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May v. Blackhawk Mining, LLC

United States District Court, E.D. Kentucky, Central Division, Lexington

April 3, 2017

JEREMY MAY, Plaintiff,


          Joseph M. Hood Senior U.S. District Judge.

         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 situated employees without providing 60 days' written notice as required by the Worker Adjustment 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 opt-out 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 class actions. See Calloway v. Caraco Pharm. Labs., Ltd., 287 F.R.D. 402, 408 (E.D. Mich. 2012) (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:

         (2) there are questions of law or fact common to the class;

         (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. 427, 436 (E.D. Mich. 2014) (“[t]he modern trend for meeting the numerosity factor is to require at a minimum “between 21 and 40” class members.”) (citing Rodriguez v. Berrybrook Farms, Inc., 672 F.Supp. 1009, 1013 (W.D. Mich. 1987); Roman v. Korson, 152 F.R.D. 101, 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” under the WARN Act. The Court agrees with Plaintiffs that the factual and legal questions stem 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 terminated the employment of the class members without cause; (g) 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 Defendants failed to pay the class members 60 days' wages and benefit; and (i) whether Defendants are “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, not class certification.” Tyson Foods, Inc. v. Bouaphakeo, 136 S.Ct. 1036, 1047 (2016) (quoting 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 F.2d 424, 427 (5th Cir. 1971)). The Court may consider “only those matters relevant to deciding if 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 necessary to delve into the merits of the plaintiffs' claims at the class certification stage 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 2015 have the commonality and typicality which predominates over individual questions, for they 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 ...

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