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Case No. 17-CV-00593-LHK 

ORDER GRANTING MOTION FOR CONDITIONAL FLSA COLLECTIVE ACTION CERTIFICATION AND 

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Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN JOSE DIVISION

RESHAD SALEH,

Plaintiff,

v.

VALBIN CORPORATION,

Defendant.

Case No. 17-CV-00593-LHK 

ORDER GRANTING MOTION FOR 

CONDITIONAL FLSA COLLECTIVE 

ACTION CERTIFICATION AND 

ISSUANCE OF NOTICE

Re: Dkt. No. 47

Plaintiff Reshad Saleh (“Saleh”), on behalf of himself and all others similarly situated, 

brings this action against Defendant Valbin Corporation (“Valbin”). Before the Court is Saleh’s

Motion for Conditional FLSA Collective Action Certification and Issuance of Notice. ECF No. 

47. Having considered the parties’ briefing, the relevant law, and the record in this case, the Court 

GRANTS Saleh’s Motion for Conditional FLSA Collective Action Certification and Issuance of 

Notice.

I. BACKGROUND

A. Factual Background

Saleh alleges that he is a former employee of Valbin who worked as a non-exempt role 

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player at the Fort Hunter Liggett Military Base in California. ECF No. 1 (“Compl.”) ¶¶ 25-26. 

Many members of the U.S. military deploying to the Middle East or neighboring regions undergo 

training at Fort Hunter Liggett that “includes simulation training in fabricated Middle Eastern 

villages,” other terrains, and simulated battlefields featuring native role players. Id. ¶ 37. “The 

villages are created to look like real villages from Iraq, Afghanistan, or other Middle Eastern 

countries and have attributes such as mosques [and] traffic circles.” Id. ¶ 39. During rotations 

lasting between three and nineteen days, the role players inhabit the villages and other terrain. Id. 

¶¶ 40, 45.

Saleh alleges that during a rotation, role players were required to be in character twentyfour hours per day. Id. ¶ 46. Once a role player arrived at Fort Hunter Liggett to begin a rotation, 

he was not allowed to leave the base for any reason. Id. ¶ 47. Role players resided and slept in the 

simulated village, military tents, or similar accommodations with no running water, electricity, 

heating, or air conditioning, according to Saleh. Id. ¶¶ 48, 84, 92, 96. Saleh alleges that exercises 

occurred at all hours of the day and night, id. ¶ 53, and that as a result his sleep was regularly 

interrupted and he was not able to get five hours of uninterrupted sleep, id. ¶¶ 81-82, 107-08. 

Saleh alleges that he was not compensated for sleep time. Id. ¶¶ 8-9. Finally, Saleh alleges that he 

regularly worked more than forty hours per week, id. ¶ 106, and was not paid overtime in 

accordance with 29 U.S.C. § 207, Compl. ¶¶ 124-25.

B. Procedural History

On February 6, 2017, Saleh filed the instant collective action complaint against Valbin. 

Compl. Saleh alleges two causes of action: (1) Failure to Pay Proper Overtime Wages in violation

of FLSA, 29 U.S.C. § 207; and (2) Declaratory Relief. Id. Between August 7, 2017, and October 

9, 2017, Saleh filed notices of consent to sue under FLSA for Andrew Ayon (ECF No. 35), 

Mouayed Vawood (ECF No. 39), Nabil Jany (ECF No. 45), Janan Dawood (ECF No. 50), John 

Pauls (ECF No. 51), Shallah Obaid (ECF No. 52), Sahara Louissa (ECF No. 53), Adnan Buni 

(ECF No. 56), and Mustafa Saleh (ECF No. 57).

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On September 6, 2017, Saleh filed the instant motion for conditional collective action 

certification. ECF No. 47 (“Mot.”). On September 20, 2017, Valbin filed an opposition. ECF 

No. 49 (“Opp.”). On September 27, 2017, Saleh filed a reply. ECF No. 54 (“Reply”). On 

September 28, 2017, Valbin filed a motion for partial summary judgment against Nabil Jany and 

Janan Dawood on the basis that any applicable period of limitations had expired as to them. ECF 

No. 55. On October 12, 2017, Saleh filed a statement of non-opposition to the motion for partial 

summary judgment. ECF No. 58. On October 13, 2017, the Court granted the motion for partial 

summary judgment as to Nabil Jany and Janan Dawood. ECF No. 59.

II. LEGAL STANDARD

Under the FLSA, an employee may bring a collective action on behalf of other “similarly 

situated” employees. 29 U.S.C. § 216(b). In contrast to class actions pursuant to Rule 23 of the 

Federal Rules of Civil Procedure, potential participants in a collective action under the FLSA must 

“opt in” to the suit by filing a written consent with the court in order to benefit from and be bound 

by a judgment. Centurioni v. City & Cty. of S.F, 2008 WL 295096, at *1 (N.D. Cal. Feb. 1, 2008); 

see also 29 U.S.C. § 216(b) (“No employee shall be a party plaintiff to any such action unless he 

gives his consent in writing to become such a party and such consent is filed in the court in which 

such action is brought.”). Employees who do not opt in are not bound by a judgment and may 

subsequently bring their own action. Centurioni, 2008 WL 295096 at *1. 

Determining whether a collective action is appropriate is within the discretion of the 

district court. See Leuthold v. Destination Am., Inc., 224 F.R.D. 462, 466 (N.D. Cal. 2004). The 

plaintiff bears the burden to show that the plaintiff and the putative collective action participants

are “similarly situated.” Id. The FLSA does not define the term “similarly situated,” nor has the 

Ninth Circuit defined it. Rivera v. Saul Chevrolet, Inc., No. 16-CV-05966-LHK, 2017 WL 

3267540, at *2 (N.D. Cal. July 31, 2017). Although various approaches have been taken to 

determine whether plaintiffs are “similarly situated,” courts in this circuit have used an ad hoc, 

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two-step approach.1See Colson v. Avnet, Inc., 687 F. Supp. 2d 914, 925 (D. Ariz. 2010) 

(Murguia, J.) (“[D]istrict courts within the Ninth Circuit generally follow the two-tiered or twostep approach for making a collective action determination.”); Leuthold, 224 F.R.D. at 467 (“The 

court proceeds under the two-tiered analysis, given that the majority of courts have adopted it.”); 

see also Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095, 1102 (10th Cir. 2001) (discussing 

three different approaches district courts have used to determine whether potential plaintiffs are 

“similarly situated” and finding that the ad hoc approach is arguably the best of the three 

approaches); Zavala v. Wal-Mart Stores Inc., 691 F.3d 527, 536 (3d Cir. 2012) (noting that 

“conditional certification” involves the exercise of the district court’s “discretionary power, upheld 

in Hoffman-La Roche Inc. v. Sperling, 493 U.S. 165 (1989), to facilitate the sending of notice to 

potential class members,” and approving ad hoc approach).

Under the two-tiered approach, the court first makes an initial “notice stage” determination 

of whether potential opt-in plaintiffs exist who are similarly situated to the representative 

plaintiffs, and thus whether a collective action should be certified for the purpose of sending notice 

of the action to potential collective action participants.

2

 See, e.g., Thiessen, 267 F.3d at 1102; 

Wellens v. Daiichi Sankyo, Inc., No. 13-cv-00581-WHO, 2014 WL 2126877 at *1 (N.D. Cal. May 

 

1 Use of this two-tiered approach has been affirmed by at least six United States Courts of 

Appeals. See White v. Baptist Mem’l Health Care Corp., 699 F.3d 869, 877 (6th Cir. 2012)

(“District courts determine whether plaintiffs are similarly situated in a two-step process, the first 

at the beginning of discovery and the second after all class plaintiffs have decided whether to optin and discovery has concluded.”); Zavala v. Wal-Mart Stores Inc., 691 F.3d 527, 536 (3d Cir. 

2012) (“We implicitly embraced this two-step approach, and we affirm its use here.”); Myers v. 

Hertz Corp., 624 F.3d 537, 554-55 (2d Cir. 2010) (calling the two-tiered approach “sensible”); 

Sandoz v. Cingular Wireless LLC, 553 F.3d 913, 915 n.2 (5th Cir. 2008) (“[C]ollective actions 

typically proceed in two stages.”); Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1260 

(11th Cir. 2008) (“[W]e have sanctioned a two-stage procedure.”); Thiessen v. Gen. Elec. Capital 

Corp., 267 F.3d 1095, 1105 (10th Cir. 2001) (calling the two-tiered approach arguably the best of 

three approaches outlined and approving of its use); see also Bouaphakeo v. Tyson Foods, Inc., 

765 F.3d 791, 796 (8th Cir. 2014) (adopting the second-step factors from Thiessen, without stating 

if the two-tiered approach applies), aff’d, 136 S. Ct. 1036 (2016).

2

The sole consequence of conditional certification is the “sending of court-approved written 

notice to employees, who in turn become parties to a collective action only by filing written 

consent with the court.” Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523, 1530 (2013)

(internal citations omitted).

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22, 2014) (“The question is essentially whether there are potentially similarly-situated class 

members who would benefit from receiving notice at this stage of the pendency of this action as to 

all defendants.”). “In other words, at this preliminary stage, the focus of the inquiry ‘is not on 

whether there has been an actual violation of law but rather on whether the proposed plaintiffs are 

similarly situated under 29 U.S.C. § 216(b) with respect to their allegations that the law has been 

violated.’” Guillen v. Marshalls of MA, Inc., 750 F. Supp. 2d 469, 475 (S.D.N.Y. 2010) (quoting 

Young v. Cooper Cameron Corp., 229 F.R.D. 50, 54 (S.D.N.Y. 2005)) (internal quotation marks 

omitted).

For conditional certification at this notice stage, the court requires little more than 

substantial allegations, supported by declarations or discovery, that “the putative class members 

were together the victims of a single decision, policy, or plan.” Thiessen, 267 F.3d at 1102; see 

also Myers, 624 F.3d at 555 (noting plaintiffs must make a “modest factual showing”); Morton v. 

Valley Farm Transp., Inc., 2007 WL 1113999, at *2 (N.D. Cal. Apr. 13, 2007) (describing burden 

as “not heavy” and requiring plaintiffs to merely show a “reasonable basis for their claim of classwide” conduct (internal quotation marks and citation omitted)); Stanfield v. First NLC Fin. Serv., 

LLC, 2006 WL 3190527, at *2 (N.D. Cal. Nov. 1, 2006) (holding that the plaintiffs simply “must 

be generally comparable to those they seek to represent”). The standard for certification at this 

stage is a “fairly lenient” one that typically results in certification. Wynn v. Nat’l Broadcasting 

Co., 234 F. Supp. 2d 1067, 1082 (C.D. Cal. 2002). 

Once discovery is complete, and the case is ready to be tried, the party opposing collective 

action certification may move to decertify the collective action. Leuthold, 224 F.R.D. at 467. 

“[T]he Court then determines the propriety and scope of the collective action using a stricter 

standard.” Stanfield, 2006 WL 3190527 *2. At that point, “the court may decertify the class and 

dismiss the opt-in plaintiffs without prejudice.” Leuthold, 224 F.R.D. at 467. It is at this second 

stage that the Court makes a factual determination about whether the opt-in plaintiffs are actually 

similarly situated, by weighing such factors as: “(1) the disparate factual and employment settings 

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of the individual plaintiffs; (2) the various defenses available to the defendants with respect to the 

individual plaintiffs; and (3) fairness and procedural considerations.” Id. (citing Thiessen, 267 

F.3d at 1103).

Notably, collective actions under the FLSA are not subject to the requirements of Rule 23 

of the Federal Rules of Civil Procedure for certification of a class action. Thiessen, 267 F.3d at 

1105. Thus, even at the second stage, “[t]he requisite showing of similarity of claims under the 

FLSA is considerably less stringent than the requisite showing under Rule 23 of the Federal Rules 

of Civil Procedure. All that need be shown by the plaintiff is that some identifiable factual or

legal nexus binds together the various claims of the collective action members in a way that 

hearing the claims together promotes judicial efficiency and comports with the broad remedial 

policies underlying the FLSA.” Hill v. R+L Carriers, Inc., 690 F. Supp. 2d 1001, 1009 (N.D. Cal. 

2010) (quoting Wertheim v. Arizona, 1993 WL 603553, at *1 (D. Ariz. Sept. 30, 1993)).

III. DISCUSSION

A. Saleh’s Claims

Saleh seeks to bring this action on behalf of “[a]ll current and former Role-Players who 

worked for Defendant at Fort Hunter-Liggett at any time between February 3, 2014 and the 

present.” Reply at 7. Saleh argues that he is similarly situated to the putative collective action 

participants because Valbin “systematically: (1) failed to provide Plaintiffs with private quarters in 

a homelike environment; (2) failed to provide Plaintiffs with at least five . . . hours of 

uninterrupted sleep time per day; and (3) allowed Plaintiffs to work in excess of 40 hours per week 

without being paid all of their overtime.” Mot. at 2. As to overtime, Saleh claims that he never 

entered into an agreement to exclude from hours worked a regularly scheduled uninterrupted 

sleeping period. Compl. ¶ 109. In addition, Saleh claims that Valbin had a policy of 

compensating a maximum of thirteen hours of work per day, regardless of how many hours an 

employee actually worked. Mot. at 2. In support of his motion for conditional collective action 

certification, Saleh submits his own declaration, as well as the declarations of opt-in plaintiffs 

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Andrew Ayon and Nabil Jany3and a copy of a powerpoint slide deck that Valbin used as part of 

an employee orientation for its role players at Fort Hunter Liggett. See Mot. Exhibit A (“Saleh 

Decl.”), Exhibit B (“Ayon Decl.”), Exhibit C (“Jany Decl.”), and Exhibit D (“Orientation Slides”). 

Saleh and Ayon contend that, based on their direct observations and their conversations 

with other role players, Valbin’s general policies and procedures applied to all role players. Saleh 

Decl. ¶¶ 15-16; Ayon Decl. ¶¶ 15-16. Saleh and Ayon allege that they were required to remain in 

character at all times during a training rotation because the U.S. military personnel might enter a 

village at any time day or night as part of their training. Saleh Decl. ¶ 5; Ayon Decl. ¶ 5. Saleh 

and Ayon claim that they were required to sleep in the fabricated villages, military tents, or similar 

accommodates with no running water or electricity. Saleh Decl. ¶ 11; Ayon Decl. ¶ 11. They 

allege that they were compensated a maximum of thirteen hours per day. Saleh Decl. ¶ 8; Ayon 

Decl. ¶ 8. Presumably as a result of this maximum compensation policy, Saleh and Ayon claim 

that they were not paid for all of their overtime hours worked while on rotation. Saleh Decl. ¶ 14; 

Ayon Decl. ¶ 14. They claim that after they entered Fort Hunter Liggett for a rotation, they were 

not allowed to leave for any reason. Saleh Decl. ¶ 10; Ayon Decl. ¶ 10. If they did leave for any 

reason, Saleh and Ayon allege that Valbin threatened that Valbin would never again hire them if 

they left. Saleh Decl. ¶ 19; Ayon Decl. ¶ 19.

The Orientation Slides provide very limited corroboration of Saleh’s claims. On a slide 

entitled “Valbin Policies,” the Orientation Slides state, “You must stay in character during the 

training scenarios.” Id. at 37. 

Finally, Saleh stresses that his burden at the notice stage is not a heavy one. Saleh argues 

that his sworn declaration, the sworn declaration of Ayon, and his detailed factual allegations in 

 

3 As noted above, the Court granted summary judgment for Valbin as to Jany because Jany’s 

employment with Valbin occurred outside the scope of any applicable statute of limitations. 

Accordingly, the Court has not considered Jany’s declaration in deciding the instant motion. See 

Stickle v. SCI W. Market Support Center, L.P., No. 08-083-PHX-MHM, 2009 WL 3241790, at *5 

(D. Ariz. Sept. 30, 2009) (“Brown’s claim fall[s] outside the scope of the statute of limitations, 

and therefore she has no legally cognizable interest in this lawsuit. Accordingly, her affirmation 

cannot inform the scope of a conditionally certified class.”).

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the complaint are enough to meet his burden. Mot. at 6. Moreover, Saleh argues that the Court 

need not even consider evidence provided by the defendant at this stage. Id. at 7 (citing Kress v. 

PricewaterhouseCoopers, 263 F.R.D. 623, 628 (E.D. Cal. 2009) (“In determining whether 

plaintiffs have met [the notice-stage] standard, courts need not consider evidence provided by 

defendants.”)).

B. Valbin’s Response

Valbin opposes Saleh’s motion for conditional certification on several grounds. First, 

Valbin argues that Saleh has not met his burden to show that he is similarly situated to the other 

collective action participants he seeks to represent. Opp. at 4. Second, Valbin argues that if the 

Court conditionally certifies a collective action, the time period defining the collective action 

membership should only reach back two years, not three, because there is no proof of a willful 

violation.4 Opp. at 9. The Court describes these positions in turn in more detail below.

Valbin puts forward at least two reasons that Saleh has failed to show that he is similarly 

situated to the group he seeks to represent. First, Valbin points out that role players are divided 

into two types with three different job descriptions, as the Orientation Slides that Saleh submitted 

outline. Opp. at 4; see also Orientation Slides at 7 (summarizing the three different job 

descriptions). First, there are generic role players, which are also referred to as civilians on the 

battlefield (“COBs”). COBs have primarily non-speaking roles. Second, there are generic 

casualty role players, which are COBs with battlefield wounds. Third, there are foreign language 

speakers (“FLSs”), which have speaking roles. Orientation Slides at 7. COBs and FLSs were 

classified differently for pay purposes and entered into different types of contracts. Opp. at 4; 

Declaration of Dakota Farr (“Farr Decl.”) ¶ 2; Exh. 1a, 1b to Farr Decl. Because the different job 

descriptions had different responsibilities, Valbin argues that all role players are not similarly 

 

4 Valbin also objected to Saleh’s initial definition of the collective action group because it was not 

limited to Valbin’s role player employees at Fort Hunter Liggett. See Opp. at 8-9; Mot. at 10. 

However, Saleh conceded in his Reply that the collective action group should be limited to role 

players at Fort Hunter Liggett. Reply at 7.

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situated. Opp. at 4.

Second, Valbin disputes almost every factual allegation in the Complaint and Motion, 

including the length of role players’ rotations and shifts, whether it paid role players overtime, 

whether role players were required to be in character twenty-four hours per day, whether exercises 

awoke role players during the night, whether role players were allowed to leave the base, and the 

circumstances of role players’ lodging arrangements. Opp. at 4-7. Valbin hypothesizes that Saleh 

copied the allegations from another lawsuit in which he took part, Ahmadi v. Calnet, Inc., No. 

5:15-cv-02636 (C.D. Cal.), and made those same allegations in the instant case, despite those 

allegations having no basis in the facts of his employment with Valbin at Fort Hunter Liggett.5 

Opp. at 2. Because Saleh’s claims are all contradicted by Valbin’s evidence, Valbin argues that 

Saleh has not carried his burden to show that there was any single policy affecting all putative 

collective action participants or that Saleh was similarly situated to these putative participants.

In support of this argument, Valbin submits two declarations and a range of documents. 

Valbin submits time sheets for Saleh and Ayon showing that they worked shifts lasting no more 

than twelve hours per day, and often no more than ten hours per day. Exh. 2a to Farr Decl. at 35-

44 (Ayon); Exh. 2c to Farr Decl. at 57-68 (Saleh). Valbin also submits the declaration of Ken 

Plato, a Valbin exercise site manager, who states that rotations at Fort Hunter Liggett lasted five to 

fifteen days, not three to nineteen days as Saleh and Ayon claim. Plato Decl. ¶ 2. Valbin submits

pay stubs for Saleh and Ayon showing that they were paid overtime. Exh. 2a to Farr Decl. at 27-

34 (Ayon); Exh. 2c to Farr Decl. at 54-56 (Saleh). According to Plato, role players were not 

required to remain in character twenty-four hours per day. Plato Decl. ¶ 3. Nor were they awoken 

at night by Valbin or government employees. Id. ¶ 6. Plato states that shifts generally lasted eight 

to ten hours per day, and that after a shift was over, role players were free to do whatever they 

 

5 Valbin states that it will likely seek sanctions, presumably as a result of the claimed falsity of the 

allegations in this suit. Opp. at 2. While the Court takes no position at this time on whether 

sanctions may be warranted in this case, the Court will seriously consider imposing sanctions if 

the allegations are proven to be as meritless as Valbin asserts.

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wanted. Id. ¶¶ 3, 5. Role players were allowed to and often did leave the base after the end of 

their shift. Id. ¶¶ 3, 5, 8. Plato states that role players did not sleep in fabricated villages or 

individual military tents. Id. ¶ 4. Rather, Plato says that role players slept in either “large army 

portable barracks (large tent-like structures for 8 to 10 individuals) or actual barracks.” Id. Plato 

goes on, “If they wanted, they could sleep in hotels off base or the hotel on base, but most 

accepted Valbin’s offer of free accommodations which, I note, included water and electricity, as 

well as heat and air conditioning.” Id. 

Based on this evidence, Valbin argues that Saleh has not identified “the single decision, 

policy, or plan that affected all of the putative collective action members,” nor has Saleh 

demonstrated that the plaintiffs are similarly situated. Opp. at 7 (internal quotation marks 

omitted). For example, Valbin argues that “the evidence is plain that plaintiffs kept time sheets 

and that Valbin paid each of the plaintiffs overtime pay.” Id. “If the plaintiffs are to be believed 

that other employees were not paid overtime as they state in their Calnet-copied affidavits, then 

these plaintiffs who were paid overtime are not similarly situated to those other persons and there 

is no basis for a collective action.” Id. Moreover, Valbin argues that the Orientation Slides that 

Saleh submitted show that Valbin expected its employees to work from about 8:00 a.m. until 5:00 

p.m. and that “employees sign daily time & attendance sheets before departing.” Id. at 8. Valbin 

argues that “[g]iven this timesheet requirement, ‘off the clock’ work clearly was not a Valbin 

dictated decision, policy, or plan.” Id.

Valbin also argues that if the Court conditionally certifies a collective action, the collective 

action group should be defined as all role players who worked for Valbin at Fort Hunter Liggett 

during the last two years—not during the last three years, as Saleh suggests. Id. at 9. This 

argument is rooted in the relevant statute of limitations for FLSA claims. FLSA claims for unpaid 

compensation are generally subject to a two-year statute of limitations. 29 U.S.C. § 255(a). 

However, “a cause of action arising out of a willful violation may be commenced within three 

years after the cause of action accrued.” Id. Valbin argues that because there is no evidence of 

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any FLSA violation—let alone a willful violation—any conditional certification should only 

include role players who worked for Valbin within the past two years. Opp. at 9.

C. Analysis

As noted above, to show that he is similarly situated to the putative collective action 

participants, under the notice-stage standard, Saleh must provide “‘substantial allegations, 

supported by declarations or discovery, that ‘the putative class members were together the victims 

of a single decision, policy, or plan.’” Kress, 263 F.R.D. at 629. These allegations and evidence 

must show a “reasonable basis for [Saleh’s] claim for class-wide” conduct. Coates v. Farmers 

Grp., Inc., No. 15-CV-01913-LHK, 2015 WL 8477918, at *6 (N.D. Cal. Dec. 9, 2015). Valbin 

concedes that the notice-stage standard applies to the instant motion. See Opp. at 2-3.

Saleh has carried his burden under this “fairly lenient” standard. See Wynn, 234 F. Supp. 

2d at 1082. Saleh alleges that role players: were required to be in character twenty-four hours per 

day; were required to sleep in fabricated villages or military tents; were often awoken during the 

night to engage in role-playing exercises; were not paid for sleep time; were not allowed to leave 

the base while on rotation; and were compensated for a maximum of thirteen hours of work per 

day. As a result, Saleh contends that role players were not paid all of the overtime pay that they 

were due. Saleh and Ayon submit declarations attesting to these facts. These detailed allegations 

go beyond “boilerplate and legal conclusions without support” that Valbin did not pay overtime. 

See Heath v. Google Inc., 215 F. Supp. 3d 844, 857 (N.D. Cal. 2016). The allegations provide a 

“reasonable basis” for concluding that Valbin’s alleged policies applied to all role players at Fort 

Hunter Liggett. As a result, the Court concludes that the collective action should be conditionally 

certified and that notice should be provided to the putative collective action participants. For the 

reasons below, Valbin’s arguments do not compel a contrary result.

1. The Different Job Types at Issue Here Do Not Defeat Conditional Certification

As described above, Valbin argues that Saleh is not similarly situated to the putative 

collective action participants because the group he proposes encompasses two types of jobs (COB 

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and FLS) with three job descriptions (generic role player, generic casualty role player, and foreign 

language speaker). Saleh’s own evidence establishes that there were three job descriptions among 

the role players at Fort Hunter Liggett. Orientation Slides at 7. However, courts often 

conditionally certify collective actions that include multiple job types and titles. See, e.g., Coates, 

2015 WL 8477918 at *13 (conditionally certifying collective action comprising eleven job titles); 

Wellens, 2014 WL 2126877 at *2, 6 (conditionally certifying collective action comprising six job 

titles); Stickle v. SCI W. Market Support Center, L.P., No. 08-083-PHX-MHM, 2009 WL 

3241790, at *6-7 (D. Ariz. Sept. 30, 2009) (conditionally certifying collective action comprising 

seven job titles). As a result, the mere fact that there were different types of role players does not 

alone defeat conditional certification. To the contrary, the declarations of Saleh and Ayon state 

that based on their personal experience, they believe that Valbin’s policies and procedures applied 

uniformly to all role players. Saleh Decl. ¶¶ 15-16; Ayon Decl. ¶¶ 15-16.

Valbin does not seriously contend otherwise. Indeed, Valbin vigorously disputes Saleh’s 

factual allegations on everything from sleeping conditions to overtime pay, but Valbin does little 

to argue that the differences in job classification would translate into different applications of the 

policies Saleh alleges, were such policies to exist. In fact, in disputing Saleh’s factual allegations, 

Valbin consistently refers to all role players collectively, rather than differentiating between COBs 

and FLSs, for example. See, e.g., Opp. at 4-5 (“Valbin provided role players to the Army only for 

work shifts of approximately 8 to 10 hours/day, it paid its role players overtime, and these role 

player were not in character for the 14 to 16 hours that they were not on a work shift.”). Valbin 

does not contend that role players with different job types or job titles worked different hours, 

were subject to different overtime policies, had different sleeping arrangements, or were subject to 

different policies about remaining on base. As a result, the Court concludes that the fact that 

Valbin’s role players at Fort Hunter Liggett were categorized differently for pay or had different 

job titles does not defeat conditional certification.

2. Resolution of Disputed Facts is Not Proper at the Notice Stage

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Next, Valbin contends that Saleh is not similarly situated to the putative collective action 

group because he has failed to establish the existence of any of the policies he alleges, let alone 

establish that these policies were applied to him. Opp. at 7-8. Valbin points to the time sheets, 

pay stubs, and declarations it has submitted, all of which contradict Saleh’s allegations. Id. 

Clearly, Valbin’s evidence creates a factual dispute: Saleh and Ayon submitted sworn declarations 

claiming certain policies exist, and Valbin submitted evidence showing the opposite. At the notice

stage, however, “[i]t is not the Court’s role to resolve factual disputes . . . or . . . decide substantive 

issues going to the ultimate merits.” Colson, 687 F. Supp. 2d at 926 (quoting Barrus v. Dick’s 

Sporting Goods, Inc., 465 F. Supp. 2d 224, 230 (W.D.N.Y. 2006)); see also Harris v. Vector 

Mktg. Corp., 716 F. Supp. 2d 835, 838 (N.D. Cal. 2010) (“The fact that a defendant submits 

competing declarations will not as a general rule preclude conditional certification.”). “[A]lthough 

the evidence submitted by the defendants tends to contradict the plaintiffs’ evidence and to reveal 

potential weaknesses in their case, it does not preclude conditional certification.” Longnecker v. 

Am. Exp. Co., No. 2:14-cv-0069-HRH, 2014 WL 4071662, at *5 (D. Ariz. Aug. 18, 2014) 

(quoting Benson v. Asurion Corp., No. 3:10-cv-526, 2010 WL 4922704, at *5 (M.D. Tenn. Nov. 

29, 2010)); see also Escobar v. Whiteside Const. Corp., No. C 08-01120 WHA, 2008 WL 

3915715, at *4 (N.D. Cal. Aug. 21, 2008) (“It may be true that the evidence will later negate 

plaintiffs’ claims, but this order will not deny conditional certification at this stage in the 

proceedings.”). Thus, the issues raised by Valbin are more properly dealt with at the second stage 

of the certification process or once the case reaches the merits phase of litigation. See Wellens, 

2014 WL 2126877 at *5.

3. Saleh Has Sufficiently Alleged Willfulness

Valbin argues that if a collective action is conditionally certified, the scope of the putative 

collective action should be limited to the last two years, not the last three years, because Saleh has 

not adduced any evidence that Valbin willfully violated the statute. Opp. at 9. As discussed 

above, 29 U.S.C. § 255(a) provides for a three-year statute of limitations for willful violations. 

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The U.S. Supreme Court has held that willfulness in the context of FLSA means “that the 

employer either knew or showed reckless disregard for the matter of whether its conduct was 

prohibited by the statute.” McLaughlin v. Richland Shoe Co., 486 U.S. 128, 134 (1988). 

When plaintiffs allege willfulness, “[c]ourts routinely approve a three-year notice period.” 

Cohen v. Gerson Lehrman Grp., Inc., 686 F. Supp. 2d 317, 331 (S.D.N.Y. 2010). Courts reason 

that a broader period is appropriate at the notice stage for at least two reasons. First, as discussed 

above, courts “avoid any merit-based determinations” at the notice stage. Id. (quoting Fasanelli v. 

Heartland Brewery, Inc., 516 F. Supp. 2d 317, 323 (S.D.N.Y. 2007)). As a result, if a plaintiff has 

plausibly alleged willfulness, courts typically will not weigh contrary evidence at the notice stage. 

See Williams v. U.S. Bank Nat. Ass’n, 290 F.R.D. 600, 614 (E.D. Cal. 2013) (“Plaintiffs have 

sufficiently alleged a willful violation in their complaint, and will be put to their proof at the 

appropriate time.”). Second, courts “believe[] it is better to be overly inclusive at the notice stage” 

because a defendant will have the opportunity to move to decertify the class at the second 

certification stage or move for summary judgment against opt-in plaintiffs whose claims fall 

outside the two-year limitations period. Hart v. U.S. Bank NA, No. CV 12-2471-PHX-JAT, 2013 

WL 5965637, at *6 (D. Ariz. Nov. 8, 2013); see also Anglada v. Linens ‘N Things, Inc., 2007 WL 

1552511, at *8 (S.D.N.Y. May 29, 2007) (“[W]here there has been no substantive discovery as to 

the appropriate temporal scope of the prospective class of member plaintiffs, and where the 

Plaintiff has alleged a willful violation of the FLSA, it is prudent to certify a broader class of 

plaintiffs that can be limited subsequently, if appropriate, during the second phase of the collective 

action certification process.”).

In the instant case, Saleh alleges that Valbin was aware of, and was able to comply with, 

all aspects of FLSA. Compl. ¶ 120. Specifically, Saleh alleges that Valbin was “aware of the 

requirements under the FLSA to properly compensate employees.” Id. ¶ 113. As a result, Saleh 

contends that Valbin’s “failure and/or refusal to properly compensate” him “at the rates and 

amounts required by the FLSA was willful and knowing.” Id. ¶ 112; see also ¶ 132. In support of 

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these allegations, Saleh claims that “[e]mployees would regularly complain about not being paid 

for [sleep] time, and were simply told if they did not like it they could go home.” Id. ¶ 9. Saleh 

also alleges that he “was told but disagreed and complained about” the policy of not compensating 

role players for sleep time when they were awoken for exercises in the middle of the night. Id. 

¶ 110. Again, Saleh states that he “was told if he did not like it, he could simply go home.” Id. 

¶ 111. At this preliminary stage, the Court finds that Saleh has sufficiently alleged willfulness. 

Accordingly, notice will be provided to all current and former role players who have 

worked for Valbin at Fort Hunter Liggett since February 6, 2014—three years before the filing of 

the instant complaint.6 “The Court’s decision to give notice for the three-year time period does 

not indicate a finding on willfulness.” Hart, 2013 WL 5965637 at *6.

D. List of Putative Collective Action Participants, Form of Notice, and Opt-In Period

The U.S. Supreme Court has held that employees need to receive “accurate and timely 

notice concerning the pendency of the collective action, so that they can make informed decisions 

about whether to participate” in the collective action. Hoffmann-LaRoche Inc. v. Sperling, 493 

U.S. 165, 170 (1989). “District courts have broad discretion concerning the details of a notice 

under 29 U.S.C. § 216(b).” Villarreal v. Caremark LLC, 66 F. Supp. 3d 1184, 1194 (D. Ariz. 

2014) (citing Hoffmann-LaRoche, 493 U.S. at 170).

Saleh requests that the Court order Valbin to provide a list within 5 days of the date of this 

Order that includes all current and former role players who worked for Valbin at Fort Hunter 

Liggett within the three-year period. Mot. at 10. Saleh requests an opt-in period of 120 days from 

the date of this Order. Finally, Saleh provides a proposed notice and a consent to sue form that he 

requests that the Court approve. Id. Exh. E (“Proposed Notice” and “Consent to Sue Form,” 

respectively). Besides objecting to the scope of the collective action as discussed above, Valbin 

 

6

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Hunter Liggett beginning February 3, 2014. See Reply at 7. Saleh does not explain why February 

3, 2014 is the appropriate date. Because the instant complaint was filed on February 6, 2017, the 

Court adopts February 6, 2014 as the relevant date.

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does not otherwise respond to Saleh’s logistical requests or the form of the Proposed Notice. 

However, the Court finds that several changes to Saleh’s requests, the Proposed Notice, and the 

Consent to Sue Form are appropriate. See Hoffman-La Roche, 493 U.S. at 170-71 (noting that a 

district court has a “managerial responsibility to oversee the joinder of additional parties to assure 

that the task is accomplished in an efficient and proper way”).

First, with regard to Valbin’s provision of the collective action member list, the Court finds 

that Saleh has not justified the need for such a short deadline. Accordingly, within 10 days of the 

date of this order Valbin shall provide Saleh a list, in electronic importable format, of the names

and all known addresses of all proposed collective action participants. See Coates, 2015 WL 

8477918 at *14 (allowing defendant 10 days to provide collective action member list); Villarreal, 

66 F. Supp. 3d at 1196-97 (same).

Second, with regard to the 120-day opt-in deadline, the Court notes that the Proposed 

Notice contains a separate 90-day opt-in deadline. To avoid confusion, the Court declines to set 

two separate opt-in deadlines. Instead, Saleh shall mail notice to the potential collective action 

participants within 30 days of the date of this order. The potential collective action participants

shall then have 90 days from the date of the Notice’s mailing to postmark and return the Consent 

to Sue Form. The Court finds that counting 90 days from the date that the notices are mailed is 

more judicially administrable than counting from the date of receipt, as Saleh proposes. 

Accordingly, Page 2, Lines 8-9 of the Proposed Notice shall be revised to read: “The form must be 

postmarked and returned by [insert date 90 days from date of mailing].” Page 3, Lines 4-5 of the 

Proposed Notice shall be revised to read: “The envelope you return must be postmarked by [insert 

date 90 days from date of mailing].” See Villarreal, 66 F. Supp. 3d at 1195 (noting that the opt-in 

period “will run from the time the notice is sent, rather than from when it is received” (internal 

quotation marks omitted)). 

Third, the definition of the collective action on Pages 1-2 of the Proposed Notice shall be 

revised to reflect the definition adopted in this order, namely: “All current and former role-players 

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who worked for Defendant Valbin Corporation at Fort Hunter Liggett at any time between 

February 6, 2014 and the present.”

Fourth, because the Court has granted summary judgment against Jany, the Proposed 

Notice shall be edited to remove reference to Jany as a plaintiff. The Proposed Notice shall also 

be revised to reflect the current number of opt-in plaintiffs.

Fifth, Page 3, Lines 10-11 of the Proposed Notice shall be revised to replace “Your 

participation may depend upon a ruling from the Court regarding” with “The Defendant may later 

challenge”. The extra period at the end of Page 3, Line 14 shall be deleted.

Sixth, the Consent to Sue Form shall be revised to remove the phrase “and/or other 

associated parties” at Page 6, Line 20 and the phrase “and any other associated parties” at Page 6, 

Line 23 because Valbin is the only named defendant in this suit.

Seventh, the Consent to Sue Form shall be revised to remove the following sentence at 

Page 6, Lines 24-25: “In the event this action does not certify I authorize counsel to reuse this 

consent form to re-file my claims in a separate or related action against Defendants.” The Court 

finds it inappropriate to require potential collective action plaintiffs to agree to this term as a 

condition to opting into the collective action. Cf. Russell v. Swick Mining Services USA Inc., No. 

CV-16-02887-PHX-JJT, 2017 WL 1365081, at *5 (D. Ariz. Apr. 14, 2017) (striking similar 

language from notice after defendants objected to it as impermissible solicitation); Villarreal, 66 

F. Supp. 3d at 1195 (similar). Removing the consent for separate suits also necessitates other

changes to the Proposed Notice and the Consent to Sue Form, including the description of 

counsel’s fee structure. Specifically, the references to contingency fees at Page 3, Lines 22-24 of 

the Proposed Notice shall be removed. On Page 7, Line 1, the phrase “if accepted for 

representation” shall be deleted. On Page 7, Line 2, the phrase “without repayment of costs or 

attorneys’ fees” shall be deleted because the payment of costs and fees is often paid indirectly 

from any settlement fund. On Page 7, Lines 2-7, the text beginning “I understand that if 

plaintiffs” and ending “2/5 of my settlement or judgment amount” shall be deleted and replaced 

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with the following language, which the Court finds more accurately describes attorneys’ fees for 

collective actions: “I understand that if plaintiffs recover money, plaintiffs’ attorneys will be paid 

whatever attorneys’ fees the Court orders. Those fees may be subtracted from the settlement fund 

obtained from Valbin, or they may be paid separately by Valbin, or they may be a combination of 

the two. If plaintiffs recover no money from Valbin, plaintiffs’ attorneys will not be paid for their 

work on this case.”

Saleh shall submit a revised Proposed Notice and a revised Consent to Sue Form 

incorporating these changes for the Court’s approval within 3 days of the date of this Order.

IV. CONCLUSION

For the foregoing reasons,

IT IS ORDERED GRANTING Saleh’s motion to conditionally certify a collective action 

comprising all current and former role players who worked for Valbin Corporation at Fort Hunter 

Liggett at any time between February 6, 2014 and the present.

IT IS FURTHER ORDERED that within three (3) days of the date of this Order, Saleh 

shall submit for the Court’s approval a revised Proposed Notice and a revised Consent to Sue 

Form incorporating the changes set forth herein.

IT IS FURTHER ORDERED that within ten (10) days of the date of this Order, Valbin 

shall provide Saleh with an electronic importable list of all current and former role players who 

were employed by Valbin at Camp Hunter Liggett at any time since February 6, 2014. The list 

shall include each putative collective action member’s name and all known addresses.

IT IS FURTHER ORDERED that within thirty (30) days of the date of this Order, Saleh 

shall mail Notice of this action and the Consent to Sue Form to the potential collective action 

participants.

Dated: November 2, 2017

______________________________________

LUCY H. KOH

United States District Judge

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