Van Dyke v. BTS Container Service, Inc.
After plaintiff prevailed in this FLSA case, Judgment was entered for $4,724.29 and a Supplemental Judgment for $35,248.10 in attorney fees and costs. Due to financial difficulties, Defendants failed to satisfy the judgment, necessitating Plaintiff to garnish certain monies from Defendants to satisfy the judgment. Before the court was Plaintiff’s Supplemental Motion for Attorney Fees for Post-Judgment Collection. The Court granted the Motion.
The Court explained, “[u]nder Oregon law, attorney fees to enforce a judgment are “legal services related to the prosecution or defense of an action” which the court may consider when it awards attorney fees. Johnson v. Jeppe, 77 Or.App. 685, 688, 713 P.2d 1090 (1986) (quoting ORCP 68).
The Ninth Circuit has not determined if the Fair Labor Standards Act (“FLSA”) supports the court awarding attorney fees for post-judgment collection efforts. But cf. Jones v. Giles, 741 F .2d 245, 250 (9th Cir.1984) (finding no abuse of discretion in the size of the trial court’s $2,500 award for post-judgment attorney fees in an FLSA case without addressing whether such fees were available under the statute). Federal courts have awarded attorney fees for post-judgment collection efforts in other contexts. See Shaw v. AAA Eng’g & Drafting, Inc., 213 F.3d 538, 544-45 (False Claims Act case); Free v. Briody, 793 F.2d 807, 808-09 (7th Cir.1986) (ERISA case). I conclude that the FLSA also allows me to award post-judgment collection fees. Without such an award, a judgment is a hollow victory for a plaintiff who was improperly paid.”
Dinicola v. Service Employees Intern. Union Local 503
Plaintiff was a past elected president of defendant SEIU Local 503. The complaint alleged that the Oregon Department of Revenue (ODR) employed plaintiff and assigned him for a period of time to perform union duties pursuant to a written agreement by which ODR paid plaintiff’s wages and benefits and received reimbursement from Local 503. Local 503 also paid plaintiff $400 per month as president’s pay. The complaint further alleged that plaintiff attempted to collect unpaid overtime compensation by filing a lawsuit in the Circuit Court of the State of Oregon for Marion County, among other means. The complaint further alleges that Local 503 opposed plaintiff’s claim for entitlement to overtime compensation and that certain Local 503 members criticized plaintiff and his claim.
The State of Oregon filed a motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.
The Court granted the State of Oregon’s Motion noting, “[b]ecause it did not expressly or impliedly waive its Eleventh Amendment immunity from suit in federal court for violation of the FLSA, the State of Oregon’s motion for judgment on the pleadings is granted. Quillin v. State of Oregon, 127 F.3d 1136, 1138 (9th Cir.1997). Plaintiff’s authority does not support his waiver argument. In Butterfield v. State, the court held that an FLSA claim was a tort claim within the meaning of the Oregon Tort Claims Act, under which the state partially waived its sovereign immunity. 987 P.2d 569, 574 (Or.App.1999). The OTCA is not a waiver of Eleventh Amendment immunity, however. Estate of Pond v. Oregon, 322 F.Supp.2d 1161, 1165 (D.Or.2004). Not surprisingly, Clayton v. State of Oregon, 1990 WL 32088 (D.Or.1990), contains no discussion of Eleventh Amendment immunity, as the defense was clearly foreclosed at the time of the decision. See Seminole Tribe of Florida v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996)overruling Pennsylvania v. Union Gas Co., 491 U.S. 1, 109 S.Ct. 2273, 105 L.Ed.2d 1 (1989). A state does not waive Eleventh Amendment immunity in these circumstances. Quillin, 127 F.3d at 1139. The case of Chao v. State of Oregon, No. 03-6194-AA (D.Or.), did not yield an opinion and did not involve a suit by a citizen of a state against the state.”