Alberts v. Nash Finch Co.

245 F.R.D. 399, 69 Fed. R. Serv. 3d 1, 2007 U.S. Dist. LEXIS 10954, 2007 WL 628388
CourtDistrict Court, D. Minnesota
DecidedFebruary 15, 2007
DocketNo. 05-CV-0887 (PJS/JJG)
StatusPublished
Cited by9 cases

This text of 245 F.R.D. 399 (Alberts v. Nash Finch Co.) is published on Counsel Stack Legal Research, covering District Court, D. Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Alberts v. Nash Finch Co., 245 F.R.D. 399, 69 Fed. R. Serv. 3d 1, 2007 U.S. Dist. LEXIS 10954, 2007 WL 628388 (mnd 2007).

Opinion

PATRICK J. SCHILTZ, District Judge.

Plaintiffs formerly worked at three grocery stores owned by defendant Nash Finch Company (“Nash Finch”). Plaintiffs bring this putative class action under the Worker Adjustment and Retraining Notification Act (“WARN Act”), 29 U.S.C. §§ 2101-2109, alleging that Nash Finch failed to give them 60 days’ notice prior to closing the stores. Two motions are pending before the Court: Plaintiffs have moved for class certification, and Nash Finch has moved for summary judgment. For the reasons set forth below, both motions are granted in part and denied in part.

I. BACKGROUND

Nash Finch owns approximately 70 retail grocery stores that do business under various names, including Econofoods, Family Thrift Center, and Sun Mart. Plaintiffs all worked at one of three Econofoods stores: the “Winona” store located at 1858 West Service Drive, Winona, Minnesota; the “North” store located at 3470 55th Street Northwest, Rochester, Minnesota; and the “South” store located at 1200 16th Street Southwest, Rochester, Minnesota. Nash Finch opened South in 1984, Winona in 1989, and North in 1999. Hess Aff. ¶¶ 3, 5, 7, Aug. 31, 2006 (“Hess Aff.”).1 North and South are approximately six miles apart, and Winona is over 50 miles from either North or South. Anderson Aff. Exs. 1, 2, 3, Sept. 28, 2006. As discussed below, employees from one Econofoods store occasionally worked at other Econofoods stores, particularly in the case of the two Rochester stores. The parties refer to an employee’s primary place of employment as his or her “home store.”

On May 19, 2004, Nash Finch announced that it would close 21 underperforming grocery stores in six different states, including the two Rochester stores. Eulberg Aff. ¶ 3, July 29, 2005 (“Eulberg Aff.”). North was closed on June 8, 2004, and South was closed one day later.2 Hess Aff. ¶¶4, 6. Winona was closed over seven months later, on Janu[404]*404ary 22, 2005. Eulberg Aff. ¶ 5. It is undisputed that Nash Finch did not provide 60 days’ notice under the WARN Act to employees at any of the three stores.

Nash Finch contends that it was not required to give notice under the WARN Act because none of the stores employed enough full-time workers to trigger the Act’s notice requirement. Plaintiffs argue that the number of full-time employees at each store should be combined for the purpose of determining whether Nash Finch violated the Act.

II. SUMMARY JUDGMENT

A. Standard of Review

A party is entitled to prevail on a motion for summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). In considering a motion for summary judgment, a court must consider the nonmoving party’s evidence to be true and draw all justifiable inferences arising from the evidence in that party’s favor. Taylor v. White, 321 F.3d 710, 715 (8th Cir.2003).

B. The WARN Act

The WARN Act requires employers to provide 60 days’ notice of a plant closing or mass layoff to the employees who will be affected by the closing or layoff. 29 U.S.C. § 2102(a)(1). Plaintiffs do not contend that they are the victims of a mass layoff. Instead, they argue that Nash Finch’s closing of the three grocery stores at which they worked qualified as a “plant closing” for purposes of the Act.

The WARN Act defines a “plant closing,” in relevant part, as “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 employees excluding any part-time employees!)]” 29 U.S.C. § 2101(a)(2). Because none of the three Eeonofoods stores employed 50 or more full-time workers, plaintiffs can prevail only if at least two of the three stores are considered to be a “single site” for purposes of the WARN Act.

Location is a critical factor in determining whether two facilities are a single site under the WARN Act. “As a general rule, ... geographically separate facilities are separate sites.” Rifkin v. McDonnell Douglas Corp., 78 F.3d 1277, 1280 (8th Cir.1996); see also Teamsters Local Union 413 v. Driver’s, Inc., 101 F.3d 1107, 1110 (6th Cir.1996) (“[G]eographical considerations are the strongest factors in determining whether separate facilities ... are considered single or separate sites under the Act.”); Frymire v. Ampex Corp., 61 F.3d 757, 766 (10th Cir. 1995) (“[P]roximity and contiguity are the most important criteria for making single site determinations.”); McClain v. Laurel Street Art Club, Inc., 925 F.Supp. 496, 498-99 (E.D.Ky.1995) (“[T]he statute is to be narrowly construed in favor of finding separate sites of employment where there is geographical separation.”), aff'd, 106 F.3d 401 (6th Cir.1997) (unpublished table decision). Thus, because the three Econofoods stores were separated by six miles (in the case of North and South) or 50 miles (in the case of Winona and the other two stores), the presumption is that none of the stores combined with another to form a single site for purposes of the WARN Act.

That presumption is rebuttable, though. Geographically separate facilities may be considered a single site under the WARN Act “if they are in reasonable geographic proximity, used for the same purpose, and share the same staff and equipment.” 20 C.F.R. § 639.3(i)(3). For example, when an employer “manages a number of warehouses in an area but ... regularly shifts or rotates the same employees from one building to another,” the warehouses will be considered a single site. Id. This exception to the general rule is limited, however, to the “rare situations in which two separate buildings share staff, equipment and functions” to such an extent that there is an “inextricable operational connection” between the sites. Department of Labor (“DOL”) Comments, 54 Fed.Reg. 16042, 16049-50 (Apr. 20, 1989); [405]*405see also Rifkin, 78 F.3d at 1281 (explaining that “sharing of staff and equipment, and sharing the same operational purpose are appropriate criteria for determining whether two non-contiguous sites comprise a ‘single site’ under the WARN Act”).

Common ownership is not sufficient in itself to render two separate facilities a single site under the WARN Act. Rifkin, 78 F.3d at 1280.

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245 F.R.D. 399, 69 Fed. R. Serv. 3d 1, 2007 U.S. Dist. LEXIS 10954, 2007 WL 628388, Counsel Stack Legal Research, https://law.counselstack.com/opinion/alberts-v-nash-finch-co-mnd-2007.