MARK E. FULLER, District Judge.
This Rule 23(b)(3) class action brought by former employees of Defendant Macon County Greyhound Park, Inc. ("MCGP"), pursuant to the Worker Adjustment and Retraining Act of 1988 ("WARN"), 29 U.S.C. §§ 2101 et seq., alleges that MCGP — on three separate occasions in 2010 — violated the WARN Act's requirement to give sixty days notice to affected employees prior to a plant closing or mass layoff, as defined in the statute. The class action is now before the Court on Plaintiff's motions to strike affirmative defenses and for partial summary judgment on liability (Docs. # 43, 44) and Defendant's motion for summary judgment (Doc. # 73). After careful consideration of the arguments of counsel and the relevant law, the Court finds that Plaintiff's motion for partial summary judgment on liability is due to be GRANTED and Defendant's motion for summary judgment is due to be DENIED.
Subject matter jurisdiction is exercised pursuant to 28 U.S.C. § 1331 (federal question) and 29 U.S.C. § 2104(a)(5) (WARN Act may be enforced in federal district court). The parties do not contest personal jurisdiction or venue, and there are adequate allegations in support of both.
"Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Greenberg v. BellSouth Telecomms., Inc., 498 F.3d 1258, 1263 (11th Cir.2007) (citation and internal quotation marks omitted); see also Fed.R.Civ.P. 56(a) ("The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.").
"[A] party seeking summary judgment always bears the initial responsibility of
If the movant satisfies its evidentiary burden, the non-moving party must then establish, with evidence beyond the pleadings, that a genuine issue material to each of its claims for relief exists. Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.1991); Fed.R.Civ.P. 56(c). What is material is determined by the substantive law applicable to the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see also Lofton v. Sec'y of the Dep't of Children & Family Servs., 358 F.3d 804, 809 (11th Cir.2004) ("Only factual disputes that are material under the substantive law governing the case will preclude entry of summary judgment."). Furthermore, "[t]he mere existence of some factual dispute will not defeat summary judgment unless that factual dispute is material to an issue affecting the outcome of the case." McCormick v. City of Ft. Lauderdale, 333 F.3d 1234, 1243 (11th Cir.2003) (citation and internal quotation marks omitted).
A genuine dispute as to a material fact can be found only "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S.Ct. 2505; see also Greenberg, 498 F.3d at 1263. However, if the evidence on which the nonmoving party relies "is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 242, 106 S.Ct. 2505 (citations omitted). Likewise, "[a] mere scintilla of evidence in support of the nonmoving party will not suffice to overcome a motion for summary judgment[,]" Young v. City of Palm Bay, 358 F.3d 859, 860 (11th Cir.2004), and the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Furthermore, a nonmoving party's "conclusory allegations ... in the absence of supporting evidence, are insufficient to withstand summary judgment." Holifield v. Reno, 115 F.3d 1555, 1564 n. 6 (11th Cir.1997); see also Cordoba v. Dillard's, Inc., 419 F.3d 1169, 1181 (11th Cir.2005) ("Speculation does not create a genuine issue of fact....") (emphasis in original).
When a nonmovant fails to set forth specific facts supported by appropriate evidence sufficient to establish the existence of an element essential to his case and on which the nonmovant will bear the burden of proof at trial, summary judgment is due to be granted in favor of the moving party. Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548 ("[F]ailure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.").
On the South side of I-85 North (which traverses Alabama mostly from West to East, or latitudinally) sits the mostly
This case is between MCGP and its former employees, and mostly concerns the last year or so of MCGP's existence. The beginning of the end for electronic charity bingo at MCGP can be traced back to December 30, 2008, when then-Governor Bob Riley issued Executive Order No. 44, which created the Governor's Task Force on Illegal Gambling. Seizures of electronic bingo machines at other Alabama establishments offering the game known as electronic charity bingo resulted in litigation, and on November 13, 2009, the Alabama Supreme Court issued a decision in Barber v. Cornerstone Comm'y Outreach, Inc., 42 So.3d 65 (Ala.2009). Construing the term "bingo" in Lowndes County's Local Amendment No. 674 authorizing charity bingo in Lowndes County (which is nearly identical to Macon County's Amendment No. 744), the Supreme Court of Alabama engaged in a comprehensive discussion of the definition of "bingo" and, based upon its arrived at definition, dissolved a lower court's preliminary injunction against the Task Force, reasoning that the gaming operators "failed to introduce substantial evidence from which the trial court reasonably could have concluded that [the respondent gaming operators] had a `reasonable likelihood of success' in proving that the electronic gaming machines seized ... constituted the game of bingo." Id. at 86.
The ramifications of the Alabama Supreme Court's decision in Cornerstone traveled up I-85 well in excess of the posted 70 mile per hour speed limit, and MCGP would soon commence its own litigation in an ultimately futile effort to keep Governor Riley's Task Force at bay.
In the interim, on January 5, 2010, MCGP laid off 68 employees because of planned renovations to the facility's North Gaming Section.
Meanwhile, the Supreme Court of Alabama denied rehearing in the Cornerstone case on January 29, 2010. That very day, John M. Tyson, Jr., the task force commander and special prosecutor for the Governor's Task Force, arrived at MCGP for the purpose of seizing MCGP's bingo machines. Fortunately, it appears that MCGP was prepared for such an event, because it had a complaint ready to be filed that very morning. Macon Cnty. Greyhound Park, Inc. d/b/a VictoryLand v. John M. Tyson, Jr., No. 10cv9 (Cir. Ct. Macon Cnty. Jan. 29, 2010) (Alacourt summary). The litigation effort against the Governor's Task Force started well enough, when the Circuit Court of Macon County entered a temporary restraining order. Tyson v. Macon Cnty. Greyhound
Knowing that a raid was imminent, MCGP closed its doors on February 4, 2010,
On March 5, 2010, several Macon County officials and citizens filed another lawsuit in Macon County Circuit Court alleging, in essence, that the Governor's Task Force either lacked authority to investigate and prosecute crimes in Macon County or that it had displaced the authority vested in Macon County's duly elected officials. Tyson v. Jones, 60 So.3d 831, 837 (Ala.2010) (specifically, a "quo warranto" action). Again, the litigation started well enough for MCGP. On the same day that the complaint was filed, the Macon County Circuit Court entered another temporary restraining order in favor of the Macon County plaintiffs. Id. It appears that MCGP was prepared for good news. The effective time of the order was 12:45 p.m., and MCGP had resumed operations within fifteen minutes. Id. The Macon County Circuit Court turned the temporary restraining order into a preliminary injunction, id. at 840, from which the Task Force defendants appealed to the Alabama Supreme Court. On July 30, 2010, the Alabama Supreme Court returned a unanimous opinion reversing the Macon County Circuit Court, which dissolved the injunction that effectively allowed MCGP continue its operations unmolested by the Governor's Task Force.
On August 9, 2010, only days after the Alabama Supreme Court's negative ruling in Tyson, the Task Force was again preparing to raid MCGP's facilities, and MCGP again shut its doors to electronic bingo for the final time. As with the February closing, it is undisputed and stipulated that MCGP did not provide to its employees any formal letter pertaining to the layoff. (Def.'s Br. in Support 6 ("MCGP notified its employees and customers of the reasons for this closing via internet and other media ... that its electronic bingo operations, including the restaurants and hotels dependant on the operation
This litigation commenced in October 2010, when Plaintiffs filed their Complaint. (Doc. # 1.) The Court certified the case as a Rule 23(b)(3) class action with three sub-classes based upon the dates of termination (January, February, or August 2010), and class notice has been issued. (Docs. # 66, 100.) Plaintiffs seek partial summary judgment on liability under the WARN Act for all three alleged WARN Act incidents, and Defendants seek summary judgment generally, arguing that the January 2010 layoff or plant closing was not a covered WARN Act incident and that the February and August 2010 layoffs or plant closings are subject to the WARN Act's "unforeseeable business circumstances" and/or "good faith" defenses.
In a nutshell, the WARN Act "requires that an employer provide sixty days notice to workers before ordering a [plant closing or] mass layoff." Int'l Union, United Mine Workers v. Jim Walter Res., Inc., 6 F.3d 722, 724 (11th Cir.1993) (citing 29 U.S.C. § 2102(a)). The WARN Act's legislative purpose is to secure for workers ample notice that their employment will be terminated so that they can better prepare themselves for reentry into the job market. The Third Circuit has placed the WARN Act in context and summarized its purpose:
Hotel Emps. Local 54 v. Elsinore Shore Assoc., 173 F.3d 175, 182 (3d Cir.1999).
The Court briefly addresses the elements of Plaintiffs' WARN Act cause of action. A WARN Act claim requires that the plaintiff show that: (1) the closing or layoff was a covered event (i.e., a mass layoff or plant closing, as those terms are defined in the statute); (2) that the defendant was an "employer" as defined in the statute; and (3) that the plaintiffs are "affected employees" as defined in the statute. See Bradley v. Sequoyah Fuels Corp., 847 F.Supp. 863, 867-68 (E.D.Okla. 1994); Allen v. Sybase, Inc., 468 F.3d 642, 654-55 (10th Cir.2006).
First, it is undisputed and the parties have stipulated that MCGP was an "employer" during the relevant time periods as that term is defined in 29 U.S.C. § 2101(a)(1) (business enterprise that employs 100 or more employees, excluding part-time employees).
Second, Plaintiffs must show that the January, February, and August 2010 layoff and closings were covered events. A "plant closing" is defined as:
§ 2101(a)(2).
A "mass layoff" is defined as:
§ 2101(a)(3).
With respect to the January 5, 2010 layoffs, the parties have agreed to the following relevant stipulations. First, the parties have agreed that 68 full time "affected employees" suffered an "employment loss" on January 5, 2010. (Doc. # 106, at 1.) The parties have further stipulated that the number of full time employees at MCGP as of November 6, 2009 (60 days prior, as per 20 C.F.R. § 639.5(a)(2)) was 865 (Doc. # 106, at 2). As a result of these agreed-upon numbers, the parties have also stipulated that the number of layoffs constituted less that 33% of MCGP's full time employees.
Essentially, the parties have agreed that, standing alone, the January 5, 2010 layoff was not a covered event under WARN. MCGP is a "single site of employment," supra n. 2, which prevents Plaintiffs from asserting that the January 5, 2010 layoff was a "plant closing" based upon the temporary shutdown of the North Gaming Section. Since it cannot be a plant closing, the January 2010 layoff is either a "mass layoff" or not a covered event at all. As stated above, for this layoff of 68 full time employees to be considered a "mass layoff" under WARN, the layoff must constitute at least 33 percent of the total number of employees. As of November 6, 2009 (sixty days prior to January 5, 2010), MCGP employed 865 full time employees. Thus, the January 5, 2010 layoff constituted approximately 7.8% of MCGP's full time employees.
Having determined as much, the January 5, 2010 sub-class of Plaintiffs must rest their hopes on being able to aggregate their numbers with the February 4, 2010 plant closing.
With respect to the February 4, 2010 closing, the parties have agreed to the following relevant stipulations. Concerning the number of full time employees who suffered an employment loss, the parties have stipulated that "[m]ore than 50 full time `affected employees' at Defendant MCGP suffered an `employment loss,' as that term is defined in the WARN Act at 29 U.S.C. § 2101(a)(6), at [MCGP] during a 30 day period." (Doc. # 106, at 2.) In fact, the parties have agreed that 249 full
In order to enter partial summary judgment for Plaintiffs on liability as to the February 4, 2010 closings, the Court must be satisfied that there is no genuine issue of material fact that either a "mass layoff" or "plant closing" actually occurred. As an initial matter, the definitions section of WARN makes clear that if an event could be considered both a "mass layoff" or "plant closing," then a "plant closing" occurred. See § 2101(a)(3)(A) (defining a "mass layoff" as a "reduction in force which ... is not the result of a plant closing").
MCGP rests its argument that the February 4, 2010 closing was not a "plant closing" on the fact that MCGP re-opened in less than six months. Acknowledging that no precedent exists in support of its proposition, MCGP argues "[i]t is illogical to claim that the alleged February `plant closing' was the cause of any `employment loss' when in fact the alleged `plant closing' lasted less than 6 months." (Def.'s Br. in Support 17 & n.10.) Essentially, MCGP urges the Court to re-write Congress's definition of "plant closing" so as to include a six-month limitation because of its claimed illogicality if the Court did not do so. MCGP's argument is to be rejected for two reasons.
First, this Court's commission is to interpret the law as passed by Congress, not to attempt to re-write it. The federal judiciary does not stand as a legislative super-committee. Nat. Fed'n of Indep. Bus. v. Sebelius, ___ U.S. ___, 132 S.Ct. 2566, 2576, 183 L.Ed.2d 450 (2012) (Roberts, C.J.) ("[The federal judiciary] does not consider whether [acts of Congress] embody sounds policies. That judgment is entrusted to the Nation's elected leaders."); Eldred v. Ashcroft, 537 U.S. 186, 222, 123 S.Ct. 769, 154 L.Ed.2d 683 (2003) ("The wisdom of Congress' action, however, is not within our province to second-guess."); Pavelic & LeFlore v. Marvel Entm't Grp., Div. of Cadence Indus. Corp., 493 U.S. 120, 126, 110 S.Ct. 456, 107 L.Ed.2d 438 (1989) ("Our task is to apply the text, not to improve upon it."). To the contrary, Congress's intent is found in the words it has chosen to employ in a particular statute. See W.Va. Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 89, 111 S.Ct. 1138, 113 L.Ed.2d 68 (1991) ("The best evidence of [Congress's] purpose is the statutory text adopted by both Houses of Congress and submitted to the President.").
With respect to the WARN Act, Congress specifically stated that a "plant closing" may be either permanent or temporary. § 2101(a)(2). Webster's Third defines "temporary" as "existing or continuing for a limited time." Webster's Third New International Dictionary 2353 (1986). Thus, Congress plainly intended for closings that only last for a limited time to fit within the definition of a "plant closing." The Court sees no reason to read into the statute an arbitrary limitation such as a bright line cut-off point of six months. Washington v. Aircap Indus. Corp., 831 F.Supp. 1292 (D.S.C.1993) ("`WARN is a remedial statute and must be construed broadly.'" (citing and quoting cases)). Furthermore, even if the Court were to read in a minimum time limitation for an event to qualify as a "plant closing," the duration of the shutdown at MCGP was approximately one month, which the Court considers to fit within Congress's intended
Second, WARN provides an outlet for employers who order a plant closing but then quickly re-open and re-hire most of their employees. A "plant closing" requires at least 50 full time employees to suffer an "employment loss" at the single site of employment. As stated above, a layoff of less than or equal to 6 months does not constitute an "employment loss." § 2101(a)(6). Thus, for example, if an employer orders a shutdown and then re-opens two weeks thereafter and re-hires all but thirty of its employees, no "plant closing" has occurred because there was not the requisite employment loss. See 20 C.F.R. § 639.3(b) ("A `temporary shutdown' triggers the notice requirement [for a plant closing] only if there are a sufficient number of terminations, layoffs exceeding 6 months, or reductions in hours of work as specified under the definition of `employment loss.'").
Having rejected MCGP's proposed construction of "temporary shutdown," the Court concludes that the parties have essentially stipulated to a February 4, 2010 "plant closing" and WARN Act violation. MCGP is an employer; there was a "temporary shutdown" at MCGP on February 4, 2010; as a result thereof, 249 full time employees were "affected employees" and suffered an employment loss; and MCGP "never mailed or personally served an individual written WARN Act notice to any `afffected employee' before, at the time of, or after any `affected employee' suffered an `employment loss' at Defendant MCGP on February 4, 2010." (Doc. # 106, at 3.)
As concluded above, by itself, the January 5, 2010 layoff does not meet the WARN Act's definition of either a "mass layoff" or "plant closing." On the other hand, the February 4, 2010 temporary shutdown constituted a "plant closing" within the meaning of WARN. Since the February 4, 2010 shutdown was a "plant closing," WARN provides that any full time employees who suffered an "employment loss" "during any 30-day period" are entitled to count themselves as "affected employees" of the "plant closing." § 2101(a)(2) (emphasis added).
Although Plaintiffs had initially argued that the February closing occurred on February 2, 2010, they now have stipulated that it occurred on February 4, 2010. (Doc. # 106, at 2.) It just so happens that, if one counts dates exclusively, exactly thirty days elapsed (counting backwards from the day before the date of the "plant closing") between February 3, 2010 and January 5, 2010. However, if one counts inclusively, then thirty-one days elapsed. Thus, the Court must determine which of these two methods of date-counting the statute contemplates.
The Court begins with Federal Rule of Civil Procedure 6, which states that it "appl[ies] in computing any time period specified ... in any statute that does not specify a method of computing time." Fed.R.Civ.P. 6(a) (emphasis added). The Eleventh Circuit endorses a "general policy of finding a legislative intent to apply Rule 6(a) to all federal statutes enacted or amended subsequent to Rule 6(a)'s promulgation." Maahs v. United States, 840 F.2d 863, 867 (11th Cir.1988); see also Lee v. United States, 977 F.2d 551, 552 (11th Cir.1992). For computing a period stated in days, Rule 6 opts for the exclusive method of date-counting:
Fed R. Civ. P. 6(a)(1)(A)-(C) (emphasis added). Thus, if one employs the exclusive method of date-counting put forth in the Federal Rules of Civil Procedure, exactly thirty days elapsed between Wednesday, February 3, 2010 (excluding the "triggering date" of February 4, as per Fed. R.Civ.P. 6(a)(1)(A)) and Wednesday, January 5, 2010. In such case, the January 2010 layoffs may be aggregated with the February "plant closing."
The question then becomes whether WARN "specif[ies] a method of computing time" for its thirty-day period that would displace the exclusive method of Rule 6. Although it is a close question, the Court finds that the statute does not sufficiently elaborate a specific method of computing time so as to effectuate an ouster of Rule 6's exclusive method. MCGP hangs its hat on Congress's use of the word "during." Webster's Third defines "during" as "at some point in the course of." Webster's Third New International Dictionary 703 (1986). A "course," in turn, is "the act or action of moving in a particular path from point to point."
Furthermore, the Advisory Committee Notes regarding the 2009 Amendments to Rule 6 state that "[s]ubdivision (a) does not apply when computing a time period set by a statute if the statute specifies a method of computing time. See, e.g., 2 U.S.C. § 394 (specifying method for computing time periods prescribed by certain statutory provisions relating to contested elections to the House of Representatives)." Thus, 2 U.S.C. § 394 stands as an example of what a statute substantively
In light of the non-specificity of § 2102, the Court reverts to the "general policy" of applying Rule 6(a)'s method of computing time and defers to its exclusive method of date counting. Accordingly, the Court finds that the January 5, 2010 layoffs may be aggregated with the February 4, 2010 plant closing.
Finally, with respect to the August 9, 2010 closing, the parties have stipulated that a "`plant closing' and/or `mass layoff' occurred at Defendant MCGP as those terms are defined under the WARN Act at 29 U.S.C. § 2102(a)(2)." (Doc. # 106, at 3.) The parties further stipulate that "Defendant MCGP never mailed or personally served an individual written WARN Act notice to any `affected employee' before, at the time of, or after any `affected employee' suffered an `employment loss' at Defendant MCGP on August 9, 2010." (Doc. # 106, at 3.) Thus, the parties have effectively stipulated that a "plant closing" occurred on August 9, 2010, and that there was a WARN Act violation.
MCGP asserts two statutory defenses as a basis for either elimination or reduction of its liability. The Court addresses and rejects both defenses in turn.
In imposing the sixty day notice requirement, Congress remained sensitive to the fact that there might exist scenarios where providing such advanced notice is impossible or impracticable. Section 2102(b) is entitled "Reduction of notification period[,]" and provides employers with several enumerated defenses. One of these defenses is commonly referred to as the "unforeseeable business circumstances" defense: "An employer may order a plant closing or mass layoff before the conclusion of the 60-day period if the closing or mass layoff is caused by business circumstances that were not reasonably foreseeable as of the time that notice would have been required." § 2102(b)(2)(A).
Before turning to the merits of such a defense (a fact issue typically reserved for a jury, see, e.g., Pena v. Am. Meat Packing Corp., 362 F.3d 418 (7th Cir.2004)), a court must satisfy itself that the defendant employer can properly avail itself of the defense. WARN imposes two requirements (both found in § 2102(b)(3)) of employers who seek the shelter of the "unforeseeable business circumstances" defense: "An employer relying on this subsection shall give as much notice as is practicable and at that time shall give a brief statement of the basis for reducing the notification period." § 2102(b)(3). Federal courts have interpreted § 2102(b)(3) as imposing a condition precedent to reliance on the "unforeseeable business circumstances" defense. See, e.g., Alarcon v. Keller Indus., Inc., 27 F.3d 386, 388-89 (9th Cir.1994) ("When the notice period is shortened pursuant to [the `unforeseeable business circumstances' exception], the employer must give as much notice as is practicable, and `at the time notice actually is given, [the employer must] provide a brief statement of the reason for reducing the notice period, in addition to the other elements [of proper notice] set out in [20 C.F.R.] § 639.7.'" (quoting 20 C.F.R. § 639.9) (emphasis added));
Therefore, prior to addressing the merits of MCGP's unforeseeable business circumstances defenses as to the aggregated January and February 2010 and August 2010 closings, the Court must satisfy itself that MCGP both (1) "[gave] as much notice as [was] practicable[,]" and (2) "at that time ... [gave] a brief statement of the basis for reducing the notification period." § 2102(b)(3). The Court readily concludes that MCGP did not comply with § 2102(b)(3) and, therefore, may not rely on any of the defenses listed in § 2102(b), including the unforeseeable business circumstances defense.
It may be argued that WARN contemplates and makes room for a scenario where the giving of § 2102(b)(3) notice can be excused altogether and the employer can nevertheless rely on one of the defenses listed in § 2102(b)(1)-(2). The Court does not read the statute in this fashion. The availability of an impossibility of notice argument hinges on the meaning of "as much notice as is practicable[,]" as that phrase is employed in § 2102(b)(3). The phrase can be interpreted in one of two ways. First, it could mean something similar to "as advanced notice as is practicable." Under this construction, the adjective "much" refers to the timing of the notice. Second, "much" could refer to the substantiveness of the notice. Under such a reading, "as much notice as is practicable" could arguably contemplate no notice at all.
For several reasons, the Court reaches the conclusion that the first reading is the one that Congress intended. As an initial matter, in a setting such as the WARN Act — a statute concerned almost exclusively with time intervals — the first reading ("as advanced notice as is practicable") is a more natural reading in this context. Furthermore, this reading is reinforced by the words immediately following: "shall give as much notice as is practicable and at that time ...." § 2102(b)(3) (emphasis added). Congress's "at that time" language refers back to the "as much notice as is practicable" phrase, and demonstrably indicates that Congress's concern in that clause was timing, not substance.
In addition, § 2102(b)(3) imposes two requirements, the second of which concerns the substantiveness of the notice: "and ... shall give a brief statement of the basis for reducing the notification period." Id. To read the first portion of this conjunctive statutory subsection substantively would
As to the contradiction inherent in such a reading, the statute would arguably make room for no notice at all, while at the same time requiring a brief statement for reducing the notification period. How could an employer comply with the brief statement requirement when it is not required to give notice at all?
Moreover, the regulations lend themselves to a temporal reading of "as much notice as practicable." 20 C.F.R. § 639.9, discussing the relevant clause of § 2102(b)(3), states: "If [the unforeseeable business circumstances defense] is applicable, the employer must give as much notice as is practicable ... and this may, in some circumstances, be notice after the fact." Id. This regulation is instructive because it reveals that the Department of Labor interprets the "as much notice as is practicable" language as imposing a time, and not a substance, requirement on employers regarding the § 2102(b)(3) notice. See also 29 U.S.C. § 2107 (delegating to the Department of Labor the power to "prescribe such regulations as may be necessary to carry out [WARN]"). "[A]s required by Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), [this Court] accords significant weight to the statutory interpretation of the executive agency charged with implementing the statute being construed, particularly where, as here, that interpretation is incorporated in a formally published regulation." Martinez-Mendoza v. Champion Intern. Corp., 340 F.3d 1200, 1208 n. 25 (11th Cir.2003) (citing Caro-Galvan v. Curtis Richardson, Inc., 993 F.2d 1500, 1507 (11th Cir.1993)); see also Hotel Emps. & Rest. Emps. Int'l Union Local 54 v. Elsinore Shore Assocs., 173 F.3d 175, 183 (3d Cir.1999) (stating that Department of Labor regulations published pursuant to authority under WARN Act are subject to Chevron deference).
Finally, the case law, as far as this Court is able to discern, is unanimous in its support of the view that § 2102(b)(3) imposes a firm requirement of notice prior to being able to rely on one of the defenses listed in § 2102(b)(1)-(2). As discussed above, the cases that are directly on point view § 2102(b)(3) as setting a condition precedent. Even the appellate cases concerning the unforeseeable business circumstances that do not directly tackle § 2102(b)(3) are instructive to a degree. For example, in Pena v. American Meat Packing Corporation, the Seventh Circuit considered the merits of the unforeseeable business circumstances defense. 362 F.3d 418 (7th Cir.2004). In that case, prior to reaching the merits of the defense, the court obligatorily stated that WARN "notice was sent to [the] employees...." Id. at 420. The content of that notice will be discussed below. The Third Circuit also noted that a notice was given in the Elsinore case. 173 F.3d at 178.
Accordingly, the case law, the regulations, and the unambiguous statutory language in § 2102(b)(3) support the Court's conclusion that § 2102(b)(3) imposes a condition precedent: an employer who seeks to reduce or eliminate the 60 day notice period pursuant to the unforeseeable circumstances defense must issue a notice pursuant to and that complies with § 2102(b)(3). This is an affirmative requirement that cannot be excused.
As to the actual "giving" of notice, it is undisputed that no formal notice was
Thus, the benchmark for proper notice is the level of certainty regarding the employees' actual receipt of it. In understanding what this means, the regulation concerning delivery of notice continues by listing some examples of proper or improper notice. Proper notice includes first class mail, personal delivery with optional signed receipt, or potentially, insertion of the notice directly into the affected employees' pay envelopes. Id. One example of improper notice is a preprinted notice regularly included in each employee's pay check or pay envelope. Id.
Applying these principles to MCGP's arguments, it is abundantly clear, as an initial matter, that assumptions of the employees' knowledge of the circumstances does not displace WARN's notice requirement.
Furthermore, even if the Court did conclude that MCGP's displays on billboards and internet sites constituted notice, that notice would be wholly inadequate as failing to provide a "brief statement of the basis for reducing the notification period." § 2102(b)(3). In Alarcon, the Ninth Circuit "conclude[d] that Congress' purpose in requiring a brief statement must have been to provide employees with information that would assist them in determining whether the notice period was properly shortened." 27 F.3d at 389. The Southern District of New York provided an additional employer-oriented rationale: to "focus[ ] employers on the statutory conditions that must be met to reduce the notice period by prohibiting employers from relying on a vague justification for giving shortened notice." Grimmer, 937 F.Supp. at 257. To those two persuasive rationales, this Court adds one more: to prohibit employers who have failed to provide the requisite 60-day notice from asserting litigation-convenient but factually post hoc justifications for their actions.
Thus, having assumed that MCGP's press releases/billboards constitute a "notice" within the meaning of WARN, the Court turns to the content of those messages. One such document pertaining to the August 2010 closing is entitled "VictoryLand Schedule" and is attached to Dr. Benefield's affidavit. After listing MCGP's scheduled hours, the document enters into what can be classically described as a rant:
(Benefield Aff., Ex. A.)
A second "notice" appears to be two screen shots of internet pages, which contain VictoryLand's and/or Quincy's 777's logo. The e-poster thanks VictoryLand's employees for their support and states in large letters that VictoryLand is "temporarily closed due to Bob Riley's attempt to destroy VictoryLand." (Benefield Aff., Ex. A.) The "notice" urges the employees to contact their legislator and ends with this exclamatory phrase: "Let the people vote!" (Id.) Again, there is no reference to the WARN Act; no reference to the "unforeseeable business circumstances" defense; and scant facts to support such a defense. Furthermore, there is no date on the notice, and no way for the Court to tell when it was issued and to which plant closing it might apply.
A third "notice" is an unsigned and unattributed memorandum titled "News Release" and was issued on February 5, 2010. The body of the statement reads in full:
(Benefield Aff., Ex. A.)
As stated above, the document is unsigned and there is no way the Court can attribute it to MCGP. It is beyond argument that MCGP cannot ride the coattails of another entity's document to satisfy its notice requirements under WARN. Furthermore, like the two previous "notices," there is no reference to the WARN Act; no reference to the "unforeseeable business circumstances" defense; and scant facts in support of such a defense.
In toto, these documents suggest that MCGP was more concerned with its public relations campaign than with apprising its employees of their legal rights. None of these three items, individually or collectively, come anywhere close to satisfying MCGP's obligation to give notice prior to relying on one of the defenses in § 2102. Therefore, assuming that these documents do qualify as a "notice," they do not substantively convey enough information "of the basis for reducing the notification period"
Pena v. Am. Meat Packing Corp., 258 F.Supp.2d 864, 870 (N.D.Ill.2003). The notice in Pena stated both the statute and the defense, and provided a brief statement as to the basis for the reduction in the notification period. This Court is reasonably confident that such a notice, if challenged, would have been found sufficient under § 2102(b)(3). Contrasting the (likely) § 2102(b)(3) compliant notice in Pena to the "notices" in this case is illustrative of just how deficient MCGP's messages are in complying with § 2102(b)(3)'s "brief statement" requirement.
To summarize, MCGP provided no notice to be able to avail itself of the unforeseeable business circumstances defense, as is required under § 2102(b)(3). Furthermore, even if MCGP's submitted documents can be called notices, they are inadequate under § 2102(b)(3)'s brief statement requirement as a matter of law. Thus, Plaintiffs are entitled to summary judgment on MCGP's "unforeseeable business circumstances" defense as it pertains to the February and August 2010 closings.
Section 2104(a)(4) provides that the Court may reduce a WARN Act defendant's liability in certain circumstances:
29 U.S.C. § 2104(a)(4).
"The `good faith' defense requires proof of the employer's subjective
MCGP has failed to meet its summary judgment burden with respect to the good faith defense. First, MCGP has submitted no temporally relevant evidence of its subjective intent to comply with the WARN Act.
Moreover, MCGP has failed to demonstrate that it satisfies the objective component of the good faith defense. Assuming that MCGP had a subjective intent to comply with the Act, its complete failure to provide any kind of notice before, at the time of, or after the February or August 2010 plant closings, even when it became obvious that notice would be required,
The Court, in its discretion, will decline to grant MCGP's summary judgment motion as it relates to the "good faith" defense. However, MCGP may re-argue the defense, along with any additional evidence it may have, as the case progresses on damages.
As an initial matter, Plaintiffs' motion to strike MCGP's affirmative defenses (Doc. # 43) is partially mooted. Second, despite the fact that judges enjoy discretion to strike pleadings pursuant to Rule 12(f), "striking a party's pleading ... is an extreme and disfavored measure." See BJC Health Sys. v. Columbia Cas. Co., 478 F.3d 908, 917 (8th Cir.2007); Kaiser Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1057 (5th Cir.1982) (stating that "motions to strike a defense are generally disfavored"); see also 5C C. Wright & A. Miller, Federal Practice and Procedure 3d § 1380 (2004) (stating that "motions under Rule 12(f) are viewed with disfavor by the federal courts and are infrequently granted"). Third, this Court has joined the growing minority of courts to have held that the plausibility pleading standards of Twombly/Iqbal do
Plaintiffs' motion to strike a portion of MCGP's summary judgment brief (Doc. # 84) is also mooted by the stipulations entered into between the parties (Doc. # 106) and by MCGP's withdrawal of the offending employee roster.
In arriving at the disposition outlined above and ordered below, the Court is mindful that this case involves "controlling question[s] of law as to which there is substantial ground for difference of opinion." 28 U.S.C. § 1292(b). Moreover, despite the disposition of the liability phase of this case, resolving WARN Act damages will involve significant expenditures of time and labor on the part of the parties and the Court. In fact, yet to be decided upon is the procedure to be used for this monumental task. Given the posture of this case and the questions involved, an interlocutory appeal would "materially advance the ultimate termination of the litigation." Id. Accordingly, the Court certifies this case as appropriate for interlocutory appeal pursuant to 28 U.S.C. § 1292(b). Although the Court will not stay further proceedings at this juncture, it will entertain any such motion if an interlocutory appeal is both pursued and taken up by the Eleventh Circuit.
Accordingly, it is ORDERED:
