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Pennington v. Fluor Corp.

United States District Court, D. South Carolina, Rock Hill Division

June 20, 2019

Harry Pennington, III, on behalf of himself and all others similarly situated; and Timothy Lorentz, on behalf of himself and all others similarly situated, Plaintiffs,
Fluor Corporation, Fluor Enterprises, Inc., SCANA Corporation, Fluor Daniel Maintenance Services, Inc., South Carolina Electric & Gas Company, Defendants. Lawrence Butler, Lakeisha Darwish, Darron Eigner, Jr., Bernard A. Johnson, and Jimi Che Sutton, Plaintiffs,
Fluor Corporation and Fluor Enterprises, Inc., Defendants.


         This matter is before the court for review of Plaintiffs Harry Pennington, III and Timothy Lorentz's (“Pennington Plaintiffs”) Motion for a Supplemental Order Approving the Sending of Notice of Class Certification and Related Relief, which was filed on February 20, 2019. (ECF Nos. 89, 143.) Defendants SCANA Corporation and South Carolina Electric & Gas Company (“SCANA Defendants”) responded in opposition to the Motion on March 6, 2019, arguing that Pennington Plaintiffs' Motion is premature and class notice should not issue until after the resolution of any future summary judgment motions. (ECF Nos. 93, 147.) Defendants Fluor Corporation, Fluor Enterprises, Inc., and Fluor Daniel Maintenance Services, Inc. (“Fluor Defendants”) also responded in opposition to Pennington Plaintiffs' Motion, only maintaining that there are deficiencies contained within the proposed class notice and not taking a position regarding the timeliness of the notice. (ECF Nos. 94, 148.) Pennington Plaintiffs replied to both SCANA Defendants and Fluor Defendants on March 13, 2019, submitting that class notice should be sent to class members and correcting issues raised by Fluor Defendants as to the contents of the notice. (ECF Nos. 97, 151.) After careful consideration of all the parties' positions, the court GRANTS IN PART and DENIES IN PART Pennington Plaintiffs' Motion for a Supplemental Order Approving the Sending of Notice of Class Certification and Related Relief (ECF Nos. 89, 143). Specifically, the court GRANTS Pennington Plaintiffs' request to send class notice at this time, but the court DENIES the dissemination of the original notice put forth by Pennington Plaintiffs in their Motion. However, the court GRANTS the sending of class notice that conforms with Pennington Plaintiffs' Reply Memorandum of Law (ECF Nos. 97, 151) and this court's Order and Opinion. Further, the court ORDERS Fluor Defendants, SCANA Defendants, and Pennington Plaintiffs to comply with a list of mandates included at the end of this court's Order and Opinion. See infra Part IV. For the convenience of the parties, the approved notice is attached to the court's Order and Opinion.


         Pennington Plaintiffs commenced this action in the United States District Court for the District of South Carolina on August 8, 2017, and it concerns the layoff of approximately five thousand (5, 000) employees from the V.C. Summer Nuclear Station (“VC Summer”) located in Jenkinsville, South Carolina. (ECF Nos. 1, 41.) Within their Amended Complaint, filed on October 25, 2017, Pennington Plaintiffs allege that Fluor and SCANA Defendants committed violations of the Worker Adjustment and Retraining Notification Act (“WARN Act”), 29 U.S.C. §§ 2101- 2109.[1] (ECF No. 41 at 2-3 ¶¶ 1-10.) Specifically, Pennington Plaintiffs contend that “[Fluor and SCANA] Defendants failed to give [] [Pennington Plaintiffs] and the [c]lass members written notice that complied with the requirements of the WARN Act.” (Id. at 22 ¶ 124.) Pennington Plaintiffs seek “the sum of: their unpaid wages, salary, commissions, bonuses, accrued holiday pay, accrued vacation pay, pension and 401(k) contributions and other [Consolidated Omnibus Budget Reconciliation Act (“COBRA”), 29 U.S.C. §§ 1161-1169, ] benefits, for 60 days, that would have been covered and paid under then-applicable employee benefit plans . . ., all determined in accordance with the WARN Act . . . .” (Id. at 23.)

         On July 18, 2018, the court filed its Order and Opinion granting Pennington Plaintiff's Motion for Class Certification under Rule 23(b)(3) of the Federal Rules of Civil Procedure. (See ECF No. 133.) See also Pennington v. Fluor Corp., 327 F.R.D. 89, 94-95 (D.S.C. 2018). After the court's certification of the class, on February 20, 2018, Pennington Plaintiffs filed their Motion for a Supplemental Order Approving the Sending of Notice of Class Certification and Related Relief. (ECF Nos. 89, 143.) Within their Motion, Pennington Plaintiffs state that they waited to address the issuance of class notice in this action because, a few months ago, the United States Bankruptcy Court for the Southern District of New York was actively considering motions for class certification and transfer of venue in a parallel WARN action (“WARN Bankruptcy Cases”) against the debtors of Westinghouse Electric Company, LLC[2] (“Westinghouse”), which implicated the parties before this court. (ECF No. 89 at 2-3; ECF No. 143 at 2-3.) However, the WARN Bankruptcy Cases were recently stayed by the New York federal court, pending resolution of the action before this court. (See ECF No. 89 at 2-3; ECF No. 143 at 2-3.) See also In re Westinghouse Electric Co., C/A No. 18-cv-1786 (AJN), 2019 WL 1375670, at *2-5 (S.D.N.Y. Mar. 27, 2019). Pennington Plaintiffs maintain that class notice is required for (1) the direct employees of Westinghouse with claims against SCANA Defendants and (2) the direct employees of Fluor with claims against Fluor and SCANA Defendants. (ECF No. 89 at 3; ECF No. 143 at 3.) With the WARN Bankruptcy Cases stayed, Pennington Plaintiffs submit that “[n]ow is the appropriate time to send notice” because class members will not receive two class notices from two different, federal courts. (ECF No. 89 at 3; ECF No. l43 at 3.)

         After arguing that delaying class notice until the resolution of liability issues is improper, Pennington Plaintiffs assert that their proposed notice meets the legal standard of Rule 23(c)(2)(B) of the Federal Rules of Civil Procedure, which proscribes sufficient notice for class actions arising under Rule 23(b)(3). (ECF No. 89 at 5 (citing ECF No. 89-2); ECF No. 143 at 5 (citing ECF No. 143-2).) Pennington Plaintiffs specifically state that their proposed notice “discloses the identifies of the class representatives and class counsel, advises the class members of their right to opt out, and provides them a clear mechanism for doing so.” (ECF No. 89 at 5; ECF No. 143 at 5.) Lastly, Pennington Plaintiffs turn to the appropriate transmission of class notice and propose “a multistage effort to achieve notice to the class . . . .” (ECF No. 89 at 6; ECF No. 143 at 6.) First, Pennington Plaintiffs suggest delivering class notice by First-Class Mail using current addresses. (ECF No. 89 at 6; ECF No. 143 at 6.) Secondly, for those addresses that have “grown stale, ” Pennington Plaintiffs request Fluor and SCANA Defendants to provide the phone numbers and email addresses for class members, so that they can deliver class notice through email or use phone numbers in order to obtain correct addresses, directly from class members, for undeliverable mail. (ECF No. 89 at 6-7; ECF No. 143 at 6-7.) Because their notice purportedly conforms with the Federal Rules of Civil Procedure, Pennington Plaintiffs request the court to approve the form and manner of their proposed notice to class members. (ECF No. 89 at 7; ECF No. 143 at 7.)

         On March 6, 2019, SCANA Defendants responded in opposition to Pennington Plaintiffs' Motion. (ECF Nos. 93, 147.) SCANA Defendants argue that “issuing class notice at this juncture of the case is premature” because Rule 23(c)(2)(B) “does not specify a time by which notice must be sent[, ]” and the court has not decided whether SCANA Defendants “are a single employer with Fluor [Defendants] or Westinghouse, at which point the nature of the action, the class definition, and the claims, issues, or defenses subject to class treatment can be more clearly and concisely stated in accordance with Rule 23(c)(2)(B).” (ECF No. 93 at 4; ECF No. 147 at 4.) SCANA Defendants, essentially, submit that the unresolved issue of single employer liability should foreclose the immediate issuance of class notice “until the parties have completed the liability phase of discovery and the single-employer issue is resolved on summary judgment.” (ECF No. 93 at 5-6; ECF No. 147 at 5-6.) SCANA Defendants heavily rely upon Guippone v. BH S&B Holdings LLC, No. 09 Civ. 1029(CM), 2011 WL 1345041, at *8 (S.D.N.Y Mar. 30, 2011). (ECF No. 93 at 5-6; ECF No. 147 at 5-6.) Bringing their first policy argument, SCANA Defendants further stress that premature class notice “could potentially result in irreparable legal harm and unnecessary practical consequences” because the parameters of Rule 23(c)(2)(B) cannot be “clearly defined” until after the summary judgment stage, thereby making another class notice “highly confusing” to class members. (ECF No. 93 at 6; ECF No. 147 at 6.) Lastly, in a second policy argument, SCANA Defendants maintain that class notice would place “class members in a difficult and potentially prejudicial position” to decide whether to remain in or opt out of the action because certain aspects of the litigation may change. (ECF No. 93 at 6-7; ECF No. 147 at 6-7.)

         Fluor Defendants also responded in opposition to Pennington Plaintiffs' Motion on March 6, 2019. (ECF Nos. 94, 148.) Unlike SCANA Defendants, Fluor Defendants do not contest the timeliness of class notice, but only challenge alleged deficiencies contained within Pennington Plaintiffs' proposed notice. (ECF No. 94 at 1-2; ECF No. 148 at 1-2.) Arguing that Pennington Plaintiffs' proposed notice is “confusing and will mislead class members, ” Fluor Defendants raise the following issues, verbatim, with the proposed notice:

• On page 1 of the notice, the notice should be addressed to persons employed by Fluor Enterprises, Inc. or Fluor Daniel Maintenance Services, Inc., as Fluor Corporation did not employ anyone at the V.C. Summer Project site.
• On page 2 of the notice, under “The Class Claims, ” the first sentence should read “This notice concerns class claims of employees terminated without cause from the VC Summer Facility . . ., ” which more accurately states the nature of Plaintiffs' claims as Fluor Defendants did provide notice to employees laid off as a result of the closure.
• On pages 3 and 5 of the notice, Plaintiffs Darron Eigner, Jr. and Bernard A. Johnson should not be included whether their claims are dismissed pursuant to Fluor Defendants' pending Motion to Compel, or they are removed as Named Plaintiffs, as suggested by Plaintiffs in their Response to Fluor Defendants' Motion to Compel.
• On page 4 of the notice, the notice should include additional information regarding Fluor Defendants' defenses to Plaintiffs' claims, which is required by Rule 23.
• On page 4 of the notice and on the [e]xclusion [f]orm, Plaintiffs improperly suggest that class members will receive benefits if they choose not to opt-out of the class.
• On page 4 of the notice, the class members should be advised that their decision to remain in the class may result in discovery obligations, including responding to written discovery, appearing for a deposition, and/or being called to testify at trial. Class members may not be aware of these requirements for participating in a class action and such awareness may influence their decision on whether they wish to participate in this lawsuit, or not.
• On page 4 of the notice and on the [e]xclusion [f]orm, class members should be provided the opportunity to electronically sign and submit the Exclusion Form, as discussed above.
• On pages 4 and 5 of the notice, the opt-out deadline should be based on the date that class members postmark and/or electronically submit the [e]xclusion [f]orm, rather than the date received by Plaintiffs' counsel, as Plaintiffs' proposal improperly limits the opt-out period.
• In the proposed order, Plaintiffs propose a ten (10) day period to provide the contact information for class members. Fluor Defendants request thirty (30) days to compile the information required in this case due to the large number of plaintiffs.[3]

(ECF No. 94 at 4-5; ECF No. 148 at 4-5.) In addition to raising the aforementioned issues with the proposed notice, Fluor Defendants contest (1) Pennington Plaintiffs' need for telephone numbers to ensure that class members receive class notice because they have failed to show a “special need” for telephone numbers; and (2) the lack of a “self-addressed, stamped envelope for individuals to return” their exclusion forms, and individuals should be permitted to return the exclusion form via fax or e-mail. (ECF No. 94 at 2-3; ECF No. 148 at 2-3.) Fluor Defendants do not specifically request that the court deny Pennington Plaintiffs' Motion, however, they do request that the court “revise [Pennington] Plaintiffs' proposed class notice as indicated herein.” (ECF No. 94 at 5; ECF No. 148 at 5.)

         Pennington Plaintiffs replied to both Fluor and SCANA Defendants on March 13, 2019. (ECF Nos. 97, 151.) First, Pennington Plaintiffs emphasize that SCANA Defendants request to delay class notice is meritless because their reliance upon Guippone is misplaced because “summary judgment motions are not within sight.” (ECF No. 97 at 5-6; ECF No. 151 at 5-6.) Pennington Plaintiffs urge the court to rely upon Ramcharan v. A.F.L. Quality, Inc., C/A No. 12- 7551 (RMB/AMD), 2015 WL 4275534, at *1-3 (D.N.J. Apr. 14, 2015). (ECF No. 97 at 6-7; ECF No. 151 at 6-7.) Second, Pennington Plaintiffs also note that Fluor Defendants' objection to telephone numbers conflates notice under Rule 23 of the Federal Rules of Civil Procedure with that under the Fair Labor Standards Act (“FLSA”), 28 U.S.C. §§ 201-219. (ECF No. 97 at 9-10; ECF No. 151 at 9-10.) Third, based upon their proposal to utilize First-Class Mail and then use email for mail returned as undeliverable, Pennington Plaintiffs agree that “emailing the opt out form should be permissible” for those receiving class notice by means of email or those receiving notice by mail with time constraints. (ECF No. 97 at 11-12; ECF No. 151 at 11-12.) As it relates to providing an exclusion form with an envelope and paid postage, Pennington Plaintiffs complain that such an endeavor would be a “waste” because they should not have to “bear the expense of the paper, printing, stuffing, and stamping of thousands of envelopes that will never be used.” (ECF No. 97 at 12; ECF No. 151 at 12.) Lastly, Pennington Plaintiffs responded to Fluor Defendants' numerous challenges to the class notice by either proposing a revision or suggesting that a revision is unwarranted. (ECF No. 97 at 14-17; ECF No. 151 at 14-17.) Neither SCANA nor Fluor Defendants responded to Pennington Plaintiffs' Reply. Because this matter has been extensively briefed, it is now ripe for the court's review. See generally Sauls v. Wyeth Pharm., Inc., 846 F.Supp.2d 499, 501 (D.S.C. 2012) (“The parties have fully briefed the issues, and this matter is ripe for consideration.”).

         II. ...

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