Lewis v. Textron CV-98-328-JD 10/26/98 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Allan Lewis

v. Civil No. 98-328-JD

Textron Automotive Company

O R D E R

Plaintiff, Allan Lewis, appearing pro se, brings a second

suit challenging certain employment actions by his former

employer, Textron Automotive Company, as violations of the Worker

Adjustment and Retraining Notification Act ("WARN Act"),

(West Supp. 1998). Defendant moves to

dismiss (document no. 46) on alternative grounds that plaintiff's

suit is barred by the doctrine of res judicata, or that its

actions were not governed by the WARN Act.

Discussion

Defendant has submitted materials beyond the pleadings in

support of its motion to dismiss. Because the court resolves the

motion on res judicata grounds, the only materials, beyond the

pleadings filed in this case, that are necessary to the court's

decision are pleadings and orders in plaintiff's previous suit in

this court. As plaintiff also refers to, relies on, and does not

contest the accuracy of the same previous pleadings and orders. to the limited extent necessary, defendant's motion is converted

to one for summary judgment pursuant to Federal Rule of Civil

Procedure 56(c). See Maldonado v. Dominquez,

(1st

Cir. 1998) (conversion without notice appropriate when opposing

party received materials, had opportunity to respond, and has not

contested accuracy); Photias v. Graham, No. 98-70,

(D. Me. July 30, 1998) (converting portion of motion to

dismiss pertaining to res judicata to summary judgment where both

parties drew court's attention to matters outside the pleadings);

see also Clark v. Amoco Production, Co.,

(5th

Cir. 1986) (consideration of pleadings and orders from prior suit

for purposes of res judicata analysis are materials beyond the

pleadings of the present suit).

Summary judgment is appropriate when the record shows that

no genuine issue of material fact exists and that the moving

party is entitled to judgment as a matter of law. See Fed. R.

Civ. P. 56(c); Porn v. National Grange Mut. Ins. Co.,

(1st Cir. 1996). The preclusive effect of a previous federal

court judgment is governed by federal res judicata principles.

. Federal res judicata is comprised of the following

elements: "(1) a final judgment on the merits in an earlier

suit, (2) sufficient identicality between the causes of action

asserted in the earlier and later suits, and (3) sufficient

2 identicality between the parties in the two suits." Gonzalez v.

Banco Cent. Corp.,

(1st Cir. 1994); accord

Massachusetts School of Law v. American Bar,

(1st

Cir. 1998) .

Both plaintiff's present suit and his previous suit allege

that defendant violated the notice requirements of the WARN Act.

The Act "obliges covered employers to give employees or their

union 60 days notice of a plant closing or mass layoff." North

Star Steel Co. v. Thomas,

(1995). Covered

employers must give required notice to representatives of

"affected employees" or the "affected employees" themselves.

(a) (West Supp. 1998). "Affected employees" are

those "who may reasonably be expected to experience an employment

loss as a consequence of a proposed plant closing or mass layoff

by their employer." § 2101 (a) (5) .

Thus, notice requirements are triggered by either a "plant

closing" or a "mass layoff." The term "plant closing" means:

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, if the shutdown results 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.

§ 2102(a)(2). An operating unit within a single site is defined

in Department of Labor regulations as "an organizationally or

3 operationally distinct product, operation, or specific work

function within or across facilities at the single site."

9.3(j); see also Pavao v. Brown & Sharpe Mfg. Co.,

(D.R.I. 1994). The employer's own

organizational or operational structure and the employer's

distinctions drawn between entities within its facility are

important factors to consider in determining whether an

employment action affects an "operating unit" for purposes of the

WARN Act reguirements.

A "mass layoff" within the meaning

of the Act is a reduction in force at a single site, but not the

result of a plant closing, that occurs within a thirty-day period

and causes the loss of 33% full-time employees (and at least 50)

or 500 full-time employees.

§ 2101(a)(3).

A. Final Judgment on the Merits

Plaintiff, appearing pro se, brought suit against defendant

in this court on April 9, 1996, and filed an amended complaint on

June 27, 1996. Plaintiff alleged that defendant began to close

its Dover facility on June 2, 1995, but did not provide

notification of planned layoffs until June 30, 1995. Plaintiff

alleged that defendant's "shut down" of its Dover facility "or

certain operating units situated there, and the consolidation of

4 certain of [sic] operations to the Farmington plant lead to the

termination of employment of a number of workers including the

Plaintiff." Defendant knew, plaintiff alleged, that the result

of its shut down and consolidation would be the loss of more than

fifty jobs making the action subject to the notice reguirements

of the WARN Act. Plaintiff alleged that defendant violated the

Act by not providing notice to employees affected by the layoffs.

After plaintiff's motion for class action certification was

denied, both plaintiff and defendant moved for summary judgment.

The court granted judgment in favor of defendant holding the WARN

Act protects only employees "affected" by a plant closing, not

those who lose employment for unrelated reasons, and that no

genuine factual issue existed in plaintiff's favor that he was an

"affected" employee within the meaning of the WARN Act. Instead,

the court held, "defendant has introduced credible and admissible

evidence that the 75 layoffs of which plaintiff complains

(including plaintiff's own layoff) were made for reasons

unrelated to the closing of the Dover plant." Lewis v. Davidson

Rubber Co., et al. [Textron Automotive Interiors], No. 96-185,

slip op. at 4 (D.N.H. May 20, 1997).

Plaintiff moved for reconsideration explaining that closure

of separate operating units within the Dover plant, not the

closure of the whole plant, triggered the Act's notification

5 requirements. Plaintiff further argued that closing the "DN 5

Taurus and Sable Arm Rest Operating unit" triggered the

notification requirements. In response, the court first noted

that plaintiff's argument was untimely. The court nevertheless

held that evidence in the record did not show that "the balancing

out1 of the Taurus and Sable armrest and console product

manufacturing operations" . . . "constituted the closure of 'an

organizationally or operationally distinct product, operation, or

specific work function within or across facilities at the [Dover]

site.'

(j)." Lewis v. Textron Automotive

Interiors, No. 96-185, slip op. at 1 (D.N.H. June 2, 1997). On

appeal, the First Circuit Court of Appeals affirmed, by

unpublished opinion, and the Supreme Court denied certiorari.

Lewis v. Textron Automotive Interiors,

(1st Cir.

1997), cert, denied, 118 S. C t . 1803 (1998).

Summary judgment is a final judgment on the merits for

purposes of applying the res judicata doctrine. Dowd v. Society

of St. Columbans,

(1st Cir. 1988); see also

Massachusetts School of Law,

(once the Supreme

Court denies certiorari after the circuit court of appeals

^'Balancing out" is apparently an industry term to describe the demise of a product line and resulting layoff of employees when a contract for a particular product line expires and no more orders are received for the product.

6 affirms the district court's entry of summary judgment, "finality

of the earlier judgment cannot be gainsaid") . Contrary to

plaintiff's interpretation, the court did not deny his motion to

reconsider on procedural grounds. Instead, after noting that the

argument raised was untimely, the court proceeded to decide the

guestion on the merits in light of the record presented for

summary judgment. A post-judgment judgment was entered on June

3, 1997, in accordance with the previous order granting summary

judgment and the court's order denying plaintiff's motion for

reconsideration. Accordingly, the court's final judgment on the

merits included its holding in response to plaintiff's motion to

reconsider.

B. Identicality of Causes of Action

In his present complaint, plaintiff bases his claims on

allegations that the Ford Taurus and Sable projects were separate

operating units within Textron's Dover plant that obligated

defendant to comply with WARN Act reguirements. He alleges

Textron announced in March 1995 that because the Ford Taurus and

Sable contracts were not renewed, those "operating units were

scheduled to close in June of 1995." Employment of plaintiff and

others was terminated because of the shut down of the Taurus and

Sable "operating units." He also alleges that defendant knew

7 that shut down of "operating units" including the Taurus and

Sable units would result in a loss of more than 33% of the

employees in "Business Unit #2 ," defined as "a Fundamental

enterprise within the Defendant, Textron Automotive Company."

Plaintiff contends that defendant was therefore subject to WARN

Act notice reguirements, including providing written notice,

which was not done.

The principles of res judicata apply not only to causes of

action actually brought and litigated in a previous action, but

also to those that could have been brought in the previous

action. Massachusetts School of Law,

(guoting

Allen v. McCurry,

(1980)). To be sufficiently

related for preclusive effect, the new and old causes of action

must arise from "'a set of facts which can be characterized as a

single transaction or series of related transactions,'" or,

stated in other terms, must arise from a "common nucleus of

operative facts."

(guoting Apparel Art Int'l, Inc. v.

Amertex Enter.,

(1st Cir. 1995)). In employing

the transactional approach, the court asks whether the actions

alleged "'are related in time, space, origin, or motivation,

whether they form a convenient trial unit, and whether their

treatment as a unit conforms to the parties' expectations.'"

(quoting Aunvx Corp. v. Canon U.S.A., Inc.,

(1st

Cir. 1992) ) .

To the extent plaintiff's pending cause of action pertaining

to the Ford Taurus and Sable "operating units" was not raised in

his previous case, it could have been and is therefore precluded

as res judicata. Plaintiff's allegations in his present

complaint arise from the same actions as were alleged in his

prior complaint -- layoff of employees at defendant's Dover plant

in violation of the WARN Act. Not only could plaintiff have

raised the "new" issue pertaining to whether the demise of the

Ford and Sable armrest projects, or "operating units,"

constituted a layoff within the governance of the WARN Act, he

did raise the issue, at least in his motion for reconsideration,

and the court ruled that evidence in the record did not support

his position. Accordingly, sufficient identicality of causes of

action between the two suits exists to preclude the present

action.

C. Identicality of Parties

Allan Lewis is the plaintiff in this action and was the

plaintiff in the previous suit. Although Lewis, appearingpro

se, attempted to represent a class in the previous action,his

efforts were unsuccessful so that other named plaintiffs. unrepresented in the prior suit, were never parties. See Fed. R.

Civ. P. 23(a); see also

(West 1994). In the

present suit, pro se plaintiff Lynn Labombard has been terminated

as a party leaving only Allan Lewis. The defendant, Textron, was

also a defendant in Lewis's previous case, although other

defendants were also named. Thus, as there can be no guestion

that the judgment in the previous case applied to Allan Lewis,

it's preclusive effect is applicable here.

As plaintiff had an opportunity to fully litigate his cause

of action under the WARN Act pertaining to the Ford Taurus and

Sable "operating units" in his first suit, his pending suit on

that cause of action is barred as res judicata. For that reason,

the court does not consider defendant's alternative grounds for

dismissal of plaintiff's claims.

Conclusion

Defendant's motion to dismiss (document no. 46) is granted.

The clerk of court is directed to enter judgment in favor of

defendant and close the case.

SO ORDERED.

Joseph A. DiClerico, Jr. District Judge

October 26, 1998 cc: Allan Lewis, pro se Debra Dyleski-Najjar, Esguire

10