Butler v. Fluor Corp.

511 F.Supp.3d 688

Lawrence BUTLER, Lakeisha Darwish, and Jimi Che Sutton, Plaintiffs,

v.FLUOR CORPORATION and Fluor Enterprises, Inc., Defendants.

Harry Pennington, III and Timothy Lorentz, individually and on behalf of all those similarly situated, Plaintiffs,

v.Fluor Corporation, Fluor Enterprises, Inc., Fluor Daniel Maintenance Services, Inc., SCANA Corporation, and South Carolina Electric & Gas Company, Defendants.

Civil Action No. 0:17-cv-02201-JMC

Civil Action No. 0:17-cv-02094-JMC

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

Signed January 6, 2021

Amy Lohr Gaffney, Regina Hollins Lewis, Gaffney Lewis and Edwards LLC, Columbia, SC, David B. Yarborough, Jr., William E. Applegate, IV, Perry McPherson Buckner, IV, Reynolds Hedland Blankenship, Jr., Yarborough Applegate LLC, Charleston, SC, Charles A. Ercole, Pro Hac Vice, Lee D. Moylan, Pro Hac Vice, Rona J. Rosen, Pro Hac Vice, Klehr Harrison Harvey Branzburg LLP, Philadelphia, PA, for Plaintiffs.

John Hagood Tighe, Matthew Robert Korn, Fisher and Phillips LLP, Columbia, SC, David Kresser, Pro Hac Vice, Fisher and Phillips LLP, Atlanta, GA, Kathleen McLeod Caminiti, Pro Hac Vice, Fisher and Phillips LLP, Murray Hill, NJ, for Defendants.

ORDER & OPINION

J. MICHELLE CHILDS, United States District Judge

Pending before the court are Motions for Summary Judgment by Defendant Fluor (ECF Nos. 189 (Butler ); 233 (Pennington )), Defendant SCANA (ECF Nos. 192 (Butler ); 236 (Pennington )), and the above-captioned Plaintiffs, both individually and on behalf of all those similarly situated (ECF Nos. 191 (Butler ); 235 (Pennington )).¹ The central issue of these Motions is which Defendants, if any, should have provided notice under the Worker Adjustment and Retraining Notification Act, 29 U.S.C. § 2101 et seq. ("WARN"), after SCANA abruptly terminated the construction of two multi-billion dollar nuclear reactors that led to the layoff of thousands of workers with no advanced warning.²

The Motions have been fully briefed and are ripe for consideration. Specifically, Plaintiffs have filed Responses (ECF Nos. 203, 206) and Replies (ECF Nos. 210, 212) to Defendants’ Motions for Summary Judgment. Defendants have likewise responded in opposition to Plaintiffs’ Motion for Summary Judgment. (See ECF Nos. 200, 204, 208, 215). SCANA also filed a short Brief in Response to Fluor's Motion for Summary Judgment. (ECF No. 202.) Moreover, non-party Associated Builders and Contractors, Inc. filed an Amicus Brief (ECF No. 199), to which Plaintiffs filed a Brief in Response (ECF No. 214).³ Plaintiffs also filed a supplement asking the court to take judicial notice of the Information and Plea Agreement of Kevin B. Marsh, SCANA's former CEO, who intends to plead guilty in a criminal matter related to the underlying facts of this case.

(ECF No. 219.) Defendants filed Briefs in Response (ECF Nos. 221, 227), to which Plaintiffs replied (ECF No. 232).

For the reasons below, the court GRANTS Fluor's Motion for Summary Judgment (ECF Nos. 189 (Butler ); 233 (Pennington )), GRANTS SCANA's Motion for Summary Judgment (ECF Nos. 192 (Butler ); 236 (Pennington )), DENIES Plaintiffs’ Motion for Summary Judgment (ECF Nos. 191 (Butler ); 235 (Pennington )), DENIES Plaintiffs’ Request to Supplement (ECF Nos. 219 (Butler ); 263 (Pennington )), and DISMISSES the case with prejudice.

I. BACKGROUND⁴

In 2008, SCANA contracted with Westinghouse Electric Company LLC ("WEC") to build two nuclear reactors at the V.C. Summer Nuclear Station in Jenkinsville, South Carolina ("Project"). (ECF No. 114 at 6 ¶ 31 (Pennington ).) The Project, along with one other unrelated nuclear reactor site in Georgia, "represent[ed] the first new generation of nuclear power plant construction in the United States in 30 years." (Id. ¶ 32 (Pennington ).) SCANA owned the Project site and facilities. (Id. at 5 ¶ 25 (Pennington ).)

The contract between SCANA and WEC took the form of an Engineering, Procurement, and Construction Agreement ("EPC Agreement"). (ECF Nos. 114 at 6 ¶ 31 (Pennington ); 193 at 3.) "Under the EPC Agreement, WEC was generally responsible for the design, manufacture, and procurement of the nuclear reactor, steam turbines, and generators[.]" (ECF Nos. 41 at 5 ¶ 34 (Pennington ); 114 at 6 ¶ 34 (Pennington ).) In January of 2016, WEC hired Fluor as a subcontractor to "employ craft employees on the [P]roject and t[a]ke responsibility for management of on-site construction while [WEC] remained responsible for designing, engineering, construction, and project management." (ECF No. 114 at 7 ¶ 37 (Pennington ).) Later in 2016, WEC asked Fluor to complete a cost analysis to determine the cost of completing the Project based on WEC's current schedule. (ECF Nos. 68 at 4 ¶ 41(Pennington ); 114 at 7 ¶ 41 (Pennington ).) This Estimate to Completion ("ETC") cost analysis allegedly found the Project would cost several billion dollars more than previously anticipated, for which WEC would be liable. (ECF No. 41 at 8 ¶ 42 (Pennington ).)

Subsequently, the financial health of WEC deteriorated to the point that, on March 29, 2017, WEC filed for bankruptcy protection under Chapter 11 of Title 11 of the United States Bankruptcy Code in the Southern District of New York. (ECF Nos. 41 at 8 ¶ 45 (Pennington ); 68 at 5 ¶ 45 (Pennington ); 114 at 8 ¶ 45 (Pennington ).) Shortly thereafter, SCANA and WEC entered into an Interim Assessment Agreement ("IAA"), which stated the parties remained obligated to continue performing work under the EPC Agreement and that going forward, SCANA would pay Fluor, among other things. (ECF Nos. 114 at 8 ¶ 46 (Pennington ); 192-5.) WEC continued as the on-site contractor for the Project. (See ECF No. 114 at 9 ¶ 53 (Pennington ).) The United States Bankruptcy Court approved the IAA. (See ECF No. 192-5.) Plaintiffs contend SCANA began taking a more active role at the Project after WEC's bankruptcy such that it essentially became a single employer with its contractors under the WARN Act.⁵ (ECF No. 193 at 3-4.)

On July 31, 2017, SCANA stopped all construction at the Project. (ECF Nos. 41 at 17 ¶ 95 (Pennington ); 68 at 8 ¶ 95 (Pennington ); 114 at 15 ¶ 95 (Pennington ).) As a result of this decision, it appears that approximately 5,000 workers were impacted who had been working and/or receiving assignments at the Project.⁶ (See id. ) It is undisputed that SCANA alone ordered the Project's closure and gave no advanced warning to Fluor. (ECF No. 205 at 35.)

As a result of the foregoing, Plaintiffs filed a putative class action Complaint in this court against Defendants in August 2017, alleging a violation of the WARN Act. (ECF Nos. 1, 41 (Pennington ).) Plaintiffs contend SCANA, WEC, and Fluor, which comprise a total of six different entities, essentially all acted as a single employer under the WARN Act and knowingly failed to give their employees at least 60 days’ prior notice of termination of their employment as required by the WARN Act. (ECF No. 41 (Pennington ).) Plaintiffs further argue Fluor should not escape liability under the WARN Act because the shutdown was reasonably foreseeable. (ECF No. 1 at 7 ¶ 33.)

II. JURISDICTION

This court has jurisdiction over Plaintiffs’ cause of action under the WARN Act via 28 U.S.C. § 1331, as it arises under a law of the United States, and also via 29 U.S.C. § 2104(a)(5), which empowers district courts to hear claims alleging violations of the WARN Act.

III. LEGAL STANDARD

A. Summary Judgment

Summary judgment should be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). A fact is "material" if proof of its existence or non-existence would affect the disposition of the case under the applicable law. Anderson v. Liberty Lobby Inc. , 477 U.S. 242, 248-49, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A genuine question of material fact exists where, after reviewing the record as a whole, the court finds that a reasonable jury could return a verdict for the nonmoving party. Newport News Holdings Corp. v. Virtual City Vision , 650 F.3d 423, 434 (4th Cir. 2011).

In ruling on a motion for summary judgment, a court must view the evidence in the light most favorable to the non-moving party. Perini Corp. v. Perini Constr., Inc. , 915 F.2d 121, 123-24 (4th Cir. 1990). The non-moving party may not oppose a motion for summary judgment with mere allegations or denial of the movant's pleading, but instead must "set forth specific facts" demonstrating a genuine issue for trial. FED. R. CIV. P. 56(e) ; see Celotex Corp. v. Catrett , 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; Anderson , 477 U.S. at 252, 106 S.Ct. 2505 (1986) ; Shealy v. Winston , 929 F.2d 1009, 1012 (4th Cir. 1991). All that is required is that "sufficient evidence supporting the claimed factual dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at trial." Anderson , 477 U.S. at 249, 106 S.Ct. 2505.

"When considering motions from both parties for summary judgment, the court applies the same standard of review and so may not resolve genuine issues of material fact." Monumental Paving & Excavating, Inc. v. Pa. Mfrs.’ Ass'n Ins. Co. , 176 F.3d 794, 797 (4th Cir. 1999) (citation omitted). "Instead ... [the court] consider[s] and rule[s] upon each party's motion separately and determine[s] whether summary judgment is appropriate as to each under the Rule 56 standard." Id. (citation omitted).

B. The WARN Act Generally

The passage of the WARN Act came about during a difficult time for America's workers. In 1987, Bureau of Labor statistics reflected that

during the five-year period 1981-1986, over 11 million workers lost their jobs under circumstances suggesting that they would not get them back. Many of these workers had considerable job experience--5.1 million had worked a minimum of three years in their former jobs. Half of the latter group had worked

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