Free Response to Motion - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-CV-01185-WDM-PAC GREG FELDMAN, Plaintiff, v. JOBSON PUBLISHING, LLC, a Delaware limited liability company, f/k/a Jobson Publishing Acquisition, LLC, f/k/a Jobson Publishing, L.L.C.; and XJP, LLC, a Delaware limited liability company, f/k/a Jobson Publishing, L.L.C., Defendants.

PLAINTIFF'S RESPONSE TO DEFENDANT JOBSON PUBLISHING, LLC'S MOTION TO DISMISS PLAINTIFF'S SECOND AMENDED COMPLAINT AND REQUEST FOR ORAL ARGUMENT

Plaintiff Gregory Feldman, by counsel, responds to Defendant Jobson Publishing, LLC's Motion to Dismiss as follows: FACTUAL AND PROCEDURAL HISTORY Plaintiff filed his First Amended Complaint in this matter on July 14, 2004 against Jobson Publishing L.L.C., Postgraduate Institute for Medicine, and International Center for Postgraduate Medical Education (Docket #2). In response, former defendant Jobson Publishing L.L.C. filed a Motion to Dismiss or Alternatively to Compel Arbitration (Docket #3). While that motion was pending, Plaintiff learned that former defendant Jobson Publishing L.L.C. had been acquired. After making numerous requests for information regarding the acquisition, Plaintiff ultimately learned that former defendant Jobson Publishing L.L.C. sold all of its assets, except for liability for this lawsuit and one other liability, to a newly-created company called Jobson Publishing 1

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Acquisition, while retaining all liabilities, including specifically enumerated liability for this lawsuit and one other liability. (See Def's Motion to Dismiss, Ex.1). Subsequently, former defendant Jobson Publishing L.L.C. changed its name to XJP, LLC, and Jobson Publishing Acquisition changed its name to Jobson Publishing, LLC. Thus, it was the newly-created Jobson Publishing, LLC, now holding the recently-acquired assets of the former Jobson Publishing L.L.C., that was acquired in April 2005. At the scheduling conference in this matter on November 15, 2005, the Court inquired as to whether all proper defendants had been named and served, and permitted Plaintiff to conduct a Fed. R. Civ. P. 30(b)(6) deposition of XJP, LLC to obtain the necessary information to amend his complaint with respect to the identity of the defendants. Following that deposition, Plaintiff named XJP, LLC ("XJP") and Jobson Publishing, LLC ("Jobson") as defendants in Plaintiff's Second Amended Complaint on January 25, 2006 (Docket #49). On the same day that Defendant Jobson filed its Motion to Dismiss, Defendant XJP filed an Answer to Plaintiff's Second Amended Complaint.1 Jobson is a proper defendant in this matter pursuant to a successor liability theory. As explained in more detail below, Defendant Jobson's Motion to Dismiss should be denied for three reasons: (1) Plaintiff has alleged facts in his complaint that are sufficient to demonstrate that he is entitled to relief against Jobson under a successor liability theory; (2) Jobson satisfies all of the factors adopted by the Tenth Circuit for determining successor liability; and (3) Jobson's corporate restructuring to contract around liability for Mr. Feldman's lawsuit is not dispositive of the issue of successor liability.
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As of the filing of this Response, neither Defendant XJP, LLC nor Defendant Jobson has filed a Corporate Disclosure statement pursuant to FRCP 7.1(a).

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ARGUMENT STANDARD OF REVIEW As an initial matter, Plaintiff notes that Jobson did not explicitly state under what legal authority it brought its Motion to Dismiss.2 Nonetheless, from the language of the motion, it appears that it was brought pursuant to either Fed. R. Civ. P. 12(b) or 12(c).3 The Tenth Circuit has held that a motion to dismiss pursuant to Rule 12(c) is reviewed under the same standard as a motion under 12(b). Nelson v. State Farm Mut. Auto. Ins. Co., 419 F.3d 1117 (10th Cir. 2005); McHenry v. Utah Valley Hosp., 927 F.2d 1125, 1126 (10th Cir.1991). Specifically, a court reviewing a motion to dismiss under either Rule 12(b) or 12(c) is required to accept all well-pleaded factual allegations in the complaint as true and view them in the light most favorable to the nonmoving party. A dismissal...will be affirmed only when it appears that the plaintiff can prove no set of facts in support of the claims that would entitle the plaintiff to relief. Nelson at 1119, quoting Clark v. State Farm Mut. Auto. Ins. Co., 319 F.3d 1234, 1240 (10th Cir. 2003). Therefore, this Court must review the factual allegations contained in Plaintiff's Second Amended Complaint in the light most favorable to Plaintiff. Furthermore, the Court should deny Defendant's motion if Plaintiff is able to show that the facts as alleged in his complaint would entitle Plaintiff to relief against Jobson under a successor liability theory.

Local Rule 7.1(C) states, in pertinent part, "a motion involving a contested issue of law shall state under which rule or statute it is filed and be supported by a recitation of legal authority incorporated into the motion." 3 For example, Defendant's Motion recites that "[plaintiff's] allegations . . . must be taken as true for purposes of this Motion to Dismiss . . ." (Def Jobson's Motion to Dismiss, p. 3), thus seeming to indicate that the motion is brought pursuant to Fed. R. Civ. P. 12(b) or 12(c).

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I.

Because Plaintiff has alleged facts sufficient to demonstrate that Jobson is a proper defendant under a successor liability theory, Jobson's Motion should be denied.

In his Second Amended Complaint, Plaintiff alleged that Jobson is a proper party to this matter as a successor in interest to the entity that employed Plaintiff, Jobson Publishing L.L.C. In 1974, the United States Court of Appeals for the Sixth Circuit applied a theory of successor liability to a Title VII lawsuit. E.E.O.C. v. MacMillan Bloedel Containers, Inc., 503 F.2d 1086 (6th Cir. 1974). Previously, successor liability had been applied under the National Labor Relations Act ("NLRA"). Id. In holding that a successor liability theory should also be available in a Title VII action, the MacMillan Court reasoned: [f]ailure to hold a successor employer liable for the discriminatory practices of its predecessor could emasculate the relief provisions of Title VII by leaving the discriminatee without a remedy or with an incomplete remedy. In the case where the predecessor company no longer had any assets, monetary relief would be precluded. Such a result could encourage evasion in the guise of corporate transfers of ownership. Id. at 1091-92. The MacMillan court adopted the same factors employed by the United States Supreme Court in the NLRA context to determine successor liability, which involve mixed questions of law and fact. Id. at 1094. The court then denied summary judgment to the successor because of its finding that the evidence before the court as to these factors created a genuine issue of material fact as to the defendant's successor status. Id. In Trujillo v. Longhorn Manufacturing Co., Inc., the Tenth Circuit adopted the MacMillan successor liability test, noting that "the nature and extent of [successor] liability is subject to no formula, but must be determined upon the facts and circumstances of each case." 694 F.2d 221 (10th Cir. 1982) citing MacMillan, 503 F.2d at 1092.

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In Scott v. Sopris Imports, Ltd., Chief Judge Babcock, relying on Trujillo, observed that determining the issue of successor liability "appears to be a mix of law and fact," and "[the court] must examine the facts of th[e] case to determine which of the MacMillan [successor liability] factors is determinative and whether to impose liability . . . . " 962 F.Supp. 1356, 1359 (D. Colo. 1997). Additionally, other courts have similarly concluded that a determination as to whether successor liability should attach necessarily involves analysis of factual as well as legal issues, and thus occurs most often at summary judgment or at trial. See e.g. Jackson v. Lockie Corp., 108 F.Supp.2d 1164 (D. Colo. 2000) (granting defendant's motion for summary judgment due to lack of notice); Scott v. Sopris Imports Ltd, 962 F.Supp. 1356 (D. Colo. 1997) (defendant's motion for summary judgment granted due to lack of notice, lack of continuity of business, and predecessor's ability to pay); Gamez v. Country Cottage Care & Rehab, 377 F. Supp.2d 1103 (D. N.M. 2005) (denying defendant's motion for summary judgment on the issue of successor liability despite contractual provision to the contrary); Walker v. Faith Technologies, Inc., 344 F.Supp.2d 1261 (D. Kan. 2004) (denying defendant's motion for summary judgment on issue of successor liability due to remaining issues of fact concerning successor's notice and predecessor's ability to provide relief). Indeed, in applying the MacMillan factors to the facts before it, the Scott court noted that in MacMillan itself, the district court erred when it dismissed the case before the defendant had filed an answer or responded to any interrogatories because issues of fact remained that precluded summary judgment. Scott, 962 F.Supp. at 1359. Here, Jobson filed its motion in lieu of an answer to Plaintiff's Second Amended Complaint; thus Plaintiff has not had the opportunity to conduct any discovery from Jobson regarding the factors identified by the Tenth

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Circuit as relevant to the question of successor liability.4 Nevertheless, as described in Part II infra, Plaintiff's Second Amended Complaint alleges facts sufficient to demonstrate that Jobson's predecessor, XJP, has not shown an ability to provide relief to Mr. Feldman, and that there is a substantial continuity of business between the predecessor and the successor. To this point, Plaintiff has not been able to obtain any factual information relevant to the successor liability factors other than the heavily redacted purchase agreement originally provided by former defendant Jobson Publishing L.L.C. in response to a request for production of documents, and submitted to the Court by Jobson as an attachment to its motion. Plaintiff has requested, on multiple occasions, an unredacted version of the purchase agreement to gain a more complete understanding of defendant XJP's financial position, most recently in his written discovery requests to XJP. This and other information relevant to the successor liability factors is necessary for Plaintiff and this Court to determine whether Jobson is a proper defendant in this matter. As the discussion below will demonstrate, much of the information required to decide whether successor liability should attach is available only from the successor itself. A dismissal of Jobson prior to allowing Plaintiff to conduct discovery about its potential liability to Plaintiff would undermine Plaintiff's ability to seek relief in this case. In short, Jobson's Motion to Dismiss is premature. Plaintiff has not had an opportunity to conduct any discovery with respect to Jobson, and as the Tenth Circuit and this Court have ruled, the question of successor liability is necessarily fact-dependent. Furthermore, the limited information provided by Jobson demonstrates that Jobson's motion must fail because, as discussed below, under the lesser standard for a motion brought pursuant to Rule 12(b) or 12(c)
While Plaintiff has conducted a 30(b)(6) deposition of XJP pursuant to this Court's order, he has not had an opportunity to conduct discovery with respect to Jobson.
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(as opposed to the summary judgment standard), Plaintiff has alleged in his Second Amended Complaint facts sufficient to entitle Plaintiff to relief against Jobson. II. Jobson satisfies all of the factors of the successor liability test.

In applying a successor liability theory to a Title VII action, the MacMillan Court adopted a nine-factor test for determining successor liability: (1) whether the successor company had notice of the charge, (2) the ability of the predecessor to provide relief, (3) whether there has been a substantial continuity of business operations, (4) whether the new employer uses the same plant, (5) whether he uses the same or substantially the same work force, (6) whether he uses the same or substantially the same supervisory personnel, (7) whether the same jobs exist under substantially the same working conditions, (8) whether he uses the same machinery, equipment and methods of production and (9) whether he produces the same product. MacMillan at 1094. The Tenth Circuit subsequently adopted the nine-factor test for successor liability enunciated in MacMillan. See Trujillo 694 F.2d at 225 n.3 (agreeing with the Sixth Circuit that the legislative intent behind Title VII demonstrates a desire for the courts to use wide discretion in exercising equitable powers to provide the most complete relief possible). In Jackson v. Lockie Corp., this Court refined the nine-factor test to a three-factor test: (1) whether the successor had notice of the charge prior to the successor's purchase of assets; (2) the predecessor's ability to provide relief; and (3) the continuity of business between the predecessor and the successor. Jackson v. Lockie Corp., 108 F.Supp.2d 1164, 1167 (D. Colo. 2000). Additionally, the Jackson court placed particular emphasis on the first two factors. Id. Here, as to the first factor, Plaintiff has alleged that Jobson had notice of this lawsuit prior to purchasing the assets of Jobson Publishing L.L.C. (Compl. ¶ 48). Notwithstanding the public nature of a lawsuit generally, liability for this lawsuit was explicitly stated in the purchase

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agreement. (See Def's Motion to Dismiss, Ex.1, "Schedule of Liabilities"). Therefore, Plaintiff has alleged facts sufficient to demonstrate that the first factor for successor liability has been met: Jobson had notice of this lawsuit prior to purchasing the assets of Jobson Publishing L.L.C. As to the second factor, Plaintiff's complaint and Jobson's own documents demonstrate that there are significant questions as to whether the predecessor, defendant XJP, has the ability to provide Plaintiff relief in this matter. (See Compl. ¶¶ 7, 45, 47). In Trujillo, the Tenth Circuit concluded that the "predecessor's receipt of the sale proceeds and its right to continuing payments do not alone demonstrate its ability to pay the judgment when other potential liabilities are not covered by the evidence." Trujillo, 694 F.2d at 225. Indeed, in evaluating the predecessor's ability to provide relief, the Tenth Circuit held that even providing the purchase price and payment scheme at trial was insufficient to establish the predecessor's ability to provide relief to the plaintiff. Id. at 225 (noting that "no current financial statement of the predecessor was tendered at trial"). At this phase of the case, there is not sufficient evidence to establish XJP's ability to provide relief. The Schedule of Liabilities provided by Jobson as an exhibit to its motion demonstrates that there is a second liability, in addition to Plaintiff's lawsuit, that was retained by XJP. Because Jobson redacted the portion of the purchase agreement that specifies the nature of the second liability, Plaintiff and this Court do not know what that other liability is or what value it may possess. Additionally, Defendants have not disclosed the amount of the assets that were left in XJP to satisfy both liabilities, thus raising further questions as to whether there are sufficient assets remaining in Defendant XJP to satisfy this lawsuit and the second, undisclosed liability.

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Therefore, the second factor for establishing successor liability has been met because Plaintiff has alleged facts sufficient to provide Plaintiff relief from Jobson in this matter. Finally, with regard to the third successor liability factor ­ continuity of business between the predecessor and the successor ­ in his Second Amended Complaint, Plaintiff alleged that Jobson substantially continued the business of former defendant Jobson Publishing L.L.C. (Compl. ¶ 46). Indeed, nowhere in its Motion to Dismiss does Jobson dispute that it continued the business of former defendant Jobson Publishing L.L.C. Additionally, the purchase agreement provided by Jobson as an exhibit to its Motion to Dismiss, though heavily redacted, at least demonstrates that Jobson essentially purchased all of the assets of Jobson Publishing L.L.C. (See Def's Motion to Dismiss, Ex. 1, "Purchase Agreement"). Therefore, Jobson acquired every aspect of the business performed by Jobson Publishing L.L.C., leaving behind only the liability for this lawsuit and one other liability. Thus, Plaintiff has alleged facts sufficient to demonstrate that there is complete continuity of business between the predecessor (Jobson Publishing L.L.C.) and the successor (Jobson Publishing, LLC) and has therefore satisfied the third factor of the successor liability test. Plaintiff's Second Amended Complaint alleges facts sufficient to demonstrate that Jobson is a proper defendant in this matter under a theory of successor liability. Plaintiff has alleged that Jobson had notice of this lawsuit prior to its purchase of assets from Jobson Publishing L.L.C. In addition, Plaintiff has alleged that Defendant XJP, LLC may not have an ability to provide relief should Plaintiff prevail on his claims. Finally, Plaintiff has alleged that Jobson continued the business of Plaintiff's former employer, Jobson Publishing L.L.C. Therefore, Jobson's motion should be denied.

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III.

Defendant's corporate restructuring to contract around liability is not dispositive of the issue of successor liability.

Nowhere in its Motion to Dismiss does Jobson dispute Plaintiff's assertion that all of the factors for establishing successor liability have been met. Instead, Jobson argues that its efforts to contract around liability permit this Court to ignore the successor liability test. However, Defendants' effort to contract around liability is not dispositive of the issue of successor liability. Indeed, Jobson does not, and cannot, point to any cases to support its conclusion that a purchase agreement provision claiming to indemnify a successor from liability for a lawsuit precludes application of the successor liability test as a matter of law. Defendant argues that successor liability should not be applied in this case because XJP and Jobson specifically contracted to place any potential liability relating to Plaintiff's claims with XJP. In making this argument, Defendant relies upon the following language from Trujillo: "[The successor] had notice of the EEOC complaint and could have provided for its nonliability or indemnification in the sale agreement." Trujillo 694 F.2d at 225. However, a reading of MacMillan, on which the Tenth Circuit based its decision in Trujillo, makes clear that the Sixth Circuit never intended to allow successors to contract out of Title VII liability in the way Defendant suggests. In MacMillian, the Sixth Circuit addressed this point directly, stating that: [The successor's] potential liability for remedying the unfair labor practices is a matter which can be reflected in the price he pays for the business, or he may secure an indemnity clause in the sales contract which will indemnify him for liability arising from the seller's unfair labor practices. MacMillan, 503 F.2d 1086, 1090. Clearly, the Sixth Circuit was not contemplating that a successor could escape Title VII liability by agreeing with the predecessor entity that any

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such liability would remain with the predecessor. Rather, the court in MacMillan simply was pointing out that a successor can reduce the impact of successor liability under Title VII either by negotiating a lower purchase price or by requiring the predecessor entity to indemnify it. Not only is this reading clear on its face, it is the only reading that is consistent with the other policy goals articulated in both MacMillan and Trujillo. As the MacMillan court noted, the amenability of the predecessor to suit and its ability to provide relief will be a necessary inquiry, "[t]he primary concern, however, is to provide the discriminatee with full relief. Such relief may be awarded against the successor." MacMillan 503 F.2d at 1092. Elaborating on that point, the Sixth Circuit went on to state: Failure to hold a successor employer liable for the discriminatory practices of its predecessor could emasculate the relief provisions of Title VII by leaving the discriminatee without a remedy or with an incomplete remedy. In the case where the predecessor company no longer had any assets, monetary relief would be precluded. Such a result could encourage evasion in the guise of corporate transfers of ownership. Id. at 1091-92. The Tenth Circuit echoed in Trujillo the policy goals articulated by the Sixth Circuit when it stated, "Furthermore the court noted that the Senate-House Conference Report on Title VII expressed the legislative intention that the courts use wide discretion in exercising equitable powers with the goal of fashioning the most complete relief possible." Trujillo, 694 F.2d at 225. Moreover, the interpretation urged by Defendant, that a successor can contract out of Title VII liability in the context of an asset sale, runs counter to the general rule governing nonliability in the context of an asset sale. As the Tenth Circuit observed in West Texas Refining & D. Co. v. Commissioner of Int. Rev., a successor is presumed not to be liable for the misdeeds of

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the predecessor entity (absent four enumerated exceptions, including that the purchaser is a "mere continuation of the seller"). 68 F.2d 77, 81 (10th Cir. 1933). Against this universally recognized backdrop, it simply makes no sense that the court in Trujillo would intend that a successor can escape Title VII liability simply by contracting to that effect with the seller. If the presumption is that successors do not assume the liabilities of successors, there is no need to specifically contract to the same effect. Surely, the Tenth Circuit in Trujillo did not intend to create a new "belt-and-suspenders" requirement for asset sales, where parties can no longer rely upon long settled law but must, instead, specifically contract around the disposition of the seller's liabilities. However, a reading of the language Defendant relies upon that is consistent with MacMillan avoids such a curious outcome, for it is clearly established that a seller and buyer can agree to indemnify the buyer against any liabilities it incurs as a result of the seller's past conduct. Additionally, other language in Trujillo indicates that the case does not stand for the proposition that providing for nonliability in the sale agreement precludes application of the successor liability test as a matter of law. Indeed, the Trujillo court expressly stated that successor liability "should be determined on a case by case basis," and that, on the facts before it, "the equities . . . favor successor liability because it is the successor who has benefited from the discriminatory employment practices of its predecessor." Id. at 225 quoting MacMillan at 1092. Similarly, Jobson's reliance on Scott v. Sopris Imports, Ltd. is equally problematic. In Scott, the court did not impose liability on the successor entity because it found, after an exhaustive analysis of the facts before it, that none of the factors discussed above were met. Scott, 962 F. Supp. at 1359. Specifically, the Scott court concluded that the successor entity's lack of notice

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regarding the plaintiff's EEOC charge was dispositive. Id. However, the court went on to observe that the other MacMillan factors also weighed against liability. Id. The court concluded that the plaintiff had not presented sufficient evidence to show that the predecessor did not have an ability to provide relief. Id. Furthermore, the court stated that the similarity in business between the predecessor and the successor was not sufficient to constitute "continuity" as contemplated by MacMillan and Trujillo. Id. Thus, in both Trujillo and Scott, the courts relied upon the defendants' notice, or lack thereof, of the Plaintiff's lawsuit in determining the issue of successor liability. Neither court held that contracting around liability precluded application of a successor liability test as a matter of law. However, the court in Gamez v. Country Cottage Care & Rehab., rejected the defendant's argument that imposing successor liability would pose an undue hardship upon the defendant where the successor had specifically provided for its nonliability. Gamez, 377 F.Supp.2d at 1124. The Gamez court concluded that although the purchase agreement in that case contained a provision explicitly stating the successor did not assume the liabilities of the predecessor, summary judgment for the successor was not appropriate because genuine issues of fact remained regarding the MacMillan/Trujillo factors articulated above. Id. The court applied a successor liability test notwithstanding the successor's attempt to contract around liability, and denied the successor's motion for summary judgment on the basis of successor liability. Id. Here, although the successor (Defendant Jobson) and the predecessor (Defendant XJP) included a specific contractual provision limiting the liability of the successor, this provision is similarly not dispositive. As a matter of law and equity, defendants should not be able to avoid a successor liability test merely by performing superficial corporate restructuring as was done in

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this case. As in Gamez, this Court should still apply the successor liability test. Pursuant to the standard under Rule 12(b) or 12(c), Plaintiff has alleged facts sufficient to support a finding that Jobson had notice of this lawsuit, XJP does not have an ability to provide relief, and Jobson continued the business of Plaintiff's employer. Therefore, as in Gamez, denial of Jobson's motion is appropriate as Plaintiff has satisfied the relevant standard of review at this stage of litigation. CONCLUSION As both the Tenth Circuit and this Court have recognized, the test for successor liability is a mixed question of law and fact. Plaintiff has not had an opportunity to conduct any discovery from Jobson with respect to the three factors relevant to the issue of successor liability. Furthermore, the limited information provided by Jobson demonstrates that Jobson had notice of this lawsuit, XJP retained liability for something other than this lawsuit, the value of which is unknown, and Jobson continued the business of predecessor XJP. Plaintiff has alleged these facts in his Second Amended Complaint. Thus, Plaintiff has alleged facts sufficient to entitle him to relief from Jobson under a successor liability theory. For the reasons set forth above, Plaintiff respectfully requests this Court deny Defendant Jobson Publishing, LLC's Motion to Dismiss Plaintiff's Second Amended Complaint.

Plaintiff requests oral argument before the Court on this motion.

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Dated: March 2, 2006 Respectfully submitted, STUDENT LAW OFFICE By:__s/ Ari Krichiver______________ Ari Krichiver, Student Attorney University of Denver Sturm College of Law 2255 E. Evans Avenue Suite 335 Denver, CO 80208 303.871.6140 (Telephone) 303.871.6847 (Fax) By:__s/ Mary Walsh______________ Mary Walsh, Student Attorney University of Denver Sturm College of Law 2255 E. Evans Avenue Suite 335 Denver, CO 80208 303.871.6140 (Telephone) 303.871.6847 (Fax) By:___s/ Laura L. Rovner_______________ Laura L. Rovner University of Denver Sturm College of Law 2255 E. Evans Avenue, Suite 335 Denver, Colorado 80208 303.871.6140 (Telephone) 303.871.6847 (Fax) [email protected] (E-mail) Attorneys for Plaintiff Gregory Feldman

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CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 2nd day of March, 2006, a true and correct copy of the above and foregoing MOTION TO DISMISS PLAINTIFF'S SECOND AMENDED COMPLAINT FROM DEFENDANT JOBSON PUBLISHING, LLC AND REQUEST FOR ORAL ARGUMENT was sent via electronic mail to: [email protected] [email protected]

______s/ Laura L. Rovner______________ Laura L. Rovner STUDENT LAW OFFICE University of Denver Sturm College of Law 2255 E. Evans Avenue Denver, CO 80208 Tel: 303.871.6140 Fax: 303.871.6847 Email: [email protected]

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