United States District Court, M.D. Florida, Tampa Division
D. WHITTEMORE, UNITED STATES DISTRICT JUDGE.
THE COURT are Plaintiffs' Rule 23 Motion for
Class Certification As To Warn Act Claims and Common Law
Unpaid Wage Claims (Dkt. 25), Defendants' response (Dkt.
33), and Plaintiffs' Notice of Voluntary Withdraw of
Plaintiffs' Rule 23 Motion for Class Certification as to
Common Law Unpaid Wage Claims Only (Dkt. 66). A hearing on
the motion was held on September 15, 2016. For the reasons
stated on the record, the Motion is GRANTED in
part and Plaintiffs' WARN Act Class is
Ace Homecare was a home health agency that had several
locations in the State of Florida and employed hundreds of
employees. The seven named plaintiffs were employed by Ace
Homecare at its Sebring, Florida location (also referred to
as the Avon Park facility) until their termination when all
of Ace Homecare's facilities were shut down. Six were
employed as nurses and one as a home health aid.
(See Plaintiffs' Declarations, Dkts. 25-29).
According to the Complaint, during the last two weeks of
Plaintiffs' employment, from February 29, 2016 to March
13, 2016, Plaintiffs and the purported similarly situated
employees received no compensation and were terminated
without at least 60 days' advance notice in violation of
the Worker Adjustment and Retraining Notification Act, 29
U.S.C. § 2101 et seq. ("WARN Act").
initially sought certification of two classes:
WARN Act Class:
Any employee of ACE HOMEC ARE, LLC in Florida who was not
given a minimum of 60 days' written notice of termination
and whose employment was terminated as a result of a
"mass layoff' or "plant closing" as
defined in CFR 639.3 and regulated by federal statute as
codified under 29 U.S.C. §2101 under the Workers
Adjustment and Retraining Notification Act of 1988. The class
excludes "part-time" employees as defined under 29
U.S.C. §2101 (a)(8).
Unpaid Common Law Wages Class:
Any employee of ACE HOMEC ARE, LLC in Florida who worked but
was not paid all wages owed for the time period from February
29, 2016 to March 13, 2016. This class seeks to recover the
difference between Florida's minimum wage and each
putative members' salary and/or hourly wage.
request that Plaintiff Toni Molina be appointed as class
representative, and the law firm Wenzel, Fenton, Cabassa,
P.A. and Black Rock Trial Group be appointed as class
counsel.Defendants do not contest Plaintiffs'
motion with respect to the WARN Act Class. And, Plaintiffs
have withdrawn their request for class certification of the
Unpaid Common Law Wages Class. (Dkt. 66).
CLASS CERTIFICATION STANDARD
class action is 4an exception to the usual rule that
litigation is conducted by and on behalf of the individual
named parties only.'" Wal-Mart Stores, Inc. v.
Dukes, ___U.S.___, ___, 131 S.Ct.
2541, 2550, 180 L.Ed.2d 374 (2011) (quoting Califano v.
Yamasaki, 442 U.S. 682, 700-01, 99 S.Ct. 2545, 61
L.Ed.2d 176 (1979)). Accordingly, the burden of establishing
the propriety of class certification rests with the advocate
of the class. Valley Drug Co. v. Geneva Pharms.,
Inc., 350 F.3d 1181, 1187 (11th Cir. 2003); Jones v.
Diamond, 519 F.2d 1090, 1099 (5th Cir.1975).
may be certified only if (1) the class is so numerous that
joinder of all members would be impracticable; (2) there are
questions of fact and law common to the class; (3) the claims
of the representatives are typical of the claims of the
unnamed members; and (4) the named representatives will be
able to represent the interests of the class adequately and
fairly. Fed.R.Civ.P. 23(a). These prerequisites to class
certification are referred to as "numerosity,
commonality, typicality, and adequacy of representation,
" and are "designed to limit class claims to those
fairly encompassed by the named plaintiffs* individual
claims." Prado-Steiman ex rel. Prado v. Bush,
221 F.3d 1266, 1278 (11th Cir. 2000).
addition to the requirements of Rule 23(a), at least one of
the three alternative subsections of Rule 23(b) must be
satisfied to certify a class. Babineau v. Fed. Express
Corp.,576 F.3d 1183, 1190 (11th Cir. 2009). Plaintiffs
seek certification under Rule 23(b)(3), which requires them
to demonstrate (1) that questions of law or fact common to
class members predominate over any questions affecting only
individual members, and (2) that a class action is superior
to other available methods for fairly and efficiently
adjudicating the controversy. Id. Failure to
establish any of the required elements of Rule 23(a) or Rule