May v. Blackhawk Mining, LLC

Filing 60

MEMORANDUM OPINION & ORDER: Pla's 42 Class Certification Motion is GRANTED. A separate order conforming with this decision and including additional procedural requirements will follow. Signed by Judge Joseph M. Hood on April 3, 2017. (AWD) cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
JEREMY MAY,

)
)
)
)
)
)
)
)
)

Plaintiff,
v.
BLACKHAWK MINING, LLC,
Defendant.

Civil Case No.
15-cv-377-JMH

MEMORANDUM OPINION & ORDER

***

This matter is before the Court upon the Plaintiffs’ Motion
to Certify Class [DE 42]. Defendants have filed a Joint Response
[DE 52], and Plaintiffs have filed a Reply in further support of
their motion [DE 56].
Plaintiff Jeremy May commenced this class action proceeding
on December 18, 2015, against defendant Blackhawk Mining, LLC.
On July 15, 2016, Mr. May and Nathan Ray (“Plaintiffs”) filed an
amended

complaint

against

Blackhawk

Mining,

LLC,

Spurlock

Mining, LLC, and Redhawk Mining, LLC (“Defendants”). Plaintiffs
allege that beginning on or about December 11, 2015, Defendants
terminated their employment and the employment of approximately
200

similarly

written

notice

situated
as

employees

required

by

without
the

providing

Worker

60

Adjustment

days’
and

Retraining Notification Act, 29 U.S.C. §§ 2101 et seq. (“WARN
Act”)

(DE

34,

Amended

Complaint)).

Plaintiffs

allege

that

Defendants are liable under the WARN Act for the termination of
these employees without adequate notice. (Id.) Plaintiffs now
move for an order: (a) certifying a class, pursuant to Rule
23(b)(3) of the Federal Rules of Civil Procedure comprised of
Plaintiffs

and

all

persons

employed

by

Defendants

Blackhawk

Mining, LLC, Spurlock Mining, LLC, and Redhawk Mining, LLC: (i)
who worked at or reported to the Mine Complex located at 1527 KY
State Route 2030 in Printer, Kentucky, 4189 Frasure Creek in
McDowell, Kentucky and Garth Hollow/Akers Branch Road in Drift,
Kentucky, (ii) who were terminated without cause on or about
December

11,

2015

or

thereafter

in

connection

with

the

mass

layoff(s) or plant closing(s) at the Mine Complex, (iii) who are
“affected

employees”

within

the

meaning

of

29

U.S.C.

§

2101(a)(5), and (iv) who have not filed a timely request to optout of the class, (b) appointing Outten & Golden LLP as Class
Counsel, (c) appointing Plaintiffs as the Class Representatives,
(d) approving the form and manner of Notice to the WARN Class,
and (e) granting such other and further relief as this Court may
deem just and proper.
The

WARN

Act

provides

that

before

instituting

a

“plant

closing” or “mass layoff,” an employer must provide sixty days’
written notice to employees and to relevant local government
entities. See 29 U.S.C. § 2102(a). A covered employer is one
that employs at least 100 full-time employees. See 29 U.S.C. §

2101(a)(1). The WARN Act provides a cause of action for any
employee who suffers a covered employment loss without having
received the statutorily-required notice. See 29 U.S.C. § 2104.
WARN

Act

plaintiffs

have

the

right

to

bring

representative

actions to enforce the Act: “A person seeking to enforce such
liability

...

may

sue

either

for

such

person

or

for

other

persons similarly situated, or both, in any district court of
the United States....” 29 U.S.C. § 2104(a)(5); Young v. Fortis
Plastics, LLC, 294 F.R.D. 128, 134 (N.D. Ind. 2013) (“The WARN
Act indicates that class treatment may be appropriate in this
type of litigation, providing that a person may sue ‘for other
persons similarly situated.’”); Applegate v. Formed Fiber Tech.,
LLC, No. 2:10-cv-00473-GZS, 2012 WL 3065542, at *3 (D. Me. July
27, 2012) (indicating same and collecting cases).
Courts in the Sixth Circuit have routinely certified Rule
23

WARN

Ltd.,

class

287

actions.

F.R.D.

See

402,

408

Calloway

v.

Caraco

(E.D.

Mich.

Pharm.

2012)

Labs.,

(motion

for

certification of WARN class granted under Rule 23); In re ABMD,
Ltd., 439 B.R. 475, 490-91 (S.D. Ohio 2010). To that end, class
certification

requires

a

two-step

inquiry.

Plaintiffs

must

satisfy the four prerequisites of Fed. R. Civ. P. 23(a), and
then

at

least

one

of

the

subsections

of

Rule

23(b).

See

Calloway, 287 F.R.D. at 406-07. Fed. R. Civ. P. 23(a) provides
for the following prerequisites:

One or more members of a class may sue or be
sued as representative parties on behalf of
all members only if:
(1)

the class is so numerous that
joinder of all members is
impracticable;

(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.

Here,

Plaintiffs

have

demonstrated

numerosity

in

the

putative class – approximately 200 members, each with a claim
estimated to be for less than $7,000, not including benefits.
Fed. R. Civ. P. 23(a)(1); see also Calloway, 287 F.R.D. at 406
(finding that WARN subclasses of 97 and 72 employees satisfied
numerosity and noting that the classes of as few as 35 employees
have

been

certified

in

the

6th

Circuit)

(citing

Afro

Am.

Patrolmen’s League v. Duck, 503 F.2d 294, 298 (6th Cir. 1974);
Ham v. Swift Transp. Co., Inc., 275 F.R.D. 475, 483 (W.D. Tenn.
2011); Kizer

v.

Summit

Partners,

L.P.,

1:11–CV–38,

2012

WL

1598066 (E.D. Tenn. May 7, 2012)); Davidson v. Henkel Corp., 302
F.R.D.
meeting

427,
the

436

(E.D.

numerosity

Mich.

2014)

factor

is

(“[t]he
to

modern

require

at

trend
a

for

minimum

“between

21

Berrybrook
1987);

and

40”

Farms,

Roman

class

members.”)

672

F.Supp.

Korson,

v.

Inc.,

152

F.R.D.

(citing

1009,
101,

Rodriguez

v.

1013

(W.D.

Mich.

105-06

(W.D.

Mich.

1993)).
Further, there is a common question of law or fact because
“the resolution of one particular issue will affect all or a
significant number of the members of a putative class.” Avio,
Inc. v Alffocino, Inc., 311 F.R.D. 434, 333 (E.D. Mich. 2015)
(citing In re Nw. Airlines Corp., 208 F.R.D. 174, 217 (E.D.
Mich. 2002)). “Generally, where the legality of a defendant’s
common course of conduct towards the class is at issue, the
commonality

component

of

class

certification

is

met.”

In

re

ABMD, Ltd. 439 B.R. at 485. Plaintiffs claim that they and other
potential class members were terminated as part of a common plan
stemming from Defendants’ decision to idle operations at the
relevant mining complex and that Defendants would be liable as a
“single

employer”

Plaintiffs

that

under

the

the

factual

WARN

Act.

and

legal

The

Court

questions

agrees
stem

with

from

a

common core of facts regarding Defendants’ actions and legal
issues regarding every class member’s rights, as follows: (a)
whether Defendants employed more than 100 employees; (b) whether
all the class members are protected by the WARN Act; (c) whether
the class members were employees of Defendants who worked at or
reported to the Mine Complex; (d) whether Defendants discharged

the class members on or about December 11, 2015 or thereafter;
(e) whether the class members were “affected employees”; (f)
whether

Defendants

members

without

terminated

cause;

(g)

the

employment

of

the

class

whether

Defendants

terminated

the

employment of the class members without giving them at least 60
days’ prior written notice as required by the WARN Act; (h)
whether
wages

Defendants
and

failed

benefit;

and

to
(i)

pay

the

whether

class

members

Defendants

are

60

days’

“single

employer.”
Whether any of the members of the class was an “affected”
employee

remains

an

open

question,

potentially

suitable

for

dispositive motion or for trial when the parties are prepared to
support their respective positions with evidence. The issue of
the merits of the claim does not, however, bear on the issue of
class

certification

in

this

instance

–

notwithstanding

Defendants vigorous insistence that it does. “When . . . the
concern about the proposed class is not that it exhibits some
fatal dissimilarity but, rather, a fatal similarity—[an alleged]
failure of proof as to an element of the plaintiffs’ cause of
action—courts should engage that question as a matter of summary
judgment,
Bouaphakeo,

not
136

class
S.

certification.”

Ct.

1036,

1047

Tyson

(2016)

Foods,
(quoting

Inc.

v.

Nagareda,

Class Certification in the Age of Aggregate Proof, 84 N.Y.U. L.
Rev. 97, 107 (2009)).

“In

determining

the

propriety

of

a

class

action,

the

question is not whether the plaintiff or plaintiffs have stated
a cause of action or will prevail on the merits, but rather
whether the requirements of Rule 23 are met.” Eisen v. Carlisle
& Jacquelin, 417 U.S. 156, 178, (1974) (citing Miller v. Mackey
Int’l.,

452

consider

F.2d

“only

424,

those

427

(5th

1971)).

relevant

matters

Cir.

to

The

Court

deciding

if

may
the

prerequisites of Rule 23 are satisfied” and “may not ‘turn the
class certification proceedings into a dress rehearsal for the
trial

on

the

merits.’”

In

re

Whirlpool

Corp.

Front-Loading

Washer Prod. Liab. Litig., 722 F.3d 838, 851-52 (6th Cir. 2013)
(quoting Messner v. Northshore Univ. HealthSys., 669 F.3d 802,
811 (7th Cir. 2012) and citing Amgen Inc. v. Conn. Retirement
Plans & Trust Funds, 133 S. Ct. 1184, 1194-95 (2013)); see also
Beattie v. CenturyTel, Inc., 511 F.3d 554, 560 (6th Cir. 2007);
Daffin v. Ford Motor Co., 458 F.3d 549, 553-54 (6th Cir. 2006);
Rikos

v.

Procter

&

Gamble

Co.,

No.

1:11-CV-226,

2014

WL

11370455, at *3 (S.D. Ohio June 19, 2014); Khaliel v. Norton
Health Care Inc. Ret. Plan, 287 F.R.D. 511, 512 (W.D. Ky. 2012)
(“it

is

not

plaintiffs’

necessary

claims

at

to

the

delve
class

into

the

certification

merits
stage

of

the

because

proof of commonality does not overlap with the plaintiffs’ merit
contentions”). Rather than determining if the claims have merit,
at this stage, the critical question is whether the claims will

“prevail or fail in unison.” In re Whirlpool, 722 F.3d at 858
(internal quotation marks omitted). If the plaintiff class is
“entirely cohesive,” meaning that however the merits issues are
resolved the class will “prevail or fail in unison,” then the
Rule 23(a) issues of commonality and typicality will be met and
predominate over any individual questions. Id. at 858.
Defendants apparently concede that the group of employees
laid

off

in

predominates

2015

have

over

the

commonality

individual

and

questions,

typicality
for

they

which
speak

repeatedly of how “all of the laid off employees were recalled
to work within six months” and how “none of the employees laid
off in December 2015 are ‘affected employees’ because each was
recalled

within

six

months.”

[Response

at

1,

11.]

Class

certification does not require, under Rule 23(b)(3), that the
plaintiff “must first establish that it will win the fray....”
In re Whirlpool, 722 F.3d at 858–59. This court seeks only “to
select

the

‘metho[d]’

best

suited

to

adjudication

of

the

controversy ‘fairly and efficiently.’” Id. Having considered the
motion, the Court concludes that common questions far exceed the
requirement of a single common question of law or fact and that
the proposed class satisfies the commonality requirement of Rule
23(a).
Typicality

is

met

for

the

purposes

of

Fed.

R.

Civ.

P.

23(a)(3) if the class members’ claims are “fairly encompassed by

the

named

plaintiffs’

claims.”

Davidson,

302

F.R.D.

at

437

(citing In re Whirlpool, 722 F.3d at 852). A claim is typical if
“it arises from the same event or practice or course of conduct
that gives rise to the claims of other class members, and if his
or her claims are based on the same legal theory.” Beattie v.
CenturyTel., Inc., 511 F.3d 554, 561 (6th Cir. 2007) (citation
omitted); accord Calloway, 287 F.R.D. at 407 (“Calloway claims
to have suffered the same injury as the other potential class
members; namely, Caraco terminated them in violation of the WARN
Act by not giving them a 60 day notice before termination.”).
Typicality

under

Rule

23(a)(3)

should

be

determined

with

reference to the company’s actions and is satisfied when each
class member’s claim arises from the same course of events and
each class member makes similar legal arguments to prove the
Defendants’

liability,

not

with

respect

to

particularized

defenses it might have against certain class members. Murphy v.
LenderLive Network, Inc., Civil Action No. 13-cv-03135-RBJ, 2014
WL 5396165, at *4 (D. Colo. Oct. 22, 2014) (certifying WARN
class over Defendant’s objection that employees who did not work
in Defendant’s physical sites did not have a cognizable claim
because Defendant’s alleged failure to provide notice under the
WARN Act allegedly resulted in injury to all of the putative
class members, regardless of their status as on-site or remote).
In

this

instance,

both

Plaintiffs

and

the

potential

class

members allegedly suffered injury beginning on or about December
11, 2015, when they lost their jobs without 60 days’ notice and
were not compensated due to a violation of the WARN Act by
Defendants.

Whether

or

not

some

of

the

Plaintiffs

and

class

members were later rehired and paid further or not is irrelevant
to this Court’s inquiry into typicality. Thus, the legal theory
upon which Plaintiffs proceed makes them typical of the Class,
and Plaintiffs satisfy the typicality requirement of Rule 23(a).
The

Court

is

also

persuaded

that

the

Plaintiffs

will

“fairly and adequately protect the interests of the class.” Fed.
R.

Civ.

P.

23(a)(4).

“Adequacy

requires

that

‘(1)

the

representative [has] common interests with unnamed members of
the class, and (2) it must appear that the representatives will
vigorously

prosecute

the

interests

of

the

class

through

qualified counsel.’” Calloway, 287 F.R.D. at 407 (quoting In re
Am. Med. Sys., Inc., 75 F.3d 1069, 1083 (6th Cir. 1996)). The
circumstances of Plaintiffs’ employment and terminations render
their interests the same as those of putative class members. All
must prove that they were entitled to, and not given adequate
WARN notice. All must show that Defendants are a single employer
and are not protected by WARN’s statutory exceptions. Further,
they are qualified to vigorously prosecute the interests of the
class

through

qualified

counsel.

Plaintiffs’

counsel

and

proposed class counsel has spent time investigating the facts

giving rise to the WARN claim in this action, has continued to
investigate the matter since filing this case, and has briefed
the Court with respect to various matters, including Defendants’
Motion to Dismiss. Plaintiffs’ counsel has also cited its prior
certification
demonstrated

as

class

extensive

counsel

in

experience

WARN
in

Act

matters

WARN

Act

and

class

has

action

litigation.
Finally, the Court is persuaded that the class meets the
requirements

of

Fed.

R.

Civ.

P.

23(b)(3):

predominance

and

superiority. “The ‘predominance inquiry tests whether proposed
classes

are

sufficiently

cohesive

to

warrant

adjudication

by

representation.’” Tyson Foods, Inc., 136 S. Ct. at 1045 (quoting
Amchem Products, Inc. v. Windsor, 521 U.S. 591, 623 (1997)).
Litigation in this matter is focused on whether the terminations
were

related

to

a

plant

closing

or

mass

layoff,

whether

Defendants were a single employer, whether Defendants provided
notice to terminated employees, and whether Defendants otherwise
provided

adequate

compensation.

There

is

no

allegation

or

suggestion that any of the potential class members were treated
differently

with

respect

to

these

issues,

nor

is

the

Court

persuaded that the decision to invite the return of the class
members, some of whom did return and were paid prior to any
subsequent termination and some of whom did not and were not
paid, changes anything about this analysis.

Further,

class

certification

is

the

superior

method

of

resolving this dispute under the WARN Act because many of the
claims

are

quite

small,

making

individual

lawsuits

impracticable. Local Joint Exec. Bd. of Culinary/Bartender Trust
Fund v. Las Vegas Sands, Inc., 244 F.3d 1152, 1163 (9th Cir.
2001) (WARN claim “easily satisfied” superiority requirement of
Rule 23(b)(3)). Plaintiff and the proposed class claims would
not

be

therefore

economically
class

individually.

viable

claims

Calloway,

if

are

287

brought

independently

superior

F.R.D.

at

408

to

and

adjudication

(“the

limits

on

damages under the WARN Act make it economically infeasible for
individuals to file their own cases; a class action would give
claimants

the

‘effective

strength’

to

bring

their

claim

to

court.”). No less, it is in the interest of judicial economy and
efficiency to consolidate as many as 200 claims into a single
action that will permit resolution of common questions of law
and fact to be determined all at once. See In re ABMD Ltd., 439
B.R. at 488 (finding in WARN case that “costs will be limited
and

judicial

economy

will

be

served

by

resolving

the

common

legal and factual disputes in one action”).
As set forth above, Plaintiffs’ counsel have been active
and

diligent

in

pursuing

this

action,

and

they

are

highly

experienced with respect to class action litigation and WARN
claims, in particular, having been appointed as class counsel in

over 100 WARN actions. Similarly, Plaintiffs have been diligent
in

pursuing

this

action

and

have

worked

with

counsel

in

initiating and prosecuting the act. The Court sees no potential
conflict

of

counsel

interest

will

be

with

appointed

other
class

class

members.

counsel

in

this

Accordingly,
matter,

and

Plaintiffs Jeremy May and Nathan Ray will be appointed as class
representatives.
Lastly, the Court agrees that the proposed notice would
provide adequate notice to potential class members. The contents
of the proposed Notice are sufficient, as it summarizes in plain
language

the

nature

of

the

pending

WARN

Act

litigation

and

apprises the proposed Class, among other things, of the Class
definition, of the claims, issues and defenses, that complete
information regarding the action is available upon request from
Class Counsel, that any Class Member may opt-out of the Class,
that if they do not opt-out, they will be bound by any judgment
or settlement in the litigation, and that if they do not optout, they may appear by their own counsel. See Calloway, 287
F.R.D. at 408.
Accordingly, for all of the reasons stated above and upon
finding that the proposed class meets the requirements of Fed.
R. Civ. P. 23(a) and (b), IT IS ORDERED that Plaintiff’s Class
Certification

Motion

[DE

42]

is

GRANTED.

A

separate

order

conforming

with

this

decision

procedural requirements will follow.
This the 3rd day of April, 2017.

and

including

additional