UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

PRIMUS GREGORY SLOAN, a/k/a Greg; 

ELLIOT PEACE; EMERSON HUNTER;

GLADYS NORMAN; MICHAEL NORMAN;

DEREK MOORE; AUSTIN MALLOY;

DON JONES, and others similarly

situated,

Plaintiffs-Appellants,

and  No. 01-1410

HERBERT H. NESBIT, JR.; WILLIAM L.

FLEMING, JR.,

Plaintiffs,

v.

WINN-DIXIE RALEIGH, INCORPORATED,

Defendant-Appellee. 

Appeal from the United States District Court

for the Eastern District of North Carolina, at Raleigh.

Malcolm J. Howard, District Judge.

(CA-98-502-5-H-3)

Argued: December 5, 2001

Decided: January 22, 2002

Before WILKINSON, Chief Judge, and WILKINS and

LUTTIG, Circuit Judges.

Affirmed by unpublished per curiam opinion. 
COUNSEL

ARGUED: Richard Woodson Rutherford, RUTHERFORD & ASSOCIATES, Raleigh, North Carolina, for Appellants. R. Lawrence Ashe,

Jr., PAUL, HASTINGS, JANOFSKY & WALKER, L.L.P., Atlanta,

Georgia, for Appellee. ON BRIEF: T. Robert Reid, PAUL, HASTINGS, JANOFSKY & WALKER, L.L.P., Atlanta, Georgia, for

Appellee. 

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

Plaintiffs, Nesbit and several other named individuals, on behalf of

themselves and others similarly situated, filed a complaint against

Winn-Dixie Raleigh, Inc., in federal district court in North Carolina

in 1998, alleging race discrimination in promotions for supervisory

positions in Winn-Dixie stores. Winn-Dixie moved to dismiss based

on res judicata, claiming that plaintiffs, with the exception of Nesbit,

failed to opt out of a race and gender class action settlement in Dorman v. Winn-Dixie Stores, 99-72-CIV-J-21B (M.D. Fla.) ("Dorman"),

which concluded a lawsuit filed in 1996. The motion was granted, and

plaintiffs filed a motion to reconsider. Before ruling on that motion,

the district court ordered plaintiffs to file a motion for class certification, which the district court thereafter denied as untimely. Subsequently, the district court denied plaintiffs’ motion for

reconsideration. Plaintiffs appeal the denial of both motions. 

I.

Appellants claim that the district court erred in concluding that they

failed to opt out of the Dorman settlement and that they failed to

plead any claims not precluded by the Dorman judgment. 

2 SLOAN v. WINN-DIXIE RALEIGH
According to the district court’s order in Dorman: 

Potential class members who wish to exclude themselves

from membership in the Settlement Class for purposes of

participation in the monetary portion of the settlement must

do so in writing by filing with the Clerk of Court a signed

and dated handwritten "Opt-Out" Statement. 

J.A. 279 (emphasis added). The Opt-Out Statement was to contain

particular language reciting that an individual is a settlement class

member; that he wishes to opt out; and that he understands the consequences for his rights to relief if he chooses to opt out. Id. Appellants

concede that they did not comply with these requirements, but now

offer three theories as to why their claims are not barred by the Dorman judgment. Under the first two theories, they seek to establish that

they did in fact opt out, and under the third, they argue that they pled

claims not precluded by the Dorman settlement. 

First, they contend that they actually opted out of the Dorman settlement because Nesbit, the "chairman of the group," tried to opt out

on behalf of himself and the group. However, class representatives

cannot opt out on behalf of other putative class members. See, e.g.,

Hanlon v. Chrysler Corp., 150 F.3d 1011, 1024 (9th Cir. 1998); In

re Lease Oil Antitrust Litig., 186 F.R.D. 403, 439 (S.D. Tex. 1999).

Because none of the individuals, except Nesbit himself, signed the

handwritten opt-out statement, as required by the district court in

Dorman, their claims are barred by res judicata. 

Appellants’ second theory, that the maintenance of their suit in

North Carolina was adequate notice of their desire to opt out of the

Dorman class action in Florida, also lacks any legal support. See, e.g.,

Holmes v. CSX Transport, 1999 WL 447087, *4 (E.D. La. 1999).

Appellants’ reliance on McCubbrey v. Boise Cascade Home & Land

Corp., 71 F.R.D. 62 (N.D. Cal. 1976), is unavailing. Although the

court there did say that filing of a separate lawsuit during the exclusion period was a sufficient opt-out notice, it said nothing about the

sufficiency of maintenance of a separate lawsuit, which was initiated

prior to the receipt of the proposed settlement, as an opt-out notice.

Finally, appellants attempt to avoid the preclusive effect of the

Dorman judgment by arguing that they pled claims that were not

barred by that judgment. The Dorman judgment did not bar alleged

SLOAN v. WINN-DIXIE RALEIGH 3
racial harassment or hiring claims, but did bar alleged discrimination

for discharge or general retaliation claims. J.A. 147-48.1 However,

appellants failed to plead properly any claims that were not covered

by the Dorman judgment. J.A. 22-23. The district court did not err in

rejecting appellants’ attempt, "after the response time to the dismissal

motion had expired and after the motion was submitted to the court,"

in a submission "addressing another motion," to allege claims (such

as racial harassment, retaliation and failure to hire) not precluded by

the Dorman settlement. 

Because appellants did not opt out and because their claims are

barred by res judicata, the district court did not err in dismissing the

claims in their entirety.2

CONCLUSION

For the reasons stated herein, the judgment of the district court is

affirmed. 

AFFIRMED

1The following claims were covered by the settlement: 

unlawful discrimination against associates on the basis of their

sex, gender and/or race, including, but not limited to, retaliation

against an associate because he or she has opposed practices he

or she believes in good faith to constitute unlawful sex, gender

and/or race discrimination or has participated in processes

designed to obtain relief for alleged unlawful sex, gender or race

discrimination. 

J.A. 129 (emphasis added). The following claims were not released: 

(a) alleged sexual or racial harassment; (b) retaliation for asserting claims of unlawful sexual or racial harassment, and/or (c)

alleged unlawful gender or race discrimination in not being hired

by Stores or one of the retail operating companies. 

J.A. 148 (emphasis added); see also J.A. 129 (listing these three types of

claims and "retaliation for participation in a process designed to obtain

relief for alleged sexual or racial harassment"). 

2Our disposition renders unnecessary a discussion of appellants’ challenge to the district court’s denial of class certification. 

4 SLOAN v. WINN-DIXIE RALEIGH