Daniel Campbell v. City of Los Angeles , 903 F.3d 1090 ( 2018 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DANIEL CAMPBELL; et al, * No. 15-56990
Plaintiffs-Appellants,
D.C. No.
v. 2:04-cv-08592-
AG-AJW
CITY OF LOS ANGELES,
Defendant-Appellee.
CESAR MATA, No. 16-55002
Plaintiff,
D.C. No.
and 2:07-cv-06782-
AG-AJW
RICHARD D. ALBA; et al.,
Plaintiffs-Appellants,
OPINION
v.
CITY OF LOS ANGELES,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
Andrew J. Guilford, District Judge, Presiding
*
Due to the number of parties in these appeals, the individual parties
are listed in the attached Appendix.
2 CAMPBELL V. CITY OF LOS ANGELES
Argued and Submitted November 8, 2017
Pasadena, California
Filed September 13, 2018
Before: Richard Linn, ** Marsha S. Berzon,
and Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Berzon
SUMMARY ***
Labor Law
The panel affirmed the district court’s decertification of
two related collective actions brought under the Fair Labor
Standards Act by officers of the Los Angeles Police
Department, alleging a pervasive, unwritten policy
discouraging the reporting of overtime.
The district court granted the City’s motion for
decertification and dismissed the officers without prejudice
to refiling their FLSA claims individually. The original
plaintiffs in the two decertified actions then reached
settlements with the City on their own claims, and the district
court entered final judgment. Although no longer plaintiffs
at that point, the officers filed timely appeals from final
**
The Honorable Richard Linn, United States Circuit Judge for the
U.S. Court of Appeals for the Federal Circuit, sitting by designation.
***
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
CAMPBELL V. CITY OF LOS ANGELES 3
judgment, challenging their decertification and dismissal.
Agreeing with the Eleventh Circuit, and disagreeing with the
Third Circuit, the panel held that the officers had standing to
appeal because opt-in plaintiffs are parties to the collective
action, and an order of decertification and dismissal disposes
of their statutory right to proceed collectively. They
therefore have standing to appeal and may do so after the
interlocutory decertification order to which they are adverse
merges with final judgment.
The panel further held that the collective actions were
properly decertified and the officers properly dismissed for
failure to satisfy the “similarly situated” requirement of the
FLSA. Rejecting other approaches to this requirement, the
panel held that party plaintiffs are similarly situated, and
may proceed as a collective, to the extent they share a similar
issue of law or fact material to the disposition of their FLSA
claims. Addressing post-discovery decertification, the panel
held that, when decertification overlaps with the merits of
the underlying FLSA claims, the summary judgment
standard applies. The panel concluded that the officers
failed, as a matter of law, to create a triable question of fact
regarding the existence of a department-wide policy or
practice. In the absence of such a policy or practice, and in
the absence of allegations of any other similarity of law or
fact material to the disposition of the officers’ claims, the
officers were not “similarly situated” within the meaning of
the FLSA.
4 CAMPBELL V. CITY OF LOS ANGELES
COUNSEL
Gregory Glenn Petersen (argued), Gregory G. Petersen A
Law Corporation, Santa Ana, California, for Plaintiffs-
Appellants.
Brian P. Walter (argued), Geoffrey S. Sheldon, David A.
Urban, and Danny Y. Yoo, Liebert Cassidy Whitmore, Los
Angeles, California; for Defendant-Appellee.
OPINION
BERZON, Circuit Judge:
The present appeal arises from the decertification of a
pair of related collective actions brought under the Fair
Labor Standards Act (“FLSA”), 29 U.S.C. § 207. Between
2004 and 2009, roughly 2,500 officers (“the Officers”) of the
Los Angeles Police Department (“the Department”) opted
into two collective actions alleging a pervasive, unwritten
policy discouraging the reporting of overtime. After notice
to potential collective action members and several years of
discovery, the government defendant, the City of Los
Angeles (“the City”), moved for decertification of the
collective actions on the ground that the Officers within each
were not “similarly situated” within the meaning of section
16(b) of the FLSA, 29 U.S.C. § 216(b). According to the
City, if any Officers were denied pay for their earned
overtime, it was due to unrelated instances of worksite- and
supervisor-specific misconduct, rather than a single,
Department-wide policy or practice.
The district court granted the City’s motion for
decertification and dismissed the Officers without prejudice
CAMPBELL V. CITY OF LOS ANGELES 5
to refiling their FLSA claims individually. 1 The original
plaintiffs in the two decertified actions then reached
settlements with the City on their own claims, and the district
court entered final judgment. Although no longer plaintiffs
at that point, the Officers filed timely appeals from final
judgment, challenging their decertification and dismissal.
We are asked first whether the Officers can appeal a
decertification order when they were dismissed from the
collective action before final judgment and without
prejudice to their individual FLSA claims. We hold that they
can. Opt-in plaintiffs are parties to the collective action, and
an order of decertification and dismissal disposes of their
statutory right to proceed collectively. They therefore have
standing to appeal and may do so after the interlocutory
decertification order to which they are adverse merges with
final judgment.
We are asked next whether the collective actions here
were properly decertified and the Officers properly
dismissed for failure to satisfy the “similarly situated”
requirement of the FLSA. We hold that they were.
Although the district court erred in its interpretation of the
“similarly situated” requirement and in the standard it
applied in evaluating decertification, a de novo review of the
record reflects that the Officers failed, as a matter of law, to
create a triable question of fact regarding the existence of a
Department-wide policy or practice. In the absence of such
a policy or practice, and in the absence of allegations of any
other similarity of law or fact material to the disposition of
1
The City filed a motion for decertification in each case. The
motions were identical, as were the orders granting them, so we refer to
them in the singular.
6 CAMPBELL V. CITY OF LOS ANGELES
the Officers’ claims, the Officers were not “similarly
situated” within the meaning of the FLSA.
I
Because much of this case turns on terminology and
procedures specific to the FLSA, we begin with a brief
explanation of 29 U.S.C. § 216(b) and the collective action
mechanism that arises from it. 2
The relevant language of section 216(b) is spare:
An action to recover the liability prescribed
in [this subsection] may be maintained
against any employer (including a public
agency) in any Federal or State court of
competent jurisdiction by any one or more
employees for and in behalf of himself or
themselves and other employees similarly
situated. 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. . . . The right
provided by this subsection to bring an action
by or on behalf of any employee, and the right
of any employee to become a party plaintiff
2
Section 216(b) also applies to actions under the Age
Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 623,
because the ADEA “incorporates enforcement provisions of the
[FLSA]” and “provides that the ADEA shall be enforced using certain
of the powers, remedies, and procedures of the FLSA.” Hoffmann-La
Roche Inc. v. Sperling, 493 U.S. 165, 167 (1989). We here refer to the
collective action as an FLSA mechanism because the FLSA is the
originating statute, and because in this case only the FLSA is at issue.
CAMPBELL V. CITY OF LOS ANGELES 7
to any such action, shall terminate upon the
filing of a complaint by the Secretary of
Labor . . . .
29 U.S.C. § 216(b).
It is evident from the statute that workers may litigate
jointly if they (1) claim a violation of the FLSA, (2) are
“similarly situated,” and (3) affirmatively opt in to the joint
litigation, in writing. Id. It is evident also that the “right” to
litigate jointly has two permutations: The statute refers to
“[t]he right . . . to bring an action by or on behalf of any
employee,” and to “the right of any employee to become a
party plaintiff to any such action,” id. — that is, the right to
bring the collective litigation and the right to join it. But the
statute specifies little else. It does not prescribe terms for the
resulting proceeding. It does not provide a definition of
“similarly situated,” on which access to the collective
mechanism typically turns. It does not establish a process
for evaluating the propriety of a collective proceeding as
litigation unfolds — for example, it makes no mention of
“certification” or “decertification” of a collective action.
And it says nothing about the standard the district court
should apply when the collective mechanism is challenged.
Given these gaps, much of collective action practice is a
product of interstitial judicial lawmaking or ad hoc district
court discretion. In particular, although nothing in section
216(b) expressly compels it, it is now the near-universal
practice to evaluate the propriety of the collective
mechanism — in particular, plaintiffs’ satisfaction of the
“similarly situated” requirement — by way of a two-step
“certification” process. See 1 McLaughlin on Class Actions
8 CAMPBELL V. CITY OF LOS ANGELES
§ 2:16 (14th ed. 2017). 3 As this process most often
functions, plaintiffs will, at some point around the pleading
stage, move for “preliminary certification” of the collective
action, contending that they have at least facially satisfied
the “similarly situated” requirement. See 1 McLaughlin on
Class Actions § 2:16. Later, after the necessary discovery is
complete, defendants will move for “decertification” of the
collective action on the theory that the plaintiffs’ status as
“similarly situated” was not borne out by the fully developed
record. Id.
We will address in subsequent sections the propriety of
this two-step approach, as well as the proper means of
evaluating whether plaintiffs are entitled to litigate in a
collective action. As an initial matter, however, it is useful
to address certain common misconceptions about the
“preliminary certification” and “decertification” of
collective actions.
As noted, neither “certification” nor “decertification”
appears in text of section 216(b). The terms have instead
been adopted from Federal Rule of Civil Procedure 23,
which governs class actions in federal court. The underlying
assumption of that appropriation seems to be that collective
and class actions, which to a degree resemble one another,
must be handled in procedurally parallel ways. That
assumption is unfounded.
3
See e.g., Sandoz v. Cingular Wireless LLC, 553 F.3d 913, 915 n.2
(5th Cir. 2008); Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233,
1260 (11th Cir. 2008); Thiessen v. Gen. Elec. Capital Corp., 267 F.3d
1095, 1105 (10th Cir. 2001); Leuthold v. Destination Am., Inc.,
224 F.R.D. 462, 466–67 (N.D. Cal. 2004) (citing examples).
CAMPBELL V. CITY OF LOS ANGELES 9
Collective actions and class actions are creatures of
distinct texts — collective actions of section 216(b), and
class actions of Rule 23 — that impose distinct requirements.
See 7B Fed. Prac. & Proc. Civ. § 1807 (citing examples of
cases so observing). 4 The “expedient adoption of Rule 23
terminology with no mooring in the statutory text of
§ 216(b)” risks “inject[ing] a measure of confusion into the
wider body of FLSA jurisprudence” — and has likely
already done so. Symczyk v. Genesis HealthCare Corp.,
656 F.3d 189, 194 (3d Cir. 2011), rev’d on other grounds,
569 U.S. 66 (2013).
“Preliminary certification” of an FLSA collective action
— also known as “provisional” or “conditional” certification
— is an example of the confusion sown by the Rule 23
analogy. The term “certification” calls to mind an
affirmative decision by the district court, as in the Rule 23
context, to allow a collective action to go forward. See Fed.
R. Civ. P. 23(c)(1)(A). Yet, unlike in the Rule 23 context,
the district court in a collective action plays no such
gatekeeping role. Preliminary certification in the FLSA
context does not “produce a class with an independent legal
status[] or join additional parties to the action.” Genesis
Healthcare Corp. v. Symczyk, 569 U.S. 66, 75 (2013). “The
sole consequence” of a successful motion for preliminary
certification is “the sending of court-approved written
notice” to workers who may wish to join the litigation as
individuals. Id.
4
See, e.g., Calderone v. Scott, 838 F.3d 1101, 1104 (11th Cir. 2016);
O’Brien v. Ed Donnelly Enters., Inc., 575 F.3d 567, 584–85 (6th Cir.
2009), abrogated on other grounds by Campbell-Ewald Co. v. Gomez,
136 S. Ct. 663 (2016); Grayson v. K Mart Corp., 79 F.3d 1086, 1096
(11th Cir. 1996); Lusardi v. Lechner, 855 F.2d 1062, 1078 (3d Cir.
1988).
10 CAMPBELL V. CITY OF LOS ANGELES
Given its purpose, preliminary certification may take
place after the collective action has already begun. A
collective action is instituted when workers join a collective
action complaint by filing opt-in forms with the district
court. See id.; Rangel v. PLS Check Cashers of Cal., ___
F.3d ___, 2018 WL 3892987, at *2 n.1 (9th Cir. 2018); Smith
v. T-Mobile USA Inc., 570 F.3d 1119, 1122–23 (9th Cir.
2009); Sandoz, 553 F.3d at 919; Morgan, 551 F.3d at 1259.
Whether opt-in forms are filed after or before preliminary
certification is thus entirely up to the workers joining the
litigation; preliminary certification is “neither necessary nor
sufficient for the existence of a [collective] action.” Myers
v. Hertz Corp., 624 F.3d 537, 555 n.10 (2d Cir. 2010)
(emphasis added).
“Decertification” is another appropriation — and
another misappropriation — from the Rule 23 context.
Again, the term implies that a district court has some
threshold role in creating a collective action. But, once
more, section 216(b) does not provide for any “certification”
process in the ordinary sense. Under section 216(b), workers
have a “right” to bring or join a collective action, and may
create the collective action of their own accord by filing opt-
in forms. See 29 U.S.C. § 216(b); Symczyk, 569 U.S. at 75.
For a collective action to be “decertified,” then, means that
the plaintiffs cannot proceed collectively on the existing
complaint because they are not similarly situated, so the opt-
in plaintiffs must be dismissed.
Despite the imprecision, we will adhere to the terms
commonly used in collective action practice, as the terms are
now widespread. For the reasons we have explained, we do
not mean by the use of terms derived for the class action
context to imply that there should be any particular
CAMPBELL V. CITY OF LOS ANGELES 11
procedural parallels between collective and class actions.
See Symczyk, 656 F.3d at 194.
We turn now to the facts and procedural history of this
case.
II
Since at least 2000, the Officers have been subject to a
written, FLSA-compliant policy prohibiting off-the-clock
work. According to this policy, the Officers are required to
report all overtime accurately, in six-minute increments,
whether or not the overtime was approved in advance by a
supervisor. The written policy states that those who fail to
comply may be subject to discipline.
This overtime policy was widely known among the
Officers. Since at least 2000, the overtime policy has been
memorialized in the Officers’ collective-bargaining
agreements, in letters to the Officers from the Los Angeles
Chief of Police, and in the Department manual. No Officer
claims ignorance of the official obligation to report overtime
accurately.
The Officers contend, however, that the Department
follows an unwritten policy that dissuades, and as a practical
matter prevents, accurate time reporting. According to the
Officers, supervisors routinely require short blocks of extra
work — pre-shift work, post-shift work, or work through
meal breaks — yet discourage or reject overtime claims in
amounts of less than one hour.
The Officers’ allegations of an unwritten, Department-
wide policy served two purposes. First, it went to the merits
of the Officers’ FLSA claims. The FLSA requires covered
workers to be paid at least 1.5 times their normal rate for all
12 CAMPBELL V. CITY OF LOS ANGELES
work in excess of forty hours weekly, 29 U.S.C. § 207(a)(1),
provided the employer has actual or constructive knowledge
that the work is occurring. 29 C.F.R. § 785.11; Forrester v.
Roth’s I.G.A. Foodliner, Inc., 646 F.2d 413, 414 (9th Cir.
1981). Employers who violate this requirement are liable for
damages in the amount of the unpaid overtime, “an
additional equal amount as liquidated damages,” and
“reasonable attorney’s fee . . . and costs.” 29 U.S.C.
§ 216(b). An unwritten policy discouraging the reporting of
overtime, if proven at trial, would both lend credence to the
Officers’ claims that they incurred unpaid overtime and help
satisfy the element of knowledge. Second, credible
allegations of a Department-wide policy should suffice to
make the Officers similarly situated, as required to maintain
a collective action. See id.
The first of the two collective actions at issue in this
appeal, Alaniz v. City of Los Angeles, No. CV 04-8592 AG
(AJWx),5 was filed in 2004. By the end of 2007, the Alaniz
collective action had been joined by over 2,200 Officers.
The second of the collective actions, Mata v. City of Los
Angeles, No. CV 07-06782 AG (AJWx), was filed in 2007.
By the end of 2009, it had been joined by over 150 Officers.
The parties in Alaniz stipulated to preliminary
certification of the collective action in mid-2006. The
parties in Mata did not so stipulate. But the two cases were
related by the district court shortly after Mata was filed, and
thereafter proceeded on the same track, with overlapping
discovery. Discovery was extensive, lasted several years,
5
Alaniz has since been styled Johnson v. City of Los Angeles and
Campbell v. City of Los Angeles.
CAMPBELL V. CITY OF LOS ANGELES 13
and was complete for the purposes of decertification at the
time the City filed its decertification motion. 6
The City moved for decertification of both collective
actions in January 2014. In opposition, the Officers
submitted 232 declarations, each from a different Officer
claiming uncompensated overtime. These declarations were
largely identical, except for each declarant’s identifying
information and his or her estimate of the average time spent
each day in unscheduled pre-shift, post-shift, and meal-break
work. A small number of declarations referred to specific
instances of supervisors discouraging or rejecting overtime
reports for small increments of time.
The Officers also submitted 50 declarations, each from a
different Officer, listing types of uncompensated tasks and
stating, generally, that workplace “culture and policy”
discouraged accurate time reporting. These declarations —
also largely identical, except for each declarant’s list of tasks
— stated that supervisors were aware of off-the-clock work
and knew that the Department benefitted from it, but did not
insist that the Officers report it. The declarations also stated
that the declarants learned from their first days with the
Department that, notwithstanding written rules to the
contrary, overtime in amounts of less than one hour was not
to be reported.
In support of its motion for decertification, the City
submitted an analysis of the overtime that was reported.
This analysis, uncontroverted by the Officers, revealed
roughly 6.6 million overtime reports between 2001 and
6
Fact discovery was reopened in October 2013, with a new cutoff
of April 2014. No party has suggested that the reopened discovery was
relevant to the decertification question.
14 CAMPBELL V. CITY OF LOS ANGELES
2014. Of these 6.6 million reports, 330,000 reports were for
overtime of less than one hour, and 112,000 were for
overtime of less than 30 minutes. Of the reports claiming
less than an hour of overtime, 64,000 were filed by plaintiffs
in the Alaniz and Mata actions.
The City also submitted uncontroverted evidence
demonstrating the Officers’ dissimilarity in tasks and in
geographic assignments. According to the declaration
submitted by the Department’s FLSA compliance manager,
the Officers worked at seven different ranks and within each
of the Department’s 31 divisions. The Officers had at least
hundreds of different supervisors among them.
To determine whether, in light of this evidence, the
Officers were “similarly situated” within the meaning of the
FLSA, the district court applied a three-prong test widely
used in district courts both within this circuit and without,
although it has not been endorsed by this court:
First, the district court considered the “factual
and employment setting” of the Officers.
According to the district court, the
“boilerplate” nature of the Officers’
declarations called into question their
evidentiary value, whereas the City’s
uncontroverted evidence reflected
widespread compliance with the overtime
reporting policy, even for fairly short periods
of overtime. As a result, the officers could
not have been subject to a uniform policy
preventing the reporting of overtime period
of less than one hour. In the absence of such
a policy, the district court concluded, the
Officers’ claims were necessarily tied to
discrete worksites and supervisors, and
CAMPBELL V. CITY OF LOS ANGELES 15
unsuited to a collective of the scale the
Officers sought.
Second, the district court considered the defenses
available to the City. The district court found many of these
defenses — lack of actual or constructive knowledge, good
faith, the de minimis nature of the alleged overtime
violations — situation-specific, and thus difficult to address
on a collective basis.
Finally, the district court considered “fairness and
procedural considerations,” and concluded that there was no
benefit to the court or to the parties in attempting to litigate
collectively.
As all three factors weighed in favor of decertification,
the district court granted the City’s motion and dismissed the
Officers without prejudice. Shortly thereafter, the original
plaintiffs, who had been left behind after decertification,
settled their individual FLSA claims with the City. The
district court entered judgment, and the present appeals
followed.
III
Whether opt-in plaintiffs can appeal a decertification
order is a question of first impression in this circuit. The
City raises several objections to appellate jurisdiction and to
the Officers’ standing to appeal — that the opt-in plaintiffs
are not “parties,” that the decertification was interlocutory,
and that the dismissal was without prejudice. None has
merit.
16 CAMPBELL V. CITY OF LOS ANGELES
A
The FLSA leaves no doubt that “every plaintiff who opts
in to a collective action has party status.” Halle v. W. Penn
Allegheny Health Sys. Inc., 842 F.3d 215, 225 (3d Cir. 2016)
(quoting Wright & Miller, 7B Fed. Prac. & Proc. Civ. § 1807
(3d ed. 2018)). Under the FLSA, an opt-in plaintiff’s action
is deemed “commenced” from the date her opt-in form is
filed with the district court. 29 U.S.C. § 256. From that
point on, there is no statutory distinction between the roles
or nomenclature assigned to the original and opt-in
plaintiffs. See Mickles v. Country Club Inc., 887 F.3d 1270,
1278 (11th Cir. 2018). The FLSA does not use the terms
“original” or “opt-in” plaintiff at all; the FLSA instead refers
to all plaintiffs in a collective action as “party plaintiff[s].”
29 U.S.C. § 256(a). 7 Where necessary to distinguish
7
The section reads, in full:
In determining when an action is commenced for the
purposes of section 255 of this title, an action
commenced on or after May 14, 1947 under the Fair
Labor Standards Act of 1938, as amended, the Walsh-
Healey Act, or the Bacon-Davis Act, shall be
considered to be commenced on the date when the
complaint is filed; except that in the case of a
collective or class action instituted under the Fair
Labor Standards Act of 1938, as amended, or the
Bacon-Davis Act, it shall be considered to be
commenced in the case of any individual claimant —
(a) on the date when the complaint is filed, if he is
specifically named as a party plaintiff in the complaint
and his written consent to become a party plaintiff is
filed on such date in the court in which the action is
brought; or
CAMPBELL V. CITY OF LOS ANGELES 17
between the party plaintiffs who brought the suit and those
who joined after its filing, the FLSA speaks only of the party
plaintiffs “specifically named . . . in the complaint” and
those “not so” named. 8 29 U.S.C. § 256(a)–(b). The natural
parallel is to plaintiffs initially named or later added under
the ordinary rules of party joinder. See Fed. R. Civ. P.
20(a)(1).
The contrast with class action practice is instructive.
Rule 23 allows for representative actions in which class
members’ interests are litigated by the named plaintiff. In
part because of the due process concerns inherent such a
proceeding, the district court must initially approve the
creation of a class and the appointment of an adequate
representative. See Phillips Petroleum Co. v. Shutts,
472 U.S. 797, 811–12 (1985); Hanlon v. Chrysler Corp.,
150 F.3d 1011, 1024 (9th Cir. 1998); Blackie v. Barrack,
524 F.2d 891, 910 (9th Cir. 1975). Proceeding as a class
action is thus conditioned on the court’s approval and results
in a less active role in the litigation for members of the class
than if litigating individually.
A collective action, on the other hand, is not a
comparable form of representative action. Just the opposite:
Congress added the FLSA’s opt-in requirement with the
(b) if such written consent was not so filed or if his
name did not so appear--on the subsequent date on
which such written consent is filed in the court in
which the action was commenced.
29 U.S.C. § 256.
8
As shorthand, we refer to the party plaintiffs originally named in
the complaint as the “original plaintiffs,” and the party plaintiffs who
join as the “opt-in plaintiffs.”
18 CAMPBELL V. CITY OF LOS ANGELES
express purpose of “bann[ing]” such actions under the
FLSA. Portal-to-Portal Act of 1947, Pub. L. No. 80-49,
§ 5(a), 61 Stat. 84, 87; Hoffmann-La Roche Inc. v. Sperling,
493 U.S. 165, 173 (1989). A collective action is more
accurately described as a kind of mass action, in which
aggrieved workers act as a collective of individual plaintiffs
with individual cases — capitalizing on efficiencies of scale,
but without necessarily permitting a specific, named
representative to control the litigation, except as the workers
may separately so agree. See Abraham v. St. Croix
Renaissance Grp., L.L.L.P., 719 F.3d 270, 272 n.1 (3d Cir.
2013). The opt-in plaintiffs thus choose whether and when
to “become parties to a collective action only by filing a
written consent with the court.” Symczyk, 569 U.S. at 75;
see also Kinney Shoe Corp. v. Vorhes, 564 F.2d 859, 862
(9th Cir. 1977), abrogated on other grounds by Hoffmann-
La Roche, 493 U.S. 165. And the result of joining the
collective is “the same status in relation to the claims of the
lawsuit as [that held by] the [original] named plaintiffs.”
Prickett v. DeKalb County, 349 F.3d 1294, 1297 (11th Cir.
2003) (per curiam).
Given this structure, the dismissal of the opt-in plaintiffs
before the entry of final judgment — “decertification” — has
no impact on their party status for purposes of appeal. Party
status does not depend on being present in the district court
litigation from the moment it began or at the moment it
ended. All “those that properly become parties[] may appeal
an adverse judgment.” Marino v. Ortiz, 484 U.S. 301, 304
(1988); Mickles, 887 F.3d at 1278.
Nor, contrary to the City’s position, did their dismissal
as opt-in plaintiffs before the entry of judgment prevent the
Officers in this case from being “bound” by the judgment
and thus eligible to challenge it on appeal. A decertification
CAMPBELL V. CITY OF LOS ANGELES 19
order disposes only of the right to proceed collectively as the
collective was defined in the complaint; it leaves the original
plaintiff to continue litigating. Such an order is therefore
interlocutory, see Ray Haluch Gravel Co. v. Cent. Pension
Fund of Int’l Union of Operating Eng’rs & Participating
Emp’rs, 571 U.S. 177, 183 (2014), and, like interlocutory
orders generally, merges with final judgment. Hook v. Ariz.
Dep’t of Corr., 107 F.3d 1397, 1401 (9th Cir. 1997); see also
Mickles, 887 F.3d at 1278–79.
The City argues that opt-in plaintiffs, even if competent
to appeal from a final judgment generally, cannot appeal an
order dismissing them without prejudice. It is unclear
whether the City intends this argument as a challenge to the
finality of the order appealed from as a basis for this court’s
appellate jurisdiction, or to the Officers’ appellate standing.
In either case, the City is mistaken.
As to appellate jurisdiction, the City confuses finality,
which is a condition of appealability under 28 U.S.C. § 1291,
with an adverse disposition on the merits, which is not.
“That [a] dismissal is without prejudice and the litigation
may be renewed [in a new action] does not affect . . .
appealability . . . .” Thompson v. Potashnick Constr. Co.,
812 F.2d 574, 576 (9th Cir. 1987). The touchstone for
finality is that the particular action filed is fully disposed of,
without the possibility of being resurrected through
amendment. See, e.g., Griffin v. Arpaio, 557 F.3d 1117,
1119 (9th Cir. 2009); Montes v. United States, 37 F.3d 1347,
1350 (9th Cir. 1994). Applying these standards, whether a
dismissed party to the action could litigate the same merits
issue by filing a different case does not matter. The
judgment entered here plainly qualifies as final and so
appealable.
20 CAMPBELL V. CITY OF LOS ANGELES
As to appellate standing, the Officers were, as noted,
parties to the action at the time they opted in, and parties to
the action at the time they were dismissed. Although the
dismissal was without prejudice to the merits of the Officers’
individual FLSA claims, it removed them from the action
they chose to join and disposed of their statutory right to
proceed in a collective as that collective was defined in the
complaint. See 29 U.S.C. § 216(b). The City, citing
McElmurry v. U.S. Bank National Ass’n, 495 F.3d 1136,
1138–39 (9th Cir. 2007), contends no such right exists, but
it does not attempt to square this assertion with the plain
language of the FLSA, which twice uses the term “right.”
We did not hold in McElmurry that the FLSA provides no
“right” to a collective action. We held only that the risk of
losing that right because of a limitations problem did not
justify applying the collateral-order doctrine to ensure
immediate review of a denial of preliminary certification.
Id. at 1139–41.
In short, the dismissal of the Officers removed them from
the litigation, an ouster they maintain violated their right
under the FLSA to pursue their claims collectively. The
dismissal order then merged into the final judgment.
Nothing more is needed for appellate jurisdiction or for
standing. See, e.g., Ramirez v. Fox Television, Inc., 998 F.2d
743, 747 (9th Cir. 1993) (noting that any “order which
effectively sends a party out of court is appealable” (quoting
United States v. Lee, 786 F.2d 951, 956 (9th Cir. 1986)));
Norwest Bank Minn., N.A. v. Sween Corp., 118 F.3d 1255,
1257 n.1 (8th Cir. 1997) (noting that a party dismissed before
a ruling on the merits may appeal the dismissal to which it
was a party, but not the merits ruling to which it was not).
CAMPBELL V. CITY OF LOS ANGELES 21
B
We recognize that the Third Circuit recently confronted
similar issues in Halle v. West Penn Allegheny Health
System, 842 F.3d 215 (3d Cir. 2016), and reached a
somewhat different conclusion.
In Halle, an opt-in plaintiff, after being dismissed from a
collective action, refiled his FLSA claims as the original
plaintiff of a new collective action. Id. at 221–22. Other
opt-in plaintiffs dismissed from the first iteration of the case
then promptly joined, and the defendant moved for
decertification. Id. The district court granted the
decertification motion on preclusion grounds, treating the
decertification order from the first case as collaterally
estopping a collective action in the second. Id. at 222. The
original plaintiff in the second suit then settled, and a group
of opt-in plaintiffs — now twice-dismissed — appealed. Id.
The Third Circuit concluded, as have we, that
“[a]ppellate review of th[e] interlocutory decertification
decision [was] available by proceeding to a final judgment
on the merits of [the original plaintiff’s] individual claims.”
Id. at 228. The Third Circuit then determined, however, that
only the original plaintiff had the authority to seek appellate
review. According to the Third Circuit, dismissal of the opt-
in plaintiffs deprived them of party status, and thus deprived
them of the ability to appeal their dismissal after final
judgment. Id. at 229.
In so holding, the Third Circuit contrasted the opt-in
plaintiffs’ position with that of Rule 23 class members
appealing from approval of a class settlement. Id. Whereas
class members who do not opt out are parties to the
settlement and bound by it, opt-in plaintiffs dismissed from
an FLSA collective action are not parties to the original
22 CAMPBELL V. CITY OF LOS ANGELES
plaintiff’s post-decertification settlement of her individual
claims. Id. According to the Third Circuit, the opt-in
plaintiffs were therefore “not subject to a final decision
disposing of their rights from which they may file an appeal
under § 1291.” Id.
We disagree. The Third Circuit’s approach rests on a
flawed understanding of the scope of a final judgment. A
final judgment is not limited to orders disposing of claims on
their merits, nor is it limited to orders affecting the plaintiffs
originally named in the complaint or still remaining at the
time the case is fully resolved. Opt-in plaintiffs become
parties to an FLSA action upon opting into it. 29 U.S.C.
§ 216(b). They are therefore parties to the order decertifying
the collective action and dismissing them from the suit —
which is of course the only reason the district court in Halle
was able to dismiss the opt-in plaintiffs from the second
collective action on issue-preclusion grounds. As Halle
acknowledged, a decertification order is interlocutory.
Halle, 842 F.3d at 226–27. It therefore merges with final
judgment, such that the parties affected by it may appeal at
that time. See id. at 228.
In the context of a voluntary dismissal — the path to
settlement in the present cases — appeal is permitted from
“a voluntary dismissal which imposes a condition that
creates sufficient prejudice in a legal sense.” Coursen v.
A.H. Robins Co., 764 F.2d 1329, 1342 (9th Cir. 1985)),
opinion corrected, 773 F.2d 1049; see also Concha v.
London, 62 F.3d 1493, 1507 (9th Cir. 1995). Where the
original plaintiff’s voluntary dismissal results in a final
judgment disposing of other, non-settling plaintiffs’
statutory right to proceed collectively, that standard is met.
See also Espenscheid v. DirectSat USA, LLC, 688 F.3d 872,
877–78 (7th Cir. 2012) (concluding that the original plaintiff
CAMPBELL V. CITY OF LOS ANGELES 23
in a collective action may appeal a decertification order after
voluntarily dismissing his FLSA claims). So, although
choosing to settle claims may prevent the settling plaintiff
from appealing, for the non-settling plaintiffs, it is
immaterial that the settling plaintiff cannot be a party to the
appeal. Particularly if, as the Third Circuit assumed, the
decertification order is issue-preclusive as to the availability
of a collective action against all plaintiffs dismissed as a
result of it, it cannot be that only the original plaintiff is
competent to appeal.
We are not the first circuit to reject the appealability
reasoning in Halle. Although it did not describe itself as
creating a split in authority, the Eleventh Circuit in Mickles
concluded that opt-in plaintiffs could appeal a denial of
preliminary certification after the entry of final judgment.
Mickles, 887 F.3d at 1278–79. It so concluded because, even
though the opt-in plaintiffs were “not bound by the final
order approving settlement” between the original plaintiff
and the employer, they were bound by the final judgment
into which earlier interlocutory orders merged. Id. at 1279.
Mickles dealt with a different interlocutory order than we do
— a denial of preliminary certification, rather than a grant of
decertification — but its reasoning tracks our own, and is
equally inconsistent with that in Halle.
C
The City argues, in the alternative, that the terms of the
Officers’ opt-in forms prevent them from appealing, because
the forms entrusted all “certification” questions to the
original plaintiff. Again, the City relies heavily on Halle,
which adopted the City’s view based on the opt-in language
at issue in that case.
24 CAMPBELL V. CITY OF LOS ANGELES
First, nothing inherent in the opt-in process requires
waiving the right or delegating the responsibility to appeal a
decertification order. The spare language of the FLSA
regarding the opt-in form refers only to a “consent in writing
to become . . . a party.” 29 U.S.C. § 216(b). Accordingly, if
the members of a collective reach their own agreement to
delegate litigation duties, such an agreement marks a
deviation from the statute’s default assumption of coequal
status.
Second, nothing about the opt-in forms in this case —
which differ substantially from those in Halle — suggests
that the Officers delegated their authority to appeal an order
ousting them from the case. The consent forms here at issue
state only, “I . . . authorize the filing and prosecution of the
action in my name.” The district court’s decertification
order in essence negated that consent, by dismissing the opt-
in plaintiffs from the suit; no longer could the action be
prosecuted in their names. So, to the extent there was a
delegation here, it was not a delegation that survived the
decertification.
IV
As there is no obstacle to appellate review in this case,
we turn to the district court’s decertification order. The
Officers challenge the order both on its interpretation of the
FLSA and on its application of the FLSA to the record.
A
Beginning with the district court’s interpretation of the
FLSA, we note that neither the FLSA nor the case law of this
circuit offers much express guidance on collective action
practice. As previously discussed, it is clear from the
language of section 216(b) that (1) workers may join a
CAMPBELL V. CITY OF LOS ANGELES 25
collective action if they claim a violation of the FLSA, are
“similarly situated” to the original plaintiff, and
affirmatively opt in; and (2) participation in the collective
action is a statutory “right” held equally and individually by
each party plaintiff, whether originally appearing in the
complaint or later opting in. 29 U.S.C. § 216(b).
However, the FLSA leaves the collective action
procedures — beyond the requirement of a written opt-in —
open. As here relevant, the FLSA does not establish a
process for evaluating the propriety of the collective
mechanism as litigation proceeds. It does not provide a
definition of “similarly situated” — the requirement that
largely determines the viability of a collective action. And
it says nothing about the standard the district court should
apply when the collective mechanism is challenged.
We address each question in turn.
1
In the absence of statutory or case law guidance, the
district courts, both within this circuit and without, have
arrived at a loose consensus as to the proper procedure for
determining whether the collective mechanism is
appropriate. See 1 McLaughlin on Class Actions § 2:16
(14th ed. 2017); see also Leuthold, 224 F.R.D. at 466–67
(citing examples).
First, at or around the pleading stage, plaintiffs will
typically move for preliminary certification. 1 McLaughlin
on Class Actions § 2:16; 7B Fed. Prac. & Proc. Civ. § 1807.
Preliminary certification, as noted, refers to the
dissemination of notice to putative collective members,
conditioned on a preliminary determination that the
collective as defined in the complaint satisfies the “similarly
26 CAMPBELL V. CITY OF LOS ANGELES
situated” requirement of section 216(b). Symczyk, 569 U.S.
at 75. At this early stage of the litigation, the district court’s
analysis is typically focused on a review of the pleadings but
may sometimes be supplemented by declarations or limited
other evidence. See, e.g., Sheffield v. Orius Corp.,
211 F.R.D. 411, 413 (D. Or. 2002). The level of
consideration is “lenient,” Camesi v. Univ. of Pittsburgh
Med. Ctr., 729 F.3d 239, 243 (3d Cir. 2013); Anderson v.
Cagle’s, Inc., 488 F.3d 945, 953 (11th Cir. 2007) —
sometimes articulated as requiring “substantial allegations,”
sometimes as turning on a “reasonable basis,” but in any
event loosely akin to a plausibility standard, commensurate
with the stage of the proceedings. See, e.g., Halle, 842 F.3d
at 224; Morgan, 551 F.3d at 1260 n.38; Thiessen, 267 F.3d
at 1105; Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1214
(5th Cir. 1995), overruled on other grounds by Desert
Palace, Inc. v. Costa, 539 U.S. 90 (2003); cf. Fed. R. Civ. P.
12(b)(6); Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
A grant of preliminary certification results in the
dissemination of a court-approved notice to the putative
collective action members, advising them that they must
affirmatively opt in to participate in the litigation.
1 McLaughlin on Class Actions § 2:16; 7B Fed. Prac. &
Proc. Civ. § 1807; see also Hoffmann-La Roche, 493 U.S. at
170–71. A denial of preliminary certification precludes
dissemination of any such notice. Denial of preliminary
certification may be without prejudice and may be revisited
by the district court after further discovery. Halle, 842 F.3d
at 225; see, e.g., D’Anna v. M/A-COM, Inc., 903 F. Supp.
889, 894 (D. Md. 1995). Or it may be with prejudice, in
which case, if premised on the party plaintiffs’ failure to
satisfy the “similarly situated” requirement of section
216(b), it functions as an unfavorable adjudication of the
right to proceed in a collective. Mickles, 887 F.3d at 1280;
CAMPBELL V. CITY OF LOS ANGELES 27
see also Sandoz, 553 F.3d at 915 n.2. In such cases, if opt-
in plaintiffs have already joined, they will be dismissed
without prejudice to the merits of their individual FLSA
claims, and the original plaintiff will be left to litigate alone.
Mickles, 887 F.3d at 1280 (citing examples).
Assuming the collective action has survived its earlier
scrutiny, the second stage will come at or after the close of
relevant discovery. See Hipp v. Liberty Nat’l Life Ins. Co.,
252 F.3d 1208, 1218 (11th Cir. 2001) (per curiam). The
employer can move for “decertification” of the collective
action for failure to satisfy the “similarly situated”
requirement in light of the evidence produced to that point.
1 McLaughlin on Class Actions § 2:16; 7B Fed. Prac. &
Proc. Civ. § 1807. The district court will then take a more
exacting look at the plaintiffs’ allegations and the record.
Anderson, 488 F.3d at 953; Thiessen, 267 F.3d at 1102–03.
Because of its purpose and timing, decertification can
resemble a motion for partial summary judgment on the
“similarly situated” question, and may be combined with
cross-motions for summary judgment. See, e.g., Sargent v.
HG Staffing, LLC, 171 F. Supp. 3d 1063, 1070 (D. Nev.
2016).
If the motion for decertification is granted, the result is a
negative adjudication of the party plaintiffs’ right to proceed
in a collective as that collective was defined in the
complaint. The opt-in plaintiffs are dismissed without
prejudice to the merits of their individual claims, and the
original plaintiff is left to proceed alone. Hipp, 252 F.3d at
1218. If the motion for decertification is denied, the
collective proceeds toward trial, at least on the questions
justifying collective treatment. Id.
In determining, as a matter of first impression in this
circuit, how to evaluate a motion for decertification, we first
28 CAMPBELL V. CITY OF LOS ANGELES
must confirm that the district court was correct in
considering decertification at the point it did, and on the
record then available. We conclude that it was.
The two-step approach has been endorsed by every
circuit that has considered it. 9 See Myers, 624 F.3d at 554–
55 (2d Cir.); Camesi, 729 F.3d at 243 (3d Cir.); White, 699
F.3d at 877 (6th Cir.); Thiessen, 267 F.3d at 1105 (10th Cir.);
Morgan, 551 F.3d at 1260 (11th Cir.). There is good reason
for this consensus. In the absence of any statutory directive,
the proper means of managing a collective action — the form
and timing of notice, the timing of motions, the extent of
discovery before decertification is addressed — is largely a
question of “case management,” Hoffmann-La Roche,
493 U.S. at 174, and thus a subject of substantial judicial
discretion. See GCB Commc’ns, Inc. v. U.S. S. Commc’ns,
Inc., 650 F.3d 1257, 1262 (9th Cir. 2011); see also, e.g.,
Myers, 624 F.3d at 555 n.10; Comer v. Wal-Mart Stores,
Inc., 454 F.3d 544, 546 (6th Cir. 2006). There are of course
limits to that discretion. In some cases, it may be that a
district court abuses its discretion in refusing to allow notice
to putative collective action members, or in decertifying too
early or too late. See, e.g., Woods v. N.Y. Life Ins. Co.,
686 F.2d 578, 580 (7th Cir. 1982) (observing that, in a valid
collection action, “forbid[ding] the sending of notice
altogether” would be an abuse of discretion). But as a
general rule, the two-step process, culminating in a
decertification motion on or after the close of relevant
discovery, has the advantage of ensuring early notice of
plausible collective actions, then eliminating those whose
promise is not borne out by the record.
9
Neither the City nor the Officers have objected to the use of the
two-step process.
CAMPBELL V. CITY OF LOS ANGELES 29
The present case fits this mold well. Notice was
provided to putative collective action members upon
preliminary certification. Discovery was extensive, and the
relevant record was complete at the time of the district
court’s ruling on the decertification motion. The district
court did not abuse its discretion in considering the validity
of the collective mechanism as it did, by way of the City’s
post-discovery motion for decertification. 10
2
We turn next to the meaning of the statutory term
“similarly situated.” As the question is one of statutory
construction, we proceed de novo. In re Mitchell, 977 F.2d
1318, 1320 (9th Cir. 1992).
There is no established definition of the FLSA’s
“similarly situated” requirement, nor is there an established
test for enforcing it. See Thiessen, 267 F.3d at 1102. This
absence of authority is surprising, as being “similarly
situated” is the key condition for proceeding in a collective,
and thus the issue on which a grant or denial of
decertification generally depends. Nonetheless, broadly
speaking, two approaches to the “similarly situated”
requirement have emerged. See Mooney, 54 F.3d at 1214.
10
The district court did, however, overstate the extent of its
discretionary authority. The district court took the view that it had the
same discretion in considering a motion for decertification as it had on
preliminary certification. It did not. Preliminary certification, to the
extent it relates to the approval and dissemination of notice, is an area of
substantial district court discretion. Post-discovery decertification is not
an inquiry into the propriety of notice, and so operates under a different
standard. See infra Part IV.A.3.
30 CAMPBELL V. CITY OF LOS ANGELES
a. The minority approach
The minority approach is to treat a collective as an opt-
in analogue to a Rule 23(b)(3) class. See Mooney, 54 F.3d
at 1214; see also, e.g., Shushan v. Univ. of Colo. at Boulder,
132 F.R.D. 263, 265 (D. Colo. 1990). District courts
following the minority approach tend to expect a collective
to satisfy the requirements of numerosity, commonality,
typicality, adequacy, predominance, and superiority. Fed. R.
Civ. P. 23(b)(3); see Thiessen, 267 F.3d at 1103. 11
No circuit court has adopted the minority approach in
toto. See 7B Fed. Prac. & Proc. Civ. § 1807 (collecting
examples). The Seventh Circuit has imported the
“predominance” requirement of Rule 23(b)(3) into section
216(b). Alvarez v. City of Chicago, 605 F.3d 445, 449 (7th
Cir. 2010). It is unclear whether it would similarly import
the other requirements of Rule 23. In Espenscheid v.
DirectSat USA, LLC, 705 F.3d 770 (7th Cir. 2013), the
Seventh Circuit did suggest that the section 216(b) and Rule
23 standards are already “largely merged . . . , though with
some terminological differences.” Id. at 772. But
Espenscheid’s depiction of section 216(b) reflects the
Seventh Circuit’s desire for “[s]implification” more than the
text of the FLSA. Id.
All other circuits to have considered the issue —
including the Tenth Circuit, which Espenscheid inaccurately
11
The Supreme Court recently declined an opportunity to delve into
this issue. See Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036, 1045
(2016) (“The parties do not dispute that the standard for certifying a
collective action under the FLSA is no more stringent than the standard
for certifying a class under the Federal Rules of Civil Procedure. This
opinion assumes, without deciding, that this is correct.”).
CAMPBELL V. CITY OF LOS ANGELES 31
cites as supportive, see Thiessen, 267 F.3d at 1105 — have
rejected the analogy to Rule 23. See, e.g., Monroe v. FTS
USA, LLC, 860 F.3d 389, 405–06 (6th Cir. 2017), cert.
denied, 138 S. Ct. 980 (2018); Grayson v. K Mart Corp.,
79 F.3d 1086, 1096 (11th Cir. 1996). We agree with the
consensus view that the minority approach rests improperly
on an analogy to Rule 23 lacking in support in either the
FLSA or the Federal Rules of Civil Procedure. 12
First, in language and structure, section 216(b) and Rule
23 bear little resemblance to one another. 13 The limited
12
We reached this conclusion once before, in Kinney Shoe v.
Vorhes, 564 F.2d 859 (9th Cir. 1977), abrogated on other grounds by
Hoffmann-La Roche, 493 U.S. 165, in which we noted that “[t]he clear
weight of authority holds that Rule 23 procedures are inapplicable for
the prosecution of [collective] actions under [section] 216(b).” Id. at
862. However, we were not concerned in Kinney Shoe with the
requirements for proceeding in a class or collective action, and our
reasoning in that case rested in part on the later-rejected notion that class
and collective actions are not just distinct, but “mutually exclusive.” Cf.
Busk v. Integrity Staffing Solutions, Inc., 713 F.3d 525, 530 (9th Cir.
2013) (holding that a collective action and an opt-out class can proceed
in tandem), rev’d on other grounds, 135 S. Ct. 513 (2014); Calderone,
838 F.3d at 1104 (“An FLSA collective action and a Rule 23(b)(3) class
action may be fundamentally different creatures, but they are not
‘irreconcilable’ . . . .”). We therefore address the present question
afresh.
13
Rule 23 provides, in relevant part, as follows:
(a) Prerequisites. One or more members of a class may
sue or be sued as representative parties on behalf of all
members only if:
(1) the class is so numerous that joinder of all members
is impracticable;
32 CAMPBELL V. CITY OF LOS ANGELES
statutory requirements of a collective action are
“independent of, and unrelated to, the requirements for class
action under Rule 23,” Grayson, 79 F.3d at 1096 n.12, and,
by omitting most of the requirements in Rule 23 for class
certification, necessarily impose a lesser burden, see
Calderone, 838 F.3d at 1104. See also LaChapelle v.
Owens-Ill., Inc., 513 F.2d 286, 289 (5th Cir. 1975). For
example, section 216(b) does not mention predominance or
superiority. Monroe, 860 F.3d at 397. And as
nonrepresentative actions, collective actions have no place
for conditions such as adequacy or typicality. This gap
between the requirements of collective and class
proceedings is to be expected, as many of the rules specific
to class actions have evolved to protect the due process rights
of absent class members, a consideration not pertinent under
the post-1947 FLSA. See Portal-to-Portal Act, § 5(a);
McElmurry, 495 F.3d at 1139; Espenscheid, 705 F.3d at 772.
(2) there are questions of law or fact common to the
class;
(3) the claims or defenses of the representative parties
are typical of the claims or defenses of the class; and
(4) the representative parties will fairly and adequately
protect the interests of the class.
(b) Types of Class Actions. A class action may be
maintained if Rule 23(a) is satisfied and if: . . .
(3) the court finds that the questions of law or fact
common to class members predominate over any
questions affecting only individual members, and that
a class action is superior to other available methods for
fairly and efficiently adjudicating the controversy.
CAMPBELL V. CITY OF LOS ANGELES 33
Second, as other circuits have noted, the FLSA not only
imposes a lower bar than Rule 23, it imposes a bar lower in
some sense even than Rules 20 and 42, which set forth the
relatively loose requirements for permissive joinder and
consolidation at trial. Fed. R. Civ. P. 20(a) 14; Fed. R. Civ.
P. 4215; O’Brien, 575 F.3d at 584–85; Grayson, 79 F.3d at
1096; Lusardi, 855 F.2d at 1078. Whereas Rules 20 and 42
allow district courts discretion in granting joinder or
consolidation, In re EMC Corp., 677 F.3d 1351, 1360 (9th
Cir. 2012), the FLSA, which declares a right to proceed
14
Rule 20(a) establishes the process for permissive joinder of
parties:
Persons Who May Join or Be Joined.
(1) Plaintiffs. Persons may join in one action as
plaintiffs if:
(A) they assert any right to relief jointly, severally, or
in the alternative with respect to or arising out of the
same transaction, occurrence, or series of transactions
or occurrences; and
(B) any question of law or fact common to all plaintiffs
will arise in the action.
15
Rule 42 establishes the process for consolidation:
(a) Consolidation. If actions before the court involve
a common question of law or fact, the court may:
(1) join for hearing or trial any or all matters at issue
in the actions;
(2) consolidate the actions; or
(3) issue any other orders to avoid unnecessary cost or
delay.
34 CAMPBELL V. CITY OF LOS ANGELES
collectively on satisfaction of certain conditions, does not.
See 29 U.S.C. § 216(b); Grayson, 79 F.3d at 1096–97.
Furthermore, Rule 20 requires, in addition to a common
question of law or fact, that the plaintiffs assert a right to
relief arising from “the same transaction[] [or] occurrence,”
Fed. R. Civ. P. 20(a)(1)(A), a condition with no parallel in
the FLSA. See Hipp, 252 F.3d at 1219.
Third, unlike Rule 23, the collective action mechanism
is, in effect, tailored specifically to vindicating federal labor
rights. The FLSA is a remedial statute with broad worker-
protective aims. See Hoffmann-La Roche, 493 U.S. at 173;
Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687
(1946); Monroe, 860 F.3d at 396, 402–03, 405–06. The
collective action mechanism is a means of serving these
aims. See Hoffmann-La Roche, 493 U.S. at 173; Monroe,
860 F.3d at 396–97; O’Brien, 575 F.3d at 586. Rule 23, by
contrast, is neither a creation of statute nor a provision of
specific applicability to certain substantive rights or
remedial schemes.
Lastly, as section 216(b) makes no mention of “class”
proceedings, one can surmise that the distinction between
collective and class proceedings reflects an affirmative
congressional choice “not to have the Rule 23 standards
apply to [collective] actions.” Thiessen, 267 F.3d at 1105.
That choice was made clear upon introduction of the opt-in
provision in 1947, which Congress accomplished without
importing class-action requirements or terminology into the
FLSA. 16 See Calderone, 838 F.3d at 1105; O’Brien,
575 F.3d at 584. And it was recognized and reinforced by
the Advisory Committee on Rules in 1966, when Rule 23
16
The first version of Rule 23 took effect in 1938. See Neale v.
Volvo Cars of N. Am., LLC, 794 F.3d 353, 363 (3d Cir. 2015).
CAMPBELL V. CITY OF LOS ANGELES 35
was amended with the caveat that “present provisions of
29 U.S.C. § 216(b) are not intended to be affected.” Fed. R.
Civ. P. 23 advisory committee notes to 1966 amendment; see
also Calderone, 838 F.3d at 1106; Knepper v. Rite Aid
Corp., 675 F.3d 249, 257 (3d Cir. 2012).
For all these reasons, mimicking the Rule 23 standards
in evaluating section 216(b) collective actions is not
appropriate.
b. The majority approach
The majority approach to the “similarly situated”
requirement — the approach followed by the district court in
this case, and by far the more common option 17 — is a
flexible inquiry into the factual differences between the party
plaintiffs and the desirability of collective treatment. See
Morgan, 551 F.3d at 1260 n.38. Under this approach, often
called — not very helpfully — the “ad hoc” test, the district
court applies a three-prong test that focuses on points of
potential factual or legal dissimilarity between party
plaintiffs. First, the district court considers the “disparate
17
See, e.g., Sargent, 171 F. Supp. 3d at 1079 (D. Nev.); Pelayo v.
Platinum Limousine Servs., Inc., No. CV 15-00023 DKW-BMK, 2015
WL 9581801, at *5 (D. Haw. Dec. 30, 2015); Scott v. Sawmill, No. 6:14-
CV-01337-MC, 2015 WL 2095294, at *2 (D. Or. May 4, 2015);
Peterson v. Alaska Commc’ns Sys. Grp., Inc., No. 3:12-CV-00090-TMB,
2014 WL 12696527, at *3 (D. Alaska Dec. 17, 2014); Stiller v. Costco
Wholesale Corp., 298 F.R.D. 611, 631 (S.D. Cal. 2014); Villarreal v.
Caremark LLC, 66 F. Supp. 3d 1184, 1190 (D. Ariz. 2014); Espinoza v.
County of Fresno, 290 F.R.D. 494, 501 (E.D. Cal. 2013); Khadera v.
ABM Indus. Inc., No. C08-417RSM, 2011 WL 3651031, at *1 (W.D.
Wash. Aug. 18, 2011); Beauperthuy v. 24 Hour Fitness USA, Inc., 772 F.
Supp. 2d 1111, 1118 (N.D. Cal. 2011); Reed v. County of Orange,
266 F.R.D. 446, 449 (C.D. Cal. 2010).
36 CAMPBELL V. CITY OF LOS ANGELES
factual and employment settings of the individual plaintiffs.”
Thiessen, 267 F.3d at 1103. Second, the district court
considers “the various defenses available to defendants
which appear to be individual to each plaintiff.” Id. Third,
the district court considers “fairness and procedural
considerations.” 18 Id.
The ad hoc test is the only one that has been fully
endorsed at the circuit level. See Morgan, 551 F.3d at 1260
n.38 (collecting examples). And that test is a significant
improvement over the Rule 23 analogy. In omitting
conditions with no grounding in the FLSA, the ad hoc test
better accommodates the party plaintiffs’ broad right to
proceed collectively. O’Brien, 575 F.3d at 585. But the ad
hoc test has two major flaws.
First, although the ad hoc test is properly aimed at
gauging whether party plaintiffs are legally or factually
“similarly situated,” it does so at such a high level of
abstraction that it risks losing sight of the statute underlying
it. As it stands, the ad hoc test offers no clue as to what kinds
of “similarity” matter under the FLSA. It is, in effect, a
balancing test with no fulcrum.
The Third Circuit, for example, has offered a list of
potentially salient considerations in ADEA cases —
“whether the plaintiffs are employed in the same corporate
department, division and location; [whether they] advanced
18
Other, similar sets of factors are sometimes listed, although less
often. See, e.g., Rodolico v. Unisys Corp., 199 F.R.D. 468, 482
(E.D.N.Y. 2001) (considering “(1) the alleged activities of the defendant;
(2) the similarities among the members of the proposed collective action;
and (3) the extent to which members of the proposed action will rely on
common evidence to prove the alleged discrimination”).
CAMPBELL V. CITY OF LOS ANGELES 37
similar claims of age discrimination . . . [;] [whether they]
had similar salaries and circumstances of employment” —
but notes that none is necessarily dispositive in a given case,
or even necessary to consider in every instance. 19 See Ruehl
v. Viacom, Inc., 500 F.3d 375, 388 n.17 (3d Cir. 2007). The
key question, then, is one the ad hoc test does not answer:
what it means to be “similarly situated” specifically for the
purposes of section 216(b).
The abstractness of the ad hoc standard reflects the
circuits’ focus on providing “tests” for applying the
“similarly situated” standard rather than beginning with the
term’s meaning. See Mooney, 54 F.3d at 1213. In doing so,
the ad hoc approach tends to “explain[] what the term
[‘similarly situated’] does not mean — not what it does.”
Morgan, 551 F.3d at 1260 & n.38; see also Mooney, 54 F.3d
at 1213.
The natural answer to the proper inquiry — what
“similarly situated” means — is, in light of the collective
action’s reason for being within the FLSA, that party
plaintiffs must be alike with regard to some material aspect
of their litigation. That is, the FLSA requires similarity of
the kind that “allows . . . plaintiffs the advantage of lower
individual costs to vindicate rights by the pooling of
resources.” Hoffmann-La Roche, 493 U.S. at 170; see also
Halle, 842 F.3d at 223–24. That goal is only achieved —
19
The ad hoc test did not originate as an interpretation of the
“similarly situated” requirement in section 216(b); it originated as an
application of section 216(b) to a particular situation. See Lusardi v.
Xerox Corp., 118 F.R.D. 351, 364–72 (D.N.J. 1987). In summarizing its
reasons for decertifying the collective, which were specific to the record
in that ADEA case, the district court in Lusardi listed three factors, which
later courts adopted wholesale as the definitive test of the statute’s
meaning.
38 CAMPBELL V. CITY OF LOS ANGELES
and, therefore, a collective can only be maintained — to the
extent party plaintiffs are alike in ways that matter to the
disposition of their FLSA claims. See Hall, 842 F.3d at 226.
If the party plaintiffs’ factual or legal similarities are
material to the resolution of their case, dissimilarities in
other respects should not defeat collective treatment. Cf.
Aragon v. Republic Silver State Disposal, Inc., 292 F.3d 654,
659–60 (9th Cir. 2002) (applying Title VII’s “similarly
situated” standard, and looking for evidence of similarities
material to the plaintiff’s specific allegation of
discrimination).
In considering the “similarly situated” requirement in
this case, both the City and the Officers rely heavily on the
Supreme Court’s assessment, in Wal-Mart Stores, Inc. v.
Dukes, 564 U.S. 338 (2011), of the commonality
requirement of Rule 23. 20 The analogy is not entirely
misplaced. The “common question” requirement within
Rule 23, like the similarly phrased requirements within
Rules 20 and 42, bears a close resemblance to the “similarly
situated” requirement of section 216(b). See Fed. R. Civ. P.
23(a)(2); see also Fed. R. Civ. P. 20(a)(1)(B); Fed. R. Civ.
P. 42(a). All these requirements serve comparable ends;
their purpose is not simply to identify shared issues of law
or fact of some kind, but to identify those shared issues that
will collectively advance the prosecution of multiple claims
in a joint proceeding. As the Supreme Court stated in Dukes,
“[w]hat matters . . . is not the raising of common ‘questions’
— even in droves — but, rather the capacity of a classwide
proceeding to generate common answers apt to drive the
20
Rule 23 provides, in relevant part, that “members of a class may
sue or be sued as representative parties on behalf of all members only if
. . . there are questions of law or fact common to the class.” Fed. R. Civ.
P. 23(a).
CAMPBELL V. CITY OF LOS ANGELES 39
resolution of the litigation.” Dukes, 564 U.S. at 350
(emphasis omitted) (quoting Nagareda, Class Certification
in the Age of Aggregate Proof, 84 N.Y.U. L. Rev. 97, 132
(2009)). Similarly, in the collective action context, what
matters is not just any similarity between party plaintiffs, but
a legal or factual similarity material to the resolution of the
party plaintiffs’ claims, in the sense of having the potential
to advance these claims, collectively, to some resolution.
See Calderone, 838 F.3d at 1103; Symczyk, 656 F.3d at 199–
200.
However, for the reasons discussed above, broad
reliance on Dukes and other class action case law remains
unwise in the collective action context, as it risks importing
into the FLSA, contrary to its terms, the “rigorous analysis”
uniquely applied under Rule 23 to purely representative
litigation, Dukes, 564 U.S. at 350–51, as well as factors —
for example, adequacy, superiority, predominance — with
no foundation in the language of section 216(b). See 7B Fed.
Prac. & Proc. Civ. § 1807 (observing that district courts have
“uniformly” rejected the argument that Dukes affects the
FLSA’s “similarly situated” requirement). Under section
216(b), if the party plaintiffs are similar in some respects
material to the disposition of their claims, collective
treatment may be to that extent appropriate, as it may to that
extent facilitate the collective litigation of the party
plaintiffs’ claims. District courts have ample experience
managing cases in this way. For example, Rule 42, which
offers a closer analogy to the collective mechanism than
Rule 23, already provides for the possibility of partial
consolidation for trial, to the extent separate actions involve
common questions of law or fact. Fed. R. Civ. P. 42(a)(1).
The second flaw of the ad hoc test lies in its “fairness and
procedural considerations” prong. Such an open-ended
40 CAMPBELL V. CITY OF LOS ANGELES
inquiry into the procedural benefits of collective action
invites courts to import, through a back door, requirements
with no application to the FLSA — for example, the Rule
23(b)(3) requirements of adequacy of representation,
superiority of the group litigation mechanism, or
predominance of common questions. Again, the FLSA does
not give district courts discretion to reject collectives that
meet the statute’s few, enumerated requirements. Zavala v.
Wal Mart Stores Inc., 691 F.3d 527, 535 (3d Cir. 2012). To
the contrary, the FLSA gives party plaintiffs the power to
decide in what form they wish to proceed, for “Congress has
stated its policy that [party] plaintiffs should have the
opportunity to proceed collectively.” Hoffmann-La Roche,
493 U.S. at 170.
That is not to say that “procedural considerations” can
never justify decertification. A “collective” action in which,
as a practical matter, no material dispute truly could be heard
on a collective basis would hardly be consistent with the
FLSA’s remedial purpose. But if the party plaintiffs’ FLSA
right to choose collective litigation has any force,
“procedural considerations” must mean more than the
inconvenience, from the court’s or defendant’s viewpoint, of
the party plaintiffs’ choice. Importantly, the theoretical
alternative to collective litigation is the possible proliferation
of individual actions — in the present case, thousands of
individual actions — litigated seriatim. See Morgan,
551 F.3d at 1265. Accordingly, at this second step of the ad
hoc test, decertification of a collective action of otherwise
similarly situated plaintiffs cannot be permitted unless the
collective mechanism is truly infeasible.
c. The district court’s analysis
The district court’s approach to decertification in the
present case offers a useful example of both flaws of the ad
CAMPBELL V. CITY OF LOS ANGELES 41
hoc test. The Officers’ position was that there was a tacit,
Department-wide policy discouraging the reporting of
earned overtime. If that allegation were adequately
supported by the record, the “similarly situated” requirement
would have been met. The Officers would have been alike
in a way material to their litigation, as proving (or failing to
prove) the existence of such a Department policy would have
affected the ultimate findings regarding the occurrence of
unpaid overtime and the City’s knowledge of it, see
29 C.F.R. § 785.11, thus collectively advancing the
litigation.
In applying the ad hoc test, however, the district court
focused less on whether there was adequate evidentiary
support for the posited policy and more on the overall
sameness of the Officers’ employment circumstances. For
example, the district court emphasized that Officers worked
on different tasks, in different divisions, and under different
supervisors. Those distinctions would not have mattered to
the determination of liability if it were proven, as claimed,
that the Department had an overall policy against submitting
small overtime claims. See Morgan, 551 F.3d at 1264. A
systemic policy is no less common across the collective if
those subject to it are affected at different times, at different
places, in different ways, or to different degrees. See, e.g.,
Klimchak v. Cardrona, Inc., No. CV-09-04311 (SJF)(ARL),
2011 WL 1120463, at *5 (E.D.N.Y. Mar. 24, 2011) (“[I]f
defendants had a policy or practice of not paying overtime
compensation to any of its laborers, whether full-time or
part-time, union member or non-union member, all of those
employees would be similarly situated for purposes of this
analysis.”).
The district court emphasized also that the Officers
worked different hours and claimed overtime of different
42 CAMPBELL V. CITY OF LOS ANGELES
amounts, including some amounts that might have been de
minimis. But those distinctions go to the individualized
calculation of damages or the individualized application of
defenses. Such distinctions do not preclude collective
treatment for the purpose of resolving the common issue that
does exist, and that must be answered in the first instance.
See, e.g., Bouaphakeo v. Tyson Foods, Inc., 765 F.3d 791,
797 (8th Cir. 2014), aff’d, 136 S. Ct. 1036 (2016).
Nor are individualized damages calculations inherently
inconsistent with a collective action. In the wage-and-hour
context, if a common question regarding the employer’s
liability is answered in the plaintiffs’ favor, individualized
calculations of work hours may readily be addressed with
any of the practices developed to deal with Rule 23 classes
facing similar issues. See Jimenez v. Allstate Ins. Co.,
765 F.3d 1161, 1167 (9th Cir. 2014). “[T]he amount of
damages is invariably an individual question and does not
defeat class action treatment.” Leyva v. Medline Indus. Inc.,
716 F.3d 510, 514 (9th Cir. 2013) (quoting Blackie, 524 F.2d
at 905). Individual damages amounts cannot defeat
collective treatment under the more forgiving standard of
section 216(b) either.
In effect, using the ad hoc test, with its focus on
differences rather than similarities among the party
plaintiffs, improperly led the district court into an approach
that treats difference as disqualifying, rather than one that
treats the requisite kind of similarity as the basis for allowing
partially distinct cases to proceed together.
In sum, we reject both extant approaches to the FLSA’s
“similarly situated” requirement. We reject the minority
approach because it is founded on an untenable analogy to
class action practice and Rule 23. We reject the majority
CAMPBELL V. CITY OF LOS ANGELES 43
approach — at least as it is typically articulated 21 — because
it inadequately accounts for the meaning of “similarly
situated” in the FLSA context and improperly sanctions the
decertification of collective actions the district court finds
procedurally challenging. Party plaintiffs are similarly
situated, and may proceed in a collective, to the extent they
share a similar issue of law or fact material to the disposition
of their FLSA claims. The district court may be able to
decertify where conditions make the collective mechanism
truly infeasible, but it cannot reject the party plaintiffs’
choice to proceed collectively based on its perception of
likely inconvenience.
3
We turn to the standard the district court should apply in
evaluating a post-discovery motion for decertification.
Determining the proper legal standard is a question of law,
21
We do not intend to preclude the district courts from employing,
if they wish, a version of the ad hoc test modified so as to account for the
flaws we have identified. Nor do we intend to preclude the district courts
from employing any other, differently titled or structured test that
otherwise gives full effect to our understanding of section 216(b).
We also note, without expressing an opinion as to the merits of such
an approach, that the Tenth Circuit recently approved a district court’s
use, in the collective action context, of an analogy to the defunct
procedure for “spurious” class actions. In re Chipotle Mexican Grill,
Inc., No. 17-1028, 2017 WL 4054144, at *2 (10th Cir. Mar. 27, 2017)
(unpublished). Spurious class actions, which were available under the
pre-1966 version of Rule 23, allowed plaintiffs to litigate en masse if
they asserted a “several” right, shared a “common question of law or fact
affecting the several rights,” and sought “common relief.” Fed. R. Civ.
P. 23(a)(3) (1965). Such class actions were “spurious” in the sense that,
unlike true class actions, but similar to collective actions, they required
each plaintiff to join the litigation individually. See Kinney Shoe,
564 F.2d at 862.
44 CAMPBELL V. CITY OF LOS ANGELES
so we proceed de novo. United States v. Hinkson, 585 F.3d
1247, 1261–62 (9th Cir. 2009) (en banc).
Because preliminary certification is not challenged in
this case, we address only the standard the district court
should apply to post-discovery decertification. We conclude
that, in a case such as this one, in which decertification
overlaps with the merits of the underlying FLSA claims, the
summary judgment standard is the appropriate one.
Decertification, in the sense the term is typically used,
comes after relevant discovery is complete, and in that
respect resembles a motion for summary judgment. See
Mickles, 887 F.3d at 1276; Anderson, 488 F.3d at 953;
Thiessen, 267 F.3d at 1102–03. “At this point, the district
court has a much thicker record than it had at the notice [i.e.,
preliminary certification] stage,” so, as with a post-discovery
dispositive motion, “the plaintiff bears a heavier burden.”
Morgan, 551 F.3d at 1261. The circuit courts have generally
not described that burden in any detail, emphasizing only
that decertification is “more demanding” than preliminary
certification, Mickles, 887 F.3d at 1277, “more closely
examine[d],” White, 699 F.3d at 877, and subject to a
“stricter standard,” Thiessen, 267 F.3d at 1103. However,
the district courts have gradually tended to coalesce around
a standard they refer to as “substantial evidence.” 22
22
This approach is widely used within this circuit. See, e.g.,
Sargent, 171 F. Supp. 3d at 1079; Stiller, 298 F.R.D. at 631;
Beauperthuy, 772 F. Supp. 2d at 1118; Reed, 266 F.R.D. at 449; Smith
v. Micron Elecs., Inc., No. CV-01-244-SBLW, 2005 WL 5336571, at *2
(D. Idaho Feb. 4, 2005). And it is widely used elsewhere. See, e.g., Blair
v. TransAm Trucking, Inc., 309 F. Supp. 3d 977, 1001 (D. Kan. 2018);
White v. 14051 Manchester Inc., 301 F.R.D. 368, 374 (E.D. Mo. 2014)
(quoting Martin v. Citizens Fin. Grp., Inc., No. CIV.A. 10-260, 2013 WL
CAMPBELL V. CITY OF LOS ANGELES 45
The “substantial evidence” standard is not well-
explained, nor are the reasons for its adoption. However,
given the parallels between post-discovery decertification
and partial summary judgment on the question of entitlement
to the collective action mechanism, the standard has a certain
logic. As it normally manifests itself in district court,
substantial evidence is the standard for denying judgment as
a matter of law during or after trial. See Wallace v. City of
San Diego, 479 F.3d 616, 624 (9th Cir. 2007). “Substantial
evidence is such relevant evidence as reasonable minds
might accept as adequate to support a conclusion even if it is
possible to draw two inconsistent conclusions from the
evidence.” Reese v. County of Sacramento, 888 F.3d 1030,
1047 (9th Cir. 2018) (quoting Landes Const. Co. v. Royal
Bank of Canada, 833 F.2d 1365, 1371 (9th Cir. 1987)). The
standard is therefore a mid- or post-trial analogue to the test
applied at summary judgment, which asks, pretrial, whether
sufficient evidence exists to preclude a judgment as a matter
of law because, viewing the competent evidence in the light
most favorable to the nonmoving party, the trier of fact could
properly find for the nonmoving party. See Fed. R. Civ. P.
56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250
(1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
The Third Circuit, uniquely, has identified a different
standard for evaluating decertification motions. In Zavala v.
Wal Mart Stores Inc., 691 F.3d 527 (3d Cir. 2012), the Third
Circuit concluded that a preponderance-of-the-evidence
1234081, at *3 (E.D. Pa. Mar. 27, 2013)); Creely v. HCR ManorCare,
Inc., 920 F. Supp. 2d 846, 857 (N.D. Ohio 2013); Frye v. Baptist Mem’l
Hosp., No. CIV. 07-2708, 2010 WL 3862591, at *2 (W.D. Tenn. Sept.
27, 2010), aff’d, 495 F. App’x 669 (6th Cir. 2012); Brooks v. BellSouth
Telecomms., Inc., 164 F.R.D. 561, 566 (N.D. Ala. 1995), aff’d, 114 F.3d
1202 (11th Cir. 1997).
46 CAMPBELL V. CITY OF LOS ANGELES
standard, the default standard in civil actions, should apply.
Id. at 537. However, at least as applied to the present
context, where the decertification question and the merits
overlap, Zavala is unpersuasive. A preponderance of the
evidence is, as Zavala noted, the default standard in a civil
case. Herman & MacLean v. Huddleston, 459 U.S. 375, 387
(1983). But more precisely, it is the default civil standard
for the plaintiffs’ “ultimate burden of proof.” Costa v.
Desert Palace, Inc., 299 F.3d 838, 857 (9th Cir. 2002), aff’d,
539 U.S. 90 (2003); see Huddleston, 459 U.S. at 387. It does
not follow that pretrial motions need be evaluated under a
preponderance-of-the-evidence standard. Plaintiffs satisfy
their “burden” at the pleading stage with allegations that
“plausibly give rise to an entitlement to relief.” Iqbal,
556 U.S. at 679. They satisfy their “burden” at summary
judgment with evidence creating a genuine dispute of
material fact, see Nissan Fire & Marine Ins. Co. v. Fritz
Cos., Inc., 210 F.3d 1099, 1102 (9th Cir. 2000), such that a
trier of fact could properly find for the nonmoving party once
the preponderance-of-the-evidence standard is applied at
trial. Accordingly, to the extent decertification and summary
judgment on the merits present the same question, it should
be the ordinary summary judgment standard, rather than a
preponderance-of-the-evidence standard, that applies.
Here, for instance, the Officers’ allegations of an
unwritten, Department-wide policy discouraging the
reporting of overtime do double duty. They provide a basis
for collective treatment, as they raise a similarity of fact or
law whose disposition would advance the litigation of the
Officers’ FLSA claims. And, relatedly, they go directly to
the merits of the individual Officers’ claims, as proving the
policy at trial is essential to the Officers’ FLSA theory,
including their satisfaction of the FLSA’s knowledge
requirement. See 29 C.F.R. § 785.11. It follows that, in this
CAMPBELL V. CITY OF LOS ANGELES 47
case, a post-discovery decertification motion does double
duty as well. It is, in effect, indistinguishable from a motion
for partial summary judgment limited to the question of
whether an unwritten, Department-wide policy existed. See
Fed. R. Civ. P. 56(a).
Put differently, to the extent overlap exists between the
availability of the collective action mechanism and the
merits of the underlying claim, challenges to the former are
no different from challenges to the latter, and so should be
analyzed under the same standard. In the present posture of
this case — a post-discovery decertification motion — that
standard is summary judgment. If it were otherwise, a
decertification motion could become an end run around the
submission of factual disputes to the trier of fact.
It follows that, to the extent decertification overlaps with
the merits, a district court cannot weigh the evidence, as
ordinary summary judgment practice precludes doing so.
The collective mechanism is meant to ensure that party
plaintiffs have the option of benefitting from the efficiencies
of collective litigation — including, in cases presenting
genuine disputes of material fact, collective access to trial.
That principle is not consistent with allowing district courts
to break apart the collective based on their own resolution of
merits questions otherwise reserved to the trier of fact. If
there is a merits dispute that would survive summary
judgment on which the disposition of decertification also
depends, the merits dispute should be tried. Whether the
question will be answered favorably or unfavorably is for the
trier of fact. See, e.g., Johnson v. Big Lots Stores, Inc.,
561 F. Supp. 2d 567, 567, 579–80 (E.D. La. 2008)
(decertifying a collective action premised on a “uniform
policy or practice” after a trial on that and other questions).
48 CAMPBELL V. CITY OF LOS ANGELES
In sum, to the extent the decertification issues overlap
with the merits, we agree with the district courts’ widely held
view that the standard on a post-discovery decertification
motion is effectively the summary judgment standard. See
supra note 22. We emphasize, however, that as with a
motion formally styled as summary judgment, the district
court may not, on a merits-dependent decertification motion,
weigh evidence going to the merits. If collective treatment
is premised on a genuine dispute of material fact as to the
merits of the party plaintiffs’ FLSA claims, the collective
action cannot be decertified unless the factual dispute is
resolved against the plaintiffs’ assertions by the appropriate
factfinder.
B
We turn now to the substance of the district court’s
decertification order.
As an initial matter, the district court’s approach to
decertification was legally incorrect in two respects. First,
as already discussed, the district court applied an overly
demanding test of the FLSA’s “similarly situated”
requirement. See supra Part IV.A.2.c. Second, although the
district court recited the substantial-evidence standard,
which is an adequate statement of the summary judgment
analysis, it weighed evidence regarding the existence of a
Department-wide policy. 23
As with a motion styled summary judgment, however,
we need not remand for reconsideration when the district
23
The district found, for example, that the largely “boilerplate”
nature of the Officers’ declarations “call[ed] into question the
declarations’ credibility.”
CAMPBELL V. CITY OF LOS ANGELES 49
court applies an improper standard, as our review is de novo.
United States v. City of Tacoma, 332 F.3d 574, 578 (9th Cir.
2003). Under de novo review, we may affirm if we
conclude, as a matter of law, that the record does not reveal
a genuine dispute of material fact as to the existence of a
Department-wide policy discouraging the reporting of
overtime. We do so conclude.
The key problem for the Officers in providing evidence
of the Department-wide policy they allege is one of scale.
That the policy is Department-wide is essential to the
viability of the collective action, as it is the sole justification
advanced for a Department-wide collective. Yet the
evidence in the record is simply not probative of an
unwritten overtime policy of that breadth.
The Officers’ primary contention appears to be that there
exists a kind of tacit policy that operates top-down, such that
an inference may be drawn that the policy applies
Department-wide. As the district court noted, however, the
evidence the Officers have produced — a mass of individual
declarations, mostly containing rote recitations of hours
worked and bare assertions of a certain Department “culture”
— has a fundamentally different focus. The Officers’
declarations speak of immediate supervisors at discrete
worksites. And even then the evidence is not of a uniform
practice from which one might infer direction from a higher
level, but of variable practices variably applied. Critically,
there is no evidence of any directives, incentives,
conversations, emails, or actions (such as denials of
promotions) by Department leadership that could have
communicated to local supervisors, implicitly or otherwise,
a uniform policy against reporting small amounts of
overtime.
50 CAMPBELL V. CITY OF LOS ANGELES
Furthermore, there is no evidence to suggest that the
declarants’ vaguely reported experiences are in fact
representative of the experiences of the party plaintiffs
Department-wide; the only evidence in the record is that they
are not.
First, the Officers offer no sampling or expert statistical
evidence tying the declarants’ statements to the experiences
of the party plaintiffs or of the workforce generally. The
declarations are too limited in individual detail to support an
inference that failure to report specific instances of overtime
was tied to a policy from above. Nor have the Officers
presented evidence — lay or expert, anecdotal or statistical
— that the City’s overtime claims process, or the
enforcement of it, was somehow structurally inadequate, or
implemented Department-wide in a way that inhibited the
accurate reporting of overtime. Furthermore, as the district
court noted, many of the declarants who claim they were first
taught not to report overtime during their training at the
Police Academy “were members of Academy classes that
substantially pre-date[] the [D]epartment’s promulgation of
the current [written] overtime policy.”
Second, although the Officers’ declarations are
creditable evidence of instances of unpaid overtime, when it
comes to the issue of a Department-wide policy, they run up
against the City’s overwhelming evidence of widespread
FLSA compliance. It is undisputed that 330,000 overtime
claims in amounts of less than one hour were filed during the
relevant period, including 64,000 by the party plaintiffs
themselves. Confronted with that contradiction, lacking
affirmative evidence of a structural problem, and in light of
the Department’s widely disseminated written policy
requiring that overtime claims be filed, no reasonable trier of
CAMPBELL V. CITY OF LOS ANGELES 51
fact could conclude that the City fostered or tolerated a tacit
policy of noncompliance.
V
Absent substantial evidence that the City fostered or
tolerated a tacit, systemic policy against the reporting of
overtime, there is no genuine dispute of fact as to the only
allegation the party plaintiffs have cited as a basis for
proceeding in a Department-wide collective. The collective
action was therefore correctly decertified and the opt-in
plaintiffs correctly dismissed.
AFFIRMED.
52 CAMPBELL V. CITY OF LOS ANGELES
APPENDIX
Campbell v. City of Los Angeles, No. 15-56990
Plaintiffs-Appellants: Daniel Campbell; Michael Fox;
Ruzanna Luledzhyan; Humberto Jaime; Jerritt Severns;
Joanna Linfield; Donald Linfield; David J. Tavizon;
Christopher J. Luma; Marco A. Rodriguez; Russell Kilby;
Christopher J. Kunz; Terry Johns; Michael P. Flynn; Randall
Allen Garrett; Kenneth M. Montague; Kit Anthony Stajcar;
Timothy E. Kohl; John C. Flores; Richard Gabaldon; Joseph
M. Payton; Robin R. Brown; Billy Joe; Stacey Seymkowiak;
Inge Yolanda Bowman; Manning; Velasco; Heather A.
Gageby; Gerardo J. Davila; Adrian E. Koval; Agnos
Amarantos; Jeffrey Stewart; Lopez; Mitchell G. Lambdin;
Eric Hernandez; Michael Moriah Knoke; Manuel Madren;
Megan D. Glaister; James H. Williams; Brett M. Clark;
Roger Fontes; Ouahdi Monlacktena; Jude Washington; John
Banelos; Ramon Martinez; Oscar Gamino; Mell Hogg;
Richard J. Lopez; Jaime Zarate; George Chavez; Andrew
Moody; Michael O’Connor; Eric Holguin; Jeremy Allen
Escamilla; Cedric Washington; Asatur Mkrtchyan; Jason M.
Burcham; John Shin; Peter Bueno; Anthony Ortiz; Christian
Rueda; Philip Thompson; Richard Suvlate; Warren Pulley;
James Quinones; Minh Nguyen; Joseph Yamzon; Theodore
P. Maillett; Shawn Massey; Peter Lee; Fred C. Starkey, Jr.;
Jude T. Washington; Steven Marin; Yvette Perez; Letricia
Lopez; Leanna Rosenkild; Patricia Batts; Angelo Stewart;
Jesus Bazan; Todd Behrens; Sonny Garcia; Solve Loken;
Juan Gonzalez; Angela R. McGee; Michael Williams; Rick
M. Roy; Michael A. Pytel; Andre Wright; A. Wright; Tanya
Eppenger-Campbell; Morris Batts; Charles Tizano; Albert
C. Mora; Charles A. Howard; Stephanie Tuller; Manuel
Segura; Darryl Bernard McGreggor; Tarriel Hopper; Phillip
R. Watson; Renee A. Minnick; Francine Spada; Erin
CAMPBELL V. CITY OF LOS ANGELES 53
Gabaldon; Carlos R. Ortega; Ramiro Cabrera; James A.
McSorley; Alberto Del Valle; Elizabeth Boccanfuso;
Giovanni Boccanfuso; Efren J. Corrac; Yasir Gillani; Joseph
Pudelwitts; Jane Elizabeth Russom; Robert Casimiro; Angie
Whetstone; Mike D. Nelson; Heather McLean; Nina Brown;
Nelson D. Scroggins; Benedict J. Fernandes; Christopher
Formby; David Jamieson; Ken Cabrera; Charles Garcia;
Rogelio Ramirez; Catarino Perez; Rudy Chavez; Mario
Gamez; Ackley Kane Mayer-Tucker; James D. Crawford;
M. Rene Chavez; Issac Lowe; Carlos E. Ayala; Lisa Moore-
Crawford; Edward P. Castro; David Manriquez; Philip
Alaniz, Jr.; Aaron Skiver; Michael Yoro; Alonso Ramirez;
Lisa Ruegg; Russell Long; Angel Salvador Bonilla;
Alexander R. Alvarez; Karla Barraza; Vincent J. Correa;
Donna J. Watkins; Richard Melendez; Darryl Brown;
Charles Wunder; Luis Alvarado; Joseph Ciancanelli;
Christopher Blankenship; Alejandro Arredondo; William M.
Young; David Redd; Antonino Giambruno; Andres Cruz;
Rene Zavala; Matthew Saenz; Adrian Chin; Marlon Fields;
Henry Colebrooke; Ritchie Tijerina; Marco Vargas; Sonia
Rimkunas; John Lawrence; Gary Eagleson; Dennis Lada;
Anthony Aceves; Terry Keefer; Angel Cervantes; Douglas
Workman; Anthony Perez; Michael Williamson; Gina
Chovan; David Abdalian; Diosdado Coronel; Robert
Andreno; Robert Williamson; Jorge Cruz; Victor Suapaia;
Sean Meade; Brian Malneritch; Gregory Fuqua; Gerardo
Vazquez; Victor Alvarez; Jaime Roussett; Carlos Mercado;
Patrick Marmolejo; Ryan Whiteman; Richard Romney;
Scott Koegel; Yvonne Whiteman; Wallace Wall; Pavel
Gomez; Dave McDowell; Lisa Gallegos; Jesse James; Shon
Wells; Vincent Stroway; Michael Pauley; Roberto San
Roman; Steve Griffith; Timothy T. Rolsen; Peter Vasquez;
Alan Aldegarie; Ralph Camarillo; Ray Denton; Neal
Peterson; Robert Gonzalez; Jeremy Duncan; Ray
Hallenbeck; Robert Cosner; Peter Sanchez; Will Munoz;
54 CAMPBELL V. CITY OF LOS ANGELES
Efren Acosta; Alan Little; Jesse Sanchez; Rigo Bonilla;
Marvin Brent; Lori Sanchez; Sunti Singhanate; Pedro
Cordero; Abe Rangel; Mark Dimitt; Robert Aguilar; Patricia
Smith; Alejandro Izquierdo; Bryce Verna; Joanne Needham;
Catherine Massey; Frank Bancalari; Julio Umana; Patrick
O’Dea; Ray Jeter; Jaime McBride; Miguel Barajas; John
Bigrigg; Gina Meza; Maggie Sherman; Mario Ontiveros;
Jeffrey Leu; Patricia Guessferd; Fernando Ochoa; Javier
Sanchez; Leonard Johnson; Willian Proctor; Lamont Jerrett;
Jacob Snow; Douglas Panameno; Steve Zavala; James Vena;
Robert Deamer; Phillip Carr; Darell Matthews; Oscar Prado;
Daniel Odoh; Robian Tango; Anthony Perez; Don
Montelibano; Demetrio Mendoza; Regina Nares; William
Gutierrez; Gary Nanson; Peter Laundelius; Barry Bottai;
Randal Bowman; Raffi Khandikian; Benjamin Zuckerman;
Hilton Henry; Rudy Gonzales; Richard Oke; Kelly Edwards;
David Ham; Lane Bragg; Angelo Castro; Dan McCoole;
Justin Mudgett; Paul Menchaca; John Chilstrom; Jimmy
Martinez; Richard Krynsky; Cameron Carrillo; Edward
Rocha; Michael Belmonte; Carolyn Coward; Timothy
Wunderlich; Jason Armendariz; Claudia Gray; Emerson
Holder; Mark Pompano; Paul Floge; Anthony Ramos;
Cynthia Gomez; Osacar Villarreal; Robert Takanashi; Mark
Ramirez; Michael Shea; Shawn Stevens; David Rosenthal;
Matt Jacobik; Stephanie Southerland; John Key; Eloy
Ochoa; Dennis Nelson; Oscar Lopez; Robert Knight; Ernie
Schoop; Rolf Knuth; John Kim; Robert Gallegos; John
Gomperz; Rodolfo Lemos; Scott Blackman; Issac Lowe;
David Cueto; Adrian Ferns; David Tello; Chad Costello;
Thomas Bergren; Patrick Beighley; Jennie Wong; Kyle Lee;
Kris Davis; Daniel Gregg; Albert Gonzalez; Gonzalez;
Barry Brooks; Steven Cohen; Greg Andrachick; Joseph
Satow; Linda Thompson; Jonathan Goode; Peter Hopkins;
Michael Rex; Bradley Schumacher; Paul Clements; Robert
Yanez; Rene Acosta; William Heider; Martin Martinez; Juan
CAMPBELL V. CITY OF LOS ANGELES 55
Zarate; Jose Ortega; Frank Montelongo; Antonio De La
Torre; Jackie Fort; Jose Diaz-Ibarra; David Armas; Anthony
Smith; Todd Carpenter; Robert Ruiz; Paul Waymire;
Andrew Chase; Sandra Magdaleno; James Sterling; Jose
Mireles; Mary Culpepper; Juan Cruz; Oscar Cansino;
Dennis Clifford; Maryann Bunag; Michael Rippe; Michael
Rubin; George Bashai; Matthew Bakotich; David Benioff;
Ronald McNally; Jeffri Norat; Jose Verdin; Yvette Perrodin;
Mike Gilbert; Emery Newsom; Holland Holland; Alexander
Kordis; Jerry Lucio; James Mark Arenas; Todd Bridges;
Ruben Gutierrez; Leonard Garza; Andre Dixon; Richard
Compton; Greg Bruce; Anthony Cole; Darryl Danaher;
Osmund Bouligny; Ron Lagrassa; Ruzanna Luledzyan;
Terry Saleono; Victor Mencias; Michael Knoke; Guadalupe
Alaniz; Kenneth Buscarino; Canales Canales; Kevin Cotter;
Cominic Counts; Guy Faltinowski; Carlos Lozano; Ramon
Mejia; Valentine Reyes; David Salcedo; Anthony Tejada;
Thomas Wicks; Clarence Williams; Stephen Winter;
Theodore Williams; Frank C. Montelongo; Christopher
Clark; Bruce Murdoch; Song Suh; Paul Avila; Randy
Peterson; Gregory Probst; Christine Wycoff; Len Lai;
Travonne Dixon; Kristan Zalokar; Arnold Porter; Cathy
Luke; Pedro Benavides; Stacy Pierce-Rogers; Chiquita
Brown; John Porras; Tom Gracey; Alan Bone; Stephen
Gordon; Edmond Yagubyan; Money Scott; Steve Vera;
Anthony Magaleno; Robert Martinez; Robert Vasquez;
Chris Chavez; Antonio Rodriguez; Edward Silva; Carlos
Quintero; Michelle Thomas; Nicholas Sysak; Cynthia
Barlow; Henry Mendoza; Merita Woodle; Joseph Terena;
Brian Koren; Richard Roberts; Ivan Vintimilla; Gary Verge;
Dean Monteleone; Traci Grundland; Douglas Kirkland;
Scott Teubert; Debbie Luker; Murrell Pettway; John
Pasquariello; Tim Olsen; Rossum; Lupe Palomares; Jerry
Kowalsky; James Chong; Javier Vargas; Andres Gallagher;
Andrew Gallagher; Arthur Grein; Jason Zapatka; Robert
56 CAMPBELL V. CITY OF LOS ANGELES
Lewis; Julie Browne; Derek Sledge; Jose Salcedo; Michael
Saghera; Ramiro Ruezga; Gil Padilla; Tony Fitzsimmons;
David Carbajal; Suzan Nelson; Jeff Nelson; Tim Galli;
Rodrigo Rodriguez; Stanley Schott; Dale Ziesmer; Ronald
De Wyke; Kenneth Richard Vanhooser II; Virgil Casstor;
Kenneth Hurley; Mayda Espinoza; David Kong; Bobbie
Covington; Ronald Wyke; Maria Morrison; Becky Strong;
Jennifer Vass; Neil Wank; Melvin Durant; Catherine
Durant; Larry Covington; Javier Borrego; Lonnie Benson;
Frank Amador, Jr.; Joseph Morrison; Arturo Yanez;
Christopher Campagna; Gilbert Murillo; Fred De La Cerda;
Karena Rowan; Vickie Nguyen; Edward Yoon; Gregory
White; Adam Hollands; Sal Ogaz; Robert Quezada; Marston
Taylor; Robert Golden; Robert Murray; Susan Willis;
Salvador Jaramillo; Woon Chong; Lisa Gropp; Mauricio
Vargas; Martha Jaime; William Driver; Omar Cedre; Laura
Curtin; Young Honor; Robin Jones; Roberto R. Lopez;
David Love; Richard Mossler; Tim O’Gorman; Michael
Stalnecker; William Snowden; Alex Tellez; Paul Von
Lutzow; Pedro Machuca; Owen Mills; Don Sasaki; Marc
Tessier; Alfonso Villaneda; Gary Weller; David Stirling;
Jeff Merlo; George Mejia; Elliott King; Frank Garcia;
Raphael Ferrer; James Eldridge; John Downey; Gerardo
Davila; Raquel Cruz; Mike Cassetta; Fred Brignoni; Paul
Bowser; Andre Baydaline; Ralph Barone; Raymond Ygual;
Doug Gallaher; Timothy Dacus; Gerardo Madera; Manuel
Sierra; Frank Lopez II; Terence Klafke; Benjamin Hetzler;
Vincent Deglinnocenti; John Cordova; Martin Franco; Gary
Bean; Brandon Mamrot; Jeffrey Tint; Charles Hawley;
Danny Roman; Francisco Gonzalez; Daniel Robinson;
Jamie Smerdel; Alan Thatcher; Reggie Dickerson; Dana
Grant; Nicholas Milazzo; James Poon; Belinda Robinson;
Ignacio Mijares; Liavaa Moevao; Juan C. Campos; Donald
Richards; Monica Quijano; Steven Muirhead; Jaime
Anchondo; Tanza Smalls; Raymond Hernandez; Jay
CAMPBELL V. CITY OF LOS ANGELES 57
Mastick; Nelson Ramaya; Adam Altamirano; Paul Lawson;
Scott Engedal; George Bowens, Jr.; Jesus Ravega; Tina
Glenn; Steven Stear; Scott Murachver; Javier Montenegro;
Peggy Moseley; Juli Dawn Munson; Tracie L. Noggle;
James Noss; Christopher O’Donnell; Christy Donorovich-
O’Donnell; Ralph Brown; Stephen Bucher; Kimberly Cisco;
Arno Clair; Kelly Clark; Richard Davis; Leonard Drayton;
Arthur Duran; Paul Espinoza; Arldwin Flores; Hugh
O’Gara; Elipido Orozco; Maria Orta; Timothy Gallick;
Brian Gan; Michael Goldstein; James Goodwin; Robert
Guevara, Esquire, Attorney; Oscar Gutierrez; Nicholas
Hartman; Ryan Hicks; Kevin Holland; George Hoopes;
Leonel Borja; Lee Jensen; Christopher Jordan; Charles
Joseph; Ho Kim; Denny Leopoldo; Ernest London; Robert
Lopez; Robert Luna; Richard Luskleet; Raymond Madrid;
Saul Carrillo; Kelly Chrisman; Joseph Dominguez; Yolanda
Echols; Robert Felix; Robert Fernandez; Edgar Magat;
James Mankey; William Marbley; Chris Marshall; Gabriel
Martinez; David Mascarenas; Matthew Meneses; Pablo
Monterrosa; Stacey Morris; Edward McGowan, Jr.; Paul
McKechnie; James Onthank, Jr.; William Orndorff II; Isaias
Ornelas; Adam O’Neill; Robert Paterson; Scarlett Paterson;
Joseph Pelayo; Floro Pinzon; Jary Quinones; Luis Robles;
Guadalupe Ruiz; Terry Mattox Ruppel; Richard J. Russell;
Kristine Salazar; Dean Schram; Robert Snedden; S. Owens;
Jeffrey Pelczar; David Podesta; Annette Potts; James H.
Quinlan; Bobby Ramero; Steven Rausch; Frank Schweitzer;
Jeffrey Stapleton; Jeffrey X. Vach; Paul Valencia; Abraham
Vidriezca; Matthew Vocke; Terrell West; Gregory Owens;
James Rahm; Osbaldo Ramos; Stephen Redd; Anthony
Reitz; John Rice; Michael Rimkunas; Johnny Sanchez; Erik
Schick; Jerry Siel; John Smith; Michael Smith; Steven
Smith; Terry Shelley; Gloria Snipes; Ronald Stamps; Kelly
Sullivan; Peter Waack; Richard Wall; David Wren; Maria
Yamamoto; Fred Yamamoto; William Young; William F.
58 CAMPBELL V. CITY OF LOS ANGELES
Justice; Trevor Jackson; Margaret Henry; Crystal Hayes;
Richard J. Garibay; Mauricio Garcia; Lisa Garcia; Gilbert
Garcia; Ernest Eskridge; Angel Domenech; Marlo V. Cross;
Robert F. Chavira; Felicia Ann Bailey; Roger G.
Archambault; Fernando Alvarez; Julio Benavides; Jennifer
Lee Hammer; Richard Gurrola II; Stephen Glick; Robert Jon
Duke; Daniel Chilson; Kenneth Richard Lewis; Michael J.
Lorenz; Justin Malcuit; Robert Martin; Gorgonio Medina;
Juvey Mejia; David Harris; Mark Henry Hernandez;
Raymond M. Hernandez; Michael W Hill; Enrico P. Hizon;
Woravoth Iddhibhakdibongse; Michael Jolicoeur; Yolanda
Caterino-Clair; Anderson Boyce; Carl Barnhart; Joyce M.
Banuelos; Sandra Valle; Joseph Taylor; Eddie N. Solomon;
Carlos Savedra; Brian Reynolds; Daniel Putnam; Joseph
O’Donnell; James Swift III; Victor Nunez; Season Nunez;
Emigdio Neri; Tyrone Moore; Christopher Martinez; Joseph
Linares; Gregg Webber; Michael Seguin; Fredger A.
Alexander; Mark Aragon; Marlene Arguello; Ralph Arzate;
Rudolph Baca; Keith Washington; Steven Bishop; Eric
Bixler; Edward Viadaillet; Gerardo Vejar; Michael
Tomelloso; Clarence Speer; Mage Gene Simerskey; Amy
Wong; Douglas Roller; Mario Ramirez, Jr.; Perry Moore;
Brent McGuyre; James C. Marshall; Corinne L. Malinka;
James MacDonald; Joan Leuck; Antonio Lacunza; Rayney
L. Arnold; Juan C. Amancio; Iris Santin; James Redman;
Kulin Patel; Ryan Nguyen; Kevin McNamee; Kevin Malm;
Kenneth Kuntuzos; Robert White; Jeff Lutzow; John
Richardson; Ernesto Munoz; Ramon Muniz; Francisco H.
Hurtado; Michael Huff; Teresa Hernandez; Jose Contreras;
Osvaldo J. Castillo; John Bart Juarez; Charles Hicks; Cheryl
Gonzalez; Ricardo Feria; Mario Cruz; Michael Amado;
Jason Abner; Dale Lopez; Danny Jiminez; Irsie Lee Henry;
Shawn Havican; Nathaniel Hampton; Victor Gutierrez; Joe
Galindo; Dimitrius Connor; Michael Arteaga; Juan R.
Arenas; Bill J. Wilson; Anthony Vilardo; Michael Valencia;
CAMPBELL V. CITY OF LOS ANGELES 59
Lon Truong; Alan Sorkness; Rick Rodgers; Engelbert
Quechenberger; Cesar Leal; Sharon J. Kroger; Michael
Karatsonyi; Roscoe Jolla; Rudy De La Fuente; Victor
Corral; Laura Cook; Jose Carias; Mitchel S. Windsor; Dale
Washburn; Warren Tojong; Jeffrey Tiffin; Kandis Schmidt;
Raymond L. Rangel; Lisa Phillips; Christopher Paterson;
Steven Moody; Jose Maldonado; Mark Campell; Donna
Wheeler; Vincent Vicari; Matthew L. Vannatter; Michael
Valdes; Stephen Underwood; Michael Samuel Tirella;
Rosibel Smith; Henry Servin; Julie Rodriguez; Tanya
Rodda; Raul Porras; Richard L. Platzer; Michael E. Oppelt;
Hector Olivera; Joseph Napolitano; Angelean Montero;
Lawrence Martinez; James K. Lenoue; Ronald Von Gober;
Paul Glascow; Deborah Fetters; David Dimeglio; Napoleon
Curry; John Cook; Thomas E. Cleary; Todd Burns; Timothy
Branley; Miguel Aguayo; Thomas E. Kirk; Jorge A.
Gutierrez; Enrique R. Gutierrez; Jack A. Giroud; John D.
Gardner; Lisette Garcia; Ken Furuta; Peter Durham; Jason
Duplantis; Oscar Duenas; Cynthia J. Dragun; Carlton M.
Brown; Lisa Wernli; Karen J. Smith; Howard Silverstein;
Michael R. Pelletier; James J. Panek; Michael K. Ozaki;
Scott Ogata; Ray Moreno; Roderick Miller; Connor Mac
Ivor; Joshua Lukaszwski; Alfonso Alfaro; Miguel
Arambula; Martin Barocio; Francis J. Bolan; James R.
Browning; George Bush II; Wallace Carr; Jin Cho; Elva
Coats; Robert W. Coats; Vic Corella; Rickey Crowder, Jr.;
Ricky Davis; Robin L. Downey; David Herskowitz; Gary
Holbrook; Eric O. Jones; Kenneth V. Koch; Lauro R.
Larrinua; Hipolita Lizarraga; Manuel Alvarez; Maribel
Arambula; Richard Aston; John J. Avalos; Ruben Banuelos;
Alexander Bautista; Christopher Borunda; Paul Choung;
John Coffey; David Corbet; Thomas Davoren; Tracye
Fields; Michael Friesenhahn; Randolph D. Fukui; Sean
Gonzalez; Jennifer A. Grasso; Joseph G. Graves III; Manuel
Antonio Ibarra; Eric M. Johnson; Andrew J. Lassak; Daniel
60 CAMPBELL V. CITY OF LOS ANGELES
Lee; Thomas F. Lee; Don Magers; Alma Mark; Claire
Smith; Jonathan E. Smith; Gregory R. Staats; Joseph Marx;
Raymond W. Mauss; Kenneth K. Moore; Daryl Ordone;
John Padilla; Steven Stranak; Michael Switzer; Cinthia
Tapia; Tony Trusk; Ryan Verna; Laura Windsor; Larry
Wright; Robert Yanez; Del Bourgeois; Gregory Hancock;
Cecilia Cleveland; Kurt Miles; Jeff Mares; Jerry Liggett;
Rocael Rodriguez; Jose J. Perez; Carias Warner; Shawtrice
Watkins; Reynaldo Perez, Jr.; Richard Plows; Terry L. Pratt;
Richard M. Prindle; Sallyann S. Procaccini; Kenneth
Quigley; Tyrhone Ragland; Mark W. Reed; Robert Rivera;
Alex Gabriel Rodriguez; John D. Rodriguez; Sergio Ruedas;
Timothy Ruiz; Timothy S. Schey; Daniel A. Schmidt;
Ramon Argulles; Debra Winter; Manuel Vides; George
Torres; Kelvin Scott; Andrea Sanfillippo; Alfredo
Rodriguez; Thomas Malloy; Edward Maciel, Jr.; Marlon
Prodigalidad; Brenda Morales; Sandra Lopez; John
Knighton; Mark Griego; Richard Gordon; Jeanette Flores;
Phillip Tate; Danny Jones; Jaroen Hitanukulkit; James R.
Hays, Jr.; Gabriel Ferreras; Michael Briano; Steven M.
Takeshita; Jose Santiago; Manuel R. Ramirez; Alfred Pasos;
Blanca Pasos; Robert Longdon; Keith A. Green; Michael
Joseph Diaz; Theresa Coyle; Andre Abrams; Andres
Cardenas; Terry Barclay; Meghan Aguilar; Mario Aguilar;
Dean Watts; Daniel Vasquez; Dionne Watts; Kimberly
Snyder; Orlando Smith; James Muniz; Maria Montoya; Paul
Miller; Leonardo McKenzie; Chun Yim; William
Yarbrough; Eduardo B. Trinidad; Anthony A. Razo; Samuel
Williams, Jr.; Stanley Wiedenhaupt; Christopher Walter;
Ramirez; Karen Owens; Ralph Mendoza; Gerald Mears;
Marlon Marrache; Miguel Lopez; John Gidowski; Neal
Fine; Rodolfo Ramirez; Robert Valencia; Gerardo Velasco;
Derek Sykes; Thomas Small; Singh; John Richardson;
Richard J. Ramirez, Jr.; Pierre Olega; Alejandro Nava;
Nicholas Lee; Marcos Villanueva; James Hutchins; Robert
CAMPBELL V. CITY OF LOS ANGELES 61
Holcomb; Robert Hillard; Shelley Gallegos; Teresa Akune;
Warner Carias; J. Padilla; Kenneth Nitschke; Jose A.
Ferreira; Shawn Duke; Carlos Diaz; Duc Dao; Gary Cusick;
Matthew Cundiff; James Clifford; Mark Cleary; Maurice
Brunel; Raymond Broker; Edward Maciel; Joey Yanez;
Edward E. Wheelis; Edison Z. Vistar; Hugo Valez; Julia
Peat; Valentin Montesdeoca; Scott Moffitt; Adriana Bravo;
Anthony Balderama; Sherwin Vigilant; Brandon Tuccillo;
John L. Thomas; James Sands; Raul Rodriguez; Jason M.
Pedro; Nicholas Noles; Daniel Mendoza; James Lopez;
Keith Horeczko; Mustaffa Hassanzai; Joseph Gryder;
Thomas Dawson; Jing Choa; Steven Beumer; Criselda
Pedro; Marty Cotwright; Phillip J. Wright; Thomas W.
Stone; Alex A. Pozo; Richard Mendoza; Rebecca Martinez;
Hal Dexter Jones; Randy Hoffmaster; Jesus Hernandez-
Soto; John J. Hatfield; Rebecca Martin; David Harrison;
Matthew Fleming; Michael W Dunn; Howard Chan; Ernest
Avila; Fred Tredy; Brent Josephson; Carlton Jeter; Jose D.
Hurtado; Michael Hofmeyer; James Choi; David Sanchez-
Soissons; John Licata, Jr.; David Lin; Josephine Mapson;
Salvador Martinez; John M. Ray; Brodie Seagrave; Stephen
Showler; Gregory Elias Trejo; Todd Costello; Jose Delgado;
Charles Dickinson; Alma Burke; Salvador Flores; Sean
Hansen; George Leiva; Louie Lozano; Georgia Odom; Alan
Parra; Daniel Putz; Jose Salazar; Catherine Rymzsa Leon;
Darren Stauffer; Rosa A. Torres; Teddy Amstone; Carlos
Barrios; Maria Muro; Josue Merida; Michael Woodings;
Donovan Michael Lyons; Earl Williams; Charles Urso;
Heidi Stoecklein; Maurice Stewart; Daryl Scoggins; Rodney
Rodriguez; Kyle B. Remolino; Paul Mosley; Armando
Monarrez; Samer Issa; Paul Hong; Raymond Galluccio;
Juan Arroyo; Donald Estrada; Randall Cordobes; Ryan
Bellows; John Ayala; Richard Acosta; Jason Wesley; Brent
Johnson; Samnal Hong; Rosemelinda Gutierrez; Fidel
Gonzalez; Randy Garcia; Joe Flores; Ferdinand Faustino,
62 CAMPBELL V. CITY OF LOS ANGELES
Jr.; Corinne Ernst; Manuel Delgado; Daniel Davis; John
Caraveo; Michael Boylls; Doug McCombs; Antonio Martin;
Ryan Marshall; Hector Lomelin; Victor Perez; Martin
Perello; Michael Pavelka; Ricardo Oliva; Boris Oliva; Steve
Nunez; Michael Morales; Bill Miller; Edward Tsai; Erik
Sundstrom; Charles Strong; Charles Spicer III; Eric Spear;
George Rock; David Solis; Gary Shanahan; Richard Sauer;
Paul Sanfillipo; Teri Robinson; Miguel Gutierrez; Brian
Zavala; John Zambri; Raymond Valois; Ray Robinson; Leon
Ortega; Kimberly Mole; Sean Laule; Lashawna Pugh; Guy
Juneau; Brian Joachimstaler; Damon Hogan; Michael Flynn;
Alfredo Flores; Marie Farrell; David M. Escoto; John
Chrispens; Leroy Block; Danny Shry; Kristopher Rollins;
Alfonso Reyes; Robert Orlando; Steve Morris; Roger
Morgan; Christopher Merrin; Craig Markel; Jeffrey
Anderson; Ruben Martinez; Andre Louis; Jeanette
Lawrence; Gonzala Lara; Michael Kozak; Lyle P Knight;
Michael Hall; Jimmy Grayson; Alejandro Galvan; Hector
Esparza; Joseph Dudas; Keith Davis; Jack Davenport, Jr.;
Timothy Colomey; George M. Castro; Warner A. Castillo;
William O. Batista; Michael K. Barz; Siamone
Bangphraxay; Ruben Arellano; Michel A. Kozak; Alan
Ramirez; Dwayne Wilson; Chris Scott; Luis Reyes; Juan
Santos; Danny Odom; Stephen Merrin; Garry McQueen;
Christopher McPheeters; Ben McPheeters; Kevin Lowe;
William Larkin; Ricky Johnson; Richard Hoefel; Robert
Harris; Gerardo Gutierrez; Jaime Gonzalez; Consuleo
Gonzalez; Steve Garcia; Gary Ferrato; Ruben De La Torre;
Ronald Cade; David Berumen, Jr.; Roy Ballesteros; Ashur
Agena; Eri Poss; Marc Pooler; Carlos Velez; Michael
Mitchell; Telly Epperson; Francisco Diaz, Sr.; Mario
Arrizon; Christian Urbina; Richard Tamez; Richard Ramos;
Randy Yoshioka; Carlos Sutton; Clancy Maihori; Amber
McCallum; Gerald Legaspi; William Flannery; Jose De
Leon; Lenning Davis III; Jose Covarrubias; Trevor Ziemba;
CAMPBELL V. CITY OF LOS ANGELES 63
Jason Witt; Constance White; Sonya Tiefenbacher; John
Stieglitz; Eugene Smith; Gabe Rodriguez; Luis Rodarte;
Patrick Rimkunas; Edgar Ramos; Roseanne Parino; Joseph
Avila; George Selleh; Ignacio Maurillo; Maria C. Marquez;
Robert Lona, Jr.; Hsin-Yi Lo; Yin Y. Leung; Charles J.
Garcia; David M. Fatool; Nelson Enamorado; Jason Curtis;
Henry Covarrubias; Eric Campos; Anthony Ares; Pamela
Ventura; Suzanna Lowry; Chris Giargiari; Matthew
McNulty; Esteban Olivares; David Morales; Pedro Llanes;
Shondie Jackson; Ted Reyland; Steven Ralph; Enrique
Chavez; Elvis Hernandez; Tarek Ismail; Marcela Garcia;
Steven Angulo; Robert Vargas; Carla Taylor; Christopher
Razo; Jonathan Tippet; James Hagerty; George Goodyear;
Emily Delph; Timothy Crabtree; Andrew Buesa; Ricardo
Verduzco; Sandra Zamora; Carl E. Taylor; Christina L.
Reppucci; Jesus Garcia; Scott Fairchild; Ricky Brown;
Johnny Garcia; Felipe Benavidez, Jr.; Eddie Badillo; Cheryl
Amour; Jose Vazquez; Terence Turner; Maria Tippet;
Arlene Padilla; Peter Verschueren; Ruben Quintanar; Johny
Onyshko, Jr.; Peter Mah; Teresa Lincoln; Walter Hanna;
James A. Erwin III; Jorge De Los Reyes; Gregorio R. De La
Rosa; Miguel A. Contreras; Nestor D. Ayson; Lilia Velasco;
Darren Scira; Paul R. Sciarrillo, Jr.; Joel J. Ruiz; Andrew
Rowe; Robert Rodriguez; Ray L. Rodriguez; Eric Obrecht;
Lizabett Mesa; Peter M. Lopez; Myra M. Kellum; Timothy
H. Hope; Joel Hernandez; Orlando T. Green II; Michael
Gannon; Celeste Dula; David H. Chung; Jorge A. Cervantes,
Jr.; Robert A. Canizales; Daniel J. Calderon; Robert A.
Brophy; Lonya C. Britton; Jorge L. Arellano; Ricardo
Acosta; Benny Abucejo; Alfredo Delgado; William Kipp;
Elbert W. Hughes, Jr.; John Hankins; Jeri De La Torre;
Antonio De La Torre; John P. Castillo; Jesus Zaragoza-
Nunez; Van Thompson; Susan R. Solley; Eric M. Reade;
Bridget Pickett; Sean Patcheak; Eloy Navarro; Michelle
Lopez; Debbie Lopez; Jean L. Jimenez; Todd Holmberg;
64 CAMPBELL V. CITY OF LOS ANGELES
Hugo Fanfassian; Lifernando Garcia; Chriatian J.
Christensen; Dino Campodonico; James Agnole; Timothy
B. Stack; Marsha Reyes; Robin Petillo; Richard Parks; Danh
Ngo; Tina Matsushita; Marvin Sigfrido Mancia; Scarlett M.
Nuno; Carlos Zaragoza; Fabio Taglieri; Thomas Ty Lo;
Stephen Wilson; Robert E. Wade; Paul Rumer; Paul A.
Ricchiazzi; Laura Preasmyer; Jeff S. Nolte; James Lumpkin;
Ryuichi Ricky Ishitani; Victor E. Fain; Eddie Diaz; Mario
Cubillos; Rosalyn E. Clark; Jefferey Booker; Michael
Beloud; Thomas A. Willers; Raymond Terrones; Larry
Oliande; Mark Maldonado; R. Maggie Luquin; Carlos
Lozano; Tim M. Lai; Tai Kingi; David L. Hovey; Samuel
Davis; Mark R. Cronin; Anthony Puchi; Michael
Munjekovich; David A. Loera; Steven Lecours; Ronald G.
Lopez; David R. Ortiz; Alex Delieuze; Diane Hawking;
Patrick L. Murphy; Charles Surh; Ernest L. Sparkman;
Donald Singer; Michael James Paris; Joseph Oseguera;
Joseph Mueller; Mario Morales; Michael Miracle; William
Joyce; Alicia Maria Hollenback; Thomas A. Burris; Robert
Bermudez; Cynthia Bello; Rudy Avelar; Esther B. Vasquez;
Kevin E. Love; Craig Allen; Erick Yepes; James Wallace;
Gene Sur; William Romanelli; Randy Rico; Huy Quach;
Brian L. Preston; Andrew A. Paredes; Kent Lau; Christopher
Ralph Landry; Joe Kim; James Alan Harper; Angel Miguel
Guerra; Rebecca Levy Gallegos; Jorge De Jesus III; Jeffrey
D. Collado; Camille R. Armstead; Marcello Sabbatella;
Leroi O’Brien; Gerardo Morales; Leonard Miller; Timothy
C. Ledingham; Frank Dominguez III; Troy S. Abordo;
Hector Aceves; Julio Alfonso; Arnel Asuncion; Andre
Wright; William Arthur Segee; Jeffrrey B Pailet; Roger
Michel; Richard R. Larson III; Paul Hendry; Carmen M.
Gutierrez; Steven Grimmer; Efrain Contreras; Peter M.
Cabral; Kristen Yeager; Raul Ramos; David Nunez; Philip
Steven Clarke; Karolin Clarke; Adrian Gonzales; Mark
Anthony Preciado; Byron Anthony Barnes; Michael
CAMPBELL V. CITY OF LOS ANGELES 65
Estrada; Cezar Orozco; David James Hance; Federico Celis;
Ramon Hernandez; Vaotupua Sefo Feula; Gerry R.
Chamberlain; Matthew Lee Stuart; Philip James Ruiz; Juan
Paz; Chatherine M. Sobieski; Paul Richard Bernd; Nicholas
A. Titirigg; Richard McCauley; Walter A. Leiva; Craig
Kojima; Eric Fukute; Gilbert Escontrias; Carlos Escobar;
Clint S. Dona; Eric T. Briggs; Casey W. Cox; Anthony
Gonzalez; Omar Veloz; Darius Lee; Edward J. Kim; Alicia
Cordona Gilmer; Alan W. Gilmer; Blaca E. Desormaux;
Nadya P. Bennyworth; Ronald E. Weaver; Jonathan Daniel
Roman; Mark Miraglia; Milan A. Ayers; Steve W. Griffin;
Martha Plata; Delaney Jones; Michael Apodaca; George
Thomas Wilson, Jr.; William B. Limtiaco; Kevin Dunigan;
Rex S. Wells; Deen Alcaraz; Lawrence Harold Mullaly;
Richard M. Wells; Peter Paul Acosta; Merri Dallas; Mitchell
Dan Lowlen; John F. Martinez; Anthony W. T. Kong; Carlos
Alberto Ocegueda; Ramon Martinez; Joshua Nicholas
Riggs; Travis Kupka; John Hovig Jizmejian; Michael D.
Sledd; Carlos Medina Valdez; Richard Mark Carney;
Timothy John Wienckowski; Alma Angelina Skefich;
Rafael R. Mora; Mario Jacinto; Steven Gus Juarez;
Stephanie L. Kraychur; Robert Joseph Crupi; Theodore
Robert McHenry; Rhonda Howard; Ray Nimn Guerrero;
Joshua Daniel Sewell; Angela Nicole Wittman; Sean Patrick
Hart; Rachel Lynn Rodriguez; James C. Stoa; Ismael
Contreras; Frank Ciezadlo; Sheila Congboy Rizzolo;
Theresa Maria Stanford; Sonia Banuelos; Ruben Cardenas;
Celia Komathy; Jeff Chiantaretto; Louis E. Lozano; Todd
Baldwin; David Bambrick; Robert J. Bishop; Alicia Elliott;
Darrell Hinson; Zoutan Mako; Mark Guardado; Arthur
Antonio; Joshua Chong; Kelene Dale Gibson; Miguel
Gomez; Michael Chapman; James Zourek; Brian Gingras;
Teresa M. Velez; Dennis J. Duran; Brian Thayer; Art
Talamante; Todd Chaney; Sandra J. Carlisle; Corey Dillard;
Trasia R. Figueira; Carlos M. Figueira; John Collyer; Kevin
66 CAMPBELL V. CITY OF LOS ANGELES
B. Study; Matthew Calleros; John B. Wilson; William Perez;
James Townsend II; Vincent Aguirre; James M. Kaiser;
Nicholas Rothemich; Robert Smey; Aaron Andrew Fougere;
Anthony Charles Hotchkiss; Anthony F. Saenz; Michael
Johnson; Brett Robinson; Blake Budai; Talya Andrel Higgs;
David A. Akins; Joseph McDowell; Maria E. Heissel;
Rogelio Perez; Andy A. Azodi; Pamela Green; Hurley Glenn
Criner II; Daniel R. Del Valle; William J. McDonald; Sean
Dempsey; David Krumer; John Brett Hayes; Ron Berdin;
Francisco Javier Lopez; Christopher No; Steve Park; Joel
Perez; Mike Richardson; Marie Tucker; Ya-May Christle;
Roland J. Ramirez; Francisco Banuelos; Steven E. Johnson;
John E. Campos; Gilberto Gaxiola; Frank Higareda; Zoutan
Mako; James C. Grace; Sean M. Karmody; Christian H.
Wecker; Stephen Nassief; Renee McAlonis; Jesse J. Estrada,
Jr.; Daniel Logan; Patricia L. Blake; Greg Ortiz; Clinton T.
Popham II; Guilermo Henry Mixer; Mark Allen; Stephen F.
Slinsky; Ronny C. Mosley; David Hernandez; George
Melvin McNeill; Manuel Ray Zapata; Andreas An; Gloria
Jean Wood; Oscar Ontiveros; Michael Joseph Barrios; Perry
Miguel Alvarez; A. J. Debellis; Victoria Collete Debellis;
Wendi Leigh Berndt; Jeffrey John Martin; Juan Manuel
Contreras; Donald Ernest Muniz; Rick Michael Rafter;
Adrian Alexander Rios; Bryan Gary Gregson; Anthony R.
Ochoa; Christopher Wayne Allen; David Alfredo Navas;
Ignacio Rojas; Stephen Michael Musso; Orlando Martinez;
Mark Pravongviengkham; Mitchell Allen Norling; Florence
Estella Johnson; William F. Willis; Mary J. Fencl; Howard
Choy; Juan Alfredo Ceja; Derek Richard Mousseau; Kathy
Joyce Simpson; John Dennis Carey; Lawrence Phillip Jones;
Pedro Zapata Reyes; Ralph Edward Emard; Philip Anthony
Walters; Bradley Warren Mossie; Darrell Edward Sancho;
Gregg Arthur Jacobus; Robert Arellano; Ian Carbonell;
James Nicholas Rivera; Scott Edward Thielman; Douglas R.
Long; Richard Antonio Lugo; Pedro Torres; Jesus David
CAMPBELL V. CITY OF LOS ANGELES 67
Flores; Andy Joshua Leuridan; Jose Antonio Arellano;
Gerardo Hernandez; John Elio Moreno; Fred L. Williams;
Dewayne Davis; Joyce Ann Davis; Antonio Zamora;
Charles Kevin Blomeley; Christina Marie Higuera; Timothy
John McLaughlin; John Manuel Calzada; Bryan Harold
Millner; Cory Phillip Meisner; Patrick Vincent Roman;
Anthony Shane Solis; John Walter Davis; Bruce Parnell
Stallworth; Brett Deoliveira; Dwight Christopher Nolan;
Manuel A. Perez; David Manuel Romero; Clement Ruben
Toscano; Paul Fedynich; Martin Robles; Tony Im; Jorge
Martinez; Alan C. Henry; Brian Eric Brown; Wayne Albert
Devey; Gregory Alan Glodery; Gilbert Pedregon; Lanita
Elias; Paul Larry Skinner; Doreen Wilson; Osvaldo Ozzie
Delgadillo; David Miner; Richard Ramos; Malcolm A.
Thomas; Karen Crawford; Eric Christopher Johnson; Cari
M. Long; Victor M. Eguez; Michael Villareal; Eric
Alexander Melendez; Roy Reza, Jr.; Tony Di Paolo; John
Carlo Blondo; Joseph Pollack; Michael Christopher
Alexander-Fuller; Kerry Jon Suprenant; Julio Cezar
Martinez; Angel Sambrano; David Alan Burrus; Francisco
Eduardo Dominguez; Steven Frederick Gross; John X Vach,
Jr.; Thomas Marvin Redshaw; Aldwin Vicencio; Julie R.
McInnis; Brent A. Smith; William Waldo Sanders; John
Stephen Enos; Elizabeth Luz Gudino; Jose Luis Padilla;
Ellen Helene Cameron; Paul Joseph Wenter; Hector Manuel
Urena; Daniel Anthony Suarez; Luis Angel Santiago, Jr.;
Richard Philip Perez; Bradley Coulter Nielson; Richard
Wayne Lockett; Thomas S. Lee; David Allen Javier; Susan
Grizelda Inverno; Shawn Ryan Holguin; Thomas Carl
Gustafson; Cheri Marie Doolittle; Jamal Esam Dawoudi;
Medrardo Carranza; Hector Steven Carbajal; Antonio
Vargas; Brent W. Riederich; Danny Steve Mendez; Gustavo
Ariel Martinez; Cesar Rene Gonzalez; Gil James Cardinez;
Samuel Joseph Briggs; Manuel Andujo; Richard Lance
Adair; Bonnie Lynn Lehigh; Brian James McDonald; Travis
68 CAMPBELL V. CITY OF LOS ANGELES
James Curtin; Mark Stephen Hubert; Charles Dwight
Thomas; Patrick Shepard Robinson; Spiro John Roditis;
George Timothy Leonard; David Ruben Cordova; Eva Jean
Perry; Juan Gabriel Aguilar; Oswaldo A. Pedemonte; Sergio
Dario Driotez; Vincent Neglia; Gerald M. Tomic; John
Poland; Rudy Barrigan; Daniel M. Drulias; Corey Harmon;
Ginger Harrison; Eric Lee Windham; Allen M. Kamal; Jim
Tumbeird; Robert Alvarado; Gary Sales; Taylor Jordan
McLaws; Felicia Spring McAdams; Sheldon J. Williams;
Esther Nyape Reyes; Juan Octavio Reyes; Thomas Ewell
Bibbs; Enrique Jurado; James Deric Carroll; Adam
Niebergall; Antonia Serna; Thomas George Ralph; David
John Hopkins; Sergio Ivan Sanchez; David Gene Ross; Jose
Manuel Herrera; Kenneth Michael Snowden; Angela Doren
Wienckowski; Victor Samuel Medrano; Brian Kelly;
Stanley Alvin Kane; Jeffrey Campagna; Bret Andrew
Banachowski; Leah Marie Baxter; Gerard Joseph Gibson;
Teresa Y. Alonzo; Paul Sherney Williams; Adam Sockis
Moore; Brian Jeffrey Campagna; Amie A. Guardado; Mark
Austin Johnson; Sean Ramon McGee; Luis Enrique Jurado;
Annissa Elaine Harsma; Gary Eugene Ross; Arthur Lee
Simms, Jr.; Walter O. Lopez; Jae Hyun Sung; Eugene
Sebatian Olea; James Craig Ferrell; Hector Guzman; Jerome
Calhoun; Joseph Lee Gonzalez; Steven Douglas Sieker;
Michael James Harrington; Michel Bonilla; Joe Quezada;
Ricardo Gutierrez; Shane David Bua; Carlos Rodriguez;
Timothy Jerome Morris; Kenneth Lee Price; Tyrone Roberto
Acosta; Joseph Henry Cruz; William Mirza Simonoff; Louis
Eduardo Marin; David Houlihan; Sophia Renee Castaneda;
Christy Madera Chavarria; Maricela Ibanez; Bruce Leland
Coss; Kathy K. Roditis; Mark Darin Lauderdale; Nguyen T.
Do; Juan Carlos Rodriguez; Luis Michel Bonilla; Juan Israel
Zendejas; Lisa Michelle Kelly; Matthew William Jones;
Benjamin David Gutierrez; David James Craig; Rudolph
Rivera, Jr.; Enrique Robledo, Jr.; John Ammons; Arturo
CAMPBELL V. CITY OF LOS ANGELES 69
Mares; Roger I. Watson; Veronica Padilla; Anthony Green;
Luz Elba Montero; Unneyung Kevin Ree; Willard David
Thomason; Brian Michael Corwin; Michael Thomas Judge;
Alan C. Henry; Jennifer Susanne Howlett; Eric Alan Hurd;
Tom Leo Chavez; Jimmy Chong; Shawn David Crabbe;
Teresa L. Evans; Jennifer Nicole Blomeley; Thomas
Anthony Bojorquez; Arthur Anthony Castro; Evannry Maria
Arocho; David Gibson Ashley; Lance Adam Blake; Sally
Elizabeth Santamaria; Feliciano Tyrone Wilson; Claudia
Carmen Castruita; Nathan Paul Ewert; Ignacio Guitnon; Eric
Hernandez; Lisa Marie Duran; Daniel Adam Garcia;
Michael Joseph Sullivan; Larry Brown; Teresa Lynn
Anderson; Howard D. Mathews; James J. May; Michael
Kilpatrick; Michael Lopez; Mark Manuel Mascareno;
Kennith Joseph Ferro; Valendine Scot Flores; Ronald
Harrell; Adam Senall Green; Eric Sean Mollinedo; Steve
Soon Chung; Edan Michael Sheklow; Bobby Romo; Omar
Lamont Davis; Crystal Nova Davis; Matthew Kevin Murray;
Maligi Agatonu Nua; Oscar Alejandro Ordonez; Jeremy Jay
Paciokowski; Leo Perez; Leopoldo Rey; Corbin Joseph
Rheault; Arthur Reyna; Joaquin Rodriquez, Jr.; Jose Romo;
Sergio Navarro Salas; Diana M. Salcido; Robert Louis
Schlesinger; Darius Ian Trugman; Christopher Albert
Vasquez; Sharlon Kojro Wampler; David Wayne Yep; Ryan
V. Icagan; Michael Anthony Thompson; James Joseph
Dickson; David Rodriguez; Carlos Enrique Torres; Jonathan
David Pasillas; Adrianna Marie Prado; Ivan Guillermo;
Donni Lynn Ellison; Freddie Robert Ackerley; Joseph
Pollack; James Michael Bland; Garardo Loza; Adam
Benjamin Loo; Kevin L. Giberson, Jr.; Dong S. Park; Steven
Aguilar III; Michael W. Schneider; Raymona K. Moussa;
Francois Joseph Wise; Diana Zamora; Carlos Alberto
Figueroa; Cesar Ignacio Guitnon; Ruben Orlando Vega;
Marlon Gomez; Oscar Alejandro Castellanos; Leeann Jones;
Omar Franco; John Thomas Strasner; Robert Joseph
70 CAMPBELL V. CITY OF LOS ANGELES
Martinez; Luis Navarette; Troy Orion Zeeman; Teresa
Renae Pikor; Darlene Myree Shelley; Michael Clark Blake;
Jorge Arturo Alfaro; Thomas Anthony Garcia; Jesse Joe
Reyes; Juan Carlos Chavez; Brian Wayne Wilson; Richard
J. Knopf; Dennis John Shaw; Raymond G. Wong; Gisselle
Espinoza; Martin M. Espinoza; Brian Anthony Harris; Marc
Michael Ferris; Brent Alan Smith; Michael Patrick Flannery;
Theodore Jara; Ezequiel Barraza; John Manuel Cuenca;
Christopher Smythe; Mario E. Figueroa, Jr.; William
Chester Lantz; Miguel Alfonso Terrazas; Jose Lujan Reyes,
Jr.; Douglas Daniel Roach; Joseph Eric Chavez; Victor
Manuel Arrelano; Curtis L. Davis; Berzon Angcao Distor;
Mark Brian Stratton; Michelle Rachel Eskridge; Jeffrey
Brian Beacham; Jeremy Marshall Olson; Eric Craig
Williams; Peter John Jack; Magdaleno Gomez; Sam Saul
Salazar; Craig Stephen Adams; Gregory Coronado Trevino;
Rudy Jose Quintanilla; Phillip Lawrence Miller; Ray John
Martinez; Raymona Villalobos; Ronald Wayne Gray; Gary
Edward Leffew; Ara Vidal Hollenback; Carlos Olmos; Steve
Sainz; Richard Keith Larimer; Salvador Lizarraga; Gabriel
Rivas; Jeff Paul Quinton; Marco Antonio Munoz; Wayne
Kerry Guillary; Benjamin Martin Tran; Todd H. Bracht;
Lester M. Freeman; Spendora Rene Hadnot-Ricks; Cedric
Raynard Ingram; Young Woo Jheon; Leonard Roland Perez;
David Nabil Habibi; Timothy Jason Bohac; Sonny Kynoi
Patsenhann; Steven Costas Kotsinadelis; Oscar Alberto
Garza; Phillip Henry Zalba; Gilbert Sanchez; Gina M.
Bracht; Michael Solis; Samuel Adam Arnold; Edward
Beltran Zamora; Laura Gerritsen; Caesar David Gonzalez;
Darren Hill; Brian W. Tyndall; Cesar I. Guitron; Kevin W.
Pierce; Sidney Dean Hodges; Lisa M. Duran; Timothy R.
McRath; Adrianna Prado; Cesar Mata; Taaj Muhammad;
Roy Reza, Jr.; Jeffrey S. Mulheim; David Riddick; Francisco
Macias; Omar L. Davis; James Franciscus Martinez;
Alfonso Cisneros; Alex Hoffmaster; Patricia A. Stout; Jaime
CAMPBELL V. CITY OF LOS ANGELES 71
Chacon; Stephen Yurochko; Timothy Hwan Kim; Edward
Richard Petterez; Robert Carlos Celaya; James A. Kukkok;
Robert Michael Villalobos; Edward N. Acosta; Stacie Lynn
French; Randolph Clifford Agard; James A. Stout; Daniel
Garrett Thompson; Kenneth Steven Bartnicki; Scott Donald
Brown; Randy Scott Goens; Keely C. Coleman; Jason
George Jacobson; Larry Lee Johnson; Jeramie Andrel
Schulze; Dontae Phillips; Manuel Esqueda; Luke Baxter
Walden; Pedro Topete Cabunoc, Jr.; Miguel Angel Nunez;
Del Jester; Audrie Parrillo; Eric Wayne Holyfield; Lori A.
Lee; Ronald F. Grijalba; Michael B. Calhoun; Dino Angelo;
Kurt D. Thurston; Francisco Carrillo; Mario Aldo Parrillo;
Frank Preciado; Veronica Inez Saucedo; Scott Michael
Vostad; Lolita Bermudez; Michael Tolmaire; Tamara A.
Baumann; Juan P. Silva; Silvia Corral; Gabriel Holguin;
Vincent Henson; Teresa Zundel; Jim Tumbeiro; Edward L.
Kellogg; Benjamin E. Aguilera; Samuel Y. Cho; Dennis
Nguyen; Hyong S. Perkins; James P. Moon, Esquire,
Attorney; Jonathan M. Kincaid; Rufus R. Ward; Ronnie M.
Romero; Edward Heredia; Joseph Adragna; Hector Ibarra;
Bennie Boatwright; Kevin W. Smith; Matthew Casalicchio;
Spree Desha; Divinity; Eric Jennings; Steve Grimes; Heath
Adams; Robert Brogelman; Jay Vargas; James Edwards;
Luis Delacruz; Robert Worrall; Robert Scutaru; Lorna
Cavin; Peter Ponich; Robert Olmos; Augusto Mariano;
Jeremy Fink; Donald Bender; Hector Chaidez; Alfredo
Rosales; John Long; Mika Kuroiwa; Christopher Cortijo;
Habib Munoz; Deshaun Hall; Dominick Fuentes; Chris
Kliever; Osvaldo Gonzalez; Sandra Garcia; Ralph Alvarez;
Rafael Tobar; Timothy Tully Scott I; Kenneth Santolla;
David Perry; Ruthann Scott; Alexander Villalpando; Marian
Bausley; Daniel Rios; Gustavo Camacho; Jonathan Miller;
Susan Herold; Patrick Higa; Brian Peel; Arca; Salvatore De
Bella; Roy Agbanawag; Earnest Williams; Steve Morales;
Rudy Gonzalez; Michael Quezada; Ricardo Rivera; Alan
72 CAMPBELL V. CITY OF LOS ANGELES
Kreitzman; Steven Lemmer; Christopher Green; Claudia
Mendoza; David Brandstetter; Sunny Sasajima; Michael
Graham; Horacin Aguirre; Suzanne Vukovic; William
Monahan; Clinton T. Weir; Edgar Cruz; John E. Redican;
Pernell Taylor; John Armando Warren; Hugo Trujillo; Jesus
Ramirez; Dennis P. Kilcoyne; Keith H. Spencer; Caesar
David Gonzalez; James T. Willis; Binh Nguyen; Charles
Giuliani; Grace Garcia.
Defendant-Appellee: City of Los Angeles.
Mata v. City of Los Angeles, No. 16-55002
Plaintiff: Cesar Mata
Plaintiffs-Appellants: Richard D. Alba; Jose Angulo;
Francisco Arredondo; Jay G. Batson; Albert Bertieri; Jeffrey
Burnley; Robert Calzadillas; Jose Carias; Lucen A. Daigle;
Miguel Dominguez; Jess H. Faber; Austin B. Fernald; Mario
Flores; Daniel Garcia; Joseph Getherall; Steven Gomez; Eric
Hermann; Nahan R. Hernandez; Patrick A. Higa; Gregory
Jacks; Ruben S. Jimenez; Allan Krish; Irma E. Krish; Darryl
L. Lee; Rafael Lomeli; Michael McLann; Alonso Menchaca;
Bryan Mivglaz; Trisha Mivlgaz; Abel Munoz; Donald R.
Ornelas; Dana Ouiatt; Young W. Pak; Lee Perry, Jr.; David
Petersen; Michael R. Peterson; Ryan S. Powell; Pablo A.
Rivera; Henry Romero; Manuel L. Rumion; David Sabedra;
Darrell Sanomo; Brian T. Schneider; Ruthann Scott; Sven
Steffensen; Shad Stilkey; Patricia Suarez; Jonathan Sugam;
John Talbot; Fred A. Tredy; Adan Urena; Onam Urena;
Miguel Vaca; Miguel A. Vallejo; Rita Vallejo; D. Michael
Vrolyks; Neil Warren,; Matthews O’Williams; Joe R. Witty.
Defendant-Appellee: City of Los Angeles.