Lyon et al v. U.S. Immigration and Customs Enforcement et al, No. 3:2013cv05878 - Document 98 (N.D. Cal. 2015)
Court Description: ORDER Granting 86 Plaintiffs' Motion to Modify Class Certification, Supplement Complaint, and Modify the Case Management Scheduling Order. Signed by Judge Edward M. Chen on 7/27/2015. (emcsec, COURT STAFF) (Filed on 7/27/2015)
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Lyon et al v. U.S. Immigration and Customs Enforcement et al Doc. 98 1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 8 AUDLEY BARRINGTON LYON, JR., et al., 9 11 For the Northern District of California United States District Court 10 Plaintiffs, ORDER GRANTING PLAINTIFFS’ MOTION TO MODIFY CLASS CERTIFICATION, SUPPLEMENT COMPLAINT, AND MODIFY THE CASE MANAGEMENT SCHEDULING ORDER v. U.S. IMMIGRATION & CUSTOMS ENFORCEMENT, et al., 12 13 No. C-13-5878 EMC Defendants. ___________________________________/ (Docket No. 86) 14 15 16 I. INTRODUCTION 17 Plaintiffs in this putative class action are Audley Barrington Lyon, Jr.; José Elizandro 18 Astorga-Cervantes; and other similarly situated immigration detainees (hereafter “Plaintiffs”). They 19 filed this class action against the Department of Homeland Security (“DHS”), Immigration and 20 Customs Enforcement (“ICE”), and certain employees of both agencies on the grounds that their 21 constitutional and statutory rights are being violated while they are held in government custody 22 awaiting deportation proceedings. Specifically, Plaintiffs challenge practices that they claim restrict 23 their ability to make telephone calls necessary to prepare for their removal proceedings in the San 24 Francisco Immigration Court. Initially, Plaintiffs were held at three county detention facilities 25 located throughout Northern California while awaiting the resolution of their removal proceedings: 26 Richmond, Yuba, and Elk Grove (collectively, the “County Facilities”). In April 2014, the Court 27 certified a class in this litigation consisting of all detainees held at the three County Facilities. Lyon 28 v. U.S. Immigration and Customs Enforcement, 300 F.R.D. 628, 643 (N.D. Cal. 2014). The Court Dockets.Justia.com 1 determined that despite variations among the practices of the three facilities, Plaintiffs alleged a 2 system-wide denial of telephone access and sought to impose a constitutional standard that is 3 equally applicable to all facilities. Id. at 642-43. 4 In March 2015, ICE opened a new detention facility in Bakersfield and began housing 5 certain aliens and class members there. Plaintiffs allege that the telephone policies and practices at 6 the Bakersfield facility do not allow detainees adequate access to resources necessary to prepare for 7 their removal proceedings. Currently pending before the Court is Plaintiffs’ motion to: (1) modify 8 the Court’s Class Certification Order to include detainees housed at the newly opened Bakersfield 9 facility as class members; (2) file a supplemental complaint that would add allegations regarding the Bakersfield facility and add a new representative plaintiff; and (3) extend all deadlines in the Case 11 For the Northern District of California United States District Court 10 Management Scheduling Order (“Scheduling Order”) by seventy five days or longer to allow for 12 necessary discovery regarding the Bakersfield facility. 13 Having considered the parties’ briefs and accompanying submissions, for the reasons stated 14 on the record and as set forth herein, the Court hereby GRANTS Plaintiffs’ motion to modify the 15 Class Certification Order and to file a supplemental complaint. The Court will also extend the 16 deadlines in its Scheduling Order to allow for additional discovery. 17 18 II. BACKGROUND Plaintiffs filed this lawsuit on December 19, 2013, challenging the adequacy of telephone 19 access for aliens detained in the three County Facilities. Docket No. 86 (Motion) at 2. In their 20 complaint, Plaintiffs allege that Defendants have engaged in a common course of conduct restricting 21 detainees’ telephone access in violation of their rights under the United States Constitution and the 22 Immigration and Nationality Act. Docket No. 1 (Complaint) ¶ 4. More specifically, Plaintiffs allege 23 that telephone access in the County Facilities is prohibitively expensive and inconsistently available, 24 and that this impedes their ability to communicate with counsel or independently gather evidence for 25 their removal proceedings. Id. ¶ 38. Under ICE’s National Detention Standards, detention facilities 26 must provide a “platform” that permits detainees to make free calls and leave voicemail messages 27 for nonprofit legal services providers and certain government entities. Id. ¶ 41. However, because 28 the majority of immigration attorneys and other local and state government offices are not within the 2 1 free call platform, Plaintiffs allege that these standards are largely ineffectual, and therefore their 2 legal claims focus on detainees’ ability to make calls outside of this platform. Id. 3 Plaintiffs argue that phone calls outside of the free call platform at the County Facilities are 4 not sufficiently private, affordable, or available to detainees. Complaint ¶¶ 42-49. For example, 5 Plaintiffs argue that intrastate calls from the Richmond facility cost $3.00 to connect and $0.25 per 6 minute. Id. ¶ 46. Calls from certain facilities are automatically disconnected after fifteen minutes, 7 and detainees must pay a new connection fee to continue the conversation. Docket No. 14-8 8 (Vincent Decl.) ¶ 6; Docket No.14-6 (Lee Decl.) ¶ 6. Furthermore, detainees are only permitted to 9 use the phones during certain specified “free time” hours, which are typically held outside the normal business hours of most private attorneys or government agencies. Docket No. 14-5 11 For the Northern District of California United States District Court 10 (Hernandez-Trujillo Decl.) ¶ 9. Moreover, detainees claim they may only complete calls if a live 12 person answers the phone, meaning they are unable to leave voicemail messages or navigate 13 “voicemail trees” that are common to many offices. Hernandez-Trujillo Decl. ¶¶ 16-17. According 14 to Defendants, this restriction prevents detainees from contacting individuals who do not want to 15 speak with them or with whom they are not permitted to speak. Docket No. 90-1 Ex. 2 (Bonnar 16 Decl.) ¶ 10. Detainees also cannot receive incoming calls or voicemail messages. Vincent Decl. ¶ 17 3; Lee Decl. ¶ 7. Finally, detainees claim they are afforded little privacy for privileged attorney 18 calls, as most of the phones available are located in the housing units of the County Facilities. 19 Docket No. 86-1 (Neria-Garcia Decl.) ¶¶ 18-19. 20 On April 16, 2014, the Court certified a class of “all current and future immigration detainees 21 who are or will be held by ICE in Contra Costa, Sacramento, and Yuba Counties.” Lyon, 300 F.R.D. 22 at 643. Plaintiffs’ overarching claim that detainees lacked adequate phone access to effectively 23 pursue vindication of their legal rights satisfied the requirements of Rule 23(a), and the “singular 24 nature of the injunctions sought” was appropriate for certification under Rule 23(b)(2). Id. at 642- 25 43. Although precise practices may vary among the facilities, the Court held that this “does not 26 negate the application of a constitutional floor equally applicable to all facilities.” Id. at 642. After 27 the Court certified the class, two of the named plaintiffs, Edgar Cornelio and Lourdes Hernandez- 28 Trujillo, voluntarily dismissed their claims because they were unable to continue serving as class 3 1 representatives. Docket No. 84 (Voluntary Dismissal of Lourdes Hernandez-Trujillo); Docket No. 2 71 (Voluntary Dismissal of Edgar Cornelio). One of these plaintiffs, Lourdes Hernandez-Trujillo, 3 was the only named plaintiff asserting claims related to the Yuba facility. Complaint ¶¶ 11-14. 4 Hence, there is currently no representative plaintiff with claims related to the Yuba facility, and 5 Plaintiffs seek to add a new class representative who alleges claims against both the Bakersfield and 6 Yuba facilities. Motion at 13; see also Neria-Garcia Decl. ¶¶ 14-28. 7 Plaintiffs acknowledge that Defendants have implemented several changes to their phone 8 access policies at the County Facilities in response to this litigation. For example, at the Yuba and 9 Elk Grove facilities, detainees’ telephone calls now disconnect after twenty minutes, instead of fifteen. Docket No. 86-3 Ex. A (Proposed First Supplemental Complaint) ¶ 48. Plaintiffs 11 For the Northern District of California United States District Court 10 acknowledge that detainees are also allowed to make unmonitored calls to their attorneys in private 12 rooms at the Richmond and Yuba facilities. Id. ¶ 49. Plaintiffs maintain, however, that detainees’ 13 phone access remains limited and inconsistent despite these changes. Id. ¶ 59. For example, 14 Plaintiffs allege that the private telephone at the Richmond facility is generally only available during 15 free time hours and that high demand for this phone often leads to long wait periods or limited call 16 times for detainees wishing to make private calls. Id. ¶ 50. Furthermore, Plaintiffs claim that 17 detainees may wait two or more weeks to gain access to the two private phones at the Yuba facility 18 and that once they gain access, they often must share the private room with another person. Id. ¶ 51. 19 In March 2015, Defendants opened a new detention facility in Bakersfield, California. 20 Docket No. 86-2 (Mass Decl.) ¶ 5. Like the County Facilities, the Bakersfield facility houses 21 detainees who are in deportation proceedings in the San Francisco Immigration Court. Id. ¶¶ 5-6. 22 Defendants contend that the telephone conditions at the Bakersfield facility “differ in material 23 respects” from those challenged by Plaintiffs in the County Facilities. Docket No. 90 (Response) at 24 4. According to Defendants, the Bakersfield facility houses only ICE detainees, unlike the County 25 Facilities. Id. at 3. Defendants note that the Bakersfield facility operates under the 2011 ICE 26 Performance-Based National Detention Standards instead of the 2000 standards under which the 27 County Facilities operate. Id. However, Defendants do not point to specific differences between 28 these standards that would lend relevance to this distinction. See id. While Defendants contract 4 1 with the individual County Facilities to house detainees, they contract with a private third party, the 2 GEO Group, to operate the Bakersfield facility. Docket No. 24 (Answer) ¶ 90(e); Docket No. 90-1 3 Ex. 1 (Vaughn Decl.) ¶ 3. Defendants claim that phones within the housing units are generally 4 available to detainees twenty four hours a day, and are separated by Plexiglas partitions that offer 5 privacy. Bonnar Decl. ¶¶ 6-7; see also Response at 4. They also claim that calls disconnect after 6 180 minutes rather than after fifteen or twenty minutes. Bonnar Decl. ¶ 8; see also Response at 4. 7 Defendants contend that calls at the Bakersfield facility cost $0.10 per minute with no connection 8 fee, unlike the $0.25 per minute rate and $3.00 connection fee at certain County Facilities. Bonnar 9 Decl. ¶ 13; Proposed First Supplemental Complaint ¶ 45. According to Defendants, detainees at the Bakersfield facility can request use of one of four private rooms to make legal phone calls in 11 For the Northern District of California United States District Court 10 addition to phones in the housing units. Bonnar Decl. ¶ 20; see also Response at 4. Defendants 12 allege that legal calls from these private rooms are free and unrecorded, and detainees may leave 13 voicemail messages from these private phones. Bonnar Decl. ¶¶ 23-24, 29. Defendants claim that 14 to date, demand for these private rooms has not exceeded their availability, but if that should 15 happen, ICE will transfer detainees who wish to make private calls to another office where they may 16 access a private phone. Id. ¶ 28. 17 Plaintiffs dispute that the private rooms at the Bakersfield facility are consistently available, 18 and they submitted a declaration from proposed class representative, Nancy Neria-Garcia, stating 19 “the facility’s response to these requests [to use the private room] varied.” Neria-Garcia Decl. ¶ 25. 20 Ms. Neria-Garcia stated that she made at least four requests to use the private phone at the 21 Bakersfield facility. Id. ¶¶ 25-26. Two were not granted, one was granted the next day, and another 22 was granted four days later. Id. She also stated that another detainee in her housing unit did not 23 receive a response to her request to use the private phones for more than two weeks. Id. at ¶ 26. 24 Plaintiffs claim that this and other practices at the Bakersfield facility provide detainees with 25 inadequate phone access there. Proposed First Supplemental Complaint ¶¶ 53-58. 26 Indeed, Plaintiffs argue that the Bakersfield facility is similar to the County Facilities in a 27 number of material respects. For instance, Plaintiffs contend that detainees may only place a call if 28 they have sufficient funds to purchase a calling card. Neria-Garcia Decl. ¶ 23. Phones in the 5 1 housing units apparently do not offer detainees any privacy, and detainees may have to wait a week 2 or longer before they can use one of the four private phones. Neria-Garcia Decl. ¶ 22; see also 3 Proposed First Supplemental Complaint ¶ 58. Like the housing unit phones in the County Facilities, 4 housing unit phones in the Bakersfield facility will only connect if a live person answers the phone. 5 Neria-Garcia Decl. ¶ 23. Plaintiffs also contend that detainees are unable to make private calls to 6 government agencies or other parties because the four private phones at the Bakersfield facility may 7 only be used to call attorneys. Neria-Garcia Decl. ¶ 25; see also Proposed First Supplemental 8 Complaint ¶ 57. Plaintiffs argue that this claimed restriction on private calls can be particularly 9 burdensome to detainees who are appearing pro se. Proposed First Supplemental Complaint ¶ 57; see also Motion at 5. Calls related to their legal cases may include calls to governmental agencies to 11 For the Northern District of California United States District Court 10 obtain documents, to friends and family to locate and access witnesses and records, etc. Plaintiffs 12 claim that “[t]he need for private phones is even clearer at the Bakersfield facility than in the 13 Richmond, Yuba, and Elk Grove facilities because it is a greater distance from the San Francisco 14 Immigration Court,” and Defendants do not transport detainees from the Bakersfield facility to meet 15 with pro bono counsel, as they do in the County Facilities. Proposed First Supplemental Complaint 16 ¶ 60; see also Neria-Garcia Decl. ¶ 21. 17 Through their proposed supplemental complaint, Plaintiffs seek to add Nancy Neria-Garcia 18 as a class representative. Proposed First Supplemental Complaint ¶ 13. Ms. Neria-Garcia has been 19 housed in the Yuba, Bakersfield, and Richmond facilities. Neria-Garcia Decl. ¶¶ 6-10. She alleges 20 that she did not have adequate privacy when using the housing unit phones at the Bakersfield facility 21 and that the noise level in the housing unit was a significant distraction during her calls. Id. ¶¶ 22 22-23. Ms. Neria-Garcia further claims that her requests to use a private phone at the Bakersfield 23 facility were sometimes ignored or delayed, and when she did gain access to a private room, she 24 feared that her conversations were overheard by a guard outside the room. Id. ¶¶ 25-27. Due to this 25 lack of privacy, Ms. Neria-Garcia claims she felt unable to speak confidentially with her attorney 26 until she met with him in person. Id. ¶ 28. She further alleges that the Bakersfield facility’s distance 27 from the San Francisco Immigration Court prevented her from meeting in person with her attorney 28 until she was brought to San Francisco for a hearing. Id. ¶¶ 21, 28. Ms. Neria-Garcia claims that 6 1 the telephone policies at the Bakersfield facility impeded her communication with her attorney and 2 prevented her from “gather[ing] information and evidence that is critical to [her] case.” Id. ¶ 29. 3 III. 4 DISCUSSION Based on the above evidence, Plaintiffs request that the Court modify its Class Certification 5 Order, and specifically the class definition, to include “[a]ll current and future adult immigration 6 detainees who are or will be held by ICE in Contra Costa County [where the Richmond facility is 7 located], Kern County [where the Bakersfield facility is located], Sacramento County [where the Elk 8 Grove facility is located], or Yuba County [where the Yuba facility is located].” Motion at 1; see 9 also Fed. R. Civ. P. 23(c)(1)(C) (permitting a court to alter or amend a class certification order “before final judgment”). The current class includes only detainees housed in Contra Costa, 11 For the Northern District of California United States District Court 10 Sacramento, and Yuba Counties. Lyon, 300 F.R.D. at 643. Plaintiffs also seek leave to file a 12 supplemental complaint pursuant to Federal Rule of Civil Procedure 15(d) that alleges claims 13 regarding the Bakersfield facility and adds Ms. Neria-Garcia as a class representative. Motion at 1. 14 Finally, Plaintiffs request to extend all existing deadlines in the Scheduling Order by seventy five 15 days or longer to allow the parties additional time to conduct discovery regarding the Bakersfield 16 facility. Id. The Court will address each of these requests in turn. 17 A. 18 Motion to Modify Class Certification Order Plaintiffs seek to modify the Class Certification Order pursuant to Rule 23(c)(1)(C) to 19 include as class members those detainees housed in the newly opened Bakersfield facility. Motion 20 at 1. Plaintiffs assert that modifying the class will allow for more complete relief to the class and 21 will avoid the “cost, delay, and waste” of duplicative litigation. See Keith v. Volpe, 858 F.2d 467, 22 473 (9th Cir. 1988). The Court agrees. 23 A court may alter or amend an order granting or denying class certification prior to final 24 judgment. Fed. R. Civ. P. 23(c)(1)(C). Rule 23 gives courts “broad discretion to determine whether 25 a class should be certified, and to revisit that certification throughout the legal proceedings before 26 the court.” United Steel, Paper & Forestry, Rubber, Mfg. Energy, Allied Indus. & Serv. Workers 27 Int’l Union, AFL–CIO, CLC v. ConocoPhillips Co., 593 F.3d 802, 810 (9th Cir. 2010) (internal 28 quotation marks omitted). “Even after a certification order is entered, the judge remains free to 7 1 modify it in the light of subsequent developments in the litigation.” Gen. Tel. Co. of the Sw. v. 2 Falcon, 457 U.S. 147, 160 (1982). The original class was certified under Rule 23(b)(2). Lyon, 300 3 F.R.D. at 643. In order for the Court to modify the Class Certification Order, the modified class 4 must meet the numerosity, commonality, typicality, and adequacy requirements of Rule 23(a), as 5 well as the requirements for injunctive relief under Rule 23(b)(2). See Hanon v. Dataproducts 6 Corp., 976 F.2d 497, 508 (9th Cir. 1992). As discussed below, Plaintiffs’ proposed modified class 7 meets these requirements. 8 9 1. Rule 23(a) Requirements a. Impracticable 11 For the Northern District of California United States District Court 10 Numerosity: Class So Numerous that Joinder of All Members is Plaintiffs contend that the numerosity requirement is met for the modified class because “the 12 [County] Facilities hold a combined total of 500 immigration detainees on an average day” and “the 13 class may now be even more numerous” with the addition of the detainees housed at the Bakersfield 14 facility. Motion at 13. Defendants correctly concede that the numerosity requirement is satisfied. 15 See Newton v. Am. Debt Servs., Inc., No. C-11-3228 EMC, 2015 WL 3164197, at *6 (N.D. Cal. June 16 9, 2015) (recognizing “there is a presumption of numerosity where [the] proposed class contains 100 17 or more members”). 18 19 b. Commonality: There Are Questions of Law or Fact Common to the Class Commonality requires Plaintiffs to show that “there are questions of law or fact common to 20 the class.” Fed. R. Civ. P. 23(a)(2). “Even a single [common] question” will suffice to satisfy Rule 21 23(a). Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541, 2556 (2011) (internal quotation marks 22 omitted). However, plaintiffs must do more than allege “merely that they have all suffered a 23 violation of the same provision of law.” Id. at 2551. They must “demonstrate that the class 24 members have suffered the same injury,” putting forth a “common contention . . . that it is capable of 25 classwide resolution.” Id. (internal quotation marks omitted). “What matters to class 26 certification . . . is not the raising of common questions – even in droves – but, rather the capacity of 27 a classwide proceeding to generate common answers apt to drive the resolution of the litigation.” 28 Id. (internal quotation marks omitted) (emphasis in original). 8 1 As this Court previously recognized in its original Class Certification Order, when the 2 practices or conditions of several different facilities are challenged, certain factual variations among 3 facilities will not defeat commonality as long as class members were subject to roughly the same 4 harm. See Lyon, 300 F.R.D. at 642; see also Williams v. City of Philadelphia, 270 F.R.D. 208, 215 5 (E.D. Penn. 2010) (granting 23(b)(2) class certification for inmates contesting overcrowding at 6 several prison facilities). The Williams court held that although the putative class was subject to 7 varying policies at different prisons, it satisfied commonality because it alleged a system-wide 8 denial of constitutional rights that spanned all facilities. Id. 9 In their opposition, Defendants argue that adding detainees at the Bakersfield facility to the class would defeat commonality because the “Bakersfield facility differs from the County Facilities 11 For the Northern District of California United States District Court 10 in ways that are material to determining whether the facility conditions impede detainees’ 12 communication with attorneys.” Response at 18. According to Defendants, the different policies 13 and practices at the Bakersfield facility and County Facilities preclude a resolution of common 14 questions “in one stroke.” Id. at 18 (internal quotation marks omitted). 15 This argument is unconvincing for several reasons. First, Plaintiffs point to several 16 challenged practices that apply to both the Bakersfield facility and the County Facilities. For 17 example, the housing unit phones at the Bakersfield facility, like those at the other facilities, require 18 a live person to answer and accept any call. Neria-Garcia Decl. ¶ 23; see also Proposed First 19 Supplemental Complaint ¶ 54. Plaintiffs also claim that those facilities with private phone rooms 20 (i.e. Richmond, Yuba, and Bakersfield) do not provide consistent access to these rooms, and 21 detainees may be subject to lengthy waiting periods before making a private call. Proposed First 22 Supplemental Complaint ¶¶ 50-51, 58. 23 Second, as this Court stated in its original Class Certification Order, “the fact that the precise 24 practices among . . . facilities may vary does not negate the application of a constitutional floor 25 equally applicable to all facilities.” Lyon, 300 F.R.D. at 642. In this case, “the overarching claim is 26 that ICE detainees in these facilities are denied effective access to telephones and that this impedes 27 communications with counsel, family, and others necessary to protect and vindicate their legal 28 rights.” Id. The harms that Plaintiffs allege with regard to the Bakersfield facility fall within this 9 1 overarching claim. As the court held in Williams, variations among the practices of each facility, 2 including how those practices specifically affect individual class members, are not sufficient to 3 defeat commonality. See Williams, 270 F.R.D. at 215. 4 5 6 c. Typicality: Claims or Defenses of Representative Parties are Typical of Claims or Defenses of the Class To demonstrate typicality, Plaintiffs must show that “the claims and defenses of the analyzing typicality, courts look to “whether other members have the same or similar injury, 9 whether the action is based on conduct which is not unique to the named plaintiffs, and whether 10 other class members have been injured by the same course of conduct.” Hanon, 976 F.2d at 508. 11 For the Northern District of California representative parties are typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). In 8 United States District Court 7 Moreover, “[t]ypicality refers to the nature of the claim or defense of the class representative, and 12 not to the specific facts from which it arose or the relief sought.” Ellis v. Costco Wholesale Corp., 13 657 F.3d 970, 984 (9th Cir. 2011) (internal quotation marks omitted). 14 Defendants argue that Ms. Neria-Garcia’s claims are not typical because she has not suffered 15 the same injuries alleged by other class members, and she is therefore subject to the unique defense 16 of insufficient prejudice. Response at 22-23. According to Defendants, Ms. Neria-Garcia’s 17 allegation are void of “specific facts showing that her ability to obtain or present evidence was 18 frustrated during her stay at Bakersfield.” Id. at 23. While “she generally alleges that the telephone 19 conditions at Bakersfield and Yuba restricted her communications with counsel,” Defendants claim 20 she does not allege that those conditions interfered with her attorney’s representation of her or 21 prolonged her detention. Id. Because of these alleged discrepancies between Ms. Neria-Garcia’s 22 claims and the claims of other class members, Defendants argue that she was not deprived of any of 23 the constitutional rights that are the basis of Plaintiffs’ claims. Id. at 24. Defendants also argue that 24 Ms. Neria-Garcia’s claims are atypical because she did not request to use the private phone rooms at 25 Bakersfield to make calls to anyone other than her attorney. Id. at 23-24. Therefore, according to 26 Defendants, she cannot represent detainees who wished to make non-attorney calls from these 27 phones but claim that they were prevented from doing so. Id. 28 10 1 Defendants’ arguments fall short. First, Ms. Neria-Garcia has alleged that phone conditions privately with her attorney until meeting in person. Neria-Garcia Decl. ¶¶ 26-28. This claim falls 4 squarely within Plaintiffs’ overarching allegation that Defendants have failed to provide adequate 5 telephone access at the Bakersfield facility and County Facilities. See Reply at 5. Ms. Neria-Garcia 6 also claims that she was subject to long wait times before making a private call at the Bakersfield 7 facility, and that she was sometimes denied access to the private phones entirely. Neria-Garcia 8 Decl. ¶¶ 25-26. These claims are similar to those of existing class members, who allege that they are 9 frequently unable to access the private phone rooms at the Yuba and Richmond facilities, or must 10 wait days or sometimes weeks to make a private call. See Proposed First Supplemental Complaint 11 For the Northern District of California at the Bakersfield facility hindered her access to an attorney and that she was unable to speak 3 United States District Court 2 ¶¶ 50-51. Furthermore, as the Court noted in its original Class Certification Order, “what is 12 centrally at issue is access to counsel and other persons so that Plaintiffs can effectively pursue 13 vindication of their legal rights.” Lyon, 300 F.R.D. at 639. In claiming that she could not speak 14 privately with her attorney because of inadequate phone access, Ms. Neria-Garcia has alleged harms 15 that are typical of those “centrally at issue” in this case. 16 As to Defendants’ argument that Ms. Neria-Garcia is subject to the unique defense of 17 insufficient prejudice, “[s]everal courts have held that class certification is inappropriate where a 18 putative class representative is subject to unique defenses which threaten to become the focus of the 19 litigation.” Hanon, 976 F.2d at 508 (internal quotation marks omitted). However, if other class 20 members may be subject to the same defenses as the representative plaintiff, such defenses are not 21 “unique” and therefore do not defeat typicality. See Ewert v. eBay, Inc., No. C-07-02193 RMW, 22 2010 WL 4269259, at *4 (N.D. Cal. Oct. 25, 2010); Vedachalam v. Tata Consultancy Servs., Ltd., 23 No. C 06–0963 RMW, 2012 WL 1110004, at *10 (N.D. Cal. Apr. 2, 2012). 24 In the present case Defendants have done little to show that the insufficient prejudice defense 25 is actually unique to Ms. Neria-Garcia. As discussed above, the harms that Ms. Neria-Garcia alleges 26 are typical of the class; therefore, if she is subject to the defense of insufficient prejudice, other class 27 members may be subject to this defense as well. However, even if this defense were unique to Ms. 28 11 1 Neria-Garcia, it is unlikely that it would threaten to become a central focus of the litigation to the 2 extent that it would interfere with her representation of the class. See Hanon, 976 F.2d at 508. 3 For the foregoing reasons, the proposed modified class satisfies the typicality requirement. 4 d. 5 Adequacy: The Representative Parties Will Fairly and Adequately Protect Interests of the Class 6 The adequacy requirement asks courts to resolve two questions: “(1) do the named plaintiffs 7 and their counsel have any conflicts of interest with other class members and (2) will the named 8 plaintiffs and their counsel prosecute the action vigorously on behalf of the class?” Ellis, 657 F.3d 9 at 985. Defendants do not question the ability of Plaintiffs’ counsel to adequately represent the 11 For the Northern District of California United States District Court 10 proposed class. However, they assert that Ms. Neria-Garcia is an inadequate representative for the 12 same reasons they claim she cannot satisfy the typicality requirement: her claims are subject to a 13 unique defense of insufficient prejudice and are not sufficiently similar to those of her fellow class 14 members. Response at 24. 15 For the reasons set forth above, this Court finds that Ms. Neria-Garcia’s claims are 16 sufficiently similar to those of her fellow class members, and that she is therefore an adequate class 17 representative. 18 2. 19 Rule 23(b)(2) Requirements Under Rule 23(b)(2), a court may grant injunctive or declaratory relief when “the party 20 opposing the class has acted or refused to act on grounds that apply generally to the class.” Fed. R. 21 Civ. P. 23(b)(2). “The key to the (b)(2) class is the indivisible nature of the injunctive or declaratory 22 remedy warranted – the notion that the conduct is such that it can be enjoined or declared unlawful 23 only as to all of the class or as to none of them.” Wal-Mart, 131 S. Ct. at 2557. Rule 23(b)(2) is 24 often used for the prosecution of civil rights actions and is particularly suited for class actions 25 challenging oppressive prison policies or conditions. See Walters v. Reno, 145 F.3d 1032, 1047 (9th 26 Cir. 1998); Williams, 270 F.R.D. at 222. 27 28 12 1 Defendants argue that differences between the Bakersfield facility and the County Facilities 2 preclude a finding that they have “acted or refused to act on grounds that apply generally to the 3 class.” Response at 24-25 (emphasis added); See Fed. R. Civ. P. 23(b)(2). Defendants claim that 4 their practices at any particular facility “cannot be enjoined or declared unlawful as to all of the 5 facilities given the particular security concerns, physical make-up, and staffing of each individual 6 facility.” Response at 25. According to Defendants, Plaintiffs must “establish a practice that results 7 in a constitutional deprivation for detainees at each facility to obtain injunctive relief related to all 8 facilities.” Id. (emphasis in original). Defendants claim that “a determination of systemwide impact 9 is not appropriate in this action, as it would require differing and fact-specific inquiries into the 11 For the Northern District of California United States District Court 10 actual telephone access at each of the facilities at issue.” Id. Defendants’ arguments with respect to the (b)(2) requirement, much like their arguments 12 against commonality, hinge upon the practical differences between the Bakersfield facility and 13 County Facilities. However, these differences do not negate the fact that Plaintiffs seek relief that is 14 applicable to and appropriate for the entire class; “an order setting forth what elements of telephone 15 access are required to effectuate Plaintiffs’ statutory and constitutional rights.” Reply at 10. 16 Plaintiffs do not seek individualized relief for each class member, but rather ask for systemic 17 changes consistent with a single overarching constitutional standard that will be applicable to all 18 class members in all facilities. “That each facility may have to change its current policies in varying 19 ways in order to comply does not negate the singular nature of the injunction sought.” Lyon, 300 20 F.R.D. at 643. As the Court noted in the original Class Certification Order, this case is “materially 21 indistinguishable” from prison condition cases that are often certified under Rule 23(b)(2). Id.; see 22 also Riker v. Gibbons, No. 3:08-CV-00115-LRH-RAM, 2009 WL 910971 (D. Nev. March 31, 2009) 23 (finding certification appropriate under Rule 23(b)(2) where plaintiffs “challenge[d] [Ely State 24 Prison’s] medical system, which they allege subjects all of the them to a significant risk of injury 25 and unnecessary infliction of pain”; adding that “[o]ther courts have also certified classes under Rule 26 23(b)(2) when prisoners challenge the constitutionality of prison conditions.”). 27 28 13 1 B. Motion to Supplement Complaint 2 Plaintiffs argue that allowing them to file the proposed supplemental complaint, which 3 includes allegations regarding the Bakersfield facility, would allow the Court to fashion more 4 complete relief for the class than if a separate action must be filed, and further argue that 5 supplementation would not be prejudicial toward Defendants because the current discovery 6 deadlines can be extended. Motion at 8-9. The Court agrees. 7 Supplemental pleadings are governed by Rule 15(d). New claims, new parties, and 8 allegations regarding events that occurred after the original complaint was filed are all properly 9 permitted under Rule 15(d). Griffin v. Cnty. School Bd. of Prince Edward Cnty., 377 U.S. 218, 226 (1964). Supplementation is generally favored because it promotes judicial economy and 11 For the Northern District of California United States District Court 10 convenience. See Keith, 858 F.2d at 473. “The legal standard for granting or denying a motion to 12 supplement under Rule 15(d) is the same as for amending one under 15(a).” Paralyzed Veterans of 13 America v. McPherson, No. C 06-4670 SBA, 2008 WL 4183981, at *26 (N.D. Cal. Sept. 9, 2008). 14 The five factors commonly used to evaluate the propriety of a motion for leave to amend 15 (and thus, a motion to supplement) are: (1) undue delay, (2) bad faith or dilatory motive on the part 16 of the movant, (3) repeated failure of previous amendments, (4) undue prejudice to the opposing 17 party, and (5) futility of the amendment. See Foman v. Davis, 371 U.S. 178, 182 (1962). Courts 18 also consider whether allowing leave to supplement would align with the goal of Rule 15(d), which 19 is to promote judicial efficiency. See Planned Parenthood of Southern Ariz. v. Neely, 130 F.3d 400, 20 402 (9th Cir. 1997); Keith, 858 F.2d at 473. Among the five Foman factors, “it is the consideration 21 of prejudice to the opposing party that carries the greatest weight.” Eminence Capital, LLC v. 22 Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). Absent prejudice or a “strong showing” of any 23 other Foman factor, there is a presumption in favor of granting leave to supplement. Id. 24 1. 25 Prejudice may be established in a variety of ways, such as where a motion to amend is made Defendants Will Not Be Unduly Prejudiced by a Supplemental Complaint 26 after the cutoff date for such motions, or when discovery has already closed or is about to close. 27 See, e.g., Zivkovic v. Southern Cal. Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002) (affirming 28 denial of plaintiff’s motion for leave to amend filed five days before the close of discovery, where 14 1 proposed amendment would have necessitated expanded discovery); see also Solomon v. North Am. 2 Life & Cas. Ins. Co., 151 F.3d 1132, 1138-39 (9th Cir. 1999) (denying leave to amend when sought 3 two weeks before the discovery deadline, because amendment would have delayed proceedings by 4 requiring the reopening of discovery). However, the Ninth Circuit has affirmed the grant of leave to 5 supplement even where it required reopening discovery because “most of the information on the 6 added claim would be available in [defendant’s] own files” and “little additional discovery would be 7 needed.” LaSalvia v. United Dairymen of Ariz., 804 F.2d 1113, 1119 (9th Cir. 1986). 8 Defendants concede that “prejudice [would be] diminished if there were an extension of 90 9 days.” Docket No. 97 (Hrg. Tr.) at 20:19-20. Defendants also stated that “90 days is sufficient for us to serve written discovery on Ms. Neria-Garcia, and take her deposition.” Id. at 28:7-8. They 11 For the Northern District of California United States District Court 10 accordingly request that if the Court modifies its Scheduling Order, it extend all deadlines by at least 12 ninety days. Response at 12. Defendants also argue that a supplemental complaint prematurely 13 forces them to litigate the conditions of the Bakersfield facility, imposing “undue costs and burden 14 on the government by requiring discovery about a facility that corrects most, if not all, of the 15 conditions complained of in the prior complaint.” Id. at 12-13. 16 The Court does not find Defendants’ arguments compelling. First, Plaintiffs have conceded 17 to extending discovery deadlines by the requested ninety days, allowing time for any preparation or 18 discovery necessitated by the addition of the Bakersfield facility. Reply at 4. Furthermore, it is not 19 apparent that significant additional discovery will be necessary since the Bakersfield facility has 20 been open for a relatively short time. Motion at 4; see also Mass Decl. ¶ 5. While allowing the 21 addition of the Bakersfield facility would require little additional discovery, requiring Plaintiffs to 22 bring a second suit on behalf of detainees at the Bakersfield facility would force them to duplicate 23 several depositions already taken for this suit. Id. Therefore, because leave to supplement is 24 necessary in this case to “award complete relief . . . in one action, and to avoid the cost of delay,” 25 and because Plaintiffs have conceded to a ninety-day extension of all discovery deadlines, Plaintiffs’ 26 motion to supplement is not prejudicial. See Keith, 858 F.2d at 473. 27 28 15 1 2. 2 The goal of Rule 15 is to promote judicial efficiency by avoiding “the cost, delay and waste 3 4 Judicial Efficiency Will Not Be Hindered By the Filing of a Supplemental Complaint of separate actions, which must be separately tried and prosecuted.” Keith, 858 F.2d at 473. Defendants’ argument that Plaintiffs’ motion to supplement is judicially inefficient is similar 5 to their argument that the modified class does not satisfy commonality. See Response at 8. 6 Defendants claim that because Plaintiffs cannot point to any overlap in the practices of the 7 Bakersfield facility and County Facilities, a supplemental complaint “would result in two separate 8 actions within the same case.” Id. According to Defendants, no legal or factual issues would be 9 truly common across the new proposed class. Id. Just as these arguments were unconvincing in the commonality analysis, they are equally 11 For the Northern District of California United States District Court 10 without merit here. The addition of the Bakersfield facility will not result in the trial of “two 12 separate actions within the same case” because, as was previously noted, Plaintiffs have submitted 13 evidence that there is significant overlap between Defendants’ practices at the Bakersfield facility 14 and their practices at the County Facilities. See Response at 8. While those policies and practices 15 may not be identical at each facility, such differences do not negate Plaintiffs’ overarching claim 16 that detainees are unable to confer with counsel due to limited phone access at all four facilities. 17 Furthermore, adding the Bakersfield facility in fact promotes judicial efficiency in this case by 18 saving the Court and the parties the time and expense of litigating the adequacy of phone access at 19 the Bakersfield facility in a separate action. 20 21 22 3. Plaintiffs Have Not Unduly Delayed in Bringing This Action or in Naming Ms. Neria-Garcia as a Representative Plaintiff Defendants do not argue that Plaintiffs have unduly delayed in bringing claims related to the 23 Bakersfield facility. Response at 13. However, Defendants argue that Plaintiffs have unduly 24 delayed in bringing Ms. Neria-Garcia’s claims with respect to the Yuba facility. Id. The only 25 named plaintiff who alleged claims relating to the Yuba facility, Lourdes Hernandez-Trujillo, 26 withdrew as a class representative in March 2015. Id.; see also Voluntary Dismissal of Lourdes 27 Hernandez-Trujillo. Defendants contend that Plaintiffs “[have] known since January 2015 that 28 former Plaintiff Lourdes Hernandez-Trujillo was likely not able or willing to continue in her role as 16 1 a class representative” and that Plaintiffs provide no evidence to show that they were diligent in 2 finding a substitute representative. Response at 13-14. 3 Defendants’ objections to Ms. Neria-Garcia’s allegations regarding the Yuba facility are 4 without merit. In their Response, Defendants make clear that they “do not oppose Plaintiffs’ Motion 5 for Leave to Supplement the Complaint to the extent it seeks to add allegations regarding the 6 county-run facilities already at issue.” Response at 1 n.1. Because the Yuba facility is already 7 included in the class (i.e. it is one of the “county-run facilities already at issue”), Defendants have 8 conceded that they do not oppose additional allegations regarding that facility. 9 4. “[A] proposed amendment is futile only if no set of facts can be proved under the amendment 11 For the Northern District of California United States District Court 10 Plaintiffs’ Supplemental Complaint is Not Futile to the pleadings that would constitute a valid and sufficient claim or defense.” Miller v. 12 Rykoff–Sexton, Inc., 845 F.2d 209, 214 (9th Cir. 1988). When an amended complaint seeks to 13 expand the definition of a class, the futility analysis should examine whether the new class meets 14 Rule 23 requirements. See Rodriguez v. Instagram, LLC, No. C 12–06482 WHA, 2013 WL 15 3732883, at *3 (N.D. Cal. July 15, 2013) (“[I]t would be futile to allow plaintiff to amend a putative 16 nationwide class where plaintiff’s overreaching will almost certainly be denied at the class 17 certification stage.”). 18 Defendants argue that allowing Plaintiffs to supplement their complaint would be futile 19 because the newly proposed class is unlikely to satisfy the requirements of Rule 23. Response at 11. 20 However, for the reasons laid out above, Defendants are incorrect. The modified class satisfies Rule 21 23’s requirements, and thus the filing of Plaintiffs’ supplemental complaint is not futile. 22 C. Motion to Modify the Current Case Management Scheduling Order 23 Rule 16(4)(b) holds that a scheduling order “may be modified only for good cause and with 24 the judge’s consent.” Fed. R. Civ. P. 16(b)(4). The “good cause” standard primarily considers the 25 diligence of the party seeking the amendment. Johnson v. Mammoth Recreations, Inc., 975 F.2d 26 604, 609 (9th Cir. 1992). The inquiry should focus on the moving party’s reasons for seeking 27 modification to the order: If these reasons do not indicate proper diligence, the inquiry should end. 28 Id. As relevant here, courts often find good cause when the motion to amend the scheduling order is 17 1 based upon new and pertinent information. See Pumpco, Inc. v. Schenker Int’l, Inc., 204 F.R.D. 667, 2 668 (D. Colo. 2001) (finding good cause to extend a scheduling order’s deadline to amend when the 3 amendment was based on new information learned through discovery and a recent change in the 4 law); see also Johnson, 975 F.2d at 609 (finding no good cause to extend a scheduling order’s 5 deadline to amend when plaintiff’s amendment was based on information that had been available to 6 him throughout the suit). 7 In the present case, Plaintiffs have shown due diligence in seeking to supplement their 8 complaint and therefore satisfy the good cause requirement of Rule 16. Plaintiffs learned that 9 Defendants would open a new facility after the original class was certified, spent several months gathering information about the new facility, and conducted an investigatory site visit. Mass Decl. 11 For the Northern District of California United States District Court 10 ¶¶ 5-13. Because the supplemental complaint is based on new and pertinent information, and 12 because Plaintiffs exercised due diligence in filing for leave to supplement, the good cause 13 requirement has been satisfied. The Court therefore sets a new trial date for May 23, 2016 and 14 accordingly extends all corresponding deadlines in the Scheduling Order by sixteen weeks. See 15 Docket No. 96 (Case Management Scheduling Order). 16 17 IV. CONCLUSION For the foregoing reasons, the Court grants Plaintiffs’ motion to modify the Class 18 Certification Order and to file a supplemental complaint. The Court also extends all current 19 deadlines in the Case Management Scheduling Order by sixteen weeks to allow for additional 20 discovery with regard to the Bakersfield facility. 21 This order disposes of Docket No. 86. 22 23 IT IS SO ORDERED. 24 25 Dated: July 27, 2015 26 _________________________ EDWARD M. CHEN United States District Judge 27 28 18
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