Friday, May 14, 2010

Although Client Prevailed, Lawyers Get No Fees Due to Lack of Civility

In Sahyers v. Prugh, Holliday & Karatinos, P.L., 560 F.3d 1241 (11th Cir. 2009), a panel of the Eleventh Circuit, in an opinion written by Chief Judge Edmondson, affirmed the district court’s denial of plaintiff’s petition for attorneys’ fees in her successful FLSA lawsuit on the ground that plaintiff’s counsel, prior to filing suit against a law firm, “made absolutely no effort—no phone call; no email; no letter—to inform them of Plaintiff’s impending claim much less to resolve this dispute before filing suit.”  Instead, as Judge Edmondson put it:  “Plaintiff’s lawyer slavishly followed his client’s instructions and—without a word to Defendants in advance—just sued his fellow lawyers.” 
A petition for rehearing en banc was recently denied with Judge Wilson being the only dissenter, taking the position that the courts are not entitled to add an exception to a mandatory fee statute.  Judge Edmondson filed a lengthy statement, concurring in the denial of en banc rehearing, chastising Judge Wilson for filing a dissent (“Decisions on whether or not to grant en banc rehearing are not decisions on the merits of the appeal.  As I understand it, the only judges of this Court who have had the merits of this case put before them for decision are the members of the panel who decided the case.  Nevertheless, it, in the past dozen years or so, has become the fashion—moving from the exceptional to the normal—of our Court for some judges, who were not on the pertinent panel, to file dissents regularly when en banc rehearing is denied.”).  Judge Wilson in dissent notes that the Sahyers holding has been repeatedly relied upon by other courts to deny fees.  See Roldan v. Pure Air Solutions, Inc., S.D. Fla. 2010, ___ F. Supp. 2d___, at *3 (No. 07-22203-Civ, Jan. 29, 2010) (citing Sahyers and commenting that “whether or not such an outcome [of no fee as a reasonable fee] amounts to judicial policy-making in the face of clear statutory language, we are bound by it”).  See 2 also Zuleta v. Prof’l Team Paint, Inc., M.D. Fla. 2009, ___ F. Supp. 2d ___, at *2 n.2 (No. 6:08-cv-1950-Orl-31DAB, Dec. 10, 2009) (citing Sahyers and providing that no fee may be a reasonable fee under the FLSA); Mora v. Cemex, Inc., M.D. Fla. 2009, ___ F. Supp. 2d ___, at *3 (No. 6:08-CV-954-ORL-19DAB, Sept. 29, 2009) (same); Kerpan v. Biscuits Cafe, Inc., D. Or. 2009, ___ F. Supp. 2d ___, at *7 (No. 08-CV-811-ST, June 23, 2009) (citing Sahyers, recognizing that “the district court denied a request for attorney fees to a paralegal . . . because her attorney gave his fellow lawyers no notice by telephone, email, or letter of her claim and made no effort to resolve the dispute before filing suit,” and declining to apply Sahyers because it did not involve lawyers as parties); Varela v. Innovative Wiring Solutions, LLC, M.D. Fla. 2009, ___ F. Supp. 2d ___, at *5 (No. 6:07- cv-165-Orl-28KRS, June 22, 2009) (citing Sahyers and providing that no fee may be a reasonable fee under the FLSA); Kwasnik v. Charlee Family Care Servs. of Cent. Fla., Inc., M.D. Fla. 2009, ___ F. Supp. 2d ___, at *12 (No. 6:08-cv-926-Orl-31KRS, June 9, 2009) (same).

So, moral of the story is—not real wise, at least in the Eleventh Circuit, to be  a drive-by shooter.
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