OPINION AND ORDER
FRANKLIN S. VAN ANTWERPEN, UNITED STATES DISTRICT JUDGE
I have before me an unopposed Motion for Summary Judgment of defendant Bethlehem Steel Corporation ("Bethlehem"), a Motion for Voluntary Dismissal Without Prejudice of plaintiff Equal Employment Opportunity Commission ("Plaintiff") with supporting memorandum and Bethlehem's Memorandum in Opposition thereto, and the Memorandum of defendant union, United Steelworkers of America ("The Steelworkers") in support of its unopposed Motion to Intervene as a Defendant.
The Steelworkers' Motion to Intervene was granted by a court order entered December 21, 1989, but I am considering the Memorandum in support of this unopposed Motion to Intervene because it sets forth The Steelworkers' position in support of Bethlehem's Motion for Summary Judgment.
For the reasons given below I will grant the Motion for Summary Judgment and enter judgment in favor of defendants Bethlehem Steel Corporation and The Steelworkers and against Plaintiff. I will deny Plaintiff's Motion for Voluntary Dismissal Without Prejudice.
This case involves policies of defendant Bethlehem regarding the application of pension benefits and severance pay to employees whose jobs are terminated due to reduction in forces. The policies involved affect all classes of employees, both those represented by The Steelworkers and those who are not.
After administrative proceedings, Plaintiff filed this action on January 11, 1988 on behalf of affected employees, alleging Bethlehem's failure to provide the same severance benefits to older employees, regardless of age or pension eligibility, as was given to younger, non pension eligible employees, violated the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 et seq.
Because the parties were engaged in lengthy settlement discussions, the Plaintiff agreed to an extension of time to respond to the Complaint. Bethlehem's Answer was filed on September 26, 1988.
Settlement discussions continued until May, 1989, when Plaintiff and Bethlehem agreed that there was no factual dispute and that cross motions for summary judgment should be filed. The Steelworkers agree that there is no factual dispute and support the granting of summary judgment against Plaintiff. By Order dated May 17, 1989, I ordered that the parties file cross motions for summary judgment by no later than July 16, 1989.
On June 23, 1989, before the motions were filed, the United States Supreme Court handed down its landmark decision in Public Employees Retirement System v. Betts, 492 U.S. 158, 109 S. Ct. 2854, 106 L. Ed. 2d 134 (1989). This case held that Section 4(f)(2) of the ADEA, 29 U.S.C. § 623(f)(2), "exempt[s] the provision of a bona fide [employee] benefit plan from the purview of the ADEA so long as the plan is not a method of discriminating in other, non fringe-benefit aspects of the employment relationship. . . ." Betts, 109 S. Ct. at 2866. The Justices voted 7 to 2 and the holding is clear. The parties do not dispute that the effect of Betts was to eliminate any legal basis Plaintiff may have had in the instant case. The question remains as to what we should do about this.
Because of the decision in Betts, on July 12, 1989, I ordered that the parties be allowed an additional ninety days (until October 15, 1989) in which to file their cross motions for summary judgment. This was to permit the parties to analyze the impact of Betts on this action. On September 20, 1989, Plaintiff filed a Motion to Stay Proceedings pending the outcome of possible legislation which might reverse or modify the Supreme Court's holding in Betts. The Motion was opposed by Bethlehem. Bethlehem filed its Motion for Summary Judgment on October 13, 1989.
On November 13, 1989, at Plaintiff's request, I granted Plaintiff an additional 15 days after my then pending decision on the Motion to Stay Proceedings in which to respond to Bethlehem's Motion for Summary Judgment. I denied the Motion to Stay Proceedings on November 14, 1989, thereby requiring Plaintiff to respond to Bethlehem's Motion for Summary Judgment by November 29, 1989. On December 4, 1989, Plaintiff filed its Motion for Voluntary Dismissal Without Prejudice and stated that this was in lieu of a formal response to Bethlehem's Motion for Summary Judgment. Bethlehem filed a memorandum in opposition to that Motion.
On the same day (December 4, 1989), I vacated my Order of November 13, 1989 which had allowed until November 29, 1989 for Plaintiff's response to the Motion for Summary Judgment, and Ordered that Plaintiff's response to Bethlehem's Motion for Summary Judgment be filed by December 15, 1989. In spite of the Court's Orders and requests, Plaintiff has never filed a memorandum responding to the merits of Bethlehem's Motion for Summary Judgment.
Plaintiff's Motion for Voluntary Dismissal Without Prejudice
Pursuant to Fed.R.Civ.P. 41(a)(2) an action may be dismissed without prejudice, however, the rule expressly provides that:
"an action shall not be dismissed at the plaintiff's instance save upon order of the court and upon such terms and conditions as the court deems proper. . . ."
In considering a motion to dismiss, the Court is vested with great discretion. The court must exercise its discretion with due regard to the legitimate interests of both parties. "A plaintiff's motion under Rule 41(a)(2) should not be denied absent substantial prejudice to the defendant." Andes v. Versant Corp., 788 F.2d 1033, 1036 (4th Cir. 1986). Such prejudice can include the fact that the motion for voluntary dismissal comes at a late stage in the proceedings, after much time and expense have been invested by the parties. See: Ferguson v. Eakle, 492 F.2d 26 (3d Cir. 1974).
In the instant case, there have been substantial proceedings covering a period of more than four years. The case began with administrative proceedings in 1986 which directly led to the filing of this action in January, 1988. Voluminous records of Bethlehem are involved in this litigation and many of these records were provided to Plaintiff even prior to the formal filing of the lawsuit. Discovery has been taken, there have been substantial legal expenses, and as detailed by Bethlehem in its memorandum in opposition to Plaintiff's Motion for Voluntary Dismissal Without Prejudice, substantial legal expense has been incurred by Bethlehem since Betts was decided, even though that decision effectively ended Plaintiff's cause of action.
Prejudice can also, and more importantly, include the possible loss of a substantial right. "The crucial question to be determined is, Would the defendant lose any substantial right by dismissal." Durham v. Florida East Coast Ry. Co., 385 F.2d 366, 366 (5th Cir. 1967).
In the instant case, the prejudice to Bethlehem and The Steelworkers is beyond question. For reasons which I will discuss more fully in connection with the Motion for Summary Judgment, as the law stands now, following the Betts decision, Bethlehem and The Steelworkers have a clear bar to liability in this action. Plaintiff and Bethlehem agreed in May, 1989, that this matter was factually ripe for summary judgment. The Steelworkers support this position. Bethlehem and The Steelworkers argue that Bethlehem's Motion should be granted notwithstanding Plaintiff's Motion to Dismiss Without Prejudice. There is authority that in such circumstances a motion to dismiss without prejudice should not be granted. See Klintworth v. Atlantic Coast Line Railroad Company, 39 F.R.D. 330 (D.S.C. 1966).
The only reason given by Plaintiff for dismissal without prejudice is its speculation that the United States Congress might pass legislation negating the Betts decision and take the further step of applying the legislation retroactively to defendants such as Bethlehem and The Steelworkers. There is great uncertainty that such legislative action will ever come, much less come quickly. Even if legislative action does come some day, it is even less certain that the Congress would choose to retroactively apply it to prior situations or to any case pending at the time of the Betts decision.
How long are we to wait before giving defendants the judgment they are clearly entitled to? 5 years, 50 years? Would not the concept of finality in the American system of justice be rendered meaningless if we are going to delay entering judgment because of future actions that a legislative body might take. We might sooner wait for the end of the world to finally terminate litigation.
We must add that this is not a case which in any way shocks the conscience of the Court. Quite the contrary. To meet the statutory prerequisites, Plaintiff has had to technically characterize the policies involved in this case as ones of discrimination against older workers. Bethlehem and The Steelworkers characterize these policies as being intended to coordinate benefits in an even handed attempt to balance the interests of all classes of workers. Bethlehem has presented, in its Motion for Summary Judgment, an uncontested reasonable factual statement, and in its uncontested Motion to Intervene as a Defendant, The Steelworkers characterize these same policies which affect its union members as the result of honest and fair arm's length collective bargaining. These facts are discussed in greater detail later on in this opinion, but on the basis of them, there is simply no supervening equitable or moral case for granting Plaintiff's Motion.
As pointed out by Bethlehem and The Steelworkers, the policies and agreements involved in this case affect substantial rights of many thousands of employees, as well as many millions of dollars. Any remedy would inevitably affect not only the direct policies involved but, because of the costs involved, the substantial interests of all classes of Bethlehem's employees, including those active, furloughed and retired, the owners and creditors of Bethlehem, and the public at large. Clearly there is much at stake and issues of this magnitude cannot be allowed to hang unsettled on the mere speculation of some future change in the law.
Nothing could be more prejudicial to a defendant than dismissal without prejudice at a time when there is a valid defense, on the speculation that the defense might be lost at some time in the future. Since a lack of substantial prejudice to the defendants, the fundamental condition for a dismissal without prejudice, is so clearly lacking, Plaintiff's Motion for Voluntary Dismissal Without Prejudice must be denied.
Defendant's Motion for Summary Judgment
The Statement of Claims in Plaintiff's Complaint reads, in its entirety, as follows:
7. Since at least January 1, 1983, and continuously thereafter, Defendant Employer has engaged in unlawful employment practices on a corporate-wide basis in violation of Section 4(a) of the ADEA, 29 U.S.C. Section 623(a), by denying severance pay to retirement-eligible employees because of their age.
8. The effect of the practices complained of above has been to deprive its employees of equal employment opportunities and otherwise adversely affect their status as employees because of age.