Williams v. Sake Hibachi Sushi & Bar Inc.

• Decision Date: 02 December 2021
• Docket Number: Civil Action No. 3:18-CV-0517-D
• Citation: 574 F.Supp.3d 395
• Parties: Catherine WILLIAMS, et al., Plaintiffs, v. SAKE HIBACHI SUSHI & BAR INC., et al., Defendants.
• Court: U.S. District Court — Northern District of Texas

574 F.Supp.3d 395

Catherine WILLIAMS, et al., Plaintiffs,

v.SAKE HIBACHI SUSHI & BAR INC., et al., Defendants.

Civil Action No. 3:18-CV-0517-D

United States District Court, N.D. Texas, Dallas Division.

Signed December 2, 2021

Jerry Murad, Jr., Law Office of Jerry Murad, Pamela Herrmann, Drew N. Herrmann, Herrmann Law PLLC, Fort Worth, TX, for Plaintiffs.

Michael S. Martinez, Martinez Hsu PC, Bedford, TX, Matthew R. Scott, Scott Law Firm PLLC, Dallas, TX, for Defendants.

MEMORANDUM OPINION AND ORDER

SIDNEY A. FITZWATER, SENIOR JUDGE

Following a bench trial in this collective action seeking unpaid minimum wages and related relief under the Fair Labor Standards Act of 1938 ("FLSA"), 29 U.S.C. § 201 et seq. , defendants move for judgment as a matter of law under Fed. R. Civ. P. 50(a). Plaintiffs move for attorney's fees and costs under 29 U.S.C. § 216(b), and also move for an award of a service fee to named plaintiff Catherine Williams ("Williams"). For the reasons that follow, the court construes defendants’ motion for judgment as a matter of law to be a motion for judgment on partial findings under Rule 52(c) and grants the motion; grants plaintiffs’ motion for nontaxable litigation expenses; grants plaintiffs’ motion for an award of a service fee; denies their motion for taxable costs (without prejudice to their applying to the clerk for taxation of such costs); and grants in part and denies in part their motion for attorney's fees.

I

The court assumes the parties’ familiarity with its previous memorandum opinion and order in this case, See Williams v. Sake Hibachi Sushi & Bar, Inc. , 2020 WL 3317096 (N.D. Tex. June 18, 2020) (Fitzwater, J.), and limits its discussion of the background facts and procedural history to what is necessary to understand this decision.

Plaintiffs in this collective action are current and former servers at Sake Hibachi Sushi & Bar. On March 5, 2018 Williams brought this putative collective action on behalf of herself and all others similarly situated against defendants under 29 U.S.C. § 216(b). Williams alleged, inter alia , that defendants failed to pay her and the class members the federally-mandated minimum wage, in violation of 29 U.S.C. §§ 206 and 215(a). According to plaintiffs, defendants violated § 206 by paying them an hourly wage of only $2.15 per hour while also requiring them to pay a portion of their tips into a "tip pool" that was redistributed in part to their employer, Sake Hibachi Sushi & Bar, Inc. ("Sake"), and other non-tipped employees.

On June 18, 2020 the court granted plaintiffs’ motion for partial summary judgment. The court held, in relevant part, that plaintiffs were entitled to summary judgment with respect to Sake's tip credit affirmative defense because Sake failed to adduce evidence that it informed plaintiffs of the tip credit provision. See Williams , 2020 WL 3317096, at *4. The court also held that plaintiffs were entitled to summary judgment on the tip credit defense because Sake failed to refute plaintiffs’ evidence that defendants retained a portion of the plaintiffs’ tips and shared them with employees that did not customarily receive tips. Id.

On June 29, 2021 defendants filed a motion in limine seeking to exclude from trial any evidence of the amount of tips withheld from plaintiffs.¹ The court denied this motion without prejudice. It noted that defendants could move for judgment as a matter of law,² and, if defendants prevailed on that motion, the court could disregard any award of damages to plaintiffs that was improper.

On July 8, 2021 the parties orally stipulated that plaintiffs were owed $55,671.29 in unpaid minimum wages, and that this amount should also be liquidated pursuant to § 216(b). On July 11, 2021 the parties entered a Joint Stipulation, in which they agreed that the amount of tips withheld was $55,000. In this Joint Stipulation, defendants reserved the right to challenge whether plaintiffs were legally entitled to recover the withheld tips.

On July 12, 2021 the parties waived a jury, and the court found in favor of plaintiffs in a bench trial. At trial, defendants orally moved for judgment as a matter of law, and the court denied the motion without prejudice. The court then entered a judgment awarding plaintiffs the sum of $55,671.29 for unpaid minimum wages, together with liquidated damages in the sum of $55,671.29. The court also ordered that plaintiffs recover the sum of $8,466.35 for the employer's share of FICA tax. At issue now, the judgment awarded plaintiffs the sum of $55,000.00 for misappropriated tips, together with liquidated damages in the sum of $55,000.00.

Defendants now move for judgment as a matter of law, contending that, as a matter of law, plaintiffs are not entitled to recover the withheld tips and related liquidated damages. The court has heard oral argument on this motion.

Plaintiffs move for an award of $375,548.40 in attorney's fees, $10,728.48 in nontaxable expenses, and $1,369.45 in taxable costs. Defendants oppose this motion in part. Plaintiffs also move for an award of $7,500 as a service fee for Williams. Defendants have not responded to this motion. The court is deciding these motions on the briefs.

II

The court turns first to plaintiffs’ arguments in support of their assertion that defendants’ motion for judgment as a matter of law should be dismissed due to procedural errors.

A

Plaintiffs maintain that defendants are not entitled to judgment as a matter of law under Rule 50(a) because the parties tried this case in a bench trial and Rule 50(a) only applies to jury trials. Defendants respond that the court can treat their motion for judgment as a matter of law as a motion for judgment on partial findings under Rule 52(c). Defendants also contend that they have repeatedly disputed that plaintiffs are entitled to damages in the form of withheld tips and that the court indicated that it would consider this argument post-judgment.

Plaintiffs are correct that Rule 50 ’s standard does not apply to bench trials. See Rule 50(a)(1) ("If a party has been fully heard on an issue during a jury trial ...:" (emphasis added)). But the court disagrees with plaintiffs’ position that the court must dismiss defendants’ motion because they moved for relief under Rule 50. Instead, the court construes defendants’ motion for judgment as a matter of law as a motion for judgment on partial findings under Rule 52(c). See Kaneka Corp. v. JBS Hair, Inc. , 2013 WL 12190524, at *3 (N.D. Tex. Aug. 30, 2013) (Solis, J.) ("Where, as here, the court acts as the fact finder on an issue, a motion styled under Rule 50(a) is more appropriately treated as a motion for partial judgment pursuant to Federal Rule of Civil Procedure 52(c)."); Fox v. Wardy, 2006 WL 504924, at *1 n.1 (W.D. Tex. Feb. 3, 2006) (same); W. Trading v. Bell Avon , 1996 WL 101404, at *1 (5th Cir. Feb. 26, 1996) (per curiam) ("The district court granted judgment as a matter of law under Fed. R. Civ. P. 50(a), applicable to jury trials. However, because this case was tried before the bench, we will review the judgment as one granted under Fed. R. Civ. P. 52(c) ....").

B

Plaintiffs next contend that defendants are bound by their position in the Pretrial Order. They maintain that defendants conceded in the Pretrial Order that plaintiffs were entitled to an award of misappropriated tips. Defendants respond that the portion of the Pretrial Order on which plaintiffs rely was merely a summary of the issues that the jury would hear and not a concession that plaintiffs were entitled to these damages. Defendants also request that, if the court does find that defendants’ statement in the Pretrial Order was an admission, it modify the Pretrial Order to remove this language.

The court concludes that defendants did not stipulate in the Pretrial Order that plaintiffs are entitled to damages in the form of withheld tips. The Pretrial Order provides, in relevant part:

[T]he issues remaining to be decided are the amount of actual and liquidated damages as well as attorney fees that are reasonable and necessary for this matter. Specifically, as it relates to the FLSA damages, the jury must determine (1) the actual number of hours worked by each individual plaintiff; and (2) the specific dollar amount of tips each individual plaintiff contributed to the tip pool. Once the jury has calculated this information, the Court will then utilize this information to calculate the actual damage number.

Pretrial Order at 3.

But this part of the Pretrial Order is found in defendants’ summary of the issues, and is not a stipulation. And although the Pretrial Order states that the jury must determine "(1) the actual number of hours worked by each individual plaintiff; and (2) the specific dollar amount of tips each individual plaintiff contributed to the tip pool," it also provides that "the Court will then utilize this information to calculate the actual damage number." Id. The court concludes that this statement, as relevant here, acknowledges that the fact question—what is the dollar amount of the withheld tips—would be submitted to the jury, but that the question of law—whether plaintiffs were entitled to withheld tip damages under the FLSA—would be decided by the court. See, e.g., Hall v. State Farm Fire & Cas. Co. , 937 F.2d 210, 213 (5th Cir. 1991) ("A trial court has great discretion in interpreting a pretrial order.").

Additionally, although other filings in this case cannot abrogate a clear provision of the Pretrial Order, the parties’ other pretrial filings corroborate that defendants did not intend by the summary of the issues to stipulate that plaintiffs were entitled to withheld tip damages. For example, on July 11, 2021 the parties filed a joint stipulation—intended to eliminate the need for a jury trial—in which they stipulated "to the total amount of misappropriated tips that Defendants did not allow Plaintiffs to retain," but in which defendants simultaneously "reserve[d] the right to challenge...