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MARC A. PILOTIN
Regional Solicitor
KATHERINE E. CAMERON
Associate Regional Solicitor
HAILEY R. McALLISTER (Cal. Bar No. 326785)
Senior Trial Attorney
KARLA MALAGÓN CASTILLO (Cal. Bar No. 320505)
EDUARD R. MELESHINSKY (Cal. Bar No. 300547)
Trial Attorneys
UNITED STATES DEPARTMENT OF LABOR
Office of the Solicitor
90 7th Street, Suite 3-700
San Francisco, CA 94103-1516
Telephone: (415) 625-7744
Fax: (415) 625-7772
Email: meleshinsky.eduard.r@dol.gov
Attorneys for Plaintiff

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

Case No. 2:22-cv-00583-WBS-

JULIE A. SU, Acting Secretary of
Labor, DB
United States Department of Labor,
ACTING SECRETARY’S REPLY IN
Plaintiff, SUPPORT OF MOTION TO MODIFY
THE SCHEDULING ORDER
v.
Date: November 17, 2023
Time: 10:00 a.m.
SL ONE GLOBAL, INC., et al. Judge: Hon. William B. Shubb

Defendants.
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At the heart of Defendants’ opposition to the Acting

Secretary’s motion is the unfounded belief that, if the Court
denies the Acting Secretary’s motion, the Acting Secretary will
not be able to recover wages for employees not named in Exhibit A
to the Second Amended Complaint. This is not so. As explained in
the Acting Secretary’s opening brief, Exhibit A does not define
the scope of this action, which covers all employees subjected to
Defendants’ ongoing violations of the FLSA through the present, as
alleged in the Acting Secretary’s Second Amended Complaint.
Indeed, the Acting Secretary may pursue back wages for employees
not named in her complaint under Section 217 of the Fair Labor
Standards Act (“FLSA”). Defendants cite no cases where the Acting
Secretary alleged ongoing FLSA violations, sought to name
employees affected by the alleged ongoing violations under Section
216(c) of the Fair Labor Standards Act, and was denied leave to do
so. Defendants do not distinguish or engage with any of the case
law cited by the Acting Secretary in her opening brief explaining
the liberal standard for such amendments under both Federal Rule
of Civil Procedure 15 and 16. This is because the case law does
not support Defendants’ position that, when the Acting Secretary
alleges ongoing FLSA violations, she cannot identify additional
employees who suffer from said ongoing violations under Section
216(c).
As a practical matter, all employees covered by the action
cannot be added to Exhibit A until discovery is complete, and
Defendants have fully complied with their duty to supplement under

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Federal Rule of Civil Procedure (“FRCP”) 26(e).1 To avoid

unnecessarily burdening the Court with motion practice on an
otherwise routine issue, the Acting Secretary moves to set a
deadline to name employees for whom she seeks liquidated damages
without filing successive motions to amend Exhibit A and to modify
the scheduling order. The Acting Secretary spent months attempting
to negotiate an agreement with Defendants to accomplish this goal
without using this Court’s resources which Defendants ultimately
rejected on June 28, 2023.
Taking Defendants’ argument to its logical conclusion, the
Acting Secretary must file a separate complaint to pursue back
wages and liquidated damages under Section 216(c) of the FLSA every
time she seeks to add employees' names to Exhibit A in cases where
she alleges ongoing violations. Defendants would then have the
Acting Secretary simultaneously prosecute two or more actions
regarding the same operative facts and FLSA violations: the
original action under Sections 216(c) and 217 in addition to every
subsequent complaint for later-identified employees’ liquidated
damages under Section 216(c). Defendants’ position lacks any basis
in law and is inapposite to the “just, speedy, and inexpensive
determination” of this and any other FLSA enforcement action
brought by the Acting Secretary. See Fed. R. Civ. P. 1.
I. Defendants Fail to Address Case Law Specific to the
Intersection of FRCP 16 and Section 216(c) of the FLSA.
Defendants argue that allowing the Acting Secretary to seek

1 Here, Defendants have yet to supplement production through the

present or respond to the Acting Secretary’s inquiries regarding
supplementation. Meleshinsky Decl. ¶ 10.

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liquidated damages for additional employees by expressly naming

them in Exhibit A will “force Defendants to defend against a new

list of employee-violations with only 30 days’ notice before

discovery closes.” Opp. 11:16-18. However, Defendants ignore that

the Acting Secretary has unique authority under Section 217 of the

FLSA to recover minimum wages and overtime premiums as restitution

without identifying any employees by name in her complaint. See

Marchak v. Observer Publications, Inc., 493 F. Supp. 278, 280

(D.R.I. 1980) (“[C]ourts are in unanimous agreement that the

Secretary of Labor is vested with exclusive authority for filing

a suit under section 217 to restrain FLSA violations.”).

As Chief Judge G. Murray Snow explained in his opinion
granting the Secretary’s motion to modify exhibit A and the
scheduling order deadline for the same under Rules 15 and 16 in
Secretary of Labor v. Valley Wide Plastering Construction, Inc.:
Allowing amendment will not prejudice Defendants nor cause
undue delay. Plaintiff's Complaint seeks relief under two
separate provisions of the FLSA: 29 U.S.C. § 216(c) and §
217. Section 217 allows the Court to “restrain[ ] ... any
withholding of payment of minimum wages or overtime
compensation found by the court to be due to employees.”
Section 216(c), on the other hand, allows the Court to award
unpaid compensation, including overtime compensation, as well
as “an equal amount as liquidated damages.” Unlike § 216,
which requires that employees be named in the Complaint (or
an equivalent pleading), § 217 does not require that employees
be so named. E.g., Donovan v. Crisotomo, 689 F.2d 869, 875
(9th Cir. 1982); Hugler v. Kazu Constr., LLC, 262 F. Supp. 3d
1032, 1042 (D. Haw. 2017); Donovan v. Univ. of Tex. at El
Paso, 643 F.2d 1201, 1203–04 (5th Cir. 1981). Even if the
Court denied Plaintiff's Motion, Plaintiff could still seek
relief for these same employees under § 217; the only
difference would be that Plaintiff could not recover the
liquidated damages “in an equal amount” pursuant to § 216 as
to employees whose claims fell outside the statute of

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limitations.

2022 WL 2390950, at *3 (D. Ariz. July 1, 2022) (docket citation

omitted). Despite the fact that discovery had closed eight months
prior, Chief Judge Snow found that “[n]o delay will therefore
result, discovery will not need to be reopened, and Defendants
will not be prejudiced” due to the Acting Secretary adding
employees' names to Exhibit A. Id. The Acting Secretary has
collected similar cases where courts routinely grant such requests
out of recognition that the Acting Secretary’s amendment to Exhibit
A is a “technical” matter that does not affect the scope of
discovery. Secy’s Mot. 10:9-11:4. Furthermore, because courts
treat the Acting Secretary’s amendments to Exhibit A as routine,
courts have expressed uncertainty regarding whether such
amendments require leave of court under Federal Rules of Civil
Procedure 15 or 16. Secy’s Mot. at 10:19-11:4. Here, as in Valley
Wide, the inclusion of employees on Exhibit A in no way changes
the scope of this case: the Acting Secretary seeks back wages for
all of Defendants’ employees through the present who have suffered
violations.
Underlying Defendants’ bombast about “mystery” amendments and
“forever extensions” is either: 1) Defendants’ failure to review
the authorities cited by the Acting Secretary regarding Section
217, or 2) Defendants’ cynical attempt to arbitrarily limit
liquidated damages to more recent victims of their wage theft
practices. Regardless, allowing the Acting Secretary to expressly
name employees on Exhibit A for whom she seeks to recover unpaid
wages and liquidated damages will only remove any purported
“mystery.” In addition, permitting the Acting Secretary to amend

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the employees listed on Exhibit A as of right until 30 days prior

to the close of discovery will obviate the need for this Court to
hear successive motions to amend Exhibit A and modify the
scheduling order every time that the Acting Secretary learns of
new employees affected by Defendants’ ongoing FLSA violations.
II. Defendants’ Opposition Underscores the Acting Secretary’s
Diligence in Pursuing Information Necessary to Supplement
Exhibit A.
Defendants argue that the Acting Secretary was not diligent
in seeking to modify the deadline to amend Exhibit A without leave
of the Court. As explained below, Defendants err both in fact and
law.2
A. The Acting Secretary Need Not Burden the Court With
Seriatim Motion Practice to Show Diligence.
Defendants aver that the Acting Secretary should have rushed
to motion practice in the fall of 2022 to modify the scheduling
order setting the deadline to amend Exhibit A. Opp. at 8:27-10:28.
This fails for three separate reasons.
First, where Defendants obstruct the Acting Secretary’s
access to documents and information needed to update Exhibit A,
courts have not required the Acting Secretary to immediately file
motion after motion to amend the scheduling order in order to show
diligence. For example, in Valley Wide, the court granted the

2 Defendants raise a number of misleading or meritless arguments

in their opposition that the Acting Secretary believes are
sufficiently addressed in her opening brief. The Acting
Secretary stands ready to supplement her briefing to respond to
any concerns that the Court believes are material but are not
addressed herein.

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Acting Secretary’s motion to amend Exhibit A and the scheduling

order deadline to do so even after “Plaintiff delayed a year and
half” from “when he was first alerted to the need to amend Exhibit
A” because the delay was attributable to the volume of documents
produced and the defendants’ failure to produce discovery timely.
2022 WL 2390950, at *2; see Acosta v. Wellfleet Commc'ns, LLC,
2019 WL 1284100, at *2 (D. Nev. Mar. 19, 2019) (good cause to
modify Exhibit A amendment deadline where Acting Secretary
“explicitly sought documents that would have revealed the new
employees’ identities prior to the amendment deadline” and “the
voluminous nature of the documents required additional time to
analyze.”). Defendants cavalierly argue that the Acting Secretary
should have burdened this Court with a premature motion to modify
the scheduling order as early as January 2023 when Defendants
withheld documents. Opp. at 9:14-27. The Valley Wide court
specifically rejected this misguided approach that “would have
been a drain on the parties and judicial resources.” 2022 WL
2390950, at *2. Instead, the Acting Secretary “ensur[ed] that one
Motion included all needed changes.” Id.
Second, Defendants fault the Acting Secretary for seeking to
first attempt to stipulate to a modification of the scheduling
order before burdening the Court with motion practice. Opp. 10:5-
28. As an initial matter, Defendants well know that this District
is and has been burdened with an exceptionally high case load which
underscores the need for parties to attempt informal resolution

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prior to engaging in motion practice.3 In addition to disregarding

the need to try to conserve scarce judicial resources, Defendants
mischaracterize the parties’ negotiations regarding modifying the
Exhibit A amendment deadline in the scheduling order. As detailed
in the Acting Secretary’s opening brief, Defendants repeatedly
refused to provide a clear yes or no as to whether they would
stipulate to modifying the Exhibit A deadline until June 28, 2023.
Secy’s Mot. at 7:4-11, 8:1-7; Declaration of Eduard R. Meleshinsky
(“Meleshinsky Decl.”) ¶ 2.
Third, after receiving Defendants’ first substantive
production of discovery on June 30, 2023, the Acting Secretary
sought to “solidify” her allegations of ongoing violations prior
to moving to modify the scheduling order. See Walsh v. Versa Cret
Contracting Co., Inc., 2023 WL 3570699, at *4 (E.D.N.Y. May 18,
2023). While the Acting Secretary alleged and had reason to believe
Defendants’ violations were ongoing, the Acting Secretary sought
additional confirmation of her allegations of ongoing violations
through various means particularly in light of Defendants’ refusal
to stipulate to a reasonable modification of the scheduling order
on June 28, 2023. Id. at *4 (“Even if Plaintiff knew of some facts
prior to the [] deadline to file the motion to amend, the knowledge

3 See, e.g., House 2023 Judgeship Transmittal Letter from

Judicial Conference of the United States to Hon. Kevin McCarthy
(April 25, 2023), available at
https://www.caed.uscourts.gov/caednew/assets/File/House%202023%2
0Judgeship%20Transmittal%20Letter_McCarthy.pdf; Senate 2023
Judgeship Transmittal Letter to Hon. Kamala Harris (April 25,
2023), available at
https://www.caed.uscourts.gov/caednew/assets/File/Senate%202023%
20Judgeship%20Transmittal%20Letter_Harris.pdf.

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of some but not all facts may simply not be enough to bring a claim
into court under Rule 11.”). Indeed, as Defendants concede, the
Acting Secretary conducted further interviews and—as a result of
Defendants’ obstructionist and dilatory tactics—subpoenaed third
party sources of information to obtain employee pay, time4, and
other information not made available by Defendants. Meleshinsky
Decl. ¶ 3. The Acting Secretary also obtained deposition testimony
from Defendant SMF Global, Inc. under FRCP 30(b)(6) regarding
Defendants’ shared timekeeping and payroll practices which
informed the Acting Secretary’s determination that Defendants’
FLSA violations are ongoing. Id. ¶ 4. While the Acting Secretary
must obtain additional written discovery, including
supplementation of Defendants’ and third parties’ records through
the present, depose additional witnesses, complete the deposition
of SMF Global, Inc, and conduct additional analyses of Defendants’
records, the Acting Secretary’s review of the discovery obtained
from late June 2023 to September 2023 was needed and did confirm
Defendants’ ongoing FLSA violations. Consequently, the Acting
Secretary brought the instant motion to modify the scheduling order
to give a date by which the Acting Secretary may as of right file
an amended Exhibit A with the names of employees affected by
ongoing FLSA violations in consideration of the continuing
violations uncovered and Defendants’ obstreperous tactics, i.e.,

4 Some of the third-party records contain enormous amounts of

data. For example, some of the raw time records obtained from
Defendants’ shared timekeeping provider TimeClock Plus contain
hundreds of thousands of rows and dozens of columns of raw data
in comma separated value spreadsheets, which require significant
time to analyze. Meleshinsky Decl. ¶ 11.

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30 days before the close of fact discovery.

B. Defendants Fail to Address The Acting Secretary’s Argument
that Allegations of Ongoing Violations are Sufficient Good
Cause.
Defendants claim that the Acting Secretary must file a mini-
summary judgment motion for each employee she seeks to add under
Section 216(c) of the FLSA. Opp. 14:1-15. This is not required by
the text of Section 216(c) nor by Federal Rules of Civil Procedure
15 or 16. To the contrary, a number of courts have held that “the
[Acting] Secretary should be permitted to submit a Revised Schedule
A without amending [her] complaint” where she alleges ongoing
violations that could affect employees in addition to those
identified in the initial Exhibit A. Acosta v. Med. Staffing of
Am., LLC, 2019 WL 4307867, at *2 (E.D. Va. Sept. 11, 2019) (citing
Reich v. Great Lakes Collection Bureau, 176 F.R.D. 81–85 (W.D.N.Y.
June 27, 1997)). The cases cited by Defendants in their opposition
at inapposite to the relief sought by the Acting Secretary in the
instant motion.
For example, in Calphalon Corp. v. Meyer Corp., a case cited
by Defendants, this Court denied a motion to modify the scheduling
order to allow the counterclaimants to change the patent number
under which they alleged patent infringement in their complaint.
2006 WL 8458805, at *2 (E.D. Cal. Mar. 13, 2006) (Shubb, J.).5 The

5 The other case cited by Defendants, Swanson v. U.S. Forest

Service, involves claimants who sought to add a claim under an
entirely different statute after the deadline given to do so. 87
F.3d 339, 345 (9th Cir. 1996). As in Calphalon, the court did
not impose a mini-summary judgment requirement and instead
focused on the “inexplicably late filing” of the claimant’s

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counterclaimants argued that they had identified the wrong patent

because of a typographical error that they first realized three
months after responding to written discovery. Id. This Court
rejected that argument because, among other reasons, the
counterclaimants seeking modification of the scheduling order did
not “assert[] that the information necessary for amendment was
unavailable to them at any point, or that a fact uncovered during
discovery caused them to realize that they had asserted the wrong
patent in their counterclaim.” Id.
Unlike the Calphalon counterclaimants, the Acting Secretary
seeks an extension of the deadline to modify Exhibit A as of right
until 30 days before the close of fact discovery because of
Defendants’ ongoing FLSA violations affecting heretofore unknown
employees, not some error or lack of diligence by the Acting
Secretary in the past. See Wellfleet Commc'ns, 2019 WL 1284100, at
**2-3 (holding the Acting Secretary satisfied Rule 16 because she
“explicitly sought documents that would have revealed the new
employees’ identities prior to the amendment deadline,”
“Defendants opposed Plaintiff's discovery,” and “the voluminous
nature of the documents required additional time to analyze.”). As
Defendants concede, the last time they provided employee
information to the Department before their first substantive
production on June 2, 2023 was prior to April 6, 2021. Opp. at
2:17-23. The Acting Secretary provided evidence of the months of
emails, calls, and in-person meeting and conferring from November

motion to amend at the pleading stage for which there appeared

no justification. Id.

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3, 2022 until June 30, 2023 that she undertook to obtain basic
discovery such as Defendants’ payroll records and time records,
including time records from before April 6, 2021 that were not
previously produced. Secy’s Mot. at 5:5-8:20. Defendants correctly
recount that they produced documents and information to the Acting
Secretary “on January 13, March 10, June 2, and June 30, 2023,”
and that this production ultimately totaled over 74,000 pages of
documents and files. Opp. 3:4-6. However, Defendants elide over
their withholding of over 99% of their document production—
including employee names—until Magistrate Judge Barnes rejected
their motion for a protective order on May 19, 2023. Secy’s Mot.
at 7:16-24.6 Thereafter, for the first time in this litigation and
after additional prompting from the Acting Secretary, Defendants
produced employee information on June 2, 2023. Id. 7:25-26.
However, Defendants’ June 2, 2023 production lacked a Relativity
load file, which is critical to reviewing Defendants’ production,
and was missing production for 2022 and 2023 despite the Acting
Secretary clearly notifying Defendants’ that she alleges ongoing
violations. Meleshinsky Decl. ¶ 5. Thereafter, Defendants produced
their Relativity load file and an additional 2,732 pages of
documents and data files. Id. ¶ 6. Because Defendants’ June 30,

6 In rejecting Defendants’ blanket motion for a protective order,

Judge Barnes noted that, as here, Defendants fail to recognize
that the Department has authorities under the FLSA and other
federal statutes that are unavailable to a private party.
Meleshinsky Decl., Ex. A, May 19, 2023 Hearing Transcript at
9:17-21 (“I don't find the briefing the Court would need from
the defense as to why in a government-enforcement action as
opposed to a, two private parties having this type of dispute
why this is necessary in a government-enforcement action.”).

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2023 production remained deficient, as was confirmed during the

August 8, 2023 deposition of SMF Global, Inc., the Acting Secretary
circulated to Defendants a joint statement in support of her
forthcoming motion to compel on September 29, 2023 after further
meet and confer attempts. Id. ¶ 7. Defendants requested an
extension of the Acting Secretary’s original deadline to respond
from October 13 to October 21, 2023. Id. ¶ 8. Thereafter,
Defendants failed to meet the deadline they requested and have yet
to provide their portion of the joint statement as required by
Local Rule 251 almost one month after receiving the Acting
Secretary’s portion and more than eight months after the parties
met in-person regarding these requests, among others. Id. ¶ 9;
Secy’s Mot. at 7:1-5.
Because Defendants continue to violate the FLSA and to
obstruct the Acting Secretary’s access to information necessary to
identify employees affected by Defendants’ ongoing FLSA
violations, there is sufficient good cause to modify the scheduling
order such that she may amend Exhibit A as of right until 30 days
before the close of discovery. Otherwise, as noted previously,
this Court will be burdened with successive motions to modify the
scheduling order and amend Exhibit A every time the Acting
Secretary obtains information regarding additional employees
subject to Defendants’ ongoing FLSA violations.
***
For the foregoing reasons and the reasons stated in the
Secretary’s opening brief, the Secretary requests that the Court
modify its Scheduling Order and extend the deadline for the Acting
Secretary to amend Exhibit A without leave of Court until 30 days

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before the fact discovery cutoff. This will allow the Acting
Secretary to remove any “mystery” as to the employees for whom she
will seek restitution under Section 217 of the FLSA regardless of
the outcome of the instant motion, and ensure that, if she prevails
in this action, all employees will be compensated for the delay in
receiving their wages by way of liquidated damages. See Brooklyn
Sav. Bank v. O'Neil, 324 U.S. 697, 707 (1945) (purpose of FLSA
liquidated damages is “compensation for the retention of a
workman's pay which might result in damages too obscure and
difficult of proof for estimate other than by liquidated damages”).

Dated: October 26, 2023 Respectfully submitted,

SEEMA NANDA
Solicitor of Labor

MARC A. PILOTIN
Regional Solicitor

KATHERINE E. CAMERON
Associate Regional Solicitor

HAILEY R. McALLISTER
Senior Trial Attorney

KARLA MALAGON CASTILLO

Trial Attorney

By: /s/ Eduard R. Meleshinsky

EDUARD R. MELESHINSKY
Trial Attorney

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