The opinion of the court was delivered by: Spatt, District Judge.
The complaints in these two actions — CV 89-4240 ("Action #1") and
CV 90-2010 ("Action #2") — contain the same factual and legal
allegations; only the identity of the defendants differ. The substance of
the allegations in the complaint in CV 89-4240 was discussed at
length by the Court in Memoranda and Orders of June 12, 1990 and
September 22, 1990. The actions stem from employee lay-offs since
February 4, 1989 at Robert Abbey, Inc., a Brooklyn manufacturer.
Presently submitted to the Court are several motions and
cross-motions. They are as follows: (1) by defendants Martin Abbey and
John Doe Company to dismiss the claims in Action #2 pursuant to Fed.
R.Civ.P. 12(b)(6); (2) by defendants Martin Abbey and John Doe Company
for summary judgment dismissing the claims in Action #2; (3) by
plaintiffs for certification of a class action in both Action #1 and
Action #2; (4) by plaintiffs to consolidate Action #1 and Action #2; and
(5) to compel or protect certain discovery.
I. MOTIONS BY MARTIN ABBEY AND JOHN DOE COMPANY TO DISMISS THE COMPLAINT
IN ACTION #2 FOR FAILURE TO STATE A CLAIM
The applicable standard of review on a motion to dismiss is that "the
court should not dismiss the complaint pursuant to Rule 12(b)(6) unless
it appears `beyond doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to relief'" (Goldman v.
Belden, 754 F.2d 1059, 1065 [2d Cir. 1985] [quoting Conley v. Gibson,
355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 ]; see also
Branum v. Clark, 927 F.2d 698, 705 [2d Cir. 1991]). In assessing the
sufficiency of the Complaint, the Court must accept the allegations of
the Complaint as true (see Branum v. Clark, supra; Procter & Gamble Co.
v. Big Apple Industrial Bldgs., Inc., 879 F.2d 10, 14 [2d Cir. 1989],
cert. denied, 493 U.S. 1022, 110 S.Ct. 723, 107 L.Ed.2d 743 ), and
must construe all reasonable inferences in favor of the plaintiff (see
Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90
). A motion to dismiss is addressed solely to the face of the
pleading, and "[t]he court's function . . . is not to weigh the evidence
that might be presented at a trial but merely to determine whether the
complaint itself is legally sufficient" (Goldman v. Belden, supra, 754
F.2d at p. 1067).
The Court may not consider matters submitted outside the pleading at
issue unless notice is given to all parties that the motion is being
converted to a motion for summary judgment and the parties are afforded a
reasonable opportunity to present additional pertinent material (see
Krijn v. Pogue Simone Real Estate Co., 896 F.2d 687, 689 [2d Cir. 1990];
see also Festa v. Local 3 Int'l Brotherhood of Elec. Workers, 905 F.2d 35,
38 [2d Cir. 1990] [this rule is mandatory]). No notice having been given
to the parties that the Court would convert the defendants' motion into a
motion for summary judgment, the Court declines to consider the affidavit
of Martin Abbey as it relates to his "Cross Motion to Dismiss" (cf.
Maggette v. Dalsheim, 709 F.2d 800,
802 [2d Cir. 1983] ["a court is not obligated to treat a 12(c)
motion as a motion for summary judgment"]).
B. The Complaint In Action #2
The complaint in Action #2 alleges two causes of action against both
Martin Abbey and John Doe Company: (1) that they violated the
notification requirements of the Worker Adjustment and Retraining Act of
1988 ("WARN"), 29 U.S.C. § 2101, et seq., in connection with a "plant
closing" or "mass layoff" at Robert Abbey, Inc., as those terms are
defined in the statute; and (2) that they breached the seniority
provisions of the collective bargaining agreement in force and effect
between Robert Abbey, Inc. and Local Union Number 3 of the International
Brotherhood of Electrical Workers ("Local 3"), by failing to lay off
workers in order of seniority.
The claims in Action #2 are dependent on the alleged relationship
between the defendants and Robert Abbey, Inc. In this regard, the
complaint alleges as follows:
"9. . . . Upon information and belief,
[John Doe Company] is and has been at
all times material hereto the alter ego,
joint employer and successor employer,
and successor to and assignee and agent
of Robert Abbey, Inc. . . . .
8.*fn* At all times mentioned herein or material hereto, defendant
Martin Abbey was the Vice-President and an owner of Robert Abbey, Inc.
and, upon information and belief, an owner of John Doe Company, and a
controlling corporate officer or director or manager of each of them and
exercised control of all aspects of management of both Robert Abbey, Inc.
and John Doe Company, including, but not limited to, labor relations. Upon
information and belief, Martin Abbey is, and has been at all times
material hereto, the alter ego and joint employer Robert Abbey, Inc. and
of John Doe Company and the successor employer and the successor to and
assignee and agent of Robert Abbey, and an employer within the meaning of
29 U.S.C. § (a)(1) and 29 U.S.C. § 2102 of WARN."
(i) The WARN Claim Against Martin Abbey
The basic WARN requirement is as follows:
"An employer shall not order a plant closing or mass layoff
until the end of a 60-day period after the employer serves
written notice of such an order —
(1) to each representative of the affected employees as of
the time of the notice or, if there is no such representative
at that time, to each affected employee; and
(2) to the State dislocated worker unit . . . and the chief
elected official of the unit of local government within which
such closing or layoff is to occur." (29 U.S.C. § 2102[a])
A review of the statute, its applicable regulations and its legislative
history indicate that "employer" does not include individual persons.
29 U.S.C. § 2101 (a)(1) defines "employer" as follows:
"(1) the term `employer' means any business enterprise