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David Assif v. Titleserv

December 13, 2012


The opinion of the court was delivered by: Spatt, District Judge.



David Assif, individually, and on behalf of all others similarly situated ("the Plaintiff"), commenced this action against his employer Titleserv, Inc. ("Titleserv"), as well as Settlement Corp. (collectively, "the Defendants"), by filing a Complaint on July 5, 2011. The Plaintiff seeks recovery of damages in the amount of 60 days' pay and ERISA benefits by reason of Titleserv's violation of his rights under the Worker Adjustment and Retraining Notification Act, 29 U.S.C. § 2101 et seq. ("the WARN Act"). According to the Plaintiff, Titleserv terminated the Plaintiff and approximately 200 other similarly situated employees as part of, or as a result of, mass layoffs and/or plant closings but failed to give them at least 60 days' advance notice of termination as required by the WARN Act. To date, the Defendants have yet to appear in this action.

Presently before the Court is an unopposed motion by the Plaintiff for class certification pursuant to Federal Rule of Civil Procedure ("Fed. R. Civ. P.") 23. The Court notes that, in his Memorandum of Law in Support of this motion, the Plaintiff borrows extensively from the court's decision in Guippone v. BH S&B Holdings LLC, 09 Civ. 1029 (CM), 2011 U.S. Dist. LEXIS 36379 (S.D.N.Y. Mar. 30, 2011). The Plaintiff also requests that this Court approve notice to the class of the pending action and appoint the Plaintiff's counsel to serve as class counsel under Fed. R. Civ. P. 23(g). For the reasons set forth below, the Court grants the Plaintiff's motion for class certification.


Titleserv previously maintained and operated its headquarters in Woodbury, New York, and maintained additional facilities across the country. On April 8, 2011, Titleserv closed all its facilities. As part of these facility closings, Titleserve terminated approximately 200 full-time employees, including the Plaintiff. The Plaintiff asserts that these terminations were not for cause and occurred within 30 days of April 8, 2011.

According to the Plaintiff, in violation of the WARN Act, Titleserv (1) failed to provide the Plaintiff and the other full-time employees, within 60 days of the mass layoffs, of any advanced written notice of its decision to close on or about April 8, 2011; (2) never paid any wages, salary commissions, bonuses, accrued sick pay and/or vacation for 60 days to any of the terminated full-time employees after the mass layoffs; and (3) failed to make 401(k) contributions and other employee benefits under ERISA for 60 days after the mass layoffs.


A. Legal Standard

Before certifying a putative class, the Court must determine (1) whether the class meets the four Rule 23(a) requirements of numerosity, commonality, typicality and adequacy; and if so,

(2) whether the class satisfies one of the three categories listed in Rule 23(b). See Brown v. Kelly, 609 F.3d 467, 476 (2d Cir. 2010); Teamsters Local 445 Freight Div. Pension Fund v. Bombardier, Inc., 546 F.3d 196, 202 (2d Cir. 2008); City of Livonia Employees' Ret. Sys. v. Wyeth, No. 07 Civ. 10329 (RJS), 2012 U.S. Dist. LEXIS 134854, at *4 (S.D.N.Y. Sept. 17, 2012). "The party seeking class certification bears the burden of establishing by a preponderance of the evidence that each of Rule 23's requirements has been met." Myers v. Hertz Corp., 624 F.3d 537, 547 (2d Cir. 2010).

As the Supreme Court recently observed:

Rule 23 does not set forth a mere pleading standard. A party seeking class certification must affirmatively demonstrate his compliance with the Rule--that is, he must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc . . . [S]ometimes it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question, and [] certification is proper only if the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied. Frequently that rigorous analysis will entail some overlap with the merits of the plaintiff's underlying claim. That cannot be helped.

Wal-Mart Stores, Inc. v. Dukes, __ U.S. __, __, 131 S. Ct. 2541, 2551, 180 L. Ed. 2d 374, 390 (2011) (citations and internal quotation marks omitted); see also Secs. Litig. v. Gen. Reinsurance Corp. (In re Am. Int'l Group Inc.), 689 F.3d 229, 237 (2d Cir. 2012); Oakley v. Verizon Comm'ns., Inc., No. 09 Civ. 9175 (CM), 2012 U.S. Dist. LEXIS 12975, at *34 (S.D.N.Y. Feb. 1, 2012) (holding that while "[t]he certifying court should not make any factual findings or merits determinations that are not necessary to the Rule 23 analysis, . . . where merits issues cannot be avoided they must be addressed"). Thus, "the United States Supreme Court has made it clear that courts cannot certify classes where Rule 23 requirements are not met, and should not contort the requirements in order to certify." Oakley, 2012 U.S. Dist. LEXIS at *35.

However, in deciding certification, courts must still take a liberal rather than a restrictive approach in determining whether the plaintiff satisfies Rule 23's requirements and may exercise broad discretion when determining whether to certify a class. See Flores v. Anjost Corp., No. 11 Civ. 1531 (CM), 2012 U.S. Dist. LEXIS 85171, at *20-21 (S.D.N.Y. June 19, 2012); Pecere v. Empire Blue Cross and Blue Shield, 194 F.R.D. 66, 69 (E.D.N.Y. 2000). Further, "[t]he dispositive question is not whether the plaintiff has stated a cause of action or will prevail on the merits, but rather whether ...

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