and  HERBERT H. NESBIT, JR.; WILLIAM L. FLEMING, JR. v. Winn-Dixie Raleigh, Incorporated

UNPUBLISHED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,
No. 01-1410 and 
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Affirmed by unpublished per curiam opinion.

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COUNSEL
ARGUED: Richard Woodson Rutherford, RUTHERFORD & ASSO-
CIATES, 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, HAS-
TINGS, 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Unpublished opinions are not binding precedent in this circuit.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 Dor-
man 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 certifica-
tion, which the district court thereafter denied as untimely. Subse-
quently, 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.
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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 conse-
quences 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 Dor-
man 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 set-
tlement 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 exclu-
sion 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
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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 assert-
ing 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’ chal-
lenge to the district court’s denial of class certification.
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