The opinion of the court was delivered by: VAN ANTWERPEN
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.
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 ...