Dionne v. Floormasters Enters., Inc.

• Decision Date: 13 January 2012
• Docket Number: No. 09–15405.,09–15405.
• Citation: 23 Fla. L. Weekly Fed. C 699,667 F.3d 1199,18 Wage & Hour Cas.2d (BNA) 998
• Parties: Perry R. DIONNE, on his own behalf and on behalf of all others similarly situated, Plaintiff–Appellant, v. FLOORMASTERS ENTERPRISES, INC., a Florida corporation, Robert Molsick, individually, Defendants–Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

18 Wage & Hour Cas.2d (BNA) 998

23 Fla. L. Weekly Fed. C 699

667 F.3d 1199

Perry R. DIONNE, on his own behalf and on behalf of all others similarly situated, Plaintiff–Appellant,

v.FLOORMASTERS ENTERPRISES, INC., a Florida corporation, Robert Molsick, individually, Defendants–Appellees.

No. 09–15405.

United States Court of Appeals, Eleventh Circuit.

Jan. 13, 2012.

Carlos V. Leach, Morgan & Morgan, Orlando, FL, Richard B. Celler, Morgan & Morgan, PA, Davie, FL, for Plaintiff–Appellant.

Edwin C. Cluster, Ayres, Cluster, Curry, McCall, Collins & Fuller, P.A., Abraham Clinton Banks, Ocala, FL, for Defendants–Appellees.

Appeal from the United States District Court for the Middle District of Florida.ON PETITION FOR REHEARINGBefore EDMONDSON, HILL and ALARCÓN,^* Circuit Judges.ALARCÓN, Circuit Judge:

Plaintiff–Appellant's Petition for Rehearing filed September 1, 2011 is GRANTED in part and DENIED in part. The Court VACATES and WITHDRAWS the previous opinion in this case, published on July 28, 2011, at 647 F.3d 1109 (11th Cir.2011). The Court substitutes the following opinion.

In this matter, we must decide whether an employer, who denies liability for nonpayment for overtime work, must pay attorney's fees and costs pursuant to 29 U.S.C. § 216(b) of the Fair Labor Standards Act (“FLSA”) if the employer tenders the full amount of overtime pay claimed by an employee, and moves to dismiss on mootness grounds where the employee concedes that “the claim for overtime should be dismissed as moot.” We conclude that, under such circumstances, the dismissal of the employee's complaint, without an award of attorney's fees, is not erroneous pursuant to § 216(b) because the District Court did not award judgment to the employee as the prevailing party. Accordingly, we affirm.

I

A

The parties do not dispute the following facts: Dionne was employed by Floormasters Enterprises, Inc. (“Floormasters”) from September 19, 2007 until November 27, 2007 as a warehouse clerk. Robert Molsick was a manager who had direct control over Dionne's work, pay, and job duties. On March 24, 2008, Dionne filed a complaint in the District Court pursuant to § 216(b) on his own behalf and on behalf of other warehouse clerks who had worked for Floormasters within the previous three years¹ to recover overtime compensation, liquidated damages, and reasonable attorney's fees and costs. Floormasters filed a pleading, styled as a Tender of Full Payment and Motion to Dismiss Complaint with Prejudice, on April 23, 2008. In their motion, Floormasters alleged that

[a]lthough Defendants vigorously deny all of Plaintiff's allegations, Plaintiff's claim, and that Defendants owe Plaintiff any amount of money for unpaid overtime wages or any damages, in the interests of expeditious resolution of Plaintiff's claim and efficient use of this Court's time and resources, Defendants hereby tender to Plaintiff payment in full for an overtime wages claim, liquidated damages, and interest, in the total amount of $637.98.

B

Dionne filed a response in opposition to Floormasters's motion to dismiss on May 6, 2008. Dionne asserted that “Plaintiff's claim for overtime is still at issue because Plaintiff claims overtime damages above Defendant's estimation of overtime due.” Dionne estimated that his total damages were $3,000. On May 9, 2008, the District Court denied the Defendants' Tender of Full Payment and Motion to Dismiss Complaint with Prejudice. It reasoned as follows:

Given the discrepancies between the Parties' assertions as to the amount of damages at issue in this case, the Court cannot, at this time, find that the Defendants have paid in full the Plaintiff's claim for overtime compensation. The case is at the very early stages, and discovery has not yet begun.

C

On May 19, 2008, Floormasters filed a second Tender of Full Payment and Motion to Dismiss Complaint with Prejudice pursuant to Rule 12(h)(3) of the Federal Rules of Civil Procedure.²

In support of its motion, Floormasters argued:

Although Defendants vigorously deny all of Plaintiff's allegations, Plaintiff's claim, and that Defendants owe Plaintiff any amount of money for unpaid overtime wages or any damages, to render Plaintiff's claim moot, Defendants tendered to Plaintiff payment in full. Defendants' tender was based on Plaintiff's own calculations in his May 6, 2008 affidavit filed in the record of this action. As presented in paragraph two of this motion, Plaintiff calculated his overtime damages to be $1500.00 in actual damages and $1500.00 in liquidated damages, totaling $3,000.00. A photocopy of the check tendered to Plaintiff is attached, as Exhibit A to this Motion.

Floormasters also contended that

[h]aving tendered payment in full for all amounts that possibly could be owed to Plaintiff, according to Plaintiff's own version of the facts in his affidavit filed in the record of this action, Defendants have eliminated any controversy or cause of action available to be pursued by Plaintiff in this Court, and dismissal with prejudice, pursuant to Fed.R.Civ.P. 12(h)(3), of Plaintiff's claims is appropriate and necessary.

Dionne filed a response to Floormasters' second motion to dismiss on May 29, 2008 in which he stated:

Plaintiff agrees that since Defendant has tendered full payment to Plaintiff and admitted overtime liability,³ the issue of overtime is now moot and the claim for overtime should be dismissed. However, Plaintiff requests that this Court reserve jurisdiction to consider an award of attorney's fees and costs and grant Plaintiff thirty (30) days to file its Motion.

D

On June 4, 2008, the District Court granted Floormasters's Motion to Dismiss Complaint With Prejudice. It ordered Dionne to file his “motion for attorney's fees, if any, within thirty (30) days of the date of this Order.”

E

Dionne filed a motion for an award of attorney fees and costs on July 7, 2008 in which he argued that he was entitled to attorney's fees pursuant to 29 U.S.C. § 216(b) because he was the prevailing party in this action. Floormasters filed a response in opposition to Dionne's motion for an award of attorney's fees and costs on July 16, 2008. Floormasters maintained that Dionne was not entitled to an award of attorney's fees and costs because no judgment was awarded to Dionne in this action. The District Court denied Dionne's Motion for Award of Attorney's Fees and Costs on September 22, 2009. The District Court held that Dionne was not entitled to attorney's fees and costs pursuant to § 216(b) because

there has been no judicial determination—nor any request by the Plaintiff for such a determination—that the Defendants violated the FLSA's overtime compensation provisions. Rather, it has been clear from the inception of this litigation that the Defendants have denied any and all liability, and merely tendered payment in order to resolve this case and render the Plaintiff's claim moot. The Court finds that the Plaintiff's claim for overtime compensation was in fact rendered moot when the Defendants tendered full payment for all recoverable damages—a fact that the Plaintiff admitted in its response.

Dionne filed a motion for reconsideration on October 7, 2009. It was denied on October 13, 2009.

Dionne filed a timely notice of appeal on October 20, 2009. This Court has jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.

II

A

Dionne contends the District Court erred in concluding that he failed to demonstrate that he is entitled to attorney's fees and costs under 29 U.S.C. § 216(b). Section 216(b) reads as follows in pertinent part:

Any employer who violates the provisions of section 206 or section 207 ⁴ of this title shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in an additional equal amount as liquidated damages .... The court in such action shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney's fee to be paid by the defendant, and costs of the action.

Id. (emphasis added).

Dionne argues that he was a prevailing party in this action because Floormasters tendered all overtime and liquidated damages to him after he filed his complaint. Appellant's Br. 5. Dionne asserts that an employee can be a prevailing party without submitting a formal settlement agreement or consent decree to the trial court. He argues that whether an employee is a prevailing party “should be determined based on the actions of the Parties, the Court and the relief that was obtained following the filing of the lawsuit.” Appellant's Br. 9.

“The interpretation of a statute is a question of law subject to de novo review.” Corp. Mgmt. Advisors, Inc. v. Artjen Complexus, Inc., 561 F.3d 1294, 1296 (11th Cir.2009). Whether a plaintiff is a “prevailing party” is also reviewed de novo. Church of Scientology Flag Serv., Inc. v. City of Clearwater, 2 F.3d 1509, 1513 (11th Cir.1993). We review a district court's decision whether to award attorney's fees and costs for abuse of discretion. Sahyers v. Holliday & Karatinos, P.L., 560 F.3d 1241 (11th Cir.2009) (citing Johnson v. Florida, 348 F.3d 1334, 1350 (11th Cir.2003)).

B

Dionne maintains that he is entitled to attorney's fees and costs as a prevailing party because the filing of his complaint brought about the payment by Floormasters of the amount of money he requested. This argument is apparently based on the “catalyst” test that was previously used in this Circuit to determine if a party had prevailed in a lawsuit. In Morris v. City of West Palm Beach, this Court stated:

Because Appellants did not receive a favorable judgment on the merits or entry of a consent decree or settlement, the only means through which they could be found to have prevailed is the “catalyst” test. Under the catalyst test, a plaintiff should be found as prevailing if its ends are accomplished as the result of the litigation even without formal judicial...