O'Neal v. Eagle Marine Contracting, LLC et al
Order re: 4 MOTION to Dismiss Plaintiff's Complaint and Notice of Full Payment by Defendants, 10 Response in Opposition to Motion and Defendant is ordered to file amended response clarifying whether he has been fully compensated for his claim by 10/12/2016, and 11 Reply Brief. A hearing is set for 10/18/2016 at 2:30 PM in US Courthouse, Courtroom 5A, 113 St. Joseph Street, Mobile, AL 36602 Judge Kristi K. DuBose. Signed by Judge Kristi K. DuBose on 10/5/2016. (srd)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
IVAN O’NEAL, on behalf of himself and
all other similarly situated persons
EAGLE MARINE CONTRACTING, LLC
d/b/a EM CONTRACTING and
d/b/a EM CONTRACTING LLC,
RAPHAEL G. BURCHFIELD,
CIVIL ACTION NO. 16-cv-00401-KD-B
This matter is before the Court on Defendant’s notice of full payment and motion to
dismiss Plaintiff’s complaint (Doc. 4), Plaintiff’s response in opposition (Doc. 10), and
Defendant’s reply (Doc. 11). As detailed herein, on or before October 12, 2016, the parties are
directed to amend and/or supplement their filings as set out. The matter is set for hearing on
October 18, 2016 at 2:30 p.m.
On August 1, 2016, Plaintiff Ivan O’Neal (“Plaintiff”) filed a Fair Labor Standards Act
(“FLSA”) collective action complaint on behalf of himself and others similarly situated. (Doc 1).
Plaintiff sought unpaid overtime wages, liquidated damages, and other relief. Id.
On August 26, 2016, Defendants filed notice of full payment and motion to dismiss
Plaintiff’s complaint, explaining that they denied liability, but had deposited amounts into
Plaintiff’s bank account representing the full amounts of unpaid compensation and liquidated
damages to which he made claim. (Doc. 4). Defendants also stated that they agreed to pay
reasonable costs and attorneys’ fees incurred in connection with the action. Based on this,
Defendants claimed Plaintiff’s claims were moot and due to be dismissed pursuant to Fed. R.
Civ. P. 12(b)(1). (Doc. 4 at 4-5). Plaintiff opposes Defendants’ motion, arguing that the matter is
not moot as “it is not ‘impossible for a court to grant any effectual relief whatever to the
prevailing party’” and that the Plaintiff “has a ‘concrete interest’ in the outcome of the
litigation.” (Doc. 10 at 9 (internal quotes not attributed in the original)).
In Genesis Healthcare Corp. v. Symczyk, the Court, in distinguishing a collective action
from a class action, held that when a plaintiff’s individual FLSA claim is moot1, the collectiveaction allegations do not keep the suit alive. 133 S. Ct. 1523 (2013). Specifically, the Court held:
In the absence of any claimant's opting in, [Plaintiff’s FLSA] suit became moot
when her individual claim became moot, because she lacked any personal interest
in representing others in this action. While the FLSA authorizes an aggrieved
employee to bring an action on behalf of himself and “other employees similarly
situated,” 29 U.S.C. § 216(b), the mere presence of collective-action allegations in
the complaint cannot save the suit from mootness once the individual claim is
Id. at 1529 (2013).
However, whether a Rule 68 offer of judgment for the full amount of the claims moots
the plaintiff’s case was not address in Genesis. That question was addressed earlier this year,
when the United States Supreme Court decided Campbell-Ewald Co. v. Gomez, holding that a
plaintiff’s Rule 23 class action complaint “was not effaced by [Defendant’s] unaccepted [Rule
68] offer to satisfy his individual claim.” 136 S. Ct. 663, 670 (2016), as revised (Feb. 9, 2016).
Defendants allege they have made2 and Plaintiff has declined to accept a Rule 68 offer of
In Genesis, the Third Circuit had previously determined that an unaccepted Rule 68 offer of judgment, which
provided full relief to the Plaintiff, mooted her individual claims. Relying on the Third Circuit’s determination, the
Supreme Court assumed without deciding that the defendant’s Rule 68 offer mooted the plaintiff’s individual claim.
Genesis at 1529.
The parties disagree as to whether a Rule 68 offer was actually made. (Compare Doc. 10 at 8 with Doc. 11 at 4-5).
judgment. Pursuant to Gomez, an unaccepted offer of judgment that would satisfy a plaintiff’s
claims does not render the matter moot. Gomez at 670.
But, the Court in Gomez left open the question of how a plaintiff’s claim could become
moot. In concluding its opinion, the Court observed:
We need not, and do not, now decide whether the result would be different if a
defendant deposits the full amount of the plaintiff's individual claim in an account
payable to the plaintiff, and the court then enters judgment for the plaintiff in that
amount. That question is appropriately reserved for a case in which it is not
Id. at 672.
Defendants have attempted to effectuate the above quoted hypothetical suggested in
Gomez. That is, Defendants have deposited what they claim is the “full amount of plaintiff’s
claim” into Plaintiff’s account. Gomez at 672. They have also offered to pay costs and reasonable
There are two questions before the Court then: 1) Whether the deposit made into
Plaintiff’s bank account equals the claimed amounts of unpaid overtime compensation and
liquidated damages; and 2) whether, if the deposit and offer to pay Plaintiff costs and reasonable
attorneys’ fees fully compensate the Plaintiff, his case is moot.
It appears that Plaintiff does not dispute (or confirm) that his claim for unpaid overtime
compensation and liquidated damages is satisfied. (Doc. 10 at 9). Rather, Plaintiff states that
Defendants have not paid costs or attorneys’ fees, thus the matter is not moot (Doc. 10 at 9, 14).
Before determining whether plaintiff’s claim is kept alive based on his claim for attorneys’ fees,
costs and injunctive relief, the Court requires clarification whether there is a dispute as to the
amount of unpaid overtime compensation and liquidated damages.
Upon consideration of the foregoing, Plaintiff is ORDERED to file, on or before
October 12, 2016, an amended response clarifying whether he has been fully compensated for
his claim of unpaid overtime compensation and liquidated damages. If Plaintiff’s position is that
Defendants’ direct deposit did not fully compensate him for his claimed amounts of unpaid
overtime compensation and liquidated damages, Plaintiff shall state what amounts he claims he
is owed for unpaid overtime compensation and liquidated damages.
This matter is set for hearing October 18, 2016 at 2:30 p.m. in Courtroom 5A, U.S.
District Court for the Southern District of Alabama, 113 St. Joseph Street, Mobile,
DONE and ORDERED this 5th day of October 2016.
s/ Kristi K. DuBose
KRISTI K. DuBOSE
UNITED STATES DISTRICT JUDGE
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