Sides et al v. Macon County Greyhound Park, Inc.
Filing
145
ORDER directing that the Court's 66 Memorandum Opinion and Order is MODIFIED to merge the January 5, 2010 Sub-class into the February 4, 2010 Sub-class, resulting in the following classes, as further set out in order; (1) the named plfs Mona Thomas, Ritchie L. Stalnaker, and Judge Weeks-Walker are designated as class representative of the following Rule 23(b)(3) sub-class,hereinafter referred to as the "February 4, 2010 Sub-class", as further set out in order; (2) The named Pl aintiff Keyla Exford is designated as class representative of the following Rule 23(b)(3) sub-class, hereinafter referred to as the "August 9, 2010 Sub-class", as further set out in order; (3) the sub-classes are certified with respect to the following cause of action: Any claims for damages under the WARN Act, 29 U.S.C. § 2101 et seq. against Defendant Macon County Greyhound Park,Inc. (a.k.a. VictoryLand); (4) Attorneys Charles A. Hardin, David A. Hughes, David L. Selby, II, Philip Dale Segrest, Sr., Robert Simms Thompson, James B. Perrine, and John Michael Segrest are designated as class counsel.. Signed by Honorable Judge Mark E. Fuller on 4/3/14. (Attachments: # 1 civil appeals checklist)(djy, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
EASTERN DIVISION
JUDY WEEKES-WALKER, et al.,
Plaintiff,
v.
MACON COUNTY GREYHOUND
PARK, INC.,
Defendant.
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CASE NO. 3:10-cv-895-MEF
(WO – Do Not Publish)
ORDER MODIFYING CLASS CERTIFICATION
On March 15, 2012, the Court issued an order granting Plaintiffs’ motion for class
certification and certifying three sub-classes. (Doc. #66.) The sub-classes were determined
by the dates on which potential mass layoffs in violation of the WARN Act occurred: January
5, 2010, February 4, 2010, and August 9, 2010. (Doc. #66, at 17–18.) On July 6, 2012, the
Court granted Plaintiff’s motion for summary judgment as to WARN Act liability for the
January, February, and August 2010 sub-classes and denying Macon County Greyhound
Park’s (“MCGP”) motion for summary judgment. (Doc. #113.) After the Court certified its
summary judgment Memorandum Opinion and Order for interlocutory appeal, the Eleventh
Circuit affirmed the Court’s grant of summary judgment in favor of the February and August
sub-classes, but reversed and remanded as to the January 5, 2010 sub-class. Sides v. Macon
Cnty. Greyhound Park, Inc., 725 F.3d 1276, 1286 (11th Cir. 2013).
The Eleventh Circuit held that this Court erred in aggregating the January employees
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with the February employees to find a “mass layoff” as defined by the statute. Id. at
1282–83. However, the Eleventh Circuit stated that MCGP violated the WARN Act with the
January layoffs if MCGP expected the layoffs to last six months or less, but then failed to
provide WARN Act notices to the January employees when the February closing converted
their “short-term layoff,” 20 C.F.R. § 639.4, into an “employment loss.” 29 U.S.C. §
2101(a)(6). Upon remand, the Court ordered the parties to submit a status report on the issue
of whether they disputed MCGP expected the January layoffs to last six months or less.
(Doc. #130.) The parties responded by stipulating that the expected length of time for the
January 2010 layoffs was less than six months. (Doc. #131.) As a result, MCGP is liable
under the WARN Act for failing to provide the requisite notices to the employees who were
laid off on January 5, 2010 when the closing of MCGP on February 4, 2010 converted their
short term layoff into an employment loss.
Although the employees who were temporarily laid off on January 5, 2010 are class
members entitled to statutory damages under the WARN Act, they no longer comprise a
distinct sub-class because the January layoff “does not qualify as an independent WARN Act
incident.” Sides, 725 F.3d at 1283. The common question of law or fact as to whether
MCGP violated the WARN Act is the same as for that of the February 4, 2010 sub-class,
namely whether the layoffs, or extended layoffs in the case of the January employees, entitled
the employees to notice and a 60-day waiting period and whether MCGP could successfully
assert the unforeseen business circumstances defense. See 29 U.S.C. § 2101(b)(2)(A). Since
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the Court, and the Eleventh Circuit, have held that MCGP failed to provide notice and a 60day waiting period and that the layoffs were not the result of unforeseen business
circumstances, MCGP is liable under the WARN Act to the January 2010 employees whose
short-term layoffs were converted to an employment loss that entitled them to notice under
the WARN Act. See 29 U.S.C. § 2101(a)(5).
Federal Rule of Civil Procedure 23(c)(1)(C) authorizes district courts to alter or
amend a class certification order before final judgment. The Court finds it necessary to
amend its original class certification order to merge the January 5, 2010 sub-class into the
February 4, 2010 sub-class.
Accordingly, it is hereby ORDERED that the Court’s
Memorandum Opinion and Certification Order (Doc. #66) is MODIFIED to merge the
January 5, 2010 Sub-class into the February 4, 2010 Sub-class, resulting in the following
classes:
1.
The named Plaintiffs Mona Thomas, Ritchie L. Stalnaker, and Judy Weeks-
Walker are designated as class representative of the following Rule 23(b)(3) sub-class,
hereinafter referred to as the “February 4, 2010 Sub-class”:
All employees of Defendant Macon County Greyhound Park,
Inc. (a.k.a. VictoryLand) whose employment was terminated on
or about January 5, 2010 and whose “short-term layoff” was
converted to an “employment loss” exceeding six (6) months by
the February 4, 2010 plant closing and who were not given a
minimum of sixty (60) days notice of termination as defined
under the Workers Adjustment and Retaining Act of 1988, 29
U.S.C. §§ 2101 et seq.
All employees of Defendant Macon County Greyhound Park,
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Inc. (a.k.a. VictoryLand) who were not given a minimum of
sixty (60) days notice of termination and whose employment
was terminated on or about February 4, 2010 as a result of a
“mass layoff” or “plant closing” as defined under the Workers
Adjustment and Retaining Act of 1988, U.S.C. §§ 2101 et seq.
Said class excludes the officers and directors of Defendant
Macon County Greyhound Park, Inc. (a.k.a. VictoryLand),
anyone who has had a similar claim previously adjudicated or
resolved, anyone who has entered into an enforceable arbitration
agreement with Defendant that encompasses this claim, judicial
officers of the United States, and counsel for the parties in this
action.
2.
The named Plaintiff Keyla Exford is designated as class representative of the
following Rule 23(b)(3) sub-class, hereinafter referred to as the “August 9, 2010 Sub-class”:
All employees of Defendant Macon County Greyhound Park,
Inc. (a.k.a. VictoryLand) who were not given a minimum of
sixty (60) days notice of termination and whose employment
was terminated on or about August 9, 2010 as a result of a
“mass layoff” or “plant closing” as defined under the Workers
Adjustment and Retaining Act of 1988, 29 U.S.C. §§ 2101 et
seq.
Said class excludes the officers and directors of Defendant
Macon County Greyhound Park, Inc. (a.k.a. VictoryLand),
anyone who has had a similar claim previously adjudicated or
resolved, anyone who has entered into an enforceable agreement
with Defendant that encompasses this claim, judicial officers of
the United States, and counsel for the parties in this action.
3.
The sub-classes are certified with respect to the following cause of action:
Any claims for damages under the WARN Act, 29 U.S.C. §§
2101 et seq. against Defendant Macon County Greyhound Park,
Inc. (a.k.a. VictoryLand).
4.
Attorneys Charles A. Hardin, David A. Hughes, David L. Selby, II, Philip Dale
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Segrest, Sr., Robert Simms Thompson, James B. Perrine, and John Michael Segrest are
designated as class counsel.
DONE this the 3rd day of April, 2014.
/s/ Mark E. Fuller
UNITED STATES DISTRICT JUDGE
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