IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

Scott D. Dalesandro, )

et al., )

) 

Plaintiffs, ) Case No. C-1-01-109

)

vs. )

)

International Paper )

Company, )

)

Defendant. )

O R D E R

This is matter before the Court on Plaintiffs’ motion

for Court authorization to mail supplemental notice (Doc. No. 59)

and Defendant International Paper Company’s motion for judgment

of law that class members have already been paid vacation

benefits (Doc. No. 60). For the reasons that follow, Plaintiffs’

motion for authorization to mail supplemental notice is not welltaken and is DENIED; Defendants’ motion for judgment of law is

MOOT.

Plaintiffs in the case are a class of former employees

of International Paper Company who seek recover of benefits under

Severance Policy #828 following the sale of the B Street Mill to

Smart Paper. The question presented by pending pleadings is

identifying what benefits Plaintiffs want to recover when the

filed this lawsuit, or more precisely, what benefits did

Plaintiffs indicate they want to recover when they filed this

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lawsuit. Plaintiffs contend that their lawsuit seeks to recover

“severance benefits” in its most generic sense, i.e., everything

allegedly provided under the Plan, including payment for earned

but unused vacation. International Paper contends that

Plaintiffs’ claims for severance benefits are limited to recovery

under Section 2 of the Plan, which sets forth a formula for

payment of a cash benefit based on years of service with

International Paper. Alternatively, International Paper argues

that Plaintiffs have received their vacation benefits under the

Plan because Smart Paper assumed International Paper’s

obligations regarding earned and unused vacation under the asset

purchase agreement. In other words, according to International

Paper, Plaintiffs were “paid” for their unused vacation with

International Paper because they were able to use accrued

vacation after they became employed by Smart Paper. Notice has

already been sent to the class with their individual payment

calculations under Section 2 of the Plan. Plaintiffs now wish to

distribute a modified notice which includes a calculation for a

payment of earned but unused vacation time.

Upon review of the complaint and the pleadings, and

though it is a close question, the Court disagrees with

Plaintiffs’ contention that they have always sought recovery of a

cash payment for earned but unused vacation in this lawsuit. 

Although Plaintiffs argue that throughout the course of the

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litigation, they and International Paper have used the terms

“severance benefits,” “benefits under the Plan,” “benefits under

Policy #828,” and “Policy 828 benefits,” interchangeably, it is

clear to the Court Plaintiffs’ outward actions and statements

indicated that, until absent class members raised the issue of

vacation pay, this lawsuit was only about recovery of benefits

under Section 2 of the Plan. 

The complaint alleges that “[t]his action arises out of

International Paper’s denial of millions of dollars of severance

pay benefit benefits to which Plaintiffs are entitled pursuant to

The Reorganization Severance Policy #828.” Complaint ¶ 1. 

Although the plan at issue is entitled “Severance Policy,” and

the complaint also interchangeably uses the terms “severance pay

benefits” and “severance benefits,” the Court notes that the Plan

itself provides for a payment of earned but unused vacation under

a section captioned “Miscellaneous Benefits”, see Plan § 7.1,

whereas payment of benefits based on years of service is provided

in Section 2 under the caption, “Severance Benefits.” See id. §

2. Thus, although the Plan provides several types of benefits

upon termination, Plaintiffs’ use of the term “severance

benefits” understandably seems to limit the claim for relief to

only to Section 2 benefits. Furthermore, in common usage, the

term “severance pay” refers to a payment at termination based on

years of service, precisely the benefit provided under Section 2,

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but typically is not understood to include peripheral benefits,

such as vacation pay. See WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY,

at 2081 (1971).

The Court recognizes of course that in most cases, the

complaint should be liberally construed in favor of the

plaintiff. Thus, were this issue arising for the first time at

an early stage in the litigation, the Court would be inclined to

agree with Plaintiffs that use of the term “severance benefits”

is broad enough to cover all of the benefits provided by the

Plan. Until recently, however, the course of the proceedings has

shown that Plaintiffs only objectively indicated, and thus have

only provided fair notice of, an intention to recover Section 2

benefits. For instance, in arguing in favor of class

certification, Plaintiff’s argued that:

The only conceivable variation is that the actual

dollar amount of severance pay recovered by each class

member will be different since the mathematical formula

set forth in Section 2 of the Plan takes into account

factors such as years of employment and salary at the

time of termination. Yet, the method for calculating

severance pay under the Plan is identical for all class

members.

See Doc. No. 29 (Plaintiffs’ motion for class certification), at

41 n.204. Later in their brief, Plaintiffs argued that class

members were not required to file administrative claims for

severance pay, and thus should not be excluded from the class,

because pursuant to Section 8, International Paper was obliged to

pay Section 2 benefits automatically upon termination of

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employment. See id. at 44-45. Plaintiffs then argued that class

certification was appropriate under Rule 23(b)(3) because “the

class claims are identical in every aspect except for the

’mechanical’ calculation of severance pay–which can be calculated

for each class member by using the formula in Section 2 of the

Plan.” Id. at 52-53 (emphasis in original). During a telephone

conference with the Court regarding the form of the proposed

class notice, most of the discussion centered on the exhibit with

the calculation of benefits, with International Paper stating

without objection that “this is really sort of a straightforward

matter of calculating the benefits, sort of what your last salary

was, what your years of service was, and to a certain extent,

what your age is[.]” See Doc. No. 42, Transcript at 6. No

discussion was had regarding calculation or notice regarding

payment of earned but unused vacation. Indeed, the proposed

notice to the class actually submitted to the Court only provides

a calculation of benefits consistent with Section 2 of the Plan.

See Doc. No. 43, Ex. 1. Finally, the Court notes that

Plaintiffs’ application for attorney’s fees is based on their

success in obtaining Section 2 benefits for the class, which they

describe as “the maximum amount of damages” they reasonably could

have been expected to recover,” without any reference to recovery

of vacation pay. See Doc. No. 45, at 10; Doc. No. 45. Ex. 8.

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Despite the apparent breadth of the claims for

severance benefits in the complaint, as shown by the factors just

mentioned, Plaintiffs’ subsequent conduct in this case,

unambiguously indicated that their claims were limited to

recovery of Section 2 benefits. Nothing in any of their

statements or conduct before the Court indicates otherwise or

shows an intention to recover vacation pay in this lawsuit. 

Plaintiffs, in fact, manifested exactly the opposite intention.

Had they truly believed they were attempting recover vacation pay

in this lawsuit, Plaintiffs surely would have raised this issue

during the initial discussions with International Paper about the

form of the notice. The fact that no objection was raised about

the benefits calculations until absent class members, who were

not involved in the preparation or filing of the lawsuit,

protested confirms that the named Plaintiffs did not intend to

recover vacation pay benefits. Therefore, Plaintiffs could not

have reasonably put International Paper on notice that a claim

for recovery of vacation pay was included in this lawsuit. 

To allow Plaintiffs to amend the notice to include a

calculation of vacation pay benefits at this point would be to

allow Plaintiffs to amend the complaint at a very late stage in

the proceedings. Given that Plaintiffs have had ample

opportunity to clarify their pleadings prior to issuance of the

notice to the class, an amendment of the complaint at this time

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would be unfairly prejudicial to International Paper, and

therefore, will not be permitted. See Thiokol Corp. v.

Department of Treasury, 987 F.2d 376, 383 (6th Cir. 1993)(“In the

absence of any apparent or declared reason--such as undue delay,

bad faith or dilatory motive on the part of the movant, repeated

failure to cure deficiencies by amendments previously allowed,

undue prejudice to the opposing party by virtue of allowance of

the amendment, futility of amendment, etc.--the leave sought

should, as the rules require, be freely given.”)(internal

quotation marks omitted). Accordingly, Plaintiffs’ motion for

authorization to mail supplemental notice to the class is not

well-taken and is DENIED.

Given that the Court has determined that Plaintiffs

have not raised claims for recovery of vacation pay under the

Plan, it need not decide whether the asset purchase agreement

with Smart Paper satisfied Plaintiffs’ alleged entitlement to

recover vacation pay. Therefore, International Paper’s motion

for judgment of law on this issue is MOOT. To be clear, the

Court has decided only that Plaintiffs have not properly raised

claims for recovery of vacation pay in this lawsuit. The Court

makes no determination whether or not Plaintiffs, or others, are

entitled to vacation pay under Policy #828. Similarly, the Court

makes no determination whether Smart Paper assumed and satisfied

International Paper’s alleged obligation to pay benefits based on

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earned but unused vacation pay. Those issues, we suppose, will

have to be decided in another case.

IT IS SO ORDERED

Date January 13, 2004 s/Sandra S. Beckwith 

 Sandra S. Beckwith 

 United States District Judge

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