Likes v. DHL Express
MEMORANDUM OPINION AND ORDER DENYING 30 MOTION to Certify Class. Signed by Judge Virginia Emerson Hopkins on 12/21/2012. (JLC)
2012 Dec-21 PM 12:59
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
DARRIUS LIKES, and all other
similarly situated persons,
) Case No.: 2:10-CV-2989-VEH
MEMORANDUM OPINION AND ORDER
Plaintiff Darrius Likes (“Mr. Likes”) initiated this employment action arising
under the Worker Adjustment and Retraining Notification Act (the “WARN Act”)
against Defendant DHL Express (“DHL”) on November 5, 2010. (Doc. 1). The
genesis of this WARN Act lawsuit was DHL’s business decision to discontinue
domestic express delivery service. As the WARN Act is a federal statute, the court’s
jurisdiction has been invoked pursuant to 28 U.S.C. § 1331, i.e., the federal question
provision. (Doc. 1 ¶ 1). Mr. Likes is the only named plaintiff in this lawsuit.
Mr. Likes seeks not only to pursue his personal claim under the WARN Act,
but also to represent a nationwide class of individuals who are purportedly similarly
situated to him. (See generally Doc. 1). The court has before it Mr. Likes’s Motion
for Class Certification (Doc. 30) (the “Motion to Certify”) filed on August 20, 2012,
pursuant to Rule 23(b)(2) or (3) of the Federal Rules of Civil Procedure. (See Doc.
30 at 1 ¶ 1 (“Pursuant to Rule 23(c)(1), Plaintiff Darrius Likes moves this Court for
an order determining that this action may be maintained as a class action pursuant to
Rule 23(a) and Rule 23(b)(2), or (3) . . . .”)). Mr. Likes’s supporting evidence and
brief were filed on August 20, 2012. (Docs. 31-35).
DHL opposed the Motion to Certify on November 9, 2012. (Doc. 40). Mr.
Likes followed with his reply (Doc. 43) on December 7, 2012. The court conducted
a hearing on December 13, 2012. For the reasons stated during the hearing and
herein, the Motion to Certify is DENIED.
PRINCIPLES GOVERNING CLASS CERTIFICATION MOTIONS
“Under Federal Rule of Civil Procedure 23, a class action determination is left
to the sound discretion of the district court.” Jaffree v. Wallace, 705 F.2d 1526, 1536
(11th Cir. 1983) (citations omitted). As a result,“[t]he district court’s decision is
reversible only when it abuses its discretion.” Id. (citation omitted).
In Cooper v. Southern, Co., 205 F.R.D. 596 (N.D. Ga. 2001), aff’d, 390 F.3d
695 (11th Cir. 2004), overruled on other grounds by Ash v. Tyson Foods, Inc., 546
U.S. 454, 457, 126 S. Ct. 1195 (2006), 163 L. Ed. 2d 1053, the district court set forth
the Eleventh Circuit standard applicable to a party trying to establish entitlement to
The burden of establishing the specific prerequisites to a Rule 23
action falls on those seeking certification. Hudson v. Delta Air Lines,
Inc., 90 F.3d 451, 456 (11th Cir. 1996); Gilchrist v. Bolger, 733 F.2d
1551, 1556 (11th Cir.1984). The Court must be satisfied, after a
“rigorous analysis,” that the requirements of Rule 23(a) have been
fulfilled. Coon v. Georgia Pacific Corp., 829 F.2d 1563, 1566 (11th
Cooper, 205 F.R.D. at 607-08. These Rule 23(a) prerequisites consist of numerosity,
commonality, typicality, and adequacy of representation. See Fed. R. Civ. P.
23(a)(1)-(4) (“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; (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.”).
Additionally, both Rule 23(b)(2) and Rule 23(b)(3) have their own separate set
of certification conditions. Rule 23(b)(2) states that a class action may be maintained
when all the Rule 23(a) criteria have been met and:
the party opposing the class has acted or refused to act on grounds that
apply generally to the class, so that final injunctive relief or
corresponding declaratory relief is appropriate respecting the class as a
Fed. R. Civ. P. 23(b)(2).
As for Rule 23(b)(3):
The two essential requirements of Rule 23(b)(3) are that the common
questions “predominate over any questions affecting only individual
members” and that the class action procedure be “superior . . . for the
fair and efficient adjudication of the controversy.” Fed. R. Civ. P.
23(b)(3). “In other words, ‘the issues in the class action that are subject
to generalized proof, and thus applicable to the class as a whole, must
predominate over those issues that are subject only to individualized
proof.’” Jackson v. Motel 6 Multipurpose, Inc., 130 F.3d 999, 1005
(11th Cir. 1997) (citing Kerr v. City of West Palm Beach, 875 F.2d
1546, 1557-58 (11th Cir. 1989) (quoting Nichols v. Mobile Bd. of
Realtors, Inc., 675 F.2d 671, 676 (5th Cir. Unit B 1982))). The
predominance inquiry under Rule 23(b)(3) is “far more demanding than
Rule 23(a)’s commonality requirement.” Id. (quoting Amchem
Products, Inc. v. Windsor, 521 U.S. 591, 624, 117 S. Ct. 2231, 138 L.
Ed. 2d 689 (1997)).
Cooper, 205 F.R.D. at 629 (footnote omitted); see also Fed. R. Civ. P. 23(b)(3) (“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.”)
Matters for the court to consider when evaluating whether Rule 23(b)(3)’s
additional requirements are met include:
(A) the class members’ interests in individually controlling the
prosecution or defense of separate actions;
(B) the extent and nature of any litigation concerning the controversy
already begun by or against class members;
(C) the desirability or undesirability of concentrating the litigation of the
claims in the particular forum; and
(D) the likely difficulties in managing a class action.
Fed. R. Civ. P. 23(b)(3)(A)-(D).
Preliminary Certification Considerations
Requirement of Article III Standing for Proposed Class
As the Eleventh Circuit has made clear, “analysis of class certification must
begin with the issue of standing.” Griffin v. Dugger, 823 F.2d 1476, 1482 (11th Cir.
1987). The question of whether an individual has standing to raise a claim is
particularly important in the class action context because, before the court ever
reaches the question of whether the individual’s claims and the class claims will share
common questions, it must decide whether the individual has a cognizable claim at
all. As the Eleventh Circuit has observed in a class action lawsuit involving
employment claims asserted under Title VII :
[T]here must be an individual plaintiff with a cognizable claim, that is,
an individual who has constitutional standing to raise the claim (or
claims) and who has satisfied the procedural requirements of Title VII
. . . Any analysis of class certification must begin with the issue of
standing and the procedural requirements of Title VII.
Id. at 1482; see also Wooden v. Bd. of Regents of the Univ. Sys. of Ga., 247 F.3d
1262, 1284 n.20 (11th Cir. 2001) (“[T]he fact that this suit was brought as a class
action does not alter [the proposed class representative’s] obligation to show that he
individually satisfies the constitutional requirements of standing.”). Because an issue
of Article III standing “directly implicates federal subject matter jurisdiction,” it must
be addressed as a threshold matter. Focus on the Family v. Pinellas Suncoast Transit
Auth., 344 F.3d 1263, 1272 (11th Cir. 2003); Griffin, 823 F.2d at 1476.
In this instance, no issues have been raised about Mr. Likes’s constitutional
standing to assert his WARN Act claim against DHL. Moreover, the court, in
independently reviewing the record, has not identified any standing problems or other
case or controversy concerns, i.e., such as issues of ripeness or mootness, that would
preclude Mr. Likes from serving as the class representative. Therefore, no Article III
obstacles exist to this case proceeding as a class action.
Requirement of Valid Substantive Cause of Action for
Proposed Class Representative
In addition to satisfying Article III standing requirements, each named class
representative must also individually assert a valid cause of action. See, e.g., E. Tex.
Motor Freight Sys. Inc. v. Rodriguez, 431 U.S. 395, 403, 97 S. Ct. 1891, 1896-97, 52
L. Ed. 2d 453 (1977) (determining that because the named plaintiffs’ Title VII claims
failed due to a lack of qualifications for the jobs at issue and their admissions that
they were not discriminated against in denial of those jobs, they “were not proper
class representatives”); id. at 406 n.12, 97 S. Ct. at 1898 n.12 (deciding that named
plaintiffs were not adequate class representatives because it was clear prior to class
certification that their individual claims should have been dismissed). As the
Eleventh Circuit observed in Wooden:
[T]he district court is not required to resolve [plaintiff’s] class
certification request before resolving a challenge to [plaintiff’s]
individual claim. If the district court were to resolve a summary
judgment in Defendants’ favor and in so doing dismiss [plaintiff’s]
individual claim before ruling on class certification, then [plaintiff]
would not be an appropriate class representative.
Wooden, 247 F.3d at 1289. Simply proving standing does not mean that the plaintiff
“must, or should, prevail on the cause of action.” Id. at 1281. “Standing” is a
threshold determination that is “conceptually distinct from whether the plaintiff is
entitled to prevail on the merits” of her individual claim. Id. at 1280.
Here, DHL has previously challenged the merits of Mr. Likes’s complaint in
the context of a motion to dismiss. (Doc. 7). The court rejected DHL’s position,
finding that his pleadings, given the unsettled status of a WARN Act single site of
employment claim1 as a matter of binding Eleventh Circuit precedent, were sufficient
to meet the Twombly plausibility standard. (See generally Doc. 13).
As part of its opposition to the Motion to Certify, DHL again has raised the
single site of employment issue under the lens of a more factually and legally
developed record. While this additional information causes the court to have doubts
about the viability of the WARN Act single site of employment claim which Mr.
Likes is pursuing against DHL, the court believes that the merits of Mr. Likes’s
personal claim are more appropriately addressed as part of a Rule 56 decision as
opposed to a Rule 23 one. Additionally, the authorities upon which DHL relies arise
under the Fair Labor Standards Act (the “FLSA”), as opposed to the WARN Act.2
(Doc. 40 at 1 n.1). Therefore, those cited cases, while potentially persuasive on this
The phrase “single site of employment” tracks the exact codified language
contained in the WARN Act. See 29 U.S.C. § 2101(a)(3)(B) (defining “mass layoff”
to mean “a reduction in force which . . . results in an employment loss at the single
site of employment during any 30-day period for . . . .”) (emphasis added).
Accordingly, the court utilizes this terminology when describing Mr. Likes’s WARN
Act claim rather than that of “joint”, “single” or “unified” employer as has previously
been used by the parties and/or the court in this lawsuit.
The court notes that one of these FLSA decisions favorable to DHL on the
question of joint employment lists “Darriest Likes” as a named plaintiff. See Likes
v. DHL Express (USA), Inc., No. 2:08-CV-0428-AKK, (Doc. 112 at 47) (N.D. Ala.
Mar. 7, 2012) (dismissing all counts asserted against DHL under the FLSA due to
“Plaintiffs’ failure to establish that DHL qualified as their joint employer”). DHL
contends (and Mr. Likes does not dispute) that he is a named plaintiff in that still
pending FLSA action. (Doc. 40 at 5-6).
court, are certainly not dispositive on the WARN Act single site of employment claim
at issue here. Accordingly, because the court finds the Motion to Certify to be
deficient in several other respects as analyzed below, it assumes without deciding that
Mr. Likes has a substantively valid claim consistent with the court’s ruling on DHL’s
motion to dismiss3 and is, therefore, not disqualified from serving as the class
Requirement of an Ascertainable Class
DHL also argues that certification is preliminarily inappropriate because the
class proposed by Mr. Likes is not adequately defined. The nationwide class that Mr.
Likes seeks to represent is:
Any employee who was employed through DHL’s independent
contractor [“IC”] network who was not given a minimum of 60 days
notice of termination and whose employment was terminated during the
cancellation of domestic shipping in December 2008 and January 2009
as a result of a “mass layoff” or “plant closing” as defined in 20 C.F.R.
§ 639.3 and regulated by federal statute as codified under 29 U.S.C. §
2101 under the Worker Adjustment and Retraining Notification
[WARN] Act of 1988.
(Doc. 30 at 8).
Relatedly, the court also assumes that DHL can be held jointly and severally
liable under the WARN Act.
As the pre-Bonner Fifth Circuit has held:4
It is elementary that in order to maintain a class action, the class
sought to be represented must be adequately defined and clearly
ascertainable. Weisman v. MCA Inc., D. Del., 1968, 45 F.R.D. 258;
Hardy v. United States Steel Corporation, N.D. Ala., 1967, 289 F. Supp.
200; 3A Moore’s Federal Practice (2nd Ed., 1969) P23.04. See Rule
23(a), Fed. R. Civ. Procedure. Cf. Gillibeau v. City of Richmond, 9 Cir.,
1969, 417 F.2d 426. These requirements were not, in our opinion,
satisfied. A class made up of ‘residents of this State active in the ‘peace
movement’ * * *‘ does not constitute an adequately defined or clearly
ascertainable class contemplated by Rule 23, nor was there any evidence
introduced at the hearing on the motion for a preliminary injunction,
held May 1, 1970, which would have assisted the district court in more
accurately delineating membership in a workable class. Furthermore,
even aside from the patent uncertainty of the meaning of ‘peace
movement’ in view of the broad spectrum of positions and activities
which could conceivably be lumped under that term, the class defined
in Paragraph IV is overbroad in another sense. The activity complained
of here, viz. harassment by members of the Houston Police Department
under the color of a void city ordinance, could not have a ‘chilling
effect’ on the First Amendment rights of all Texas residents who desire
to publicize their particular position on the war in Vietnam outside the
City of Houston. In view of the language used in the complaint and the
evidence produced at the preliminary injunction hearing, we cannot say
that the district court was incorrect in holding that a class action was not
DeBremaecker v. Short, 433 F.2d 733, 734 (5th Cir. 1970) (emphasis added). More
recently, the Fifth Circuit has persuasively explained that “[t]he existence of an
ascertainable class of persons to be represented by the proposed class representative
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en
banc), the Eleventh Circuit adopted as binding precedent all decisions of the former
Fifth Circuit handed down prior to October 1, 1981.
is an implied prerequisite of Federal Rule of Civil Procedure 23.” John v. National
Sec. Fire and Cas. Co., 501 F.3d 443, 445 (5th Cir. 2007) (emphasis added) (citing
Short, 433 F.2d at 734).
Lack of Clear Objective Criteria
DHL contends that the proposed class definition is confusingly crafted. The
court agrees with DHL that the requested formulation does lack precision, which is
a problem for Mr. Likes. See, e.g., John, 501 F.3d at 445 n.3 (“It is axiomatic that in
order for a class action to be certified, a class must exist. Although the text of Rule
23(a) is silent on the matter, a class must not only exist, the class must be susceptible
of precise definition.
There can be no class action if the proposed class is
‘amorphous’ or ‘imprecise.’”) (quoting 5 James W. Moore et al., Moore’s Federal
Practice § 23.21, at 23-47 (Matthew Bender 3d ed. 1997) (citations omitted))
More specifically, the use of “employed through DHL’s [“IC”] independent
contractor network” as part of the class definition is not readily comprehensible
terminology. Instead, the suggested language lacks concreteness in that it fails to
identify those essential employing entities who contracted with DHL under Cartage
Agreements or to clarify how a potential class member is “employed through” such
a network of DHL independent contractors (under a WARN Act single site of
employment theory) as opposed to being employed by DHL directly.
Another problem with the definition is that the terms “mass layoff” and “plant
closing” are not explained in layperson language. Instead, the words are unhelpfully
and inadequately addressed by referencing “20 C.F.R. § 639.3” and “29 U.S.C. §
2101.” For example, in the absence of incorporating more details into the definition
(or looking up the law), a potential class member would not be able to determine if
he had been let go under an actionable “mass layoff” or, rather, a less impactful (and
inactionable) reduction in force.
Uncertainty Over Circumstances of
Purported Single Site of
Another concern which the court has with the proposed class is a lack of
certainty over the circumstances surrounding DHL’s dealings with the contracting
parties under the various Cartage Agreements and Termination and Transition
Agreements. In particular, Mr. Likes has made no effort to separate out those
putative class members who have been employed by DHL and its contracting entities
at a single site of employment with a large enough number of dismissed employees
to trigger the WARN Act (when aggregated per station) from those who have not.
Mr. Likes also has not adequately accounted for those independent contractors who
utilized part-time employees when providing delivery services. See 29 U.S.C. §
2101(a)(1)(A) (“[T]he term ‘employer’ means any business enterprise that employs -(A) 100 or more employees, excluding part-time employees . . . .”) (emphasis added);
id. § 2101(a)(2) (defining “plant closing” to exclude part-time employees); id. §
2101(a)(3) (defining “mass layoff” to exclude part-time employees).
Adding to the complexity of this issue is that there is no set criteria for
determining a single site of employment situation under the WARN Act and its
applicable DOL regulation. Instead, and as the court explained in its ruling on DHL’s
motion to dismiss (Doc. 13 at 9), the factors listed in 20 C.F.R. § 639.3(a)(2) are nonexclusive.5 Therefore, attempting to refine the class definition in such a manner that
will adequately cover these class membership concerns without creating excessive
confusion simply becomes unworkable.
The applicable DOL regulation provides:
Under existing legal rules, independent contractors and subsidiaries
which are wholly or partially owned by a parent company are treated as
separate employers or as a part of the parent or contracting company
depending upon the degree of their independence from the parent [or
contracting company]. Some of the factors to be considered in making
this determination are (i) common ownership, (ii) common directors
and/or officers, (iii) de facto exercise of control, (iv) unity of personnel
policies emanating from a common source, and (v) the dependency of
20 C.F.R. § 639.3(a)(2) (emphasis added).
While Mr. Likes maintains that the execution of the Termination and Transition
Agreements by DHL’s independent contractors easily transforms this case into a
single site of employment one under the WARN Act, absent from the record is
evidence substantiating that all of DHL’s contracting entities uniformly entered into
these arrangements. Also missing from the record is proof (as opposed to mere
speculation) that upon entering into a Termination and Transition Agreement, all such
independent contractors ceased doing business and dismissed their entire workforce
In particular, Mr. Likes, without citing to any authority, asserts that because
“all contractors operated under the same Termination and Transition Agreements[,
there is no] need to depose each of 300 contractor to answer the single employer
question.” (Doc. 43 at 20). However, as developed during the hearing this pivotal
inquiry turns upon analyzing various factors pertaining to DHL’s relationships with
its hundreds of contractors and not upon the court’s interpretation of one agreement.
For example, Mr. Likes has not proven that all preexisting Cartage Agreements
ended simultaneously. To the contrary, the record evidence suggests that some
Cartage Agreements terminated on their own terms as opposed to through the
execution of a Termination and Transition Agreement. (See, e.g., Doc. 40-1 at 7 at
27 (“There is a subsequent agreement to the cartage agreement to outline the terms
for how that termination took place for those [i.e., independent contractors] who
opted to do that program.”)).
Additionally, DHL has adduced evidence of two independent contractors who
elected not to reduce the size of their workforces and, to the contrary, actually added
courier drivers during the relevant time frame. (See, e.g., Doc. 40-2 (declaration of
Ricardo Betancourt of Direct Hit Logistics, Inc.) at 3 ¶ 12 (“As a result of our
business operations and continued relationship with DHL, not only did we never have
to lay-off any of our employees, but we expanded our workforce.”); Doc. 40-3
(declaration of Maria Galo of Metropolitan Delivery Corporation) at 3 ¶ 11 (“As a
result of our business operations and continued relationship with DHL, our workforce
actually grew.”)). Such evidentiary examples disprove Mr. Likes’s theory that all
independent contractors went out of business after DHL decided to discontinue is
express domestic delivery service.
Another ascertainability issue raised by DHL stems from the language of the
class definition, which mirrors the determinations that must be made under the
WARN Act to assess liability. Some courts have referred to this as a “fail-safe” class
in which “[t]he proposed class definition is in essence framed as a legal conclusion.”
Indiana State Emp. Ass’n, Inc. v. Indiana State Highway Comm’n, 78 F.R.D. 724, 725
(S.D. Ind. 1978).
The Eleventh Circuit has described the nature of a WARN Act claim as:
WARN requires that an employer provide sixty days notice to
workers before ordering a mass layoff. 29 U.S.C. § 2102(a). JWR
argues that the layoff in question was not a mass layoff and, therefore
WARN does not apply. WARN defines a mass layoff as a reduction in
(B) results in an employment loss at the single site of
employment during any 30-day period for(i)(I) at least 33 percent of the employees
(excluding any part-time employees); and
(II) at least 50 employees (excluding any
part-time employees); or
(ii) at least 500 employees (excluding any
part-time employees); . . .
29 U.S.C. § 2101(a)(3)(B).
International Union, United Mine Workers v. Jim Walter Resources, 6 F.3d 722, 724
(11th Cir. 1993) (emphasis added).
As another district court explained fail-safe classes in Brazil v. Dell Inc., 585
F. Supp. 2d 1158 (N.D. Cal. 2008):
Dell argues that these are “fail-safe” classes whose members cannot be
identified unless Dell is found liable after trial. Mot. at 18.
Plaintiffs will ultimately bear the burden of properly establishing
a class that is “precise,” “objective,” and “presently ascertainable.”
O'Connor v. Boeing North American, Inc., 197 F.R.D. 404, 416 (C.D.
Cal. 2000). As alleged, the proposed classes include California persons
or entities who purchased Dell computer products that “Dell falsely
advertised.” To determine who should be a member of these classes, it
would be necessary for the court to reach a legal determination that Dell
had falsely advertised. See, e.g., In re Wal-Mart Stores, Inc., 505 F.
Supp. 2d 609, 615 (N.D. Cal. 2007) (Armstrong, J.) (the definition of a
“Vacation Subclass” of people who had not received “full and complete”
compensation would involve a legal determination based on the facts
relevant to an individual potential class member). Thus, the proposed
class cannot, as alleged, be presently ascertained.
Brazil, 585 F. Supp. 2d at 1167 (emphasis added).
Similar to Brazil, the class definition suggested by Mr. Likes turns upon the
criterion that class members are rightfully considered to be employees of DHL under
the WARN Act. Regardless of whether this makes the proposed class truly a fail-safe
one,6 as articulated above, this liability determination is a fact-intensive inquiry that
must be analyzed under the circumstances of each separate DHL-contractor
Accordingly, this definitional gap renders the class presently
unascertainable because the court is not in a position to determine who would be
included in the class until it has answered the questions of whether DHL employed
that person as part of a single site of employment and that a sufficient aggregate
(See Doc. 43 at 19 (citing to Sixth Circuit authority and arguing that class
does not fall into fail-safe category)).
number of employees were dismissed so as to trigger the WARN Act notice
provisions. Cf. Indiana State Employees Ass’n, 78 F.R.D. at 725 (“By the way
plaintiffs seek to have the class defined it would be impossible for the Court to
ascertain whether or not a given person is a member of the class until a determination
of ultimate liability as to that person is made.”).
In response to the ascertainability challenges raised by DHL, Mr. Likes cites
to the WARN Act class certification case of Weekes-Walker v. Macon County
Greyhound Park, Inc., 281 F.R.D. 520 (M.D. Ala. 2012). (Doc. 43 at 15-16).
However in Weekes, the defendant did not challenge the element of ascertainability.
Id. at 524 (“Ascertainability is uncontested by MCGP and Plaintiffs have
demonstrated that the proposed class can be identified easily through MCGP’s
records.”). Further, a review of the opinion in Weekes does not reveal any single site
of employment issue arising under the WARN Act or more particularly, the
complication of a class representative’s attempting to aggregate affected employees
from multiple independent contractors to trigger WARN Act coverage for a separate
business entity. Thus, under the circumstances of this lawsuit, Weekes is not
dispositive on the issue of ascertainability specifically, or class certification generally.
Therefore, for all these reasons, the court finds that Mr. Likes’s Motion to
Certify fails for want of an ascertainable class. While the court need not continue
with the class certification analysis at this juncture, see, e.g., Adair v. Johnston, 221
F.R.D. 573, 578 (M.D. Ala. 2004) (“Because Adair’s putative class is not adequately
definite and ascertainable[,] . . . .[t]he court need not reach whether Adair’s putative
class would satisfy the other requirements of Fed. R. Civ. P. 23.”), it now addresses
whether Mr. Likes is able to meet Rule 23(a)’s threshold requirements as an
alternative to its ruling declining certification on Rule 23 preliminary grounds. See
Wright v. Farouk Systems, Inc., ___ F.3d ___, No. No. 12–10378, 2012 WL 5948962,
at *4 (11th Cir. Nov. 29, 2012) (recognizing that alternative rulings “enable [the
Eleventh Circuit] to decide the case in one appeal, if there is an appeal, and will avoid
the risk that another remand might be required”).
Rule 23(a) Threshold Requirements
As outlined below, the court finds that Mr. Likes is unable to satisfy all the
threshold requirements of Rule 23(a).
“The Eleventh Circuit Court of Appeals has indicated ‘while there is no fixed
numerosity rule, generally less than twenty-one is inadequate, more than forty
adequate, with numbers between varying according to other facts.’” Powers v.
Government Employees Ins. Co., 192 F.R.D. 313, 316 (S.D. Fla. 1998) (citing Cox
v. American Cast Iron Pipe Co., 784 F.2d 1546, 1553 (11th Cir.), cert. denied, 479
U.S. 883 (1986) (quoting Moore’s Federal Practice, at 23.05 n.7 (1978))). Suggesting
the absence of any substantiating evidence of numerosity, DHL contests that this
factor is satisfied.
The court has studied Mr. Likes’s briefing on the issue of numerosity in
support of the Motion to Certify. While certain portions of Mr. Likes’s position are
vague and stated without citations to record evidence (see, e.g., Doc. 35 at 16 (“Here,
there are at least thousands of putative class members with respect to the WARN
claim.”); id. (“It is readily apparent that at least 50 employees (and at least 33 percent
of the employees) have been affected here.”); id. at 17 (“If the class is certified,
discovery would reveal which stations lost the requisite number of employees to
require WARN notice.”); id. at 18 (“In the instant case, there are potentially
thousands of members (depending on whether they were employed at a station which
was large enough to trigger WARN obligations when the cancellation occurred).”)
(emphasis added)), Mr. Likes does point to some evidence which substantiates that
at least 49 people working at the Birmingham station under DHL’s Cartage
Agreement with its contractor Territory Reps Inc. (“Territory Reps”) were laid off as
a result of DHL’s cancellation of domestic shipping services at that station.7 (Doc.
35 at 16).
However, Mr. Likes does not clarify, with evidence, whether this “at least 49”
figure refers to full-time employees of Territory Reps, part-time workers, or both,
which as explained above is significant under the WARN Act. Additionally, Mr.
Likes is seeking certification on a nationwide basis, not on a single station basis, and
“[s]tatements by counsel in briefs are not evidence.” Skyline Corp. v. N.L.R.B., 613
F.2d 1328, 1337 (5th Cir. 1980).
Further, Mr. Likes was employed at the
Birmingham station as a result of the DHL’s Cartage Agreement with Wood Air
Freight, Inc. (“Wood Air”), not Territory Reps, and Mr. Likes has not cited to any
evidence which substantiates that the element of numerosity has been satisfied under
the cancellation of DHL’s Cartage Agreement with Wood Air.
Mr. Likes also has made no effort to account for those putative class members
who, due to an analysis of the DOL factors listed as applicable under the WARN Act
and other circumstances, such as, e.g., a Cartage Agreement’s ending on its own
Mr. Likes has failed to point out to the court evidence that would establish
how the 49 laid-off employees of Territory Reps at the Birmingham station translates
into triggering a notice requirement under the WARN Act. (See Doc. 35 at 16
(arguing, but not substantiating that “[i]t is readily apparent that at least 50 employees
(and at least 33 percent of the employees) have been affected here”) (emphasis
terms, may not be DHL employees under the WARN Act. Equally unhelpful is Mr.
Likes’s bare allegation in his complaint that “[t]he class that the Representative
Plaintiff seeks to represent are too numerous to make joinder practicable.” (Doc. 1
¶ 43); see In re Am. Med. Sys. Inc., 75 F.3d 1069, 1079 (6th Cir. 1996) (“Mere
repetition of the language of Rule 23(a) is not sufficient.”) (emphasis added).
As the Eleventh Circuit has previously explained the element of numerosity in
Vega v. T-Mobile USA, Inc., 546 F.3d 1256 (11th Cir. 2009):
Vega, in his class certification motion, cited only the deposition
testimony of William Steele, T-Mobile's Manager of Sales
Compensation Design, in support of his argument for numerosity. In his
testimony, Steele agreed that the number of retail sales associates
employed by T-Mobile between the years 2002 and 2006 was “in the
thousands.” While this company-wide testimony easily would constitute
a sufficient basis for a finding of numerosity as it relates to a nationwide
class, the district court, significantly, certified a Florida-only class. We
have noted that, “[a]lthough mere allegations of numerosity are
insufficient to meet this prerequisite, a plaintiff need not show the
precise number of members in the class.” Evans v. U.S. Pipe & Foundry
Co., 696 F.2d 925, 930 (11th Cir. 1983). Nevertheless, a plaintiff still
bears the burden of making some showing, affording the district court
the means to make a supported factual finding, that the class actually
certified meets the numerosity requirement. Vega has not cited, and we
cannot locate in the record, any evidence whatsoever (or even an
allegation) of the number of retail sales associates T-Mobile employed
during the class period in Florida who would comprise the membership
of the class, as certified by the district court.
Yes, T-Mobile is a large company, with many retail outlets, and,
as such, it might be tempting to assume that the number of retail sales
associates the company employed in Florida during the relevant period
can overcome the generally low hurdle presented by Rule 23(a)(1).
However, a plaintiff still bears the burden of establishing every element
of Rule 23, see Valley Drug, 350 F.3d at 1187, and a district court's
factual findings must find support in the evidence before it. In this case,
the district court’s inference of numerosity for a Florida-only class
without the aid of a shred of Florida-only evidence was an exercise in
sheer speculation. Accordingly, the district court abused its discretion
by finding the numerosity requirement to be satisfied with respect to a
Florida-only class when the record is utterly devoid of any showing that
the certified class of T-Mobile sales representatives “in Florida” is “so
numerous that joinder of all members is impracticable.” Fed. R. Civ. P.
Vega, 564 F.3d at 1267-68 (emphasis by underlining added) (footnotes omitted).
Therefore, while the court certainly can envision how a nationwide class could
meet the not particularly demanding numerosity standard, nonetheless Mr. Likes has
failed to establish this element, given his presentation of merely minimal proof and
given that even that proof relates to a contractor different than the one who employed
him.8 In particular, adducing proof only as to the loss of employees (and without
clarifying their status as either full-time or part-time workers) by one independent
contractor at one station is insufficient to establish numerosity for a nationwide class,
especially when that number is insufficient to trigger notice under the WARN Act
Mr. Likes’s failure to establish evidence relating to his employer’s, i.e.,
Wood Air’s overall loss of employees at the Birmingham station, brings into question
Mr. Likes’s suitability as an adequate representative.
even if the court were to assume that all of those affected employees worked full time
for Territory Reps.
Furthermore, in the absence of establishing numerosity on a nationwide basis,
Mr. Likes cannot satisfy his Rule 23(a) burden. Alternatively, even if Mr. Likes’s
limited evidence were sufficient to satisfy numerosity, because other Rule 23(a)
prerequisites are wanting, class certification would still be inappropriate.
Commonality requires that the grievances of Mr. Likes and the proposed class
share common questions of law or fact. Fed. R. Civ. P. 23(a)(2). The commonality
element has been construed by some courts as only requiring that there be one issue
that affects all or a significant number of proposed class members. See, e.g.,
Kreuzfeld A.G. v. Carnehammar, 138 F.R.D. 594, 599 (S.D. Fla. 1991) (“Rather, the
issue [of commonality] turns on whether there exists at least one issue affecting all
or a significant number of proposed class members.”) (emphasis added) (citing
Stewart v. Winter, 669 F.2d 328 (5th Cir. 1982)); Anderson v. Garner, 22 F. Supp. 2d
1379, 1385 (N.D. Ga. 1997) (defining common question as “one which arises from
a ‘nucleus of operative facts,’ regardless of whether the underlying facts fluctuate
over a class period and vary as to individual claimants”) (citations omitted).
Relying upon Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 180 L. Ed. 2d
374 (2011), a Title VII class certification decision, DHL argues that simply because
Mr. Likes and the purported class members share the common question of whether
DHL failed to properly give them notice that was due under the WARN Act,
commonality is not met. As the Supreme Court reasoned in Dukes:
The crux of this case is commonality—the rule requiring a
plaintiff to show that “there are questions of law or fact common to the
class.” Rule 23(a)(2). That language is easy to misread, since “[a]ny
competently crafted class complaint literally raises common
‘questions.’” Nagareda, Class Certification in the Age of Aggregate
Proof, 84 N.Y.U.L. Rev. 97, 131–132 (2009). For example: Do all of
us plaintiffs indeed work for Wal–Mart? Do our managers have
discretion over pay? Is that an unlawful employment practice? What
remedies should we get? Reciting these questions is not sufficient to
obtain class certification. Commonality requires the plaintiff to
demonstrate that the class members “have suffered the same injury,”
Falcon, supra, at 157, 102 S. Ct. 2364. This does not mean merely that
they have all suffered a violation of the same provision of law. Title
VII, for example, can be violated in many ways—by intentional
discrimination, or by hiring and promotion criteria that result in
disparate impact, and by the use of these practices on the part of many
different superiors in a single company. Quite obviously, the mere claim
by employees of the same company that they have suffered a Title VII
injury, or even a disparate-impact Title VII injury, gives no cause to
believe that all their claims can productively be litigated at once. Their
claims must depend upon a common contention—for example, the
assertion of discriminatory bias on the part of the same supervisor. That
common contention, moreover, must be of such a nature that it is
capable of classwide resolution—which means that determination of its
truth or falsity will resolve an issue that is central to the validity of each
one of the claims in one stroke.
Dukes, 131 S. Ct. at 2550-51 (footnote omitted) (emphasis added).
As DHL argues, commonality is lacking here because Mr. Likes “ignores the
fact that he and the supposed thousands of putative class members were employed by
hundreds of different companies whose only affiliation with DHL was a contractual
relationship.” (Doc. 40 at 32). Further, “[i]n order to prove ‘single employer’
liability against DHL, this Court would be forced to separately evaluate the
circumstances of the relationship between DHL and each individual company by
whom a class member was employed.” (Id.).
Given the Supreme Court’s recent guidance in Dukes on Rule 23(a)(2), the
court cannot see how Mr. Likes’s proposed “common contention” is of “such a nature
that it is capable of classwide resolution—which means that determination of its truth
or falsity will resolve an issue that is central to the validity of each one of the claims
in one stroke.” Instead, the court finds that the nature of the contested single site of
employment issue means that individualized determinations of fact would need to be
decided as to each DHL contractor relationship. Additionally, and as acknowledged
by Mr. Likes, the court would also have to separately verify whether the requirements
of a WARN Act notice were met for the subject stations where each class member
worked. (See Doc. 35 at 18 (“In the instant case, there are potentially thousands of
members (depending on whether they were employed at a station which was large
enough to trigger WARN obligations when the cancellation occurred).”) (emphasis
added)). Accordingly, the court concludes that commonality is lacking.
The typicality requirement is met when each class member’s claims arise “from
the same event or pattern or practice and are based on the same legal theory” as the
claims of the proposed class. Kornberg v. Carnival Cruise Lines, Inc., 741 F.2d
1332, 1337 (11th Cir. 1984). As the Supreme Court has noted, the commonality and
typicality requirements involve similar considerations and “tend to merge.” General
Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 158 n.13, 102 S. Ct. 2364, 2371
n.13, 72 L. Ed. 2d 740 (1982). “Both serve as guideposts for determining whether
under the particular circumstances maintenance of a class action is economical and
whether the named plaintiff’s claim and the class claims are so interrelated that the
interests of the class members will be fairly and adequately protected in their
Mr. Likes contends that typicality stems from the same legal theory that he and
the class members assert against DHL regarding the lack of proper notice that they
received under the WARN Act. However, the court concludes, similar to its
commonality analysis above, that the atypical nature of this WARN Act case means
that Rule 23(a)(3) is also lacking. In particular, because of the single site of
employment issue, Mr. Likes has failed to show that his WARN Act claim is, at a
minimum, typical of those putative class members who worked for the other
“hundreds” of DHL contractors at different stations throughout the country.
Adequacy of Representation
The final Rule 23(a) certification prerequisite is adequacy of representation.
To meet this requirement, Mr. Likes must show: (1) that his counsel is competent to
handle the case; and (2) that there are no disabling conflicts of interest among the
class members. Griffin v. Carlin, 755 F.2d 1516, 1532-33 (11th Cir. 1985).
Regarding Mr. Likes’s counsel, DHL has challenged the available resources
for a two-person law firm to prosecute a putative nationwide class. (Doc. 40 at 40).
In raising this particular issue, DHL has not cited to any supporting case authority.
Moreover, the court has read the contents of Lee Winston’s declaration concerning
his law firm’s experience and has no reason to doubt that Mr. Likes’s lawyers “will
competently and vigorously prosecute the suit.” Powers, 192 F.R.D. at 317.
Additionally, the record reveals no compelling showing that “the interest of the
class representative is . . . antagonistic to or in conflict with other members of the
class.” Powers, 192 F.R.D. at 317 (citing Griffin, 755 F.2d at 1533). DHL contends
that, because Mr. Likes was found not to be an employee of DHL under the FLSA,
this conflict should preclude him from serving as a class representative in this WARN
Act litigation. However, the court has explained above why FLSA-based decisions
do not automatically dictate (but certainly may persuasively suggest) the same result
on the WARN Act single site of employment issue presented here. Accordingly, the
court determines that the last Rule 23(a) threshold factor is fulfilled.
Therefore, in sum, the court has found that Mr. Likes’s proposed class meets
only one of the four Rule 23(a) threshold elements. Because three of the four
prerequisites are lacking, there is no reason for the court to proceed with any further
analysis. However, the court elects to undergo a consideration of the Rule 23(b)(2)
and Rule 23(b)(3) requirements as an alternative to its ruling declining certification
under the Rule 23 as well as the Rule 23(a) prerequisites to certification. See Wright,
2012 WL 5948962, at *4 (recognizing that alternative rulings avoid multiple appeals
As stated above, Rule 23(b)(2) provides that class certification is appropriate
[T]he party opposing the class has acted or refused to act on grounds
that apply generally to the class, so that final injunctive relief or
corresponding declaratory relief is appropriate respecting the class as a
Fed. R. Civ. P. 23(b)(2). Here, Mr. Likes and the class he seeks to represent primarily
seek monetary as opposed to declarative or injunctive relief. (See Doc. 43 at 21 (“If
a favorable decision to the plaintiff (and a proposed class) on the single employer
question is reached, the case becomes about the numbers.”) (emphasis added); see
also Doc. 1 at 12 (seeking civil penalties for each aggrieved employee and an order
making Mr. Likes and the class “whole”)).
As clarified in Dukes, reliance upon Rule 23(b)(2) is inappropriate when the
focus of the class-wide relief is monetary in nature:
We also conclude that respondents’ claims for backpay were
improperly certified under Federal Rule of Civil Procedure 23(b)(2). Our
opinion in Ticor Title Ins. Co. v. Brown, 511 U.S. 117, 121, 114 S. Ct.
1359, 128 L. Ed. 2d 33 (1994) (per curiam) expressed serious doubt
about whether claims for monetary relief may be certified under that
provision. We now hold that they may not, at least where (as here) the
monetary relief is not incidental to the injunctive or declaratory relief.
Rule 23(b)(2) allows class treatment when “the party opposing
the class has acted or refused to act on grounds that apply generally to
the class, so that final injunctive relief or corresponding declaratory
relief is appropriate respecting the class as a whole.” One possible
reading of this provision is that it applies only to requests for such
injunctive or declaratory relief and does not authorize the class
certification of monetary claims at all. We need not reach that broader
question in this case, because we think that, at a minimum, claims for
individualized relief (like the backpay at issue here) do not satisfy the
Rule. The key to the (b)(2) class is “the indivisible nature of the
injunctive or declaratory remedy warranted—the notion that the conduct
is such that it can be enjoined or declared unlawful only as to all of the
class members or as to none of them.” Nagareda, 84 N.Y.U.L. Rev., at
132. In other words, Rule 23(b)(2) applies only when a single
injunction or declaratory judgment would provide relief to each member
of the class. It does not authorize class certification when each
individual class member would be entitled to a different injunction or
declaratory judgment against the defendant. Similarly, it does not
authorize class certification when each class member would be entitled
to an individualized award of monetary damages.
Dukes, 131 S. Ct. at 2557.
When questioned during the hearing about the appropriateness of relying upon
Rule 23(b)(2) in this instance, Mr. Likes referred the court to the Sixth Circuit’s
WARN Act opinion in Bledsoe v. Emery Worldwide Airlines, Inc., 635 F.3d 836 (6th
Cir. 2011). To the extent that Bledsoe implies that Rule 23(b)(2) is an acceptable
procedural mechanism for awarding class-wide relief in a WARN Act lawsuit,9 such
reasoning pre-dates the Dukes decision, which Supreme Court analysis this court is
bound to follow.
Therefore, the court concludes that even assuming that Mr. Likes had passed
the preliminary and prerequisites parts to Rule 23, class certification would still be
inappropriate under Rule 23(b)(2) because of the non-incidental monetary damages
sought under the WARN Act and the Supreme Court’s decision in Dukes.
No mention of Rule 23(b)(2) appears in Bledsoe.
Rule 23(b)(3) Requirements
As the district court in Powers summarized predominance:
Rule 23(b)(3) class certification requires that “questions of law or
fact common to the members of the class predominate over any
questions affecting individual members.” See Fed. R. Civ. P. 23(b)(3).
A complete absence of individual issues is not necessary. Cox v.
American Cast Iron Pipe Co., 784 F.2d 1546 (11th Cir. 1986).
However, the predominance requirement is “far more demanding” than
the commonality requirement under Rule 23(a). In re Jackson National
Life, 183 F.R.D. 217. A plaintiff must demonstrate that issues which
are subject to generalized proof predominate over issues that require
individualized proof. E.g. Jackson v. Motel 6 Multipurpose, Inc., 130
F.3d 999, 1005 (11th Cir. 1997).
In addressing the certification question, the Court is required to
determine whether variations in state law defeat predominance. In re
American Medical Systems, Inc., 75 F.3d 1069, 1085 (6th Cir. 1996). To
certify a multi-state class action, a plaintiff must prove through
“extensive analysis” that there are no material variations among the law
of the states for which certification is sought. See e.g. Walsh v. Ford
Motor Co., 807 F.2d 1000, 1001 (D.C. Cir. 1986) (“Nationwide class
action movant must credibly demonstrate, through an extensive analyses
of state law variances, that class certification does not present
insuperable obstacles.”); In re: Ford Motor Co. Ignition Switch
Products, 174 F.R.D. 332 (D.N.J. 1997). If a plaintiff fails to carry his
or her burden of demonstrating similarity of state laws, then certification
should be denied. Castano v. American Tobacco Co., 84 F.3d 734, 742
(5th Cir. 1996) (class action proponents must do more than merely assert
that variations in state law are insignificant or academic); Rohlfing v.
Manor Care, Inc., 172 F.R.D. 330, 341 (N.D. Ill. 1997) (denying class
certification because plaintiff failed to carry her burden of demonstrating
the similarity of the laws of the thirteen states.).
Powers, 192 F.R.D. 318-19 (footnote omitted).
In its answer (Doc. 14) DHL has asserted that “the applicable statutes of
limitations” bar the WARN Act claims asserted by Mr. Likes and the class. (Id. at 7
¶ 3). During the hearing, the court asked the question of whether the potential
application of this affirmative defense would mean that it would have to undergo a
state-wide analysis regarding whether any of the WARN Act claims had become
stale. While Mr. Likes answered in open court that this statute of limitations defense
would require a survey of state law, nowhere in his briefing does he identify, much
less address this issue.
In Klay v. Humana, Inc., 382 F.3d 1241 (11th Cir. 2004), the Eleventh Circuit
summarized the framework to use when a plaintiff seeks to show that certification of
a nationwide class premised upon state law claims is appropriate and cited with
approval the Powers decision:
“In a multi-state class action, variations in state law may swamp
any common issues and defeat predominance.” Castano, 84 F.3d at 741.
It goes without saying that class certification is impossible where the
fifty states truly establish a large number of different legal standards
governing a particular claim. See Sikes, 281 F.3d at 1367 n.44
(“Assuming that the district court was correct in ruling that the laws of
all fifty states apply, that alone would render the class unmanageable.”);
Andrews v. Am. Tel. & Tel. Co., 95 F.3d 1014, 1024 (11th Cir. 1996)
(“The appellants cite the need to interpret and apply the gaming laws of
all fifty states to assess the legality of each 900-number program as
foremost among the difficulties in trying the gambling claims on a class
basis, and we agree.”); Kirkpatrick, 827 F.2d at 725 (upholding the
district court’s denial of class certification because “the state law claims
would require application of the standards of liability of the state in
which each purchase was transacted”). But see In re St. Jude Med., Inc.,
MDL No. 01-1396, 2004 WL 45504, at *4, 2004 U.S. Dist. LEXIS 149,
at *12 (D. Minn. Jan. 5, 2004) (“[T]he Court is not convinced that it is
per se impossible to certify and successfully try a class action involving
the laws of 50 states. . . .”).
On the other hand, if a claim is based on a principle of law that is
uniform among the states, class certification is a realistic possibility.
See In re Terazosin Hydrochloride Antitrust Litig., 220 F.R.D. 672, 695
(S.D. Fla. 2004) (noting that because “the essential elements of [the
plaintiffs’] antitrust claims do not vary significantly from state-to-state,
. . . they are susceptible to proof using common evidence”). In In re
GMC Pick-Up Truck Fuel Tank Products Liability Litigation, for
example, the Third Circuit held that class certification was appropriate
because “we cannot conceive that each of the forty-nine states
(excluding Texas) represented here has a truly unique statutory scheme.
. . .” 55 F.3d 768, 818 (3d Cir.1995); cf. Simon, 482 F.2d at 883
(declining class certification in part because “the geographical
dispersion of the alleged representations would bring into issue various
state common law standards. With no single law governing the entire
class, common issues of law cannot be shown to warrant Rule 23
Similarly, if the applicable state laws can be sorted into a small
number of groups, each containing materially identical legal standards,
then certification of subclasses embracing each of the dominant legal
standards can be appropriate. See, e.g., Krell v. Prudential Ins. Co. of
Am., 148 F.3d 283, 315 (3d Cir. 1998) (“Courts have expressed a
willingness to certify nationwide classes on the ground that relatively
minor differences in state law could be overcome at trial by grouping
similar state laws together and applying them as a unit.”); Walsh v. Ford
Motor Co., 807 F.2d 1000, 1017 (D.C. Cir. 1986) (holding that class
certification is appropriate where “variations [in state law] can be
effectively managed through creation of a small number of subclasses
grouping the states that have similar legal doctrines”). In such a case,
of course, a court must be careful not to certify too many groups. “If
more than a few of the laws of the fifty states differ, the district judge
would face an impossible task of instructing a jury on the relevant law.
. . .” In re Am. Med. Sys., 75 F.3d 1069, 1085 (6th Cir. 1996).
The burden of showing uniformity or the existence of only a small
number of applicable standards (that is, “groupability”) among the laws
of the fifty states rests squarely with the plaintiffs. Walsh, 807 F.2d at
1017 (“[T]o establish commonality of the applicable law, nationwide
class action movants must credibly demonstrate, through an extensive
analysis of state law variances, that class certification does not present
insuperable obstacles.”) (quotation marks omitted); Powers v. Gov't
Employees Ins. Co., 192 F.R.D. 313, 318-19 (S.D. Fla. 1998) (“To
certify a multi-state class action, a plaintiff must prove through
‘extensive analysis’ that there are no material variations among the law
of the states for which certification is sought. If a plaintiff fails to carry
his or her burden of demonstrating similarity of state laws, then
certification should be denied.”) (citation omitted); cf. Carnegie v.
Household Int'l, Inc., 220 F.R.D. 542, 549 (N.D. Ill. 2004) (declining
class certification because “[i]f the laws of the fifty states all follow one
of a small number of identical standards, [the named plaintiff] has not
made any attempt to prove that this is the case”).
Klay, 382 F.3d at 1261-62 (emphasis added).
Akin to the framework set forth in Klay, because Mr. Likes, with respect to
DHL’s statute of limitations defense, has not carried his Rule 23 burden of “prov[ing]
through ‘extensive analysis’ that there are no material variations among the law of the
states for which certification is sought,” certification should be denied on
Additionally, for the same reasons that this court has found commonality to be
lacking, it, a fortiori, determines that Mr. Likes has not met his burden of
demonstrating predominance. In particular, the nuances surrounding the single site
of employment inquiry under the WARN Act as well as DHL’s numerous contractor
relationships make it impossible for the court to reach a generalized decision
applicable to the nationwide class that Mr. Likes seeks to represent.
For example and as Mr. Likes concedes, the court would have to engage in a
separate inquiries about: (i) whether each independent contractor employed enough
persons to be a covered entity under the WARN Act, see 29 U.S.C. § 2101(a)(1)
(“[T]he term ‘employer’ means any business enterprise that employs--(A) 100 or
more employees, excluding part-time employees; or (B) 100 or more employees who
in the aggregate work at least 4,000 hours per week (exclusive of hours of
overtime)[.]”); (ii) whether any independent contractors had its own legal duty to
provide WARN Act notice because it laid off at least fifty employees at a particular
site without the need to aggregate its dismissed employees with those from other
companies;10 and (iii) whether the WARN Act notice was required at each station
At the hearing, counsel for Mr. Likes indicated that he was only able to
identify four out of three hundred contractors who would have had to issue WARN
Act notices. However, because Mr. Likes has not developed this information as part
of the Rule 23 record, the court is unable to verify the accuracy of his statement and
the amount could be more or less.
where any particular subclass of members reported. (See Doc. 35 at 18 (“In the
instant case, there are potentially thousands of members (depending on whether they
were employed at a station which was large enough to trigger WARN obligations
when the cancellation occurred).”)).
Other individualized determinations identified during the hearing include: (i)
whether any independent contractors chose to provide advanced notice of the
impending layoff to class members by posting the information at certain stations;11
(ii) whether those prospective class members received such notice; and (iii) whether
such posting or other notice would be legally adequate under the WARN Act.
Accordingly, individualized issues abound, and Mr. Likes’s proposed class does not
meet the predominance requirement.
As Powers explained superiority:
An additional prerequisite to certification under Rule 23(b)(3) is
that a class action is superior to other available methods for the fair and
efficient adjudication of the controversy. The various state laws that are
implicated by certification of a class comprised of insureds from fifteen
states militate against a finding that a class action is the superior method
for adjudication of this controversy. In re Jackson National, 183 F.R.D.
For example, counsel for Mr. Likes admitted during the hearing that he does
not know whether a WARN Act notice was ever provided to those employees
working for the four DHL contractors who he identified would have had an
independent legal obligation to provide such notice.
217. See also Castano, 84 F.3d at 745 n.19 (“the greater the number of
individual issues, the less likely superiority can be established”). This
Court would be faced with the insurmountable task of instructing a jury
on the law of several states. See American Medical Systems, 75 F.3d at
1085 (denying class certification because the district judge was faced
with the impossible task of instructing a jury on the relevant law).
Plaintiff has failed to address the difficulties posed by the variations and
has not proposed any solutions. Accordingly, this Court finds that
concerns over the management of the class action negate a finding of
Powers, 192 F.R.D. at 319-20 (emphasis added).
As discussed above and akin to Powers, this lawsuit will involve variations in
state law as it pertains to which statute of limitations this court should apply to Mr.
Likes and the class members’ WARN Act claims. One possibility that was discussed
during the hearing is for this court to utilize the state statute of limitations “most
analogous” to a WARN Act claim. Cf. Owens v. Okure, 488 U.S. 235, 240, 109 S.
Ct. 573, 576, 102 L. Ed. 2d 594 (1989) (“Recognizing the problems inherent in the
case-by-case approach, we determined that 42 U.S.C. § 1988 requires courts to
borrow and apply to all § 1983 claims the one most analogous state statute of
limitations.” (citing Wilson v. Garcia, 471 U.S. 261, 275, 105 S. Ct. 1938, 1946, 85
L. Ed. 2d 254 (1985)). Complicating this approach is the wrinkle of whether to
characterize a WARN Act claim as either contractual in nature or tort-based.
In his briefing, Mr. Likes has not acknowledged, much less suggested how to
adequately manage this statute of limitations question and instead seems to indicate
that a favorable decision for Mr. Likes on the solitary issue of single site of
employment would necessarily mean the same result for the purported class members.
(See Doc. 43 at 21 (“If a favorable decision to the plaintiff (and a proposed class) on
the single employer question is reached . . . .”)). The absence of a workable proposal
from Mr. Likes on how to handle DHL’s statute of limitations defense for the entire
class is critical because without a plan, the court anticipates that such an issue could
likely devolve into multiple mini-rulings on not only which state statute to utilize but
also how to apply the selected statute to each particular class member, i.e., when did
that class member’s WARN Act cause of action accrue?
Additionally, this lawsuit presents the thorny issue of determining which
subsets of the putative class, who worked for DHL contractors other than Wood Air
(i.e., the contractor who employed Mr. Likes), would be able to assert a single site of
employment WARN Act claim against DHL because in the aggregate at each
applicable station (i) the independent contractors employed a statutorily sufficient
number of full-time employees; and (ii) they subsequently dismissed a statutorily
sufficient number of full-time employees after entering into a Termination a
Transition Agreement with DHL. However, as discussed in detail above, Mr. Like
has failed to show uniformity within the purported nationwide class concerning these
single site of employment sub-issues and this omission on his part “militate[s] against
a finding that a class action is the superior method for adjudication of this
controversy.” Powers, 192 F.R.D. at 319
Similarly, Mr. Likes has not proposed how to handle the determination of
whether a laid-off class member was working for a contractor who, because of the
overall size of its workforce and the number of employees affected at a certain
station, was statutorily required to provide (and did or did not provide) those
employees with a WARN Act notice. Therefore, the court’s “concerns over the
management of the class action [and Mr. Likes’s concomitant failure to adequately
address how to handle such issues] negate a finding of superiority.” Id.; see also
Sacred Heart Health Sys., Inc. v. Humana Military Healthcare Servs., Inc., 601 F.3d
1159, 1184 (11th Cir. 2010) (“[A] class action containing numerous uncommon
issues may quickly become unmanageable.”).12
The court appreciates that seldom, if at all, can “difficulties inherent in
managing the class . . . be the sole reason for denying class certification. However,
as is clear from [this court’s] analysis, managing the class action has not been the
[exclusive] reason for [the] decision [denying] . . . class certification.” Simer v. Rios,
661 F.2d 655, 678 n.48 (7th Cir. 1981); see also Klay, 382 F.3d at 1272 (“This
concern [about manageability] will rarely, if ever, be in itself sufficient to prevent
certification of a class.”).
In sum, and for the multiple reasons stated above, Mr. Likes has not met his
pre-Rule 23, Rule 23(a), or Rule 23(b)(3) burden on seeking nationwide class
certification.13 Accordingly, Mr. Likes’s Motion to Certify is DENIED.
DONE and ORDERED this the 21st day of December, 2012.
VIRGINIA EMERSON HOPKINS
United States District Judge
While the court acknowledges that, by way of his reply brief, Mr. Likes has
come closer to satisfying his multiple Rule 23 burdens than he did initially, his
subsequent efforts are still unconvincing due to the overall lack of a rigorously
developed evidentiary as well as legal foundation upon which to adequately support
his proposed nationwide class. Additionally, the court finds underdeveloped Mr.
Likes’s request to allow him the opportunity to amend his class definition in the event
of an adverse ruling by this court. (Doc. 43 at 18-19). In particular, in seeking this
relief, Mr. Likes has offered no modified definition that would alleviate the
ascertainability deficiencies that DHL has identified. Alternatively, the court’s
rejection of Mr. Likes’s Motion to Certify is based upon a myriad of reasons and does
not turn solely upon a conclusion that he has proposed a definition that amounts to
an improper fail-safe class.
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