PRISCILLA R. OWEN, Circuit Judge:
Latshaw Drilling Co., LLC (Latshaw) terminated the employment of Johnny L. Meadows, who worked on one of its drilling rigs, and 397 other employees when a decrease in oil prices depressed demand for its services. Meadows filed suit on behalf of himself and others similarly situated,
Latshaw conducts its business by contracting with third parties, known as operators, to drill wells on lands the operators have leased. Once Latshaw forms a contract with an operator, Latshaw "assembles a crew and a [drilling] rig" and moves the drilling rig to the project's location at the operator's expense. Members of a crew work during one of two twelve-hour shifts. The crew "work[s], eat[s], sleep[s], and live[s] at the [drilling] rig" for a fourteen day "hitch," and then a second crew replaces the first crew for the following fourteen days. The first and second crews alternate in this pattern until the project is completed. The crews travel to the drilling rig from their homes, sometimes over great distances, in their own vehicles.
Generally, each shift consists of a driller, a derrickhand, a motorhand, and two floorhands. A rig manager oversees both shifts and "is responsible for all facets of the rig operation, including daily operating costs, profit[s], losses, [and] rig assets including inventory, supplies, safety, and personnel." Daily assignments come from the rig manager and the operator's representative, who oversees the drilling project on the operator's behalf. The operator's goals, the weather, the soil conditions, and the geology of the drilling location dictate how a drilling operation is conducted.
A crew may remain with the same drilling rig once the project has completed, moving with it to a new project's location or performing maintenance on their drilling rig at the "yard" where it is stored or, as the parties refer to it, "stacked." Each drilling rig typically has twenty-two workers assigned to it at a time, although at times, a drilling rig has had as many as twenty-eight workers assigned. A drilling superintendent, working out of his or her vehicle, oversees approximately five drilling rigs for Latshaw, "frequently visit[ing] more than one drilling rig in a day."
However, as Latshaw's Operations Manager averred,
The Operations Manager clarified that by "not uncommon," he means "that it is `known' to occur." He also clarified that "[i]f a rig is stacked in the middle of a hitch, employees can be transferred to a new [drilling] [r]ig if work is available," but, he stated, "[a]t no time does an employee work for more than one [drilling] [r]ig or report to more than one supervisor." Meadows has declared, however, that he has "personally observed [his] co-workers at Latshaw change drilling rig assignments on a regular basis."
Generally, if a drilling rig needs a part, the part is ordered from a third-party vendor and charged to the drilling rig. However, if a third-party vendor cannot provide the part in time, a spare of that part can be obtained from another of Latshaw's drilling rigs. According to Meadows, "equipment was ... regularly shared amongst Latshaw's different drilling rigs."
Latshaw's corporate office is in Tulsa, Oklahoma, and it has three yards, which contain extra equipment and stored drilling rigs, located, respectively, in Stillwater, Oklahoma; Broken Arrow, Oklahoma; and Midland, Texas. "Rig employees are not assigned to, do not report to, and do not work out of the Tulsa [corporate] office." The corporate office, each yard, and each rig are "cost centers."
Preceding this litigation, Latshaw had thirty-nine drilling rigs, which it had used in project locations spread across Texas, New Mexico, Oklahoma, Arkansas, and Kansas. As oil prices began to drop, fewer operators requested Latshaw's services. Latshaw started stacking its drilling rigs — ultimately stacking twenty-nine of its thirty-nine drilling rigs — and, without advanced written notice, began laying off its employees. Over approximately six months, Latshaw laid off 398 employees, including Meadows.
Meadows filed suit on behalf of himself and others similarly situated, claiming that Latshaw violated the WARN Act
Before the court had ruled on class certification, Latshaw moved for summary judgment, asserting that "each Latshaw [drilling] rig, each yard, and the Latshaw Drilling corporate office were separate sites of employment ... that ... may not be treated collectively as one single site of employment under the WARN Act." Because these sites each had less than fifty employees, Latshaw claimed that "neither a `plant closing' nor a `mass layoff' could have occurred." The district court granted Latshaw's motion, concluding that Meadows had failed to raise a genuine dispute of material fact as to whether there had been an employment loss for at least fifty people within the requisite period at a single site of employment. In so doing, the district court addressed what Meadows considers distinct theories of liability that, he argues, Latshaw had not addressed in its summary judgment motion. Meadows appeals.
The WARN Act requires that before an employer with 100 or more full-time employees orders a "plant closing"
Although the WARN Act does not define a "single site of employment," the Department of Labor (DOL) has provided regulatory guidance. The general rule is that "separate facilities are separate sites."
The regulations provide more specific definitions of a "single site of employment." 20 C.F.R. § 639.3(i)(3) states that "[s]eparate buildings or areas which are not directly connected or in immediate proximity may be considered a single site of employment if they are in reasonable geographic proximity, used for the same purpose, and share the same staff and equipment." For example, "an employer who manages a number of warehouses in an area but who regularly shifts or rotates the same employees from one building to another" operates a single site of employment even though the buildings are not connected or immediately proximate.
Meadows asserts that the district court erred in concluding that he had not established a genuine issue of material fact precluding summary judgment as to whether any of Latshaw's drilling rigs together constituted a single site of employment as defined in 20 C.F.R. § 639.3(i)(3). He also asserts that the district court erred in addressing his "plant closing" theory and his alternative theories of a single site of employment that were based on 20 C.F.R. § 639.3(i)(6) and 20 C.F.R. § 639.3(i)(8) because Latshaw, Meadows argues, did not raises those theories in its summary judgment briefing.
Section 639.3(i)(3) allows the aggregation of geographically distinct facilities into a single site of employment for purposes of the WARN Act only if: "1) the separate facilities are in `reasonable geographic proximity' of one another; 2) they are `used for the same purpose'; 3) and they `share the same staff and equipment.'"
In his briefing, Meadows argues that he presented an affidavit in which he stated that "it was common for a drilling superintendent to visit all drilling rigs he managed in a given day," which typically amounted to five drilling rigs, and "that drilling rigs were frequently close enough for [an employee] to retrieve a part from another drilling rig if `they couldn't get a hold of anybody till in the morning.'"
As a preliminary matter, Meadows's briefing mischaracterizes the record.
To the extent that he attempts to group the drilling rigs by the oil basins in which they drill, he has not provided any support for this proposition. Regardless, aggregating an unspecified number of drilling rigs in a basin 250 miles wide by 300 miles long — that is, a basin covering 75,000 square miles — and spread across two states, would be inconsistent with our court's observation that "two plants across town will rarely be considered a single site."
Meadows blames his inability to specify the drilling rigs' locations on Latshaw, stating that Latshaw provided evasive responses to Meadows's interrogatories. He claims that "the district court should have withheld its decision on summary judgment and allowed Meadows to complete discovery on a class basis." The district court's failure to withhold its decision, Meadows maintains, constituted reversible error because it "require[d] Meadows to put on evidence of information which only Latshaw could [have] know[n]... [and] then penalize[d] him for not doing so where Latshaw refused to produce the requested data."
Federal Rule of Civil Procedure 56(d) provides that when facts are unavailable to the nonmovant and the nonmovant "shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition" to the summary judgment motion, a district court may "defer considering the motion or deny it," "allow time to obtain affidavits or declarations or to take discovery," or "issue any other appropriate order."
It is undisputed that Meadows never moved for or requested a continuance for the purpose of obtaining this evidence. Meadows requested two unopposed extensions to the summary judgment briefing deadline, both of which the district court granted, while discovery was still ongoing, yet he never sought the evidence that he now claims he needed. Because Meadows did not file a motion, request a continuance, or state that he needed the evidence he now believes is necessary, the district court properly ruled on the summary judgment motion.
Meadows has not presented any genuine dispute of material fact as to the reasonable geographic proximity requirement of 20 C.F.R. § 639.3(i)(3). It is insufficient to assert that "the evidence [was] likely to be within the possession of [Latshaw]";
Federal Rule of Civil Procedure 56(f)(2) states that "[a]fter giving notice and a reasonable time to respond, the court may ... grant the [summary judgment] motion on grounds not raised by a party." This court has concluded that "[s]ummary judgment is improper if `[t]here was no reason for the [nonmoving party] to suspect that the court was about to rule on the motion.'"
In its summary judgment briefing, Latshaw cited 29 U.S.C. § 2101(a)(2), defining "plant closing," and 29 U.S.C. § 2101(a)(3), defining "mass layoff." It explained that "neither a `plant closing' nor a `mass layoff'
At the least, Latshaw's summary judgment briefing should have put Meadows on notice that he "had to come forward with all of [his] evidence."
Meadows constrained his briefing on appeal to the two issues addressed above — that is, to whether Latshaw's drilling rigs may be aggregated as a single site of employment as defined by 20 C.F.R. § 639.3(i)(3) and whether the district court entered summary judgment on a ground not raised in Latshaw's summary judgment briefing. Meadows has not argued the merits of whether drilling rigs are operational units within a single site of employment within the meaning of 20 C.F.R. § 639.3(b) with respect to his plant closing theory, whether Latshaw's employees are outstationed employees within the meaning of 20 C.F.R. § 639.3(i)(6), or whether Latshaw is a "truly unusual organizational situation[]" within the meaning of 20 C.F.R. § 639.3(i)(8). Instead, he asserts that he "could have presented evidence" to the district court regarding his plant closing theory and outstationed employee construction of the case had he had "notice and opportunity to brief th[ese] alternative theor[ies] of liability" and that "a case of first impression" that involves a large amount of people "losing their jobs further warrants consideration of the truly unusual organizational situation provision." Because he has not presented evidence or briefed the application of these theories on appeal, we do not disturb the district court's judgment that Meadows did not present a genuine dispute of material fact with respect to these conceptions of the case.
For the foregoing reasons, we AFFIRM the judgment of the district court.