FILED
NOT FOR PUBLICATION NOV 01 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
SERVICE EMPLOYEES No. 10-16832
INTERNATIONAL UNION, UNITED
HEALTHCARE WORKERS – WEST, on D.C. No. 2:08-cv-02980-LKK-
behalf of represented employees, CMK
Plaintiff - Appellant,
MEMORANDUM *
v.
PRIME HEALTH CARE SERVICES,
INC., et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Lawrence K. Karlton, Senior District Judge, Presiding
Argued and Submitted October 26, 2011
San Francisco, California
Before: GRABER and IKUTA, Circuit Judges, and KAPLAN,** Senior District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Lewis A. Kaplan, Senior District Judge for the United
States District Court for Southern District of New York, sitting by designation.
Plaintiff Service Employees International Union, United Healthcare Workers
– West ("SEIU") timely appeals from the summary judgment entered in favor of
Defendants. Reviewing de novo, Travelers Prop. Cas. Co. of Am. v.
ConocoPhillips Co., 546 F.3d 1142, 1145 (9th Cir. 2008), we affirm.
Plaintiff contends that Defendants violated the Federal Worker Adjustment
Relocation and Notification Act ("WARN Act") by failing to notify employees at
least 60 days before a change in hospital management that resulted in a workforce
reduction and loss of union representation. In order to trigger a duty to warn under
the WARN Act, a "mass layoff" or a "plant closing" must have occurred. See 29
U.S.C. § 2102(a) ("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[.]"); Int’l Alliance of Theatrical & Stage Employees v. Compact Video
Servs., Inc., 50 F.3d 1464, 1466 (9th Cir. 1995) ("WARN requires that an
employer give 60 days advance warning before any ‘plant closing’ or ‘mass
layoff.’").
Plaintiff argued in its opening brief only that a mass layoff had occurred at
the hospital. Plaintiff later sent a letter to the court withdrawing the contention that
a mass layoff had occurred and, at oral argument, counsel verbally confirmed the
withdrawal of this theory.
2
Instead, Plaintiff sought to argue that the change in hospital management
constituted a plant closing under the WARN Act. Unfortunately, Plaintiff did not
raise that argument in its opening brief to this court. The argument is therefore
waived. See, e.g., United States v. Kama, 394 F.3d 1236, 1238 (9th Cir. 2005)
("Generally, an issue is waived when the appellant does not specifically and
distinctly argue the issue in his or her opening brief."); Smith v. Marsh, 194 F.3d
1045, 1052 (9th Cir. 1999) ("[O]n appeal, arguments not raised by a party in its
opening brief are deemed waived. ").
Plaintiff’s other objections to summary judgment are moot.
AFFIRMED.
3