Fast v. Cash Depot Ltd.

• Decision Date: 06 November 2018
• Docket Number: Case No. 16-C-1637
• Parties: TIMOTHY J. FAST, Plaintiff, v. CASH DEPOT LTD., Defendant.
• Court: U.S. District Court — Eastern District of Wisconsin

TIMOTHY J. FAST, Plaintiff,
v.
CASH DEPOT LTD., Defendant.

Case No. 16-C-1637

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

November 6, 2018

DECISION AND ORDER

Plaintiff Timothy J. Fast sued his former employer, Cash Depot Ltd. on behalf of himself and all other similarly situated current and former non-exempt Field Service Technicians, alleging Cash Depot violated the Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C. § 201 et seq., in failing to lawfully compensate them at a correct rate of overtime pay and for all overtime hours worked at that overtime rate of pay. After Fast filed his complaint, Cash Depot tendered the full amount of the underpayment in overtime pay calculated by its accountants to its current and former employees and filed motions to dismiss Fast's claims on mootness grounds and for summary judgment. The court denied the motions on November 7, 2017, noting that Fast disputed whether the full amount owed to him and the members of the putative class had been paid. The court also recognized that under current law a collective or class action plaintiff may refuse an offer of settlement for the full value of his individual claim to avoid rendering his potential class or collective action moot. ECF No. 43 at 12. The court nevertheless observed that, if Cash Depot had cured its prior FLSA violations by paying what is owed to its current and former employees, the case should promptly resolve.

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On June 20, 2018, Fast filed a motion for attorney's fees and costs. Fast maintains that he is the prevailing party and is entitled to attorney's fees and costs, totaling $50,137.04, pursuant to § 216(b). Cash Depot opposes Fast's motion on the ground that he is not a prevailing party, as that term has been defined by the Supreme Court in Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health and Human Services, 532 U.S. 598 (2001). Cash Depot then filed its own motion to dismiss, or in the alternative, for summary judgment. Because the court finds that Fast is not the prevailing party in this case, the motion for attorney's fees and costs will be denied, Cash Depot's motion for summary judgment will be granted, and the case will be dismissed.

BACKGROUND

On December 9, 2016, Fast filed suit against Cash Depot, on behalf of himself and other similarly situated individuals, alleging violations of the FLSA. Sometime after Fast filed this action, Cash Depot's legal counsel retained an accounting firm to review Cash Depot's payroll practices concerning the payment of overtime to all of its employees for the time period of December 2013 through February 2017. After reviewing a spreadsheet from its accountant summarizing the amount of overtime compensation and interest due to each employee, Cash Depot issued 63 paychecks to its current and former employees, excluding Fast, totaling $21,983.53. As to Fast, Cash Depot's counsel mailed Fast's counsel a check for Fast in the amount of $338.98, which represented the amount owed to him in overtime compensation plus the amount of liquidated damages afforded under the FLSA, less federal and state taxes. Cash Depot's counsel also mailed Fast's counsel a check in the amount of $13,333.35, representing payment by Cash Depot of the attorney's fees and costs disclosed in Fast's discovery responses. Neither Fast nor his counsel deposited the checks or indicated any acceptance of the funds.

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Cash Depot filed a motion to dismiss the case as moot on the ground that Fast had been paid in full. Alternatively, Cash Depot filed a motion for summary judgment seeking a determination that it owed Fast the sum of $380.76, plus his costs and reasonable attorney's fees. The court denied the motions on November 7, 2017, noting that offering the full value of Fast's claim did not render his potential class or collective action moot. The court nevertheless observed that, if Cash Depot did cure the FLSA violations by paying what it owed to its current and former employees, the case should promptly resolve. ECF No. 43.

Cash Depot provided Fast's counsel with its calculations and payment information for all of its employees, even though Fast had not moved for class certification, in December 2017. On February 2, 2018, Fast's counsel stated that Cash Depot had paid all wages owed to its employees resulting from its FLSA violations and that the only outstanding issue was reimbursement of Fast's attorney's fees and costs. Cash Depot's counsel did not expect Cash Depot would pay approximately $50,000.00 in fees but indicated he would discuss the matter with Cash Depot. On February 14, 2018, Fast's counsel emailed Cash Depot's counsel seeking an update regarding the reimbursement of fees. Cash Depot's counsel never responded. Fast subsequently filed a motion for attorney's fees on June 20, 2018, and Cash Depot filed a motion to dismiss or, alternatively, for summary judgment on July 25, 2018.

LEGAL STANDARD

Summary judgment is appropriate when the movant shows there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). In deciding a motion for summary judgment, the court must view the evidence and make all reasonable inferences that favor them in the light most favorable to the non-moving party. Johnson v. Advocate

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Health & Hosps. Corp., 892 F.3d 887, 893 (7th Cir. 2018) (citing Parker v. Four Seasons Hotels, Ltd., 845 F.3d 807, 812 (7th Cir. 2017)). The party opposing the motion for summary judgment must "submit evidentiary materials that set forth specific facts showing that there is a genuine issue for trial." Siegel v. Shell Oil Co., 612 F.3d 932, 937 (7th Cir. 2010) (citations omitted). "The nonmoving party must do more than simply show that there is some metaphysical doubt as to the material facts." Id. Summary judgment is properly entered against a party "who fails to make a showing to establish the existence of an element essential to the party's case, and on which that party will bear the burden of proof at trial." Austin v...