Weekes–Walker v. Macon Cnty. Greyhound Park, Inc., Case No. 3:10–cv–895–MEF.

877 F.Supp.2d 1192

Judy WEEKES–WALKER, et al., Plaintiffs,

v.MACON COUNTY GREYHOUND PARK, INC., a/k/a VictoryLand, Defendant.

Case No. 3:10–cv–895–MEF.

United States District Court,

M.D. Alabama,

Eastern Division.

July 6, 2012.

James Bruce Perrine, Bailey & Glasser, LLP, Montgomery, AL, John Michael Segrest, The Segrest Law Firm, Tallassee, AL, for Plaintiffs.

Patrick Ladd Wheeler Sefton, Timothy Justin Gallagher, Robert Earl Sasser, Sasser, Sefton, Tipton & Davis, P.C., Montgomery, AL, Fred Sr. D. Gray, Stanley Fitzgerald Gray, Gray Langford Sapp McGowan Gray & Nathanson, Tuskegee, AL, for Defendants.

MEMORANDUM OPINION AND ORDER

MARK E. FULLER, District Judge.

This Rule 23(b)(3) class action brought by former employees of Defendant Macon County Greyhound Park, Inc. (“MCGP”), pursuant to the Worker Adjustment and Retraining Act of 1988 (“WARN”), 29 U.S.C. §§ 2101 et seq., alleges that MCGP—on three separate occasions in 2010—violated the WARN Act's requirement to give sixty days notice to affected employees prior to a plant closing or mass layoff, as defined in the statute. The class action is now before the Court on Plaintiff's motions to strike affirmative defenses and for partial summary judgment on liability (Docs. # 43, 44) and Defendant's motion for summary judgment (Doc. # 73). After careful consideration of the arguments of counsel and the relevant law, the Court finds that Plaintiff's motion for partial summary judgment on liability is due to be GRANTED and Defendant's motion for summary judgment is due to be DENIED.

I. JURISDICTION AND VENUE

Subject matter jurisdiction is exercised pursuant to 28 U.S.C. § 1331 (federal question) and 29 U.S.C. § 2104(a)(5) (WARN Act may be enforced in federal district court). The parties do not contest personal jurisdiction or venue, and there are adequate allegations in support of both.

II. STANDARD OF REVIEW

“Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” Greenberg v. BellSouth Telecomms., Inc., 498 F.3d 1258, 1263 (11th Cir.2007) (citation and internal quotation marks omitted); see alsoFed.R.Civ.P. 56(a) (“The court shall grant summary judgment 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.”).

“[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (quotation omitted). The movant can meet this burden by presenting evidence showing there is no dispute of material fact, or by showing the non-moving party has failed to present evidence in support of some element of its case on which it bears the ultimate burden of proof. Id. at 322–23, 106 S.Ct. 2548.

If the movant satisfies its evidentiary burden, the non-moving party must then establish, with evidence beyond the pleadings, that a genuine issue material to each of its claims for relief exists. Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.1991); Fed.R.Civ.P. 56(c). What is material is determined by the substantive law applicable to the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see also Lofton v. Sec'y of the Dep't of Children & Family Servs., 358 F.3d 804, 809 (11th Cir.2004) (“Only factual disputes that are material under the substantive law governing the case will preclude entry of summary judgment.”). Furthermore, “[t]he mere existence of some factual dispute will not defeat summary judgment unless that factual dispute is material to an issue affecting the outcome of the case.” McCormick v. City of Ft. Lauderdale, 333 F.3d 1234, 1243 (11th Cir.2003) (citation and internal quotation marks omitted).

A genuine dispute as to a material fact can be found only “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505;see also Greenberg, 498 F.3d at 1263. However, if the evidence on which the nonmoving party relies “is merely colorable, or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 242, 106 S.Ct. 2505 (citations omitted). Likewise, “[a] mere scintilla of evidence in support of the nonmoving party will not suffice to overcome a motion for summary judgment[,]” Young v. City of Palm Bay, 358 F.3d 859, 860 (11th Cir.2004), and the nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Furthermore, a nonmoving party's “conclusory allegations ... in the absence of supporting evidence, are insufficient to withstand summary judgment.” Holifield v. Reno, 115 F.3d 1555, 1564 n. 6 (11th Cir.1997); see also Cordoba v. Dillard's, Inc., 419 F.3d 1169, 1181 (11th Cir.2005) ( “Speculation does not create a genuine issue of fact ....”) (emphasis in original).

When a nonmovant fails to set forth specific facts supported by appropriate evidence sufficient to establish the existence of an element essential to his case and on which the nonmovant will bear the burden of proof at trial, summary judgment is due to be granted in favor of the moving party. Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548 (“[F]ailure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.”).

III. BACKGROUND

On the South side of I–85 North (which traverses Alabama mostly from West to East, or latitudinally) sits the mostly ¹ vacantbut still imposing collection of structures and parking decks that made up Macon County Greyhound Park, Inc., more commonly referred to as VictoryLand. Once a small-scale greyhound track in rural Alabama, then a multi-multi million dollar casino offering electronic bingo, the site now stands as a mausoleum to a short period of Alabama history when vast profits were made (legally or illegally) off of a game which its sponsors held out as electronic charity bingo.

This case is between MCGP and its former employees, and mostly concerns the last year or so of MCGP's existence. The beginning of the end for electronic charity bingo at MCGP can be traced back to December 30, 2008, when then-Governor Bob Riley issued Executive Order No. 44, which created the Governor's Task Force on Illegal Gambling. Seizures of electronic bingo machines at other Alabama establishments offering the game known as electronic charity bingo resulted in litigation, and on November 13, 2009, the Alabama Supreme Court issued a decision in Barber v. Cornerstone Comm'y Outreach, Inc., 42 So.3d 65 (Ala.2009). Construing the term “bingo” in Lowndes County's Local Amendment No. 674 authorizing charity bingo in Lowndes County (which is nearly identical to Macon County's Amendment No. 744), the Supreme Court of Alabama engaged in a comprehensive discussion of the definition of “bingo” and, based upon its arrived at definition, dissolved a lower court's preliminary injunction against the Task Force, reasoning that the gaming operators “failed to introduce substantial evidence from which the trial court reasonably could have concluded that [the respondent gaming operators] had a ‘reasonable likelihood of success' in proving that the electronic gaming machines seized ... constituted the game of bingo.” Id. at 86.

The ramifications of the Alabama Supreme Court's decision in Cornerstone traveled up I–85 well in excess of the posted 70 mile per hour speed limit, and MCGP would soon commence its own litigation in an ultimately futile effort to keep Governor Riley's Task Force at bay.

In the interim, on January 5, 2010, MCGP laid off 68 employees because of planned renovations to the facility's North Gaming Section.² (Pls.' Mot. 9 (Doc. # 44); Def.'s Br. in Support 3 (Doc. # 74); Def.'s Resp. 3 (Doc. # 56).) The layoffs were expected to be temporary in nature and MCGP admits that “it did not provide WARN notices to those employees....” (Def.'s Resp. 3; (Doc. # 106, at 2).) Moreover, MCGP avers that it “did not have any knowledge that the Governor's Task Force on Gambling would attempt to raid its facility one month later.” (Def.'s Resp. 4.)

Meanwhile, the Supreme Court of Alabama denied rehearing in the Cornerstone case on January 29, 2010. That very day, John M. Tyson, Jr., the task force commander and special prosecutor for the Governor's Task Force, arrived at MCGP for the purpose of seizing MCGP's bingo machines. Fortunately, it appears that MCGP was prepared for such an event, because it had a complaint ready to be filed that very morning. Macon Cnty. Greyhound Park, Inc. d/b/a VictoryLand v. John M. Tyson, Jr., No. 10cv9 (Cir. Ct. Macon Cnty. Jan. 29, 2010) (Alacourt summary). The litigation effort against the Governor's Task Force started well enough, when the Circuit Court of Macon County entered a temporary restraining order. Tyson v. Macon Cnty. Greyhound Park, Inc., d/b/a VictoryLand, 43 So.3d 587, 589 (Ala. Feb. 4, 2010). Tyson countered with an emergency motion in the Alabama Supreme Court to vacate the restraining order, arguing that the Alabama courts lacked subject matter jurisdiction to enjoin criminal prosecutions and investigations. The Alabama Supreme Court agreed, issuing its opinion on February 4, 2010. Id.

Knowing that a raid was imminent, MCGP closed its doors on February 4, 2010, ³ the day that the Alabama Supreme Court dissolved the Macon County Circuit Court's temporary restraining order. It is undisputed that MCGP laid off all of its...