United States District Court, N.D. Georgia, Atlanta Division
TERRI BONNY, et al., on behalf of themselves and all others similarly situated, Plaintiffs,
BENCHMARK BRANDS, INC., Defendant.
OPINION AND ORDER
WILLIAM S. DUFFEY, JR. UNITED STATES DISTRICT JUDGE.
matter is before the Court on Plaintiffs' Motion to Amend
Complaint to Correct Misnomer  (“Motion to
Amend”), Plaintiffs' Motion for Default Judgment
Against Defendant Benchmark Brands, Inc.  (“Motion
for Default”), and Plaintiffs' Motion for Class
Certification  (“Motion for Class Cert.).
are former employees of FootSmart, a division of Benchmark
Brands, Inc. (“Defendant”). ( at 1). On August
11, 2016, Plaintiffs were informed, for the first time, that
Defendant was ceasing all operations and closing all
facilities effective immediately and that their employment
was terminated as of August 11, 2016. (
¶ 6). Plaintiffs were provided with a
letter, also dated August 11, 2016, from Defendant stating:
TO ALL EMPLOYEES OF BENCHMARK BRANDS, INC.
Re: WARN Act Notice of Plant Closing Dear Employees:
Pursuant to 20 C.F.R. 639.1(e), BENCHMARK BRANDS, INC. (the
“Company”) is providing you with this Notice
consistent with the requirements of the federal Worker
Adjustment and Retraining Notification Act (the “WARN
Act”), 29 U.S.C. § 2101, et seq.
The Company regrets to notify you that as of today, August,
11, 2016, it has ceased all operations and closed all
facilities (i.e., all “plants”) . . . . As a
result of these closing, as of today, August 11, your
employment with the Company has ended and your layoff will be
permanent. . . .
Lastly, we want to explain to you why we could not provide
this Notice 60 days prior to the closing, or even earlier
than we have. Regrettably, the ceasing of business and
closing of facilities is happening as the result of the
Company's creditor foreclosing on our debt obligation and
taking possession of its assets. The finalization of this
foreclosure did not occur until today, and upon such
finalization, the credit is foreclosing immediately,
necessitating termination of employees today. There was no
ability to forestall the foreclosure to allow it to provide
60 days prior notice to employees.
[A] large portion of the Company's assets will be sold to
The Walking Company, and The Walking Company intends to start
a new business through a subsidiary of FootSmart, Inc.
(“New FootSmart”). I anticipate that in the near
future, representatives from New FootSmart may contact some
of you about applying for a job with them.
([1.2] (“August 11, 2016, Letter”) at 1).
contend, “on information and belief, ” that, more
than 60 days prior to August 11, 2016, Defendant was actively
contemplating and/or negotiating the sale of its assets to
The Walking Company and discussing a resolution of its
indebtedness. (Id. ¶ 10). The
Complaint concedes that, “[w]hile a small number of
employees may have been re-hired by The Walking Company after
August 11, 2016, they, along with approximately 200 other
employees were terminated on August 11, 2016, and all
suffered an ‘employment loss[.]'”
(Id. ¶ 12). Plaintiffs allege
that none of the Plaintiffs or their co-workers received any
type of additional, or “severance, ” payment upon
their termination. (Id. ¶ 13).
Plaintiffs received their final wage payments on the date of
their termination, and “[t]hese final wage payments did
not include any pay above [Plaintiffs] regular wages for time
worked” or “any pay in lieu of the required
sixty-day notice period.” (Id.
August 26, 2016, Plaintiffs, on behalf of themselves and all
others similarly situated, filed the Complaint alleging that
Defendant violated the Worker Adjustment and Retraining
Notification Act, 29 U.S.C. § 2101 et seq.
(“WARN” or “the Act”). Plaintiffs
allege that their August 11, 2016, termination of employment
at Benchmark constituted a “plant closing” or
“mass layoff” under the WARN Act, 29 U.S.C.
§ 2101. ( ¶ 18). Plaintiffs
contend that, under 29 U.S.C. § 2102(a)(1), Plaintiffs,
and all other similarly situated employees, were entitled to
receive written notification of their impending layoff sixty
(60) days prior to their termination. (Id.
¶ 19). Plaintiffs state that they did
not receive this required notification. (Id.).
Plaintiffs allege that the Notice received by Plaintiffs on
August 11, 2016, was ineffective Notice under the provisions
of the WARN Act. (Id. ¶ 20).
Plaintiffs seek to recover back pay, benefits, attorney's
fees, and other relief. (Id.
November 28, 2016, Plaintiffs filed their initial Motion for
Default Judgment . On March 10, 2017, the Court-construing
the motion as one seeking a clerk's entry of default
against Defendant as required by Federal Rule of Civil
Procedure 55(a)-granted the motion and directed the clerk to
enter default. ( at 3-4). The clerk entered default on
March 10, 2017.
16, 2017, Plaintiffs filed the Motion to Amend seeking to
correct a misnomer of one the Named Plaintiffs. The same day,
Plaintiffs filed their Motion for Default Judgment and Motion
for Class Certification. In their Motion for Class
Certification, Plaintiffs seek certification of a class
consisting of “[a]ny employee of [Defendant] terminated
on August 11, 2016 who was not given a minimum of sixty (60)
days-notice of termination and whose employment was
terminated as a result of a ‘mass layoff' or
‘plant closing' as defined by the WARN Act.”
([9.1] at 2). In their Motion for Default Judgment,
Plaintiffs contend that Defendant has not appeared or
otherwise responded to the Complaint, the Complaint
sufficiently alleges all of the elements of a WARN Act
violation, and because Defendant admits to those allegations,
default judgment should be entered. ([8.1] at 12).
Motion to Amend
the period permitting amendment as a matter of course,
“a party may amend its pleading only with the opposing
party's written consent or the court's leave.”
Fed.R.Civ.P. 15(a)(2). “The court should freely give
leave when justice so requires.” Id. That is,
“[i]n the absence of any apparent or declared reason-
such as undue delay, bad faith or dilatory motive on the part
of the movant, repeated failure to cure deficiencies by
amendments previously allowed, undue prejudice to the
opposing party by virtue of allowance of the amendment,
futility of amendment, etc.-the leave sought should, as the
rules require, be ‘freely given.'” Foman
v. Davis, 371 U.S. 178, 182 (1962).
an amendment adds claims or defenses or adds or substitutes
parties, a further burden is imposed. Once a court determines
that Rule 15(a) of the Federal Rules of Civil Procedure is
satisfied, it must then decide whether such amendments
“relate back” to the original pleading to be
amended, thereby avoiding any potential expiration of the
statute of limitations period. Under Rule 15(c) of the
Federal Rules of Civil Procedure, amendments that
“change[ ] the party or the naming of the party against
whom a claim is asserted” relate back to the date of
the original pleading if certain requirements are met.
Fed.R.Civ.P. 15(c)(1)(C). Those requirements are that the
opposing party “(i) received such notice of the action
that it will not be prejudiced in defending on the merits;
and (ii) knew or should have known that the action would have
been brought against it, but for a mistake concerning the
proper party's identity.” Fed.R.Civ.P.
15(c) does not, however, specifically address situations
where the moving party seeks to amend its own name. The
Eleventh Circuit, following other circuits, has held that the
“extension of Rule 15(c)(3) to amendments involving
plaintiffs rests on solid ground.” Cliff v. Payco
Gen. Am. Credits, Inc., 363 F.3d 1113, 1132 (11th Cir.
2004). In other words, “[t]hough [Rule 15(c)(1)(C)]
technically references amendments that change the parties
against whom claims are asserted, [the Eleventh Circuit] have
previously applied it to situations in which new plaintiffs
were added.” Makro Capital of Am., Inc. v. UBS
AG, 543 F.3d 1254, 1259 (11th Cir.2008). The Advisory
Committee's Note, which the Eleventh Circuit cites in
The relation back of amendments changing plaintiffs is not
expressly treated in revised Rule 15(c) since the problem is
generally easier. Again the chief consideration of policy is
that of the statute of limitations, and the attitude taken in
revised Rule 15(c) toward change of defendants extends by
analogy to amendments changing plaintiffs.
Fed. R. Civ. P. 15 Advisory Committee's Note to the 1996
Amendment. Rule 15(c)(1)(C) notice and knowledge requirements
apply where the plaintiff seeks to change the plaintiff's
names or otherwise correct a misnomer in the plaintiff's
name. Makro Capital, 543 F.3d at 1259-60.
Motion for Class Certification
a district court may grant a motion for class certification,
a plaintiff seeking to represent a proposed class must
establish that the proposed class is ‘adequately
defined and clearly ascertainable.'” Little v.
T-Mobile USA, Inc., 691 F.3d 1302, 1304 (11th Cir. 2012)
(quoting DeBremaecker v. Short, 433 F.2d 733, 734
(5th Cir. 1970)).
plaintiff's proposed class is adequately defined and
clearly ascertainable, the plaintiff must then meet the
requirements listed in Federal Rule of Civil Procedure 23.
Fed.R.Civ.P. 23. “A class action may be maintained only
when it satisfies all the requirements of Federal Rule of
Civil Procedure 23(a) and at least one of the alternative
requirements of Rule 23(b).” Jackson v. ...