Ribble et al v. Kimberly-Clark Corporation et al

Filing 191

ORDER granting 188 Motion to Sever, signed by Judge William C Griesbach on 04/19/2012. See Order for full detail. (cc: all counsel) (Griesbach, William)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
BRENDON F. RIBBLE, et al.,
Plaintiffs,
v.

Case No. 09-C-0643

KIMBERLY-CLARK CORPORATION, et al.,
Defendants.

ORDER GRANTING MOTION TO SEVER

This is a collective action for relief under the Age Discrimination in Employment Act
(ADEA), 29 U.S.C. § 621 et seq. Plaintiffs are 57 former Kimberly-Clark Corporation (K-C)
employees who were fired or forced to resign over a three-year period as part of a series of
reductions in force (RIFs) carried out pursuant to K-C’s Global Business Plan. A threshold issue
in the case is the validity of the releases that all but one of the plaintiffs signed as a condition of
receiving certain severance benefits. Plaintiffs contend that the releases are invalid because they
fail to comply with the Older Workers’ Benefit Protection Act (OWBPA), 29 U.S.C. § 626(f)(1).
On February 22, 2012, the Court granted in part and denied in part the parties’ cross motions for
summary judgment finding most of the releases valid but some invalid. As a result, some of the
plaintiffs may now pursue discovery and resolve their ADEA claims on the merits, whereas, the
claims of the remaining plaintiffs which were found barred by the releases must be dismissed.
Rather than await disposition of the remaining claims, those plaintiffs whose claims were held

barred now seek severance of the claims from the others so that they may pursue an immediate
appeal. For the reasons listed herein, Plaintiffs’ motion (ECF No. 188) will be granted.
Plaintiffs’ motion is brought under Fed. R. Civ. P. 21, which in pertinent part provides: “On
motion or on its own, the court may at any time, on just terms, add or drop a party. The court may
also sever any claim against a party.” The Seventh Circuit has permitted Rule 21 severance when
the claims sought to be severed as “discrete and separate” from each other. See Rice v. Sunrise
Express, 209 F.3d 1008, 1016 (7th Cir. 2000). In evaluating whether claims are discrete and
separate, the Court should consider whether they arose out of the same transaction or occurrence
and whether they present common issues of law or fact. Id. In other words, one claim must be
capable of resolution despite the outcome of the other claim. Gaffney v. Riverboat Servs, Inc., 451
F.3d 424, 442 (7th Cir. 2006); see also Kraft Foods Holdings, Inc. v. Proctor & Gamble Co., 2008
WL 4559703 (W.D. Wis. Jan. 24, 2008). It is within the district court’s broad discretion whether
to sever a claim under Rule 21. See Hebel v. Ebersole, 543 F.2d 14, 17 (7th Cir. 1976); see also
United States v. O’Neil, 709 F.2d 361, 367 (5th Cir. 1983). The Court’s decision to sever is
reviewed on an abuse of discretion standard. Gaffney, 209 F.3d at 1016.
Defendants argue Plaintiffs’ motion should be denied because the claims are not “discrete
and separate.” More specifically, Defendants allege the claims are not discrete and separate because
they all “stem from RIFs which Plaintiffs allege are intertwined.” (ECF No. 190 at 2.) But
Defendants’ argument confuses the issue of the validity of the releases with individual claims of
discrimination. Defendants are correct, in other words, to suggest there are common facts at play
in this case, as the validity of the releases involves some common questions of law and facts. But
this does not mean there would be a loss in judicial economy of severing the claims, as the
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underlying claims themselves will still involve a separate determination as to each Plaintiff as to
whether the decision to terminate his or her employment was due to age discrimination. In other
words, the RIFs and waivers and background facts might be common to all Plaintiffs in a particular
group, but these waivers say nothing as to the likelihood that each individual Plaintiff was
discriminated against on the basis of age. The claim is age discrimination, and as to each plaintiff,
that is a “discrete and separate” inquiry.
Not only is the severance permissible, but in my view severance is the option that makes the
most sense given the posture of the case. The claims are already quite old, and requiring the
plaintiffs whose claims have been held barred to wait until the claims of the remaining plaintiffs are
fully resolved will result in additional delay. If the Court erred in concluding that the releases are
valid, the sooner that error is corrected by the Court of Appeals, the sooner they will be able to
resolve their claims. Delay could mean that already stale evidence will fade even more from the
memories of potential witnesses. Severing the losing plaintiffs from the winning does not harm
them, for the winning plaintiffs’ claims will continue. In fact, those plaintiffs can immediately
begin prosecution of Phase II; they will not have to wait for the appeal to run its course. No
prejudice has been shown to any party.
Defendants argue that by seeking severance under Rule 21, plaintiffs are attempting to avoid
the limitations of Fed. R. Civ. P. 54(b). Where, as here, a party seeks to appeal from a decision or
order that adjudicates fewer than all of the claims or the rights and liabilities of fewer than all of the
parties, an appeal is allowed only if the district court determines that there is no just reason for delay
and expressly directs the Clerk to enter final judgment. Fed. R. Civ. P. 54(b). The determination
that there is no just reason for delay requires consideration of several factors:
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[I]n deciding whether there are no just reasons to delay the appeal of individual final
judgments in setting such as this, a district court must take into account judicial
administrative interests as well as the equities involved. Consideration of the former
is necessary to assure that application of the Rule effectively preserves the historic
federal policy against piecemeal appeals . . . . It was therefore proper for the District
Judge here to consider such factors as whether the claims under review were
separable from the others remaining to be adjudicated and whether the nature of the
claims already determined was such that no appellate court would have to decide the
same issues more than once even if there were subsequent appeals.
Curtiss-Wright Corp. v. General Elec. Co., 446 U.S. 1, 8 (1980) (internal quotes and citations
omitted); see also General Ins. Co. of America v. Clark Mall Corp., 644 F.3d 375, 379 (7th Cir.
2011). Defendants argue that if plaintiffs believe that the case is an appropriate one for a Rule 54(b)
certification, they should make such a request. By requesting severance instead, plaintiffs appear
to concede implicitly that there is no just reason to delay entry of final judgment. If that is the case,
then to allow such a result seems improper.
Here, however, I conclude for the reasons set forth that there are good reasons to sever
wholly apart from Rule 54(b). But even if Rule 54(b) applied, I would reach the same conclusion.
It is highly unlikely that an immediate appeal of those claims I have found barred would result in
piecemeal appeals. The issue plaintiffs wish to appeal is the validity of the releases I have found
valid. The releases I found valid differ in significant ways from those I have found invalid. If the
Court of Appeals affirms my decision barring those claims, it will have no effect on the claims of
the plaintiffs who have been allowed to go forward. And if my decision is reversed, it will provide
further support for my conclusion that the releases signed by the other plaintiffs are invalid. In fact,
an immediate appeal of the barred claims is more likely to eliminate the need for a second appeal.
Under these circumstances, I conclude that plaintiffs’ motion to sever should be granted.
It will result in a more efficient use of judicial resources and not needlessly delay the appeal of those
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plaintiffs whose claims have been barred. Accordingly, plaintiffs’ motion for severance (ECF No.
188) is GRANTED.
Dated this

19th

day of April, 2012.

s/ William C. Griesbach
William C. Griesbach
United States District Judge

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