Mitchell v. Murray Energy Corporation et alMOTION to Amend/Correct 1 ComplaintS.D. Ill.June 13, 2018 1 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS JETSON MITCHELL, individually and on behalf ) of all others similarly situated, ) ) Plaintiff, ) ) Case No.: 17-cv-444 v. ) ) MURRAY ENERGY CORPORATION and ) JURY TRIAL DEMANDED THE AMERICAN COAL COMPANY, INC. ) ) ) Defendants. ) MOTION FOR LEAVE TO AMEND PLAINTIFF’S CLASS ACTION COMPLAINT Plaintiff Jetson Mitchell (“Mitchell”) and Sherman Rider (“Rider”), for their Motion to For Leave To Amend Plaintiff Mitchell’s Class Action Complaint, state as follows: INTRODUCTION On April 28, 2017, Mitchell filed this action alleging that Defendants The American Coal Company (“TACC”) and Murray Energy Corporation (“Murray”) violated § 2102(a) of the WARN Act (the “Act”) in failing to provide advance written notice in connection with Defendants’ “mass layoff” of Mitchell and more than 100 other workers at the Galatia Mining Complex (“Galatia”) on April 22, 2017. See Doc. 1. On March 22, 2018, in response to Plaintiffs’ September 15, 2017 discovery requests, Defendants produced, for the first time, internal documents demonstrating that Defendants’ violation of the advance written notice provisions of § 2102(a) of the WARN Act (the “Act”) Case 3:17-cv-00444-NJR-RJD Document 41 Filed 06/13/18 Page 1 of 18 Page ID #226 2 arose out of Defendants’ “plant closing” of the Galatia Mining Complex (“Galatia”), rather than a “mass layoff.”1 These documents include, inter alia: a memorandum from Jamia Rasmussen, a Human Resources Coordinator at Galatia, to Robert Murray, advising that, in April 2017, she was told that Galatia’s New Future Mine “was closing.” See Ex. 3 to Proposed First Amended Complaint (“FAC”).2 an April 22, 2017 email between Cindy Biggs, TACC’s Human Resources Manager, and Paul Piccollini, Murray’s Vice President of Human Resources, stating that, Defendants would, later that day, terminate 122 workers at Galatia without notice (including Mitchell) and, two days later, notify the remaining Galatia workers that they would be permanently laid off beginning in July 2017. FAC, Ex. 4. Biggs’ April 26, 2017 “Open Position Report” stating Defendants’ intent to close the New Future Mine: “We don’t have any open positions to report this week after recent layoff and plans to close New Future Mine.” FAC, Ex. 6 (emphasis added). a July 17, 2017 email from Roy Heidelbach, Murray’s Assistant VP for Operations, to Matt Efaw, Galatia’s General Superintendent, expressing concern about “the warn act notice date” and requesting the date on which mine recovery (equipment removal) at Galatia would be complete. FAC, Ex. 8. Efaw’s email response to Heidelbach, ten minutes later, that recovery at the New Future Mine would conclude by early October, and that work at the Preparation Plant would conclude by late September or early October. FAC, Ex. 8. Efaw’s July 22 and 24, 2017 draft e-mails to Robert Murray, stating: [W]e will take the operation from the current 221, to 100 by August 20th. By getting the operation to 100 or less employees, we are not required to provide any additional Warn notices. 1 The WARN Act requires 60 days advance written notice in the event of either a “plant closing” or a “mass layoff.” See 29 U.S.C. § 2102(a). 2 In accordance with this Court’s local rules, the FAC and its exhibits have not been filed as an Exhibit to this Motion but will be submitted to the Court concurrent with the filing of this Motion. Citations to the exhibits to the FAC are formatted in this Motion as “FAC, Ex. __”. Citations to the exhibits to this Motion are simply formatted as “Ex. __.” Case 3:17-cv-00444-NJR-RJD Document 41 Filed 06/13/18 Page 2 of 18 Page ID #227 3 FAC, Ex. 11 (emphasis added). Based on this and other recently acquired evidence, Plaintiff Mitchell seeks leave to amend his claim under § 2102(a) of the Act to allege Defendants’ failure to provide 60 days advance written notice of Defendants’ “plant closing” at Galatia. In addition, Sherman Rider, another former Galatia worker, requests leave to join the proposed FAC on behalf of himself and others similarly situated, to assert a claim for Defendants’ failure to provide supplemental notice of Defendants’ postponement of the plant closing in August 2017, in violation of the Act and 20 C.F.R. § 639.10.3 Rider’s proposed joinder in this action promotes the efficient resolution of all Act claims arising out of Defendants’ 2017 closing of Galatia. The FAC is supported by documents only recently produced by Defendants and will cause neither undue delay nor undue prejudice to Defendants. On May 25, 2018, Plaintiffs’ counsel provided a copy of the proposed FAC to Defendants’ counsel. On June 11, 2018, Defendants’ counsel advised that Defendants do not consent to the filing of the proposed FAC. In accordance with Local Rule 15.1, Plaintiff is submitting to the Court a copy of the proposed FAC and the exhibits thereto concurrent with this Motion. STATEMENT OF FACTS 1. Defendants TACC and Murray operated a coal mining complex in Galatia, Illinois (“Galatia”) that ceased production in the fall of 2017. Ex. 1, TACC’s Resps. to Interrog. No. 5. 2. Before its closing, Galatia housed two coal mines: the New Future Mine and the New Era Mine. Ex. 1, TACC’s Resps. to Interrog. No. 5. In addition, Galatia housed 3 As set forth in the Statement of Facts below, Defendants terminated Rider’s employment on October 3, 2017, without notice, after twice postponing the Galatia closing. Case 3:17-cv-00444-NJR-RJD Document 41 Filed 06/13/18 Page 3 of 18 Page ID #228 4 administrative offices, two warehouses, and a preparation plant where coal from the mines was prepared for sale. Id. 3. On April 22, 2017, Defendants laid off or terminated more than one-hundred workers at Galatia, including Plaintiff Mitchell, without providing advance written notice to these workers. 4. On April 28, 2018, Plaintiff Mitchell filed a Complaint in this Court (the “Complaint”) alleging that Defendants’ April 22, 2017 layoffs violated the advance written notice provisions set forth in the Act. See Doc. 1, Pl.’s Compl. 5. On May 1, 2017, Defendants’ counsel sent a letter to Plaintiff’s counsel threatening sanctions if Plaintiff did not dismiss his Complaint, stating that Defendants had “laid off” 32% of the workforce at Galatia on April 22, 2017, less than the 33% required under the Act. Doc. 26-1. 6. On May 24, 2017, Plaintiff’s counsel responded by requesting that Defendants provide specific verified information to substantiate their claim that only 32% of Galatia workers had been “laid off” without proper notice. Doc. 26-2. 7. On June 27, 2017, Defendants’ counsel sent Plaintiff’s counsel an unverified revised assessment of the percentage of Galatia workers who suffered an employment loss on April 22, 2017 and, again, threatened sanctions if Plaintiff did not dismiss his Complaint. Doc. 26-3. 8. On June 28, 2017, Defendants filed a Motion for Summary Judgment (the “MSJ”) arguing: (A) Galatia must be treated as a “single site of employment” under the Act; and (B) a “mass layoff” had not occurred on April 22, 2017 because less than 33% of Galatia workers had suffered an “employment loss.” Doc. 14, pp. 9-13. Case 3:17-cv-00444-NJR-RJD Document 41 Filed 06/13/18 Page 4 of 18 Page ID #229 5 9. On July 31, 2017, Plaintiff filed a Response in Opposition to Defendants’ MSJ. Doc. 18. 10. On August 3, 2017, this Court entered its Scheduling and Discovery Order setting a discovery cutoff of November 6, 2018. Docs. 20, 20-1, p. 3. 11. On August 18, 2017, Defendants withdrew their Motion for Summary Judgment, conceding that their own numbers “lacked precision and need refine[ment].” Doc. 23, p. 1. 12. On September 15, 2017, Plaintiff served Interrogatories and Requests for Production on Defendants. Ex. 2., Pl.’s Discovery Requests. 13. Between September 23, 2017, and October 3, 2017, Defendants terminated approximately 40 workers at Galatia, including Rider, without the advance supplemental notice required under the Act. See FAC, ¶¶ 64-66. 14. On October 11, 2017, Defendants requested an additional 30 days to respond to Plaintiff’s discovery. Plaintiff agreed to the 30-day extension. 15. On November 20, 2017, Defendants partially responded to Plaintiff’s discovery responses by providing the following information and responses: a. Following the April 22, 2017 layoffs, on April 24, 2017, Defendants notified remaining Galatia workers that permanent layoffs would begin July 21, 2017; FAC, Ex. 5. b. On June 20, 2017, Defendants announced the postponement of the July permanent layoffs to August 6, 2017, due to “unanticipated delays in completing the mining of the last longwall panel.” FAC, Ex. 7. c. Production at Galatia ceased in the fall of 2017. Ex. 1, TACC’s Resps. to Interrog. No. 5. Case 3:17-cv-00444-NJR-RJD Document 41 Filed 06/13/18 Page 5 of 18 Page ID #230 6 d. Defendants were unable to provide information regarding the status under the WARN Act of some Galatia workers associated with “independent contractors.” Ex. 1 TACC’s Resp. to Interrog. 6; e. Defendants were undertaking a privilege review of “voluminous documents” and would provide responsive, non-privileged documents upon completion of their review. Ex. 3, TACC’s Resp. to RFPs 7, 8, 12, 13. 16. On January 16 and February 2, 2018, Defendants produced documents relating to the calculation of the percentage of Galatia workers who suffered an “employment loss” on or around April 22, 2017. 17. On March 22, 2018, Defendants produced, for the first time, internal communications relating to their decision to close the Galatia plant and whether to provide workers notice of the closing and, later, postponement of the closing. These documents revealed the following facts: a. In April of 2017, Defendants advised Jamia Rasmussen, a human resources employee, that the New Future Mine was closing. FAC, Ex. 3. b. On April 22, 2017, Cindy Biggs, TACC’s Human Resources Manager, emailed Paul Piccollini, Murray’s Vice President of Human Resources, stating: “Paul/Patsy: I attached the list of the 122 that will be laid off today and then the other list are the remaining ones that you are sending WARN notices.” FAC, Ex. 4. c. On April 26, 2017, Biggs issued an “Open Position Report” stating Defendants’ intent to close the New Future Mine: “We don’t have any open Case 3:17-cv-00444-NJR-RJD Document 41 Filed 06/13/18 Page 6 of 18 Page ID #231 7 positions to report this week after recent layoff and plans to close New Future Mine.” FAC, Ex. 6 (emphasis added). d. On July 17, 2017, Roy Heidelbach, Murray’s Assistant VP for Operations, wrote to Matt Efaw expressing concern about “the warn act notice date” and requesting the date on which mine recovery (equipment removal) at Galatia would be complete. Ten minutes later, Efaw wrote back that recovery at the New Future Mine would conclude by early October, and that work at the Preparation Plant would conclude by late September or early October. FAC, Ex. 8. e. On July 22 and 24, 2017, Matt Efaw, Galatia’s General Superintendent, circulated drafts of an e-mail that he planned to send to Robert Murray, setting forth Defendants’ plan to reduce the number of workers at Galatia to 100 or less by August 20, 2017: In this summary, we will take the operation from the current 221, to 100 by August 20th. By getting the operation to 100 or less employees, we are not required to provide any additional Warn notices. FAC, Ex. 11 (emphasis added). 18. In light of the documents recently obtained from Defendants: (A) Plaintiff Mitchell seeks leave to amend his claim to allege Defendants’ violation of § 2102(a) of the WARN Act in failing to provide 60 days advance written notice of Defendants’ “plant closing” at Galatia, rather than “mass layoff”; and (B) Rider seeks leave to join the Complaint to assert a claim on behalf of himself and all others similarly situated that Defendants’ failure to provide timely and adequate notice of the postponement of the Galatia closing constitutes a violation of the WARN Act and 20 C.F.R. § 639.10. Case 3:17-cv-00444-NJR-RJD Document 41 Filed 06/13/18 Page 7 of 18 Page ID #232 8 ARGUMENT I. THE LEGAL STANDARD FOR AMENDMENTS OF PLEADINGS A party may amend its pleading with the court’s leave, and the court should freely give leave when justice so requires. Fed. R. Civ. P. 15(a)(2). The United States Supreme Court has ruled that “[i]n the absence of . . . undue delay, bad faith, or dilatory motive . . . undue prejudice . . . futility of amendment, etc. – the leave sought should be ‘freely given.’” Foman v. Davis, 371 U.S. 178, 182 (1962). See also Sides v. City of Champaign, 496 F.3d 820, 825 (7th Cir. 2007) (“Courts are to use their discretion under Rule 15(a) to liberally grant permission to amend pleadings so long as there is not undue prejudice” or undue delay to opposing party or bad faith or dilatory motive by the movant.). Here, after review of documents recently produced by Defendants, Plaintiff seeks, in good faith, to amend his claim that Defendants’ failure to provide 60 days advance written notice required under § 2102(a) of the Warn Act arose out of a “plant closing” rather than a “mass layoff”, as originally alleged. Plaintiff’s proposed amendment is not untimely, in bad faith or dilatory, and will cause neither undue delay nor prejudice to Defendants. In accordance with factors enumerated by the Supreme Court in Foman, and the Seventh Circuit in Sides, this Court should grant Plaintiff leave to amend his Complaint. II. THIS COURT SHOULD GRANT PLAINTIFF LEAVE TO AMEND HIS COMPLAINT UNDER § 2102(A) OF THE ACT TO ALLEGE DEFENDANTS’ FAILURE TO PROVIDE 60 DAYS ADVANCE WRITTEN NOTICE OF THE GALATIA “PLANT CLOSING.” The WARN Act requires employers4 to provide 60-days’ advance written notice to all “affected employees” before carrying out either (1) a “plant closing” or (2) a “mass layoff.” See 4 The Act defines “employer” as “any business enterprise that employs --- (A) 100 or more employees, excluding part-time employees; or 100 or more employees who in the aggregate Case 3:17-cv-00444-NJR-RJD Document 41 Filed 06/13/18 Page 8 of 18 Page ID #233 9 29 U.S.C. § 2102(a)(1). An “affected employee” is an employee who may reasonably expect to experience an employment loss5 due to a proposed plant closing or mass layoff by their employer. 29 U.S.C. § 2101(a)(5). A “plant closing” occurs whenever the “permanent or temporary shutdown of a single site of employment, or one or more facilities or operating units within a single site of employment . . . results in an in an employment loss at the single site of employment during any 30-day period for 50 or more employees, excluding any part-time employees.” 29 U.S.C. § 2101(2). The Department of Labor’s (“DOL”) binding regulations explain that an “effective cessation of production or the work performed by a unit” is a shutdown, “even if a few employees remain.” 20 C.F.R. § 639.3(b). Furthermore, “when layoffs are made in stages before a plant shutdown, each group of employees laid off as a consequence of the closing is entitled to a full 60 days’ notice of the employees’ layoff.” UMW v. Martinka Coal Co., 202 F.3d 717, 722 (4th Cir. 2000): While the definition of “plant closing” includes a floating 30-day period for determining whether 50 employees are involved, see § 2101(a)(2), once an employer determines that its planned shutdown implicates the employment of 50 or more employees, the floating 30-day element of the definition becomes irrelevant. But to be entitled to 60 days’ notice of their employment termination, the employees must still demonstrate a causal link between the plant closing and their loss of employment. Indeed, the statutory structure fortifies our conclusion that the requirement of a causal link in § 2102(a) is wholly separate from the 30-day definitional requirement for a “plant closing” in § 2101(a)(2). work at least 4,000 hours per week (exclusive of hours of overtime).” 29 U.S.C. § 2101(a)(1)(A)-(B). 5 The Act defines “employment loss” to include a termination, layoff exceeding 6 months, or reduction in hours for 6 consecutive months. Id. § 2101(a)(6). Case 3:17-cv-00444-NJR-RJD Document 41 Filed 06/13/18 Page 9 of 18 Page ID #234 10 Id. at 723 (emphasis added). See also Oil, Chemical & Atomic Workers Int’l Union v. American Home Prods. Corp., 790 F. Supp. 1441, 1445 (N.D. Ind. 1992) (explaining that employee need not establish that layoff occurred within 30 days of plant shutdown to be entitled to notice under Act and that issue is simply whether layoff was part of plant closing). Here, Defendants’ internal communications, produced March 22, 2018, reveal that Defendants’ April 22, 2017 termination of Plaintiff and more than 100 other Galatia workers, without advance written notice, was simply the initial stage in Defendants’ decision to close Galatia, which occurred from April through October 2017. See Statement of Facts (“SOF”), ¶ 15, 17. Plaintiff’s proposed amendment arises out of Defendants’ failure to provide workers advance written notice of Defendants’ closure of Galatia, as required under § 2102(a) of the Act. When Plaintiff filed his Complaint back on April 28, 2017, neither Plaintiff nor his counsel were in possession of this information and, in fact, Galatia was, at that time, not closed. Now, having obtained Defendants’ documents regarding Defendants’ closing of Galatia through discovery, Plaintiff’s “plant closing” claim is both ripe and supported by evidence.6 Because Plaintiff’s plant closing claim focuses entirely on the conduct of Defendants, Plaintiff’s proposed amendment will have no prejudicial impact on Defendants’ ability to prepare a defense. Moreover, Plaintiff did not learn of Defendants’ closure of Galatia until receiving Defendants’ responses to Plaintiff’s initial discovery requests. See SOF, ¶ 15. Although Plaintiff anticipates additional targeted discovery, Plaintiff does not foresee a need to extend the discovery deadline in this case beyond November 6, 2018. 6 Plaintiff Mitchell also notes that there is no reasonable argument that his claim is barred by any applicable statute of limitations. Plaintiff Mitchell filed his original complaint within 6 days of receiving notice of the end of his employment with Defendants, and the proposed Amended Complaint clearly relates back to the Complaint. See Fed. R. Civ. P. 15(c). Case 3:17-cv-00444-NJR-RJD Document 41 Filed 06/13/18 Page 10 of 18 Page ID #235 11 Finally, because Plaintiff’s proposed amendment is consistent with the evidence reflected in Defendants’ documents, the amendment furthers the interests of justice. Accordingly, Plaintiff respectfully requests that this Court grant his request to amend his complaint to convert his “mass layoff” claim to a “plant closing” claim. III. THIS COURT SHOULD PERMIT SHERMAN RIDER TO JOIN THIS ACTION TO ASSERT A CLAIM ON BEHALF OF HIMSELF AND SIMILARLY SITUATED WORKERS WHOM DEFENDANTS FAILED TO TIMELY NOTIFY OF THE POSTPONEMENT OF THE GALATIA PLANT CLOSING. A. The Legal Standard for Joinder of Parties Pursuant to Rule 20 of the Federal Rules of Civil Procedure, “[p]ersons may join in one action as plaintiffs if: (A) they assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and (B) any question of law or fact common to all plaintiffs will arise in the action.” Fed. R. Civ. P. 20(a)(1)(A)-(B).7 The Supreme Court has instructed “[u]nder the Rules, the impulse is toward entertaining the broadest possible scope of action consistent with fairness to the parties; joinder of claims, parties, and remedies is strongly encouraged.” United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 724 (1966). Here, Rider seeks to join this action to bring individual and class claims arising from Defendants’ failure to provide timely supplemental notice of Defendants’ second postponement of the plant closing at Galatia in August 2017. Following this second postponement, Defendants 7 In addition, a court may also consider whether joinder would prejudice any party or result in needless delay. Adkins v. Ill. Bell Tel. Co., 2015 U.S. Dist. LEXIS 40246, *27 (N.D. Ill. Mar. 24, 2015) (citing Chavez v. Ill. State Police, 251 F.3d 612, 632 (7th Cir. 2001)). Case 3:17-cv-00444-NJR-RJD Document 41 Filed 06/13/18 Page 11 of 18 Page ID #236 12 terminated Rider’s employment on October 3, 2017 without advance notice. SOF ¶¶ 13, 15, 17. The addition of Rider’s claim will not result in undue delay or undue prejudice to Defendants. Moreover, joinder is warranted because Rider, like Plaintiff Mitchell, asserts a right to relief that arises out of the plant closing at Galatia, and common questions of law and fact will arise in the action. B. The Act Requires Supplemental Notice Of A Postponement Of A Plant Closing. In addition to an employer’s obligation to provide 60-days advance written notice of a mass layoff or plant closing, the DOL’s WARN Act regulations impose a continuing obligation on employers to provide supplemental notice of a postponement of a plant closing or a mass layoff. See 20 C.F.R. § 639.10. Specifically, the DOL regulations provide as follows: Additional notice is required when the date or schedule of dates of a planned plant closing or mass layoff is extended beyond the date or the ending date of any 14-day period announced in the original notice as follows: (a) If the postponement is for less than 60 days, the additional notice should be given as soon as possible to the parties identified in § 639.6 and should include reference to the earlier notice, the date (or 14-day period) to which the planned action is postponed, and the reasons for the postponement. The notice should be given in a manner which will provide the information to all affected employees. Id. § 639.10(a) (emphasis added). Providing the information described in these regulations is mandatory, and an employer that fails to provide the required supplemental notice must pay back pay for the period of the violation, up to a maximum of 60 days. See Local 1239, Int’l Bhd. Of Boilermakers v. Allsteel, Inc., 1998 U.S. Dist. LEXIS 18131, *1-4. (N.D. Ill. Nov. 10, 1998). Case 3:17-cv-00444-NJR-RJD Document 41 Filed 06/13/18 Page 12 of 18 Page ID #237 13 Moreover, contrary to the July 22 and 24, 2017 draft emails of Matt Efaw, Galatia’s General Superintendent, stating that, once the number of workers drop below 100, no supplemental notice is required, the DOL Regulations make clear that “[t]he point in time at which the number of employees is to be measured for the purpose of determining coverage is the date the first notice is required to be given.” 20 C.F.R. § 639.5(a)(2) (emphasis added). C. Rider’s Joinder Promotes The Efficient Resolution Of Claims Arising Out Of Defendants’ Failure To Provide Workers Proper Notice In Connection With The Galatia Plant Closing. On April 24, 2017, Defendants notified Rider and other Galatia workers of permanent layoffs to occur during the two-week period beginning July 21, 2017 and ending August 4, 2017. See SOF, ¶ 15.a. On June 20, 2017, Defendants issued written notice to these workers that Defendants were postponing the permanent layoffs to the two-week period from August 6 to August 20, 2017. SOF ¶ 15.b. By July 17, 2017, Defendants knew that the Galatia closing would, in fact, not occur until October 2017. SOF ¶ 17.d. Contrary to the requirements of C.F.R. § 639.10, however, Defendants did not provide workers notice of this second postponement and, from September 23 to October 3, 2017, terminated approximately 40 workers, including Rider, without notice. See id. ¶¶ 13, 17.d-e. Defendants’ discovery production reveals that Defendants did not believe they had any obligation to provide this supplemental notice after the number of Galatia workers fell to less than 100. SOF ¶ 17.e. Defendants’ view contradicts 20 C.F.R. § 639.5(a)(2), which provides that WARN Act coverage depends on the number employees at the beginning of a plant closing that triggers the Act. Case 3:17-cv-00444-NJR-RJD Document 41 Filed 06/13/18 Page 13 of 18 Page ID #238 14 Because Rider’s claim focuses entirely on the conduct of Defendants, Rider’s joinder will have no prejudicial impact on Defendants’ ability to prepare a defense. Rider will seek to conduct limited discovery prior to moving for class certification but does not anticipate a need to extend the current discovery cutoff in this case beyond November 6, 2018. Furthermore, joinder of Rider’s claim will facilitate a more efficient resolution of class certification issues by obviating the need for duplicative pleadings and briefing. Given the absence of undue delay or undue prejudice to Defendants, joinder is warranted because Rider, like Plaintiff Mitchell, asserts a right to relief that arises out of Defendants’ acts and omissions during the course of the plant closing at Galatia, and at least one common question of law and fact, such as whether a plant closing occurred at Galatia during 2017, will arise in the action. See Fed. R. Civ. P. 20(a). Rider anticipates that Defendants may argue that his claim is time-barred. Because any potentially applicable statute of limitations under the Act is at least one-year, this argument lacks merit. The Act contains no statute of limitations, and thus, courts determine the applicable statute of limitations under the Act by looking to the most closely analogous state statute setting forth a statute of limitations for bringing a civil action, unless doing so would frustrate the purpose or operation of the Act. See N. Star Steel Co. v. Thomas, 515 U.S. 29, 35-36 (1995) (“it is enough to say here that none of these potentially-applicable statutes would be ‘at odds’ with WARN’s ‘purpose or operation,’ or “‘frustrate or interfere with’” the intent behind it.”). Illinois has passed a state law (the “Illinois Act”) which, unlike the WARN Act, does not establish a civil cause of action and, accordingly, does not impose a statute of limitations on such actions. See 820 ILCS 65/5, et seq. Regulations under the Illinois Act establish an Case 3:17-cv-00444-NJR-RJD Document 41 Filed 06/13/18 Page 14 of 18 Page ID #239 15 administrative claims process and require that administrative claims be filed within 6 months of a violation. See Ill. Admin. Code. Title 56 §§ 230.310, 230.500 (2018). To file an administrative claim under the Illinois Act, an individual need only complete and sign a form prepared by the Illinois Department of Labor. Id. § 230.310(a). Federal courts, however, have specifically ruled that administrative deadlines should not be used to establish statute of limitations under the WARN Act. See, e.g., Staudt v. Glastron, Inc., 92 F.3d 312, 315 (5th Cir. 1996) (“The Wage Act, in other words, does not provide a limitations period for a judicial remedy. It is inappropriate, therefore, to apply its 180-day period to a civil action filed under WARN.”); Nelson v. Formed Fiber Techs., Inc., No. 2:10-cv-00473- GZS, 2012 U.S. Dist. LEXIS 52345, at *9 (D. Me. Apr. 13, 2012) (“[I]t is inappropriate to apply the six-month limitation period from the Maine Labor Relations Law, which provides a limitations period for an administrative remedy rather than a judicial remedy, to a civil action filed under WARN.”). The Supreme Court has explained why courts should not apply limitations periods for the filing of administrative claims to judicial causes of action: [W]e begin with the observation that borrowing an administrative statute of limitations ignores the dominant characteristic of civil rights actions: they belong in court. Assuring the full availability of a judicial forum necessitates attention to the practicalities of litigation. Litigating a civil rights claim requires considerable preparation. An injured person must recognize the constitutional dimensions of his injury. He must obtain counsel, or prepare to proceed pro se. He must conduct enough investigation to draft pleadings that meet the requirements of federal rules; he must also establish the amount of his damages, prepare legal documents, pay a substantial filing fee or prepare additional papers to support a request to proceed in forma pauperis, and file and serve his complaint. At the same time, the litigant must look ahead to the responsibilities that immediately follow filing of a complaint. He must be prepared to withstand various responses, such as a motion to dismiss, as well as to undertake additional discovery. Case 3:17-cv-00444-NJR-RJD Document 41 Filed 06/13/18 Page 15 of 18 Page ID #240 16 The practical difficulties facing an aggrieved person who invokes administrative remedies are strikingly different. Maryland's scheme is modeled on Title VII of the Civil Rights Act of 1964, 42 U. S. C. § 2000e et seq., and is typical of statutes in some 30 States. See Pet. for Cert. 10, and n. 7. A person’s sole responsibility under this scheme is to “make, sign and file with the Human Relations Commission . . . a complaint in writing under oath.” The complaint need contain no more than the name and address of the person or entity alleged to have committed the discriminatory act, "the particulars thereof," and "other information as may be required from time to time by the Commission." Although the complainant is potentially liable for a malicious filing, § 12(b), he has no obligation to investigate his allegations more fully. The entire burden of investigating and developing the case rests on the Human Rights Commission, which is empowered to issue subpoenas, conduct hearings, and seek judicial enforcement of its orders. Burnett v. Grattan, 468 U.S. 42, 50-52 (1984) (emphasis added and citations omitted). The Illinois Act’s six-month limitation on administrative filings should not act as a limit on claims brought under the federal Act in Illinois.8 The concerns expressed by the Supreme Court in Burnett apply with particular force to claims under the WARN Act because preparing a claim under the federal Act requires investigation of a myriad of factual questions, including a fact-intensive analysis of the number of relevant employees who experienced employment losses within the meaning of the Act. Indeed, Defendants’ repeated threats of Rule 11 sanctions against Plaintiff’s counsel for the filing of the Complaint emphasize the differences between requesting an administrative investigation and the filing of a lawsuit under the Act in federal court. In 8 Notably, the Illinois Act states that “Whenever possible, this Act shall be interpreted in a manner consistent with the federal [Act] [29 U.S.C. § 2101 et seq.] and the federal regulations and court decisions interpreting that Act to the extent that the provisions of federal and State law are the same.” 820 ILCS 65/55. No federal cases in Illinois have adopted a six-month limitations period for claims under the Act. Moreover, it would be incongruous that a state act intended to provide additional protections to workers would have the effect of making it more difficult to bring claims under the federal Act by providing an inadequate time in which to bring a claim under the federal Act in court. Case 3:17-cv-00444-NJR-RJD Document 41 Filed 06/13/18 Page 16 of 18 Page ID #241 17 contrast to filing a claim under the Illinois Act, filing a claim under the WARN Act imposes significant burdens on aggrieved workers, many of whom may not realize what rights they have under the Act and that those rights have been violated within 6 months of a violation. Accordingly, the regulations under the Act do not provide a statute of limitations that is appropriate for use under the federal Act. Here, every plausible civil limitations period in Illinois exceeds the nine-month period following his termination in which Rider proposes to file his claim. For example, courts often look to state limitations period for breach of contract to establish the limitations period for claims under the Act. See Nelson, 2012 U.S. Dist. LEXIS 52345, * 11-12 (discussing decisions by the Second, Eight, and Tenth Circuits to borrow state breach of contract statute of limitations). In Illinois, the statutes of limitations for claims arising from breaches of unwritten and written contracts are 5 and 10 years, respectively. 735 ILCS 5/13-205-206. In summary, because Rider’s proposed joinder comports with the Federal Rule 20(a), and the factors set forth by the Supreme Court, this Court should grant Rider’s request to join and amend the Complaint to assert a violation of the Act and 20 C.F.R. § 639.10. CONCLUSION For the reasons stated above, Plaintiff Mitchell and Sherman Rider respectfully request that this Court grant leave to amend the Complaint as set forth above. Respectfully submitted, GOLDENBERG HELLER & ANTOGNOLI, P.C. By: /s/ Thomas C. Horscroft Thomas P. Rosenfeld #06301406 Thomas J. Lech # 06256261 Kevin P. Green #06299905 Thomas C. Horscroft #6327049 2227 South State Route 157 Case 3:17-cv-00444-NJR-RJD Document 41 Filed 06/13/18 Page 17 of 18 Page ID #242 18 Edwardsville, IL 62025 618-656-5150 tom@ghalaw.com tlech@ghalaw.com kevin@ghalaw.com thorscroft@ghalaw.com CERTIFICATE OF SERVICE The undersigned hereby certifies that a copy of the foregoing motion was electronically filed with the United States District Court, Southern District of Illinois, and that copies were sent electronically on this 13th Day of June, 2018, to all attorneys of record. /s/ Thomas C. Horscroft Attorneys for Plaintiff Case 3:17-cv-00444-NJR-RJD Document 41 Filed 06/13/18 Page 18 of 18 Page ID #243
