Gilliam v. Wal-Mart Stores East, LP

Filing 36

OPINION AND ORDER granting 25 Tender of full payment and dispositive motion to dismiss and dismissing with prejudice 1 Complaint. The Clerk shall enter judgment dismissing the case with prejudice as moot, terminate all deadlines, and close the file. Signed by Judge John E. Steele on 2/10/2012. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
LISA GILLIAM, on behalf of herself
and all others similarly situated,
Plaintiff,
vs.

Case No.

2:11-cv-454-FtM-29SPC

WAL-MART STORES EAST, LP, a Foreign
Limited Partnership doing business
as WAL-MART SUPERCENTER,
Defendant.
___________________________________
OPINION AND ORDER
This matter comes before the Court on defendant’s Tender of
Full Payment and Dispositive Motion to Dismiss Complaint With
Prejudice (Doc. #25) filed on December 21, 2011. Plaintiff filed a
Response (Doc. #27) on December 28, 2011, opposing the motion.
Upon Order (Doc. #28) requesting a reply, defendant filed a Reply
(Doc. #29) on January 12, 2012.
In responses to the Court’s Interrogatories (Doc. #21-1),
plaintiff sought a total of $583.50 plus liquidated damages for
unpaid overtime compensation under the Fair Labor Standards Act.
Defendant did not admit any liability, but tendered $1,167.00 “to
render Plaintiff’s claim moot.” (Doc. #25, ¶ 8.) The amount covers
the full amount of both the overtime and liquidated damages, and
plaintiff does not dispute this fact.

Plaintiff argues, however,

that the money did not constitute “full relief” because attorney’s
fees and costs were not included.

On January 13, 2012, the Court entered an Order (Doc. #30)
granting the motion.

The Court found there had been no judicial

determination of a prevailing party and defendant had not admitted
the allegations in the Complaint.

Relying on Dionne, the Court

found that the term “prevailing party” did not authorize an award
of

fees

“without

a

corresponding

relationship of the parties.”

alteration

in

the

legal

Dionne v. Floormasters Enters.,

Inc., 647 F.3d 1109, 1113 (11th Cir. 2011)(Dionne I)(emphasis in
original)(citing Buckhannon Board & Care Home, Inc. v. W. Va. Dep’t
of Health & Human Res., 532 U.S. 598, 605 (2001)).
stated:

The Court then

“Although plaintiff wishes to have the tender of payment

construed as a settlement agreement for judicial approval, no
settlement agreement occurred in this case and the matter was never
submitted for approval by the Court. The Court will grant the
motion and dismiss the Complaint pursuant to Dionne.”

(Doc. #30,

p. 2.)
As luck would have it, on the same day the Eleventh Circuit
vacated and withdrew its opinion in Dionne I, and substituted a new
opinion.

Dionne v. Floormasters Enters., Inc.,

WL 104906 (11th Cir. Jan. 13, 2012)(Dionne II).

F.3d

, 2012

The Court then

entered an Order (Doc. #31) vacating its prior Order (Doc. #30).
Both sides were provided the opportunity to supplement their
positions in light of the new opinion (Doc. #33), and both sides
have filed supplemental memoranda (Docs. ## 34, 35).

-2-

The issue in Dionne I/Dionne II was “whether an employer, who
denies

liability

for

nonpayment

for

overtime

work,

must

pay

attorney's fees and costs pursuant to 29 U.S.C. § 216(b) of the
Fair Labor Standards Act (“FLSA”) if the employer tenders the full
amount of overtime pay claimed by an employee, and moves to dismiss
on mootness grounds where the employee concedes that ‘the claim for
overtime should be dismissed as moot.’”

Dionne II, 2012 WL at *1.

The Eleventh Circuit “conclude[d] that, under such circumstances,
the dismissal of the employee's complaint, without an award of
attorney's fees, is not erroneous pursuant to § 216(b) because the
District Court did not award judgment to the employee as the
prevailing party.” Id. The Eleventh Circuit found that Dionne “is
not a ‘prevailing party’ in this action because, in granting
Floormasters' motion to dismiss this lawsuit for lack of subject
matter jurisdiction, the District Court did not award a judgment in
his favor.”

Id. at *7.

Footnote 5 to this sentence stated:

Our decision in this matter addresses a very narrow
question: whether an employee who conceded that his claim
should be dismissed before trial as moot, when the full
amount of back pay was tendered, was a prevailing party
entitled to statutory attorney's fees under § 216(b). It
should not be construed as authorizing the denial of
attorney's fees, requested by an employee, solely because
an employer tendered the full amount of back pay owing to
an employee, prior to the time a jury has returned its
verdict, or the trial court has entered judgment on the
merits of the claim.
Id. at *7, n.5.

The parties dispute the significance of footnote

5.

-3-

In this case, the fact pattern is identical to Dionne II
except that plaintiff herein does not concede mootness.

Not only

has plaintiff’s counsel not cashed the check, but he now reports
that it has been returned to defendant.

Defendant argues that

mootness is a subject matter jurisdiction issue, and subject matter
jurisdiction cannot be created or lost simply by the consent or
lack of consent by the parties.
The Court, of course, takes Dionne II at its word that Dionne
II “should not be construed as authorizing the denial of attorney's
fees, requested by an employee, solely because an employer tendered
the full amount of back pay owing to an employee, . . .”
WL at *7, n.5.

Id. 2012

An order dismissing a complaint with prejudice is

a “judgment”, since Fed. R. Civ. P. 54(a) defines “judgment” to
mean “a decree and any order from which an appeal lies,” and an
appeal lies from an involuntary order of dismissal, Robinson v.
Federal Nat’l Mortg. Ass’n, 673 F.2d 1247, 1249 (11th Cir. 1982).
The Court need not decide the attorney fees issue, however, because
defendant’s
Complaint

motion

simply

with prejudice

asks
as

for

moot,

an

and

order

dismissing

plaintiff

has

the

not

yet

presented a separate motion to the Court for attorney’s fees.1

The

undisputed facts establish that the case is moot because the full

1

Although the Response (Doc. #27) sought approval of the
settlement offer and judgment in plaintiff’s favor with a
reservation of jurisdiction to determine attorney’s fees and costs,
no such motion has been presented to the Court pursuant to Fed. R.
Civ. P. 7(b).
-4-

amount of damages owed to plaintiff and requested by plaintiff were
tendered to counsel.
Accordingly, it is now
ORDERED:
1.

Defendant’s Tender of Full Payment and Dispositive Motion

to Dismiss Complaint With Prejudice (Doc. #25) is GRANTED and
plaintiff’s Complaint (Doc. #1) is dismissed with prejudice as
moot.
2.

Pursuant to Federal Rule of Civil Procedure 58, the Clerk

shall enter judgment dismissing the case with prejudice as moot,
terminate all deadlines, and close the file.
DONE AND ORDERED at Fort Myers, Florida, this
February, 2012.

Copies:
Counsel of record

-5-

10th

day of