September 16, 2011
In
Breneisen v. Motorola, Inc., ___ F.3d ___ (7th Cir. 2011), Case No. 10-1982, the defendant in an FMLA case tendered twice the amount claimed to the plaintiff. Is the plaintiff entitled to a judicial determination of attorney's fees? The Court says no.
less..
The plaintiff filed an FMLA claim against Motorola. After a summary judgment in Motorola's favor was reversed on appeal, Motorola tendered a check for twice the amount the plaintiff claimed Motorola owned. The plaintiff accepted the tender and took steps to have the district court award attorney's fees under the statute. The district court refused to do so and the plaintiff appealed.
On appeal, the plaintiff conceded that she needed a judgment under the FMLA to be entitled to attorney's fees. The Court found that the claim was moot and that there was not a judgment. Therefore, the plaintiff is not entitled to attorney's fees.
We find that a voluntary tender of sums allegedly owed to the plaintiff lacks the requisite "judicial imprimatur" referenced in
Buckhannon.
Id. at 605. Accordingly, the district court appropriately dismissed Lineweaver's claim.
The lesson here depends on what side of the "v" you are operating on. Plaintiffs' counsel should be warned to be careful before accepting any funds from a defendant in settlement of a claim. If your claim involves statutory attorney's fees, you may lose the ability to recover those fees if you accept such a tender.
Defense counsel, on the other hand, may conclude that when a case involves a statute that authorizes attorney's fees, that the best solution will be to make a very attractive tender to the plaintiff. In many cases, the amounts claimed as damages may be small, so even doubling the amounts claimed when making may be very attractive to the plaintiff, if not necessarily the plaintiff's counsel.
Lesson:
- Acceptance of a tender from a defendant will prevent a plaintiff from obtaining attorney's fees in an FMLA claim.
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