various positions held through the VWP or a common

27 policy or systematic practice concerning the deprivation of such breaks, they have failed

28 to establish that common issues predominate as to meal break claims of the California

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1 Labor Law Class. See, e.g., Chavez v. AmeriGas Propane, Inc., No. CV1305813MMM

2 MANX, 2015 WL 12859721, at *14 (C.D. Cal. Feb. 11, 2015) (“[T]his does not suffice to

3 show that the company had a uniform corporate policy of preventing [the class members]

4 from taking required meal breaks, such that a violation of the wage and hour laws could be

5 proved on a classwide basis.”); Washington, 271 F.R.D. at 641–42 (“[The defendant’s]

6 time records will not show when . . . breaks were taken . . . . For this reason, individualized

7 analyses must be conducted to determine whether and when . . . breaks were not taken.

8 Moreover . . . , the inquiries would not answer the critical question of why rest breaks were

9 not taken—a question that will necessitate an individualized inquiry.”) (footnote omitted)

10 (emphasis in original). Accordingly, the Court concludes that Plaintiffs have failed to

11 establish that common issues predominate as to the California Labor Law Class for the

12 meal break claims.15

13

iv. Rest Breaks

14

Plaintiff’s seventh cause of action is for failure to provide mandated rest breaks in

15 violation of California Labor Code section 226.7 and IWC Wage Order No. 5-2001. FAC

16 ¶¶ 84–86. For the same reasons the Court concludes that Plaintiffs have failed to establish

17 that Plaintiffs have not met their burden of establishing that common issues predominate

18 as to the meal break claims, see supra Section II.C.1.b.iii, the Court also concludes that

19 Plaintiffs have failed to establish that common issues predominate as to the California

20 Labor Law Class for the rest break claims.

21

v. Wage Statements

22

Plaintiffs’ eighth cause of action is for failure to provide timely and accurate wage

23 statements in violation of California Labor Code section 226. FAC ¶¶ 87–93. Defendant

24 does not oppose certification of the California Labor Law Class as to this claim, see

25 generally ECF No. 118; see also ECF No. 127 at 1, arguing only that it is time-barred

26

27 15 Again, the Court reiterates that it does not conclude that Plaintiffs cannot establish that their meal break 28 claims are susceptible to common proof, see supra note 15, although the weight of authority tends to
indicate that it may be more difficult for Plaintiffs to meet their burden as to these claims.

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1 because Plaintiffs seek only penalties. See, e.g., ECF No. 118 at 17. The Court concludes

2 that whether Defendant provided wage statements to the participants in the VWP is

3 susceptible to common proof. Accordingly, to the extent the wage statement claims are

4 not time-barred,16 the Court concludes that there exist common, predominating questions

5 for the California Labor Law Class as to Plaintiffs’ claims concerning Defendant’s failure

6 to provide wage statements.

7

vi. Payment of Compensation Upon Termination

8

Plaintiffs’ ninth cause of action is for failure to pay compensation upon

9 termination/waiting time penalties pursuant to California Labor Code sections 201 through

10 203. FAC ¶¶ 94–96. Defendant does not appear to contend that common issues do not

11 predominate, see generally ECF No. 118 at 32–33; rather, Defendant appears to contest

12 only the timeliness of this claim. See id. at 17; see also supra Section II.B.3.a.ii. The Court

13 concludes that whether Defendant paid compensation to the participants in the VWP upon

14 termination is susceptible to common proof. Accordingly, the Court concludes that there

15 exist common, predominating questions for the California Labor Law Class as to Plaintiffs’

16 claims concerning Defendant’s failure to pay compensation upon termination.

17

vii. Unlawful Conditions of Employment

18

Plaintiffs’ tenth cause of action is for imposition of unlawful terms or conditions of

19 employment pursuant to California Labor Code section 432.5. FAC ¶¶ 97–101. As with

20 the wage statement claims, see supra Section II.C.1.b.v, Defendant does not oppose

21 certification of the California Labor Law Class as to this claim, see generally ECF No. 118;

22 see also ECF No. 127 at 1, although it does contend that the only applicable underlying

23 claim is for failure to pay minimum wages.17 See, e.g., Tr. at 38:18–39:2. The Court

24

25
16 Defendant contends that the wage statement claims are time-barred because Plaintiffs appear to seek
26 only penalties. See, e.g., Tr. at 37:21–38:2 (citing FAC ¶ 92). Whether Plaintiffs seek solely penalties or 27 other remedies for their wage statement claims is beyond the scope of the Certification Motion.
28 17 Plaintiffs allege that the agreement “include[d] numerous terms that are prohibited by law, including
but not limited to agreeing to work for less than minimum wage or without appropriate overtime

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1 concludes that whether Defendant has imposed unlawful conditions of employment upon

2 the participants in the VWP for the alleged violations of the California Labor Code that are

3 susceptible to common proof is itself susceptible to common proof. Accordingly, the Court

4 concludes that there exist common, predominating questions for the California Labor Law

5 Class as to Plaintiffs’ claims concerning Defendant’s imposition of unlawful conditions of

6 employment.

7

viii. Conclusion

8

The Court therefore concludes, pursuant to any limitations discussed above, that

9 Plaintiffs have established that common questions predominate as to the California Labor

10 Law Class’s causes of action for failure to pay minimum wage, failure to provide wage

11 statements, failure to pay compensation upon termination, and imposition of unlawful

12 conditions of employment based on those violations, as well as any viable derivative causes

13 of action. See infra Section II.C.1.e.

14

c. The National Forced Labor Class

15

Plaintiffs argue that the claims of the National Forced Labor Class hinge upon

16 whether “CoreCivic’s policy and practice of forcing ICE detainees to clean areas of the

17 facility above and beyond personal housekeeping tasks enumerated in the ICE PBNDS

18 under treat of discipline, including solitary confinement, . . . constitute[s] a violation of the

19 Federal TVPA’s prohibition on obtaining labor or services by means of force or serious

20 harm[;] threats of force or serious harm[;] or by means of any scheme, plan, or pattern

21 intended to cause a person to believe that serious harm would result if that person did not

22 perform such labor or services.” ECF No. 87 at 21. Defendant responds that “a common

23 question cannot simply be whether all putative class members have ‘suffered a violation of

24 the same provision of law,’” ECF No. 118 at 29 (citing Wal-Mart, 564 U.S. at 350), and

25 that “resolving whether each putative class member was in fact a victim of a TVPA . . .

26

27 compensation.” FAC ¶ 99. Whether the other claims the Court has certified as part of the California 28 Labor Law Class, namely, the wage statement claims and failure to pay compensation upon termination
claims, were among the terms in the written agreement is beyond the purview of this Order.

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1 violation requires the resolution of many individualized inquiries that are particular to each

2 class member,” essentially, “why did you work?,” a question that “will require delving into

3 each class member’s subjective state of mind.” Id. at 29–30. Plaintiffs reply that their

4 “claims under the CA and Federal TVPA do not turn on ‘individualized inquiries[,]’”

5 because “[w]here liability depends on a threat of disciplinary action, the statutes both call

6 for the application of an objective standard to determine whether a ‘reasonable person’—

7 in this case, ICE detainees involuntarily confined in a prison-like facility—would perform

8 the work mandated by CoreCivic.” ECF No. 127 at 12 (citing Cal. Penal Code

9 § 236.1(h)(4); 18 U.S.C. § 1589(c)(2)).

10

The Court allowed both sides to present additional briefing on Novoa, 2019 WL

11 7195331, in which the district court certified classes similar to the proposed California and

12 National Forced Labor Classes here. See id. at *10, *16 & n.11, *20; see also ECF Nos.

13 153, 160, 164. In its supplemental brief, Defendant urges the Court to conclude that Novoa

14 is distinguishable based on the fact that “there is no undisputed written policy in this case”

15 and that “Novoa adopted Menocal[ v. GEO Group, Inc., 320 F.R.D. 258 (D. Colo. 2017)]’s

16 predominance analysis, which is . . . inapplicable here” because the Plaintiffs here “do not

17 even allege that they were aware of the written policies or worked because of them.” See

18 ECF No. 164 at 4–5. Further, Menocal was “based on unique Tenth Circuit jurisprudence

19 permitting classwide causation evidence . . . , which the Ninth Circuit has not adopted,” id.

20 at 5 n.4 (citing CGC Holding Co. v. Broad & Cassel, 773 F.3d 1076 (10th Cir. 2014);

21 Poulos v. Caesars World, Inc., 379 F.3d 668 (9th Cir. 2004)), and “[w]hether the labor was

22 obtained ‘by means of’ or ‘accomplished through’ the threat is still an individualized,

23 subjective inquiry.” Id. at 5 n.5 (citing David v. Signal Int’l, LLC, No. 08-1220, 2012 WL

24 10759668, at *20–22 (E.D. La. Jan. 4, 2012)).

25

Finally, on March 19, 2020, Defendant requested that the Court consider the recent

26 decision in Barrientos v. CoreCivic, Inc., No. 18-15081, 2020 WL 964358 (11th Cir. Feb.

27 28, 2020), in which the Eleventh Circuit affirmed the district court’s denial of Defendant’s

28 motion to dismiss a TVPA claim asserted by ICE detainees in Georgia and “h[e]ld that the

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1 TVPA applies to private for-profit contractors operating federal immigration detention

2 facilities.” Id. at *9; see also ECF No. 172.18 Defendants contend that Barrientos

3 “supports Defendant’s argument that the putative National Forced Labor Class cannot be

4 certified because each class member must individually establish that their allegation of

5 forced labor rises to the level of an actionable claim under the [TVPA], a determination

6 that cannot be made for all class members in one stroke.” ECF No. 172 at 1. Not

7 surprisingly, Plaintiffs respond that “Barrientos supports the Court’s tentative decision to

8 certify Plaintiffs’ Forced Labor [C]lasses” and that Defendant “misrepresents the holding

9 of Barrientos[,] . . . which was expressly ‘limited to the legal question of the TVPA’s

10 applicability to private contractors operating federal immigration detention facilities[.]’”

11 ECF No. 173 at 1 (quoting Barrientos, 2020 WL 964358, at *1).

12

Having carefully reviewed the Parties’ arguments and the additional authorities

13 submitted by each side, the Court ultimately agrees with Plaintiffs. First, the Court

14 concludes that Barrientos offers little guidance here. Not only is Barrientos not binding

15 on this Court, but Plaintiffs are correct that “the discrete legal issue before [the Eleventh

16 Circuit]” has no bearing on the Parties’ arguments for and against class certification. See

17 2020 WL 964358 at *6; see also ECF No. 173 at 1. Defendant’s attempt to divine from

18 Barrientos whether the Eleventh Circuit would conclude that individual questions

19 predominate such that class certification of a TVPA would be improper is nothing more

20 than unsubstantiated tea-leaf reading and is therefore of minimal relevance here.

21

Second, the Court rejects Defendant’s contention that “[w]hether the labor was

22 obtained ‘by means of’ or ‘accomplished through’ the threat is still an individualized,

23 subjective inquiry.” See ECF No. 164 at 5 n.5 (citing David, 2012 WL 10759668, at

24 *20–22). As an initial matter, the court in David concluded that “individual issues with

25

26
18 To the extent Defendant requests the opportunity to further brief Barrientos, see ECF No. 172 at 3, the
27 Court only granted additional briefing on Novoa at the request of Defendant, see Tr. at 57:21–22, whereas 28 Plaintiffs have indicated their belief that additional briefing on Barrientos is not required. See ECF No.
173 at 1–2. The Court therefore DENIES Defendant’s request to further brief Barrientos.

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1 respect to coercion and consent will predominate Plaintiffs’ § 1589 forced labor claims.”

2 See 2012 WL 10759668, at *22. The Court is not convinced that this analysis applies

3 within the Ninth Circuit, where a TVPA claim requires the plaintiff to establish that the

4 employer intended to cause the victim to believe that he or she would suffer serious harm

5 by means of an objectively, sufficiently serious threat of harm. See United States v. Dann,

6 652 F.3d 1160, 1170 (9th Cir. 2011); accord Tanedo v. E. Baton Rouge Par. Sch. Bd., No.

7 LA CV10-01172 JAK, 2011 WL 7095434, at *8 (C.D. Cal. Dec. 12, 2011); see also Novoa,

8 2019 WL 7195331, at *16 n.11.

9

Even if coercion and/or consent were a relevant determination such that there exists

10 a subjective inquiry, however, the court in David acknowledged that a TVPA claim may

11 be suitable for class certification under certain circumstances resembling those here. See

12 2012 WL 10759668, at *21. Indeed, the court in David concluded that certification was

13 not appropriate on the facts of that case, which “involve[d] paid workers who in fact could

14 leave their jobs at any time, . . . were for the most part paid well, free to come and go as

15 they pleased, and some [of whom] even took vacations and bought cars.” Id. Further,

16 “the ‘threats’ that Plaintiffs allege were made to compel them to work were often made to

17 individuals, not to the class as a whole,” meaning that “[t]he pressure to work for [the

18 defendant] arguably came at least in part from a set of circumstances that each plaintiff

19 individually brought upon himself.” Id. Here, by contrast, the putative class members

20 were not paid more than a dollar or two a day and were not free to come and go as they

21 pleased. See, e.g., FAC ¶ 10. Further, Plaintiffs allege that the threats were communicated

22 to the class as a whole through Defendant’s uniform disciplinary policy. Id. ¶ 42(c).

23 Consequently, David does not support Defendant’s contention.

24

On the other hand, two district courts applying Ninth Circuit precedent have

25 concluded that individual issues do not predominate where “the class members share a

26 large number of common attributes— . . . allowing the fact-finder to use a common

27 ‘reasonable person’ standard for all class members.” See Tanedo, 2011 WL 7095434, at

28 *8; see also Novoa, 2019 WL 7195331, at *16 (adopting analysis of Menocal); Menocal,

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1 320 F.R.D. at 267 (“The circumstances here—namely the class members’ detainment, the

2 imposition of a uniform policy, and the numerous other questions common to the class—

3 certainly make it beneficial to permit such an inference [of causation on a class-wide

4 basis].”). As in Tanedo and Novoa, the putative class members share a large number of

5 common attributes, including that they are immigrants who are or were involuntarily

6 detained in Defendant’s facilities and subjected to common sanitation and disciplinary

7 policies.

8

Third and finally, the Court disagrees with Defendant that the Ninth Circuit does not

9 permit “classwide causation evidence,” such that Novoa and Menocal are inapplicable. See

10 ECF No. 164 at 5 n.4 (citing CGC Holding, 773 F.3d 1076; Poulos, 379 F.3d at 668). The

11 cases on which Defendant relies, CGC Holding and Poulos, were both Racketeer

12 Influences and Corrupt Organizations cases. See CGC Holding, 773 F.3d at 1089–93;

13 Poulos, 379 F.3d at 664. To the extent those cases have any bearing in the TVPA context,

14 see Menocal, 320 F.R.D. at 267 n.5 (acknowledging that CGC Holding did “not dictate the

15 outcome in this matter”), the Ninth Circuit’s “narrow and case-specific” decision in Poulos

16 was based on its determination that “gambling is not a context in which [the court] can

17 assume that potential class members are always similarly situated.” 379 F.3d at 665–66.

18 In other contexts, such as consumer protection putative class actions, for example, the

19 Ninth Circuit has recognized that reliance or causation can be inferred on a class-wide basis

20 where the putative class members are similarly situated; in Walker v. Life Insurance

21 Company of the Southwest, No. 19-55241, 2020 WL 1329665 (9th Cir. Mar. 23, 2020), for

22 example, the Ninth Circuit reiterated that in the context of UCL actions “the operative

23 question has become whether the defendant so pervasively disseminated material

24 misrepresentations that all plaintiffs must have been exposed to them.” Id. at *5 (citing

25 Stearns v. Ticketmaster Corp., 655 F.3d 1013, 1020–21 (9th Cir. 2011), abrogated on other

26 grounds by Comcast Corp. v. Behrend, 569 U.S. 27 (2013)). The sum total of these

27 authorities is that an inference of class-wide causation may be permissible where, as here,

28 / / /

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1 the putative class members share a large number of common attributes such that they are

2 similarly situated. As discussed above, the Court concludes that this is such a case.

3

As in Tanedo, “[c]ommon questions of fact include . . . whether Defendant[] utilized

4 threats of serious . . . harm to compel Plaintiffs to work” and “[c]ommon questions of law

5 include . . . whether Defendants’ conduct violated the TVPA,” answers to which “are

6 ‘capable of classwide resolution[]’ and “will determine . . . if the Plaintiffs were threatened

7 with serious . . . harm, an issue central to the TVPA claims.” See 2011 WL 7095434, at *6

8 (quoting Wal-Mart, 564 U.S. at 350). Accordingly, the Court concludes that the

9 commonality and predominance requirements are satisfied as to the National Forced Labor

10 Class.

11

d. The California Forced Labor Class

12

Plaintiffs assert that the claims of the California Forced Labor Class “all depend on

13 resolution of . . . [w]hether CoreCivic’s policy and practice requiring ICE detainees in its

14 California facilities to clean areas of the facility above and beyond the personal

15 housekeeping tasks enumerated in the ICE PBNDS under threat of discipline constitutes

16 ‘human trafficking’ within the meaning of California Penal Code § 236.1(a).” ECF No. 87

17 at 19. As with the National Forced Labor Class, Defendant contends that there are not

18 common questions of law and fact governing the California Forced Labor Class because

19 “the California facilities do not have a policy or practice of forcing detainees to clean

20 common areas under threat of disciplinary segregation” and “[t]he allegations of four

21 detainees is not ‘significant proof’ that ‘several thousands’ . . . of detainees in California

22 facilities were subject to their claimed policy.” ECF No. 118 at 27. “Furthermore,

23 resolving whether each putative class member was in fact a victim of a . . . California TVPA

24 violation requires the resolution of many individualized inquiries that are particular to each

25 class member.” Id. at 29.

26

For the same reasons the Court determines that Plaintiffs have established there are

27 common questions of law and fact that predominate as to the National Forced Labor Class,

28 / / /

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1 see supra Section III.C.1.c, the Court also determines that Plaintiffs have met their burden

2 as to commonality and predominance for the California Forced Labor Class.

3

e. Derivative Claims

4

Plaintiffs’ third cause of action is for violation of the UCL, FAC ¶¶ 63–70; eleventh

5 cause of action is for negligence, id. ¶¶ 102–19; and twelfth cause of action is for unjust

6 enrichment. Id. ¶¶ 120–28. Plaintiffs acknowledge that each of these causes of action are

7 derivative of the claims for violations of California labor law, see, e.g., ECF No. 87 at 18,

8 and California and federal TVPA. See, e.g., id. at 20. Consequently, to the extent these

9 claims are causes of action not barred by the statute of limitations,19 the Court concludes

10 that common questions predominate to the same extent discussed above. See supra

11 Sections II.C.1.b.i–vii, II.C.1.c–d.

12

2. Superiority

13

The final requirement for class certification is “that a class action [be] superior to

14 other available methods for fairly and efficiently adjudicating the controversy.” Fed R.

15 Civ. P. 23(b)(3). “In determining superiority, courts must consider the four factors of Rule

16 23(b)(3).” Zinser, 253 F.3d at 1190. The Rule 23(b)(3) factors are:

17

(A) [T]he class members’ interests in individually controlling the

18

prosecution or defense of separate actions; (B) the extent and

nature of any litigation concerning the controversy already begun

19

by or against class members; (C) the desirability or undesirability

20

of concentrating the litigation of the claims in the particular

forum; and (D) the likely difficulties in managing a class action. 21

22 / / /

23

24

25 19 For example, Defendant contends that Plaintiff’s negligence cause of action is time-barred. See, e.g.,

ECF No. 118 at 17. Further, “[i]n California, there is not a standalone cause of action for ‘unjust
26 enrichment,’ . . . [although] a court may ‘construe the cause of action as a quasi-contract claim seeking

27

restitution.’” Astiana v. Hain Celestial Grp., Inc., 783 F.3d 753, 762 (9th Cir. 2015) (quoting Rutherford Holdings, LLC v. Plaza Del Rey, 223 Cal. App. 4th 221 (2014)) (citing Durell v. Sharp Healthcare, 183

28 Cal. App. 4th 1350 (2010); Jogani v. Super. Ct., 165 Cal. App. 4th 901 (2008)). The Court declines to
resolve these issues at this time and on the current record.

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1 Fed. R. Civ. P. 23(b)(3). The superiority inquiry focuses “on the efficiency and economy

2 elements of the class action so that cases allowed under [Rule 23(b)(3)] are those that can

3 be adjudicated most profitably on a representative basis.” Zinser, 253 F.3d at 1190

4 (internal quotation marks omitted). A district court has “broad discretion” in determining

5 whether class treatment is superior. Kamm v. Cal. City Dev. Co., 509 F.2d 205, 210 (9th

6 Cir. 1975).

7

Plaintiffs contend that a class action is superior here because “many of the putative

8 class members have a limited understanding of the law, limited English skills, and limited

9 resources to devote to pursuing recovery.” ECF No. 87 at 25. “Many former ICE detainees

10 also fear retaliation given their uncertain immigration status or ongoing immigration

11 proceedings.” Id. (citing Just Film, Inc. v. Buono, 847 F.3d 1108, 1123 (9th Cir. 2017)).

12 “Finally, the class members are geographically dispersed given the number of CoreCivic

13 facilities throughout the United States.” Id. (citing In re Monster Worldwide, Inc. Secs.

14 Litig., 251 F.R.D. 132, 139 (S.D.N.Y. 2008)).

15

Defendant claims that “Plaintiffs fail to meaningfully address, much less meet their

16 burden of establishing through evidence, that class treatment is the ‘superior’ method for

17 resolving all claims efficiently and economically.” ECF No. 118 at 33. Specifically,

18 Defendant contends, “[t]he putative National classes have no meaningful ties to California,

19 and Plaintiffs provide no reason why this forum is superior.” Id. (citing Fed. R. Civ. P.

20 23(b)(3)(C)). Defendant claims that this action is not manageable as a class action because

21 it involves “five classes, which . . . will include more than 120,000 people who are scattered

22 across a multitude of countries.” Id. at 34. According to Defendant, individualized

23 inquiries as to liability and damages also weigh against class certification here. See id. at

24 34–35.

25

Plaintiffs note that “damages calculations cannot defeat class certification,” ECF No.

26 127 (quoting ECF No. 118 at 35), and note that “CoreCivic’s arguments regarding other

27 pending litigation against CoreCivic—in addition to demonstrating the scope of

28 CoreCivic’s enterprise-wide policies and practices—confirms that the class members are

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1 geographically dispersed.” Id. (citing In re Monster Worldwide, Inc. Secs. Litig., 251

2 F.R.D. at 139). Further, this is the first-filed of the several class actions to which Defendant

3 cites “and is the farthest along.” Id.

4

Although Defendant is correct that this action could prove unwieldy, it is also

5 precisely the sort of action where class-wide litigation is superior to other methods of

6 litigation. See Tr. at 28:23–29:13 (“[I]f this doesn’t happen on a class basis, it doesn’t

7 happen. . . . These detainees are not in a position to take any action. . . . [A class action]

8 may be the only way to consider doing this.”). Here, “the ‘risks, small recovery, and

9 relatively high costs of litigation’ make it unlikely that plaintiffs would individually pursue

10 their claims,” “considerations . . . [that] vividly point[] to the need for class treatment.” See

11 Just Film, Inc., 847 F.3d at 1123; see also Amchem Prods., 521 U.S. at 617 (“The policy

12 at the very core of the class action mechanism is to overcome the problem that small

13 recoveries do not provide the incentive for any individual to bring a solo action prosecuting

14 his or her rights.”) (quoting Mace v. Van Ru Credit Corp., 109 F.3d 338, 344 (7th Cir.

15 1997)). Further, “litigation on a classwide basis would promote greater efficiency in

16 resolving the classes’ claims.” Id. at 1123–24 (citing Valentino v. Carter-Wallace, Inc., 97

17 F.3d 1227, 1234 (9th Cir. 1996)). Because no viable alternative method for adjudication

18 exists, the Court concludes that class-wide litigation is superior. See, e.g., Leyva v. Medline

19 Indus. Inc., 716 F.3d 510, 515 (9th Cir. 2013) (concluding that district court erred in

20 concluding that class action was not superior where “it appears that no[ other means for

21 putative class members to adjudicate their claims] exist[s]”); see also Bennett v.

22 GoDaddy.com LLC, No. CV-16-03908-PHX-ROS, 2019 WL 1552911, at *13 (D. Ariz.

23 Apr. 8, 2019) (“Realistically, the only alternative is for Defendant to avoid effectively all

24 liability for its actions. . . . A class action is far superior to the alternative of most of the

25 allegedly harmed individuals obtaining no relief.”) (citing Carnegie v. Household Int’l,

26 Inc., 376 F.3d 656, 661 (7th Cir. 2004)).

27 / / /

28 / / /

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1

CONCLUSION

2

In light of the foregoing, the Court DENIES WITHOUT PREJUDICE Plaintiffs’

3 Motion for Partial Summary Judgment (ECF No. 97), DENIES Defendant’s Motion for

4 Judgment on the Pleadings (ECF No. 117), DENIES AS MOOT Plaintiff’s Motion to

5 Exclude (ECF No. 128), and GRANTS IN PART AND DENIES IN PART Plaintiffs’

6 Motion for Class Certification (ECF No. 84). Specifically, the Court CERTIFIES the

7 California and National Forced Labor Classes in their entirety and the California Labor

8 Law Class as to the causes of action for failure to pay minimum wage, failure to provide

9 wage statements for actual damages, failure to pay compensation upon termination, and

10 imposition of unlawful conditions of employment, pursuant to any limitations detailed

11 above. The Court also DISMISSES WITHOUT PREJUDICE Plaintiffs’ claims for

12 injunctive relief and CONCLUDES that Mr. Gomez is neither an adequate nor typical

13 representative as to the wage statement and failure to pay compensation upon termination

14 claims. The Parties SHALL MEET AND CONFER20 regarding the status of this

15 litigation and their anticipated next steps and SHALL FILE a joint status report within

16 fourteen (14) days of the electronic docketing of this Order.

17

IT IS SO ORDERED.

18

19 Dated: April 1, 2020

20

21

22

23

24

25

26

27 20 In light of the current COVID-19 public emergency, see, e.g., Order of the Chief Judge No. 18 (S.D. 28 Cal. filed Mar. 17, 2020); Executive Order N-33-20, Executive Department of the State of California
(March 19, 2020), the Parties are encouraged to meet and confer telephonically.

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