                                                                                  [PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT           FILED
                             ________________________ U.S. COURT OF APPEALS
                                                                        ELEVENTH CIRCUIT
                                                                         JANUARY 13, 2012
                                     No. 09-15405
                                                                            JOHN LEY
                               ________________________
                                                                             CLERK

                      D. C. Docket No. 08-00124-CV-OC-10-GRJ

PERRY R. DIONNE, on his own behalf and on behalf of all others similarly
situated,

                                                                          Plaintiff-Appellant,


                                            versus

FLOORMASTERS ENTERPRISES, INC., a Florida corporation,
ROBERT MOLSICK, individually,

                                                                      Defendants-Appellees.

                               ________________________

                      Appeal from the United States District Court
                          for the Middle District of Florida
                           _________________________
                                  (January 13, 2012)

Before EDMONDSON, HILL and ALARCÓN,* Circuit Judges.

                           ON PETITION FOR REHEARING


       *
        Honorable Arthur L. Alarcón, United States Circuit Judge for the Ninth Circuit, sitting
by designation.
ALARCÓN, Circuit Judge:

      Plaintiff-Appellant’s Petition for Rehearing filed September 1, 2011 is

GRANTED in part and DENIED in part. The Court VACATES and

WITHDRAWS the previous opinion in this case, published on July 28, 2011, at

647 F.3d 1109 (11th Cir. 2011). The Court substitutes the following opinion.

      In this matter, we must decide whether an employer, who denies liability for

nonpayment for overtime work, must pay attorney’s fees and costs pursuant to

29 U.S.C. § 216(b) of the Fair Labor Standards Act (“FLSA”) if the employer

tenders the full amount of overtime pay claimed by an employee, and moves to

dismiss on mootness grounds where the employee concedes that “the claim for

overtime should be dismissed as moot.” We conclude that, under such

circumstances, the dismissal of the employee’s complaint, without an award of

attorney’s fees, is not erroneous pursuant to § 216(b) because the District Court

did not award judgment to the employee as the prevailing party. Accordingly, we

affirm.

                                         I

                                         A

      The parties do not dispute the following facts: Dionne was employed by

Floormasters Enterprises, Inc. (“Floormasters”) from September 19, 2007 until

November 27, 2007 as a warehouse clerk. Robert Molsick was a manager who

                                         2
had direct control over Dionne’s work, pay, and job duties. On March 24, 2008,

Dionne filed a complaint in the District Court pursuant to § 216(b) on his own

behalf and on behalf of other warehouse clerks who had worked for Floormasters

within the previous three years1 to recover overtime compensation, liquidated

damages, and reasonable attorney’s fees and costs. Floormasters filed a pleading,

styled as a Tender of Full Payment and Motion to Dismiss Complaint with

Prejudice, on April 23, 2008. In their motion, Floormasters alleged that

               [a]lthough Defendants vigorously deny all of Plaintiff’s
               allegations, Plaintiff’s claim, and that Defendants owe
               Plaintiff any amount of money for unpaid overtime wages
               or any damages, in the interests of expeditious resolution
               of Plaintiff’s claim and efficient use of this Court’s time
               and resources, Defendants hereby tender to Plaintiff
               payment in full for an overtime wages claim, liquidated
               damages, and interest, in the total amount of $637.98.

                                                  B

       Dionne filed a response in opposition to Floormasters’s motion to dismiss

on May 6, 2008. Dionne asserted that “Plaintiff’s claim for overtime is still at

issue because Plaintiff claims overtime damages above Defendant’s estimation of

overtime due.” Dionne estimated that his total damages were $3,000. On May 9,

2008, the District Court denied the Defendants’ Tender of Full Payment and

Motion to Dismiss Complaint with Prejudice. It reasoned as follows:

       1
         Dionne filed this lawsuit as a collective action. He failed to seek leave to pursue it as a
collective action.

                                                  3
               Given the discrepancies between the Parties’ assertions
               as to the amount of damages at issue in this case, the
               Court cannot, at this time, find that the Defendants have
               paid in full the Plaintiff’s claim for overtime
               compensation. The case is at the very early stages, and
               discovery has not yet begun.

                                                C

       On May 19, 2008, Floormasters filed a second Tender of Full Payment and

Motion to Dismiss Complaint with Prejudice pursuant to Rule 12(h)(3) of the

Federal Rules of Civil Procedure.2

       In support of its motion, Floormasters argued:

               Although Defendants vigorously deny all of Plaintiff’s
               allegations, Plaintiff’s claim, and that Defendants owe
               Plaintiff any amount of money for unpaid overtime
               wages or any damages, to render Plaintiff’s claim moot,
               Defendants tendered to Plaintiff payment in full.
               Defendants’ tender was based on Plaintiff’s own
               calculations in his May 6, 2008 affidavit filed in the
               record of this action. As presented in paragraph two of
               this motion, Plaintiff calculated his overtime damages to
               be $1500.00 in actual damages and $1500.00 in
               liquidated damages, totaling $3,000.00. A photocopy of
               the check tendered to Plaintiff is attached, as Exhibit A
               to this Motion.

Floormasters also contended that

               [h]aving tendered payment in full for all amounts that
               possibly could be owed to Plaintiff, according to
               Plaintiff’s own version of the facts in his affidavit filed

       2
        Rule 12(h)(3) provides as follows: “If the court determines at any time that it lacks
subject-matter jurisdiction, the court must dismiss the action.”

                                                 4
              in the record of this action, Defendants have eliminated
              any controversy or cause of action available to be
              pursued by Plaintiff in this Court, and dismissal with
              prejudice, pursuant to Fed. R. Civ. P. 12(h)(3), of
              Plaintiff’s claims is appropriate and necessary.



       Dionne filed a response to Floormasters’ second motion to dismiss on

May 29, 2008 in which he stated:

                      Plaintiff agrees that since Defendant has
                      tendered full payment to Plaintiff and
                      admitted overtime liability,3 the issue of
                      overtime is now moot and the claim for
                      overtime should be dismissed. However,
                      Plaintiff requests that this Court reserve
                      jurisdiction to consider an award of
                      attorney’s fees and costs and grant Plaintiff
                      thirty (30) days to file its Motion.

                                               D

       On June 4, 2008, the District Court granted Floormasters’s Motion to

Dismiss Complaint With Prejudice. It ordered Dionne to file his “motion for

attorney’s fees, if any, within thirty (30) days of the date of this Order.”




       3
        Dionne’s assertion that Floormasters “admitted overtime liability” is contrary to the
record. In fact, Floormasters vigorously denied in its motion that it owed Dionne any amount of
money.

                                               5
                                         E

      Dionne filed a motion for an award of attorney fees and costs on July 7,

2008 in which he argued that he was entitled to attorney’s fees pursuant to

29 U.S.C. § 216(b) because he was the prevailing party in this action.

Floormasters filed a response in opposition to Dionne’s motion for an award of

attorney’s fees and costs on July 16, 2008. Floormasters maintained that Dionne

was not entitled to an award of attorney’s fees and costs because no judgment was

awarded to Dionne in this action. The District Court denied Dionne’s Motion for

Award of Attorney’s Fees and Costs on September 22, 2009. The District Court

held that Dionne was not entitled to attorney’s fees and costs pursuant to § 216(b)

because

                   there has been no judicial determination –
                   nor any request by the Plaintiff for such a
                   determination – that the Defendants violated
                   the FLSA’s overtime compensation
                   provisions. Rather, it has been clear from
                   the inception of this litigation that the
                   Defendants have denied any and all liability,
                   and merely tendered payment in order to
                   resolve this case and render the Plaintiff’s
                   claim moot. The Court finds that the
                   Plaintiff’s claim for overtime compensation
                   was in fact rendered moot when the
                   Defendants tendered full payment for all
                   recoverable damages – a fact that the
                   Plaintiff admitted in its response.



                                         6
       Dionne filed a motion for reconsideration on October 7, 2009. It was

denied on October 13, 2009.

       Dionne filed a timely notice of appeal on October 20, 2009. This Court has

jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.

                                              II

                                              A

       Dionne contends the District Court erred in concluding that he failed to

demonstrate that he is entitled to attorney’s fees and costs under 29 U.S.C.

§ 216(b). Section 216(b) reads as follows in pertinent part:

              Any employer who violates the provisions of section 206
              or section 2074 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.

Id. (emphasis added).

       Dionne argues that he was a prevailing party in this action because

Floormasters tendered all overtime and liquidated damages to him after he filed

his complaint. Appellant’s Br. 5. Dionne asserts that an employee can be a

       4
       29 U.S.C. § 206 sets the federal minimum wage applicable to certain types of
employees. 29 U.S.C. § 207 requires employers to pay overtime compensation to certain types of
employees.

                                              7
prevailing party without submitting a formal settlement agreement or consent

decree to the trial court. He argues that whether an employee is a prevailing party

“should be determined based on the actions of the Parties, the Court and the relief

that was obtained following the filing of the lawsuit.” Appellant’s Br. 9.

      “The interpretation of a statute is a question of law subject to de novo

review.” Corp. Mgmt. Advisors, Inc. v. Artjen Complexus, Inc., 561 F.3d 1294,

1296 (11th Cir. 2009). Whether a plaintiff is a “prevailing party” is also reviewed

de novo. Church of Scientology Flag Serv., Inc. v. City of Clearwater, 2 F.3d

1509, 1513 (11th Cir. 1993). We review a district court’s decision whether to

award attorney’s fees and costs for abuse of discretion. Sahyers v. Holliday &

Karatinos, P.L., 560 F.3d 1241 (11th Cir. 2009) (citing Johnson v. Florida, 348

F.3d 1334, 1350 (11th Cir. 2003)).

                                          B

      Dionne maintains that he is entitled to attorney’s fees and costs as a

prevailing party because the filing of his complaint brought about the payment by

Floormasters of the amount of money he requested. This argument is apparently

based on the “catalyst” test that was previously used in this Circuit to determine if

a party had prevailed in a lawsuit. In Morris v. City of West Palm Beach, this

Court stated:

             Because Appellants did not receive a favorable judgment

                                          8
              on the merits or entry of a consent decree or settlement,
              the only means through which they could be found to
              have prevailed is the “catalyst” test. Under the catalyst
              test, a plaintiff should be found as prevailing if its ends
              are accomplished as the result of the litigation even
              without formal judicial recognition, there is a causal
              connection between the plaintiff’s lawsuit and the
              defendant’s actions providing relief to the plaintiff, and
              the defendant’s actions were required by law.

194 F.3d 1203, 1205-06 (11th Cir. 1999) (internal quotation marks omitted).

      In Buckhannon Board & Care Home, Inc. v. West Virginia Department of

Health & Human Resources, the Supreme Court rejected the catalyst theory. 532

U.S. 598, 605-10 (2001), superseded by statute on other grounds, Open

Government Act of 2007, Pub. L. No. 110-175, 121 Stat. 2524. It reasoned as

follows:

              A defendant’s voluntary change in conduct, although
              perhaps accomplishing what the plaintiff sought to
              achieve by the lawsuit, lacks the necessary judicial
              imprimatur on the change. Our precedents thus counsel
              against holding that the term “prevailing party”
              authorizes an award of attorney’s fees without a
              corresponding alteration in the legal relationship of the
              parties.

Id. at 605.

      Dionne argues that the District Court’s dismissal with prejudice was

sufficient to change the legal relationship of the parties as required by

Buckhannon. The cases on which he relies, however, do not support this


                                            9
contention. For example, in Oil, Chemical & Atomic Workers International Union

v. Department of Energy, the plaintiffs alleged that the defendant had failed to

comply with their request under the Freedom of Information Act (“FOIA”). 288

F.3d 452, 453 (D.C. Cir. 2002), superseded by statute on other grounds, Open

Government Act of 2007, Pub. L. No. 110-175, 121 Stat. 2524, as recognized in

Summers v. Department of Justice, 569 F.3d 500, 503 (D.C. Cir. 2009). The

parties subsequently entered into a court-ordered stipulation that the defendant had

substantially complied with the plaintiffs’ FOIA request, and the district court

awarded the plaintiffs costs and fees. Id. Pursuant to Buckhannon, which was

published while the appeal was pending, the D.C. Circuit reversed. Id. at 453,

458. The D.C. Circuit expressly stated that the stipulation “did not meaningfully

alter the legal relationship of the parties,” id. at 458; therefore the plaintiffs were

not prevailing parties entitled to attorney’s fees under FOIA. Id. at 457-59.

      Likewise, in Smyth ex. rel. Smyth v. Rivero, the district court dismissed the

plaintiff’s civil rights action as moot and awarded attorney’s fees and costs to the

plaintiff pursuant to 42 U.S.C. § 1988. 282 F.3d 268, 273-74 (4th Cir. 2002). The

defendants appealed as to the fee award, and the Fourth Circuit reversed. Id. at

271. The Fourth Circuit held that the plaintiff was not a prevailing party because

the district court had neither incorporated the terms of any settlement into its

dismissal order nor retained jurisdiction to enforce a settlement. Id. at 278-85.

                                           10
      Dionne’s citations to Truesdell v. Philadelphia Housing Authority, 290 F.3d

159 (3d Cir. 2002), and Barrios v. California Interscholastic Federation, 277 F.3d

1128 (9th Cir. 2002), are also unavailing. In Truesdell, a civil rights action under

42 U.S.C. § 1983, the district court’s dismissal order incorporated the terms of the

settlement between the parties. 290 F.3d at 165. The Third Circuit reversed the

district court’s denial of attorney’s fees and costs, holding that the plaintiff was the

prevailing party and thus entitled to fees and costs pursuant to 42 U.S.C. § 1988.

Id. at 165-66.

      In Barrios, the district court denied the plaintiff’s motion for attorney’s fees

under the Americans with Disabilities Act (“ADA”) because it held that his

damages award was de minimis. 277 F.3d at 1134-35. The Ninth Circuit reversed,

holding that, as the parties had entered into a legally enforceable settlement

agreement, the award was not de minimis and the plaintiff was a prevailing party

entitled to attorney’s fees under the ADA. Id. at 1134-37.

      Dionne additionally relies on several cases in which the court considered

whether the defendant was entitled to recover attorney’s fees from the plaintiff.

For example, in Claiborne v. Wisdom, the Seventh Circuit held that the defendant

was entitled to attorney’s fees as the prevailing party following a dismissal with

prejudice due to the plaintiff’s pursuit of a frivolous action under the Fair Housing

Act. 414 F.3d 715, 721-22 (7th Cir. 2005). Likewise, the court in Highway

                                          11
Equipment Co., Inc. v. FECO, Ltd., considered whether the defendant was the

prevailing party for purposes of assessing entitlement to costs and fees in light of

the district court’s dismissal with prejudice. 469 F.3d 1027, 1033-37 (Fed. Cir.

2006).

      Dionne cites Goss v. Killian Oaks House of Learning, 248 F. Supp. 2d 1162

(S.D. Fla. 2003), to support his argument that the $3,000 check sent to him by

Floormasters constituted a settlement, thus rendering him the prevailing party. His

reliance on Goss is also misplaced. In Goss, the trial court approved a settlement

by the parties. Id. at 1175. In this matter, however, the payment Dionne received

from Floormasters was never submitted as a settlement for judicial approval.

      Dionne also cites American Disability Ass’n v. Chmielarz, 289 F.3d 1315

(11th Cir. 2002), in support of his argument that the District Court’s dismissal of

the case with prejudice is the “functional equivalent” of a consent decree. This

argument is unpersuasive. In Chmielarz, this Court specifically noted that the

district court had “approv[ed] the settlement agreement and then expressly

retain[ed] jurisdiction to enforce its terms,” which “effected precisely the same

result as would have been achieved pursuant to a consent decree.” 289 F.3d at

1321. In the present case, the District Court did not approve any agreement or

retain jurisdiction to enforce any settlement or order; the parties did not even reach

a formal settlement agreement to present to the court. The District Court’s

                                          12
minimal participation in this case is insufficient to give the case the “judicial

imprimatur” necessary for a party to prevail. See Buckhannon, 532 U.S. at 605.

      Dionne further asserts that, under Lynn’s Food Stores, Inc. v. United States,

679 F.2d 1350 (11th Cir. 1982), submission of a formal settlement agreement was

not necessary, as he received payment in full without compromise. However, in

Lynn’s Food Stores, this Court held that the defendant was liable under the FLSA;

the only question at issue in that matter was whether the district court erred in

refusing to approve the parties settlement agreement. Id. at 1352-55.

                                     Conclusion

      Whether Dionne is entitled to attorney’s fees under the FLSA is a question

of statutory construction. See Buckhannon, 532 U.S. 598 (interpreting the fee-

shifting provisions of the Fair Housing Amendments Act and the ADA). In

construing a statute, a court “assum[es] that the ordinary meaning of that language

accurately expresses the legislative purpose.” Hardt v. Reliance Standard Life Ins.

Co., 130 S. Ct. 2149, 2156 (2010) (citation omitted). Congress has provided that

the court in an FLSA 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.” 29 U.S.C. § 216(b) (emphasis added). The FLSA plainly

requires that the plaintiff receive a judgment in his favor to be entitled to

attorney’s fees and costs.

                                          13
       Dionne has failed to cite to any case that supports his contention that the

entry of a defendant’s motion to dismiss a plaintiff’s claims as moot because the

trial court no longer has subject matter jurisdiction constituted a judgment in favor

of the plaintiff.

       As the Supreme Court observed in Buckhannon, under the “American Rule”

parties in litigation are expected to bear their own attorney’s fees and costs.

Buckhannon, 532 U.S. at 602 (citing Alyeska Pipeline Serv. Co. v. Wilderness

Soc’y, 421 U.S. 240, 247 (1975), and Key Tronic Corp. v. United States, 511 U.S.

809, 819 (1994)). Congress may abrogate this rule, however, by explicitly

providing otherwise. Buckhannon, 532 U.S. at 602-03; Johnson, 348 F.3d at

1350. 29 U.S.C. § 216(b) does so in the context of the FLSA. See Kreager v.

Solomon & Flanagan, P.A., 775 F.2d 1541, 1542 (11th Cir. 1985) (“[S]ection

216(b) of the [FLSA] makes fee awards mandatory for prevailing plaintiffs.”)

(emphasis added).

       Dionne has failed to demonstrate that the District Court entered a judgment

awarding him overtime pay. Instead, the record shows it granted Floormasters’

motion to dismiss this action because Dionne conceded that Floormasters’ tender

of the amount set forth in Dionne’s complaint, while vigorously denying liability,

mooted Dionne’s overtime claim.

       Dionne is not a “prevailing party” in this action because, in granting

                                          14
Floormasters’ motion to dismiss this lawsuit for lack of subject matter jurisdiction,

the District Court did not award a judgment in his favor.5 “We cannot agree that

the term ‘prevailing party’ authorizes federal courts to award attorney’s fees to a

plaintiff who, by simply filing a nonfrivolous but potentially meritless lawsuit (it

will never be determined), has reached the sought-after destination without

obtaining any judicial relief.” Buckhannon, 532 U.S. at 606 (internal quotation

marks omitted). Accordingly, we conclude that the District Court did not abuse its

discretion in denying Dionne’s motion for the award of attorney’s fees and costs.

       AFFIRMED.




       5
         Our decision in this matter addresses a very narrow question: whether an employee who
conceded that his claim should be dismissed before trial as moot, when the full amount of back
pay was tendered, was a prevailing party entitled to statutory attorney’s fees under § 216(b). It
should not be construed as authorizing the denial of attorney’s fees, requested by an employee,
solely because an employer tendered the full amount of back pay owing to an employee, prior to
the time a jury has returned its verdict, or the trial court has entered judgment on the merits of the
claim.

                                                 15
