Tampa District Court Breathes Life Into 'Catalyst Theory,' Challenging Eleventh Circuit

On this blog, my colleague Kevin Vance previously reported the July 28, 2011 decision of the Eleventh Circuit in Dionne v. Floormasters Enterprises, Inc., ___ F.3d. ___, 2011 WL 318977 (11th Cir. July 28, 2011). That case involved a claim for unpaid overtime under the FLSA. During the litigation, the employer tendered full payment of the amount sought by the plaintiff for unpaid overtime and for liquidated damages and interest. The employer thereafter moved to dismiss the case for lack of subject matter jurisdiction under the theory that the tender mooted the above-stated claims, and there was no longer a case or controversy. The Plaintiff admitted that the overtime claim was moot and should be dismissed, but filed a motion for prevailing party attorney's fees. The court rejected the fee motion and awarded the Plaintiff's counsel no attorney's fees. The Plaintiff appealed, arguing that filing the lawsuit served as a "catalyst" for the employer's eventual payment, and that the plaintiff was the "prevailing party" entitled to attorney's fees.

The Supreme Court in Buckhannon Board and Care Home, Inc. v. West Virginia Dep't of Health and Human Resources, 532 U.S. 598 (2001), had previously rejected the "catalyst theory" for prevailing party status, albeit in the context of the Fair Housing Authority Act (FHAA) and the public accommodations provisions of the Americans with Disabilities Act (ADA). The Buckhannon Court held that, once the accessibility deficiencies had been corrected and the claims under those statutes were moot, the plaintiff could not recover attorney's fees. The Court reasoned that, without a judgment on the now mooted claims, the plaintiff was not a "prevailing party" under the fee shifting statute (42 U.S.C. § 1988). That fee shifting statute provides for plaintiffs to recover attorney's fees for violations of several civil rights statutes, but only if the plaintiff is a "prevailing party." Prior to Buckhannon, all circuits other than the Fourth Circuit permitted plaintiffs to recover attorney's fees under the catalyst theory. The Buckhannon Court resolved the conflict among the circuits and made the law of the Fourth Circuit the law of the land.

The issue for the Eleventh Circuit in Dionne was whether the logic of Buckhannon applied in the FLSA context. The FLSA, unlike Section 1988, does not use the "prevailing party" language but permits recovery of attorney's fees "in addition to any judgment awarded to the plaintiff." The Eleventh Circuit affirmed the district court and held that "[t]he FLSA plainly requires that the plaintiff...