Fernandez v. Andy Iron Works Inc. et al
Filing
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ORDER denying 11 Motion to Dismiss Count I of the Complaint. Signed by Magistrate Judge Jonathan Goodman on 7/10/2014. (lpr)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
Case No. 13‐cv‐24477‐GOODMAN
JULIO FERNANDEZ,
Plaintiff,
v.
ANDY IRON WORKS, INC. and,
ANDREW L. RUIZ,
Defendants.
_____________________________________/
ORDER DENYING DEFENDANTS’ MOTION TO DISMISS COUNT I OF THE
COMPLAINT WITH PREJUDICE
THIS Cause is before the Undersigned on Defendants’ Tender of Full Payment
and Motion to Dismiss Count I of the Complaint With Prejudice (the “Motion”). [ECF
No. 11]. Plaintiff responded in opposition to the Motion [ECF No. 16] and Defendants
filed their reply. [ECF No. 17]. The matter is now ripe for review. Having reviewed the
Motion, the response, the reply, and the pertinent portions of the record, the
Undersigned denies Defendants’ Motion to Dismiss.
I.
BACKGROUND
Plaintiff Julio Fernandez (“Plaintiff”) brought this action against Defendants
Andy Iron Works, Inc. and Andrew L. Ruiz (collectively “Defendants”) for overtime
wage violations under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201‐216
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(Count I), and negligence under Fla. Stat. § 440.11(1)(a) (Count II). [ECF No. 1]. In
response to the complaint, Defendants sent a check to Plaintiff for tender of full
payment of damages, including liquidated damages, and filed the instant Motion,
urging the Undersigned to dismiss Count I with prejudice and remand Count II to state
court pursuant to Federal Rule of Civil Procedure 12(h)(3). [ECF No. 11]. Plaintiff
responded in opposition, arguing that the check did not constitute full tender so as to
make the overtime claim moot.1 [ECF No. 16, p. 1].
II.
DISCUSSION
A. Motions to Dismiss Under Rule 12(h)(3) for Mootness
The Supreme Court has long recognized that “a federal court has no authority to
give opinions upon moot questions or abstract propositions, or to declare principles or
rules of law which cannot affect the matter in issue in the case before it.” Church of
Scientology of Cal. v. U.S., 506 U.S. 9, 12 (1992) (quotations omitted). A case becomes
moot “when the issues presented are no longer ‘live’ or the parties lack a legally
The Undersigned, at least for purposes of this motion, finds that the check
should be construed as a settlement offer that was not accepted. Definitive information
regarding whether the check was cashed or not, indicating an acceptance of the offer,
would have been helpful to the Undersigned. Plaintiff’s response in opposition notes
that the amount was tendered, but does not specifically say it was not accepted. [ECF
No. 16]. Defendants state in their motion that they “paid Plaintiff $2,100.000 [sic] which
amount represents the entire damages that Plaintiff claims he is owed . . . “ [ECF No. 11,
p.2]. But, according to their reply memorandum, “[i]t is Defendants’ position that the
tender of the full amount Plaintiff claims he is owed in unpaid overtime and liquidated
damages renders that claim moot.” [ECF No. 17]. The reply memorandum never states
the amount was actually paid.
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cognizable interest in the outcome.” Powell v. McCormack, 395 U.S. 486, 496 (1969). “[I]f
events that occur subsequent to the filing of a lawsuit or an appeal deprive the court of
the ability to give the plaintiff meaningful relief, then the case is moot and must be
dismissed.” Soliman v. U.S., 296 F.3d 1237, 1242 (11th Cir. 2002) (quotations omitted). In
such instances, the case is dismissed pursuant to Federal Rule of Civil Procedure
12(h)(3), which states that “[i]f the court determines at any time that it lacks subject‐
matter jurisdiction, the court must dismiss the action.”
Here, Defendants argue that the overtime claim is moot because they have
offered to pay Plaintiff his entire claimed damages, including liquidated damages.
[ECF No. 11, p. 2]. Plaintiff denies that the claim is moot because the offer did not
include attorney’s fees and costs that he would be entitled to as the prevailing party
under the FLSA. [ECF No. 16, p. 1].
B. Plaintiff’s Overtime Claim is not Moot
In arguing that the overtime claim is moot, Defendants cite to Dionne v.
Floormasters Enters., Inc., 667 F.3d 1199 (11th Cir. 2012) (vacating and superseding
Dionne v. Floormasters Enters., Inc., 647 F.3d 1109 (11th Cir. 2012)). In Dionne, the
defendant tendered full payment for an FLSA claim and filed a motion to dismiss
almost identical to Defendants’ Motion in this case. Id. at 1201. Unlike Plaintiff here, the
plaintiff in Dionne conceded that his overtime claim was mooted by payment of full
tender but requested that the court reserve jurisdiction to determine attorney’s fees and
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costs under the FLSA. Id. at 1201‐02. The District Court denied plaintiff’s motion for
attorney’s fees and costs and the Eleventh Circuit affirmed. Id. at 1202; 1206.
In affirming the District Court’s decision, the Eleventh Circuit held 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 1205 (emphasis supplied). The FLSA awards
attorney’s fees and costs only when the plaintiff receives a favorable judgment. 29
U.S.C. § 216(b). Thus, the Eleventh Circuit held that the plaintiff in Dionne was not
entitled to attorney’s fees and costs. Dionne, 667 F.2d at 1206.
While noting what they deem a favorable outcome in Dionne, Defendants neglect
an important footnote in which the Eleventh Circuit 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 attorneyʹs fees under § 216(b). It should not be
construed as authorizing the denial of attorneyʹs 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.
Dionne, 667 F.3d at 1206 n. 6 (emphasis added). As fate would have it, that is exactly
what the Defendants attempted to do in this case.2 Defendants sent a check for full
Defendants include, at Exhibits 2 and 3 of their Motion, a similar motion to
dismiss in a 2011 case, and an Order granting that motion. That case is not binding
precedent here. In fact, the decision there cites a later‐vacated decision in the Dionne
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tender and then claimed that “since Plaintiff did not obtain a judgment or enter into a
settlement, he cannot be considered a prevailing party entitling him to attorney’s fees
and costs.” [ECF No. 17, p. 3].
Defendants’ effort to drive this case out of federal court, while strategically
impressive, cannot succeed. The Eleventh Circuit has held that “settlement offers do not
divest the district court of subject matter jurisdiction.” Zinni v. ER Solutions, Inc., 692
F.3d 1162, 1164 (11th Cir. 2012). In Zinni, the defendants attempted to dismiss multiple
cases as moot by offering the plaintiffs a dollar more than the maximum allowable
award under the Fair Debt Collection Protection Act. Id. at 1163. The defendants also
offered unspecified attorney’s fees and costs, but did not offer to have judgment entered
against them. Id. at 1164. Each plaintiff rejected the offer, but the defendants still moved
to dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure
12(h)(3) and the district court granted the motions as to each plaintiff. Id. at 1163‐64. The
Eleventh Circuit reversed, holding that “[b]ecause 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.” Id. at 1167‐68. The court specifically recognized that “[a]
judgment is important to [the plaintiffs] because the district court can enforce it.” Id. at
case, 647 F.3d 1109, that did not include footnote 6, which, as described above,
specifically notes that a request for attorney’s fees in an FLSA case cannot be denied
simply because an employer tenders the full amount of allegedly owed back pay. The
11th Circuit’s subsequent decision in Dionne is binding precedent.
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1168. Thus, “[t]he district court erred in concluding [defendants’] offers of settlement
were for full relief such that [plaintiffs’] cases were mooted.” Id.
Courts that may have been inclined to read Dionne as allowing defendants who
paid full tender to avoid liability for attorney’s fees and costs changed course following
the Zinni decision. See, e.g., Tapia v. Florida Cleanex, Inc., 09‐21569‐CIV, 2012 WL 7965871
at * 4 (S.D. Fla. Dec. 7, 2012) (noting that Zinni forecloses the approach that Defendants
urge here). This case, like Tapia, closely resembles Zinni. Plaintiff has not conceded that
his overtime claim is moot. [ECF No. 16, p. 1]. Plaintiff still wants to pursue a judgment
for both claims and obtain the attorney’s fees and costs that he believes he is entitled to
here. [Id.]. The Eleventh Circuit has made clear that when plaintiffs do not concede that
their case is moot, or accept a settlement offer (the Plaintiff has done neither here),
courts cannot simply dismiss the case with prejudice. Dionne, 667 F.3d at 1206, n. 6;
Zinni, 692 F.3d at 1164.
Accordingly, the Undersigned finds that a live controversy still exists and
Plaintiff’s overtime claim is not moot. Defendants cannot simply pay the full claim,
including liquidated damages, and in so doing, avoid liability altogether for Plaintiff’s
attorney’s fees and costs and cause the remaining negligence claim to be remanded to
state court. [ECF No. 17, p. 1]. Zinni makes clear that settlement offers, even those for
the full amount of allowable damages, do not extinguish a live controversy and thereby
deprive the court of subject matter jurisdiction. Zinni, 692 F.3d at 1164.
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III.
CONCLUSION
For the reasons outlined above, the Undersigned denies Defendants’ Motion to
Dismiss Count I of the Complaint. [ECF No. 11]. Plaintiff has not conceded that his
overtime claim is moot and the Court has not entered a judgment that would render the
claim moot.
DONE AND ORDERED, in Chambers, in Miami, Florida, this 10th day of July,
2014.
Copies furnished to:
All counsel of record
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