945 F.2d 121 (6th Cir. 1991), 90-6367, Damron v. Rob Fork Min. Corp.

Docket Nº:90-6367.
Citation:945 F.2d 121
Party Name:Robert L. DAMRON; Randall Burke; Leonard Fleming; Ricky D. Mullins, Plaintiffs-Appellants, v. ROB FORK MINING CORPORATION; Rob Fork Processing Corporation; Jackal Mining Company; Mine 29 Mining and Processing, Inc.; Sidewinder Mining Company; Bethlehem Steel Corporation; BethEnergy Mines, Inc., Defendants-Appellees.
Case Date:August 06, 1991
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 121

945 F.2d 121 (6th Cir. 1991)

Robert L. DAMRON; Randall Burke; Leonard Fleming; Ricky

D. Mullins, Plaintiffs-Appellants,

v.

ROB FORK MINING CORPORATION; Rob Fork Processing

Corporation; Jackal Mining Company; Mine 29 Mining and

Processing, Inc.; Sidewinder Mining Company; Bethlehem

Steel Corporation; BethEnergy Mines, Inc., Defendants-Appellees.

No. 90-6367.

United States Court of Appeals, Sixth Circuit

August 6, 1991

Argued May 7, 1991.

Sherry Brashear, Goss & Goss, Harlan, Ky. (argued and briefed), for Robert Damron, Randall Burke, Leonard Fleming and Ricky D. Mullins.

Ronald E. Meisburg, Smith, Heenan & Althen, Washington, D.C., Forrest H. Roles (briefed), Mark E. Heath (briefed), Smith, Heenan & Althen, Charleston, W. Va., for Rob Fork Mining Corp., and Rob Fork Processing Corp.

Charles J. Baird, Pikeville, Ky., for Jackal Mining Co., and Sidewinder Min. Co.

James D. Asher, Whitesburg, Ky., Bruce A. Levy, Pikeville, Ky., for Mine 29 Mining and Processing, Inc.

Joseph L. Hamilton (briefed), Stites & Harbison, Louisville, Ky., for Bethlehem Steel Corp., and BethEnergy Mines, Inc.

Page 122

Before KEITH and BOGGS, Circuit Judges, and WELLFORD, Senior Circuit Judge.

WELLFORD, Senior Circuit Judge.

Plaintiffs are four former employees of defendant Mine 29 Mining and Processing, Inc. (Mine 29), who seek damages, lost wages and benefits "for themselves and all other members of the class" which they described as "employees who were employed or who had a reasonable expectancy of recall and suffered an employment loss under 29 U.S.C. § 2101(a) of the [Worker Adjustment and Retraining Notification] Act 1 when the defendants told them their services were no longer needed." Plaintiffs originally sued Mine 29, 2 Rob Fork Mining Corporation (RFMC), Rob Fork Processing Corporation (RFPC), Jackal Mining Company (Jackal), Sidewinder Mining Company (Sidewinder), Bethlehem Steel Corporation (Bethlehem), and BethEnergy Mines, Inc. (BethEnergy); Bethlehem and its subsidiaries were subsequently dismissed by an agreed order.

BethEnergy moved for summary judgment, contending that it was not an employer or mine owner within the meaning of the WARN Act at the time of announcement of the mine closing in question, having conveyed its interests to defendants, RFMC, RFPC, and others, on November 29, 1988. The WARN Act became effective six months after enactment on February 4, 1989. The Act was not in effect at the time the sale was effectuated and for this reason the district court granted BethEnergy summary judgment. 739 F.Supp. 341.

The district court also granted summary judgments for defendants RFMC, RFPC, Jackal, and Sidewinder, because at a maximum only 83 persons who were employed, or expected to be re-employed, "were affected by the loss of employment some three months after the closing was announced." Since 100 persons had to be employed, or reasonably expected to be re-employed, for the WARN Act to be effective, the district court held that these four defendants should be granted judgment. Summary judgment was thus granted to all defendants except as to Mine 29. See supra n. 2. No class was certified as requested by plaintiffs, who have appealed the grants of summary judgment as to all remaining defendants.

Plaintiffs contend that they are "affected employees" within the meaning of 29 U.S.C. § 2101(a)(5) of the WARN Act; that RFMC, RFPC, and Mine 29 are "employers" within the meaning of 29 U.S.C. § 2101(a)(1) of said Act; and that Jackal is a purchaser of the employer's business within the meaning of 29 U.S.C. § 2101(b) of said Act. Plaintiffs claim that there was a "plant closing" or "mass layoff" on October 13, 1989, within the meaning of 29 U.S.C. §§ 2101(a)(2) and (3) of the Act, and that on said date there was a sale of the employer's business in Pike County, Kentucky, to Jackal within...

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