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International Association of MacHinists and Aerospace Workers, Afl-Cio, Local Lodge No. 1821 v. Verso Corp.

United States District Court, D. Maine

August 3, 2015

INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, AFL-CIO, LOCAL LODGE No. 1821, et al., Plaintiffs,
v.
VERSO CORP., et al., Defendants.

ORDER DENYING PLAINTIFFS' MOTION FOR RECONSIDERATION AND REQUEST FOR CERTIFICATION

JOHN A. WOODCOCK, Jr., District Judge.

This case arose from an agreement between Verso Paper Corp. and Verso Paper LLC (Verso) and AIM Development USA, LLC (AIM) in which Verso agreed to sell and AIM to purchase Verso's Bucksport, Maine Paper Mill. While the sale was pending, Verso ceased paper mill operations in Bucksport, and former Verso employees of the Bucksport Paper Mill and their union sought a declaratory judgment and injunctive relief against Verso concerning their right to timely payment of severance pay and final wages, including accrued 2015 vacation pay, in accordance with time frames they said, and continue to say, are established under state law. The Court dismissed Plaintiffs' claims for severance pay because it concluded that Maine law precluded them from proceeding once the state of Maine Director of Bureau of Labor Standards (Director) brought suit in state court against the Defendants, and the Court dismissed their claims for vacation pay because it concluded that state rather than federal court, was a better venue for adjudicating that claim. Plaintiffs now ask the Court to reconsider that Order relating only to their claims for timely severance pay, or in the alternative, to certify the case for review by the Maine Law Court or the First Circuit Court of Appeals. The Court denies Plaintiffs' motion.

I. PROCEDURAL BACKGROUND

On January 6, 2015, the Court dismissed a motion for declaratory judgment and injunctive relief and a motion for attachment and trustee process brought by the International Association of Machinists and Aerospace Workers, AFL-CIO, Local Lodge No. 1821 (IAM or IAMAW), and 58 Local No. 1821 Members (Plaintiffs). Order Dismissing Pls.' Mot. for Declaratory and Injunctive Relief; and Dismissing Pls.' Mot. for Attach. and Trustee Process at 85 (ECF No. 73) ( Severance Order ). On January 20, 2015, Plaintiffs filed a motion for reconsideration and request for certification. Pls.' Mot. for Recons., Certification to the Maine Supreme Judicial Ct., or Certification of Appeal for Interlocutory Review of the Severance Pay Claims in Count 9 (ECF No. 97) ( Pls.' Mot. ). Verso filed its response in opposition on February 10, 2015. Defs. Verso Paper Corp. and Verso Paper LLC's Opp'n to Pls.' Mot. for Recons., Certification to the Maine Supreme Judicial Ct., or Certification of Appeal for Interlocutory Review of the Severance Pay Claims in Count 9 (ECF No. 100) ( Defs.' Opp'n ). Plaintiffs replied on February 27, 2015. Pls.' Reply to the Verso Defs.' Opp'n to Their Mot. for Recons., Certification to the Maine Supreme Judicial Ct., or Certification of Appeal for Interlocutory Review of the Severance Pay Claims in Count 9 (ECF No. 111) ( Pls.' Reply ). On March 5, 2015, Verso filed a surreply. Defs. Verso Paper Corp. and Verso Paper LLC's Surreply in Further Opp'n to Mot. for Recons., Certification to the Maine Supreme Judicial Ct., or Certification of Appeal for Interlocutory Review of the Severance Pay Claims in Count 9 (ECF No. 119) ( Defs.' Surreply ).[1]

II. FACTUAL BACKGROUND

A. The Severance Order

The IAMAW and the five named individual Plaintiffs filed this action on December 15, 2014. Compl. for Declaratory and Injunctive Relief (ECF No. 1) ( Compl. ). On December 22, 2014, Plaintiffs filed an amended complaint, which added 53 Local No. 1821 Members as plaintiffs and included additional allegations. First Am. Compl. for Declaratory and Injunctive Relief (ECF No. 29) ( First Am. Compl. ). In their First Amended Complaint, [2] Plaintiffs alleged that Verso refused "to comply with the laws of the State of Maine governing the timely payment of severance pay and final wages, including accrued 2015 vacation time, " in violation of 26 M.R.S. §§ 625-B and 626."[3] Id. ¶ 6. On December 23, 2014, the state of Maine and the Director filed a complaint against Verso in Kennebec County Superior Court, and a proposed consent order; Superior Court Justice Robert Mullen signed and dated the Consent Order the day it was filed. Def. Verso Paper Corp. and Verso Paper LLC's Supplemental Mem. of Law in Opp'n to Pls.' Mot. for Expedited Declaratory J. and Req. for Prelim. and Permanent Inj. Attach. 2 Compl. (ECF No. 40) ( Director Compl. ); id. Attach. 3 Consent Order.

The Court was tasked with ruling on several issues. First, it held that "it ha[d] diversity jurisdiction over all claims" brought by Plaintiffs. Severance Order at 56.

Second, and most relevant to this Order, the Court addressed whether Plaintiffs' pending prior-filed suit for timely severance pay had to be dismissed in light of the subsequent complaint filed by the state of Maine and the Director in Kennebec County Superior Court, in accordance with 26 M.R.S. § 625-B(5). Id. at 57-81. In concluding that Plaintiffs' suit for timely severance pay had to be dismissed under Maine law, the Court first considered the organization of the statute in general and section 625-B in particular. Id. at 59-61. Next, the Court considered comparative federal laws, Supreme Court caselaw interpreting those federal laws, Maine and United States Supreme Court caselaw interpreting section 625-B, the plain language of section 625-B, and the legislative history of section 625-B presented by the parties to determine what is meant by the "right to maintain an action" in relation to 26 M.R.S. § 625-B(4)[4] and 26 M.R.S. § 625-B(5).[5] Id. at 61-70. The Court discussed nine different policy reasons in support of its conclusion that Plaintiffs' suit for timely severance pay had to be dismissed. Id. at 70-80. In addition, the Court considered abstaining from ruling on Plaintiffs' severance claims; however, it explained that "Plaintiffs properly made the point that they would be filing their state lawsuit after the Director had filed her lawsuit and under their own interpretation of subsection 5, they would have been precluded from filing suit." Id. at 85 n.22. The Court agreed with their analysis, and out of "fairness to Plaintiffs, " issued a ruling on the merits rather than abstaining on this part of their claim. Id.

Third, the Court abstained from ruling on the vacation pay issue, reasoning that the Consent Order filed in Kennebec County Superior Court addressed the timing of vacation pay, and "there are matters of state law more properly resolved in state [rather] than federal court." Id. at 83-84.

B. Events Following the Court's Severance Order

After the Court issued the Severance Order on January 6, 2015, several events took place. First, the Consent Order required severance payments to be made in two installments, the first due on January 8, 2015. Consent Order ¶ 10. Verso made these payments in accordance with the Consent Order. Defs.' Opp'n Attach. 1 Decl. of Charles Welch in Support of the Verso Defs.' Opp'n to Pls.' Mot. for Recons., Certification to the Maine Supreme Judicial Ct., or Certification of Appeal for Interlocutory Review of the Severance Pay Claims in Count 9 ¶ 4 ( Welch Decl. ). Second, the Court denied Plaintiffs' motion for a temporary restraining order and preliminary injunction as to the antitrust portion of the suit on January 20, 2015. Order Denying Pls.' Mot. for a TRO and Prelim. Inj. and Addendum (ECF No. 96). Third, Verso completed its sale of the Bucksport Mill to AIM on January 29, 2015. Welch Decl. ¶ 6. Fourth, the Consent Order required the second installment of severance payments to be made by the earlier of the fifth business day after Verso's sale of the Bucksport Mill, or by March 19, 2015. Consent Order ¶ 11. The final severance payments were due by February 5, 2015, and Verso says it made these payments in accordance with the Consent Order. Welch Decl. ¶ 7. In Verso's view, all severance payments have now been made to every eligible individual Plaintiff.[6] Id. ¶¶ 8-9.

On February 19, 2015, in accordance with paragraph 14 of the Consent Order, Plaintiffs filed "a formal challenge regarding the accuracy and adequacy of the payments to... 53 individuals... with the Director of the Bureau of Labor Standards." Gilley Decl. ¶ 35. The same was also filed in Kennebec County Superior Court on February 22, 2015. Id. According to Plaintiffs, they are collectively owed an additional $357, 158.53. Pls.' Reply Attach. 4 RE: Bucksport Mill Verso's Failure to Fully Pay Severance Payments to Members of IAMAW Local Lodge # 1821 at 1. In addition, the Attorney General filed a motion to dismiss the State's claim against Verso with prejudice in Kennebec County Superior Court, and in response, Plaintiffs filed an objection, seeking dismissal without prejudice, pursuant to 26 M.R.S. § 625-B(5), on February 22, 2015. Id. Attach. 3 Objection of Interested Parties (IAMAW Local Lodge No. 1821 On Behalf of Its Members Who are the Beneficiaries) to Dismissal with Prejudice and Mot. for Dismissal Without Prejudice at 1.

Plaintiffs explain in their briefing that Justice Mullen held a telephonic hearing with the parties on February 23, 2015, whereby he "urged Verso to provide all employees with the data needed to determine the accuracy of the severance and vacation time pay that Verso has made to date." Pls.' Reply at 6. The following day, Justice Mullen entered an order, ruling that no action will be taken by the superior court regarding the pending motions to dismiss or the objection until after a telephone conference scheduled for April 8, 2015.[7] Defs.' Surreply Attach. 2 Order of Ct. at 1.

III. THE PARTIES' POSITIONS

A. Plaintiffs' Motion

Plaintiffs request the Court to reconsider its Severance Order.[8] Pls.' Mot. at 2. They ask it to "reconsider its decision not to certify the State law questions relating to the proper interpretation" of section 625-B, which they claim was made "on primarily public policy' grounds." Id. Alternatively, Plaintiffs seek certification for interlocutory appeal to the First Circuit under 28 U.S.C. § 1292(b) or to the Maine Law Court. Id. Plaintiffs explain:

Plaintiffs request that, rather than this Court attempting to interpret these provisions of Maine law, and attempt to determine the intent of the Maine Legislature, based on an incomplete submission of the legislative history of amendments to 26 M.R.S.A. § 625-B (as it has evolved since 1971), this Court should reconsider its [Severance Order]... or vacate that order and certify all questions... to the Maine Supreme Judicial Court... [or grant certification for an interlocutory appeal].

Id.

They go on to argue that because there was no "definitive precedent from the" Law Court on the proper interpretation of section 625-B, certification is proper to answer five questions:

(1) Whether the filing of a Director's action pursuant to 26 M.R.S.A. § 625-B, sub-§ 5, terminates a pending prior-filed action maintained by a labor organization on behalf of its members or by employees on behalf of themselves, or all other similarly situated employees, pursuant to subsection 4;
(2) Whether the Maine Legislature intended the right to bring and maintain actions provided in 26 M.R.S.A. § 625-B, sub-§§ 4 and 5 to be interpreted consistently with virtually identical provisions in the federal Fair Labor Standards Act (FLSA) and Age Discrimination in Employment Act (ADEA);
(3) Whether the Maine Legislature intend[ed] the mitigation of liability described in 26 M.R.S.A § 625-B, sub-§ 3(B) to require actual payment of severance "under the terms of" an express agreement, in an amount equal to or greater than the amount mandated in subsection 2, within one regular pay period after the employees' last full day of work or sooner; and
(4) Whether the "last full day of work" is the last day physically worked or whether an employee can defer the triggering of the time for payment of severance by paying gratuitous remuneration to employees after they no longer have the ability or right to work at the facility.
(5) Whether the Maine Legislature has determined that payment of attorneys' fees and costs mandated in 26 M.R.S.A. § 625-B, sub-§ 4, is contrary to public policy if paid to litigants in a prior-filed subsection 4 case, after a Director's action has been filed or such fees are consistent with encouraging private enforcement of the MSPA.

Id. at 3-4.

According to Plaintiffs, in reaching its ruling, the Court only had legislative history from the 1975 and 2003 amendments to section 625-B and they criticize the Court's public policy discussion for not citing "public policy statements from members of the Maine Legislature in floor debates, " and instead, "express[ing] its own view of the relative merit of various public policy choices." Id. at 4-5 (citing Severance Order at 80) (emphasis in Plaintiffs' original). Citing Shapiro Brothers Shoe Co., Inc. v. Lewiston-Auburn Shoeworkers Protective Ass'n, 320 A.2d 247, 257 (Me. 1974), Plaintiffs suggest that the Court improperly opined on the "efficacy or wisdom" of section 625-B. Pls.' Mot. at 5. They also believe that if the Court certified their proposed questions to the Law Court, it would "conclude the FLSA does apply and under the FLSA (which would not terminate a pending action), intervention in an action filed by the Secretary is not permitted - a line of cases Verso will no doubt raise to oppose intervention by Plaintiffs in the Verso-State action now." Id. at 5-6. Moreover, Plaintiffs say "the Court has left the Plaintiffs with no ability to enforce their right to timely payment of severance in State or federal court now, " nor are they able "to challenge the amount of payments that Verso has made to date, or will make in the future, in the Director's action." Id. at 6-7 (citing Dinan v. Alpha Networks Inc., 857 F.Supp.2d 162, 163 (D. Me. 2012)).

Next, Plaintiffs "submit that the complete legislative history of the Maine Severance Pay Statute" (they attached in part as an exhibit to their motion) proves "an unequivocal legislative intent to expand the rights provided to employees under this statute." Id. at 7. Viewed in its entirety, Plaintiffs argue that "[n]othing in the complete legislative history of the MSPA supports the Court's" public policy analysis. Id. at 7-8. In addition, Plaintiffs state that "the legislative history of the MSPA evidences an express legislative intent to prohibit negotiations by employers to pay any amount that is either less than or in a time frame later than the express requirements in the [A]ct." Id. at 8. This means, Plaintiffs say,

the Director's purported authority to negotiate a different severance payment scheme than the time limit mandated by [subsection 2] - that the court in its [Severance] Order is so keen to protect, preserve and defend - is simply not within the authority conferred on the Director (or Attorney General) in the MSPA.

Id. In fact, Plaintiffs contend that the legislative history from 1999 "suggests that the Director exceeded her authority under the MSPA in fashioning the Consent Decree entered on December 23, 2014." Id. at 9. Plaintiffs then provide a summary of the evolution of the MSPA and its corresponding legislative history, including that the Legislature expanded the right under subsection 4 to include unions on behalf of their members. Id. at 9-18. Notably, while the Court considered as part of its public policy discussion the likely difference in the amount of money collected under the FLSA compared to the MSPA as a distinguishing factor, Plaintiffs assert that "not in 1999 and not in any other year, has the Maine Legislature indicated any intent to adopt an interpretation of this law different from the FLSA, just because the sums to be collected are large... thus, employing the FLSA and ADEA is completely consistent with this law." Id. at 15. In addition, Plaintiffs criticize the Court's reasoning regarding the right to attorney's fees to "litigants who file a subsection 4 private action prior to a Director's action [as being] contrary to public policy and will encourage or reward litigiousness'" on the basis that it "is utterly without support in the history of this statute over the past forty years of its evolution since the 1975 post- Shapiro Shoe amendments." Id. at 18. They say "the fee award has been mandatory not discretionary since 1975, " and the Director's action does not change this requirement. Id.

In closing, Plaintiffs ask the Court for three alternatives: (1) reconsider and reverse its prior Severance Order "based on an incomplete legislative record"; (2) certify the case to the Law Court pursuant to 4 M.R.S. § 57; or (3) certify the case to the First Circuit for interlocutory review. Id.

B. Verso's Opposition

Verso counters that the Court should not reconsider and vacate its Severance Order because Plaintiffs have not identified "how the Court misapprehended the arguments previously presented by the parties." Defs.' Opp'n at 2. Instead, Verso says, Plaintiffs' presentation of additional legislative history not brought before the Court prior to its Severance Order represents "new legal arguments that [they] could have presented the first time around, " and are attempting "a second bite at the apple." Id. at 2-7 (citing Cochran v. Quest Software, Inc., 328 F.3d 1, 11 (1st Cir. 2003) and additional caselaw). According to Verso, Plaintiffs do not attempt to explain how they meet the legal standard for reconsideration. Id. at 5 (citing United States v. Poulin, No. 1:08-cr-00050-JAW, 2014 WL 1642269, at *2 (D. Me. Apr. 24, 2014)). It also contends that Plaintiffs' "request for declaratory judgment is now moot because each of the Plaintiffs eligible for severance has received that severance." Id. at 3. Verso cites the Declaration of Verso Human Resources Manager Charles Welch (attached to Verso's opposition) as proof that it has complied with the terms of the Consent Order filed by the state of Maine and the Director in Kennebec County Superior Court, including that it has made full payment of severance to all eligible employees (except for one disputed employee, Mr. Lowell). Id. at 9 & n.5. Thus, according to Verso, an order from the Court based on new analysis or allowing certification that would lead to a new order from this Court "would be a pure advisory opinion, disconnected from any live case or controversy." Id. at 3.

Regarding Plaintiffs' request for certification to the Law Court, Verso asserts that "their request is procedurally improper, unfair and proposes to tax the judicial resources of now a second court system, simply because Plaintiffs, having pushed aggressively to have this legal issue addressed by this Court, do not like the ruling they received." Id. In response to Plaintiffs' submission of additional legislative history to support their position for certification, Verso counters that their contention

does not change the two key conclusions underpinning the Court's determination: (1) that the specific legislative history of the [section] 625-B(5) termination provision strongly supports the determination that the Director's lawsuit displaces existing actions; and (2) that policy considerations, and the structure of the statute, cut in favor of an interpretation of [section] 625-B that privileges the Director, acting in the public interest, over private litigants who got to the courthouse first.

Id. at 11. Verso says that Plaintiffs' "new argument does not cast any different light on the Maine Legislature's express intent" regarding the Director's ability to displace suits of individual employees and, citing footnote 18 from the Court's Severance Order, "there is no relationship between this change to the statute [in 1975 where the Legislature altered the MSPA to permit unions to bring actions on behalf of their members] and the change that permits suits by the Director to terminate previously-filed private actions." Id. Regarding Plaintiffs' emphasis on the 1999 amendments, Verso argues that they "do not explain how this amendment is inconsistent with the Court's correct conclusion that the statute prioritizes suits brought by the Director over suits brought by private parties." Id. at 12. Verso contends that "none of the changes relied on by Plaintiffs is inconsistent with the Court's determination that the Maine Legislature considers the Director better positioned to enforce the statutory scheme than private litigants." Id. Verso also points out that it was Plaintiffs who insisted that the Court "issue a ruling on their severance pay claim within four weeks of the filing of their lawsuit, " and they "at no time requested certification to the Law Court or even suggested that certification might be appropriate." Id. at 13. Furthermore, Verso views Plaintiffs' request for certification as "seek[ing] a heads-we-win-tails-you-lose process, whereby the standard for Law Court certification would be little more than the receipt of an unwelcome ruling." Id. at 14. In essence, Verso argues that Plaintiffs may not request an expedited ruling, lose on the merits, and now claim it should have been certified to the Law Court all along. Id. at 14-15.

Finally, as regards Plaintiffs' request for certification for an interlocutory appeal, Verso says that their request was waived because their pending motion "provides no legal basis for the relief requested, and contains literally no argument explaining why certification is appropriate here." Id. at 4, 15 (citing Joyce v. Postmaster Gen., 846 F.Supp.2d 268, 289 n.25 (D. Me. 2012)). In the alternative, it argues that the request should be denied on the merits. Id. at 4. Specifically, Verso argues that their request "falls short of the exacting standard that governs requests for certification under § 1292(b)." Id. at 15-16 (citing an array of caselaw from this district and the First Circuit). Verso points out that "Plaintiffs did not seek any § 1292(b) certification prior to the Court's issuance of the Order and so the Order does not include the certification Plaintiffs now seek, as is required by the statute." Id. at 16 n.10 (citing 28 U.S.C. § 1292(b); Widi v. United States Dep't of Justice, No. 1:11-cv-00113-JAW, 2011 WL 5877543, at *4 (D. Me. Nov. 23, 2011)).

C. Plaintiffs' Reply

In their reply, Plaintiffs claim that "the amount of severance paid is now of relevance to the pending motion for Reconsideration." Pls.' Reply at 2. They explain:

Plaintiffs assert that, in addition to omitting Mr. Lowell, this action is not moot because Verso has still failed to pay all sums due to Plaintiffs and the State Court action failed to address the timing of such payments - indeed, under the terms of the state settlement, no Bucksport employees received all severance due them within the time prescribed by State law. Verso failed to ever provide the IAM with the weekly payment records of its members needed to determine the number of weeks within which each member worked during the 12-month period prior to each individual's last full day of work.

Id. (citing Gilley Decl. ¶ 31). They also assert that several errors have been made in calculating their severance payments. Id. at 3-4 (citing Gilley Decl. ¶¶ 32-33). In addition, Plaintiffs claim that for those IAMAW members that have received their severance payments, "the amount paid differs from the amount that Verso indicated would be paid on Exhibit A of the Consent Order." Id. at 4.

Expanding on their position that this case has not been mooted by Verso's severance payments to former employees, Plaintiffs argue that the Consent Order never attempted to resolve when full payment was due (which Plaintiffs believe should have been December 24, 2014 or January 8, 2015), and " even under the terms of the State Consent Order, each and every Bucksport employee was still denied timely payment of all severance due them by Verso under Maine law - at least half of all severance owed to every employee was untimely paid after January 8, 2015. " Id. at 7-8 (emphasis in original).

Alternatively, if the Court were to find the case moot, Plaintiffs assert that the Severance Order should be vacated pursuant to United States v. Munsingwear, Inc., 340 U.S. 36 (1950) ( Munsingwear Doctrine). Pls.' Reply at 8. Plaintiffs say this doctrine stands for the proposition that

a party who seeks review of the merits of an adverse ruling, but is frustrated by the vagaries of circumstance, ought not in fairness be forced to acquiesce in the judgment.... [C]ourts have almost uniformly held that the same is true when mootness results from the unilateral action(s) of the party who prevailed below.

Id. at 8-9. As an example, Plaintiffs cite a 2013 Law Court case, Thanks But No Tank v. Department of Environmental Protection, 2013 ME 114, ¶ 12, 86 A.3d 1, which considered and rejected a request to vacate a superior court ruling rendered moot. Pls.' Reply at 11-12. Plaintiffs argue that, unlike that case, where the Law Court reasoned that vacatur was inappropriate because the plaintiff had not demonstrated it would be unable to litigate similar issues or that public policy would be harmed, they will be unable to litigate similar issues if the Director's suit is dismissed from Kennebec County Superior Court with prejudice, and public policy will be harmed because it would go against the legislative history to section 625-B. Id. at 12.

Next, contrary to Verso's argument, Plaintiffs say that their motion is not based on a new argument they could have made previously. Id. at 15. They claim that initially, "up to and including the oral argument of the Severance Claims, the history and public policy underlying the enactment, and all amendments to, the MSPA was not at issue." Id. They go on:

The only provisions and amendments that were placed at issue by either party were the 2003 amendments to 26 M.R.S.A. § 625-B, sub-§ 3(B) and the 1975 amendments to 26 M.R.S.A. § 625-B, subsections 4 and 5. It was the Court which placed the public policy underlying the [A]ct as it has evolved since 1971 at issue, when the Court entered the January 6 Order dismissing the Severance Pay claims based on the Court's interpretation of public policy implications of imposing a State mandated amount of severance (which the court appeared to indicate it found "ill-advised"). Further, the Court (not Verso) suggested that the FLSA case law did not apply because the amounts in controversy in FLSA cases were small and in MSPA actions were in the millions of dollars - this distinction raised by the Court was the first time the Legislature's knowledge about the amount of potential recoveries under the MSPA and its impact on the right to maintain an action was placed at issue to require an examination of the legislative history. An examination of the legislative record revealed that the Maine Legislature has long been on notice about the aggregated size of MSPA recoveries - although, like FLSA recoveries, the amounts to be recovered by individual employees is still in the thousands[, ] not in the millions.

Id. (emphasis in original).

Regarding certification to the Law Court, Plaintiffs believe that "an expeditious resolution of the time-for-payment question raised by this case, was the sole basis that this Court gave for its decision not to certify the relevant State law interpretations to the Law Court." Id. at 16. Nevertheless, Plaintiffs also say that because they "have received some (but not all) severance due them through the State-Verso settlement, the time pressure that formed the foundation of the expedited calendar in the federal action no longer exists." Id. at 17.

Finally, regarding their request for an interlocutory appeal, Plaintiffs say that during a telephone conference with the Court on December 16, 2014, "the Court stated that, it would litigate the Cou[n]t 9 claims first and, regardless of its ruling on the severance issues, the Court would certify those issues as appropriate for interlocutory appeal by the losing party in any decision." Id. Thus, Plaintiffs explain that this is why they did not present any arguments or relevant caselaw in their motion supporting their position, based on this "agreed procedural decision." Id.

D. Verso's Surreply

Addressing Plaintiffs' argument that the case is not moot, Verso counters that their "arguments concerning the dispute over the amount of severance pay are irrelevant to the mootness analysis... because, as Plaintiffs have made clear, Plaintiffs' Count 9 seeks only equitable relief concerning the timing of payment." Defs.' Surreply at 3 (emphasis in original). In addition, because Plaintiffs have presented their objections regarding the sufficiency of severance payments to the Maine Department of Labor and Justice Mullen, there is no "effectual ...


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