Walker

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

WESTERN DIVISION

MONEVA WALKER, et al., CASE NO. 3:20 CV 2176

Plaintiffs,

v. JUDGE JAMES R. KNEPP II

CEDAR FAIR, L.P., et al.,

MEMORANDUM OPINION AND

Defendants. ORDER

INTRODUCTION

Pending before the Court is Plaintiffs’ Motion to Add Class Representatives, Amend the

Complaint, and Modify the Court’s Certification Order. (Doc. 140). Defendants opposed (Doc.

146), and Plaintiffs replied (Doc. 148). This Court retains subject matter jurisdiction pursuant to

28 U.S.C. § 1132(d)(2)(A). As set forth below, the Court grants in part and denies in part Plaintiffs’

Motion.

BACKGROUND

Plaintiffs’ Underlying Substantive Claims

Plaintiffs purchased season passes of varying tiers to Defendants’ amusement parks for the

2020 operating season. (Doc. 18, at 5). Contrary to the promise of “unlimited visits to the relevant

park” in exchange for purchasing a season pass, the outbreak of the COVID-19 virus caused

Defendants to shorten the 2020 operating season and, at some parks, cancel it entirely. Id. at 1–6.

When Defendants closed or limited access to their parks, they “did not provide refunds” to

Plaintiffs and similarly situated season pass purchasers. Id. at 17. While Defendants announced

that a 2020 season pass would be honored for the 2021 operating season, Plaintiffs maintain “this

is not what passholders paid for, and was contrary to the essential terms” of the season pass

agreement. Id. at 18.

Plaintiffs’ operative Complaint states claims for breach of contract, unjust enrichment,

money had and received, and claims arising under the consumer protection laws of various states.

See id. at 23–34. Defendants first moved for judgment as a matter of law regarding the applicability

of Ohio law to this dispute, including Ohio’s state consumer protection regime. See Doc. 19.

Plaintiffs eventually conceded this point, meaning the only live claims remaining were for breach

of contract, unjust enrichment, money had and received, and claims arising under the Ohio

Consumer Sales Practices Act (“OCSPA”). See Doc. 27, at 2. Further, Plaintiffs agreed “[t]o

streamline and expedite this case” by stipulating “that Ohio law applies to all claims currently

asserted.” Id. As a result of this concession, Plaintiffs’ claims whittled down further.

While the present case progressed, the Ohio Supreme Court issued a decision in Valentine

v. Cedar Fair, L.P., 202 N.E.3d 704 (Ohio 2022), which resolved under Ohio law similar

substantive claims relating to the closure of Defendants’ parks in 2020. There, the court determined

the plaintiff did not retain valid claims for unjust enrichment and breach of contract, as the season

pass purchased was a “revocable license” which guaranteed the purchaser admittance to the

relevant park subject to Cedar Fair’s “right to adjust its dates of operation for any reason.” Id. at

186. Because the license was revocable, the failure to open for portions of the 2020 season spoke

only to the sufficiency of the consideration offered in exchange for such license. Id. at 186–87.

Because courts generally “may not inquire into the adequacy of consideration, which is left to the

parties ‘as the sole judges of the benefits or advantages to be derived from their contracts,’” the

Ohio Supreme Court affirmed the dismissal of the plaintiff’s breach of contract and unjust

enrichment claims. Id. at 187 (quoting Williams v. Ormsby, 966 N.E.2d 255, 259 (Ohio 2012)).

After Valentine, Defendants filed a renewed motion to dismiss targeting Plaintiffs’ breach

of contract, unjust enrichment, money had and received, and OCSPA claims. See Doc. 42. The

Court1 dismissed all breach of contract claims retained by Plaintiffs and further dismissed the

unjust enrichment and money had and received claims with respect to all Plaintiffs except named

Plaintiff Noelani Mori. (Doc. 52, at 12). Importantly, the park to which Mori purchased a season

pass never opened, meaning she “plausibly allege[d] that she did not receive the benefit of her

bargain” for a revocable license when compared to the named plaintiff in Valentine, whose park

did open for a limited number of days during the 2020 season. Id. at 11–12. Thus, at the time

Plaintiffs moved for class certification, the only claims before the Court were (1) the statutory

OCSPA claims and (2) unjust enrichment and money had and received claims possessed solely by

named Plaintiff Mori.

Certification of OCSPA & Equitable Claims Classes

Subject to sua sponte modifications, the Court granted named Plaintiffs’ Motion for Class

Certification. (Docs. 76, 117). The Court first certified the OCSPA Class, which Judge Carr

assigned the following definition:

This class asserts an Ohio Consumer [Sales] Practices Act (“OCSPA”) claim. This

claim alleges that Cedar Fair’s ads failed to comply with Ohio law relative to notice

of exclusion and disclaimers.

As a result of limited access due to COVID-19 related shutdowns, a 2020 unlimited

season pass purchaser would have expected a refund of the difference between the

pass price of the 2020 expected season and the value of the 2020 season the

purchaser actually received.

(Doc. 117, at 2). Within this class, the Court sua sponte crafted and certified three subclasses based

on the type of season pass each named Plaintiff and putative class member purchased. Those

1. This case was originally assigned to now-inactive Senior District Judge James G. Carr. It was

reassigned to the undersigned in March 2025.

subclasses were: “(a) Regular Summer/Season Pass holders to any single” park among Cedar

Fair’s multiple theme parks, “(b) Gold Pass holders to any single” such park, and “(c) Platinum

Pass holders” who retained the right to access more than one of Cedar Fair’s parks. Id. at 2–3.

Next, the Court granted Plaintiffs’ Motion for Certification with respect to the putative

Equitable Claims Class.2 Judge Carr adopted the following definition for the Equitable Claims

Class:

This class asserts unjust enrichment and money had and received claims on behalf

of passholders to parks that never opened in 2020. These parks are California’s

Great America, Canada’s Wonderland, and Valleyfair. The claims allege that it was

unjust for Cedar Fair to take the money that passholders paid for 2020 passes but

provide no bargained-for consideration in return. Plaintiffs in this class, where

parks were completely closed, would be entitled to a full refund.

(Doc. 117, at 2–3). Again, Judge Carr sua sponte crafted and certified subclasses for the Equitable

Claims. Those included: “(a) Summer/Season Pass Holders to [parks that never opened],” and “(b)

Gold Pass Holders to [parks that never opened].” Id. Platinum passholders were excluded from the

Equitable Claims Class. Id.

After defining the scope of each class and subclass, the Court proceeded to outline certain

definitional exclusions which applied across both the OCSPA and Equitable Claims Class. In

effect, if an individual fell within the scope of an exclusion, they would no longer be a member of

the certified classes. The Court excluded:

2. This Court notes it is a misnomer to label Plaintiffs’ unjust enrichment and money had and

received claims as “equitable.” Quasi-contract or “unjust enrichment” claims are legal, not

equitable. See Samuel L. Bray, A Catalog of Legal and Equitable Remedies, at 3 n.19, available at

https://ssrn.com/abstract=5378666 (“In 1900 this body of [restitutionary] law was usually called

‘quasi-contract,’ and in 2000 it was usually called ‘unjust enrichment.’ Here there is no separation

between the substantive claim and the remedy, no moment of remedial choice: a plaintiff who

makes a successful claim for (legal) restitution receives as the remedy (legal) restitution.”).

Similarly, “[a]n action for money had and received, although governed by equitable principles, is

an action at law.” Williamson v. Stallone, 905 N.Y.S.2d 740, 753 (N.Y. 2010). For simplicity’s sake,

however, the Court declines to disturb the label assigned to the Equitable Claims Class.

(1) any 2020 unlimited season passholder who received a refund; (2) any passholder

who used his or her 2020 season pass at any time, and for any reason, during

Defendants’ 2021 operating season; (3) any Judge or Magistrate Judge presiding

over this action and the members of their family; (4) Defendants, Defendants’

subsidiaries, parents, successors, predecessors, and any entity in which the

Defendants or their parents have a controlling interest, and their current employees,

officers and directors; (5) persons who properly execute and file a timely request

for exclusion from the class; (6) persons whose claims in this matter have been

finally adjudicated on the merits or otherwise released; (7) Plaintiffs’ counsel and

Defendants’ counsel; (8) the legal representatives, successors, and assigns of any

such excluded persons.

Id. at 5. After outlining these definitional exclusions, the Court then conducted its Rule 23(a) and

(b)(3) analysis, finding the putative class representatives put forth by Plaintiffs to be adequate and

in possession of typical claims. Id. at 10–12. The Court further determine the putative classes

satisfied Rule 23(a)’s numerosity and commonality requirements, as well as Rule 23(b)(3)’s

predominance and superiority requirements. Id. at 10–15.

Consequences of Certification

While achieving their initial goal of class certification, the Court’s certification order

nevertheless created issues for Plaintiffs, which the Motion presently before the Court seeks to

redress. First, the Court’s definitional exclusions for “any passholder who received a refund” and

“any passholder who used his or her 2020 season pass at any time, and for any reason, during

Defendants’ 2021 operating season,” id. at 5, excluded from the OCSPA Class all named Plaintiffs

the Court certified as representatives of the OCSPA Class but for Mandi Stewart. Once Mandi

Stewart withdrew as a representative of the OCSPA Class and as a named Plaintiff (Doc. 139, at

1), the OCSPA Class was left entirely without class representatives. Accord Doc. 140, at 2 (“The

Court’s [definitional] modifications excluded all proposed class representatives, expect for Mandi

Stewart, who has since such time withdrawn.”).

Second, the Court’s definitional modifications similarly excluded named Plaintiff Mori,

who was the sole named Plaintiff offered and certified as a representative of the Equitable Claims

Class. See Doc. 76, at 8; Doc. 146, at 26. Compounding the difficulty, however, is the fact that the

Court previously dismissed all other equitable claims as to all named Plaintiffs other than Mori

after the Ohio Supreme Court’s decision in Valentine. In effect, then, not only was the Equitable

Claims Class left without a representative, but this lawsuit was also left without a named Plaintiff

who retains any equitable claims against the Defendants.

Defendants next sought approval from the Sixth Circuit to pursue an interlocutory appeal

of the Court’s certification order. See Doc. 136-2; Fed. R. Civ. P. 23(f). The Sixth Circuit denied

that request, determining the certification order and its consequences, including depriving the

certified classes of adequate representatives, did not raise “novel or unsettled questions of law.” In

re Cedar Fair, L.P., et al., No. 24-0305, Doc. 9, at 2 (6th Cir. June 27, 2025). The court relied on

Eleventh Circuit authority indicating it is permissible to “substitute new class representatives if

the named plaintiffs lose their standing to serve as representatives of certified classes and leave

one or more classes without a representative.” Id. (citing Birmingham Steel Corp. v. Tenn. Valley

Auth., 353 F.3d 1331, 1339 (11th Cir. 2003)). Whether such a move was proper in this particular

case, however, remained “entirely fact-bound at [that] stage” of the proceedings. Id. Plaintiffs’

Motion seeking the addition of new putative class representatives as parties followed. See Doc.

140, at 8–10.

DISCUSSION

Plaintiffs’ Motion proposes three alternative methods for reaching a single result.

Primarily, Plaintiffs rely on Birmingham Steel and Lynch v. Baxley, 651 F.2d 387 (5th Cir. 1981)

for the proposition that they “must be given an opportunity to add suitable class representatives”

after the Court’s certification order excluded the certified representatives in order “[t]o protect the

interests of unnamed class members.” (Doc. 140, at 8–10). To reach such a result, Plaintiffs suggest

this Court may:

1. Utilize its equitable authority to amend the class certification order to include new class

representatives without adding the class representatives as parties to the suit.

2. Allow Plaintiffs to amend their Complaint pursuant to Rule 15 to add new parties as

putative class representatives.

3. Directly add the new proposed class representatives as parties to the suit pursuant to

Federal Rule 21.

(Doc. 140, at 11–13). Finally, Plaintiffs argue the Court should modify the definition of the

Equitable Claims Class to include those individuals who purchased their season pass in-person. Id.

at 13–14. In opposition, Defendants launch numerous attacks on the Court’s original certification

order as well as Plaintiffs’ Motion. Primarily, Defendants mount a jurisdictional challenge by

claiming Plaintiffs lack standing to add parties and substitute them as class representatives. See

Doc. 146, at 16–24 (“A prerequisite to Plaintiffs’ Motion is standing and jurisdiction. For reasons

stated below, Plaintiffs can establish neither.”).

If the Court does retain jurisdiction to adjudicate this dispute, Defendants raise three

separate merits arguments. First, without bringing a motion for reconsideration, Defendants argue

the Court erred in certifying classes and subclasses that lacked adequate representatives with

claims typical of class members, as the certified representatives were definitionally excluded from

the class they purported to represent. See id. at 25–27. Second, Defendants contend applicable

statutes of limitations bar Plaintiffs from amending their Complaint or adding new parties. See id.

at 32–34. Finally, Defendants argue Plaintiffs’ request to modify the Equitable Claims Class’s

definition should be denied on statute of limitations, commonality, and predominance grounds.

See id. at 34–40.

In an attempt to simplify its analysis, the Court proceeds in the following steps. First, the

Court resolves Defendants’ jurisdictional challenges, finding it retains jurisdiction to adjudicate

Plaintiffs’ Motion both with respect to the OCSPA Class and the Equitable Claims Class. Next,

the Court evaluates the merits of Plaintiffs’ Motion, finding it proper to grant Plaintiffs’ Motion to

Amend its Complaint pursuant to Federal Civil Rule 15. To assuage any standing concerns with

respect to the Equitable Claims Class, the Court construes Plaintiffs’ Motion to add new parties as

class representatives as a motion to intervene on behalf of Equitable Claims Class members

unnamed in Plaintiffs’ Second Amended Complaint. As contemplated by Plaintiffs’ proposed

Third Amended Complaint, these intervening parties will join such Complaint as named Plaintiffs.

See Doc. 140-1, at 3–6, 21.

Standing

“Standing is ‘the threshold question in every federal case.’” Coyne v. Am. Tobacco Co.,

183 F.3d 488, 494 (6th Cir. 1999) (quoting Warth v. Seldin, 422 U.S. 490, 498 (1975)). In order

to assert jurisdiction over the merits of this dispute, the Court must fulfill its “independent

obligation to assure that standing exists, regardless of whether it is challenged by any of the

parties.” Summers v. Earth Island Inst., 555 U.S. 488, 499 (2009). To satisfy Article III’s standing

requirement, a plaintiff “must have suffered some actual or threatened injury due to the alleged

illegal conduct of the defendant; the injury must be ‘fairly traceable’ to the challenged action; and

there must be a substantial likelihood that the relief requested will redress or prevent the plaintiff's

injury.” Coyne, 183 F.3d at 494. Thus, only when this Court is convinced Plaintiffs have met their

burden to properly invoke Article III jurisdiction may it proceed to the merits of their Motion.

Defendants first challenge Plaintiffs’ standing on grounds related to former named Plaintiff

Mandi Stewart’s status as “next friend” of her daughter, Arianna Mickle. The Court previously

determined Stewart could serve in such a role, permitting her to bring claims on her daughter’s

behalf based on Stewart’s “capacity as a purchaser of her daughter’s pass.” (Doc. 117, at 15).

Defendants argue “Stewart never had standing to act as a class representative, and Mickle was

never a party in this case. This Court should reject arguments premised on either of their statuses

as class representatives.” (Doc. 146, at 22). Defendants assert this argument applies equally to both

the OCSPA and Equitable Claims Classes. See id. Finally, Defendants assert the Court’s decision

to allow Stewart to proceed as “next friend” of Mickle constituted “clear legal error” in light of

Mickle surpassing the age of majority and a lack of notice to Defendants regarding Stewart’s status

as “next friend.” See Doc. 146, at 18–20 (“Stewart was not a proper representative under Civil

Rule 17, and thus lacked standing to bring claims based on injuries to another adult.”).

Plaintiffs correctly note, however, that the Court need not revisit whether Stewart was a

proper next friend of Mickle or whether Stewart lacked standing to pursue her individual and class

claims at the outset of the case, when seeking certification, and now. See Doc. 148, at 15–16. At

the outset of this case and at certification, as explained further below, there existed other Plaintiffs

who retained standing as class members to pursue their individual and class claims on behalf of

both the OCSPA and Equitable Claims Class. Further, Mickle and Stewart have both withdrawn

from this case, meaning it is immaterial to the standing inquiry with respect Plaintiffs’ present

Motion whether they retained standing to sue ab initio. See id. Thus, the Court proceeds to analyze

its jurisdiction with respect to the certified OCSPA Class, the Equitable Claims Class, and the

parties presently before the Court.

OCSPA Class Standing

Plaintiffs retain standing to bring, and this Court has jurisdiction to adjudicate, the present

Motion as applied to the OCSPA Class. Importantly, standing in class actions is not restricted to

those individuals the class members choose to put forth as named Plaintiffs and class

representatives. Rather, all individuals who are “a member of the class” and will thus be “bound

by the judgment” obtained thereby pose “no question” as to whether they satisfy the “three

requirements” of Article III standing. Devlin v. Scardelletti, 536 U.S. 1, 7 (2002). Thus, so long as

an individual who retains an OCSPA claim and is a member of the OCSPA Class is presently

before the Court, that individual has standing to bring the present Motion to add parties and

substitute new class representatives.

Plaintiffs’ operative Complaint plead their OCSPA claim in the alternative:

Plaintiff Mandi Stewart alleges this claim individually and on behalf of the

proposed Ohio Parks Subclass. In the alternative, all named Plaintiffs allege this

claim individually and on behalf of the proposed Cedar Fair Season Passholder

Class. As used in this claim, “Plaintiffs” collectively refers to the named Plaintiffs,

the Ohio Parks Subclass, and the Cedar Fair Season Passholder Class. (Doc. 18, at

33).

(Doc. 18, at 33). As previously explained, Plaintiffs voluntarily relinquished all consumer

protection claims other than those arising under the OCSPA. See Doc. 27, at 2. Further, in their

motion for class certification, Plaintiffs offered multiple named Plaintiffs, not just Mandi Stewart,

as putative representatives for the OCSPA Class. See Doc. 76, at 22. These putative OCSPA Class

representatives included individuals such as Holly Poteat and Jonathan Brown who had previously

asserted consumer protection law claims under North Carolina law. See Doc. 18, at 19.

Taken in combination, these developments indicate Plaintiffs’ alternative pleading was

triggered upon waiver of the consumer protection claims under the laws of states other than Ohio.

As a result, each named Plaintiff in this action retains an OCSPA Class claim and is a member of

the OCSPA Class unless covered by one of the definitional exclusions included in the certification

order. See Doc. 117, at 2 (defining the OCSPA Class as comprised of those individuals “assert[ing]

an Ohio Consumer Practices Act (‘OCSPA’) claim”). This group of qualified individuals includes

named Plaintiffs Foshia, Walker, Poteat, and Shepperson, whom were never offered as putative

class representatives but remain as named Plaintiffs in this action, as the Court has received no

indication these named Plaintiffs were covered by the Court’s definitional exclusion for

passholders that used their 2020 season passes during the 2021 season or received a refund for

their 2020 passes. Again, even if these named Plaintiffs were not offered as class representatives,

they retain standing as members of the OCSPA Class with a valid OCSPA Class claim. See Devlin,

536 U.S. at 7; cf. Brunet v. City of Columbus, 1 F.3d 390, 399 (6th Cir. 1993) (“[T]he court

continues to have jurisdiction to hear the merits of the action if a controversy between any class

member and the defendant exists.” (emphasis added)).

Thus, the fact that the OCSPA Class presently has no class representatives, and perhaps

never had an adequate representative given Stewart’s disputed status as a “next friend,” is

irrelevant to the standing inquiry. What matters is that members of the OCSPA Class retaining

valid OCSPA claims filed the present Motion, the motion for class certification, and this suit itself.

That some other named Plaintiffs lost standing as a result of the Court’s definitional exclusions

does not impact that reality. See id. at 399–400 (explaining that, while “the proposed class

representative [must] have standing at the time of class certification,” their claim becoming moot

after certification does not require dismissal). Foshia, Walker, Shepperson, and Poteat, as well as

the OCSPA members Plaintiffs seek to join to this suit as substitute class representatives, have a

clear, legally cognizable interest in their OCSPA claim and their status as members of the OCSPA

Class. They thus have standing to move to substitute new class representatives for the OCSPA

Class and, as identified by Plaintiffs, the standing of Mandi Stewart to bring the present Motion is

irrelevant to whether the Court may permit substitution. See Doc. 148, at 15–17.

Equitable Claims Class Standing

As previously outlined, the Court’s certification order, due to its definitional exclusion of

named Plaintiff Mori, left the Equitable Claims Class without a representative and divested this

suit entirely of a named plaintiff retaining any equitable claim. In effect, then, to the extent this

Motion is brought on behalf of the existing named Plaintiffs in this action,3 it is brought by

individuals who are not members of the Equitable Claims Class, will not be bound by a judgment

on the Equitable Class claims, and generally have no stake in the resolution of such claims. See

Devlin, 536 U.S. at 7. This disconnect between the parties bringing the present Motion with respect

to the Equitable Claims Class and those that seek to gain from the Court granting it presents a

tricky standing issue.

Generally, an existing party to a case will lack standing to bring a motion asserting the

rights of a third party whom they do not formally act on behalf of. See, e.g., Mills v. Hausmann-

McNally, S.C., 992 F. Supp. 2d 885, 892–94 (S.D. Ind. 2014) (holding the defendant lacked

standing to bring a motion to disqualify the plaintiff’s attorney absent a conflict of interest or any

indication the defendant was harmed by the alleged attorney misconduct). Whether framed as a

matter of Article III or “prudential” standing, the injury requirement mandates a movant “must

‘assert his own legal rights and interests and cannot rest his claim to relief on the legal rights or

interests of third parties.’” Id. (quoting Warth, 422 U.S. at499); see also Lexmark Int’l, Inc. v.

Static Control Components, Inc., 572 U.S. 118, 127 n.3 (2014) (declining to resolve whether the

3. The present Motion was filed on behalf of named Plaintiffs, Brown, Foshia, Mori, Poteat,

Shepperson, Stewart, and Walker. However, including Stewart in this list is inaccurate following

her withdrawal as a named Plaintiff in this suit. See Doc. 139.

assertion of third-party interests is best understood as a matter of Article III standing, prudential

standing, or the existence of a cause of action).

Asserting the interests of third parties, however, is what the present movants seek to do, in

effect. Plaintiff Mori, despite retaining equitable claims, is not a member of the Equitable Claims

Class by operation of the definitional exclusions and, to the extent she and the other named

Plaintiffs move to substitute new representatives for such class, they so move only on behalf of

third parties with which they share no legally cognizable interest. While Plaintiffs are correct to

identify the Equitable Claims Class “acquire[d] a legal status separate from the interest asserted

by the named plaintiff” upon certification, that is not the operative question. Wilson v. Gordon,

822 F.3d 934, 942 (6th Cir. 2016) (quoting Sosna v. Iowa, 419 U.S. 393, 399 (1975)). Rather, the

question is whether Mori and the other named Plaintiffs, who remain definitionally excluded from

the Equitable Claims Class and do not share in its distinct legal interest, may move on behalf of

the Equitable Claims Class and its members to substitute representatives for the same.

Plaintiffs identify a case permitting substitution in nearly identical circumstances. In Sloan

v. General Motors, LLC, the plaintiffs brought numerous class claims sounding in consumer

protection and warranty law. 2020 WL 5517244, at *2–4 (N.D. Cal). The court granted

certification with respect to multiple classes segregated by the state law governing each claim. Id.

at *4. However, after certification of the California Class, the parties “discovered that the

individual who represented the California Class (Raul Siqueiros) was no longer an adequate

representative.” Id. at *1. Importantly, like in the present case, Siqueiros did not become

inadequate because of a change in the applicable facts on the ground. Rather, the certification order

itself defined him out of the class, as “the [c]ourt restricted the definition of Class Vehicles to only

those vehicles manufactured on or after February 10, 2011[,]” such that “the named California

Plaintiff, Raul Siqueiros (whose car was manufactured prior to that date), could no longer serve

as class representative.” Id. at *4. Siqueiros was the only named plaintiff in Sloan who was member

of the California Class. Upon operation of the court’s definitional exclusion, then, the California

Class was left without its representative, and the case was without a plaintiff who retained a

California Class claim. Id. Nevertheless, the Sloan court permitted the remaining plaintiffs to

substitute new plaintiffs to serve as representatives for the California Class, explaining “Mr.

Siqueiros did not lack standing ab initio. He lacked standing as a class representative only when

this Court certified a class using a narrowed definition of the class. . . . [T]here are readily available

and identifiable members of the class who can be substituted into this lawsuit.” Id. at *8.

Other cases similarly provide arguable support for permitting Plaintiffs to amend their

complaint in light of the inadequacy of existing representatives. First, in Lynch v. Baxley, plaintiffs

subject to involuntary civil commitment challenged the constitutionality of Alabama’s

commitment procedures. 651 F.2d 387, 387 (5th Cir. 1981). The district court certified a class of

civilly committed individuals in Alabama and granted relief. Id. at 387. Alabama later enacted new

law governing civil commitments, which the same plaintiffs again sought to challenge. However,

“the original plaintiffs no longer [had] standing” as they had either been released from confinement

or their status was unknown. Id. at 388. Nevertheless, the Fifth Circuit found the class qua class

retained live claims despite the fact that the intervening legislation narrowed the class. Id. The

Fifth Circuit held the district court thus committed error when it dismissed the case prior to

allowing the absent class members with live claims to become parties to the suit through

amendment of the complaint or intervention. Id. Next, as the Sixth Circuit itself recognized in this

case, the Eleventh Circuit’s approach in Birmingham Steel would permit “class members” to move

to “substitute new class representatives if the named plaintiffs lose their standing to serve as

representatives of the certified classes and leave one or more classes without a representative.” In

re Cedar Fair, L.P., No. 24-0305, at 2 (6th Cir. June 27, 2025).

None of these cases directly address the particular standing issue arising from the exclusion

of Mori and all other named Plaintiffs from the Equitable Claims Class. However, the Court finds

them persuasive insofar as they establish the general principle that where there are “readily

available and identifiable members of the class who can be substituted into this lawsuit,” Sloan,

2020 WL 5517244, at *8, and “[e]fficient judicial administration weighs in favor of allowing an

opportunity for a new and proper class representative to enter the case and litigate the [class]

interests,” Lynch, 651 F.2d at 387 n.1, permitting substitution of class representatives is proper.

Thus, despite the identified mismatch between those individuals that brought the present Motion

and those whose interests it promotes, the Court finds it proper to grant the relief sought. That is,

the Court will permit members of the Equitable Claims Class, including Jessica Hunt, Tracy Miller,

Chante Hammond, and Richard Davis to join this suit as Plaintiffs. See Doc. 140-1, at 3–4, 19.

To rectify the mismatch between the moving parties and the beneficiaries of their motion,

the Court construes Plaintiffs’ Motion as one seeking intervention on behalf of the previously

unnamed members of the Equitable Claims Class. An intervention-based approach is common in

circumstances where a named plaintiff ceases to be an adequate representative of unnamed class

members’ interests. See, e.g., Eckert v. Equitable Life Assurance Soc’y, 227 F.R.D. 60, 64

(E.D.N.Y. 2005) (explaining “Rule 24(a) allows intervention as of right ‘whenever it appears that

the named representative canno[t] adequately represent the interests of the class.’”) (quoting

Diduck v. Kaszycki & Sons Contractors, Inc., 147 F.R.D. 60, 62 (S.D.N.Y. 1993)). Such an

approach directly follows from the Supreme Court’s holding in Devlin that unnamed class

members have standing to challenge the decisions of the district court with respect to their class.

Devlin, 536 U.S. at 6–7. Thus, where, as here, no named party is able to adequately represent the

interests of the Equitable Claims Class (particularly because no named Plaintiff is a member of

that class), absent, previously unnamed members of the class may intervene. Grainger v. Ottawa

Cnty., 90 F.4th 507, 514 (6th Cir. 2024) (“To be sure, courts allow intervention by absent members

of pre-certification or certified class actions when the intervenors have shown that the named

plaintiff does not adequately represent their interests.”); Standard Fire Ins. Co. v. Knowles, 568

U.S. 588, 594 (2013) (“[M]embers of a class have a right to intervene if their interests are not

adequately represented by existing parties.”) (quoting 5 A. Conte, Newberg on Class Actions §

16:7:30 (4th ed. 2002)).

Construing Plaintiffs’ Motion as seeking intervention effectively matches the legal interest

of the Equitable Claims Class members (efficient resolution of their claims as a class) with the

parties it is construed as brought on behalf of (the presently unnamed Equitable Claims Class

members). And so construing Plaintiffs’ Motion does not markedly depart from established district

court practice. See, e.g., Graham v. Thornburgh, 207 F. Supp. 2d 1280, 1282–84 (D. Kan. 2002)

(three-judge panel) (per curiam) (construing the Attorney General’s “motion to amend the

complaint as a motion to intervene by” individual voter-plaintiffs where the Attorney General

arguably lacked standing to assert “the rights of particular citizens”); Jones v. Dettelbach, 2024

WL 4648057, at *2 (E.D. Mich) (“This motion was labeled as a motion to amend the complaint,

but it is more properly construed as a motion to intervene under Fed. R. Civ. P. 24, because [a non-

party] is asking to be added to the case.”).

Thus, the Court will permit previously unnamed members of the Equitable Claims Class

to join this action as named Plaintiffs by intervention, the procedural particulars of which are

discussed infra.

Procedural Devices

Having determined Plaintiffs retain standing to bring the present Motion and are entitled

as a general matter to the relief they seek, the Court turns to the analysis of whether the Federal

Rules invoked permit granting Plaintiffs’ Motion. The Court finds they do.

First, Plaintiffs invoke Federal Civil Rule 15’s “liberal” standard for permitting amendment

of the complaint whenever justice may so require. (Doc. 140, at 11–12); Fed. R. Civ. P. 15(a)(2).

Defendants do not directly contest Plaintiffs’ entitlement to amend their Complaint pursuant to the

Rule 15 standard, choosing instead to center their arguments on whether Plaintiffs retain standing

and whether Plaintiffs’ claims “relate back” for statute of limitations purposes. See, e.g., Doc. 146,

at 27–33. In any event, however, the Court finds Plaintiffs meet Rule 15’s standard for permitting

amendment.

“The Court may deny leave to amend ‘when it would result in undue delay, prejudice to

the opposing party, or repeated failure to cure deficiencies in the complaint.’” Kline v. Mortg. Elec.

Registration Sys., Inc., 704 F. App’x 451, 468 (6th Cir. 2017) (quoting Phelps v. McClellan, 30

F.3d 658, 662 (6th Cir. 1994)). Generally, the non-moving party must demonstrate, and this Court

“must find[,] ‘at least some significant showing of prejudice to the opponent.’” Ziegler v.

Aukerman, 512 F.3d 777, 786 (6th Cir. 2008) (quoting Moore v. City of Paducah, 790 F.2d 557,

562 (6th Cir. 1986)). Though, the longer the movant delays in seeking leave to amend, “the less

will be required of the nonmoving party in terms of showing prejudice.” Phelps, 30 F.3d at 662

(quoting Evans v. Syracuse City Sch. Dist., 704 F.2d 44, 47 (2d Cir. 1983)). Here, Plaintiffs did

not delay in bringing this Motion, as they raised the need to substitute new class representatives at

a phone conference less than a month after the Court issued its certification order and complied

with the briefing schedule set during such conference. This fact, combined with Defendants’

failure to offer substantive argument on prejudice, necessitates granting Plaintiffs’ Motion to

Amend pursuant to Federal Civil Rule 15.

Next, the Court finds the members of the Equitable Claims Class who seek to join this suit

as class representatives are entitled to permissive intervention under Federal Civil Rule 24. See

Fed. R. Civ. P. 24(b)(1) (“On timely motion, the court may permit anyone to intervene who (B)

has a claim or defense that shares with the main action a common question of law or fact.”). It is

undisputed the members of the Equitable Claims Class who seek to join this suit meet the “common

question” requirement of Federal Civi Rule 24(b)(1)(B), as their unjust enrichment and money had

and received claims are functionally identical to those previously asserted by Plaintiff Mori.

Compare, e.g., Doc. 140-1, at 20 (describing claims retained by the Equitable Claims Class), with

Doc. 18, at 24–25 (same). Further, intervention is timely in this instance because the parties

seeking intervention, as discussed above, did not delay in bringing this motion as the unique

circumstances necessitating intervention did not arise until after the Court issued its certification

order. See generally Bay Mills Indian Cmty. v. Snyder, 720 F. App’x 754, 758–59 (6th Cir. 2018)

(outlining and applying the factors relevant to Federal Civil Rule 24’s timeliness analysis).

Thus, the Court finds it proper under Federal Civil Rules to permit existing Plaintiffs to

amend their Complaint and for the previously unnamed members of the Equitable Claims Class to

intervene and join that Complaint.

Remaining Arguments

Defendants’ remaining arguments in opposition do not demand a different result.

Statutes of Limitations

First, Defendants argue Plaintiffs’ proposed Third Amended Complaint adding new parties

as class representatives and removing dismissed claims would not “relate back” to the underlying

complaint pursuant to Federal Civil Rule 15(c). (Doc. 146, at 27–29, 32–34). On Defendants’

account, Plaintiffs’ OCSPA claims, which carry a two-year statute of limitations, accrued no later

than the summer of 2020 when the season for which Plaintiffs purchased the passes did not occur

in part or in its entirety. Id. at 32–33. Similarly, Defendants maintain a four-year statute of

limitations applies to Plaintiffs’ unjust enrichment and money had and received claims, which

accrued at the same time as the OCSPA claims. Id. at 33–34. Thus, because Plaintiffs did not file

the proposed amendment until May 2025, Defendants argue amendment to add additional claims

or new parties with OCSPA or equitable claims would be barred unless such amendment “relates

back” to the original Complaint pursuant to Rule 15(c). Id.; see Zakora v. Chrisman, 44 F.4th 452,

480–81 (6th Cir. 2022) (examining “whether the proposed amendment ‘relates back’ under Rule

15, which is necessary because the applicable statute of limitations for these claims has expired”).

Whether a proposed amendment “relates back” to the original Complaint, however, is

irrelevant if the statute of limitations has not expired. That is the case here, as the applicable

statutes of limitations to Plaintiffs’ claims (as well as those retained by the intervening parties)

have been tolled while this case proceeded. “[T]he timely filing of a class action tolls the applicable

statutes of limitations for all persons within the scope of the class alleged in the complaint.” In re

Allstate Corp. Sec. Litig., 966 F.3d 595, 615 (7th Cir. 2020) (citing American Pipe & Const. Co.

v. Utah, 414 U.S. 538, 552–53 (1974)). This doctrine, referred to as American Pipe tolling, tolls

the application of the statute of limitations for all members of a class, putative or certified, until

the action ceases to be prosecuted on behalf of a class. See, e.g., Sawyer v. Atlas Heating & Sheet

Metal Works, Inc., 642 F.3d 560, 563 (6th Cir. 2011) (“The rationale of American Pipe does not

permit a distinction among situations in which the putative class representative gives up before, or

after, the judge decides whether the case may proceed on behalf of a class. Tolling lasts from the

day a class claim is asserted until the day the suit is conclusively not a class action—which may

be because the judge rules adversely to the plaintiff, or because the plaintiff reads the handwriting

on the wall and decides not to throw good money after bad.”).

Thus, because existing Plaintiffs and the intervening parties continue to proceed as a

certified class with respect to their OCSPA and equitable claims, the statute of limitations remains

tolled, amendment to add new parties with such claims is not time barred, and the proposed

amendment need not “relate back” under Federal Civil Rule 15.

Clear Legal Error

Defendants further argue the Court’s decision to certify classes and subclasses with

representatives covered by the Court’s definitional exclusions, as well as certifying certain

subclasses that lacked a representative entirely, necessitates decertification. See Doc. 146, at 25–

27. Where a party argues for decertification based on a mistaken application of the Federal Civil

Rules governing class certification, as opposed to a change in the factual circumstances

surrounding the case, such argument is evaluated as a request for reconsideration of the original

certification decision.4 See Owner-Operator Ind. Drivers Ass’n v. Arctic Exp., Inc., 288 F. Supp.

2d 895, 899–900 (S.D. Ohio 2003) (treating a motion for decertification as seeking reconsideration

where the defendant argued the district court “misinterpreted” applicable law such that “class

certification was never proper”); cf. Gen. Tel. Co. v. Falcon, 457 U.S. 147, 160 (1982) (“Even after

a certification order is entered, the judge remains free to modify it in light of subsequent

developments in the litigation.”) (emphasis added).

4. Defendants did not bring an independent motion for decertification, choosing instead to present

these arguments in opposition to Plaintiffs’ Motion. See Doc. 146, at 25–27. Further, Defendants

first presented this argument nearly a full calendar year after the Court issued its Order granting

Plaintiffs’ Motion for Certification.

Such a request for reconsideration may only be granted if the movant demonstrates: “(1)

there has been an intervening change in controlling law; (2) new evidence has become available;

or (3) there is need to prevent manifest injustice or correct a clear error of law.” 3 W. Rubenstein,

Newberg on Class Actions § 7:35 (6th ed. 2022) (quoting Panetta v. Sap Am., Inc., 2006 WL

2711747, at *2 (E.D. Pa.), aff’d, 294 F. App’x 715 (3rd Cir. 2008)); see also GenCorp, Inc. v. Am.

Int’l Underwriters, 178 F.3d 804, 834 (6th Cir. 1999). These three avenues serve as limited

exceptions to the “law of the case” doctrine, which operates with particular strength in the class

action context. Cf. Torrent v. Yakult U.S.A., Inc., 2016 WL 6039188, at *1 (S.D. Cal.) (“When

confronting renewed motions for class certification previously denied, ‘courts uniformly apply the

stringent law of the case standard to motions to reconsider initial class certification decisions.’”)

(quoting Anderson Living Tr. v. WPX Energy Prod., LLC, 308 F.R.D. 410, 438 (D.N.M. 2015)).

Here, Defendants cannot establish clear legal error. As discussed in Sloan, Lynch,

Birmingham Steel, and even the Sixth Circuit’s denial of Defendants’ 26(f) appeal in this very case,

certifying a class with a representative who is later determined to be outside the class definition,

to possess a mooted claim, or to lack standing does not constitute clear legal error. Further, the

Court’s decision to sua sponte craft subclasses for the OCSPA Class and Equitable Claims Class

without conducting an analysis of whether those subclasses retained adequate representation under

Rule 23(a) is not clear legal error. The Court’s certification order cited Rule 23(c) for the

proposition that it retained “broad discretion to divide a class into sub-classes.” (Doc. 117, at 2).

However, under Rule 23(c), subclasses are “each treated as a class,” meaning they must satisfy the

Rule 23(a) prerequisites, including that they be adequately represented by a named class

representative. See Fed. R. Civ. P. 23(c)(5). Thus, if the Court’s certification order did, in fact,

create subclasses pursuant to Rule 23(c), Defendants’ clear legal error argument might have legs.

However, the Court’s certification decision, despite ostensibly falling within the scope of

Rule 23(c), is best understood as engaging in “management” subclassing pursuant to Rule 23(d).

Subclassing under Rule 23(c) commonly occurs where some members of a broader class retain

conflicting interests. “If two parts of a single class have significantly conflicting interests and

cannot be adequately represented by a single representative or counsel, the class may be split into

multiple subclasses each with its own class representative and counsel, and the litigation may

proceed accordingly.” 3 W. Rubenstein, Newberg on Class Actions § 7:31 (6th ed. 2022)

(emphasis added) (citing Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 626 (1997)). Subclassing

under Rule 23(d), however, is done not to avoid conflict but “solely to expedite resolution of the

case by segregating [a distinct legal] issue [that is] common to some members of the existing

[class].” 3 W. Rubenstein, Newberg on Class Actions § 7:32 (6th ed. 2022) (alterations in original)

(quoting Casale v. Kelly, 247 F.R.D. 396, 408 (S.D.N.Y. 2009)); see also Fed. R. Civ. P. 23(d)

(providing a district court overseeing a class suit “may issue orders that determine the course of

proceedings or prescribe measures to prevent undue repetition or complication in presenting

evidence or argument . . . [or] deal with similar procedural matters”). Where the Court creates such

a “management” subclass pursuant to Rule 24(d), the subclass need not be treated “as a class” and

therefore need not satisfy the typical certification requirements of Rule 23(a). Am. Timber &

Trading Co. v. First Nat’l Bank, 690 F.2d 781, 787 n.5 (9th Cir. 1982) (“Because the

subclassification was appropriate under Rule 23(d), it is unnecessary to evaluate it under Rule

23(c)(4) for commonality, numerosity, typicality, and adequacy of representation.”).

Here, the Court’s certification order did not identify any conflict of interest between

members of the various subclasses within either the OCSPA or Equitable Claims Classes. Rather,

the subclassing is purely managerial, as it is focused exclusively on the different damages

calculations that may apply across class members depending on which tier of season pass they

purchased. See Doc. 117, at 5–6 (describing the proper damages formula for “single-park”

passholders compared to the damages “model for Platinum passholders”). Thus, the various

subclasses delineated in the Court’s certification order are best understood as “management”

subclasses, negating application of Rule 23(a)’s representation prerequisites. Certifying such

subclasses without representatives does not constitute clear legal error.

Equitable Claims Class Definition

Finally, Plaintiffs move the Court to “modify the Equitable Claims Class definition to

include passholders who purchased their passes in-person at the relevant parks.” (Doc. 140, at 13).

While this Court may exercise its discretion to modify class definitions “as appropriate in response

to developments in the litigation,” Eaton v. Ascent Resources-Utica, LLC, 2024 WL 1458457, at

*5 (S.D. Ohio) (emphasis added), there are no such qualifying changes in this litigation. No facts

discovered or circumstances changed can justify this expansion of the Equitable Claims Class, nor

do Plaintiffs attempt to identify any. Nor is this a circumstance in which, absent modification, the

class is likely to fail a Rule 23(a) or (b)(3) prerequisite, in which case a more relaxed, discretionary

standard might apply to Plaintiffs’ request. See, e.g., In re Whirpool Corp. Front-Loading Washer

Prods. Liab. Litig., 302 F.R.D. 448, 459 (N.D. Ohio 2014) (explaining “if possible, modification

of the class definition, or use of subclasses, is generally preferred” when compared to

decertification for failure to meet Rule 23(a) and (b)(3) certification requirements); Swetlic

Chiropractic & Rehab. Ctr., Inc. v. Foot Levelers, Inc., 235 F. Supp. 3d 882, 891 (S.D. Ohio 2017)

(granting leave to amend the complaint to include a narrower class definition where the prior

definition would pose a bar to certification).

Rather, much like Defendants’ request to decertify the OCSPA and Equitable Claims

Classes, Plaintiffs’ request to expand the latter functions as a motion for reconsideration of the

initial certification decision. However, Plaintiffs do not identify any change in the applicable law,

new evidence, or clear legal error justifying reconsideration. See Panetta, 2006 WL 2711747, at

*2. Perhaps Plaintiffs are correct to assert there is no proper reason “to exclude in-person

purchasers from the Equitable Claims Class.” (Doc. 148, at 22). Even if so, however, they fail to

identify a qualifying justification for reconsidering the initial certification decision, including the

crafting of a class definition.

Thus, the Court denies Plaintiffs’ Motion insofar as it seeks a reconsideration of the Court’s

prior definition of the scope of the Equitable Claims Class.

Summary

The Court finds Plaintiffs entitled to the relief they seek with respect to the substitution of

class representatives and the addition of new parties to this action. To that effect, their Motion is

granted in part, and Plaintiffs are hereby directed to file their proposed amended complaint (Doc.

140-1), as their Third Amended Complaint. To assuage any jurisdictional concerns, the Court

construes Plaintiffs’ Motion as seeking intervention on behalf of the previously unnamed members

of the Equitable Claims Class, including Jessica Hunt, Tracy Miller, Chante Hammond, and

Richard Davis. See Doc. 140-1, at 3–4, 19. These parties are granted leave to intervene and join in

Plaintiffs’ Third Amended Complaint once filed.

Finally, Defendants had the opportunity to conduct depositions with respect to the new

named Plaintiffs and do not contest the qualifications of the substituted representatives for the

OCSPA and Equitable Claims Classes under Rule 23(a). Considering the absence of a real dispute,

combined with the shared nature of the claims retained by the new putative representatives and

those excluded by the court’s class definitions, the Court finds it proper to certify Jessica Hunt,

Tracy Miller, Chante Hammond, Richard Davis, Eric Contreras, and Isaac Conard as class

representatives for the OCSPA Class. Because the subclasses crafted in the Court’s certification

order are mere management subclasses, the Court need not certify representatives for each

subclass. Similarly, Jessica Hunt, Tracy Miller, Chante Hammond, and Richard Davis are hereby

certified as class representatives for the Equitable Claims Class. Again, no representatives need be

certified for the management subclasses contained therein. The facts giving rise to these

individuals’ claims are virtually identical to those of the named Plaintiffs previously put forth as

putative reps, but for their use of their 2020 passes in 2021. Thus, the Court’s prior determination

with respect to commonality, typicality, numerosity, adequacy of representation, predominance,

and superiority governs as “the law of the case.” See Daunt v. Benson, 999 F.3d 299, 308 (6th Cir.

2021).

As set forth herein, the new named Plaintiffs will be substituted as class representatives for

the OCSPA and Equitable Claims Classes, and the Court’s certification order (Doc. 117) is hereby

modified to reflect such changes.

CONCLUSION

For the foregoing reasons, good cause appearing, it is

ORDERED that Plaintiffs’ Motion to Add Class Representatives, Amend the Complaint,

and Modify the Court’s Class Certification Order (Doc. 140) be, and the same hereby is,

GRANTED IN PART AND DENIED IN PART as set forth herein.

s/ James R. Knepp II

UNITED STATES DISTRICT JUDGE

Dated: March 27, 2026