PERRY R. DIONNE, on his own behalf and on behalf of all others similarly situated, Plaintiff-Appellant, versus FLOORMASTERS ENTERPRISES, INC., a Florida corporation, ROBERT MOLSICK, individually, Defendants-Appellees.
No. 09-15405
United States Court of Appeals, Eleventh Circuit
January 13, 2012
D. C. Docket No. 08-00124-CV-WTH-GRJ; [PUBLISH];
ON PETITION FOR REHEARING
*Honorable Arthur L. Alarcón, United States Circuit Judge for the Ninth Circuit, sitting by designation.
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
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
[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
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
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
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
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
Any employer who violates the provisions of section 206 or section 2074 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
“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 recognition, there is a causal connection between the plaintiff’s lawsuit and the defendant’s actions providing relief to the plaintiff, and the defendant’s actions were required by law.
194 F.3d 1203, 1205-06 (11th Cir. 1999) (internal quotation marks omitted).
In Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, the Supreme Court rejected the catalyst theory. 532 U.S. 598, 605-10 (2001), superseded by statute on other grounds,
A defendant’s voluntary change in conduct, although perhaps accomplishing what the plaintiff sought to achieve by the lawsuit, lacks the necessary judicial imprimatur on the change. Our precedents thus counsel against holding that the term “prevailing party” authorizes an award of attorney’s fees without a corresponding alteration in the legal relationship of the parties.
Dionne argues that the District Court’s dismissal with prejudice was sufficient to change the legal relationship of the parties as required by Buckhannon. The cases on which he relies, however, do not support this contention. For example, in Oil, Chemical & Atomic Workers International Union v. Department of Energy, the plaintiffs alleged that the defendant had failed to comply with their request under the
Likewise, in Smyth ex. rel. Smyth v. Rivero, the district court dismissed the plaintiff’s civil rights action as moot and awarded attorney’s fees and costs to the plaintiff pursuant to
Dionne’s citations to Truesdell v. Philadelphia Housing Authority, 290 F.3d 159 (3d Cir. 2002), and Barrios v. California Interscholastic Federation, 277 F.3d 1128 (9th Cir. 2002), are also unavailing. In Truesdell, a civil rights action under
In Barrios, the district court denied the plaintiff’s motion for attorney’s fees under the Americans with Disabilities Act (“ADA”) because it held that his damages award was de minimis. 277 F.3d at 1134-35. The Ninth Circuit reversed, holding that, as the parties had entered into a legally enforceable settlement agreement, the award was not de minimis and the plaintiff was a prevailing party entitled to attorney’s fees under the ADA. Id. at 1134-37.
Dionne additionally relies on several cases in which the court considered whether the defendant was entitled to recover attorney’s fees from the plaintiff. For example, in Claiborne v. Wisdom, the Seventh Circuit held that the defendant was entitled to attorney’s fees as the prevailing party following a dismissal with prejudice due to the plaintiff’s pursuit of a frivolous action under the Fair Housing Act. 414 F.3d 715, 721-22 (7th Cir. 2005). Likewise, the court in Highway Equipment Co., Inc. v. FECO, Ltd., considered whether the defendant was the prevailing party for purposes of assessing entitlement to costs and fees in light of the district court’s dismissal with prejudice. 469 F.3d 1027, 1033-37 (Fed. Cir. 2006).
Dionne cites Goss v. Killian Oaks House of Learning, 248 F. Supp. 2d 1162 (S.D. Fla. 2003), to support his argument that the $3,000 check sent to him by Floormasters constituted a settlement, thus rendering him the prevailing party. His reliance on Goss is also misplaced. In Goss, the trial court approved a settlement by the parties. Id. at 1175. In this matter, however, the payment Dionne received from Floormasters was never submitted as a settlement for judicial approval.
Dionne also cites American Disability Ass‘n v. Chmielarz, 289 F.3d 1315 (11th Cir. 2002), in support of his argument that the District Court’s dismissal of the case with prejudice is the “functional equivalent” of a consent decree. This argument is unpersuasive. In Chmielarz, this Court specifically noted that the district court had “approv[ed] the settlement agreement and then expressly retain[ed] jurisdiction to enforce its terms,” which “effected precisely
Dionne further asserts that, under Lynn’s Food Stores, Inc. v. United States, 679 F.2d 1350 (11th Cir. 1982), submission of a formal settlement agreement was not necessary, as he received payment in full without compromise. However, in Lynn’s Food Stores, this Court held that the defendant was liable under the FLSA; the only question at issue in that matter was whether the district court erred in refusing to approve the parties settlement agreement. Id. at 1352-55.
Conclusion
Whether Dionne is entitled to attorney’s fees under the FLSA is a question of statutory construction. See Buckhannon, 532 U.S. 598 (interpreting the fee-shifting provisions of the Fair Housing Amendments Act and the ADA). In construing a statute, a court “assum[es] that the ordinary meaning of that language accurately expresses the legislative purpose.” Hardt v. Reliance Standard Life Ins. Co., 130 S. Ct. 2149, 2156 (2010) (citation omitted). Congress has provided that the court in an FLSA 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.”
Dionne has failed to cite to any case that supports his contention that the entry of a defendant’s motion to dismiss a plaintiff’s claims as moot because the trial court no longer has subject matter jurisdiction constituted a judgment in favor of the plaintiff.
As the Supreme Court observed in Buckhannon, under the “American Rule” parties in litigation are expected to bear their own attorney’s fees and costs. Buckhannon, 532 U.S. at 602 (citing Alyeska Pipeline Serv. Co. v. Wilderness Soc‘y, 421 U.S. 240, 247 (1975), and Key Tronic Corp. v. United States, 511 U.S. 809, 819 (1994)). Congress may abrogate this rule, however, by explicitly providing otherwise. Buckhannon, 532 U.S. at 602-03; Johnson, 348 F.3d at 1350.
Dionne has failed to demonstrate that the District Court entered a judgment awarding him overtime pay. Instead, the record shows it granted Floormasters’ motion to dismiss this action because Dionne conceded that Floormasters’ tender of the amount set forth in Dionne’s complaint, while vigorously denying liability, mooted Dionne’s overtime claim.
Dionne is not a “prevailing party” in this action because, in granting Floormasters’ motion to dismiss this lawsuit for lack of subject matter jurisdiction, the District Court did not award a judgment in his
AFFIRMED.