HOOKER v. THE CITADEL SALISBURY LLC

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

SONYA HOOKER, SYBIL RUMMAGE, )

DONNA DEAL, KENNETH MICHAEL )

DEAL, and BETTY DEAL, )

individually and on behalf of )

a class of those similarly )

situated, )

)

Plaintiffs, )

)

v. ) 1:21-cv-00384

)

THE CITADEL SALISBURY LLC, )

SALISBURY TWO NC PROPCO LLC, )

ACCORDIUS HEALTH LLC, THE )

PORTOPICCOLO GROUP, LLC, )

SIMCHA HYMAN, and NAFTALI )

ZANZIPER, )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

THOMAS D. SCHROEDER, Chief District Judge.

This class action lawsuit, in which Plaintiffs seek damages

arising out of alleged nursing home understaffing prior to and

through the COVID-19 pandemic, returns to the court on Plaintiffs’

motion for class certification pursuant to Federal Rule of Civil

Procedure 23(b)(3) and, alternatively, Rule 23(c)(4). (Doc. 70.)

Plaintiffs are former residents of The Citadel Salisbury nursing

home: Sybil Rummage, along with her sponsor, Sonya Hooker; and

Betty Deal, along with her sponsors Donna Deal and Kenneth Michael

Deal. Defendants, The Citadel Salisbury, LLC (“The Citadel”);

Salisbury Two NC Propco, LLC; Accordius Health, LLC (“Accordius”);

The Portopiccolo Group, LLC (“Portopiccolo”); Simcha Hyman; and

Naftali Zanziper, have responded, opposing the motion for class

certification. (Doc. 72.) The court held argument on the present

motion on November 10, 2022. (Doc. 85.) For the reasons set forth

below, the motion for class certification will be denied.

I. BACKGROUND

According to the amended complaint, Plaintiffs Rummage and

Deal (“Resident Plaintiffs”) were residents of a nursing home

facility located at 710 Julian Road. (Doc. 62 ¶¶ 2, 5, 8-9.)1

Prior to 2020, when each Plaintiff entered the facility, it was

known as “Salisbury Center” and was owned and operated by Genesis

Healthcare (“Genesis”). (Id. ¶ 29.) When they arrived at

Salisbury Center, Resident Plaintiffs executed admission

agreements outlining the care and basic services they should expect

to receive. (Id. ¶ 58-59, 130.) Plaintiffs Sonya Hooker, Donna

Deal, and Kenneth Michael Deal (“Sponsor Plaintiffs”) are family

members who sponsor and assist the Resident Plaintiffs. (Id. ¶¶ 4,

6-7.)

On February 1, 2020, Salisbury Center was sold, and

operational control was transferred to The Citadel.2 (Id. ¶ 24.)

1 All citations to the record are to the paragraph number or ECF docket

page.

2 The Salisbury Center residents’ contracts were assigned to The Citadel,

while new residents after the transfer agreed to new contracts with The

Citadel. All contracts had provisions requiring arbitration, but the

The services and care at Salisbury Center had deteriorated as

Genesis fought financial trouble (id. ¶ 30), and conditions grew

worse once The Citadel took over (id. ¶ 35). Residents experienced

various problems from alleged chronic understaffing as part of the

Defendants’ business model, such as failures to provide necessary

medication and care to the residents and to adequately communicate

with sponsors. (See, e.g., id. ¶¶ 72-74, 118, 120, 141-145.)

According to the Centers for Medicare and Medicaid Services

(“CMS”), during the time of The Citadel’s ownership, the quality

rating of the facility declined from one to zero out of five stars.

(Id. ¶ 41.) The Citadel was eventually “subject to more frequent

inspections, escalating penalties, and potential termination from

Medicare and Medicaid” as part of the state’s “Special Focus

Facility” program for nursing home facilities with a “history of

serious quality issues.” (Id. ¶ 39.) On May 14, 2022, CMS issued

a notice terminating the facility from the Medicare program,

requiring it to shut down. (Doc. 85 at 12.) Residents thereafter

had to be relocated. (Id.) This led to the closing of the facility

in June 2022. (Id. at 4.)

The Citadel was at times relevant a limited liability company

organized under North Carolina law with a license with the State

of North Carolina, Department of Health and Human Services,

parties disagree as to whether any arbitration provision is enforceable.

(Doc. 85 at 33-40.)

Division of Health Services Regulation, to operate as a for-profit

combination skilled nursing facility and adult care home. (Doc.

62 ¶ 9-10.) Defendant Salisbury Two NC Propco, LLC was a limited

liability company organized under North Carolina law owning the

property where the facility was operated. (Id. ¶ 11.) Defendant

Accordius was a limited liability company organized under the laws

of the State of New York providing “management” services to The

Citadel. (Id. ¶¶ 12-13.) Portopiccolo was a limited liability

company organized under New Jersey law providing “back office

services” to The Citadel. (Id. ¶¶ 14-15.) The sole members and

owners of all limited liability companies involved were Simcha

Hyman and Naftali Zanziper. (Id. ¶¶ 16-18.)

Beginning when The Citadel assumed operations, Plaintiffs

allege, it was purposefully and consistently staffed inadequately

such that it was unable to provide the services required for the

safety and well-being of its residents and as promised.

(Id. ¶ 56.) Plaintiffs’ amended complaint alleges breach of

contract against The Citadel,3 with whom Resident Plaintiffs

3 Plaintiffs’ original complaint pursued four causes of action: (1)

breach of contract; (2) violations of the North Carolina Unfair and

Deceptive Trade Practice Act (“UDTPA”), N.C. Gen. Stat. § 75-1.1; (3)

negligent infliction of emotional distress; and (4) breach of fiduciary

duty. (Doc. 1 ¶¶ 207-221, 222-234, 246-53, and 235-245.) Plaintiffs

later moved to amend the complaint with a proposed amended complaint,

which sought to withdraw the claim for breach of fiduciary duty but

otherwise maintained claims for breach of contract, violations of the

UDTPA, and negligent infliction of emotional distress. (Doc. 36-1

¶¶ 237-254, 255-269, 270-77.) Defendants moved to dismiss all claims,

and later to deny Plaintiffs’ motion to amend as futile. (Docs. 24,

contracted, and relies on the “instrumentality rule” to allege

claims of civil conspiracy and concert of action to pierce the

corporate veil to reach the remaining Defendants. (Id. ¶¶ 202-

226.) Plaintiffs seek damages for Defendants’ failure to “provide

the service or supplies and the level of staffing that they were

obligated to supply to the resident populations.” (Id. ¶ 210.)

Plaintiffs also seek to disgorge Medicare or Medicaid payments

made on their behalf “reflecting the reasonable value of the

staffing hours they were entitled to have received and did not

receive.” (Id. ¶ 2.) Plaintiffs allege class action treatment,

citing “over 100” potential class members and 14 common questions

that include the following: the use of “uniform policies and

systems” of management; “[w]hether the law requires the facility

to maintain staffing at a reasonable across-the-board level,”

which is alleged to be 4.1 hours per resident day of “total nurse

staffing” and 0.75 hours per resident day of “Registered Nurse

staffing”; “[w]hether an express or implied-in-fact contract was

formed between residents”; and damages. (Id. ¶ 197.)

39.) On May 25, 2022, the court dismissed the UDTPA and negligent

infliction of emotional distress claims for failing to state a claim

under Rule 12(b)(6) but allowed the breach of contract claim to go

forward. (See Doc. 61; Hooker v. Citadel Salisbury LLC, No. 1:21-CV-

00384, 2022 WL 1663421 (M.D.N.C. May 25, 2022).). Shortly thereafter,

Plaintiffs filed the present amended class action complaint, which only

alleges breach of contract. (Doc. 62.)

II. ANALYSIS

A. Legal Standard

Plaintiffs move to certify a class under Federal Rule of Civil

Procedure 23(b)(3), or alternatively as “an issue class under Rule

23(c)(4).”4 (Doc. 70.) Defendants oppose certification,

contending that several of the prerequisites to certification have

not been met. (Doc. 72.)

The class action device is “an exception to the usual rule

that litigation is conducted by and on behalf of the individual

named parties only.” Comcast Corp. v. Behrend, 569 U.S. 27, 33

(2013) (internal quotation marks omitted). Rule 23 “does not set

forth a mere pleading standard.” Wal-Mart Stores, Inc. v. Dukes,

564 U.S. 338, 350 (2011). To be certified, a party seeking class

certification must “establish by a preponderance of the evidence

that the action complies with each part of Rule 23.” Brown v.

Nucor Corp., 785 F.3d 895, 931 (4th Cir. 2015) (Agee, J.,

dissenting) (citing cases). First, a plaintiff must satisfy the

four requirements set out in Rule 23(a): “(1) numerosity of

parties; (2) commonality of factual and legal issues; (3)

typicality of claims and defenses of class representatives; and

4 Plaintiffs did not move for appointment of class counsel under Federal

Rule of Civil Procedure 23(g). Rule 23(g) requires the court to appoint

class counsel at the time the class is certified. See Bell v. Brockett,

922 F.3d 502, 511-12 (4th Cir. 2019) (emphasizing that “[t]his

requirement is not optional”). Because the court denies class

certification, the appointment of class counsel is moot.

(4) adequacy of representation.” Gunnells v. Healthplan Services,

Inc., 348 F.3d 417, 423 (4th Cir. 2003); see Thorn v. Jefferson-

Pilot Life Insurance Co., 445 F.3d 311, 317 (4th Cir. 2006)

(“Plaintiffs bear the burden of demonstrating satisfaction of the

Rule 23 requirements and the district court is required to make

findings on whether the plaintiffs carried their burden.”

(internal quotation marks, citation, and alterations omitted)).

Next, the proposed class must show that it is one of the three

types of classes described in Rule 23(b). Thorn, 445 F.3d at 318.

Here, Plaintiffs seek to certify the class pursuant to Rule

23(b)(3), which provides that a class action may be maintained if

“questions of law or fact common to class members predominate over

any questions affecting only individual members, and that a class

action is superior to other available methods for fairly and

efficiently adjudicating the controversy.” Fed. R. Civ. P.

23(b)(3). Alternatively, Plaintiffs argue that certification is

appropriate under Rule 23(c)(4), which allows courts to certify a

class as to certain issues, even when plaintiffs’ claims otherwise

do not satisfy the predominance test. See Gunnells, 348 F.3d at

439–45. Although it is Plaintiffs’ burden to demonstrate

compliance with Rule 23, the court “has an independent obligation

to perform a ‘rigorous analysis’ to ensure that all of the

prerequisites have been satisfied.” EQT Prod. Co. v. Adair, 764

F.3d 347, 358 (4th Cir. 2014) (quoting Wal-Mart, 564 U.S. at 350-

51 (2011)).

At the class certification stage, “[m]erits questions may be

considered to the extent – but only to the extent – that they are

relevant to determining whether the Rule 23 prerequisites for class

certification are satisfied.” Amgen Inc. v. Connecticut

Retirement Plans & Trust Funds, 568 U.S. 455, 466 (2013); Brown,

785 F.3d at 903 (“[T]he merits of a claim may be considered only

when relevant to determining whether the Rule 23 prerequisites for

class certification are satisfied.” (internal quotation marks

omitted)). Otherwise, “[a]n evaluation of the probable outcome on

the merits is not properly part of the certification decision.”

Amgen, 568 U.S. at 467 (quoting Fed. R. Civ. P. 23 advisory

committee’s note to 2003 amendments); Brown, 785 F.3d at 903 (“Rule

23 grants courts no license to engage in free-ranging merits

inquiries at the certification stage.” (quoting Amgen, 568 U.S. at

466)). Persuasiveness of the class-wide evidence is, in general,

a matter for a jury. Tyson Foods, Inc. v. Bouaphakeo, 577 U.S.

442, 459 (2016). Of course, if no reasonable juror could believe

the class-wide evidence, Plaintiffs would lack common proof. Id.

(comparing class certification standards to standards for summary

judgment and directed verdict). Additionally, “at the

certification stage, the Plaintiff or the Court can refine the

classes as necessary to bring them within the requirements of Rule

23, if appropriate.” See Abdur-Rahman v. Wells Fargo Bank N.A.,

No. 3:21-CV-00207-RJC, 2022 WL 481788, at *6 (W.D.N.C. Feb. 16,

2022) (citing Manuel v. Wells Fargo Bank, National Ass’n, No.

3:14CV238, 2015 WL 4994549 (E.D. Va. Aug. 19, 2015)).

Defendants contest the Rule 23(a) requirements of numerosity,

commonality, typicality, and adequacy, the Rule 23(b)(3)

requirements of predominance and superiority, and alternative

certification under Rule 23(c)(4).

B. Rule 23(a) Requirements

Under Rule 23(a)(2), “[c]ommonality requires the plaintiff to

demonstrate that the class members have suffered the same injury.”

Wal-Mart, 564 U.S. at 349-50 (internal quotation marks omitted).

That requires more than a showing that “they have all suffered a

violation of the same provision of law.” Id. at 350. Instead, it

requires that the class members’ claims “depend upon a common

contention” whose resolution “will resolve an issue that is central

to the validity of each one of the claims in one stroke.” Id.

Thus, a common question, for purposes of Rule 23(a), is one that

is likely to “generate common answers” class-wide. Id. (internal

quotation marks omitted); see Brown, 785 F.3d at 909 (“Wal–Mart

instructs that plaintiffs must present a common contention capable

of being proven or disproven in ‘one stroke’ to satisfy Rule

23(a)(2)’s commonality requirement.”). This does not necessarily

“require that all the questions of law and fact raised by the

dispute be common,’ just that any ‘dissimilarities between the

claims do not impede a common resolution.’” Johnson v. Jessup,

381 F. Supp. 3d 619, 634 (M.D.N.C. 2019) (citing 7A Charles Alan

Wright & Arthur R. Miller, Federal Practice and Procedure § 1762

(3d ed. 2018)). The commonality test is qualitative. Gunnells,

348 F.3d at 429. “Quantitatively, almost by definition there will

always be more individual . . . issues than common liability

issues. Qualitatively, however, liability issues may far exceed

in complexity the more mundane individual . . . issues.” Id.

(alternations adopted) (internal quotation marks and citation

omitted). A question is not common “if its resolution turns on a

consideration of the individual circumstances of each class

member.” Thorn, 445 F.3d at 319 (internal quotation marks

omitted).

Plaintiffs argue that commonality is satisfied because

“Plaintiffs and the class share a singular, common, general issue:

their contractual rights that were violated in an identical manner

without regard to any individual determinations regarding

individual class members.” (Doc. 71 at 8-9.) Plaintiffs contend

that “common issues include: (1) whether named Plaintiffs and the

class had a contract with The Citadel; (2) whether Plaintiffs and

the class were entitled to a certain minimum level of staffing;

and (3) whether The Citadel understaffed the facility thereby

breaching its contract.” (Id. at 8.)5

In response, Defendants argue that Plaintiffs’ breach of

contract claim “require[s] this Court to make ‘individual

determinations,’ including (i) whether each resident and proposed

class member entered into a contract with The Citadel and the

specific terms thereof, (ii) whether the contract was breached,

and (iii) whether that specific resident was injured by that

breach.” (Doc. 72 at 9.) Defendants emphasize that, in contrast

to the standards cited by Plaintiffs drawn from cases applying

unique California law, “North Carolina does not impose upon skilled

nursing facilities, like the Citadel, a minimum nursing staffing

level[.]” (Id. at 11-12.) Defendants also argue that “even if

Plaintiffs could somehow show that The Citadel was ‘understaffed’

pursuant to various metrics, it does not logically follow that The

Citadel’s staffing levels ever actually failed to meet the

residents’ needs.” (Id. at 12.) Finally, Defendants argue that

whether and, if so, how the Emergency or Disaster Treatment

Protection Act, N.C. Gen. Stat. §§ 90-21.130 to 90-21.134,

5 Although the amended class action complaint contains a list of 14

proposed common issues, many are permutations on the principal ones

identified above and/or otherwise facially fail to meet the commonality

standard under Wal-Mart. (Doc. 62 ¶ 197 (e.g., whether Defendants used

uniform but inadequate policies for staffing, supplies, and services;

whether Defendants caused “systemic understaffing”; whether

understaffing “caused harm to facility residents”; whether Defendants

“breached contractual duties” to residents; whether “Defendants’ breach

of contract caused damage to the Plaintiffs”; whether “the class is

entitled to an award of compensatory damages”; and whether Plaintiffs

are entitled to certification under Rule 23(c)(4)).)

implemented as part of the state’s Covid-19 pandemic response,

applies to each Plaintiff’s claim presents an “individualized

determination[] [that] completely dominate[s] the landscape of any

alleged class.” (Id. at 13-14.)

In reply, Plaintiffs maintain that issues of contract

formation are “powerful enough as drivers in the case to warrant

at least issue class certification.” (Doc. 74 at 3.)

Additionally, Plaintiffs argue, “evidence that generally certain

[staffing level] metrics are needed to provide adequate staffing

to meet resident needs, and [evidence that] Defendant’s metrics

were far below what was necessary for adequate staffing, could be

probative [of breach] in [a potential class member’s] breach of

contract claim.”6 (Id.) Further, Plaintiffs analogize their

6 Plaintiffs also argue, for the first time in reply, that Defendants

“uniform[ly]” breached the “duty of good faith and fair dealing” for

each potential class member by failing to “comply with regulations” and

uphold the “purpose of the agreement . . . to provide at least minimum”

staffing levels. (Doc. 74 at 6.) Specifically, Plaintiffs point to

federal regulation 42 C.F.R. § 483. (See id. at 6, n.4.) Local Rule

7.3(h) provides that “[a] reply brief is limited to discussion of matters

newly raised in the response.” L.R. 7.3(h); see Henry v. N. Carolina

Acupuncture Licensing Bd., No. 1:15CV831, 2017 WL 401234, at *4 (M.D.N.C.

Jan. 30, 2017). Courts in this district “have consistently held that

‘[r]eply briefs . . . may not inject new grounds . . . [and that an]

argument [that] was not contained in the main brief . . . is not before

the Court.’” Tyndall v. Maynor, 288 F.R.D. 103, 108 (M.D.N.C. 2013)

(alterations in original)(quoting Triad Int’l Maintenance Corp. v. Aim

Aviation, Inc., 473 F. Supp. 2d 666, 670 n.1 (M.D.N.C. 2006)). In sum,

Rule 7.3(h) “exists to give the replying party a chance to rebut newly

raised arguments, not to give the replying party an unfair advantage in

having a chance to make new arguments that should have been raised

initially.” Pouncey v. Guilford County, No. 1:18CV1022, 2020 WL 1274264,

at *5 (M.D.N.C. Mar. 17, 2020). Thus, the court declines to consider

this argument.

contract claim to one involving a toxic tort, arguing that

answering the “general causation” question whether The Citadel was

systematically understaffed “would benefit the entirety of the

class and help drive the resolution on the merits.” (Id. at 8-

9.) In short, Plaintiffs argue that “[w]hen a nursing facility is

understaffed, all residents suffer injury on a class-wide basis.”

(Id. at 7.)

Doubtless, “whether named Plaintiffs and the class had a

contract with the Citadel” (Doc. 71 at 8) raises a common issue.

But “[a]ny competently crafted class complaint literally raises

common ‘questions.’” Wal-Mart, 564 U.S. at 349 (citation omitted).

As the Supreme Court explained in Wal-Mart, not every “common

question” – like whether each plaintiff “suffered a violation of

the same provision of law” - is enough. Id. at 349-350. Rather,

“[c]ommonality requires the plaintiffs to demonstrate that the

class members ‘have suffered the same injury.’” Id. (emphasis

added) (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 156

(1982)). The class “claims must depend upon a common contention,”

and that “common contention must be of such a nature that it is

capable of classwide resolution — which means that determination

of its truth or falsity will resolve an issue that is central to

the validity of each one of the claims in one stroke.” Id., at

350.

Judged against this standard, Plaintiffs’ principal theory of

commonality - that The Citadel was chronically understaffed as a

whole based on certain metrics7 - misses the mark. The central

liability question in this breach of contract case is whether

Defendants deprived Plaintiffs of the benefit of their bargain.

The bargain the parties struck was fundamentally one of money in

exchange for skilled nursing care services – not, as Plaintiffs

say at one point, “reasonable general staffing metrics.” (See

Doc. 71 at 13 (“All residents agreed to pay personally and assign

their Medicare benefits in return for reasonable general staffing

metrics to be met[.]”).) Indeed, Plaintiffs themselves appear to

recognize this, noting more than once that the parties contracted

for services, not predetermined staffing levels. (See Doc. 62

¶ 213 (“In return for assigning their Medicare, Medicaid,

insurance, social security, and personal private funds, to the

Defendants, Plaintiffs and class members were contractually

entitled to receive services and supplies meeting federal and state

skilled nursing standards.” (emphasis added)); Doc. 71 at 13 (“The

Citadel above all promised to provide service.” (emphasis added));

id. at 20 (“The claim is that the residents paid for services they

did not receive, in the form of adequate staffing.” (emphasis

7 See Doc. 71 at 14 (“Where the Defendants globally set staffing levels

and when all facility residents are simultaneously subjected to the

understaffed environment, class treatment could not be more

appropriate.”); id. at 9 (“Defendants . . . only took into account the

total census and collective needs of the facility population as a whole.”

(emphasis added).)

added)); Doc. 74 at 7 (“Every tenant received a nursing home

service ‘product’ that was less than what was agreed to and

inferior to the minimum that the operator was obligated to

deliver.” (emphasis added)).)

The issue of staffing levels at The Citadel is in a general

sense common to all class members. But, as noted, Rule 23(a)’s

commonality requires that each class member “have suffered the

same injury.” Wal-Mart, 564 U.S. at 349 (citation omitted); see

M.D. ex rel. Stukenberg v. Perry, 675 F.3d 832, 840 (5th Cir. 2012)

(explaining that after Wal-Mart “the commonality test is no longer

met when the proposed class merely establishes that there is at

least one issue whose resolution will affect all or a significant

number of the putative class members” (internal quotation marks

and citation omitted)). As here, that is to say it is the effect

of the staffing level - not the staffing level itself - that is

“the essential question on which [plaintiffs’] theory of

commonality depends.” Wal-Mart, 564 U.S. at 354.8

8 To be sure, whether The Citadel was generally understaffed is in some

sense a question “common” to all class members. But “what really matters

to class certification” is “not similarity at some unspecified level of

generality, but rather, dissimilarity that has the capacity to undercut

the prospects for joint resolution of class members’ claims through a

unified proceeding.” Richard A. Nagareda, Class Certification in the

Age of Aggregate Proof, 84 N.Y.U. L. Rev. 97, 131 (2009); see also

Sprague v. Gen. Motors Corp., 133 F.3d 388, 397 (6th Cir.1998) (“It is

not every common question that will suffice [to show commonality],

however; at a sufficiently abstract level of generalization, almost any

set of claims can be said to display commonality. What we are looking

for is a common issue the resolution of which will advance the

litigation.”).

Plaintiffs’ amended complaint illustrates the problem, as it

alleges that class members are individually impacted in disparate

ways as a result of understaffing. (See, e.g., Doc. 62 ¶¶ 91,

(failure to do laundry), 104 (poor food), 109 (failure to order a

required chair), 111 (development of bedsores), 115 (failure to

provide necessary medication), and 172 (failure to prevent spread

of COVID-19).) Some of these alleged injuries - such as Covid-19

quarantining failures (id. ¶¶ 89, 172), failure to wear masks,

gloves, or other personal protective equipment (id. ¶ 78), poor

food quality (id. ¶¶ 104, 119, 171, 187-190), failure to use a

computer program for scheduling (id. ¶ 144), lost personal items

(id. ¶ 179), and poor-quality undergarments (id. ¶ 164) - are

plainly unrelated to the understaffing allegation. While some

residents may have suffered these and related problems, other

residents may not have suffered these problems, if any. Indeed,

Plaintiffs seemingly recognize as much in their motion for class

certification: “The FAC [First Amended Complaint] alleges that as

a result of the inadequate staffing, the class members did not

receive the services that they were promised.” (Doc. 71 at 2

(emphasis added).) Thus, as Defendants correctly note,

establishing breach of contract, and its extent, would require

“individualized determinations” as to each class member,

“lead[ing] to a multitude of mini-trials regarding staffing during

each shift, each day, and each hall for each potential class

member’s residency, as well as the care provided.” (Doc. 72 at 9-

10.) Resolving any individual class member’s claim for breach of

contract – and hence his or her injury - requires an inherently

particularized inquiry into the circumstances of the breach. See

Webb v. Exxon Mobil Corp., 856 F.3d 1150, 1156-57 (8th Cir. 2017)

(affirming decertification on commonality and predominance grounds

in breach of contract case because “establishing breach would

require examination of how [defendant’s] operation of the pipeline

affects the plaintiffs, which . . . varies depending on where

individual class members' property is located, as well as many

other factors.”); Lara v. First Nat'l Ins. Co. of Am., 25 F.4th

1134, 1138 (9th Cir. 2022) (“But to show liability for breach of

contract . . . Plaintiffs must also show an injury. And to show

an injury will require an individualized determination for each

plaintiff.”); Spagnola v. Chubb Corp., 264 F.R.D. 76, 98 (S.D.N.Y.

2010) (collecting cases and explaining that “courts have denied

certification even in cases that involved form contracts where

numerous individual inquiries were required to determine whether

a breach of the contract could be found”); cf. August v. Michigan

Department of Corrections, 2018 WL 4679597, *4-5 (E.D. Mich. Sept.

29, 2018) (finding commonality lacking in case challenging prison

“overcrowding” because even if the prison was overcrowded as a

whole, “the varied harms alleged would require individualized

fact-finding to analyze each member's Eighth Amendment claim [such

that] [t]he diversity of alleged harms precludes classwide

resolution of whether the Defendants' conduct resulted in an

extreme deprivation of civilized life's minimal necessities”).

Plaintiffs’ analogy to the toxic tort context, far from

bolstering their case, substantiates this very point. (See Doc.

74 at 8 (“The relation between the common classwide issues, and

the individual issues, is like general and specific causation in

a tort matter.”).) A toxic tort plaintiff “must demonstrate the

levels of exposure that are hazardous to human beings generally as

well as the plaintiff’s actual level of exposure” in order to

establish that a specific injury was caused by exposure to a

specific substance. Westberry v. Gislaved Gummi AB, 178 F.3d 257,

263 (4th Cir. 1999) (citations omitted). This distinctive

causation framework exists because “only rarely are humans exposed

to chemicals in a manner that permits a quantitative determination

of adverse outcomes.” Id. (citation omitted). Conversely, under

North Carolina law, the interpretation of the terms of a contract

to determine breach is a question of law for the court. Briggs v.

American & Efird Mills, Inc., 111 S.E.2d 841, 843 (N.C. 1960). In

an agreement for services, the terms must be “certain and definite

as to the nature and extent of the service to be performed, the

place where and the person to whom it is to be rendered, and the

compensation to be paid, or it will not be enforced.” Rider v.

Hodges, 804 S.E.2d 242, 246 (N.C. Ct. App. 2017) (quoting Croom v.

Goldsboro Lumber Co., 108 S.E. 735, 737 (N.C. 1921)). In order

for a breach of contract to be actionable, it must be material,

“one that substantially defeats the purpose of the agreement or

goes to the very heart of the agreement, or can be characterized

as a substantial failure to perform.” Long v. Long, 588 S.E.2d 1,

4 (N.C. Ct. App. 2003) (citations omitted). To state the obvious,

the liability elements of these types of claims are inapposite.

Unlike causation in toxic torts, there is no general causation in

this breach of contract case.

Indeed, in making this analogy, Plaintiffs explain that their

claim “is that exposure to Defendants’ unlawful low-staffing

business model caused Plaintiffs to receive poor, understaffed

service and to not receive the benefit of their bargain.” (Doc.

74 at 8 (emphasis added).) This leads to Plaintiffs’ concession

that “issues of individual causation [and] injury . . . exist.”

(Id. at 5.) As this court stated previously, “the understaffing,

if demonstrated, would only be evidence to support a claim that

any particular Plaintiff failed to receive the services contracted

for – that is, that he or she did not receive the proper care and

oversight by the nursing and other staff.” (Doc. 61 at 24.)

Plaintiffs seek to avoid this result by urging the court to

certify a class for a determination whether each class member’s

contract was breached by Defendants’ failure to maintain what

Plaintiffs contend is a proper staffing level. (See Doc. 85 at

27; Doc. 6-5 at 28-29.) Plaintiffs rely on the testimony of

Charlene Harrington, R.N., Ph.D., who opines that a facility’s

“acuity” level can be established based on the average resident.

(Doc. 6-5 at 31-33.) According to Dr. Harrington, “[r]esearch

establishes that most skilled nursing facilities generally require

at least 4.1 total nursing hours per resident day [“HPRD”],9

including 0.75 registered nursing hours and 1.3 licensed nursing

hours, to provide the necessary nursing services for their

residents.” (Id. at 31.) Because this staffing level is conducted

“at a facility-level,” Plaintiffs contend, “it does not require

any individualized inquiry into how many hours of direct nursing

care any specific resident received on any given day.” (Id. at

33.) Rather, Plaintiffs contend, “the proper analysis is whether

the facility as a whole employed an adequate number of qualified

staff to competently care for the collective needs of its

residents.” (Id. (emphasis added.) As Plaintiffs’ counsel stated

during oral argument, because Defendants allegedly “strip[ed]” out

assets by not providing the proper level of nursing care,

Plaintiffs should be “entitled to a refund of the moneys that they

assigned - that they either paid directly or that they assigned as

a matter of consideration from Medicare or Medicaid to pay for the

service that they didn't get.” (Doc. 85 at 23.) In this fashion,

9 HPRD simply measures the total number of hours worked divided by the

total number of residents. See Doc. 6-5 at 40.

Plaintiffs contend, a jury can assess a value on a global basis to

all residents. (Id. at 9.) The court should not dwell on

individual questions, Plaintiffs contend, because Defendants did

not consider “individual needs” but rather “controlled” the

process “entirely by a spreadsheet.” (Id.)

In making this argument, Plaintiffs rely on a line of cases

applying California law. Unlike in California, however, North

Carolina does not impose a minimum staffing level on skilled

nursing facilities as measured by nursing hours per resident.

MacRae v. HCR Manor Care Services, LLC, No. SACV1400715DOCRNBX,

2018 WL 8064088 (C.D. Cal. Dec. 10, 2018), upon which Plaintiffs

rely primarily (see Doc. 71 at 7-8), is plainly distinguishable.

First, plaintiffs there did not allege breach of contract; rather,

they sued under a California statute that provides current or

former nursing care patients or residents the right to bring a

private cause of action against a skilled nursing facility for

violating certain regulations. See Cal. Health & Safety Code

§ 1430(b). Of a piece with its regulatory character, this statute,

at the time McCrae was decided,10 allowed for a maximum of $500 per

lawsuit, regardless of how many discrete violations the skilled

nursing facility committed. See McCrae, 2018 WL 8064088; Jarman

10 The statute has since been amended to allow for $500 per regulatory

violation. See Cal. Health & Safety Code § 1430(b)(1)(B); Anderson v.

Ghaly, No. 15-CV-05120-HSG, 2022 WL 717842, at *3 (N.D. Cal. Mar. 10,

2022).

v. HCR ManorCare, Inc., 471 P.3d 1001, 1004 (Cal. 2020). Second,

the California regulations the nursing facility allegedly violated

specifically require each facility to “employ an adequate number

of qualified personnel to carry out all of the functions of the

facility.” Cal. Health and Safety Code § 1599.1(a) (emphasis

added); see MacRae, 2018 WL 8064088 at * 1. Under this regulation,

the district court noted, “facilities are either adequately

staffed or not, and an entire facility is not staffed based on

individual inquiries into each patient's care needs.” Id. at * 5.

Thus, the damages are not related to specific failure sustained by

residents, but rather based on a failure to maintain the staffing

ratios required by law.11

Here, in contrast, North Carolina regulations provide a

qualitative standard which requires covered facilities to “have

sufficient nursing staff to provide nursing and related services

to attain or maintain the physical, mental, and psychosocial well-

being of each patient, as determined by patient assessments and

individual plans of care.” 10A N.C.A.C. 13D.2303(b) (emphasis

added).12 Similarly, federal regulations require nursing

11 For the same reasons noted above, moreover, Plaintiffs’ reliance on

Lavender v. Skilled Healthcare Group Incorporated, No. 060264 (Calif.

Super. July 6, 2010), is also misplaced. (See Doc. 74 at 4; Doc. 74-

1.)

12 At oral argument, Plaintiffs conceded that North Carolina law differs

from California law in this regard. (See Doc. 85 at 27.)

facilities to provide “sufficient nursing staff . . . and related

services to assure resident safety and attain or maintain the

highest practicable physical, mental, and psychosocial well-being

of each resident, as determined by resident assessments and

individual plans of care and considering the number . . . of the

facility’s resident population[.]” 42 C.F.R. § 483.35; see also

42 U.S.C. § 1396r(b)(4)(C)(i)(l) (requiring skilled nursing

facilities to “provide 24-hour licensed nursing services which are

sufficient to meet the nursing needs of its residents” (emphasis

added)).

Unlike California law, which incorporates a quantitative

minimum staffing level of 3.2 nursing hours per patient, North

Carolina law imposes no such quantitative minimum staffing level.

See Cal. Health & Safety Code § 1276.5(a) (“[T]he minimum number

of actual nursing hours per patient required in a skilled nursing

facility shall be 3.2 hours[.]”) Plaintiffs cannot now overcome

this significant hurdle by stating, based solely on the opinion of

a retained expert, that a “reasonable” staffing level of 4.1 HPRD

is necessarily incorporated into each and every skilled nursing

care contract in North Carolina. (Doc. 71 at 5.) Such a

requirement may be wise policy, but the place to make new

legislation lies in Congress and the North Carolina General

Assembly, not this court.

Perhaps recognizing the limits of this argument, Plaintiffs

advanced a new one for the first time at oral argument.

Specifically, Plaintiffs argued that - putting aside the issue

whether the law requires skilled nursing facilities to maintain

staffing at a certain level based on HPRD - Defendants also

breached their contract with Resident Plaintiffs by failing to

maintain the minimum eight consecutive hours per day of registered

nursing staffing for some 237 days during the relevant period.

(See Doc. 85 at 12-13 (arguing that The Citadel was “out of

compliance” with federal and state regulations requiring a

“registered nurse on duty for eighth consecutive hours every

day”).) To be sure, Plaintiffs correctly point out that both state

and federal regulations require skilled nursing facilities to

provide a “registered nurse for at least eight consecutive hours

a day, seven days a week.” See 10A N.C.A.C. 13D.2303(d)(2); accord

42 C.F.R. § 483.35(b). And Plaintiffs allege that compliance with

all federal and state regulations governing skilled nursing

facilities are a part of their contracts. (Doc. 62 ¶ 209.) Thus,

any violation of these regulations, Plaintiffs allege, results in

a breach of contract. See Hamilton v. Travelers Indem. Co., 335

S.E.2d 228, 230 (N.C. 1985).

The problem, however, is that Plaintiffs failed to raise this

theory of liability for breach of contract in any of their

briefing. (See Doc. 71 at 7-11; Doc. 74 at 4-5.) It is

conspicuously absent from the list of 14 common issues alleged in

the amended complaint. (Doc. 62 ¶ 197.) And Plaintiffs mention

this specific staffing failure only once to show why The Citadel’s

“average RN HPRD during this period was 0.10 RN hours per resident

per day [,]” less than what they contend is the appropriate level

of 0.75 HPRD for registered nurse staffing. (See Doc. 71 at 15

(“From March 2020 to October 2021 . . . the facility operated

without a registered nurse (“RN”) providing direct care to

residents for a total of 237 days in the 20-month period. These

facts result in an extremely low RN HPRD.” (emphasis added)).) In

other words, Plaintiffs only invoke this staffing metric in service

of their principal argument that less than 4.1 HPRD or 0.75 HPRD

(RN) reflects unacceptably low staffing in violation of the express

or implied duties of the contracts that Resident Plaintiffs signed.

That Plaintiffs’ single citation to the relevant North Carolina

regulation, 10 N.C.A.C. 13D.2303(d), comes in a footnote of their

expert’s report, devoid of further explanation, further

substantiates this point.13 (See Doc. 6-5 at 29, n.14.)

13 Plaintiffs do state – albeit in their reply brief - that a common

issue is whether “the contract include[s] the duties to comply with state

and federal Medicare and other regulations pertaining to resident,

service, and safety.” (Doc. 74 at 5.) And they also cite, albeit again

in a footnote (see id. at 6 n.4), 42 C.F.R. § 483.35, which, as noted,

requires skilled nursing facilities to provide “the services of a

registered nurse for at least 8 consecutive hours a day, 7 days a week.”

Id. § 483.35(b)(1). Yet Plaintiffs never put the two together and make

any substantive legal argument that the failure to comply with this

specific regulation, or its North Carolina equivalent, constitutes a

breach of contract. And “[i]t is not enough merely to mention a possible

argument in the most skeletal way, leaving the court to do counsel’s

work, create the ossature for the argument, and put flesh on its bones.

Because “[r]aising such new arguments for the first time at

oral argument undermines the purpose of orderly briefing and risks

subjecting an opponent to an unfair disadvantage [,]” N. Carolina

All. for Transp. Reform, Inc. v. U.S. Dep't of Transp., 713 F.

Supp. 2d 491, 510 (M.D.N.C. 2010), it is deemed waived and the

court need not consider it.14 See, e.g., Mayfield v. Nat'l Ass'n

for Stock Car Auto Racing, Inc., 674 F.3d 369, 377 (4th Cir. 2012)

(“A party's failure to raise or discuss an issue in his brief is

to be deemed an abandonment of that issue.” (internal quotation

marks and citation omitted)); Saray Dokum v. Madeni Aksam Sanayi

Turizm A.S., No. 17 CIV. 7495 (JPC), 2021 WL 1199470, at *7

(S.D.N.Y. Mar. 30, 2021) (explaining that “[c]ourts are loath to

accept . . . belated arguments” made for the first time at oral

argument and citing cases); US Airways, Inc. v. Sabre Holdings

Corp., No. 11 Civ. 2725 (LGS), 2015 WL 997699, at *3 (S.D.N.Y.

Mar. 5, 2015) (concluding that the court need not consider the

plaintiff's theory raised for the first time at oral argument

because it was both “unwarranted and unfair to [d]efendant, which

had no advance notice of [p]laintiff's new argument and no

opportunity to brief its opposition”); Keys v. Dart Container Corp.

. . . [A] litigant has an obligation to spell out its arguments squarely

and distinctly, or else forever hold its peace.” Schneider v. Kissinger,

412 F.3d 190, 200 (D.C. Cir. 2005).

14 For the reasons set forth below, however, even certification of this

issue under Rule 23(c)(4) would be inappropriate.

of Kentucky, No. 1:08-CV-00138-JHM, 2012 WL 2681461, at *7 (W.D.

Ky. July 6, 2012) (“The Court will not consider Plaintiff's

argument regarding her retaliation claim raised for the first time

at oral argument, and deems that argument waived.”).15

One other aspect of Plaintiffs’ contract claim deserves

discussion. The amended complaint alleges:

Alternatively, Plaintiffs are entitled to damages as

measured by the reasonable value of the staffing hours

that were not provided but that should have been

provided. In return for assigning their Medicare,

Medicaid, insurance, social security, and personal

private funds, to the Defendants, Plaintiffs and class

members were contractually entitled to receive services

and supplies meeting federal and state skilled nursing

standards. However, they did not. Accordingly, they

are entitled to payment of damages representing the

difference between the value of the services and

supplies they actually received, subtracted from the

value of the services and supplies to which they were

reasonably entitled under the contract.

(Doc. 62 ¶ 213.) In a generalized sense it can be said that the

aggregate staffing level constituted a breach common to every

resident of The Citadel. No doubt many, if not all, residents

believed they were receiving a properly-staffed skilled nursing

facility, and not some lesser level of care such as an assisted

living facility. Presumably, the former is more expensive than

the latter. On this basis, one could say that each resident

15 Even were the court to consider this limited basis for liability, it

would fail to sustain a basis for finding commonality for the same

reasons explained; namely, that Plaintiffs “have suffered the same

injury.” Wal-Mart, 564 U.S. at 349.

suffered a similar injury to the extent of any reduced value of

the overall condition of The Citadel facility and its offerings

common to each contract price. But even accepting this as so, it

is largely unrelated to the central question whether any individual

class member failed to receive the benefit of his or her bargain

for personal services based on the myriad deficiencies alleged in

the amended complaint which will result in individualized

questions on a resident-per-resident basis.16

* * *

For all these reasons, Plaintiffs have failed to carry their

burden of demonstrating commonality for their proposed class.17

16 Even if the breach claim were so limited, it would also raise the

separate question whether any Plaintiff could permissibly split his or

her claim for liability for breach in such a fashion, an issue on which

the court need not opine.

17 For similar reasons, it is also doubtful that Plaintiffs have

established typicality under Rule 23(a)(3). Typicality differs from

commonality, but the two requirements are closely related. See Deiter

v. Microsoft Corp., 436 F.3d 461, 466 (4th Cir. 2006). “Both serve as

guideposts for determining whether under the particular circumstances

maintenance of a class action is economical and whether the named

plaintiff's claim and the class claims are so interrelated that the

interests of the class members will be fairly and adequately protected

in their absence.” Wal-Mart, 564 U.S. at 349 n.5 (quoting Falcon, 457

U.S. at 157 n.13). Plaintiffs allege that their claims are typical

“because Plaintiffs and the other class members have been injured by the

same wrongful practices[.]” (Doc. 62 ¶ 198.) But as in Deiter,

Plaintiffs’ claims are only “typical” on an “unacceptably general level.”

Deiter, 436 F.3d at 467. That is, Resident Plaintiffs Rummage and Deal

may have been injured as a result of living in an understaffed facility;

but “at a more directly relevant level,” their claims will necessarily

have “meaningful differences” from the class members they seek to

represent. Id.; see also Soutter v. Equifax Info. Servs., LLC, 498 F.

App'x 260, 265 (4th Cir. 2012) (unpublished) (finding typicality lacking

because determination as to whether the defendant’s behavior was

Class certification is therefore inappropriate. Because

Plaintiffs fail to satisfy the requirement of commonality, the

court need not decide whether they also failed any other Rule 23(a)

requirement.18

C. Rule 23(b)(3) Requirements

Rule 23(b)(3) class actions are proper where “the court finds

that the questions of law or fact common to class members

predominate over any questions affecting only individual members,

unreasonable under 15 U.S.C. § 1681e(b) with regard to her credit report

did not necessarily advance the claim of all the other class members).

18 Defendants also argue that “the Sponsor Plaintiffs (Sonya Hooker,

Donna Deal, and Mike Deal) are inappropriate class representatives, as

they lack standing to assert these claims.” (Doc. 72 at 16.) Plaintiffs

do not respond to this contention, which has merit. In the class action

context, “it is essential that named class representatives demonstrate

standing through a ‘requisite case or controversy between themselves

personally and [each defendant][.]’” Cent. Wesleyan Coll. v. W.R. Grace

& Co., 6 F.3d 177, 188 (4th Cir. 1993) (quoting Blum v. Yaretsky, 457

U.S. 991, 1001 n.13 (1982)); cf. Tyson Foods, Inc. v. Bouaphakeo, 577

U.S. 442, 466 (2016) (Roberts, C.J., concurring) (“Article III does not

give federal courts the power to order relief to any uninjured plaintiff,

class action or not.”) To satisfy the “case or controversy” requirement

of Article III, “a plaintiff must show (i) that he suffered an injury

in fact that is concrete, particularized, and actual or imminent; (ii)

that the injury was likely caused by the defendant; and (iii) that the

injury would likely be redressed by judicial relief.” TransUnion LLC

v. Ramirez, 141 S. Ct. 2190, 2203 (2021) (citing Lujan v. Defenders of

Wildlife, 504 U.S. 555, 560–561 (1992)). Here, because the alleged

contract was between The Citadel and the Resident Plaintiffs (see Doc.

62 ¶ 204 (“The [breach of contract] claim is brought by Plaintiffs

Rummage and Deal against the Citadel Salisbury LLC as a contracting

party.”)), the Sponsor Plaintiffs have not demonstrated that they have

suffered an injury-in-fact, see In re Peanut Crop Ins. Litig., 524 F.3d

458, 473 (4th Cir. 2008) (“[I]n order to maintain action for breach of

contract, plaintiff must show that alleged breach caused injury.” (citing

Santana, Inc. v. Levi Strauss & Co., 674 F.2d 269, 275 (4th Cir. 1982))).

Accordingly, the court concludes that the “Sponsor Plaintiffs” Sonya

Hooker, Donna Deal, and Kenneth Michael Deal do not have standing to

pursue relief in this breach of contract action.

and that a class action is superior to other available methods for

fairly and efficiently adjudicating the controversy.” Fed. R.

Civ. P. 23(b)(3). These two requirements relate to the action’s

“manageability,” which is “a practical problem, and primarily a

factual one with which a district court generally has a greater

familiarity and expertise[.]” See Windham v. American Brands,

Inc., 565 F.2d 59, 65 (4th Cir. 1977) (en banc) (citation omitted).

Accordingly, trial courts have “a wide range of discretion” in

evaluating whether the requirements of Rule 23(b)(3) have been

met. Id. (citation omitted); see Reiter v. Sonotone Corp., 442

U.S. 330, 345 (1979) (noting that district courts “have broad power

and discretion vested in them” as to the “certification and

management of potentially cumbersome” class actions). Factors

pertinent to a determination whether the predominance and

superiority requirements have been satisfied include:

(A) the class members’ interests in individually

controlling the prosecution or defense of separate

actions; (B) the extent and nature of any litigation

concerning the controversy already begun by or against

class members; (C) the desirability or undesirability of

concentrating the litigation of the claims in the

particular forum; and (D) the likely difficulties in

managing a class action.

Fed. R. Civ. P. 23(b)(3).

The predominance requirement - that questions common to the

class predominate over other individual questions - is more

stringent than the “commonality” requirement under Rule 23(a).

See Lienhart v. Dryvit Systems, Inc., 255 F.3d 138, 146 n.4 (4th

Cir. 2001). “An individual question is one where members of a

proposed class will need to present evidence that varies from

member to member, while a common question is one where the same

evidence will suffice for each member to make a prima facie showing

or the issue is susceptible to generalized, class-wide proof.”

Tyson Foods, 577 U.S. at 453 (internal quotation marks omitted).

The predominance inquiry begins “with the elements of the

underlying cause of action.” Erica P. John Fund, Inc. v.

Haliburton Co., 563 U.S. 804, 809 (2011). At bottom, the inquiry

determines whether a trial meant to resolve class-wide issues is

manageable or whether it is likely to devolve into a series of

individual mini-trials examining questions specific to individual

class members. See Thorn, 445 F.3d at 327–29. While common

questions need not be dispositive of the entire class action, Rule

23(b)(3) class certification “should at least provide a definite

signal of the beginning of the end” of the litigation. Farrar &

Farrar Dairy, Inc. v. Miller-St. Nazianz, Inc., 254 F.R.D. 68, 74

(E.D.N.C. 2008) (quoting Mertens v. Abbott Labs., 99 F.R.D. 38, 41

(D.N.H. 1983)).

Plaintiffs argue that the proposed class satisfies Rule

23(b)(3) because “[t]he predominating issue . . . — whether the

facility was adequately staffed — is common to all class members

and involves a basic promise made to all.” (Doc. 71 at 13.)

Plaintiffs further contend that “determining whether this

agreement was breached on a class-wide basis does not involve any

individual questions regarding individual residents when the

contractual provisions at issue are the same for all residents.”

(Id. at 13-14.) In response, Defendants argue that these same

commonality arguments fail to satisfy the “more stringent”

predominance requirement. (Doc. 72 at 17.) Defendants also rely

on Bartels v. Saber Healthcare Group, LLC, No. 5:16-CV-283-BO,

2020 WL 6173566, at *2 (E.D.N.C. Oct. 21, 2020) (denying

certification of a putative class action against an allegedly

inadequately staffed nursing home), for the assertion that the

“well-established law of this Circuit holds that breach of contract

claims based on allegations of understaffing at facilities like

The Citadel do not satisfy the predominance inquiry.” (Doc. 72 at

17.) In reply, Plaintiffs distinguish Bartels as involving a claim

where “the assisted living facility operator set a staffing policy

of staffing ‘no higher’ than required staffing level” and as

lacking a facility subject to similar staffing regulations. (Doc.

74 at 9-10.)

Here, even if Plaintiffs could satisfy Rule 23(a)’s

requirements, it is readily apparent that because of the

individualized questions for each resident, common questions for

the proposed class do not predominate. Rather than signaling the

beginning of the end, to paraphrase Winston Churchill following

Britain’s victory in North Africa in 1942, certification would

likely signal only the “end of the beginning.” W. Churchill, The

Lord Mayor’s Luncheon, Mansion House, Nov. 10, 1942.

First, as discussed at length above,19 the question whether

The Citadel breached its contract with a particular class member

“turns on a consideration of the individual circumstances of each

class member” based on the services that member actually received.

Thorn, 445 F.3d at 319 (citation omitted); see Bartels, 2020 WL

6173566, at *5 (“Individualized issues will further abound, as

plaintiffs must show what the needs of the residents were at any

given time in order to show that those needs were [not] met.”).

Whether The Citadel failed to provide the level of service or care

for which a resident contracted is necessarily a specific inquiry

for the individual class members. Compare EQT Prod. Co., 764 F.3d

at 369 (noting that “with respect to the breach of contract claims,

the court will likely need to consider course of performance

evidence” and “the need for individualized proof strongly affects

19 “Rule 23(b)(3) most obviously builds on Rule 23(a)(2) as it utilizes

commonality itself as the measuring stick for certification but adds an

additional measure of commonality.” See 1 William B. Rubenstein, Newberg

and Rubenstein on Class Actions § 3:27 (6th ed. 2022) (“Newberg on Class

Actions”). Accordingly, even assuming Plaintiffs have met their burden

under Rule 23(a)(2), for the same reasons discussed above – and others

provided herein - they cannot meet the “far more demanding” predominance

requirement under Rule 23(b)(3). Amchem, 521 U.S. at 624; see Lienhart,

255 F.3d at 147 n.4 (“In a class action brought under Rule 23(b)(3), the

‘commonality’ requirement of Rule 23(a)(2) is ‘subsumed under, or

superseded by, the more stringent Rule 23(b)(3) requirement that

questions common to the class predominate over’ other questions.”

(quoting Amchem, 521 U.S. at 609)).

the predominance analysis of Rule 23(b)”) with Gray v. Hearst

Communications, Inc., 444 F. App’x 698, 702 (4th Cir. 2011)

(unpublished) (concluding that certification was warranted for

breach of a distribution agreement where the injury was identical

for class members and the issue could be resolved in “one

stroke”).20

However, even assuming Plaintiffs are correct that each class

member’s contract was breached by Defendants’ failure to maintain

what Plaintiffs contend is a proper staffing level – whether on

the theory that staffing less than 4.1 HPRD falls below the

“reasonable” level contemplated by the contract, or on the theory

(raised late in oral argument) that that the failure to provide

eight consecutive hours of skilled nursing care for 237 of the 600

or so days of the relevant period - detailed individualized

evidence would still be required to establish each individual class

member’s other bases of material breach as well as their individual

damages.21

20 Unpublished opinions of the Fourth Circuit are not precedential but

are cited for their persuasive, but not controlling, authority. See

Collins v. Pond Creek Mining Co., 468 F.3d 213, 219 (4th Cir. 2006).

21 To be sure, the need for individualized damages calculations will not

necessarily defeat a finding that common issues predominate, see

Gunnells, 348 F.3d at 428-29, but “it is nonetheless a factor that

[courts] must consider in deciding whether issues susceptible to

generalized proof ‘outweigh’ individual issues.” McLaughlin v. Am.

Tobacco Co., 522 F.3d 215, 231 (2d Cir. 2008), abrogated on other grounds

by Bridge v. Phx. Bond & Indem. Co., 553 U.S. 639 (2008); accord Windham,

565 F.2d at 67–68 (recognizing that “the complexity of, and difficulties

connected with, the proof of individual injury and damages” can preclude

A contract can be breached in more than one material way.

See Long, 588 S.E.2d at 4. Therefore, even if the court were to

adopt Plaintiffs’ theory of breach, it does not resolve other

potential bases for breach alleged in the amended complaint. For

example, failure to have 4.1 HPRD of total nursing staffing or 8

consecutive hours of skilled nursing would not necessarily

proximately cause all damages Plaintiffs claim. (See, e.g., Doc.

62 ¶ 91, (failure to do laundry), ¶ 104 (poor food), ¶ 109 (failure

to order a required chair), ¶ 111 (development of bedsores), and

¶ 172 (failure to prevent spread of COVID-19).) Thus, these

alleged failures would be subject to proof of separate breaches.

Similarly, if the finder of fact were to reject Plaintiffs’ theory

of breach, it does not preclude a finding of material breach on

other bases on a resident-by-resident basis. Thus, Plaintiffs’

theory of breach does not resolve all bases – not even the majority

of bases – of potential liability.

It is also hornbook law, in North Carolina and elsewhere,

that “the injured party in a breach of contract action is awarded

damages which attempt to place the party, insofar as possible, in

the position he would have been in had the contract been

class certification under Rule 23(b)(3)); O'Sullivan v. Countrywide Home

Loans, Inc., 319 F.3d 732, 744–45 (5th Cir. 2003) (“Where the plaintiffs'

damage claims focus almost entirely on facts and issues specific to

individuals rather than the class as a whole, the potential exists that

the class action may degenerate in practice into multiple lawsuits

separately tried. In such cases, class certification is inappropriate.”

(internal quotation marks and citations omitted)).

performed.” Strader v. Sunstates Corp., 500 S.E.2d 752, 757 (N.C.

Ct. App. 1998) (citing Perfecting Service Co. v. Product

Development & Sales Co., 131 S.E.2d 9, 21 (N.C. 1963)); see

Restatement (Second) of Contracts § 347 (Am. L. Inst. 1981) (“If

defective or partial performance is rendered, the loss in value

caused by the breach is equal to the difference between the value

that the performance would have had if there had been no breach

and the value of such performance as was actually rendered.”); 24

Williston on Contracts § 64:1 (4th ed.) (“[T]he nonbreaching

party's general or direct damages are measured by the loss in value

of the performance promised by the breacher — that is, the value

of what was promised by the breaching party minus the value of the

performance actually rendered[.]”)

As applied here, the necessary damage calculations (even on

Plaintiffs’ generalized theories of liability) would thus involve

separate evaluations for each of the proposed 100-plus class

members.22 Each proposed class member ostensibly paid a fixed

monthly rate to The Citadel in exchange for adequate skilled

nursing care, room, and board. (Doc. 62 ¶ 2.) Plaintiffs assert

that each resident actually received inadequate care due to

inadequate staffing levels. (See Doc. 74 at 8 (“Plaintiffs’ claim

22 Plaintiffs concede “that damages could be different for any given

resident.” (Doc. 85 at 10; see also Doc. 71 at 20 (arguing that so long

as liability is established, “all that would remain would be the

calculation of each class member’s damages”); Doc. 74 at 5 (“[I]ssues

of individual . . . injury and damages exist.”).)

is that exposure to Defendants’ unlawful low-staffing business

model caused Plaintiffs to receive poor, understaffed service and

to not receive the benefit of their bargain.”).) The calculation

of damages allegedly due each class member would therefore be the

difference between the amount paid to The Citadel (e.g., the

monthly rate), and the value of the services actually received

(e.g., some lesser amount of the monthly rate to reflect the

inadequate services). The amount each individual paid to The

Citadel is presumably a known figure; but the value of service

that each proposed class member actually received would depend on

the individual circumstances of each resident. See Restatement

(Second) of Contracts § 347 (Am. L. Inst. 1981) (explaining that

in instances where “defective” performance is rendered, the loss

in value caused by the breach requires a determination of the value

of the performance to the injured party himself, which in turn

“depend[s] on his own particular circumstances”). Accordingly,

demonstrating damages for one class member would have little

practical bearing on any damages suffered by another class member.

See Wheeler v. United Services Auto. Ass'n, 2013 WL 4525312, *5

(D. Alaska Aug. 27, 2013) (holding that individual issues

predominated because “to calculate damages, the Court would be

required . . . to conduct a separate evidentiary proceeding for

[each] class member”). The varying injuries claimed in the amended

complaint - referencing assorted medication dispensing issues

(each with differing potential health consequences), failure to

properly take patients’ temperatures, failure to change clothing,

failure to respond to family inquiries, food quality issues,

bathing issues, et cetera - bear this out. (See, e.g., Doc. 62

¶¶ 114, 123-24, 162, 181-84, 187-90.)

As a result, even on Plaintiffs’ preferred theory of breach,

a class action does not provide a superior method for resolving

these claims because individual damage evaluations predominate

over common liability issues. See Riffey v. Rauner, 910 F.3d 314,

319 (7th Cir. 2018) (affirming district court's denial of class

certification in dispute over refund of union fair-share fees where

“the answer to the central question that remains — how much money

each individual class member is entitled to recoup — is

particularly ill-suited for class treatment, because it depends on

a myriad of factors particular to each individual worker”); Ibe v.

Jones, 836 F.3d 516, 531 (5th Cir. 2016) (“[I]ndividual damages

issues predominated over the common issues of breach because [class

members] incurred vastly different expenses, which would

essentially necessitate mini-trials to adjudicate damages for each

[class member].”); Thomas v. County of Los Angeles, 703 F. Appx.

508, 511 (9th Cir. 2017) (unpublished) (affirming denial of class

certification on predominance grounds in prison conditions case

because “the damages suffered by individual class members were

insufficiently similar to be established through representative

testimony”); Little v. T-Mobile USA, Inc., 691 F.3d 1302, 1305

(11th Cir. 2012) (affirming the district court's ruling that

“damage-related concerns evidence a predomination of

individualized inquiries and render the proposed class unfit for

certification”); 1 McLaughlin on Class Actions § 4:19 (19th ed.)

(“Courts have routinely denied certification where determining

individual damages is not susceptible to a readily-applied,

mechanical computation, but rather is dependent on the unique or

complex circumstances of each class member.”)

Nor have Plaintiffs overcome this hurdle in their proposal of

a common method of determining the amount of each proposed class

member’s actual damages.23 See Comcast Corp., 569 U.S. at 33

(observing that where damage calculations would otherwise

predominate over the common questions, a class may be maintained

if the plaintiff demonstrates “that the damages resulting from

that injury [are] measurable on a class-wide basis through use of

a common methodology.” (internal quotation marks omitted));

Windham, 565 F.2d at 68 (noting that individualized claims for

damages can be manageable where “the fact of injury and damage

breaks down in what may be characterized as virtually a mechanical

task, capable of mathematical or formula calculation” (internal

23 If a class can “demonstrate liability, there must be a method for

calculating, and ultimately for distributing, class members' damages.”

See Newberg on Class Actions § 12:4.

quotation marks omitted)). Plaintiffs’ cursory discussion of

damages is mostly relegated to a brief footnote in which they

suggest that “[a] finder of fact could award a Plaintiff the full

amount of payments they paid . . . over the class period[,]” or

“some amount less than that, reflecting the value of the missing

services the Plaintiff should have been provided but was not.”

(Doc. 71 at 20, n.19; see also id. at 5 (“Plaintiffs seek

disgorgement [of] contract payments . . . reflecting the reasonable

value of the staffing hours they were entitled to have and did not

receive.”).) Otherwise, Plaintiffs simply fallback on their

argument that individualized damages determinations “does not

preclude class certification where common questions of law and

fact as to liability clearly predominate.” (Doc. 71 at 20 (quoting

Haywood v. Barnes, 109 F.R.D. 568, 583 (E.D.N.C. 1986)).) Suffice

it to say, Plaintiffs have failed “to demonstrate a method for

quantifying individual damages that applies across the board and

hence is common to the class[.]” Newberg on Class Actions § 12:4.

Additionally, the individual inquiries necessary for each

class member will be further complicated by Defendants’

affirmative defenses, such as statutory immunity under North

Carolina’s Emergency or Disaster Treatment Protection Act, supra,

and arbitration for those potential class members who Defendants

contend are bound by an arbitration provision incorporated into

their contracts.24 (See Doc. 72 at 13-15.) True, individualized

defenses do not necessarily defeat class certification. See Alig

v. Quicken Loans Inc., 990 F.3d 782, 792–93 (4th Cir. 2021) (noting

that individualized defenses that can be resolved by “ministerial”

exercises do not preclude class certification), vacated and

remanded for other reasons, 142 S. Ct. 748 (2022). But the Fourth

Circuit has “flatly held that ‘when the defendants' affirmative

defenses may depend on facts peculiar to each plaintiff's case,

class certification is erroneous.” Gunnells, 348 F.3d at 438

(alterations omitted)(quoting Broussard, 155 F.3d at 342).

Particularly relevant here is the potential for arbitration

agreements to bar the claims of dozens of potential class members.

When certain members of a class are subject to contracts containing

an arbitration clause, while other class members are not, the

members that are subject to arbitration “are in a different legal

position than those class members who contracts contain no such

provisions.” In re Titanium Dioxide Antitrust Litig., 962 F. Supp.

2d 840, 861 (D. Md. 2013). When this happens, there is a risk

that beyond the class certification stage “a significant portion

of th[e] litigation would be devoted to discovering which class

24 Defendants estimate that 60 to 70 percent of the potential class

members have contracts with the prior owner with arbitration provisions

that were transferred to The Citadel upon its purchase of the facility

which Defendants would seek to enforce. (Doc. 85 at 35-37.) Those who

contracted with The Citadel also would have arbitration provisions,

although Plaintiffs contest their enforceability. (Id. at 38.)

members signed such agreements and enforcing those agreements,

rather than to the resolution of plaintiffs' legal claims.” Pablo

v. ServiceMaster Glob. Holdings Inc., No. C 08-03894 SI, 2011 WL

3476473, at *2 (N.D. Cal. Aug. 9, 2011) (denying renewed motion

for class certification where evidence “currently before the

Court” supported an “inference that a significant number” of

“putative class members signed arbitration agreements”); Tan v.

Grubhub, Inc., No. 15-CV-05128-JSC, 2016 WL 4721439, at *3 (N.D.

Cal. July 19, 2016) (collecting cases and noting that a number of

courts have “found typicality and adequacy of representation to be

lacking where the lead plaintiff was not subject to the same

arbitration provisions as unnamed plaintiffs”), aff'd sub nom.

Lawson v. Grubhub, Inc., 13 F.4th 908 (9th Cir. 2021); In re

Titanium, 962 F. Supp. 2d at 861-62 (finding typicality lacking

where “many of the current class members are subject to contractual

provisions that expressly foreclose their ability to proceed in

this case”); King v. Capital One Bank (USA), N.A., No. 3:11-CV-

00068, 2012 WL 5570624, at *14 (W.D. Va. Nov. 15, 2012) (finding

that the plaintiff not subject to the arbitration provision “could

not fairly and adequately represent in this Court the interests of

individuals who are bound to pursue their claims in arbitration”);

Renton v. Kaiser Found. Health Plan, No. C00–5370RJB, 2001 WL

1218773, at *5–6 (W.D. Wash. Sept. 24, 2001) (finding plaintiffs

failed to meet commonality and typicality requirements in part due

to class members' varying contractual provisions requiring

arbitration or exhaustion of administrative remedies).25 Thus, it

is evident that, given these individualized questions as applied

to the diverse situations of the potential class members, the

predominance requirement has not been met.

In the end, Plaintiffs fall back on three cases involving

similar claims decided by the Arkansas Supreme Court. See Robinson

Nursing & Rehab. Ctr., LLC. v. Phillips, 519 S.W.3d 291 (Ark.

2017), GGNSC Arkadelphia, LLC v. Lamb by & through Williams, 465

S.W.3d 826 (Ark. 2015), and Beverly Enterprises-Arkansas, Inc. v.

Thomas, 259 S.W.3d 445 (Ark. 2007). These cases, Plaintiffs say,

establish that “[o]ther courts have certified similar actions.”

(Doc. 71 at 20-21.) However, as Defendants correctly point out,

“the[se] three Arkansas state court cases . . . support

Defendants’ position, that this Court should deny Plaintiffs’

motion for class certification.” (Doc. 72 at 21.) In Beverly,

for instance, the court certified a class based on the

understaffing of a nursing home pursuant to Rule 23 of the Arkansas

Rules of Civil Procedure; but in doing so, the court was careful

to note that, contrary to federal precedent interpreting and

25 In many of these cases, courts denied class certification on grounds

of typicality and adequacy. But whether couched in terms of typicality

and adequacy under Rule 23(a) or predominance under Rule 23(b)(3), the

bottom line is that determining which portion of the putative class

signed arbitration agreements presents yet another individualized issue

that further supports the conclusion that common issues do not

predominate over common ones.

applying Rule 23 of the Federal Rules of Civil Procedure, Arkansas

precedent did not demand the same “rigorous analysis[.]” See

Beverly, 259 S.W.3d 453 (discussing the difference between federal

and Arkansas state law for class certification (citing Tay–Tay,

Inc. v. Young, 80 S.W.3d 365, 368 (Ark. 2002)). Subsequently, the

courts in GGNSC and Robinson relied on Beverly and granted similar

motions for class certification under Arkansas’s Rule 23. GGNSC,

465 S.W.3d at 831; Robinson, 519 S.W.3d at 296. Even so, the cases

were not without substantial dissenting views that criticized the

use of a subjective standard of a proper staffing level to

determine breach. See GGNSC, 465 S.W.3d at 838 (Hart, J.,

dissenting) (noting a lack of common question law or fact that

predominates because “even assuming there is such a cause of

action, there is no one set of operative facts to establish

liability to any given class member, as the claim of each class

member would be an individualized inquiry into whether any

particular understaffing was the proximate cause of any injury”);

Robinson, 519 S.W.3d at 303-04 (Hart, J., concurring in part and

dissenting in part) (noting that “[u]nlike a determination of

staffing that is based on specific ratios, this staffing standard

is subjective and leaves the court without an objective standard

to ascertain, on a classwide basis, whether [the facility] was

understaffed,” and concluding that “[a] determination of the care

needs of the residents and whether any upward adjustment was

required would require a highly individualized inquiry as to each

resident because each resident clearly had different care needs”).

These cases, relying on the Arkansas Rules of Civil Procedure,

are therefore readily distinguishable. Here, applying Federal

Rule of Civil Procedure 23, the court finds that Plaintiffs have

failed to satisfy the predominance and superiority requirements as

to their proposed Rule 23(b)(3) subclasses.

D. Rule 23(c)(4) Requirements

Finally, in a single paragraph raised in the alternative,

Plaintiffs seek class certification under Rule 23(c)(4) as to the

“central” and “fundamentally and qualitatively important issue” of

whether the understaffing at The Citadel constituted breach of

contract. (Doc. 71 at 22-23 (citing Gunnells, 348 F.3d at 441).)

In response, Defendants argue that Plaintiffs fail to “set forth

any reason why” this class issue should be certified. (Doc. 72 at

22.)26 Additionally, Defendants rely on Gunnells to argue that

“because Plaintiffs expressly only seek to certify individual

issues, their alternative basis for certification under Rule

23(c)(4) must fail.” (Id. at 23.) In reply, Plaintiffs proffer

several other common issues appropriate for certification, namely:

26 Defendants also argue that “Plaintiffs neglect to set forth the

‘central’ and ‘fundamentally and qualitatively important’ issue that it

seeks to be certified.” (Doc. 72 at 22.) It is clear from their

briefing, however, that for Plaintiffs “the central issue affecting both

the named Plaintiffs and the class is whether the Defendants’ standard

business practice of understaffing breached contractual rights.” (Doc.

71 at 8.)

“the issue[s] of contract formation, what contract was formed,

whether the HPRD [Hours Per Resident Day] standard applies”; and

“the exact scope of the duties that the nursing home operator had.”

(Doc. 74 at 3-4.) They also reiterate that the central issue for

certification is “whether Defendant violated its contractual duty

to have adequate staffing.” (Id. at 4.) Plaintiffs claim that,

together, these issues are “sufficiently powerful and predominant

as to warrant [their] prosecution under class handling” under Rule

23(c)(4). (Id. at 3-5.)

“When appropriate, an action may be brought or maintained as

a class action with respect to particular issues.” Fed. R. Civ.

P. 23(c)(4). A class certified under Rule 23(c)(4) must

independently satisfy each of the requirements set out in Rule

23(a) and (b). See Gunnells, 348 F.3d at 441 (noting that the

Fourth Circuit “follow[s] the rule . . . that subsection 23(c)(4)

should be used to separate ‘one or more’ claims that are

appropriate for class treatment, provided that within that claim

or claims (rather than within the entire lawsuit as a whole), the

predominance and all other necessary requirements of subsections

(a) and (b) of Rule 23 are met” (citing In re A.H. Robins, 880

F.2d 709, 728 (4th Cir. 1989), abrogated on other grounds by Amchem

Prod., Inc. v. Windsor, 521 U.S. 591 (1997)). “Given the rule’s

language, judicial interpretation has coalesced in recent years

around a ‘broad view’ of Rule 23(c)(4) in which common questions

need predominate over individual ones only for the specific issues

that are certified, not for the entire cause of action.” In re

Marriott International, Inc., Customer Data Security Breach

Litigation, 341 F.R.D. 128, 168 (D. Md. 2022) (citing Newberg on

Class Actions § 4:91 (5th ed. 2021)); see Parker v. Asbestos

Processing, LLC, No. 0:11-CV-01800-JFA, 2015 WL 127930, at *11

(D.S.C. Jan. 8, 2015) (interpreting Gunnells to allow Rule 23(c)(4)

certification “of a class as to an issue regardless of whether the

claim as a whole satisfies the predominance test in Rule

23(b)(3)”).27 The Fourth Circuit “has admonished district courts

to ‘take full advantage of the provision in [Rule 23(c)(4)]

permitting class treatment of separate issues’ in order ‘to promote

the use of the class device and to reduce the range of disputed

issues’ in complex litigation.” Central Wesleyan College v. W.R.

Grace & Co., 6 F.3d 177, 185 (4th Cir. 1993) (quoting In re A.H.

Robins, 880 F.2d at 740); see In re Marriott, 341 F.R.D. at 168

(D. Md. 2022) (adopting the “broad view” as to Rule 23(c)(4)).

The language of Rule 23(c)(4), however, speaks of certifying

particular issues “when appropriate,” and thus “[c]ourts should

use Rule 23(c)(4) only where resolution of the particular common

27 For this reason, Defendants are incorrect that Gunnells stands for the

proposition that a district court may only “certify individual causes

of action, not individual issues, for class treatment.” (Doc. 72 at 23

(quoting Farrar & Farrar Dairy Inc., v. Miller-St. Nazianz, Inc., 254

F.R.D. 68, 77 (E.D.N.C. 2008)).). See In re Marriott Int'l, 341 F.R.D.

at 168, n. 60.

issues would materially advance the disposition of the litigation

as a whole.” Jacob v. Duane Reade, Inc., 293 F.R.D. 578, 589

(S.D.N.Y. 2013) (internal quotation marks omitted).

Here, the court declines to certify a class under Rule

23(c)(4). First, as discussed extensively above, even if the court

certified the issue whether The Citadel was understaffed pursuant

to the HPRD metric, this would only provide evidence as to one

basis (of many) for a claim of material breach, and it would not

resolve whether individual Plaintiffs received the qualitative

care for which they contracted. (See Doc. 61 at 24 (“[T]he

understaffing, if demonstrated, would only be evidence to support

a claim that any particular Plaintiff failed to receive the

services contracted for – that is, that he or she did not receive

the proper care and oversight by the nursing and other staff.”).)

Plaintiffs appear to recognize as much in their reply brief,

acknowledging that it is really the “issues of contract formation,

what contract was formed, [and] whether HPRD standard applies” –

and not “the elements of breach and the breach causing damage[]”

– that are “powerful enough as drivers in the case warrant at least

issue class certification.” (Doc. 74 at 3.) But certification of

these threshold issues would do little to advance the litigation

as a whole, given the overriding issue of Defendants’ liability

for breach of contract – with all its concomitant individualized

evidence - would still remain to be resolved. Accordingly, class

certification under Rule 23(c)(4) on these issues – contract

formation, and the “exact scope of the duties that the nursing

home operator had” - is inappropriate. See Tillman v. Highland

Industries, Inc., No. 4:19-CV-02563-SAL, 2021 WL 4483035, at *19

(D.S.C. Sept. 30, 2021) (denying Rule 23(c)(4) certification

because “the fact remains that Defendant’s liability as to the

three causes of action will not be determined as a result of the

trial on the certified issues” (emphasis added) (citing Parker,

2015 WL 127930, at *14)); In re St. Jude Medical, Inc., 522 F.3d

836, 841 (8th Cir. 2008) (“Even courts that have approved ‘issue

certification’ have declined to [exercise it] where the

predominance of individual issues is such that limited class

certification would do little to increase the efficiency of the

litigation.”); McLaughlin v. American Tobacco Co., 522 F.3d 215,

234 (2d Cir. 2008) (concluding that, “given the number of questions

that would remain for individual adjudication, issue certification

would not reduce the range of issues in dispute and promote

judicial economy” (internal quotation marks omitted)), abrogated

on other grounds by Bridge v. Phx. Bond & Indem. Co., 553 U.S. 639

(2008).

Finally, even if Plaintiffs were correct that liability for

breach of contract could be established solely by reference to

staffing levels at the facility (or even by reference to The

Citadel’s failure to provide eight consecutive hours of care by a

registered nurse for some period of the relevant time), the court

finds that certification of this issue is still not appropriate.

“When considering superiority in the context of Rule 23(c)(4) . .

. courts should consider whether the efficiency gains of

certification outweigh the fact that individualized issues

requiring significant time and attention remain for later.” In re

Marriott Int'l, 341 F.R.D. at 170 (alterations, internal quotation

marks, and citation omitted). Here, it is not at all clear that

certification of the liability class that Plaintiffs propose will

be significantly more efficient than resolving each case

individually. While Plaintiffs wish to proceed with a theory of

damages based on aggregate “acuity” level, or alternatively the

failure to provide the 8 consecutive hours a day of skilled nursing

required by state law, this does not prevent the Defendants from

putting on evidence of the effect of this on a resident-by-resident

basis. Thus, even if one resident suffered from inadequate

staffing on one day or in one month, another resident may not have

suffered, or may have suffered only nominally. Whether the failure

to provide the staffing was material to each of the more than 100

residents may depend on the effect on each resident.

Moreover, before making any determination of breach, the

court would still be faced with questions whether each resident is

bound by an arbitration clause in his or her contract. Should

class members survive that determination, the court would have to

determine for each whether he or she would be entitled to relief

in light of the North Carolina Emergency or Disaster Treatment

Protection Act, N.C. Gen. Stat. §§ 90-21.130 to 90-21.134. And if

this defense were no bar to recovery, individual trials would still

be required on the ultimate issue of damages. This, in turn, would

require a determination of the “value” that any individual

Plaintiff lost because of the breach; a determination which, as

noted above, would require extensive individualized evidence from

both the individual resident and the Defendants regarding “the

value of the missing services the Plaintiff should have been

provided but was not.” (Doc. 71 at 20 n.19.) Apart from the

obvious fact that Medicare and Medicaid allegedly made payments

for some portion of the class, Plaintiffs have made no showing

that class members lack an incentive to prosecute their own

claims.28 Indeed, “there is a substantial amount of money

potentially at stake for each class member (many thousands of

dollars)[.]”29 Tasion Commc'ns, Inc. v. Ubiquiti Networks, Inc.,

308 F.R.D. 630, 640 (N.D. Cal. 2015) (concluding that issue

28 Plaintiffs’ counsel acknowledged the practical effect this has on the

litigation and noted that the federal government’s lien on all such

payments would have to be negotiated. (Doc. 85 at 13-14.)

29 Plaintiffs note that “contracts in the record reflect daily room rates

of $345 for a semi-private room per day and $359/day for private room.”

(Doc. 74 at 11.) Accordingly, any resident who stayed at The Citadel

throughout the entire twenty-month period paid roughly $207,000 total.

Even if only a fraction of this was recoverable, any individual

Plaintiff’s claim could potentially be thousands of dollars.

certification was inappropriate because it would not

“substantially or materially” advance the litigation); Matter of

Rhone-Poulenc Rorer, Inc., 51 F.3d 1293, 1299 (7th Cir. 1995)

(observing that the potential amount of recovery in individual

cases can cut against class certification).30

At bottom, the party seeking certification of an issue class

under Rule 23(c)(4) has the burden of demonstrating why the issue

class is “appropriate” – that is, “how litigating certain issues

on a class-wide basis rather than individually will move the

litigation forward in a significant and efficient manner.”

Valenzuela v. Union Pac. R.R. Co., No. CV-15-01092-PHX-DGC, 2017

WL 1398593, at *7 (D. Ariz. Apr. 19, 2017). Because Plaintiffs

have not done so, certification of an issue class under Rule

23(c)(4) will be denied.

30 Plaintiffs are not without alternative means to pursue their claims.

For example, they can seek to pursue bellwether trials. Apart from

possible collateral estoppel effects, a decision on the merits in any

individual case would at least be persuasive authority going forward.

Plaintiffs can also use discovery devices, such as requests for admission

pursuant to Federal Rule of Civil Procedure 36, to request that

Defendants admit to the accuracy of certain factual statements to

simplify and expedite individual trials. See Parker v. Asbestos

Processing, LLC, No. 0:11-CV-01800-JFA, 2015 WL 127930, at *14 (D.S.C.

Jan. 8, 2015); In re Marriott, 341 F.R.D. 128, 170 (D. Md. 2022)

(recognizing that use of other procedural devices, including Federal

Rule of Civil Procedure 36, could be an alternative to issue

certification). Use of this procedural device may be especially workable

where, as here, Plaintiffs appear to have relied almost entirely on

Defendants’ own records in marshalling their factual case. (See, e.g.,

Doc. 71 at 16-17.) Such a device has the added enforcement benefit of

an award of reasonable expenses, including attorneys’ fees, incurred in

making proof for a denial. Fed. R. Civ. P. 37(c)(2).

III. CONCLUSION

Plaintiffs present a sympathetic case that elderly residents

of a skilled nursing facility were subjected to deficient service,

contrary to that for which they allegedly contracted. Whatever

difficulties The Citadel experienced, moreover, may well have been

exacerbated during the Covid-19 pandemic, which inflicted a

particularly severe toll on congregate managed care facilities.

However, for the reasons set out above, Plaintiffs’ uniquely-

tailored claim for damages for breach of contract based on

aggregate staffing hours is not readily amenable to class relief.

IT IS THEREFORE ORDERED that Plaintiffs’ motion for class

certification (Doc. 70) is DENIED.

/s/ Thomas D. Schroeder

United States District Judge

April 20, 2023