Ufheil v. Carrabba's Italian Grill LLC et al
Filing
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ORDER denying 20 Motion for Attorney Fees. Signed by Judge David G Campbell on 1/3/2012.(NVO)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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No. CV11-0659-PHX-DGC
Chad Ufheil,
Plaintiff,
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vs.
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ORDER
Carrabba's Italian Grill, LLC, a Florida
limited liability company; OS Restaurant
Services, Inc., a Delaware corporation,
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Defendants.
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Defendants Carrabba’s Italian Grill, LLC and OS Restaurant Services, Inc. filed a
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motion for attorneys’ fees and non-taxable costs pursuant to Fed. R. Civ. P. 54(d)(2) and
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LRCiv 54.2(b)(1). Doc. 20. Defendants have since withdrawn their request for non-
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taxable expenses. Doc. 21, at 2, n.1. The motion has been fully briefed. Docs. 20, 21,
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23, 26. No party has requested oral argument. For the reasons below, the Court will
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deny the motion.
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I.
Background.
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In September 2008, Plaintiff Chad Ufheil and Defendants entered into an
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employment agreement (“the Agreement”). Pursuant to the terms of the Agreement,
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Defendants agreed to employ Plaintiff as the proprietor of a Carrabba’s restaurant located
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in Mesa, Arizona for a period of not less than five years effective August 1, 2008.
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Doc. 1, ¶¶ 6-8. Less than two years later, Plaintiff received a letter from Defendants
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informing him that his employment and limited partnership had been terminated effective
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May 22, 2010. Id. at ¶ 12. One year later, Plaintiff filed a suit in this Court asserting
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claims for breach of contract, breach of the covenant of good faith and fair dealing, and
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failure to pay wages. Id. at ¶¶ 20-29.
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The Agreement contained the following forum selection clause: “Employee
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hereby agrees that any action brought by Employee . . . against the Employer, the
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Company, or any of their affiliates, whether arising out of this Agreement or otherwise,
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shall be brought exclusively in the United States District Court for the Middle District of
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Florida, Tampa Division, or in the Circuit Court in and for Hillsborough County,
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Florida.” Doc. 10-1, at 12, ¶ 27. On May 11, 2011, Defendants filed a motion to dismiss
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for improper venue pursuant to Rule 12(b)(3) of the Federal Rules of Civil Procedure.
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Doc. 10. On August 22, 2011, the Court granted Defendants’ motion and dismissed the
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action for improper venue. Doc. 18. Defendants now seek an award of attorneys’ fees
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pursuant to Fla. Stat. § 448.08 (2010). Doc. 20, 21.
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II.
Legal Standard.
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Fla. Stat. § 448.08 provides: “The court may award to the prevailing party in an
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action for unpaid wages costs of the action and a reasonable attorney’s fee.” This statute
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authorizes, but does not require, an award of attorneys’ fees for the prevailing party in an
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action for unpaid wages. Williams v. Florida Memorial College, 453 So. 2d 541, 542
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(Fla. App. 1984).
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III.
Discussion.
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Plaintiff argues that Defendants are not entitled to attorneys’ fees because they are
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not the “prevailing party” on any substantive claim, that they did not prevail on a claim
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for “unpaid wages” and § 488.08 is therefore inapplicable, and that an award of
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attorneys’ fees would have a significant chilling effect on other Arizona employees in
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similar situations. Doc. 23. Alternatively, Plaintiff argues that Defendants’ requested
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fees are unreasonable. Doc. 23, at 5-6.
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A.
Applicability of § 488.08.
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Section 448.08 applies to this dispute because Plaintiff made a claim for unpaid
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wages. Count Three of Plaintiff’s complaint alleges that, “[b]ecause of Defendants’
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failure and refusal to pay . . . wages, Plaintiff is entitled to treble the amount of his unpaid
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wages . . . .” Doc. 1, at 4. Plaintiff now labels Count Three as a request for “statutory
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treble damages for Defendants’ breach of the employment agreement,” and argues that
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§ 488.08 does not permit a fee award for “contract or statutory claims.” Doc. 23, at 3.
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In McGregor v. Board of County Commissoners, the Florida district court looked
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to the substance of the plaintiff’s claim and determined that an application of § 448.08
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was appropriate. McGregor v. Bd. of Cnty. Comm’rs, 130 F.R.D. 464, 468 (S.D. Fla.
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1990) (“This count was labeled by the plaintiff as a breach of employment claim.
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However, the allegations . . . explicitly request an award of monetary compensation
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allegedly owed to the plaintiff under his contract with the County. . . . [I]t is apparent that
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the defendant is correct in labeling [the count] as an action within the purview of Fla.
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Stat. § 488.08.”). As in McGregor, Plaintiff explicitly requested an award of monetary
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compensation. He expressly argues in his complaint that the “salary and bonuses to
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which Plaintiff is entitled under the Agreements are wages under A.R.S. § 23-350, et.
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seq.” Doc. 1, at 4.
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Plaintiff incorrectly based his claim on a treble damages provision that did not
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apply because he sought damages for work not yet completed.
See Doc. 18, at 4
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(“Defendants correctly assert that [A.R.S.§ 23-355] has been construed by the Ninth
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Circuit to be available only where a ‘suit was for wages already performed.’”) (citing
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Nieto-Santos v. Fletcher Farms, 743 F.2d 638, 642 (9th Cir. 1984)). The Court agrees
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with Defendants that what matters for applying § 488.08 is not whether Plaintiff was
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correct on his claim for unpaid wages, but that Plaintiff sought unpaid wages. See
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Doc. 26, at 5. The Court concludes that § 488.08 applies because Plaintiff’s complaint
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sought unpaid wages, albeit under the incorrect statutory provision.
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B.
Prevailing Party.
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Plaintiff argues that Defendants are not the prevailing party on any substantive
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claim. Doc. 23, at 2-3. The Court agrees. The Court dismissed Plaintiff’s action for
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improper venue without ruling on the substantive merits of Plaintiff’s claim. Doc. 18,
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at 6. Plaintiff cites Orange Blossom Enterprises, Inc. v. Brumlik, 430 So. 2d 13 (Fla.
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App. 1983), in which the Florida district court denied a motion for attorneys’ fees, noting
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that “[b]ecause the decision involves only the question of venue, there has been no
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determination yet on who is the prevailing party on the merits, so any award of attorney’s
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fees will have to await the final outcome of the case.” Brumlik, 430 So. 2d at 15.
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Defendants attempt to distinguish Brumlik on the ground that it involved a fee-shifting
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provision in the parties’ contract rather than § 488.08. Doc. 26, at 2. The Court finds,
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however, that the contractual fee-shifting provision at issue in Brumlik is substantially
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similar to the statutory fee-shifting provision at issue here. The contractual fee-shifting
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provision in Brumlik provided that “[i]f there is any litigation arising hereunder, the
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prevailing party shall be entitled to recover . . . attorney’s fees.” Brumlik, 430 So. 2d
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at 15. Similarly, § 488.08 permits courts to award attorneys’ fees to a “prevailing party.”
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Fla. Stat. § 448.08. The Court therefore applies the reasoning in Brumlik and concludes
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that Defendants are not a prevailing party under § 488.08 because the action in this Court
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concluded with dismissal for improper venue.
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The Court acknowledges Defendants’ argument that the Court’s August 22, 2011
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order (Doc. 18) granting Defendants’ motion to dismiss establishes the final outcome of
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Plaintiff’s action before this Court. Doc. 26, at 2. This finality occurred as a result of a
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jurisdictional determination, not a determination on the merits of Plaintiff’s claims.
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Plaintiff may still litigate his claims in the appropriate venue pursuant to the parties’
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forum selection clause (Doc. 23, at 4), and the parties may move for attorneys’ fees in
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that court.
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The Court declines to award attorneys’ because Defendants are not a prevailing
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party under § 488.08.
The Court therefore will not address the reasonableness of
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Defendants’ requested fees.
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IT IS ORDERED:
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Defendants’ motion for attorneys’ fees (Doc. 20) is denied.
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Dated this 3rd day of January, 2012.
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