Sides et al v. Macon County Greyhound Park, Inc.

Filing 66

MEMORANDUM OPINION AND CERTIFICATION ORDER: (1) plaintiffs' 55 MOTION for class certification is GRANTED; (2) the named plaintiffs Mona Thomas and Ritchie L. Stalnaker are designated as class representatives of the following Rule 23(b)() sub-c lass, hereinafter referred to as the "January 5, 2010 Sub-class", as further set out in order; (3) the named plaintiff Judy Weekes-Walker is designated as class representative of the following Rule 23(b)(3) sub-class, hereinafter referred t o as the "February 4, 2010 Sub-class", as further set out in order; (4) 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", as further set out in order; (5) the sub-classes are certified with respect to the following cause of action: Any claims for damages under the WARN Act, 29 USC 2101 et seq., against Def Macon County Greyhound Park, Inc. (aka VictoryLand ); (6) Attorneys Charles A. Hardin, David A. Hughes, David L. Selby, II, Philip Dale Segrest, Sr., and Robert Simms Thompson are designated as class counsel. Signed by Honorable Judge Mark E. Fuller on 3/15/12. (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.,
Plaintiffs,
v.
MACON COUNTY GREYHOUND
PARK, INC.,
Defendant.

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CASE NO. 3:10-cv-895-MEF
[WO – Publish]

MEMORANDUM OPINION AND CERTIFICATION ORDER
Plaintiffs filed a single-count class action Complaint (Doc. # 1), alleging that
Defendant Macon County Greyhound Park, Inc. (“MCGP”) violated the Worker Adjustment
and Retaining Act of 1988 (“WARN”), 29 U.S.C. §§ 2101 et seq. The case is now before
the Court on Plaintiffs’ Motion for Class Certification (Doc. # 55), which has been fully
briefed (Doc. # 63). For the reasons set forth below, the motion is due to be GRANTED.
I. JURISDICTION AND VENUE
Subject matter jurisdiction is exercised pursuant to 28 U.S.C. § 1331 and 29 U.S.C.
§ 2104(a)(5). The parties do not contest personal jurisdiction or venue, and the court finds
adequate allegations in support of both.
II. STANDARD OF REVIEW
“A district court must conduct a rigorous analysis of the [R]ule 23 prerequisites before
certifying a class.” Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 1266 (11th Cir. 2009)
(citation and internal quotation marks omitted). To obtain class certification, a named

plaintiff must: (1) have standing; (2) satisfy each requirement of Rule 23(a) of the Federal
Rules of Civil Procedure; and (3) satisfy at least one of the requirements of Rule 23(b).
Busby v. JRHBW Realty, Inc., 513 F.3d 1314, 1321 (11th Cir. 2008). It is the plaintiff’s
burden to establish every element of Rule 23 and to generally show that class certification
is appropriate. See Vega, 564 F.3d at 1267 (citing Valley Drug Co. v. Geneva Pharm., Inc.,
350 F.3d 1181, 1187 (11th Cir. 2003)).
“Rule 23 establishes the legal roadmap courts must follow when determining whether
class certification is appropriate.” Valley Drug Co., 350 F.3d at 1187. A class or sub-class
may be formed and any person or group of people may represent the class in litigation if (1)
the class is so numerous that joinder of all members is impracticable; (2) there are questions
of law or fact common to the class; (3) the claims or defenses of the named representative
parties are typical of the claims or defenses of the class; and (4) the named representative
parties will fairly and adequately protect the interests of the class. Fed. R. Civ. P. 23(a); see
also Valley Drug Co., 350 F.3d at 1187-88. Failure to prove any of the four Rule 23(a)
requirements and at least one of the alternative requirements of Rule 23(b) precludes class
certification. Valley Drug Co., 350 F.3d at 1188 (citing Amchem Prods., Inc. v. Windsor, 521
U.S. 591, 615-18 (1997)).
In determining whether these requirements are met, the court must take the allegations
in support of certification as true and try to refrain from analyzing the merits of the case.
Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177 (1974). “‘Although the trial court should

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not determine the merits of the plaintiff’s claim at the class certification stage, the trial court
can and should consider the merits of the case to the degree necessary to determine whether
the requirements of Rule 23 will be satisfied.’” Vega, 564 F.3d at 1266 (quoting Valley Drug
Co., 350 F.3d at 1188 n.15).
III. FACTUAL BACKGROUND
Accepting as true the allegations in support of class certification, the Court finds the
following facts:
Plaintiffs Judy Weekes-Walker, Mona Thomas, Keyla Exford, and Ritchie L.
Stalnaker are former employees of MCGP. MCGP operated a large-scale entertainment
complex in Macon County, Alabama, and allegedly was the County’s largest employer with
approximately 2,000 employees. (Compl. ¶ 8; Mot. for Class Cert. 6.)
Plaintiffs were laid off on one of three dates in 2010. (Compl. ¶ 5.) Plaintiffs Mona
Thomas and Ritchie L. Stalnaker were terminated on January 5, 2010, along with
approximately 200 or 225 other employees. (Compl. ¶ 11 (225); Mot. for Class Cert. 6 (200);
Thomas Aff. (Doc. # 43-21); Stalnaker Aff. (Doc. # 43-6).) Plaintiff Weekes-Walker was
terminated on February 4, 2010, along with approximately 1,800 other employees. Finally,

3

Plaintiff Keyla Exford was terminated on August 8, 2010, along with all 600 (some had been
re-hired) of MCGP’s remaining employees.1 (Compl. ¶ 17; Mot. for Class Cert. 7.)
Plaintiffs allege that MCGP “was required by the provisions of the WARN Act to give
notice to all affected employees of a ‘mass-layoff’ or ‘plant closing’ a minimum of 60 days
prior to the date of termination and failed to give such notice as required by the WARN Act.”
(Compl. ¶ 38.) Plaintiffs seek back pay under 29 U.S.C. § 2104(a)(1)(A) and benefits,
including incurred medical expenses, under § 2104(a)(1)(B). Plaintiffs also seek attorney
fees pursuant to § 2104(a)(6).
Plaintiffs ask the Court to certify the following class:
Any employee of [MCGP] who was not given a minimum of 60 days notice
of termination and whose employment was terminated during the 2010
calender year as a result of a ‘mass layoff’ or ‘plant closing’ as defined in 29
C.F.R. § 639.3 and regulated by federal statute as codified under 29 U.S.C. §
2101 under the [WARN] Act of 1988.
(Mot. for Class Cert. 8.) The proposed class excludes “[t]he officers and directors of the
defendant; any judge or judicial officer assigned to this matter or his or her immediate
family; [and] any legal representative, successor, or assign of any excluded persons or
entities.” (Mot. for Class Cert. 8.)

1

MCGP disputes some of Plaintiffs’ numerical allegations. Lewis Benefield, MCGP’s
Chief Operating Officer, presented an affidavit stating that MCGP laid off 93 of its 712 full-time
employees on January 5, 2010. (Benefield Aff. ¶ 4 (Doc. # 63-1).) MCGP does not make any
representations regarding February 4, 2010 or August 9, 2010. The Court must accept Plaintiff’s
allegations in support of class certification as true. Eisen, 417 U.S. at 177; see also Drayton v.
W. Auto Supply Co., No. 01-10415, 2002 WL 32508918, at *6 (11th Cir. March 11, 2002)
(unpublished) (“It . . . is proper to accept the substantive allegations contained in the complaint as
true when assessing Rule 23 requirements.”).
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IV. DISCUSSION
A.

Ascertainability
“Although not explicit in Rule 23(a) or (b), courts have universally recognized that

the first essential ingredient to class treatment is the ascertainability of the class.” Keller v.
Macon Cnty. Greyhound Park, Inc., No. 07cv1098, 2011 WL 1085976, at *3 (M.D. Ala.
March 24, 2011) (Watkins, J.) Ascertainability is an “‘implied requirement’” of class
certification. Id. (quoting In re Initial Public Offerings Sec. Litig., 471 F.3d 24, 30 (2d Cir.
2006)). Ascertainability is uncontested by MCGP and Plaintiffs have demonstrated that the
proposed class can be identified easily through MCGP’s records. (Mot. for Class Cert. 9.)
B.

The Rule 23(a) Requirements
1.

Numerosity

The first requirement under Rule 23(a) is that the putative class be “so numerous that
joinder of all members is impracticable.” Fed R. Civ. P. 23(a)(1). “Generally, a class should
have no fewer than 21 members and will satisfy the numerosity requirement if it has more
than 40.” Martinez v. Mecca Farms, Inc., 213 F.R.D. 601, 605 (S.D. Fla. 2002); see also
Cox v. Am. Cast Iron Pipe Co., 784 F.2d 1546, 1553 (11th Cir. 1986). MGCP does not
dispute that the numerosity requirement has been met, and Plaintiff’s allegations are
sufficient in that regard. As stated above, MCGP employed approximately 2,000 people at
the start of 2010, and most of those employees were terminated on one of the three dates
Plaintiffs allege to be WARN Act violations. Joinder of hundreds, potentially thousands, of

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lawsuits in this case is impracticable; therefore, the numerosity requirement is satisfied. Fed.
R. Civ. P. 23(a)(1); see also Valley Drug Co., 350 F.3d at 1187-88. Furthermore, as
discussed below, this class action lawsuit will be divided into three sub-classes based upon
the three layoff dates alleged in the Complaint. Each of those sub-classes individually meets
the numerosity requirement.
2.

Commonality

“A class may be certified only if ‘there are questions of law or fact common to the
class.’” Williams v. Mohawk Indus., Inc., 568 F.3d 1350, 1355 (11th Cir. 2009) (quoting
Fed. R. Civ. P. 23(a)(2)). “Under the Rule 23(a)(2) commonality requirement, a class action
must involve issues that are susceptible to class-wide proof.” Id. (quoting Murray v.
Auslander, 244 F.3d 807, 811 (11th Cir. 2001)). “Commonality requires ‘that there be at
least one issue whose resolution will affect all or a significant number of the putative class
members.’” Id. (quoting Stewart v. Winter, 669 F.2d 328, 335 (5th Cir. 1982)).
Although seeking certification of a single class, Plaintiffs seek WARN Act damages
for three separate layoffs. MCGP argues that “the circumstances surrounding each layoff
were very different . . . and present different legal theories and defenses.” (Br. in Opposition
8 (Doc. # 63).) The Court agrees with MCGP that each layoff is generally subject to
different questions of law and fact. However, the Court also finds that, for the sub-group of
individuals within each layoff, there are common questions of law or fact. Thus, the

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commonality requirement is not met for the single class proposed by Plaintiffs, but is met for
a class action consisting of sub-classes.
a.

January 5, 2010 Layoff

As to the January 5, 2010 layoff, MCGP states that it was “renovat[ing] its North
Gaming Station, which was a part of the larger gaming operation at MCGP.” (Br. in
Opposition 9.) As a result of those renovations, MCGP represents that it “laid off
approximately 93 of the 712 full time employees it had at the time.” (Br. in Opposition 9;
Benefield Aff. ¶ 4.) Thus, MCGP intends to present two defenses: (1) that MCGP was not
required to provide notice because the layoff was not a “mass layoff” as defined in the
WARN Act, § 2101(a)(3)(B) (at least one-third of full time employees); and (2) that MCGP
was not required to provide notice because the layoffs, which were supposedly on account
of a temporary closing due to renovation, “were not [reasonably] anticipated [by MCGP] at
the time to exceed six months[,]” § 2102(c).
Accordingly, for those employees who were laid off on January 5, 2010, there is a
common issue of fact as to whether the number of employees laid off on January 5, 2010,
constituted “at least 33 percent of the [full-time] employees . . . .” § 2101(a)(3)(B)(i)(I); see
also note 1, supra. Second, there is also a common question as to the validity of MCGP’s
§ 2102(c) defense. Initially, there is a common question of fact as to whether the January 5,
2010 layoff was announced to be of a duration of six months or less “at its outset.” Id.
Assuming so, there is a common mixed question of law and fact as to whether the extension

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of the layoff beyond six months was caused by business circumstances “not reasonably
foreseeable at the time of the initial layoff.” § 2102(c)(1). Finally, there is a common
question as to whether notice was given at the time it became reasonably foreseeable that an
extension of the layoff beyond six months was required. § 2102(c)(2).
b.

February 4, 2010 Layoff

MCGP intends to argue that the February 4, 2010 layoff “resulted from unforeseeable
business circumstances . . . [after] the Governor’s Task Force on Gambling [raided] the
facilities at MCGP.” (Br. in Opposition 10.) Thus, it appears that MCGP will be presenting
a defense to Plaintiffs’ claims under § 2101(b)(2)(A), which states that “[a]n employer may
order a plant closing or mass layoff before the conclusion of the 60-day period if the closing
or mass layoff is caused by business circumstances that were not reasonably foreseeable as
of the time that notice would have been required.” Id. (emphasis added). For those laid off
on February 4, 2010, there will be a common mixed question of law and fact as to whether
the circumstances which led to the layoff were reasonably foreseeable.2

2

Although the February 4, 2010 layoff is subject to a different set of factual
circumstances and legal defenses, there is one common question of law and fact between the
January 5 and February 4, 2010 layoffs. Section 2102(d) states that “employment losses for
[two] or more groups at a single site of employment . . . which in the aggregate exceed [the]
minimum number [to trigger the provisions of the WARN Act], and which occur within any 90day period shall be considered to be a plant closing or mass layoff unless the employer
demonstrates that the employment losses are the result of separate and distinct actions and
causes and are not an attempt by the employer to evade the requirements of this chapter.” Id.
(emphasis added). This will be an issue of particular importance if the January 5, 2010 layoff,
standing alone, does not meet the WARN Act’s requirements to be considered a “mass layoff,”
as discussed above. Despite this single common mixed question of law and fact, the Court will
nevertheless create distinct sub-classes for the January 4 and February 5, 2010 layoffs. However,
8

c.

August 9, 2010 Layoff

MCGP contends that “[o]n August 9, 2010, MCGP learned that dozens of state
troopers were positioned at the interstate exit immediately south of the exit from [MCGP’s]
facility and that the facility was under constant surveillance by the Governor’s Task Force.”
(Br. in Opposition 13.) MCGP then laid off its remaining 600 employees because “it was
obvious that the Governor’s Task Force [again] was prepared to . . . attempt to raid the
facility . . . .” (Br. in Opposition 13.) Like the February 4, 2010 layoff, MCGP intends to
argue a defense under the reasonably unforeseeable business circumstances exception of §
2102(b)(2)(A). However, the objective analysis of unforeseeability will be markedly
different based on the set of facts available to MCGP as of August 9, 2010. Nevertheless,
for those laid off on August 9, 2010, there are common questions of law and fact based on
MCGP’s anticipated defense.
d.

Sub-Class Treatment Preferable

In summary, there are common questions of law and fact to those individuals who
were part of the same layoff. See Cashman v. Dolce Intern./Hartford Inc., 225 F.R.D. 73,
92 (D. Conn. 2004) (stating that “[t]he commonality and typicality requirements are fairly
easily met in an action brought under the WARN Act”). At the same time, the material issues
of law and fact are very different for class members who were laid off on different dates –
excepting the issue of combining the January 5, 2010 and February 4, 2010 layoffs, §
it may become necessary or prudent at a later date to combine these two sub-classes. See Fed. R.
Civ. P. 23(c)(1)(C).
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2102(d). These two conclusions on the commonality requirement of Rule 23(a) suggest subclass treatment.
3.

Typicality

“A class representative must possess the same interest and suffer the same injury as
the class members in order to be typical under Rule 23(a)(3). Typicality measures whether
a sufficient nexus exists between the claims of the named representatives and those of the
class at large.” Thompson v. RelationServe Media, Inc., 610 F.3d 628, 679 n.72 (11th Cir.
2010) (quoting Cooper v. S. Co., 390 F.3d 695, 713 (11th Cir. 2004), overruled on other
grounds by Ash v. Tyson Foods, Inc., 546 U.S. 454, 457 (2006)); see also Auslander, 244
F.3d at 811. “The typicality requirement may be satisfied despite substantial factual
differences . . . when there is a ‘strong similarity of legal theories.’” Williams, 568 F.3d at
1357 (quoting Auslander, 244 F.3d at 811).
MCGP argues that “Plaintiffs have not satisfied their burden of demonstrating
typicality . . . [because] [t]he Court previously compelled arbitration of the claims asserted
by two of the original six named plaintiffs.” (Br. in Opposition 15 (citing Doc. # 40).)
According to MCGP, this “raises the issue of whether the proposed class representatives are
atypical in not having arbitration[ ] agreements.” (Br. in Opposition 15.) MCGP’s concern
in this regard is obviated by simply amending the class definition (or sub-class definitions)
to exclude those employees with enforceable arbitration agreements.3
3

To the extent that this narrower class or sub-class definition changes the analysis of any
of the other requirements for class certification, the Court notes that decertification of the class or
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Otherwise, the Court agrees with the named Plaintiffs that their claims are “identical”
to the claims of the other members of the respective sub-classes based upon layoff date.
(Mot. for Class Cert. 19.); see also Cashman, 225 F.R.D. at 92.
4.

Adequacy of Representation

“The adequacy-of-representation requirement ‘encompasses two separate inquiries:
(1) whether any substantial conflicts of interest exist between the representatives and the
class; and (2) whether the representatives will adequately prosecute the action.’” Busby, 513
F.3d at 1323 (quoting Valley Drug Co., 350 F.3d at 1189).
MCGP has not identified, and the Court is not aware of, any substantial conflict of
interest between the proposed sub-class representatives and the respective sub-classes as will
be defined below. Furthermore, MCGP does not question the adequacy of Plaintiffs’ counsel
in prosecuting the action.
Rather, MCGP argues that the proposed representative plaintiffs themselves “lack
sufficient knowledge and understanding [of the nature of their claims] to fulfill their roles
as [adequate] class representative[s] . . . .”

(Br. in Opposition 17.)

“A proposed

representative’s knowledge of the case need not be robust.” 1 William B. Rubenstein, et al.,
Newberg on Class Actions § 3.67 (5th ed.); see also Kirkpatrick v. J.C. Bradford & Co., 827
F.2d 718, 727 (11th Cir. 1987) (stating that class certification is “properly denied . . . where

sub-class is always a possibility. See Fed. R. Civ. P. 23(c)(1)(C) (stating that “[a]n order than
grants or denies class certification may be altered or amended before final judgment”); see also
Culpepper v. Irwin, 491 F.3d 1260, 1275 (11th Cir. 2007).
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the class representatives had so little knowledge of and involvement in the class action that
they would be unable or unwilling to protect the interests of the class”). MCGP argues that
Plaintiffs Thomas, Weekes-Walker, and Stalnaker are inadequate class representatives
because they testified in their depositions that they had no “independent knowledge” of the
WARN Act.4 The Eleventh Circuit has never held that a class representative must have
independent knowledge of his or her cause of action. In fact, the majority of courts “have
rejected or limited” any supposed requirement of independent knowledge of the legal basis
for a claim. 1 Newberg on Class Actions § 3.67. Rejecting the so-called “independent
knowledge” requirement is especially sound when the cause of action – like the WARN Act
– has a narrow application and is generally not well-known by the public at large. The
adequacy of representation element of Rule 23(a) has been satisfied.
C.

Rule 23(b)(3)
Plaintiffs must satisfy at least one of the alternative requirements of Rule 23(b) in

order for the proposed class or sub-classes to be certified. Valley Drug Co., 350 F.3d at 1188

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On top of having no “independent knowledge” of the WARN Act, MCGP also attempts
to represent to the Court that Plaintiffs Thomas, Weekes-Walker, and Stalnaker “[do] not know
[anything at all] about the Warn Act . . . .” (Br. in Opposition 19.) As stated above, in
determining whether the Rule 23(a) requirements are met, the court must take the allegations in
support of certification as true. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177 (1974). All
three Plaintiffs in question submitted Declarations (Docs. # 55-2, 55-3 & 55-5) stating that they
had reviewed the Complaint, which is replete with references to the WARN Act. Contrary to
MCGP’s arguments in its brief, the deposition testimony of Plaintiffs Weekes-Walker and
Stalnaker do not support MCGP’s contention that they do not know anything at all about the
WARN Act. And although Plaintiff Thomas testified in her deposition that she had “never heard
of the [WARN] Act[,]” (Thomas Dep. 42 (Doc. # 63-5)), her deposition testimony as a whole
reveals that she has at least an elementary knowledge of the nature of her claims.
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(citing Amchem, 521 U.S. at 615-18); see also Babineau v. Fed. Express Corp., 576 F.3d
1183, 1189-90 (11th Cir. 2009). Plaintiffs have chosen to rely on Rule 23(b)(3), asserting
that common questions of law or fact predominate and that the class action is superior to
other methods of proceeding in the case. (Br. in Support 22-24.)
1.

Common Issues Predominate

“Common issues of fact and law predominate if they have a direct impact on every
class member’s effort to establish liability and on every class member’s entitlement to . . .
monetary relief.” Babineau, 576 F.3d at 1191 (quoting Klay v. Humana, Inc., 382 F.3d 1241,
1255 (11th Cir. 2004)). “On the other hand, common issues will not predominate over
individual questions if, ‘as a practical matter, the resolution of [an] overarching common
issue breaks down into an unmanageable variety of individual legal and factual issues.’” Id.
(quoting Andrews v. Am. Tel. & Tel. Co., 95 F.3d 1014, 1023 (11th Cir. 1996). “Certification
is inappropriate if the ‘plaintiffs must still introduce a great deal of individualized proof or
argue a number of individualized legal points to establish most or all of the elements of their
individual claims.’” Id. (quoting Klay, 382 F.3d at 1255). “The predominance inquiry
requires an examination of ‘the claims, defenses, relevant facts, and applicable substantive
law,’ . . . to assess the degree to which resolution of the classwide issues will further each
individual class member’s claim against the defendant.” Id. (quoting Klay, 382 F.3d at
1254).

13

As discussed above in the commonality inquiry of Rule 23(a)(2), there are questions
of fact and law common to the class. However, “the predominance criterion is far more
demanding [than Rule 23(a)(2)’s commonality requirement].” See Williams, 568 F.3d at
1357 (quoting Amchem, 521 U.S. at 623-34). Despite the more rigorous standard, the
common questions of fact and law recited above as to each of the three layoff dates will
predominate in this litigation. Indeed, courts have noted that “[t]he WARN Act contemplates
enforcement by class action.” Butler-Jones v. Sterling Casino Lines, L.P., No. 6:08cv1186,
2008 WL 5274384, at *3 (M.D. Fla. Dec. 18, 2008) (citing 29 U.S.C. § 2104(5)); see also
Cashman, 225 F.R.D. at 92; Finnan v. L.F. Rothschild & Co., Inc., 726 F. Supp. 460, 465
(S.D.N.Y. 1989) (“The WARN Act seems particularly amenable to class litigation.”).
However, MCGP argues that because Plaintiffs seek damages for incurred medical
expenses (Compl. ¶ 39), “damages claims will . . . require individualized evidence to
establish both liability [for] and the amount of any [such] damages . . . .” (Br. in Opposition
22.) The Eleventh Circuit has held that “‘the presence of individualized damages issues does
not prevent’” certification of a Rule 23(b)(3) class. Sacred Heart, 601 F.3d at 1178 (quoting
Klay, 382 F.3d at 1259). In providing guidance regarding the effects of individualized
damages on certification of Rule 23(b)(3) classes, the Eleventh Circuit has stated that
“[i]ndividualized damages issues are of course least likely to defeat predominance ‘where
damages can be computed according to some formula, statistical analysis, or other easy or
essentially mechanical method[ ].’” Sacred Heart, 601 F.3d at 1179 (quoting Klay, 382 F.3d

14

at 1259-60). In so saying, the Eleventh Circuit left the door open to certification of a Rule
23(b)(3) class where individualized damages are not subject to determination based upon a
class-wide methodology, but the more common issues surrounding liability nevertheless
predominate. “The relevant inquiry, however, is still whether questions of ‘liability to the
class . . . predominate[ ] over . . . individual issues relating to damages[.]’” Id. (quoting
Allapattah Servs., Inc. v. Exxon Corp., 333 F.3d 1248, 1261 (11th Cir. 2003)). Indeed, “there
are a number of management tools available to a district court to address any individualized
damages issues that might arise in a class action, including: (1) bifurcating liability and
damage trials . . . ; (2) appointing a magistrate judge or special master to preside over
individual damages proceedings; (3) decertifying the class after the liability trial and
providing notice to class members concerning how they may proceed to prove damages; (4)
creating subclasses; or (5) altering or amending the class.” 2 Newberg on Class Actions §
4:25.
In this case, the common issues regarding liability predominate over any
individualized damages issues that may arise based upon incurred medical expenses for a
limited number of the class members. Furthermore, other courts have certified Rule 23(b)(3)
class actions claiming damages for incurred medical expenses under the WARN Act. See,
e.g., Georigi v. Recon Auto. Remanufacturers, No. 07cv5509, 2009 WL 1312607 (E.D. Pa.
May 7, 2009). Although the Court need not decide, for the moment, how to proceed with
respect to damages, it does note that it favors the first three options recited above.

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2.

Superiority of the Class Action

“The second prong of Rule 23(b)(3) requires a court to determine whether ‘a class
action is superior to other available methods for fairly and efficiently adjudicating the
controversy.’” Sacred Hearth Health Sys., Inc. v. Humana Military Healthcare Servs., Inc.,
601 F.3d 1159, 1183 (11th Cir. 2010) (quoting Fed. R. Civ. P. 23(b)(3)). “The focus of this
analysis is on the ‘relative advantages of a class action suit over whatever other forms of
litigation might be realistically available to the plaintiffs.’” Id. at 1183-84 (quoting Klay, 382
F.3d at 1269). “As a result, the predominance analysis has a ‘tremendous impact on the
superiority analysis . . . for the simple reason that, the more common issues predominate over
individual issues, the more desirable a class action lawsuit will be as a vehicle for
adjudicating the plaintiffs’ claims,’ both relative to other forms of litigation such as joinder
or consolidation, and in absolute terms of manageability.” Id. (quoting Klay, 382 F.3d at
1269).
The number of potential class members makes other methods, such as joinder or
consolidation, impractical in this case. Furthermore, the predominance of factual and legal
issues makes the class action – with sub-classes and a method for adjudicating individualized
damages claims – the most desirable vehicle for adjudicating the WARN Act claims. See
Sacred Heart, 601 F.3d at 1184. Class action is a superior method to other methods of
adjudication in this case.

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V. CONCLUSION
Accordingly, it is ORDERED:
(1)

Plaintiffs’ Motion for Class Certification (Doc. # 55) is GRANTED;

(2)

The named Plaintiffs Mona Thomas and Ritchie L. Stalnaker are designated

as class representatives of the following Rule 23(b)(3) sub-class, hereinafter referred to as
the “January 5, 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 January 5,
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 arbitration agreement with Defendant that encompasses this claim,
judicial officers of the United States, and counsel for the parties in this action.
(3)

The named Plaintiff Judy Weekes-Walker is 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) 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, 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

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enforceable arbitration agreement with Defendant that encompasses this claim,
judicial officers of the United States, and counsel for the parties in this action.
(4)

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 arbitration agreement with Defendant that encompasses this claim,
judicial officers of the United States, and counsel for the parties in this action.
(5)

The sub-classes are certified with respect 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).
(6)

Attorneys Charles A. Hardin, David A. Hughes, David L. Selby, II, Philip Dale

Segrest, Sr., and Robert Simms Thompson are designated as class counsel.
DONE this 15th day of March, 2012.
/s/ Mark E. Fuller
UNITED STATES DISTRICT JUDGE

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