420 F.3d 836 (8th Cir. 2005), 04-3135, Smullin v. Mity Enterprises, Inc.

Docket Nº:04-3135.
Citation:420 F.3d 836
Party Name:Carles Joe SMULLIN, et al., Plaintiffs--Appellants, v. MITY ENTERPRISES, Inc.; Do Group Holding, Inc., Defendants--Appellees.
Case Date:August 25, 2005
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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420 F.3d 836 (8th Cir. 2005)

Carles Joe SMULLIN, et al., Plaintiffs--Appellants,

v.

MITY ENTERPRISES, Inc.; Do Group Holding, Inc., Defendants--Appellees.

No. 04-3135.

United States Court of Appeals, Eighth Circuit.

Aug. 25, 2005

Submitted: May 9, 2005.

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James Edgar Nickels, argued, N. Little Rock, AR, for appellant.

Gerald F. Lutkus, argued, South Bend, IN, for appellee.

Before LOKEN, Chief Judge, BEAM and SMITH, Circuit Judges.

LOKEN, Chief Judge.

On Friday, November 8, 2002, Do Group Holding, Inc. ("Do Group"), sold the assets of its manufacturing plant in Marked Tree, Arkansas as a going concern to an unrelated buyer. The buyer interviewed the plant's sixty-eight employees over the weekend and hired forty-four. The plant opened on Monday, November 11, without a break in operations, making the same products with the same equipment in the same facility and selling those products to the same customers. Forty former Do Group employees at the Marked Tree plant commenced this action, alleging that Do Group and its parent corporation, Mity Enterprises, Inc. ("Mity"), violated the Worker Adjustment and Retraining Notification Act ("WARN Act"), 29 U.S.C. §§ 2101 et seq., by terminating the sixty-eight employees without giving the sixty-day advance notice required by 29 U.S.C. § 2102(a).

The WARN Act's sixty-day notice requirement applies to businesses that employ one hundred or more employees. See 29 U.S.C. § 2101(a)(1). The district court 1 granted summary judgment for the defendants on the ground that Do Group and other Mity affiliates are not a single employer, in which case Do Group employed fewer than one hundred employees. Plaintiffs appeal. Reviewing the grant of summary judgment de novo, see Rifkin v. McDonnell Douglas Corp., 78 F.3d 1277, 1279-80 (8th Cir.1996), we conclude that we need not address the 100-employee question because the sale of the Marked Tree plant was a sale of business that did not result in an employment loss under the WARN Act. Accordingly, we affirm.

The WARN Act provides that a covered employer must give at least sixty days

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written notice of a "plant closing" or a "mass layoff." 29 U.S.C. § 2102(a). Relevant portions of the definitions of these operative terms are critical to this appeal:

(a) Definitions

(2) the term "plant closing" means the permanent or temporary shutdown of 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 [full-time] employees;

(3) the term "mass layoff" means a reduction in force which (A) is not the result of a plant closing; and (B) results in an employment loss at the single site of employment during any 30-day period for [at least 50 full-time employees];

(6) subject to subsection (b)... "employment loss" means (A) an employment termination, other than a discharge for cause ....

(b) Exclusions from definition of employment loss

(1) In the case of a sale of part or all of an employer's business, the seller shall be responsible for providing notice for any plant closing or mass layoff ... up to and including the effective date of the sale. After the effective date of the sale ... the purchaser shall be responsible for providing notice for any plant closing or mass layoff .... Notwithstanding any other provision of this chapter, any person who is a [full-time] employee of the seller ... as of the effective date of the sale shall be considered an employee of the purchaser immediately after the effective date of the sale.

29 U.S.C. § 2101(a)(2), (a)(3), (a)(6), (b)(1).

...

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