Esparza v. Kostmayer Construction, LLC et al
ORDER re 90 MOTION for Attorney Fees. ORDERED that the Plaintiff's motion for attorneys' fees and costs is GRANTED insofar as the Court finds the Plaintiffs are entitled to attorneys' fees and costs. FURTHER ORDERED that the motion be referred to the United States Magistrate Judge for determination of the amount of attorneys' fees owed. Signed by Judge Susie Morgan on 8/3/2017. (cc: VAN MEERVELD) (clc)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
LLC, ET AL.,
SECTION: “E” (1)
ORDER AND REASONS
Before the Court is Plaintiff’s motion for attorneys’ fees pursuant to 29 U.S.C. §
216(b).1 The motion is opposed.2
This is a collective action filed by Plaintiff Fabian Esparza (“Esparza”) under the
Fair Labor Standards Act of 1938 (“FLSA”).3 Esparza filed this suit on September 22,
2015, on behalf of himself and all other similarly situated individuals who are or were
employed to perform manual labor by Defendants Kostmayer Construction, LLC
(“Kostmayer Construction”).4 Kostmayer Construction is an industrial marine contractor
that provides “full-service marine fabrication facilities” and performs extensive piping
work in petrochemical and industrial plants, builds material-handling systems, and
performs heavy civil construction work throughout the Gulf Coast states.5 Defendant
Hiram Investments, LLC (“Hiram”) is a real-estate management company. Defendant
James Kostmayer is owner, president, manager, and director of Kostmayer Construction
R. Doc. 90.
R. Doc. 93.
3 29 U.S.C. § 201 et seq.
4 R. Doc. 1; R. Doc. 25.
5 R. Doc. 1 at ¶ 13; R. Doc. 5 at ¶ 13.
6 R. Doc. 1 at ¶ 24; R. Doc. 5 at ¶ 24.
The Plaintiffs allege the Defendants failed to pay overtime wages for time they
worked in excess of 40 hours per week in violation of the FLSA. 7 On April 27, 2017, the
parties informed the Court they had reached a settlement in principle.8 On June 23, 2017,
the parties filed a motion to approve the FLSA settlement.9 On June 28, 2017, the Court
granted the parties’ joint motion, and approved the FLSA Settlement Agreement.10
Paragraph B(2) of the Settlement Agreement provides:
The parties have made no agreement regarding the payment of Plaintiffs’
attorney fees or costs. Plaintiffs’ counsel intends to apply to the Court for an
award of attorney’s fees and costs and Defendants reserve the right to
contest this application. In the event that the Parties negotiate a settlement
of the Plaintiffs’ attorneys’ fees and costs while the application for the award
of attorneys’ fees and costs is pending, then such settlement amount will be
paid within 10 days of the Parties reducing it to writing.
On July 12, 2017, the Plaintiffs filed a motion for attorneys’ fees.11 The Defendants
oppose the motion, citing Dionne v. Floormasters Enterprises, Inc.12 In Dionne, the court
held that an employer, who denied liability for nonpayment for overtime work, was not
required to pay attorneys’ fees and costs under the FLSA because the plaintiffs mooted
their FLSA action when they conceded to the dismissal of the matter for lack of subjectmatter jurisdiction.13
The Defendants, however, ignore the Eleventh Circuit’s subsequent decision in
Wolff v. Royal American Management, Inc., which is factually similar to the instant
case.14 In Wolff—as in this case—the district court approved the FLSA settlement as
R. Doc. 1.
R. Doc. 87.
9 R. Doc. 88.
10 R. Doc. 89.
11 R. Doc. 90.
12 R. Doc. 93 at 4 (citing Dionne v. Floormasters Enterprises, Inc., 667 F.3d 1199, 1205 (11th Cir. 2012)).
14 545 Fed. App’x 791 (11th Cir. 2013). The Wolff court declined to extend the holding of Dionne. Id.
reasonable.15 For plaintiffs to be entitled to attorneys’ fees under the FLSA, they must
“receive a judgment in [their] favor.”16 The court in Wolff found that the district court’s
approval of the settlement, which did not moot Wolff’s FLSA claim, was a judgment in
Wolff’s favor, entitling him to attorneys’ fees. Also, as in Wolff, the language of the
Settlement Agreement in this case shows “the parties did not intend the settlement
agreement to preclude attorneys’ fees under the FLSA.”17
The Court adopts the reasoning in Wolff and finds that the Plaintiffs’ settlement
with the Defendants did not moot their FLSA claim, and, because they received a
judgment in their favor, they are entitled to attorneys’ fees and costs from the Defendants.
IT IS ORDERED that the Plaintiff’s motion for attorneys’ fees and costs is
GRANTED insofar as the Court finds the Plaintiffs are entitled to attorneys’ fees and
IT IS FURTHER ORDERED that the motion be referred to the United States
Magistrate Judge for determination of the amount of attorneys’ fees owed.
New Orleans, Louisiana, this 3rd day of August, 2017.
_______ _____________ __________
UNITED STATES DISTRICT JUDGE
Id. at 795. The court in Dionne never approved any settlement agreement or retained jurisdiction to
enforce any settlement agreement, as the parties never reached a formal settlement agreement to present
to the court. Dionne, 667 F.3d at 1205.
16 Wolff, 545 Fed. App’x at 795 (citing 29 U.S.C. § 216(b) (“Any employer who violates the provisions of
section 206 or section 207 of this title shall be liable to the employee or employees affected in the amount
of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in an
additional equal amount as liquidated damages. . . . The court in such action shall, in addition to any
judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney’s fee to be paid by the defendant,
and costs of the action.”)).
17 Id.; see also R. Doc. 88-3 at 4.
18 The Plaintiff has filed a bill of costs before the Clerk of Court. R. Doc. 91. See also L.R. 54.3. The
Defendants filed an opposition to the bill of costs. R. Doc. 92.
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