the court good after almost afternoon my name is alan vaught i'm the attorney for the appellants in this lawsuit this particular case represents three cases that one appeal that addressed the war in act and generally addressed drilling rig workers roughnecks this case was held in abeyance pending the ruling in a case drilling which came out adversely to my side however after that case came out the second the third cases walker v trinidad as the court main note from the docket i believe that was held in abeyance as well we dismissed that case because it is it had fact patterns very similar to the last children case however we did not dismiss this one because we believe it is very different in his fact pattern the evidence before the district court when he granted summary judgment and other matters addressed in our brief from the lifestyle drilling opinion really the core issues before the court are number one was it appropriate especially in hot and in light of this course decision and heine shorn of the care ban and shaw on deciding summary judgment when there's competing declarations completing competing affidavits and very importantly competing test deposition testimony that race fact issues that should go to the jury  believe that under that hind one standard the district court respectfully committed error when it entered summary judgment on one of the causes of action asserted by plaintiffs in this case essentially these were matters of race for the first time on reply we requested more time and to rule fifty six f two to brief these matters those were denied and the court granted summary judgment on all theories recover even though one only one was pleaded in the motion for summary judgment the second matter assuming argue window that appellant's did not prevail and getting a reversal is the matter of  showing of the case being frivolous it's so with regards to the four causes of action that were before the court a set forth in a mass layoff at a single site of employment that's kind of the key issue when it comes to the war not determination here single side of employment we submitted that pursuant to twenty or six thirty nine point three i three that there was evidence before the court as to reasonable geographic proximity of drilling rigs operating and operational areas and your principal argument oh that is a management supervisory connection between the two you do have so evidence statement that you could see one rig from another  basically your argument i thought explicitly was to rely on the management connection will certainly know that that is one part of it i guess it's important up to back up and explain this management structure and operational structure and and one of the key distinctions in this case from the latch all case that's important for you to do yes sir and i'll do that right now  patterson drilling has eight operational areas and in each operational area and seven of those are made a part of this case in each of those operational areas they have a regional yard for example the middle and yard the tyler yard the  fruit and colorado you are all the employee earning statements or rigs operating within those operational areas the employer next statement will say for example  employee of a rig employee fruita colorado employee tyler texas all payroll for those employees and hiring decisions for those employees are made through each regional office now each regional office w have one or more drilling superintendents that based upon the undisputed testimony manage about five drilling rigs so the issue we have here is very distinct from the they were in fact when the employees were let go it listed at the top of their firing their pink slip that they were a rig employee tyler for example as opposed to some general employee the patterson drilling so in this case we were able to present at the summary judgment level contradictory evidence to the motion filed by the appellant that each employee in each operational area which we sought to make its own class they shared employees and equipment amongst the drilling rigs in those operational areas those drilling rigs had the same purpose they drilled wells clients for example with regards to the specific testimony on being able to see the rigs we know exactly which rigs those planes worked on in pages fourteen to fifteen of our brief we d by name plaintiff each one is purported class rep for an operational area the rigs upon which they worked and when they worked there and furthermore that evidence to shown in something called the i d c reports international association or one contractor reports which were put into evidence but moving aside from that reasonable geographic proximity which was really something the decision focused on and it was a focus of the latch a case we had other pleaded causes of action the alsatian employer which does not have a geographic proximity test it just states that a single side of employment is the place where the assigned home base is which there's facts here which a jury could look at to determine well patterson says these workers are rig employees victoria texas on the earnings statements their payroll comes through their management comes through there that is their single side of employment it also allows for suicide to be a place from which the work is a sign and it's undisputed that the drilling superintendents who managed up to five drilling rigs and consequently up to around twenty some odd employees each on each rig there's single site of employment that equals at least one third of the employees at this single site of employment to lose their jobs in a certain time period plant closing just require fifty employees lose their job there's no percentage tests an important distinction there's also no geographic regional test and in fact one of the things that appellant claims in this case they claim that each of their drilling rigs an individual profit that cuts against them that's evidence in our favor when it comes to plant closing because if you look down at twenty c a for six thirty nine point three j it talks about operational unit within a plant or added across a single side of employment so that is yet another cause of action that we have evidence of in the record that we could submit to the jury another reason we believe the quarter honestly granted s judgment and then finally we argued the truly unusual organizational situation under six thirty nine point three i e the court as noted in davis v signal in turn stated there's a dearth of case law on that end and the truth be known when it comes to single sided employment under warren x is a dearth of case law on it in general in the fifth circuit this is not a common law that comes up or gets argue just happy camper declarations it was deposition testimony of thirty six witnesses of last all drilling we submitted and our support some of their drilling superintendents we submitted in our support that support d c these  victoria area or the area covered by the victoria regional office that the chain of supply management still flowed from middle it didn't transfer to victoria so that helps us really isolate these operational areas to focus on them as a single side of employment we also believe that to get the court respectfully committed error by granting summary judgment on causes of action we've pleaded that were not raised and underlying most for s objected to that at the hearing we believe we should have been afforded a better opportunity to brief it and address it and then finally with regards to the matter of cost the court did award costs in this good faith and there's a close legal issue with regard to the other matters under the one act there's not there's no dispute that these layoffs happen that the numbers are there we had a good faith basis for bringing this claim our clients lost their jobs to now impose cost upon them i believe would be adding insult to injury but they had a good faith basis for believing this and as the fifth circuit has noted on the absence of case law there close legal issues here legal issues are different been decided before and this one being on the other spectrum from the latch all case we believe still supports our basis for good faith and that this is a close issue it seems to me to this of other theories and you judgment was in part improper because it was to respond to a interestingly this court in the last decision from august of this year specifically addressed it one part of that which was whether the plant closing  issue had been raised by the latch on that case and specifically found that in that case in the summary judgment briefing latch on had cited the two criteria both for plant closing and mass layoffs cited the text of sections twenty one zero one eight two which is plant closing and twenty one a one a three which defined mass layoff and the court this court went on to say that the argument then the latch i made was that because a single site was the rig then the plaintiffs in that case failed to meet the standard for either plat plant closing or a mass layoff and that that issue in fact had been addressed improperly ruled on by the court on summary judgment and your honor we have the same situation here all of those theories are claims what however you want to categorize them some of them frankly are just definitions under the regulations but all those theories and claims that the plaintiffs claimed were were raised specifically in the motion for summary judgment not just in the reply but in the motion for summary judgment in this case the plant closing criteria was was quoted in extensively at pages fourteen eight to fourteen eight eighty one of the record and that's a motion for summary judgment and the defendant appellee argued specifically that because the single site was the rigged that neither criteria for plant closing or mass layoff was met because the r undisputed undisputed had fewer than fifty employees that was addressed bear also your honor contrary to what the appellate have argued here in addition both outstation employees was addressed in fact four pages of defend its motion for summary judgment was devoted to a discussion of outpatient excuse me out stationed employees and that we had the site for the record in our in our briefing i believe that starts at the  fourteen ninety six on the record four pages the interesting thing about that theory is that plaintiffs failed to respond at all to that it is not in their response three it was not addressed at all at the motion for summ judgment hearing and under the rules the local rules as well as the federal rules and so procedure that theory was actually unopposed and the court on that basis alone was proper to grant summary judgment and really at this point first so the plant closing theory on the plant closing argument actually in compass says this idea of excuse me i'm losing my train of thought here so it actually in compass is the idea of me operational unit because an operational unit within plant closing has to be part of a single site so literally the definition of plant closing is that there was a shutdown at a single site of employment or an operation within the single side of employment so that's not a different theory that's all part of what a plant closing is then the idea is so what is a single site and that's truly as a police council said that is the key issue because if there was not a layoff that affected an employment loss of fifty or more employees at a single site then all of these arguments fail and that's where when the court in this case found the district court found that the single site was the rig it's undisputed as i said that it's impossible that fifty employees could have been laid off from that single site of employment and therefore the plaintiff can't play us can't meet either the plant closing or mass layoff that triggers  warn the alternative theories or you want to call them that are are all turned possible alternative theories of what a single site could be so for example truly unusual organization which by the way is also addressed or was addressed at page thirty two defendants motion for  the issue of reasonable geographic proximity so what's happened this case and really again going back to the key issue of was what is the single site when you the general rule that has been followed by every district court  looking at in this context or drilling rig what is the single site the general rule is that separate facilities are each a separate single site and then there are exceptions to that general rule and one is the exception if there are three cut criteria met one is it has to be the separate facilities have to be in reasonable geographic proximity and they have to do this through part by the way the plaintiff pelleas have to meet all three common operational purpose in this case just isn't latch on and just is in all the other court cases where these court courts have looked at rigs some of their single site in this case there was no specific location identified no evidence and in fact judge ellison specifically asked during the summary judgment hearing the plaintiffs at that time what where is the evidence of the location of the rigs that you were trying to they were trying to aggregate to the rigs of the appellant's and the answer repeatedly properly was there is no such evidence here in the record there was no evidence and that is exactly what the court this court and  were why doesn't that get him for that than your say and your honor that is actually exactly what was discussed at the hearing and the summary judgment motion and the transcripts and the record there were locations of the rings where the where in places like midland and so you could argue about whether that's evidence of anything in terms of distance because they could probably see those rigs from pretty far away but regardless that's very generalized testimony in addition there was testimony that you know that that a superintendent could drive from one reg to another in a day again what that means that's not the kind of specific testimony that all these other courts that have found reasonable geographic proximity  and that's really what the but the this court found a lot of shots to all those other cases where there's been geographic reasonable geographic proximity found have been have involved very specific either you know evidence of locations that were fifty miles apart or two miles apart very specific basically very specific proximity there is no evidence here of that of that nature well is that some evidence that you could drive to the different locations one supervisor has all of those why isn't that sound evidence that seem like it's on the verge of some evidence if it's not did you just take his deposition and you say which people do you drive to every day with what's on your route and how many people work on those rigs well your honor it lacked the type of specificity and that's really the issue with that was insufficient evidence  as a matter of law and that's why the court didn't think that i mean this case capable of being made out and maybe not on this record but with more testimony from the supervisor if that really is one unit if there was evidence of the specifics maybe it would depend on what those specific locations were and what the specific distances were and but that just wasn't the evidence in this case there wasn't any specific information evidence of what the actual distances were  show reasonable geographic proximity and also your honor this case fails because plaintiffs couldn't meet the other two criteria either which was the sufficient sharing of employees and equipment or the same operational purpose and again the court have looked at this for drilling rigs and specifically the tryna drag drilling and the access drilling case have both found that the fact that there may be a superintendent who has oversight over a certain number of employees that is not sufficient to show a common operational purpose and there's also authority that it's not sufficient that all the rigs might have been drilling had the common goal of drilling for oil and gas a common production doesn't make a common operational purpose and here there was testimony and evidence that these rigs are incredibly independent you've got to you've got an entire hierarchy on there on the rig you've got a rig manager who it is that rig on a daily basis working with a particular customer that they're drilling for at that particular well site how they drill when they drill whether they're doing horizontal or vertical drilling what the geography is what the engineering is what the program is all of those specifics that go into what a drilling rig does are very unique to that particular drilling rig drilling that hole for that particular customer under a particular contract in fact it's so specific that the customer has a company man representatives what they call them company man a representative who's on the job site who is who is working directly with the driller and the and the rig manager on what really helping decide what's going on that drilling rig at any given point in time that drill that rig manager that driller has authority to be able to to discipline employees and factories evidence that certain employees to get discipline because and from the raid manager and the driller so that all shows how independent those rigs are operating and the repairs are what's responsible for the financial performance of that rig based on the particular contract terms that they're operating under appellants had plenty of opportunity if they felt that there was anything else they needed additional discovery a stay of the court's ruling they had plenty of opportunity to make that kind of motion to the court and they did not under all fifty six i haven't looked at your actual outstation there one page that talks about truly unusual i know understand it all frankly your honor and in fact even in the summary judgment hearing judge allison specifically asked about the the factors for truly unusual asked about the davis case  and that was addressed by the court interestingly i know a pelleas appellant schemes may have stated that geographic proximity is not a requirement for some of the theories that they want to pursue interesting lee this court in the davis case specifically said even in the truly unusual organization situation geographic proximity is important and cited to the fact that in that case that the two facilities that were going to be gated into a single site were only one mile apart so geographic proximity is important and finally i just want to address the issue of the cost and y says that because one has its own feast shifting provision that precludes an award of costs under rule fifty four and we moved for costs under rule fifty four and in fact occur if that were the case court costs were probably awarded under will fifty four if there are any is there anything else the court would like me to address at this time and for all those reasons and obviously for all the reasons that we've reached in this you i believe the first point i'd like to make goes back to the distinction between this case and the last drilling case there was a lot more evidence in the record on this case there was also evidence we submitted in our brief on our alternative theories of recovery which we didn't do in the law shall case presenting those specific sites that could support matters that we believe the movement had not moved for in the operated in texas arkansas louisiana new mexico and probably some states i'm forgetting that was a harder pattern to tie together on single side of employment were trying to tie together all the rigs operating within an operational yard the middling yard the victoria yard the fruit to colorado those rigs all stayed in the operational area those rigs shared employees in equipment operating in that operational area for example a middle and it would be the basin and splitting hairs i think a little bit was the argument on drilling rigs two different things no they drill holes in the ground i think that's splitting hairs more than the war an act requires to  well one wells a slant well the other one's a vertical well what about that they have different clients customers will if that were the case or could never be a worn act because every business in the country has different customers now that they have had the company people that direct the actions of that well i don't think that's the evidence in the record your honor and to the extent that appellant has any evidence on that there's competing evidence because here the testimony from the name plaintiffs and even the testimony from some of the witnesses for the appellant was that the decisions on what to do when to do how to do it where to do it were conveyed to my clients by patterson drilling not by some customer an oil and energy company with regards to again this this is just one of the civil side of employment examples the one that talks about reasonable geographic proximity sharing employees and equipment and same operational purpose we actually gave the corps with direct testimony on the distance from the rigs and again drilling rigs drill for a few weeks at the top they don't have mailing address i can't give you a postal address for a drilling rig they operate out of the middle in yard when they're stacked they get stacked in the middle and yard but they go out and they drill in the middle basin we had a plaintiff mr hanks testify that all of the rigs were pretty much within seeing distance of each other that's in the record he further testified that we were all drilling in the same area within three to ten mile radius  court has that evidence and that's something that supports us and getting our day in court before a jury that competes with the appellants contradicting evidence   the mother's testimony from the plaintiff's not declaration testimony but deposition testimony that the rigs operate is so close to each other that that they could drive from their rig to another drilling rig to get  and bring back to the rig so they could keep going as he sings these rigs have to operate twenty four hours a day generally seven days a week and if they don't have the parts and equipment they shut down and it has a lot of implications it will gas business that are negative with regards to the plant colors ng i respectfully disagree with council on what the definition of operating unit is in the end that said twenty c f or six thirty nine point three subsection i this says term operating unit refers to an organizationally or operational dissing product operation or specific work function within or across single side and again we're these regards the headquarters the operational areas are that single side and taking to finish argument that each one has its own profit center then that plays into supporting our argument that each one is an operating