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Mootness and the FLSA: Where Are We Now?
With the Supreme Court set to weigh in on the issue next term, decisions continue to widely diverge on the issue of whether on employer may moot a collective action by paying damages to a plaintiff-employee or plaintiff-employees after they have filed suit seeking their wages pursuant to the FLSA. Recent weeks have brought more confusion to the issue. As discussed below, the Eleventh Circuit held in a non-FLSA claim that absent an actual judgment full tender of money damages alone is insufficient to render a case moot. Within days however, a different court sitting within the Ninth Circuit held that an employer properly mooted an entire collective action when it made payments to the entire class in amounts all parties agreed represented all money damages for a 2 year statute of limitations period, plus liquidated damages. In yet another decision a court within the Third Circuit held that an employer could not moot a collective action by tendering class damages calculated at a “half-time” rate, because an issue of fact existed as to whether that was the appropriate methodology for calculating such damages.
Zinni v. ER Solutions, Inc.
These three consolidated cases were before the Eleventh Circuit on the plaintiff-employee’s appeal of an order granting the defendant’s motion to dismiss for lack of subject matter jurisdiction. In each of the consolidated cases, at the court below the defendant had tendered the full monetary damages available to the plaintiff, but had not served an offer of judgment (OJ) or offered a stipulated judgment to the plaintiff. The trial court dismissed the plaintiff’s claim on mootness grounds. Summarizing the issue before the court, the Eleventh Circuit explained:
This consolidated appeal presents the issue of whether a settlement offer for the full amount of statutory damages requested under the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692, et seq., moots a claim brought pursuant to the FDCPA. Appellants Anthony W. Zinni, Blanche Dellapietro, and Naomi Desty appeal the district court’s dismissal of their complaints for lack of subject matter jurisdiction. In each case, an Appellee sent an e-mail offering to settle an Appellant’s FDCPA case for $1,001—an amount exceeding by $1 the maximum statutory damages available for an individual plaintiff under the FDCPA. Appellees also offered attorneys’ fees and costs in each case, but did not specify the amount of fees and costs to be paid. Appellants did not accept the settlement offers. The district court subsequently granted Appellees’ motions to dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1), holding that the offers left Appellants with “no remaining stake” in the litigation. The district court then dismissed Appellants’ complaints with prejudice. We conclude the settlement offers did not divest the district court of subject matter jurisdiction.
After distinguishing a settlement from an accepted offer of judgment and discussing case law pertaining to each distinct situation, the Eleventh Circuit held that absent an actual judgment a mere offer of settlement cannot moot a claim:
The district court erred in finding Appellees’ settlement offers rendered moot Appellants’ FDCPA claims because the settlement offers did not offer full relief. See id. Each of the Appellants requested that the district court enter judgment in his or her favor and against an Appellee as part of the prayer for relief in the complaint. Appellees’ settlement offers, however, did not offer to have judgment entered against them. Because the settlement offers were not for the full relief requested, a live controversy remained over the issue of a judgment, and the cases were not moot. See Friends of Everglades, 570 F.3d at 1216.
Although the case concerned claims under the Fair Debt Collection Practices Act (FDCPA) the reasoning of the court is equally applicable to cases under the FLSA. In fact to a large extent the court relied on FLSA jurisprudence in reaching its decision. At least within the Eleventh Circuit, this case seems to put to bed the short-lived argument fueled by the same court’s decision less than two years ago in the Dionne opinions.
Click Zinni v. ER Solutions, Inc. to read the entire Opinion.
Orozco v. Borenstein
Amazingly, before the ink could even dry on the Zinni opinion, 2 days later, a court in the District of Arizona was faced with a virtually identical issue. However, unlike the Eleventh Circuit (and like the Order reversed in Zinni) the court ruled that an FLSA defendant could moot an entire class’ claims simply by tendering the maximum money damages due. Thus, the Orozco court granted the defendant’s motion to dismiss on mootness grounds, for lack of subject matter jurisdiction, following a tender.
Describing the issue before it, the court explained:
Plaintiff brings this putative class action pursuant to the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201, et seq., the Arizona Wage Act, A.R.S. § 23–350, et seq., and the Arizona Minimum Wage Act, A.R.S. § 23–363, et seq. Plaintiff worked as an oven operator in the bagel baking operations of defendant Bada Bing Baking, LLC, doing business as Chompie’s Wholesale Bakery (defendants collectively referred to as the “Bakery”). Plaintiff contends that the Bakery violated the FLSA, as well as Arizona’s wage statutes, by failing to pay plaintiff and other similarly situated employees the required federal and state minimum wages for covered nonexempt employees. Plaintiff contends that, although the employees are paid slightly more than the minimum wage required by federal and state law, 29 U.S.C. § 206(a), A.R.S. § 23–363(A), the Bakery has implemented a policy of deducting certain work-related expenses from the employee’s paychecks, leaving their net pay below minimum wage. Specifically, plaintiff alleges that the Bakery deducts $12.50 per paycheck for uniform laundering, $10.00 for initial and lost electronic keys, $5.00 for initial and lost time cards, and $24.00 for “food handlers” health cards from Maricopa County.
After this lawsuit was filed, the Bakery reimbursed 51 current and former “minimum wage” employees for the uniform-related fees incurred in the 2 years preceding the filing of this lawsuit, along with liquidated damages as prescribed by 29 U.S.C. § 216(b). The Bakery contends that because it has tendered full payment for all claimed violations, there is no remaining live case or controversy, rendering this case moot.
For reasons known only to the plaintiff and his attorney, the plaintiff did not raise any issue regarding the defendant’s failure to allow the entry of judgment on the claims. Instead, the plaintiff contended that he had not been fully compensated for his claims because (1) he sought damages for a third year due to the Defendant’s “willful” FLSA violations, and (2) he was not reimbursed for certain other items. However, due to insufficiencies it cited in the plaintiff’s pleadings and his declaration submitted in opposition to the defendant’s motion, the court granted the defendant’s motion and dismissed the case.
Of note, the court declined to resolve the issue of whether the plaintiff was entitled to attorneys fees as the prevailing party, instead reserving on the issue until plaintiff had filed a motion for attorneys fees pursuant to the District of Arizona’s local rules.
Click Orozco v. Borenstein to read the entire Order.
Seymour v. PPG Industries, Inc.
In the final case discussed, the defendant actually did tender an offer of judgment, pursuant to FRCP 68, however it was arguably insufficient and thus, the defendant’s motion to dismiss was denied on that basis.
Interestingly, the parties in this salary misclassification collective action case had stipulated to the number of hours each of the plaintiffs had worked during the periods relevant to the claims. However, the parties disagreed as to how the plaintiffs’ damages were due to be calculated. As in many such cases, the defendant argued that the damages were to be calculated using the FWW or half-time methodology, while the plaintiffs asserted time and a half damages were due. Because the issue of how to calculate damages- and ultimately the amount of same- remained unresolved, the court held that the defendant’s offer of judgment could not be said to definitively by “full relief.” Thus, the defendant’s motion to dismiss for lack of subject matter jurisdiction was dismissed on this grounds.
Click Seymour v. PPG Industries, Inc. to read the entire Memorandum Opinion and Order.
So what’s the takeaway here? While it remains clear that a defendant cannot moot a claim where the damages themselves are in dispute, plaintiffs faced with offers that they believe provide full monetary relief, would be wise to demand a judgment as well if the goal is to avoid a dismissal on mootness grounds so that a settlement offer alone cannot moot their claim. Another extra step is to seek a declaratory judgment in the actual complaint.
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.”).