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M.D.Fla.: Defendant Does Not Moot FLSA Case By Tender of Unpaid Wages/Liquidated Damages, Absent Payment of Reasonable Attorneys Fees and Costs
Klinger v. Phil Mook Enterprises
Following the recent 11th Circuit decision Dionne v. Floormasters, the blogosphere has been abuzz with articles positing that the decision gave employers the green light to engage in wholesale wage theft and take a wait and see approach with regard to paying employees their wages. Several management-side attorneys have even gone as far as to suggest that a thieving employer could tender payment of wages/liquidated damages alone on the courthouse steps on the eve of a jury verdict and simply avoid paying mandatory fees and costs under 216(b). Not so, holds Judge James D. Whittemore, in the first case on the issue post-Dionne.
In Klinger v. Phil Mook Enterprises, the defendants-employers attempted just this strategy. After Klinger filed a lawsuit seeking the payment of her unpaid wages and liquidated damages, her former employers tendered what it deemed “full payment” of her unpaid wages and liquidated damages. However, it denied liability and refused to pay reasonable attorneys fees and costs. Instead, it filed a Motion to Dismiss, asserting that the case was now moot. The Court rejected the defendants’ contention that the case was moot absent payment of attorneys fees and costs and denied defendants’ motion.
Significantly, the Court noted:
“Defendants’ mere tender of payment does not provide Plaintiff with all the relief she seeks and would be entitled to as a prevailing party in this action, to wit: an enforceable judgment, attorney’s fees, and costs. Allowing Defendants to avoid responsibility for Plaintiff’s attorneys fees merely by tendering full payment after litigation has commenced would run counter to the FLSA’s goal of fully compensating the wronged employee. See Silva v. Miller, 307 Fed. App’x 349, 351 (11th Cir. 2009)(“FLSA requires judicial review of the reasonableness of counsel’s legal fees to assure… that counsel is compensated adquately…”. Further, Defendants’ tender effectively circumvents the requirements of Rule 68(a), Fed.R.Civ.P.”
As such, the Court denied the defendants’ motion.
Click Klinger v. Phil Mook Enterprises to read the entire Order.
DISCLAIMER: It is not this author’s assertion that the defendants in this particular case engaged in willful wage theft. Absent further research into the facts giving rise to the underlying claim, the author makes no representations whatsoever as to the specific facts of this case. Instead, this post is a commentary on the procedural history of the case once filed.
D.Colo.: Individual FLSA Plaintiff’s Acceptance Of Offer Of Judgment (OJ) Requires Entry Of Judgment Thereon; Defendant’s Motion To Dismiss Denied As Procedurally Improper
Halpape v. Tiaa-Cref Individual & Institutional Services LLC
This matter was before the Court on Defendant’s Motion to Dismiss, following Plaintiff’s Acceptance of Offer of Judgment (“OJ”). As discussed below, the Court deemed Defendant’s Motion to Dismiss unfounded, correctly determining that the appropriate procedural effect of Plaintiff’s acceptance was/is entry of judgment in accordance with the terms of the OJ, not dismissal of the case.
Plaintiff filed this action on April 14, 2009, claiming that defendants’ failure to pay overtime wages violates the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., and Colorado state law. Plaintiff pleadings sought to prosecute this case on behalf of other similarly situated persons employed by defendants during the relevant time period. As authority for this request, the Complaint cites the collective action provision of the FLSA, 29 U.S.C. § 216(b), with respect to his federal cause of action and Fed.R.Civ.P. 23 with respect to his state law claims.
On August 14, 2009, defendants served plaintiff with an offer of judgment pursuant to Fed.R.Civ.P. 68. The terms of the offer included payment of $9,534.54 to plaintiff, an amount “inclusive of all alleged damages … including liquidated damages and interest” covering a period of three years prior to the filing of this lawsuit, along with plaintiff’s reasonable attorney’s fees and costs. Plaintiff accepted the offer of judgment and filed a notice of acceptance with the Court on August 26, 2009. Defendants then moved to dismiss this action as moot in light of plaintiff’s acceptance of the offer of judgment.
Rule 68(a) provides:
More than 10 days before the trial begins, a party defending against a claim may serve on an opposing party an offer to allow judgment on specified terms, with the costs then accrued. If, within 10 days after being served, the opposing party serves writtennotice accepting the offer, either party may then file the offer and notice of acceptance, plus proof of service. The clerk must then enter judgment.
Fed.R.Civ.P. 68(a). Thus, entry of judgment in favor of the plaintiff is mandatory if, as in this case, the conditions specified in Rule 68(a) are satisfied. Ramming v. Natural Gas Pipeline Co. of Am., 390 F.3d 366, 370 (5th Cir.2004) (“If the plaintiff accepts the offer … [t]he court generally has no discretion whether or not to enter the judgment. A Rule 68 Offer of Judgment is usually considered self-executing.”). Here, plaintiff timely served written notice of acceptance eight business days after service of the offer of judgment. See Fed.R.Civ.P. 6(a). And plaintiff attached the offer of judgment to his notice of acceptance, along with proof of service. Rule 68(a) therefore directs that judgment enter according to the offer of judgment.
Consequently, defendants’ motion to dismiss is unfounded. This is not a case, such as those cited by defendants in their motion, where a plaintiff rejected an offer of judgment that would fully satisfy the plaintiff’s claims. Instead, plaintiff accepted the offer. While it is true that plaintiff’s acceptance removes the controversy between him and defendants, under Rule 68, this case must end by entry of judgment, rather than by an order of dismissal. Cf. Geer v. Challenge Financial Investors Corp., No. 05-1109, 2006 WL 704933, *2 (D.Kan., Mar. 14, 2006) (“Where a defendant makes a Rule 68 offer of judgment and it is accepted, the case is settled and there is no longer a controversy.”).