JOHN A. WOODCOCK, JR., District Judge.
This case arose from an agreement between Verso Paper Corp. and Verso Paper LLC (Verso) and AIM Development USA, LLC (AIM) in which Verso agreed to sell and AIM to purchase Verso's Bucksport, Maine Paper Mill. While the sale was pending, Verso ceased paper mill operations in Bucksport, and former Verso employees of the Bucksport Paper Mill and their union sought a declaratory judgment and injunctive relief against Verso concerning their right to timely payment of severance pay and final wages, including accrued 2015 vacation pay, in accordance with time frames they said, and continue to say, are established under state law. The Court dismissed Plaintiffs' claims for severance pay because it concluded that Maine law precluded them from proceeding once the state of Maine Director of Bureau of Labor Standards (Director) brought suit in state court against the Defendants, and the Court dismissed their claims for vacation pay because it concluded that state rather than federal court,
On January 6, 2015, the Court dismissed a motion for declaratory judgment and injunctive relief and a motion for attachment and trustee process brought by the International Association of Machinists and Aerospace Workers, AFL-CIO, Local Lodge No. 1821 (IAM or IAMAW), and 58 Local No. 1821 Members (Plaintiffs). Order Dismissing Pls.' Mot. for Declaratory and Injunctive Relief; and Dismissing Pls.' Mot. for Attach. and Trustee Process at 85 (ECF No. 73) (Severance Order). On January 20, 2015, Plaintiffs filed a motion for reconsideration and request for certification. Pls.' Mot. for Recons., Certification to the Maine Supreme Judicial Ct., or Certification of Appeal for Interlocutory Review of the Severance Pay Claims in Count 9 (ECF No. 97) (Pls.' Mot.). Verso filed its response in opposition on February 10, 2015. Defs. Verso Paper Corp. and Verso Paper LLC's Opp'n to Pls.' Mot. for Recons., Certification to the Maine Supreme Judicial Ct., or Certification of Appeal for Interlocutory Review of the Severance Pay Claims in Count 9 (ECF No. 100) (Defs.' Opp'n). Plaintiffs replied on February 27, 2015. Pls.' Reply to the Verso Defs.' Opp'n to Their Mot. for Recons., Certification to the Maine Supreme Judicial Ct., or Certification of Appeal for Interlocutory Review of the Severance Pay Claims in Count 9 (ECF No. 111) (Pls.' Reply). On March 5, 2015, Verso filed a surreply. Defs. Verso Paper Corp. and Verso Paper LLC's Surreply in Further Opp'n to Mot. for Recons., Certification to the Maine Supreme Judicial Ct., or Certification of Appeal for Interlocutory Review of the Severance Pay Claims in Count 9 (ECF No. 119) (Defs.' Surreply).
The IAMAW and the five named individual Plaintiffs filed this action on December 15, 2014. Compl. for Declaratory and Injunctive Relief (ECF No. 1) (Compl.). On December 22, 2014, Plaintiffs filed an amended complaint, which added 53 Local No. 1821 Members as plaintiffs and included additional allegations. First Am. Compl. for Declaratory and Injunctive Relief (ECF No. 29) (First Am. Compl.). In their First Amended Complaint,
The Court was tasked with ruling on several issues. First, it held that "it ha[d] diversity jurisdiction over all claims" brought by Plaintiffs. Severance Order at 56.
Second, and most relevant to this Order, the Court addressed whether Plaintiffs' pending prior-filed suit for timely severance pay had to be dismissed in light of the subsequent complaint filed by the state of Maine and the Director in Kennebec County Superior Court, in accordance with 26 M.R.S. § 625-B(5). Id. at 5781. In concluding that Plaintiffs' suit for timely severance pay had to be dismissed under Maine law, the Court first considered the organization of the statute in general and section 625-B in particular. Id. at 59-61. Next, the Court considered comparative federal laws, Supreme Court caselaw interpreting those federal laws, Maine and United States Supreme Court caselaw interpreting section 625-B, the plain language of section 625-B, and the legislative history of section 625-B presented by the parties to determine what is meant by the "right to maintain an action" in relation to 26 M.R.S. § 625-B(4)
Third, the Court abstained from ruling on the vacation pay issue, reasoning that the Consent Order filed in Kennebec County Superior Court addressed the timing of vacation pay, and "there are matters of state law more properly resolved in state [rather] than federal court." Id. at 83-84.
After the Court issued the Severance Order on January 6, 2015, several events took place. First, the Consent Order required severance payments to be made in two installments, the first due on January 8, 2015. Consent Order ¶ 10. Verso made these payments in accordance with the Consent Order. Defs.' Opp'n Attach. 1 Decl. of Charles Welch in Support of the
On February 19, 2015, in accordance with paragraph 14 of the Consent Order, Plaintiffs filed "a formal challenge regarding the accuracy and adequacy of the payments to ... 53 individuals ... with the Director of the Bureau of Labor Standards." Gilley Decl. ¶ 35. The same was also filed in Kennebec County Superior Court on February 22, 2015. Id. According to Plaintiffs, they are collectively owed an additional $357,158.53. Pls.' Reply Attach. 4 RE: Bucksport Mill Verso's Failure to Fully Pay Severance Payments to Members of IAMAW Local Lodge # 1821 at 1. In addition, the Attorney General filed a motion to dismiss the State's claim against Verso with prejudice in Kennebec County Superior Court, and in response, Plaintiffs filed an objection, seeking dismissal without prejudice, pursuant to 26 M.R.S. § 625B(5), on February 22, 2015. Id. Attach. 3 Objection of Interested Parties (IAMAW Local Lodge No. 1821 On Behalf of Its Members Who are the Beneficiaries) to Dismissal with Prejudice and Mot. for Dismissal Without Prejudice at 1.
Plaintiffs explain in their briefing that Justice Mullen held a telephonic hearing with the parties on February 23, 2015, whereby he "urged Verso to provide all employees with the data needed to determine the accuracy of the severance and vacation time pay that Verso has made to date." Pls.' Reply at 6. The following day, Justice Mullen entered an order, ruling that no action will be taken by the superior court regarding the pending motions to dismiss or the objection until after a telephone conference scheduled for April 8, 2015.
Plaintiffs request the Court to reconsider its Severance Order.
Id.
They go on to argue that because there was no "definitive precedent from the" Law Court on the proper interpretation of section 625-B, certification is proper to answer five questions:
Id. at 3-4.
According to Plaintiffs, in reaching its ruling, the Court only had legislative history from the 1975 and 2003 amendments to section 625-B and they criticize the Court's public policy discussion for not citing
Next, Plaintiffs "submit that the complete legislative history of the Maine Severance Pay Statute" (they attached in part as an exhibit to their motion) proves "an unequivocal legislative intent to expand the rights provided to employees under this statute." Id. at 7. Viewed in its entirety, Plaintiffs argue that "[n]othing in the complete legislative history of the MSPA supports the Court's" public policy analysis. Id. at 7-8. In addition, Plaintiffs state that "the legislative history of the MSPA evidences an express legislative intent to prohibit negotiations by employers to pay any amount that is either less than or in a time frame later than the express requirements in the [A]ct." Id. at 8. This means, Plaintiffs say,
Id. In fact, Plaintiffs contend that the legislative history from 1999 "suggests that the Director exceeded her authority under the MSPA in fashioning the Consent Decree entered on December 23, 2014." Id. at 9. Plaintiffs then provide a summary of the evolution of the MSPA and its corresponding legislative history, including that the Legislature expanded the right under subsection 4 to include unions on behalf of their members. Id. at 9-18. Notably, while the Court considered as part of Its public policy discussion the likely difference in the amount of money collected under the FLSA compared to the MSPA as a distinguishing factor, Plaintiffs assert that "not in 1999 and not in any other year, has the Maine Legislature indicated any intent to adopt an interpretation of this law different from the FLSA, just because the sums to be collected are large... thus, employing the FLSA and ADEA is completely consistent with this law." Id. at 15. In addition, Plaintiffs criticize the Court's reasoning regarding the right to attorney's fees to "litigants who file a subsection 4 private action prior to a Director's action [as being] contrary to public policy and will encourage or reward `litigiousness'" on the basis that it "is utterly without support in the history of this statute over the past forty years of its evolution since the 1975 post-Shapiro Shoe amendments." Id. at 18. They say "the fee award has been mandatory not discretionary
In closing, Plaintiffs ask the Court for three alternatives: (1) reconsider and reverse its prior Severance Order "based on an incomplete legislative record"; (2) certify the case to the Law Court pursuant to 4 M.R.S. § 57; or (3) certify the case to the First Circuit for interlocutory review. Id.
Verso counters that the Court should not reconsider and vacate its Severance Order because Plaintiffs have not identified "how the Court misapprehended the arguments previously presented by the parties." Defs.' Opp'n at 2. Instead, Verso says, Plaintiffs' presentation of additional legislative history not brought before the Court prior to its Severance Order represents "new legal arguments that [they] could have presented the first time around," and are attempting "a second bite at the apple." Id. at 2-7 (citing Cochran v. Quest Software, Inc., 328 F.3d 1, 11 (1st Cir.2003) and additional caselaw). According to Verso, Plaintiffs do not attempt to explain how they meet the legal standard for reconsideration. Id. at 5 (citing United States v. Poulin, No. 1:08-cr-00050-JAW, 2014 WL 1642269, at *2 (D.Me. Apr. 24, 2014)). It also contends that Plaintiffs' "request for declaratory judgment is now moot because each of the Plaintiffs eligible for severance has received that severance." Id. at 3. Verso cites the Declaration of Verso Human Resources Manager Charles Welch (attached to Verso's opposition) as proof that it has complied with the terms of the Consent Order filed by the state of Maine and the Director in Kennebec County Superior Court, including that it has made full payment of severance to all eligible employees (except for one disputed employee, Mr. Lowell). Id. at 9 & n. 5. Thus, according to Verso, an order from the Court based on new analysis or allowing certification that would lead to a new order from this Court "would be a pure advisory opinion, disconnected from any live case or controversy." Id. at 3.
Regarding Plaintiffs' request for certification to the Law Court, Verso asserts that "their request is procedurally improper, unfair and proposes to tax the judicial resources of now a second court system, simply because Plaintiffs, having pushed aggressively to have this legal issue addressed by this Court, do not like the ruling they received." Id. In response to Plaintiffs' submission of additional legislative history to support their position for certification, Verso counters that their contention
Id. at 11. Verso says that Plaintiffs' "new argument does not cast any different light on the Maine Legislature's express intent" regarding the Director's ability to displace suits of individual employees and, citing footnote 18 from the Court's Severance Order, "there is no relationship between this change to the statute [in 1975 where the Legislature altered the MSPA to permit unions to bring actions on behalf of their members] and the change that permits suits by the Director to terminate previously-filed private actions." Id. Regarding Plaintiffs' emphasis on the 1999 amendments, Verso argues that they "do
Finally, as regards Plaintiffs' request for certification for an interlocutory appeal, Verso says that their request was waived because their pending motion "provides no legal basis for the relief requested, and contains literally no argument explaining why certification is appropriate here." Id. at 4, 15 (citing Joyce v. Postmaster Gen., 846 F.Supp.2d 268, 289 n. 25 (D.Me.2012)). In the alternative, it argues that the request should be denied on the merits. Id. at 4. Specifically, Verso argues that their request "falls short of the exacting standard that governs requests for certification under § 1292(b)." Id. at 15-16 (citing an array of caselaw from this district and the First Circuit). Verso points out that "Plaintiffs did not seek any § 1292(b) certification prior to the Court's issuance of the Order and so the Order does not include the certification Plaintiffs now seek, as is required by the statute." Id. at 16 n. 10 (citing 28 U.S.C. § 1292(b); Widi v. United States Dep't of Justice, No. 1:11-cv-00113-JAW, 2011 WL 5877543, at *4 (D.Me. Nov. 23, 2011)).
In their reply, Plaintiffs claim that "the amount of severance paid is now of relevance to the pending motion for Reconsideration." Pls.' Reply at 2. They explain:
Id. (citing Gilley Decl. ¶ 31). They also assert that several errors have been made in calculating their severance payments. Id. at 3-4 (citing Gilley Decl. ¶¶ 32-33). In addition, Plaintiffs claim that for those IAMAW members that have received their severance payments, "the amount paid differs from the amount that Verso indicated would be paid on Exhibit A of the Consent Order." Id. at 4.
Expanding on their position that this case has not been mooted by Verso's severance payments to former employees, Plaintiffs argue that the Consent Order never attempted to resolve when full payment was due (which Plaintiffs believe
Alternatively, if the Court were to find the case moot, Plaintiffs assert that the Severance Order should be vacated pursuant to United States v. Munsingwear, Inc., 340 U.S. 36, 71 S.Ct. 104, 95 L.Ed. 36 (1950) (Munsingwear Doctrine). Pls.' Reply at 8. Plaintiffs say this doctrine stands for the proposition that
Id. at 8-9. As an example, Plaintiffs cite a 2013 Law Court case, Thanks But No Tank v. Department of Environmental Protection, 2013 ME 114, ¶ 12, 86 A.3d 1, which considered and rejected a request to vacate a superior court ruling rendered moot. Pls.' Reply at 11-12. Plaintiffs argue that, unlike that case, where the Law Court reasoned that vacatur was inappropriate because the plaintiff had not demonstrated it would be unable to litigate similar issues or that public policy would be harmed, they will be unable to litigate similar issues if the Director's suit is dismissed from Kennebec County Superior Court with prejudice, and public policy will be harmed because it would go against the legislative history to section 625-B. Id. at 12.
Next, contrary to Verso's argument, Plaintiffs say that their motion is not based on a new argument they could have made previously. Id. at 15. They claim that initially, "up to and including the oral argument of the Severance Claims, the history and public policy underlying the enactment, and all amendments to, the MSPA was not at issue." Id. They go on:
Id. (emphasis in original).
Regarding certification to the Law Court, Plaintiffs believe that "an expeditious
Finally, regarding their request for an interlocutory appeal, Plaintiffs say that during a telephone conference with the Court on December 16, 2014, "the Court stated that, it would litigate the Cou[n]t 9 claims first and, regardless of its ruling on the severance issues, the Court would certify those issues as appropriate for interlocutory appeal by the losing party in any decision." Id. Thus, Plaintiffs explain that this is why they did not present any arguments or relevant caselaw in their motion supporting their position, based on this "agreed procedural decision." Id.
Addressing Plaintiffs' argument that the case is not moot, Verso counters that their "arguments concerning the dispute over the amount of severance pay are irrelevant to the mootness analysis ... because, as Plaintiffs have made clear, Plaintiffs' Count 9 seeks only equitable relief concerning the timing of payment." Defs.' Surreply at 3 (emphasis in original). In addition, because Plaintiffs have presented their objections regarding the sufficiency of severance payments to the Maine Department of Labor and Justice Mullen, there is no "effectual relief" to be obtained in this Court. Id. (quoting In re Light Cigarettes Mktg. Sales Practices Litig., 271 F.R.D. 402, 422 (D.Me.2010)).
Regarding the Munsingwear Doctrine (which it also notes was "clarified" by United States Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18, 115 S.Ct. 386, 130 L.Ed.2d 233 (1994)), Verso asserts that it "does not apply to proceedings before a district court," only appellate courts. Defs.' Surreply at 4 (citing Overseas Military Sales Corp., Ltd. v. Giralt-Armada, 503 F.3d 12, 17 (1st Cir.2007); 28 U.S.C. § 2106; Bancorp, 513 U.S. at 21, 115 S.Ct. 386). It says other district courts have concluded the same. Id. at 4-5 (citing Keeler v. Mayor and City Council of Cumberland, 951 F.Supp. 83 (D.Md. 1997); Ry. Labor Execs.' Ass'n v. Wheeling & Lake Erie Ry. Co., 756 F.Supp. 249, 252 n. 8 (E.D.Va.1991)). Even if permissible to apply Munsingwear, Verso contends that Plaintiffs have not met the criteria for vacatur. Id. at 5 (citing Bancorp, 513 U.S. at 25-26, 115 S.Ct. 386). In Verso's view, Plaintiffs are merely attempting to "relentlessly bounce between this Court and the state court, playing one proceeding off of the other, until they find a way to undo this Court's holding that Plaintiffs do not have the right to pursue their severance claims." Id. at 6-7.
Finally, addressing Plaintiffs' contention that the Court promised to grant an interlocutory appeal to the losing party, Verso says it was its understanding
Id. at 7.
Because Plaintiffs have raised several issues regarding what the Court did and did not do in its Severance Order, the Court summarizes the bases upon which it dismissed Plaintiffs' suit for timely severance payments pursuant to 26 M.R.S. § 625B(5).
Subsection 4 of section 625-B, entitled "Suits by employees," expressly allowed Plaintiffs (both the individual employees and their union) to bring suit in this Court to enforce their statutory right to severance pay:
26 M.R.S. § 625-B(4).
Subsection 5 of section 625-B, entitled "Suits by the director," similarly allowed the Director to bring an enforcement action in "any court of competent jurisdiction" against Verso to enforce the provisions of the MSPA:
Id. § 625-B(5).
Neither party disputed the other's rights under section 625-B; instead, they disputed the impact of the Director's lawsuit on the Plaintiffs' lawsuit. Severance Order at 58-59. The critical language from subsection 5 provides:
26 M.R.S. § 625-B(5). As the Court explained, Plaintiffs' "contention is a narrow one: that the subsection 5 termination provision does not apply to pending lawsuits." Severance Order at 59.
To resolve the dispute, the Court first considered the organization of title 26 and section 625-B, and the power granted to the Director. Id. at 59-61. The Court observed that sections 41 through 44 "contemplate[] an active role for the Director of the Bureau of Labor Standards in enforcing the employment laws of the state of Maine." Id. at 60. The Court also noticed that chapter 7 of title 26, the same chapter whereby section 625-B is found, "sometimes directs the Director ... to enforce those laws." Id.
Turning to the organization of section 625-B, the Court noted that in addition to the authority granted to the Director under
The Court turned to the heart of Plaintiffs' argument: that an action that "may be maintained" by employees and their union under subsection 4 is not terminated by the termination provision under subsection 5 because that subsection discusses the right "to bring an action," not "maintain" an action. Id. at 61-62. The Court reviewed the Supreme Court case of Breuer v. Jim's Concrete of Brevard, Inc., 538 U.S. 691, 123 S.Ct. 1882, 155 L.Ed.2d 923 (2003), which essentially adopted Plaintiffs' interpretation regarding nearly identical language from a FLSA provision, 29 U.S.C. § 216(b). Severance Order at 62-66 ("With minor adjustments, the language in the corresponding subsections of the Maine severance pay statute is identical to the language in the FLSA"). In Breuer, Justice Souter concluded that the right to "maintain" under 29 U.S.C. § 216(b) means "to continue" as opposed "to commence,"
Next, applying standard statutory analysis, the Court parsed the plain language of section 625-B. Id. at 66-68. The Court concluded that subsections 4 and 5, when read together, were ambiguous, as "[t]he statute does not differentiate between suits under subsection 4 not yet filed as opposed to pending when the Director initiated suit." Id. at 67.
The Court reviewed Maine and United States Supreme Court caselaw, all of which supported Verso's interpretation: Director of Bureau of Labor Standards v. Fort Halifax Packing Co., 510 A.2d 1054, 1057 (Me.1986); Fort Halifax Packing Co., Inc. v. Coyne, 482 U.S. 1, 5, 107 S.Ct. 2211, 96 L.Ed.2d 1 (1987); and Viking Freight, Inc. v. Moberg, 1998 Me.Super. LEXIS 191, at *1-2, 16-17 (July 27, 1998). Severance Order at 68-69. Even so, the Court explained that "the legislative intent behind section 625-B remains ambiguous. In light of this ambiguity," the Court observed that "Justice Souter turned to legislative history [in Breuer] and the Court does the same." Id. at 69.
Discussing the legislative history, the Court concluded that it appeared the Legislature's intent was to terminate all suits once the Director filed an action, pending or not. Id. at 69-70. The Court relied on language from the history surrounding the 1975 amendment to subsection 5, where the stated purpose was to "`[a]llow suits by the Director of the Bureau of Labor to obtain judgments (in particular, the director's
Finally, the Court discussed nine public policy considerations. Id. at 70-80. First, the Court considered reasons in favor of exempting pending litigation from the termination provision. Id. at 70-73. It noted that it was unclear why the Legislature would exempt pending employee or labor union litigation from the termination provision provided under section 625-B(5). Id. at 71. The Court also expressed skepticism regarding Plaintiffs' point that exemption would promote the right to attorney's fees, explaining "it would be unusual for the law to exalt attorney's fees over the ability of the Director to supervise the dispute." Id. at 73. Ultimately, the Court concluded that "public policy reasons against Plaintiffs' position ... substantially overwhelm any public benefit in favor of their position." Id.
Second, the Court explained why public policy would not support interpreting the FLSA provision identically with section 625-B. Id. at 73-75. The Court emphasized differences between the two statutes, including that "[t]he stakes ... are often unusually high in the Maine severance pay situations, circumstances not often seen in FLSA lawsuits. In short, the Maine severance pay law, by its terms, deals with a markedly different set of circumstances than most FLSA claims." Id. at 75.
Third, the Court discussed the public policy implications in relation to the role of the Director based on the framework of the statute. Id. at 75-76. Observing that the statute "grants the Director reporting requirements, investigative authority, the right to file suit for affected employees, and overall supervisory authority," the Court concluded that she properly exercised her authority by entering into a settlement agreement with Verso, one supported by a majority of millworkers. Id. at 75. Therefore, the Court reasoned, "[t]he impact on the Director's ability to exercise her statutory authority by allowing employees or labor unions to persist with a severance pay lawsuit would be considerable ... making a global resolution less likely." Id. at 76. In addition, the Court explained that such a result could also leave the employer defending multiple lawsuits rather than trying to resolve the issues at hand. Id.
Fourth, the Court reasoned that adopting Plaintiffs' position would encourage "a race to the courthouse" and "an immediate resort to litigation." Id. at 76-77.
Fifth, the Court discussed the potential for "a fight among friends," which was on display in this suit between Plaintiffs and members of the United Steelworkers who, unlike Plaintiffs, supported the settlement agreement. Id. at 77.
Sixth, the Court explained that Plaintiffs' view rewards the litigious, and "[t]he law rarely so rewards litigation over negotiation, especially where the state government
Seventh, the Court observed that section 625-B contains a bankruptcy escape clause for an employer that files a Chapter 11 bankruptcy petition. Id. at 77-79. The Court reasoned that the Director, who "has been granted investigative authority to `examine books and records of any employer' affected by this law, ... is in a better position to demand and obtain sensitive financial information from the employer" rather than private parties, to determine whether a threat of bankruptcy is real. Id. at 78-79 (quoting 26 M.R.S. § 625-B(7)).
Eighth, the Court observed that "Plaintiffs are presenting an interpretation of a Maine statute with a significant practical effect on the Director and the Director is not a party to the litigation." Id. at 79.
Ninth, the Court observed that "Plaintiffs' interpretation virtually guarantees simultaneous litigation over the same issue in multiple forums." Id. Such a consequence may lead to "a plethora of quickly-filed lawsuits in different courts and different jurisdictions, each in different stages, some resulting in conflicting court orders." Id. at 80.
Id.
Plaintiffs take issue with the Court's public policy discussion contained in the Severance Order, arguing that the Court improperly expressed its own view of section 625-B and did not cite any floor debates regarding the statute's amendments, that the Order was made "primarily" on public policy grounds, and had the Court been presented with a complete legislative history, it would have seen that the legislative history does not support its analysis. The Court addresses each contention in turn after reviewing the legal standard for a motion for reconsideration.
A motion for reconsideration "`is not a vehicle to force the court to think twice; it is not an opportunity for the losing party simply to press his unsuccessful arguments a second time in the hope that, by repetition, the court will see them his way.'" Poulin, 2014 WL 1642269, at *2, 2014 U.S. Dist. LEXIS 56987, at *5 (quoting Widi v. McNeil, 2:12-cv-00188-JAW, 2014 WL 640286, at *1, 2014 U.S. Dist. LEXIS 19778, at *3 (D.Me. Feb. 18, 2014)). "Instead, the motion provides the court with an opportunity to correct `manifest errors of law or fact or to present newly discovered evidence.'" Id. (quoting Lakshman v. Univ. of Me. Sys., 338 F.Supp.2d 162, 164 (D.Me.2004)). Furthermore, "a motion for reconsideration's
The Court turns to the Plaintiffs' contention that the Court improperly expressed its own view of section 625-B without support from any floor debates. The Court was presented with briefing regarding the legislative history of subsection 3(B),
Plaintiffs also say the Court should have factored in the 1975 amendment to subsection 4, allowing unions to bring suits on behalf of its members. However, the Court reviewed this amendment, and concluded in its Severance Order that this point did not address the impact of the Director's suit on employees' pending lawsuits, and the Court still finds no reason to conclude otherwise. See id. at 70 n. 18 (explaining that "[t]his portion of the rationale for the 1975 amendments does not appear relevant to the issues before the Court in this lawsuit").
In addition, Plaintiffs argue that the Court improperly expressed its own views when laying out its public policy discussion, relying particularly on the Court's remarks that the Legislature may enact laws "that seem to this Court in its best judgment to be markedly ill-advised." Id. at 80. Plaintiffs cite the Law Court decision of Shapiro Brothers, where it
The Plaintiffs' point is unclear. The Court's formulation — that the Legislature has the right to enact unwise laws — is another way of saying that judges do not "sit in judgment as to the efficacy or wisdom of the statute." Furthermore, the Court was free to explore public policy reasons the Legislature may have considered in designing section 625-B in relation to the Director's authority, absent express reasons from the Legislature, as "extrinsic factors to ascertain legislative intent." Thompson v. Shaw's Supermarkets, Inc., 2004 ME 63, ¶ 7, 847 A.2d 406 (explaining that where proper interpretation of a statute cannot be determined based on its plain meaning, "`we then consider the statute's history, underlying policy, and other extrinsic factors to ascertain legislative intent'") (quoting In re Wage Payment Litig., 2000 ME 162, ¶ 4, 759 A.2d 217).
Next, regarding Plaintiffs' contention that the Court's Severance Order was decided "primarily" on public policy grounds, the Court disagrees. As discussed above, the Court considered numerous factors in addition to public policy. See Section IV.A, supra. In fact, the Court could have ruled against Plaintiffs as soon as it concluded that the legislative history demonstrated an intent to terminate both pending and non-pending employee suits, with no discussion of public policy. Instead, the Court analyzed potential public policy considerations as to why the Legislature did not exempt pending employee actions, and concluded its discussion by noting that "the Court factors these policy considerations into its statutory analysis in substantial support of Verso's position." Severance Order at 80.
Finally, Plaintiffs present the Court with an abundance of legislative history that they say demonstrates "an unequivocal legislative intent to expand the rights provided to employees under this statute" and that "[n]othing in the complete legislative history of the MSPA supports the Court's" public policy analysis. Pls.' Mot. at 7-8. They also claim that the legislative history confirms that an employer may not negotiate for any less than the payment amounts or time frames prescribed by the statute, and thus, this limited the Director's authority to do so as well. Id. at 8. This additional legislative history, as well as these arguments, were not before the Court at the time it issued its Severance Order. Verso contends that the Court should not consider any of these arguments because they represent impermissible new arguments that could have and should have been raised before, not after the Severance Order. Defs.' Opp'n at 2-7. Plaintiffs counter that the legislative history and public policy underlying the enactment was never at issue until the Court issued its Severance Order. Pls.' Reply at 15.
The First Circuit has explained that new arguments that could have and should have been raised before the issuance of a district court ruling are not appropriate in a motion for reconsideration:
Cochran, 328 F.3d at 11 (internal citations omitted).
Plaintiffs cannot claim that they did not know the legislative history of or public policy implications behind section 625-B would be considered by the Court in its Severance Order. Once the Director filed a complaint and proposed consent order in Kennebec County Superior Court on December 23, 2014, the interpretation of subsections 4 and 5 became the heart of the issue before the Court. Plaintiffs recognized the critical significance of this issue of statutory interpretation in their supplemental reply filed on December 26, 2014, which included an extensive discussion of Breuer. Pls.' Reply to the Verso Defs.' Dec. 24, 2014 Supplement Mem. of Law in Opp'n to Pls.' Mot. for Expedited Declaratory J. and Req. for Preliminary and Permanent Inj. Regarding Severance and 2015 Vacation Time Pay at 15-19 (ECF No. 44).
Moreover, Plaintiffs are simply incorrect in asserting that policy considerations were not presented and argued before the severance decision. On December 29, 2014, the Court heard oral argument. Minute Entry (ECF No. 56). The Court explicitly asked Plaintiffs' counsel for her take on public policy considerations regarding the role of the Director in relation to the statute:
Tr. of Proceedings 28:24-29:3, 29:18-21 (ECF No. 99) (Oral Argument Tr.). After Plaintiffs' counsel conceded that the settlement reached by the Director was a "concession of reality" and did not contend that she acted beyond her authority (unlike the argument being made at present), the Court went on:
Id. 30:9-11, 30:20-31:12. Plaintiffs' counsel responded that the Court should not look at the statute in the way it proposed because "the public policy issue mediates against that." Id. 31:13-14.
Later, during the oral argument, the Court noted its concern to Plaintiffs' counsel, as it did in the Severance Order, that
When the Court turned to Verso's counsel for comments, he directed the Court's attention to the 1975 amendments, and "suggest[ed] that the legislative history eliminates doubt concerning the state's ability to displace private plaintiffs and it — and I think the language was drafted to reflect the very public policy concerning what Your Honor was putting its finger on." Oral Argument Tr. 35:2536:4. Regarding Breuer and the language of 29 U.S.C. § 216(b), Verso's counsel conceded that the plain language of the statute was identical to the relevant subsections of section 625-B, but contended that even so, "you can't then just sweep into that analysis the legislative history of the federal statutes when you have ... a clear and unequivocal legislative history of the Maine statute, which makes very clear a very, very different intent." Id. 38:2-10. The Court explained it would be hard pressed not to construe section 625-B in the same light as the FLSA provision "unless the policy considerations of the statutes are so markedly different." Id. 40:19-21.
The Court turned back to Plaintiffs' counsel, and explicitly asked her to give it "an idea, what could possibly be the policy behind all this?" Id. 43:8-9. After Plaintiffs' counsel avoided the question, the Court once again asked: "What's the ... policy behind allowing a pending action to be maintained by an employee or a union and not allowing, once a director files an action, a separate lawsuit, what's the policy behind that?" Id. 44:10-14. After Plaintiffs' counsel again failed to answer the Court's question, it essentially repeated the question. Id. 44:21-23. The Court could not have been more explicit that it was concerned with the potential public policy implications behind Plaintiffs' interpretation and, as described above, it tipped off Plaintiffs' counsel during oral argument regarding specific public policy concerns that ultimately appeared in the Severance Order.
Following oral argument, the Court permitted the parties to file additional supplemental memoranda in light of the issues discussed. In Plaintiffs' briefing, they chose to focus on the argument that: (1) adopting Verso's interpretation (and ultimately, the Court's interpretation) would raise serious constitutional issues; (2) the plain meaning of 26 M.R.S. § 625-B was not ambiguous but the 1975 legislative history was; (3) the Court should apply Breuer and its interpretation of the FLSA to the MSPA; and (4) in their view, public policy supported their position. Pls.' Reply to the Verso Defs.' Third Supplemental Mem. of Law in Opp'n to Pls.' Mot. for Expedited Declaratory J. and Req. for Preliminary and Permanent Inj. (ECF No. 61). Presumably, it was a strategic choice by Plaintiffs to include some arguments and not others, but they may not argue now what they could have argued
Furthermore, the parties, including the Plaintiffs, had to be aware that the Court might not agree that the Breuer analysis applies here. While it is true that Maine courts have recognized that some comparative Maine laws are to be construed in line with the FLSA, this is not always the case. See Affo v. Granite Bay Care, Inc., Nos. 2:11-CV-482-DBH, 2:12-CV-115-DBH, 2013 WL 2383627, at *7, 2013 U.S. Dist. LEXIS 76019, at *27-28 (D.Me. May 30, 2013) (explaining that "the First Circuit has consistently recognized the extraordinarily broad scope of FLSA coverage" and the Maine Legislature has not incorporated all FLSA definitions into Maine law).
In sum, the Court concludes that Plaintiffs' argument — that a review of the entire legislative record demonstrates an intent by the Legislature to exempt pending employee and union lawsuits from the termination provision of subsection 5 — could have and should have been presented to the Court before it issued its Severance Order, not after. The Court concludes that the Plaintiffs waived this late-pressed argument.
Nevertheless, for the sake of completeness, the Court has reviewed the complete legislative history provided by Plaintiffs with this motion, and concludes that the ruling would have been the same. Although the Court agrees that, overall, the complete legislative history demonstrates an intent to expand the rights of employees under the MSPA, the scope is too narrow and isolated because it does not speak to the Director's power and authority under the statute. In fact, the organization of title 26, chapter seven, and section 625-B suggests that the rights of employees under the statute are not absolute. It was proper for the Court to consider the broad power granted to the Director under title 26, chapter seven, and section 625-B in concluding that pending litigation comes within the purview of the termination provision. See Finks v. Me. State Highway Comm'n, 328 A.2d 791, 795 (Me.1974) ("Every statute must be construed in connection with the whole system of which it forms a part and all legislation on the same subject matter must be viewed in its overall entirety in order to reach a[] harmonious result which we presume the Legislature intended"). In short, it was proper for the Court to consider the public policy implications of adopting Plaintiffs' interpretation in light of the "whole system of which it forms a part."
In their pending motion, Plaintiffs also provided the Court with the 1999 amendments and corresponding legislative history. Pls.' Mot. Attach. 1 (1999 Leg. History). First, they say that "not in 1999 and not in any other year, has the Maine Legislature indicated any intent to adopt an interpretation of this law different from the FLSA, just because the sums to be collected are large ... thus, employing the FLSA and ADEA is completely consistent with this law." Pls.' Mot. at 15. Even if true, the Court did not conclude its public policy discussion on this basis alone. It also noted that "severance claims under Maine law are often more serious, complex and dire than claims for overtime and minimum wages under the FLSA." Severance Order at 74. In addition, the Court observed that, unlike the FLSA, the MSPA is not triggered unless the facility being shut down has at least 100 employees and,
To Plaintiffs' argument that the legislative history indicates that an employer may not negotiate for any less than the payment amounts or time frames prescribed by the statute, and therefore, the Director was prohibited from doing so, the Court also concludes that this is a new argument, not proper in a motion for reconsideration. In fact, it is the opposite of the argument they made before the Court issued its Severance Order. Plaintiffs' counsel indicated during oral argument that they "don't actually look at this case as a challenge to the director's ability to make the settlement they made." Oral Argument Tr. 33:9-11. The Court asked whether Plaintiffs' counsel was suggesting she wanted both the benefits of the settlement agreement and what section 625-B provides: "You want your cake and eat it, too?" Id. 33:16. Plaintiffs' counsel responded: "Absolutely, Your Honor. What good is cake without eating it? That is absolutely true. That is our position. We have a right to both." Id. 33:17-19. The Court will not entertain an entirely opposite argument now that the Severance Order has issued, because Plaintiffs "should not be allowed to switch from theory to theory like a bee in search of honey." Cochran, 328 F.3d at 11.
Having concluded that Plaintiffs have not presented new evidence not previously available, any intervening change in controlling law, or arguments requiring the Court to correct a clear error of law or to prevent manifest injustice, the Court concludes that it need not change its underlying analysis, conclusions and ruling in its Severance Order. Poulin, 2014 WL 1642269, at *2, 2014 U.S. Dist. LEXIS 56987, at *6. The Court declines to reconsider and reverse the Severance Order.
As an alternative, the Plaintiffs request that the Court vacate the Severance Order and certify five questions to the Law Court for review. See Section III.A, supra. Plaintiffs also blame the Court for their current situation, contending that it "has left [them] with no ability to enforce their right to timely payment of severance" in any court, nor can they "challenge the amount of payments that Verso has made to date, or will make in the future, in the Director's action." Pls.' Mot. at 6. In response, Verso believes certification is improper, as Plaintiffs are merely unhappy with the Court's Severance Order ruling. Defs.' Opp'n at 3. Essentially, Verso contends that Plaintiffs cannot request an expedited ruling, lose, and then claim it should have been certified to the Law Court all along. Id. at 14-15.
Section 57 of title 4 of the Maine Revised Statutes provides, in part:
4 M.R.S. § 57. "`Consideration of the merits of certified questions is not automatic.'" Dinan, 857 F.Supp.2d at 169 (quoting Brown v. Crown Equip. Corp., 2008 ME 186, ¶ 12, 960 A.2d 1188). Instead, "[t]he Law Court, at its discretion, exercises jurisdiction over a question where `(1) there is no dispute as to the material facts at issue; (2) there is no clear controlling precedent; and (3) our answer, in at least one alternative, would be determinative of the case.'" Id. (quoting Darney v. Dragon Prods. Co., LLC, 2010 ME 39, ¶ 10, 994 A.2d 804). On the other hand, rather than certification, "a federal court sitting in diversity may ... undertake its prediction [of the state law issue], `when the [route] [the] state courts would take is reasonably clear.'" Lyons v. Nat'l Car Rental Sys., Inc. (of Delaware), 30 F.3d 240, 245 (1st Cir.1994) (quoting VanHaaren v. State Farm Mut. Auto. Ins. Co., 989 F.2d 1, 3 (1st Cir.1993) (citation omitted)). To make such a prediction, "a federal court may consider `analogous decisions, considered dicta, scholarly works, and any other reliable data tending convincingly to show how the highest court in the state would decide the issue at hand.'" Fischer v. Bar Harbor Banking & Trust Co., 857 F.2d 4, 7 (1st Cir.1988) (quoting Michelin Tires, etc. v. First Nat'l Bank of Boston, 666 F.2d 673, 682 (1st Cir.1981)). Ultimately, "[t]he decision whether to certify lies within the sound discretion of the federal court." Darney v. Dragon Prods. Co., LLC, 640 F.Supp.2d 117, 125 (D.Me.2009) (internal quotation marks omitted); see also Fischer, 857 F.2d at 7 (same).
The Plaintiffs' current position is inconsistent with the record. The Plaintiffs filed their Complaint in this Court on December 15, 2014, Compl., and simultaneously filed a motion for a temporary restraining order and preliminary injunction, and a motion for expedited declaratory judgment and preliminary and permanent injunction. Mot. for a TRO and a Prelim. Inj. Pursuant to F.R.C.P. 65 (ECF No. 4) (Pls.' TRO Mot.); Pls.' Mot. for Expedited Declaratory J. and Req. for Prelim. and Permanent Inj. (ECF No. 6). The Plaintiffs stressed that "[e]xpedited review and disposition of this Motion and matter is requested in the interest of justice" and that "this deal may be consummated at anytime, and therefore destruction of the Bucksport Mill could begin at anytime, and immediate relief is necessary." Pls.' TRO Mot. at 1, 10. The Plaintiffs also moved for expedited review. Pls.' Mot. Requesting Expedited Review of All Pleadings and Mots. Relating to the Timely Payment of Severance and Accrued 2015 Vacation Time Pay (ECF No. 7). In that motion, the Plaintiffs highlighted the urgency of a prompt resolution:
Id. at 2 (emphasis in original). To accommodate the Plaintiffs, the Court put aside its other work and scheduled an immediate telephone conference of counsel, which it held on December 16, 2014. Minute Entry (ECF No. 13).
First, to the extent Plaintiffs argue that the Court's Severance Order has made it
Consent Order ¶ 14. Pursuant to this paragraph, Plaintiffs indicated through Mr. Gilley's affidavit that they filed their objections with the Director and the superior court, and Justice Mullen was waiting to rule on the Attorney General's pending motion to dismiss with prejudice until he received a status update on April 8, 2015. See Section II.B, supra. Plaintiffs foresaw using this mechanism to challenge the amount of severance payments during oral argument as well. See Oral Argument Tr. 19:21-20:3 ("There is a mechanism through the state for resolving disputes on individual claims. We're looking for a question of timing of those claims, both through the consent decree mechanism and through the normal state rules. We will dispute through the normal state process the amount each individual is entitled to at that time. And the state consent decree talks about people have 60 days in which to file a claim for that").
Second, Plaintiffs made it clear in this Court that they were not disputing the amount of severance pay, only its timing:
Id. 20:4-11; see also id. 22:24-23:2 ("I believe that how much they can pay can be resolved through the Department of Labor. It does not need to be in this court's jurisdiction to mediate each individual person's amount"); id. 23:22-23 ("[T]he exact dollar amount, I don't believe this court needs to address"). The Court relied on this representation in its Severance Order in concluding that Plaintiffs could proceed in federal court on the basis of diversity jurisdiction. Severance Order at 55-56 ("Here, however, Plaintiffs have not asked the Court to determine the specific amount of their individual severance or vacation payments from Verso, a demand that may have jeopardized their claim of a common and undivided interest; instead they have only asked the Court to rule on the timing of those payments.... [B]y restricting their claims and requested relief, Plaintiffs have fit themselves well within the `common and undivided interest' rubric for purposes of the jurisdictional amount under 28 U.S.C. § 1332"). Plaintiffs' accusations are baseless.
Third, several of the proposed questions posed by Plaintiffs do not meet all three prongs for certification outlined by the Law Court. Plaintiffs' proposed question two — whether the Legislature intended the right to bring and maintain actions
Once the Director filed her action against Verso in state court, Plaintiffs argued that they wanted this Court to rule on their claims for severance pay to avoid the termination provision of subsection 5. In their reply memorandum regarding whether the Court should abstain, Plaintiffs answered in the negative, arguing that, in light of the Director's subsequent action in Kennebec County Superior Court, "if this Court abstains, and sends the Plaintiffs to State Court, Plaintiffs' ability to obtain timely payment of all of the severance due them will be lost forever, because of the termination language" under the statute. Pls.' Reply to the Verso Defs.' Second Supplemental Mem. of Law in Opp'n to Pls.' Mot. for Expedited Declaratory J. and Req. for Prelim. and Permanent Inj. at 6 (ECF No. 53). They further argued that a ruling from this Court would be beneficial regarding timing of severance pay, as it "will assist the State in prior enforcement actions against future employers who refuse to comply with the MSPA and all the Bucksport Mill's employees all have the benefits of at least the compromise payments that the Director obtained through the consent decree to tide them over." Id. at 10. Although not raised by Plaintiffs before now, presumably they would have also objected to the Court certifying the case to the Law Court given the time constraints and desire for an expedited ruling.
The Court agreed with Plaintiffs' concerns, noting during oral argument that it "would not want to abstain where I would... so dramatically affect the rights of the parties." Oral Argument Tr. 49:11-13. It reiterated this again later on: "I am close to abstention, but I am not going to abstain if it's going to affect the rights of the parties, and namely [Plaintiffs' counsel's] right to raise the argument that she has raised about pre or post." Id. 51:24-52:2. In its Severance Order, the Court also wrote that given the fact that the "timeframe for a judicial decision is so narrow," certification to the Law Court would be "unrealistic." Severance Order at 57 n. 15. Finally, the Court also noted in its Severance Order that "the implications of Plaintiffs' arguments affect the authority of the Director and the Attorney General to act under a state statute, so there is even more of a compelling argument for abstention than in the vacation pay matter." Id. at 85 n. 22. However, the Court explained that "in fairness to Plaintiffs, they deserved a decision on the merits, [and] the Court has declined to abstain on the Maine severance pay law issue." Id.
Under the circumstances of a different case with a different procedural history,
Furthermore, it was Plaintiffs who chose to institute proceedings in federal rather than state court. Plaintiffs should have "had knowledge of the state of the law under [their] theories for recovery, and had the choice of forums to file suit, either in the local courts or the federal court under diversity jurisdiction, 28 U.S.C. § 1332." Id. at 8. Plaintiffs indicated during oral argument that they chose to file in federal rather than state court based on their assumption that Verso would remove the case to federal court anyway, resulting in a loss of time. Oral Argument Tr. 67:11-16. The Court recognizes that Plaintiffs may not have anticipated the Director's subsequent suit in state court. Nevertheless, as explained by the First Circuit:
Fischer, 857 F.2d at 8 (quoting Cantwell v. Univ. of Mass., 551 F.2d 879, 880 (1st Cir.1977)). The Court will not "duplicat[e] judicial effort" by certifying Plaintiffs' proposed questions to the Law Court.
Because the Court has declined to reverse the Severance Order or to certify Plaintiffs' proposed questions to the Law Court, it now considers Plaintiffs' final request that it grant them an interlocutory appeal to the First Circuit under 28 U.S.C. § 1292(b).
First, the Plaintiffs' position rewrites history. See Section IV.C.2, supra (discussing the procedural history of this case
The Plaintiffs have asserted that the Court promised during the December 16, 2014 telephone conference that it would allow an interlocutory appeal to the First Circuit. Plaintiffs say the Court promised "regardless of its ruling ... [to] certify those issues as appropriate for interlocutory appeal by the losing party in any decision." Pls.' Reply at 17. Based on this so-called "agreed procedural decision," Plaintiffs say that they did not present any arguments or caselaw in support of their position. Id.
During this telephone conference, the Court stated, in relevant part:
Tr. of Proceedings 3:21-4:1 (ECF No. 125) (Dec. 16, 2014 Tr.). Verso noted in its briefing that it "does not object to the Court entering final judgment against Plaintiffs on Count 9 pursuant to Rule 54(b)." Defs.' Surreply at 7.
In fact, the Court never promised the parties the right for the losing party to proceed under § 1292(b) for an interlocutory appeal. There is a difference between judicial musing and a court order. Addressing the parties for the first time the day after the Plaintiffs had filed their Complaint, the Court was brainstorming with counsel a possible course in the litigation, thoughts eclipsed by subsequent events. What the Court had in mind on December 16, 2014 is that the parties, particularly the Plaintiffs, would prefer a quick decision from the Court, one they could present on an emergency basis to the Court of Appeals because the Plaintiffs were demanding immediate action to prevent the mill from closing and to obtain more timely severance payments. Thus, the Court was considering obtaining the speedy guidance of the Court of Appeals to address emergency legal issues.
But, by the parties' own actions, this is not what happened. Instead, the parties, including the Plaintiffs, elected to fully litigate issues before this Court and they pressed this Court for an immediate answer. On January 6, 2015, the Court issued an eighty-six page order, resolving a plethora of legal issues. Then, on January 20, 2015, the Court issued a seventy-three page order on the Plaintiffs' motion for temporary restraining order and preliminary injunction. In other words, the Plaintiffs made the strategic choice to make a full court press in district court, rather than to obtain a quick trial court ruling and then proceed rapidly under § 1292(b) to the Court of Appeals. From the Court's perspective, § 1292(b)'s utility was obviated by the actions of the parties, again, particularly the Plaintiffs. Moreover, if the Plaintiffs had wanted a § 1292(b) review, they should have asked for it immediately following the first decision of January 6, 2015, not in a motion to reconsider two weeks later, and just after the second decision of January 20, 2015. The Court discusses additional reasons why Plaintiffs' request for § 1292(b) review is improper in more detail below.
Although "[t]he basic design of Section 1292(b) is similar to Rule 54(b)," these provisions "address two different situations." 10 CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL
Id. Nevertheless, "it may be appropriate for a district judge to certify under both the rule and the statute in an action with multiple claims or multiple parties" when finality is unclear, and furthermore, "[i]f the court would have been prepared to review a judgment under Rule 54(b), it achieves little to deny Section 1292(b) review." Id. Although Plaintiffs erroneously believed the Court was discussing the possibility of interlocutory review under § 1292(b) during the December 16, 2014 telephone conference, the Court will consider it nevertheless.
Section 1292(b) applies to "an order not otherwise appealable under this section," and where a district judge is
In this case though, there is good reason for the Court to deem Plaintiffs' argument waived on the issue of interlocutory review and deny their request on that basis alone. Simply put, the Plaintiffs presented no argument or caselaw to support their position. Not only did the Court not contemplate certification under § 1292(b), but it also explicitly told the parties that they would need to present argument before it would grant such a request under Rule 54(b). Dec. 16, 2014 Tr. 3:23-4:1 ("I could give the losing party the opportunity to take it right up to the First Circuit and you could have — you could make your pitch to have an expedited resolution of that, whichever way I jump on that issue"). Thus, even if the Court at one time contemplated certification under § 1292(b), at no time did it indicate to the parties that they need not present any argument to support their position. Lack of developed arguments are commonly deemed waived. See Martinez-Burgos v. Guayama Corp., 656 F.3d 7, 10 (1st Cir.2011) ("`Issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argument, are deemed waived'") (quoting United States v. Zannino, 895 F.2d 1, 17 (1st Cir.1990)). The Court deems Plaintiffs'
In any event, the Court would deny their request on the merits. As explained by the First Circuit, interlocutory appeals under § 1292(b) are "hen's-teeth rare" and "require, among other things, leave of both the trial and appellate courts." Camacho v. P.R. Ports Auth., 369 F.3d 570, 573 (1st Cir.2004). In addition:
In re San Juan Dupont Plaza Hotel Fire Litig., 859 F.2d 1007, 1010 n. 1 (1st Cir. 1988) (internal quotation marks omitted). Furthermore, "[t]here is a preference against piecemeal litigation, and the procedures available under section 1292(b) should be granted sparingly." United States ex rel. McDermott v. Genentech, Inc., 518 F.Supp.2d 289, 290 (D.Me.2007). Here, granting Plaintiffs' request would not "materially advance the ultimate termination of the litigation," in fact, it would likely prolong it.
Plaintiffs made no argument in their memoranda regarding application of Rule 54(b), but Verso noted that it would not object to the Court entering a final judgment pursuant to Rule 54(b). Nevertheless, the Court draws the same conclusion about the issuance of a Rule 54(b) judgment that it has about § 1292(b) certification. In 1946, the advisory committee stated that "Rule 54(b) was originally adopted in view of the wide scope and possible content of the newly created `civil action' in order to avoid the possible injustice of a delay in judgment of a distinctly separate claim to await adjudication of the entire case." FED.R.CIV.P. 54(b) advisory committee's note (1946). The committee warned, however, against the "piecemeal disposition of an action." Id. Citing the "universal policy against piecemeal appeals," the First Circuit has expressed the same concern. In re Northern Transatlantic Carriers Corp., 423 F.2d 139, 141 (1st Cir.1970). The Court declines to issue a Rule 54(b) judgment because it is not convinced that doing so will expedite the final resolution of the multiple controversies between the parties.
The Court DENIES Plaintiffs' Motion for Reconsideration, Certification to the Maine Supreme Judicial Court, or Certification of Appeal for Interlocutory Review of the Severance Pay Claims in Count 9 (ECF No. 97).
SO ORDERED.
