United States v. Donald Lee Dugan

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 99-2341
___________
Linda K. Burnsides; Mary M. Sorg; *
Gary Vyborney, suing on behalf of *
themselves individually and on behalf *
of a class of similarly-situated persons, *
*
Plaintiffs-Appellants, *
*
v. *
*
MJ Optical, Inc., a Nebraska *
Corporation; Optical Illusion, Inc., a *
Nebraska Corporation; * Appeal from the United States
* District Court for the District of
Defendants, * Nebraska.
*
Commercial Optical Company, Inc., a * [UNPUBLISHED]
Nebraska Corporation; *
*
Defendant-Appellee, *
*
Optical Services, Inc., a Nebraska *
Corporation; C.O.C., Inc., a *
Nebraska Corporation; Optical *
Services, Limited Partnership; *
Sheldon I. Rips, an Individual, *
*
Defendants. *

-- 1 of 3 --

-2-
___________
Submitted: January 10, 2001
Filed: January 19, 2001
___________
Before WOLLMAN, Chief Judge, and FAGG and HANSEN, Circuit Judges.
___________
PER CURIAM.
This is the second appeal in this case involving the Worker Adjustment and
Retraining Notification Act (WARN) , 29 U.S.C. §§ 2101-2109 (1994). In the first
appeal, we reversed the district court's decision that Commercial Optical Company, Inc.
did not violate the WARN Act when Commercial failed to give employees notice of a
plant closing. See Burnsides v. MJ Optical, Inc., 128 F.3d 700 (8th Cir. 1997). We
decided that under the Act, the "unforeseeable business circumstances" defense
excused Commercial from giving 60-days' written notice, but instead required
Commercial to give as much notice as practicable. See id. at 703-04. We stated that
under the circumstances, "Commercial had an obligation to notify the employees that
they would lose their jobs in two days." Id. at 704. We remanded the case for the
district court to calculate damages. See id. On remand, the district court awarded
damages in the amount of two days' pay and benefits. The employees appeal arguing
the district court committed error in finding Commercial could rely on the
"unforeseeable business circumstances" defense without giving any written notice to
employees, and the district court should have awarded damages for a sixty rather than
two-day WARN violation. These arguments ignore our holdings in the first appeal.
Having carefully considered the employees' appeal, we affirm the district court. See
8th Cir. R. 47B.

-- 2 of 3 --

-3-
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

-- 3 of 3 --