Perez v. Sanford-Orlando Kennel, No. 06-15931 (11th Cir. Mar. 10, 2008)

| Mar 18, 2008 | Daily Developments in EEO Law |

Tuesday, March 10, 2008

There are some things that a lawyer should never do for a client. In Perez v. Sanford-Orlando Kennel, No. 06-15931 (11th Cir. Mar. 10, 2008), we encounter a defense attorney in an FLSA case whose client lost in the district court, to the tune of $2,100 in back pay, and attorney’s fees in the amount of $29,099.29, plus interest. After oral argument in the Eleventh Circuit — which apparently must have gone pretty tough on the defendant — the kennel elected in October of 2007 to pay the judgment in full. But while the plaintiff’s lawyer signed and filed the satisfaction of judgment papers in the district court, neither party botherd to dismiss the pending appeal (and indeed continued to file papers in the Eleventh Circuit). When (at the end of January 2008) the Eleventh Circuit finally ruled, the panel affirmed liability but found that the district court ought to have also awarded the employee liquidated (double) damages. As the panel wrote, except for the dismissal of one defendant, “the result was a clean sweep for the plaintiff.”

Only at this point, the defense attorney filed a motion for rehearing contending that the panel lost jurisdiction over the appeal when the defendant satisfied the judgment, thereby mooting the controversy, despite that the defendant never got around to informing the Eleventh Circuit for over three months. The panel was not amused. It denied the motion and spared the defense attorney no shame: “As one might imagine, we are not happy that [defense counsel] attempted to put this Court through a trial run. He should have immediately disclosed the circumstance that he contends rendered us powerless to decide this case, instead of holding it back as an insurance policy until he saw our decision. . . . What sanctions, if any, should be imposed on [defense counsel] for this behavior is a question for another day. The question for today is a purely jurisdictional one: Did the payment of the original judgment and the filing of a satisfaction of it moot this appeal and cross-appeal, thereby stripping this Court of jurisdiction to enter a decision on the merits? The question turns on the relevant events and their chronology.”

Evaluating the record, the court finds that the parties did not intend the payment to constitute an accord and satisfaction, and thus the payment did not moot the case. “[T]he objective manifestations of both parties clearly indicate that they intended to pursue their positions in the appeal and cross-appeal. Instead of filing a motion to dismiss the appeal as soon as a satisfaction was filed in the district court, both parties continued to litigate the case in this Court as though nothing had changed.”

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