[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JANUARY 13, 2012
No. 09-15405
JOHN LEY
________________________
CLERK
D. C. Docket No. 08-00124-CV-WTH-GRJ
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.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(January 13, 2012)
Before EDMONDSON, HILL and ALARCÓN,* Circuit Judges.
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
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
2
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:
1
Dionne filed this lawsuit as a collective action. He failed to seek leave to pursue it as a
collective action.
3
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
2
Rule 12(h)(3) provides as follows: “If the court determines at any time that it lacks
subject-matter jurisdiction, the court must dismiss the action.”
4
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.”
3
Dionne’s assertion that Floormasters “admitted overtime liability” is contrary to the
record. In fact, Floormasters vigorously denied in its motion that it owed Dionne any amount of
money.
5
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.
6
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 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
4
29 U.S.C. § 206 sets the federal minimum wage applicable to certain types of
employees. 29 U.S.C. § 207 requires employers to pay overtime compensation to certain types of
employees.
7
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
8
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, Open
Government Act of 2007, Pub. L. No. 110-175, 121 Stat. 2524. It reasoned as
follows:
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.
Id. at 605.
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
9
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 Freedom of Information Act (“FOIA”). 288
F.3d 452, 453 (D.C. Cir. 2002), superseded by statute on other grounds, Open
Government Act of 2007, Pub. L. No. 110-175, 121 Stat. 2524, as recognized in
Summers v. Department of Justice, 569 F.3d 500, 503 (D.C. Cir. 2009). The
parties subsequently entered into a court-ordered stipulation that the defendant had
substantially complied with the plaintiffs’ FOIA request, and the district court
awarded the plaintiffs costs and fees. Id. Pursuant to Buckhannon, which was
published while the appeal was pending, the D.C. Circuit reversed. Id. at 453,
458. The D.C. Circuit expressly stated that the stipulation “did not meaningfully
alter the legal relationship of the parties,” id. at 458; therefore the plaintiffs were
not prevailing parties entitled to attorney’s fees under FOIA. Id. at 457-59.
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 42 U.S.C. § 1988. 282 F.3d 268, 273-74 (4th Cir. 2002). The
defendants appealed as to the fee award, and the Fourth Circuit reversed. Id. at
271. The Fourth Circuit held that the plaintiff was not a prevailing party because
the district court had neither incorporated the terms of any settlement into its
dismissal order nor retained jurisdiction to enforce a settlement. Id. at 278-85.
10
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
42 U.S.C. § 1983, the district court’s dismissal order incorporated the terms of the
settlement between the parties. 290 F.3d at 165. The Third Circuit reversed the
district court’s denial of attorney’s fees and costs, holding that the plaintiff was the
prevailing party and thus entitled to fees and costs pursuant to 42 U.S.C. § 1988.
Id. at 165-66.
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
11
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 the same
result as would have been achieved pursuant to a consent decree.” 289 F.3d at
1321. In the present case, the District Court did not approve any agreement or
retain jurisdiction to enforce any settlement or order; the parties did not even reach
a formal settlement agreement to present to the court. The District Court’s
12
minimal participation in this case is insufficient to give the case the “judicial
imprimatur” necessary for a party to prevail. See Buckhannon, 532 U.S. at 605.
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.” 29 U.S.C. § 216(b) (emphasis added). The FLSA plainly
requires that the plaintiff receive a judgment in his favor to be entitled to
attorney’s fees and costs.
13
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. 29 U.S.C. § 216(b) does so in the context of the FLSA. See Kreager v.
Solomon & Flanagan, P.A., 775 F.2d 1541, 1542 (11th Cir. 1985) (“[S]ection
216(b) of the [FLSA] makes fee awards mandatory for prevailing plaintiffs.”)
(emphasis added).
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
14
Floormasters’ motion to dismiss this lawsuit for lack of subject matter jurisdiction,
the District Court did not award a judgment in his favor.5 “We cannot agree that
the term ‘prevailing party’ authorizes federal courts to award attorney’s fees to a
plaintiff who, by simply filing a nonfrivolous but potentially meritless lawsuit (it
will never be determined), has reached the sought-after destination without
obtaining any judicial relief.” Buckhannon, 532 U.S. at 606 (internal quotation
marks omitted). Accordingly, we conclude that the District Court did not abuse its
discretion in denying Dionne’s motion for the award of attorney’s fees and costs.
AFFIRMED.
5
Our decision in this matter addresses a very narrow question: whether an employee who
conceded that his claim should be dismissed before trial as moot, when the full amount of back
pay was tendered, was a prevailing party entitled to statutory attorney’s fees under § 216(b). It
should not be construed as authorizing the denial of attorney’s fees, requested by an employee,
solely because an employer tendered the full amount of back pay owing to an employee, prior to
the time a jury has returned its verdict, or the trial court has entered judgment on the merits of the
claim.
15