BARTON v. MID-ATLANTIC FLOORING VENTURES INC. et al
OPINION. Signed by Judge Renee Marie Bumb on 12/4/2014. (tf, )
NOT FOR PUBLICATION
[Docket Nos. 27 & 28]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
Civil No. 13-4592
MID-ATLANTIC FLOORING VENTURES
INC. d/b/a PROSOURCE OF SOUTH
JERSEY AND PROSOURCE OF RARITAN
CENTER, et al.,
ROBERT J. HAGERTY
Hagerty & Bland-Tull Law LLC
714 East Main Street Suite 2C
Moorestown, NJ 08057
Attorney for Plaintiff
IAN D. MEKLINSKY
Fox Rothschild LLP
Princeton Pike Corporate Center
997 Lenox Drive
Lawrenceville, NJ 08648-2311
Attorney for Defendants
BUMB, United States District Judge:
On June 15, 2013, Plaintiff Pauline Barton (“Barton”) filed
a Complaint against Defendants Mid-Atlantic Flooring Ventures,
Inc. and Mark Grossman (“Defendants”), in the Superior Court of
New Jersey, Law Division.
In her Complaint, Plaintiff alleged
violations of the overtime provisions of the Fair Labor
Standards Act (“FLSA”) and the wage payment provisions of the
New Jersey Wage and Hour Law (“Wage and Hour”).
On July 31,
2013, Defendants timely removed the action to this Court.
On March 14, 2014, Defendants filed a Motion to Amend their
answer to assert a counterclaim. 1
That same date, Defendants
also served an Offer of Judgment pursuant to Federal Rule of
Civil Procedure 68 (the “Offer of Judgment”). 2
Pursuant to the
terms of the Offer of Judgment all defendants offered
to allow judgment to be taken against them on all
claims in the Complaint of Plaintiff Pauline Barton
for the total sum of eight thousand dollars ($8,000),
inclusive of the costs of the action, and reasonable
attorney’s fees incurred through and including the
date of the offer.
On August 22, 2013, Plaintiff consented to the Court’s
dismissal of her collective and class action claims [Docket Nos.
7 & 8].
Federal Rule of Civil Procedure 68 provides, in relevant part:
At least 14 days before the date set for trial, a party
defending against a claim may serve on an opposing party an
offer to allow judgment on specified terms, with the costs
then accrued. If, within 14 days after being served, the
opposing party serves written notice accepting the offer,
either party may then file the offer and notice of
acceptance, plus proof of service. The clerk must then enter
[Docket No. 24].
Plaintiff accepted the Offer of Judgment three days later,
on March 28, 2014, by filing a Notice of Acceptance.
connection with Plaintiff’s acceptance, the parties signed and
filed a Stipulation of Dismissal [Docket No. 26]. The Clerk of
Court thereafter terminated this case pursuant to the
Stipulation of Dismissal and Plaintiff’s acceptance of the Offer
of Judgment [Docket No. 24].
The Clerk of Court also entered a
judgment in favor of Plaintiff in the amount of $8,000 and
On April 30, 2014, Plaintiff filed the within motion
seeking a statutory award of attorney’s fees under the FLSA’s
prevailing party provision [Docket No. 27].
moved to remand her Wage and Hour claim to state court.
Defendants have opposed the motion on several grounds.
Defendants contend that Plaintiff’s motion for attorney’s fees
is procedurally deficient under this Court’s Local Civil Rule
54.2 (“Local Rule”) and, therefore, should be denied.
assuming the motion is not procedurally barred, Defendants argue
that Plaintiff’s motion for fees and remand is barred by the
Offer of Judgment which conclusively settled the entire case as
to all claims and attorney’s fees.
Defendants also argue, in
the alternative, that in the event the Court excuses Plaintiff’s
failure to abide by the Local Rule and agrees with Plaintiff’s
interpretation of the Offer of Judgment, the Court should vacate
the judgment under Federal Rule of Civil Procedure 60(b) and
permit them to file their counterclaims [Docket No. 28].
The FLSA provides for an award of attorney’s fees to a
prevailing party under 29 U.S.C. § 216(b).
parties do not dispute that Plaintiff was the prevailing party
as a result of the Offer of Judgment and that the FLSA permits
recovery of attorney’s fees to the prevailing party.
the parties dispute the terms of the Offer of Judgment.
Plaintiff contends that the Offer of Judgment expressly permits
her recovery of fees because the phrase “and reasonable
attorney’s fees incurred” was an independent clause, set off by
a comma and therefore not included in the $8,000 offer. 3
Defendants counter that the Offer of Judgment limited
Plaintiff is incorrect that the mere inclusion of a comma
before the “and” renders the last phrase an “independent clause.”
An independent clause is one that can stand by itself – i.e., is
a simple sentence. Here, “and reasonable attorney’s fees
incurred through and including the date of the offer” is not a
sentence as it lacks the requisite verb. Instead, if the parties
intended the phrase “inclusive of the costs of the action” to
limit or define the $8,000, which both parties agree they did,
both commas are in error as “inclusive of the costs of the
action” is a restrictive clause and no comma should be placed
prior to a restrictive clause. Thus, the comma placed at the end
of that clause is also in error. See Strunk and White, The
Elements of Style, Elementary Rule of Usage 3).
Plaintiff’s judgment to $8,000 inclusive of attorney’s fees.
most, Defendants argue, the comma makes the Offer ambiguous and
the Court should look to parole evidence.
evidence of Defendants’ transmittal letter that conveyed the
Offer unequivocally stated that the $8,000 included attorney’s
In essence, the placement of the commas in the Offer of
Judgment is key to the parties’ substantive arguments.
Defendants, however, urge the Court not to reach the
substance of Plaintiff’s motion because she failed to comply
with the mandatory requirements of Local Rule 54.2.
agrees and turns first to this procedural argument.
Local Rule 54.2
Local Civil Rule 54.2 provides that in all actions in which
a counsel fee is allowed by the Court or permitted by statute,
an attorney seeking compensation for services . . .
within 30 days of the entry of judgment or order, unless
extended by the Court, a motion for fees and expenses in
accordance with L.Civ.R.7.1.
The motion shall include any
affidavits or other documents complying with 28 U.S.C. § 1746
setting forth the following:
the nature of the services rendered . . . and other
factors pertinent to the evaluation of the services
a record of the dates of services rendered;
a description of the services rendered on each of such
dates by each person of that firm including the
identity of the person rendering the service and a
brief description of that person’s professional
the time spent in the rendering of each of such
the normal billing rate for each of said persons for
the type of work performed.
L. Civ. R. 54.2(emphasis added).
Local Civil Rule 54.2 is similar to its federal
counterpart, Federal Rule of Civil Procedure 54(d)(2)(B) which
provides in relevant part:
(B) Timing and Contents of the Motion. Unless a statute or
a court order provides otherwise, the motion must:
be filed no later than 14 days after the entry of
specify the judgment and the statute, rule, or
other grounds entitling the movant to the award;
state the amount sought or provide a fair
estimate of it; and
disclose, if the court so orders, the terms of
any agreement about fees for the services for
which the claim is made.
Local Rule 54.2 modifies Federal Rule of Civil Procedure 54
in several respects.
It extends the time for filing a motion to
The rule also sets forth with specificity the contents
of the affidavit.
See Allyn Z., Lite, New Jersey Federal
Practice Rules 263 (2014)(stating “L.Civ.R. 54.2(a) was amended
in 2013 to clarify that both the motion for attorneys’ fees and
supporting documentation are to be filed simultaneously, within
30 days of the judgment.”) Where a local rule does not conflict
with an Act of Congress and the Federal Rules of Procedure, a
district court is authorized to prescribe rules for the conduct
of court business.
Planned Parenthood v. AG, 297 F.3d 253, 259-
60 (3d Cir. 2002)(citing Fed.R.Civ.P. 83(a)(1); 28 U.S.C. §
Anchorages Associates v. Virgin Islands Board of Tax
Review, 922 F.2d 168, 173 (3d Cir. 1990)).
Indeed, Federal Rule
54(d)(2)(D) expressly provides that “[b]y local rule, the court
may establish special procedures to resolve fee-related issues.”
Here, there is no conflict between the Local Rule and the
Despite the Local Rule’s clear mandate – “the motion
shall” - Plaintiff produced none of the required items to
support her motion.
In fact, despite the Federal Rule’s clear
mandate – “the motion must” - Plaintiff failed to provide even
the most minimal information such as the amount of fees she was
Plaintiff defends her failure to follow the rules
based on Federal Rule 54(d)(2)(C), which provides that “[t]he
court may decide issues of liability for fees before receiving
submissions on the value of services.” 4
Indeed, in her moving
papers, Plaintiff asks this Court to decide this issue of
liability first because she “expects defendants will oppose the
motion and it seems unfair to burden them (and the Court, for
that matter) with review of two years’ worth of time records
should it prove unnecessary.”
[Docket No. 27-1, p. 4].
Plaintiff’s proposition is troubling for several reasons.
While it is true that both the Local Rule and Federal Rule
authorize a court to relax the rules, such circumstances are
Under the Federal Rule, such option “may be
appropriate in actions in which the liability issue is doubtful
and the evaluation issues are numerous and complex.”
Committee Note, 1993 Amendments.
Under the Local Rule, such
circumstance may be where counsel fees are sought as sanctions.
This case, however, presents a routine fee application that does
not appear to warrant the invocation of Local Rule 54.2(c) or
Federal Rule 54(d)(2)(C).
Although not cited by Plaintiff, the Local Rule similarly
provides “[i]n appropriate circumstances, including but not
limited to those where counsel fees are sought as sanctions in
connection with discovery and other pretrial motions, the Judge
or Magistrate Judge to whom the application is directed may order
that any one or more of the items enumerated in L.Civ.R. 54.2(a)
and (b) will not be required.” L.Civ.R. 54.2(c).
Moreover, because she was the prevailing party, Plaintiff’s
statutory right to attorney’s fees under the FSLA is clear.
Additionally, by Plaintiff’s own submission, the Offer of
Judgment expressly permits her recovery of attorney’s fees.
That should have ended the analysis and a straightforward,
uncomplicated motion for attorney’s fees should and could have
been filed in compliance with the Local Rule.
Yet, because she
expected Defendants to oppose her application for attorney’s
fees, she did not submit the requisite documentation. However,
fee applications are routinely opposed.
case where no opposition was filed.
It would be the unusual
Indeed, if a plaintiff were
automatically excused from Local Rule 54.2’s requirements simply
because she anticipated opposition, the exception would swallow
the rule and Local Rule 54.2 would have little force.
Finally, the conduct of Plaintiff is troubling.
there are two possible scenarios to explain the motion that
Plaintiff seeks to have this Court resolve.
believed that she was entitled to the attorney’s fees and the
Offer of Judgment did not preclude her entitlement to fees or
Plaintiff believed that the Offer of Judgment was meant to
preclude recovery of further fees but was drafted inartfully to
Under the first scenario, as already
discussed, the motion is straightforward, and Plaintiff should
have followed the rules.
Under the latter scenario, Plaintiff
should have been more candid with the Court, as well as her
It was Plaintiff’s counsel who appears to have first
raised the significance of the second comma’s placement in the
Offer of Judgment. 5
There is nothing before the Court that
suggests that Defendants were aware that Plaintiff’s position
was, and is, that the attorney’s fees were not included in the
Offer of Judgment – i.e., not part of the restrictive clause.
For weeks, Defendants counsel attempted to get Plaintiff’s
counsel to sign the Warrant of Satisfaction of Judgment, but was
put off by Plaintiff until the within motion was filed.
No. 28, Defs.’ Exs. I-N].
It was a “gotcha” moment accompanied
by Plaintiff’s unnecessary “lecture” to Defendants that Rule 68
is a “trap for the unwary”
See Pl.’s Br. at 6-7.
Plaintiff’s motion gives this Court great pause.
The tenor of
Plaintiff’s sole reason for failing to follow the rule was
As set forth in footnote 3 above, it is not the placement
of the second comma that is the sole grammatical problem;
instead, both commas were added in error. Instead, to effectuate
the result urged by Plaintiff, the Offer should have read:
to allow judgment to be taken against them on all
claims in the Complaint of Plaintiff Pauline Barton
for the total sum of eight thousand dollars ($8,000)
that includes the costs of the action but excludes
reasonable attorney’s fees incurred through and
including the date of the offer.
because she anticipated opposition based on the Offer of
Why did she anticipate such opposition if the issue
is as clear-cut as Plaintiff says it is? It seems Plaintiff
herself had questions but still filed a “gotcha” type brief.
Accordingly, the Court will require a more detailed explanation
as to why Plaintiff failed to follow the Local Rule.
If Plaintiff expects that Defendants should play by the
“rules,” so should she. It is within this Court’s discretion
whether it should overlook Plaintiff’s failure to comply with
Local Rule 54.2.
Accordingly, because this Court has serious
concerns as to why Plaintiff failed to comply with the Local
Rule’s clear mandate it will require a more detailed explanation
as to why Plaintiff failed to follow the Rule.
The Court may
conduct a further hearing upon Plaintiff’s submission of an
affidavit of counsel explaining Plaintiff’s tactics.
Motion to Remand
Plaintiff also moves to remand her Wage and Hour Claims to
Plaintiff argues that “[i]t would be very unusual
for a Federal court to deprive a litigant of rights afforded her
by State law.”
[Docket No. 27-1, p. 4].
This motion is
The Offer of Judgment applied to “all
claims in the Complaint.”
As Plaintiff correctly states, Rule
68 is indeed a trap for the unwary.
This motion is denied.
For the reasons set forth above, decision is reserved in
part on Plaintiff’s motion for attorney’s fees and reserved as
to Defendants’ cross-motion to vacate the judgment.
Plaintiff shall submit an affidavit of counsel to this Court on
the issues raised in this Opinion within ten (10) days.
Plaintiff no longer seeks to pursue the fees application,
Plaintiff should inform this Court within that time frame.
the extent Plaintiff has moved to remand, that motion is denied
for the reasons set forth herein.
s/Renée Marie Bumb
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE
Dated: December 4, 2014
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