Attorney’s Fees Award Denied after Defendant Tenders Full Amount Plaintiff Claimed

            Here’s another attorney’s fee case that leaves me wondering if federal judges understand (or care about) the cost of access to justice – namely, finding an attorney who will take a small but meritorious case on an other than pro bono basis.  Dionne v. Floormasters Enterprises, Inc., 2011 WL 3189770 (11th Cir. July 28, 2011).

            Plaintiff Dionne worked for defendant Floormasters for two months as a warehouse clerk.  Claiming nonpayment of overtime, Dionne filed a complaint under the FLSA to recover overtime, liquidated damages, and attorney’s fees.  Instead of answering, Floormasters filed a “Tender of Full Payment and Motion to Dismiss Complaint With Prejudice,” tendering the full amount plaintiff claimed for overtime, liquidated damages, and interest, in the amount of $3000.00, while denying liability.  The district court dismissed the case with prejudice.

            Plaintiff then moved for an award of attorney’s fees and costs, as authorized by the FLSA, 29 U.S.C. §216(b): “The court in such action shall, in addition to any judgment awarded to the plaintiff . . ., allow a reasonable attorney’s fee to be paid by the defendant . . . .”  Plaintiff argued that he was the prevailing party based on “the relief that was obtained following the filing of the lawsuit.”  The trial court denied plaintiff’s motion for fees.

            The Eleventh Circuit affirmed, relying on language in Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598 (2001), superseded by statute on other grounds: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 relationsip of the parties.

            Perhaps recognizing that Section 216(b) does not use the term “prevailing party,” the court continued:

The FLSA plainly requires that the plaintiff receive a judgment in his favor to be entitled to attorney’s fees and costs.

Dionne has filed 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.

So there’s a road map for employers – fail to pay overtime, and then if the employee hires a lawyer and sues, tender the full amount claimed.  

--PHM