Case 1:15-cv-00701-UNA Document 1 Filed 08/11/15 Page 1 of 8 PageID #: 1

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE

FELICE MARTIN, on behalf of herself and all

others similarly situated,
CASE NO.
Plaintiff,
v.
ZIRTUAL INC.,

Defendant.

CLASS ACTION COMPLAINT FOR

VIOLATION OF WARN ACT, 29 U.S.C. 2101, ET SEQ.
Plaintiff Felice Martin (Plaintiff) alleges on behalf of herself and a class of similarly
situated former employees of Zirtual Inc. (Zirtual or the Defendant), by and through her
counsel as follows:
NATURE OF THE ACTION
1.

Plaintiff Felice Martin was an employee of Zirtual until her termination on or

about August 10, 2015.

2.

While Plaintiff did not receive any written notice of her termination, on August

10, 2015, other employees of Zirtual received e-mails sent to their personal e-mail accounts
stating that they were terminated effective August 7, 2015.

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3.

Defendant terminated without notice the employment of approximately 400 or so

employees who either worked remotely and received assignments from and reported to its
facilities, or worked at or reported to its headquarters located at 150 N. Las Vegas Boulevard,
#2304, Las Vegas, Nevada 89101 (Las Vegas Office) and/or at its office at 370 Brannan Street
San Francisco, California 94107 (San Francisco Office).
4.

The Plaintiff brings this action on behalf of herself, and other similarly situated

former employees who worked at, reported to, or received assignments from Defendants
Facilities and were terminated without cause, as part of, or as the foreseeable result of, plant
closings or mass layoffs ordered by Defendant and who were not provided 60 days advance
written notice of their terminations by Defendant, as required by the Worker Adjustment and
Retraining Notification Act (WARN Act), 29 U.S.C. 2101 et seq.
5.

Plaintiff and all similarly situated employees seek to recover 60 days wages and

benefits, pursuant to the WARN Act, from Defendant.

JURISDICTION AND VENUE
6.

This Court has jurisdiction over this matter pursuant to 28 U.S.C. 1331 and 29

U.S.C. 2104(a)(5).
7.

This court has personal jurisdiction over Zirtual because it is incorporated in this

judicial district, and therefore, resides here.

8.

Venue is proper in this District pursuant to 29 U.S.C. 2104(a)(5)and 28 U.S.C.

1391 because this is the judicial district in which Zirtual is incorporated.

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THE PARTIES
Plaintiff
9.

Plaintiff Felice Martin was an employee of Zirtual, and worked as a Zirtual

Assistant from her home in Sherman Oaks, California until her termination on or about August
7, 2015. Upon information and belief, Ms. Martins assignments ultimately originated from and
she ultimately reported to Zirtuals San Francisco Office or its Las Vegas Office.
Defendant
10.

Defendant Zirtual, Inc. is a Delaware corporation with its principal place of

business located at 150 N. Las Vegas Boulevard, #2304, Las Vegas, NV 89101
11.

Upon information and belief, at all relevant times, Defendant maintained and

operated its business from its Las Vegas Office facility and maintained and operated an
additional facility, its San Francisco Office. (The Las Vegas Office and San Francisco Office are
referred to as the Facilities.)
12.

Upon information and belief, Defendant conducted or transacted business in this

district.
13.

On or about August 7, 2015, Defendant terminated without notice the

employment of approximately 400 employees who worked at, reported to, or received
assignments from its Facilities.
WARN CLASS ALLEGATIONS, 29 U.S.C. 2104
14.

Plaintiff brings the First Claim for Relief for violation of 29 U.S.C. 2101 et seq.,

on behalf of herself and on behalf of all other similarly situated former employees, pursuant to
29 U.S.C. 2104(a)(5) and Fed. R. Civ P. 23(a), who worked at, reported to, or received
assignments from one of Defendants Facilities and were terminated without cause on or about

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August 7, 2015, and within 30 days of that date, or were terminated without cause as the
reasonably foreseeable consequence of the mass layoffs and/or plant closings ordered by
Defendant on or about August 7, 2015, and who are affected employees, within the meaning of
29 U.S.C. 2101(a)(5) (the WARN Class).
15.

The persons in the WARN Class identified above (WARN Class Members) are

so numerous that joinder of all members is impracticable. Although the precise number of such
persons is unknown, the facts on which the calculation of that number can be based are presently
within the sole control of Defendant.
16.

Upon information and belief, Defendant employed approximately 400 employees

nationwide, including more than fifty (50) full-time employees who worked at, reported to, or
received assignments from one of the Facilities who it terminated on or about August 7, 2015.
17.

On information and belief, the identity of the members of the class and the recent

residence address of each of the WARN Class Members is contained in the books and records of
Defendant.
18.

On information and belief, the rate of pay and benefits that were being paid by

Defendant to each WARN Class Member at the time of his/her termination is contained in the
books and records of the Defendant.
19.

Common questions of law and fact exist as to members of the WARN Class,

including, but not limited to, the following:

(a)

whether the members of the WARN Class were employees of the

Defendant who worked at, reported to, or received assignments from Defendants Facilities;

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(b)

whether Defendant unlawfully terminated the employment of the members

of the WARN Class without cause on their part and without giving them 60 days advance written
notice in violation of the WARN Act; and
(c)

whether Defendant unlawfully failed to pay the WARN Class members 60

days wages and benefits as required by the WARN Act.

20.

The Plaintiffs claims are typical of those of the WARN Class. The Plaintiff, like

other WARN Class members, worked at, reported to, or received assignments from one of
Defendants Facilities and was terminated without cause on or about August 7, 2015, due to the
mass layoffs and/or plant closings ordered by Defendant.
21.

The Plaintiff will fairly and adequately protect the interests of the WARN Class.

The Plaintiff has retained counsel competent and experienced in complex class actions, including
the WARN Act and employment litigation.
22.

On or about August 7, 2015, Defendant terminated the Plaintiffs employment as

part of a mass layoff or a plant closing as defined by 29 U.S.C. 2101(a)(2), (3), for which she
was entitled to receive 60 days advance written notice under the WARN Act.
23.

Class certification of these claims is appropriate under Fed. R. Civ. P. 23(b)(3)

because questions of law and fact common to the WARN Class predominate over any questions
affecting only individual members of the WARN Class, and because a class action is superior to
other available methods for the fair and efficient adjudication of this litigation particularly
because this is a WARN Act litigation, where individual plaintiffs may lack the financial
resources to vigorously prosecute a lawsuit in federal court against a corporate defendant, and
damages suffered by individual WARN Class members are small compared to the expense and
burden of individual prosecution of this litigation.

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24.

Concentrating all the potential litigation concerning the WARN Act rights of the

members of the Class in this Court will obviate the need for unduly duplicative litigation that
might result in inconsistent judgments, will conserve the judicial resources and the resources of
the parties, and is the most efficient means of resolving the WARN Act rights of all the members
of the Class.
25.

The Plaintiff intends to send notice to all members of the WARN Class to the

extent required by Rule 23.

CLAIMS FOR RELIEF
Violation of the WARN Act, 29 U.S.C. 2104
26.

Plaintiff realleges and incorporates by reference all allegations in all preceding

paragraphs.
27.

At all relevant times, Defendant employed more than 100 employees who in the

aggregate worked at least 4,000 hours per week, exclusive of hours of overtime, within the
United States.
28.

At all relevant times, Defendant was an employer, as that term is defined in

29 U.S.C. 2101 (a)(1) and 20 C.F.R. 639(a), and continued to operate as a business until it
decided to order mass layoffs or plant closings at the Facilities.
29.

On or about August 7, 2015, Defendant ordered mass layoffs and/or plant closings

at the Facilities, as those terms are defined by 29 U.S.C. 2101(a)(2).

30.

The mass layoffs or plant closings at the Facilities resulted in employment

losses, as that term is defined by 29 U.S.C. 2101(a)(2) for at least fifty of Defendants
employees as well as thirty-three percent (33%) of Defendants workforce at the Facilities,
excluding part-time employees, as that term is defined by 29 U.S.C. 2101(a)(8).

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31.

The Plaintiff and the Class Members were terminated by Defendant without cause

on their part, as part of or as the reasonably foreseeable consequence of the mass layoffs or plant
closings ordered by Defendant at the Facilities.
32.

The Plaintiff and the Class Members are affected employees of Defendant,

within the meaning of 29 U.S.C. 2101(a)(5).

33.

Defendant was required by the WARN Act to give the Plaintiff and the Class

Members at least 60 days advance written notice of their terminations.

34.

Defendant failed to give the Plaintiff and the Class members written notice that

complied with the requirements of the WARN Act.

35.

The Plaintiff and each of the Class Members, are aggrieved employees of the

Defendant as that term is defined in 29 U.S.C. 2104(a)(7).

36.

Defendant failed to pay the Plaintiff and each of the Class Members their

respective wages, salary, commissions, bonuses, accrued holiday pay and accrued vacation for
60 days following their respective terminations, and failed to make the pension and 401(k)
contributions and provide employee benefits under COBRA for 60 days from and after the dates
of their respective terminations.
37.

The relief sought in this proceeding is equitable in nature.

PRAYER FOR RELIEF

WHEREFORE, the Plaintiff, individually and on behalf of all other similarly situated
persons, pray for the following relief as against Defendant:
A.

Certification of this action as a class action;

B.

Designation of the Plaintiff as the Class Representative;

C.

Appointment of the undersigned attorneys as Class Counsel;

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D.

A judgment in favor of the Plaintiff and the other similarly situated former
employees equal to the sum of: their unpaid wages, salary, commissions, bonuses,
accrued holiday pay, accrued vacation pay, pension and 401(k) contributions and
other COBRA benefits, for 60 days, that would have been covered and paid under
the then-applicable employee benefit plans had that coverage continued for that
period, all determined in accordance with the WARN Act, 29 U.S.C.
2104(a)(1)(A); and

E.

Such other and further relief as this Court may deem just and proper.

DATED: August 11, 2015

Respectfully submitted,
By: /s/ Christopher D. Loizides
Christopher D. Loizides (No. 3968)
LOIZIDES, P.A.
1225 King Street, Suite 800
Wilmington, DE 19801
Telephone: (302) 654-0248
Facsimile:
(302) 364-0728
E-mail: loizides@loizides.com
Jack A. Raisner, Esq.
Ren S. Roupinian, Esq.
OUTTEN & GOLDEN LLP
3 Park Avenue, 29th Floor
New York, NY 10016
Telephone: (212) 245-1000
Attorneys for Plaintiff and the putative class

JS 44 (Rev. 12/12)

Case 1:15-cv-00701-UNA Document 1-1 Filed 08/11/15 Page 1 of 2 PageID #: 9

CIVIL COVER SHEET

The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as
provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the
purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)

I. (a) PLAINTIFFS

DEFENDANTS

FELICE MARTIN, on behalf of herself and all others similarly situated

(b) County of Residence of First Listed Plaintiff

ZIRTUAL INC.
County of Residence of First Listed Defendant

Los Angeles, CA

(EXCEPT IN U.S. PLAINTIFF CASES)

NOTE:

Clark County, NV

(IN U.S. PLAINTIFF CASES ONLY)

IN LAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACT OF LAND INVOLVED.

Attorneys (If Known)

(c) Attorneys (Firm Name, Address, and Telephone Number)

Christopher D. Loizides (No. 3968), LOIZIDES, P.A., 1225 King Street,
Suite 800, Wilmington, Delaware 19801, Telephone: (302) 654-0248,
E-mail: loizides@loizides.com

II. BASIS OF JURISDICTION (Place an X in One Box Only)

1

U.S. Government
Plaintiff

Federal Question
(U.S. Government Not a Party)

U.S. Government
Defendant

Diversity
(Indicate Citizenship of Parties in Item III)

III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an X in One Box for Plaintiff

(For Diversity Cases Only)
PTF
Citizen of This State
1

DEF
1

and One Box for Defendant)

PTF
DEF
Incorporated or Principal Place
4
4
of Business In This State

Citizen of Another State

Incorporated and Principal Place

of Business In Another State

Citizen or Subject of a
Foreign Country

Foreign Nation

IV. NATURE OF SUIT (Place an X in One Box Only)

CONTRACT

TORTS

110 Insurance
120 Marine
130 Miller Act
140 Negotiable Instrument
150 Recovery of Overpayment
& Enforcement of Judgment
151 Medicare Act
152 Recovery of Defaulted
Student Loans
(Excludes Veterans)
153 Recovery of Overpayment
of Veterans Benefits
160 Stockholders Suits
190 Other Contract
195 Contract Product Liability
196 Franchise

REAL PROPERTY
210 Land Condemnation
220 Foreclosure
230 Rent Lease & Ejectment
240 Torts to Land
245 Tort Product Liability
290 All Other Real Property

PERSONAL INJURY
310 Airplane
315 Airplane Product
Liability
320 Assault, Libel &
Slander
330 Federal Employers
Liability
340 Marine
345 Marine Product
Liability
350 Motor Vehicle
355 Motor Vehicle
Product Liability
360 Other Personal
Injury
362 Personal Injury Medical Malpractice
CIVIL RIGHTS
440 Other Civil Rights
441 Voting
442 Employment
443 Housing/
Accommodations
445 Amer. w/Disabilities Employment
446 Amer. w/Disabilities Other
448 Education

FORFEITURE/PENALTY

PERSONAL INJURY
365 Personal Injury Product Liability
367 Health Care/
Pharmaceutical
Personal Injury
Product Liability
368 Asbestos Personal
Injury Product
Liability
PERSONAL PROPERTY
370 Other Fraud
371 Truth in Lending
380 Other Personal
Property Damage
385 Property Damage
Product Liability
PRISONER PETITIONS
Habeas Corpus:
463 Alien Detainee
510 Motions to Vacate
Sentence
530 General
535 Death Penalty
Other:
540 Mandamus & Other
550 Civil Rights
555 Prison Condition
560 Civil Detainee Conditions of
Confinement

625 Drug Related Seizure

of Property 21 USC 881
690 Other

BANKRUPTCY
422 Appeal 28 USC 158
423 Withdrawal
28 USC 157
PROPERTY RIGHTS
820 Copyrights
830 Patent
840 Trademark

LABOR
710 Fair Labor Standards
Act
720 Labor/Management
Relations
740 Railway Labor Act
751 Family and Medical
Leave Act
790 Other Labor Litigation
791 Employee Retirement
Income Security Act

SOCIAL SECURITY
861 HIA (1395ff)
862 Black Lung (923)
863 DIWC/DIWW (405(g))
864 SSID Title XVI
865 RSI (405(g))

FEDERAL TAX SUITS

870 Taxes (U.S. Plaintiff
or Defendant)
871 IRSThird Party
26 USC 7609

OTHER STATUTES

375 False Claims Act

400 State Reapportionment
410 Antitrust
430 Banks and Banking
450 Commerce
460 Deportation
470 Racketeer Influenced and
Corrupt Organizations
480 Consumer Credit
490 Cable/Sat TV
850 Securities/Commodities/
Exchange
890 Other Statutory Actions
891 Agricultural Acts
893 Environmental Matters
895 Freedom of Information
Act
896 Arbitration
899 Administrative Procedure
Act/Review or Appeal of
Agency Decision
950 Constitutionality of
State Statutes

IMMIGRATION
462 Naturalization Application
465 Other Immigration
Actions

V. ORIGIN (Place an X in One Box Only)

1 Original
Proceeding

2 Removed from
State Court

Remanded from
Appellate Court

4 Reinstated or
Reopened

5 Transferred from
Another District
(specify)

6 Multidistrict
Litigation

Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):

29 U.S.C. 2101 et seq.

VI. CAUSE OF ACTION Brief description of cause:

Violation of the WARN Act

CHECK IF THIS IS A CLASS ACTION

VII. REQUESTED IN
UNDER RULE 23, F.R.Cv.P.
COMPLAINT:
VIII. RELATED CASE(S)
(See instructions):
IF ANY
JUDGE
DATE

CHECK YES only if demanded in complaint:

Yes
No
JURY DEMAND:

DEMAND $

DOCKET NUMBER

SIGNATURE OF ATTORNEY OF RECORD

/s/ Christopher D. Loizides, Esq.

08/11/2015
FOR OFFICE USE ONLY
RECEIPT #

AMOUNT

Print

APPLYING IFP

Save As...

JUDGE

MAG. JUDGE

Reset

Case 1:15-cv-00701-UNA Document 1-1 Filed 08/11/15 Page 2 of 2 PageID #: 10

JS 44 Reverse (Rev. 12/12)

INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44

Authority For Civil Cover Sheet
The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as
required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is
required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of
Court for each civil complaint filed. The attorney filing a case should complete the form as follows:
I.(a)

(b)

(c)

Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use
only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and
then the official, giving both name and title.
County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at the
time of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land
condemnation cases, the county of residence of the "defendant" is the location of the tract of land involved.)
Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting
in this section "(see attachment)".

II.

Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.Cv.P., which requires that jurisdictions be shown in pleadings. Place an "X"
in one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below.
United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here.
United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an "X" in this box.
Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendment
to the Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes
precedence, and box 1 or 2 should be marked.
Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the
citizenship of the different parties must be checked. (See Section III below; NOTE: federal question actions take precedence over diversity
cases.)

III.

Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark this
section for each principal party.

IV.

Nature of Suit. Place an "X" in the appropriate box. If the nature of suit cannot be determined, be sure the cause of action, in Section VI below, is
sufficient to enable the deputy clerk or the statistical clerk(s) in the Administrative Office to determine the nature of suit. If the cause fits more than
one nature of suit, select the most definitive.

V.

Origin. Place an "X" in one of the six boxes.

Original Proceedings. (1) Cases which originate in the United States district courts.
Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441.
When the petition for removal is granted, check this box.
Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the filing
date.
Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date.
Transferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers or
multidistrict litigation transfers.
Multidistrict Litigation. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C. Section 1407.
When this box is checked, do not check (5) above.

VI.

Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional
statutes unless diversity. Example: U.S. Civil Statute: 47 USC 553 Brief Description: Unauthorized reception of cable service

VII.

Requested in Complaint. Class Action. Place an "X" in this box if you are filing a class action under Rule 23, F.R.Cv.P.
Demand. In this space enter the actual dollar amount being demanded or indicate other demand, such as a preliminary injunction.
Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.

VIII. Related Cases. This section of the JS 44 is used to reference related pending cases, if any. If there are related pending cases, insert the docket
numbers and the corresponding judge names for such cases.
Date and Attorney Signature. Date and sign the civil cover sheet.