Cruz v. Bristol–Myers Squibb Co.

• Citation: 699 F.3d 563
• Decision Date: 07 November 2012
• Docket Number: No. 11–1617.,11–1617.
• Parties: Cesar I. CRUZ; Jose I. Lasanta; Marcelo Diaz, Plaintiffs, Appellants, Jane Doe; Jane Doe 1; Jane Doe 2; Conjugal Partnership Lasanta–Doe 1; Conjugal Partnership Cruz–Doe; Conjugal Partnership Diaz–Doe 2, Plaintiffs, v. BRISTOL–MYERS SQUIBB COMPANY, PR, INC.; Bristol–Myers Squibb Mfg., Inc.; BMS Severance Plan, Defendants, Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

699 F.3d 563

83 Fed.R.Serv.3d 1295

54 Employee Benefits Cas. 1997

Cesar I. CRUZ; Jose I. Lasanta; Marcelo Diaz, Plaintiffs, Appellants,Jane Doe; Jane Doe 1; Jane Doe 2; Conjugal Partnership Lasanta–Doe 1; Conjugal Partnership Cruz–Doe; Conjugal Partnership Diaz–Doe 2, Plaintiffs,

v.BRISTOL–MYERS SQUIBB COMPANY, PR, INC.; Bristol–Myers Squibb Mfg., Inc.; BMS Severance Plan, Defendants, Appellees.

No. 11–1617.

United States Court of Appeals, First Circuit.

Submitted May 7, 2012.

Decided Nov. 7, 2012.

Frank E. Laboy Blanc on brief for appellants.

Lourdes C. Hernández–Venegas, Ana B. Rosado–Frontanés, and Schuster Aguiló LLP on brief for appellees.

Before LYNCH, Chief Judge, BOUDIN and LIPEZ, Circuit Judges.

LIPEZ, Circuit Judge.

After they were fired from their jobs, appellants Cesar Cruz, Jose Lasanta, and Marcelo Diaz filed suit in federal district court against their former employer, appellee Bristol–Myers Squibb ManufacturingCompany (“Bristol–Myers”), and against the severance plan established by Bristol–Myers pursuant to the Employee Retirement Income and Security Act (“ERISA”), 29 U.S.C. §§ 1001–1461, appellee BMS Severance Plan. The district court granted appellees' motion for summary judgment, and appellants now challenge that ruling, as well as a number of the district court's other orders. Discerning no error, we affirm.

I.

A. Factual Background

In 2003, Bristol–Myers began winding down operations at the multi-building site where Cruz had worked as a mechanic since 1993. By letter, Bristol–Myers notified Cruz on July 29, 2003, that he would receive a cash bonus upon discharge, in addition to any severance package for which he might be eligible. The letter explained that the amount of the bonus depended on the timing of the discharge: if Cruz's employment ended when normal operations in Building 5 stopped, he would get three months' salary; if he left when operations in Buildings 2 and 29 stopped, he would get six months' salary; if he was dismissed when sterile operations in Building 5 stopped, he would get nine months' salary.

As part of the winding-down process, Bristol–Myers developed a ranking system to determine the order in which employees occupying the same positions would be terminated. The ranking system took into account both professional skills and seniority within the company. In 2007, as operations in Building 2 were coming to a halt, Bristol–Myers decided to terminate two of its four mechanics. Among the mechanics, Cruz was ranked third in skills and fourth in seniority. On June 22, 2007, he was informed that there would be a reduction in force that would result in his discharge on August 29, 2007. At the time, Cruz was forty-two years old. The two mechanics who were retained were, respectively, fifty years old and forty-three years old. No one was hired to replace Cruz, and he was paid a cash bonus of six months salary.

Prior to Cruz's dismissal, Bristol–Myers had adopted a severance plan, pursuant to ERISA, to assist employees who were being downsized. Under the plan, in exchange for signing a general release of any claims against Bristol–Myers, Cruz would have been eligible for a severance package of $47,833. Cruz never signed the release and, as a result, never received a severance package.

B. Procedural History

Appellants' complaint was filed on April 11, 2008, asserting federal claims under ERISA, the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621–634, the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101–12213, the Worker Adjustment and Retraining Notification Act (“WARN”), 29 U.S.C. §§ 2101–2109, and the Consolidated Omnibus Budget Reconciliation Act (“COBRA”), 29 U.S.C. §§ 1161–1169, which amended ERISA. The complaint also asserted a common-law breach of contract claim, as well as an employment discrimination claim under the Puerto Rico Anti–Discrimination Act (also known as Law 100), P.R. Laws. Ann. tit. 29, §§ 146–151, and an unjustified dismissal claim under Puerto Rico Law 80, P.R. Laws Ann. tit. 29, §§ 185a–m.

Because the allegations in the complaint were difficult to decipher, appellees filed a motion for a more definite statement. SeeFed.R.Civ.P. 12(e). On July 11, 2008, appellants submitted a new complaint raising identical claims, which appellees answered. After reviewing the new complaint, the district court tentatively determined that there was no basis for appellants to be joined together as plaintiffs in a single lawsuit. SeeFed.R.Civ.P. 20(a)(1). Hence, the district court ordered appellants to show cause why Diaz and Lasanta should not be severed from the case, leaving Cruz (as the first named plaintiff) to proceed alone. Appellants responded that joinder was proper because their individual rights to relief arose from the same occurrence—namely, a large-scale reduction in force at the Bristol–Myers site where they had worked.

On February 25, 2009, before the district court had conclusively ruled on the propriety of joinder, appellants filed a motion seeking to have their suit certified as a collective action under the ADEA. See29 U.S.C. § 626(b) (incorporating 29 U.S.C. § 216(b)); see also Hoffmann–La Roche Inc. v. Sperling, 493 U.S. 165, 170, 110 S.Ct. 482, 107 L.Ed.2d 480 (1989) ( “Congress has stated its policy that ADEA plaintiffs should have the opportunity to proceed collectively.”). On January 28, 2010, the district court issued an order severing Diaz and Lasanta and dismissing their claims without prejudice on the ground that appellants had failed to establish that a question of law or fact common to all of them would arise in the case. SeeFed.R.Civ.P. 20(a)(1)(B). The district court then declared the motion seeking certification of appellants' suit as a collective action to be moot. See Cruz v. Bristol Myers Squibb Co. P.R. Inc., 264 F.R.D. 22 (D.P.R.2010).

On February 10, 2010, the district court issued a scheduling order informing the remaining parties that any amended pleadings had to be filed by March 9, 2010. After the deadline passed, Cruz filed a “corrected complaint” on April 26, 2010, which deleted his ADA, WARN, and COBRA claims. Appellees answered the corrected complaint on May 4, 2010, and discovery began. On June 13, 2010, Cruz moved to amend the complaint in order to augment his ADEA and Law 100 claims with information unearthed during discovery. The district court denied his motion without comment. On December 13, 2010, after discovery had concluded, Cruz once more moved to amend the complaint for the purposes of reinforcing his existing claims, adding an allegedly indispensable party (an unidentified successor-in-interest to Bristol–Myers), and rejoining Diaz as a plaintiff. The motion was denied, again without comment.

On January 11, 2011, appellees moved for summary judgment, affixing to their motion a statement of uncontested facts (“SUF”), as required by the district court's rules. See D.P.R. Civ. R. 56(b). On January 23, 2011, Cruz opposed the summary judgment motion but neglected to submit a counter-statement along with his opposition admitting, denying, or qualifying each fact in the SUF. See D.P.R. Civ. R. 56(c). Instead, he submitted a short narrative outlining his view of the case. Deeming admitted the facts in appellees' SUF, see D.P.R. Civ. R. 56(e), the district court granted appellees' motion for summary judgment, see Cruz v. Bristol Myers Squibb Co. PR, Inc., 777 F.Supp.2d 321, 340 (D.P.R.2011). This appeal followed.

II.

A. Party Joinder

We begin our analysis by considering whether the district court abused its discretion in severing Diaz and Lasanta. See Coughlin v. Rogers, 130 F.3d 1348, 1351 (9th Cir.1997) (reviewing for abuse of discretion). Multiple plaintiffs may join together in a single action if “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 “any question of law or fact common to all plaintiffs will arise in the action.” Fed.R.Civ.P. 20(a)(1)(A)–(B). If both elements of this test are not satisfied, “a court, in its discretion, may sever the misjoined parties, so long as no substantial right will be prejudiced by the severance. In such a case, the court can generally dismiss all but the first named plaintiff without prejudice to the institution of new, separate lawsuits by the dropped plaintiffs....” Coughlin, 130 F.3d at 1350 (citations omitted).

In this case, appellants made no effort to demonstrate that any common question of law or fact would arise. It appears that each appellant lost his job under different circumstances and each has distinct legal claims against appellees. Although the rules governing party joinder are construed liberally for the sake of convenience and economy, see Desert Empire Bank v. Ins. Co. of N. Am., 623 F.2d 1371, 1375–76 (9th Cir.1980), we discern no abuse of discretion in the district court's decision to sever Diaz and Lasanta and dismiss their claims without prejudice.

B. Certification as a Collective Action

For substantially the same reasons, the district court did not abuse its discretion in declining to certify appellants' suit as a collective action under the ADEA. See Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095, 1102 (10th Cir.2001) (reviewing for abuse of discretion). Employees seeking to bring a collective action under the ADEA must establish that they are similarly situated. See29 U.S.C. § 626(b) (incorporating 29 U.S.C. § 216(b)); Hipp v. Liberty Nat'l Life Ins. Co., 252 F.3d 1208, 1216–17 (11th Cir.2001). This requirement is even less stringent than the test for party joinder, see Grayson v. K Mart Corp., 79 F.3d 1086, 1095–96 (11th Cir.1996), but it still has teeth, see Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1261 (11th Cir.2008). The modest factual showing that must be made “cannot be satisfied simply by unsupported assertions,” Myers v. Hertz Corp., 624 F.3d 537, 555 (2d...