United States District Court, D. Maryland, Southern Division
DIANA C. BERRIOS, Plaintiff,
GREEN WIRELESS, LLC. et al., Defendants.
J. HAZEL UNITED STATES DISTRICT JUDGE.
two years ago, this Court awarded attorneys' fees to
Plaintiff Diana C. Berrios after entering judgment against
Defendant Michael Shin pursuant to this action to recover
overtime wages. ECF No. 36. As part of that order, the Court
dismissed Co-Defendants Green Wireless, LLC (“Green
Wireless”) and Michael Pak from the case. Id.
Shin appealed the award of attorneys' fees to the Fourth
Circuit; at the same time, Berrios filed a motion to vacate
the Court's dismissal of Green Wireless and Pak. ECF Nos.
37, 40. The parties prepared to brief the case in the Fourth
Circuit, but once the Court granted Berrios' motion to
vacate the dismissal or Pak and Green Wireless, ECF No. 42,
the earlier order granting attorneys' fees was no longer
a final order from which Shin could appeal. See ECF
No. 45-1 at 4. Because it was also not an immediately
appealable collateral order, the Fourth Circuit dismissed the
appeal for lack of jurisdiction. Id. Upon remand,
Plaintiff secured a default judgment as to Green Wireless and
Pak. ECF No. 49. Plaintiff has now filed another motion
seeking attorneys' fees in relation both to the default
judgment secured against Pak and Green Wireless, and to the
briefing in the Fourth Circuit.
FLSA requires the payment of reasonable attorneys' fees
and costs to prevailing employees. Randolph v. Powercomm
Constr., Inc., 715 Fed.Appx. 227, 230 (4th Cir. 2017).
An employee is a “prevailing party” if
“they succeed on any significant issue in litigation
which achieves some of the benefit the parties sought in
bringing suit.” Hensley v. Eckerhart, 461 U.S.
424, 433 (1983). This is a “generous
formulation.” Id. Furthermore, a district
court has “discretion over the proper allocation of a
fee award among multiple defendants.” Jones v.
Southpeak Interactive Corp. of Del., 777 F.3d 958, 977
(4th Cir. 2015).
Plaintiff seeks fees from Shin for work related to the Motion
for Default Judgment filed against Pak and Green Wireless. At
the time that work was performed, all of the claims against
Shin had been resolved, with the exception of the pending
appeal of the Court's first attorneys' fee award.
Plaintiff argues that Shin should nonetheless be held liable
for these fees because Shin appealed the first attorneys'
fee award. This argument is not persuasive. By her own words,
Plaintiff sought to secure a default judgment against Pak and
Green Wireless in case Shin “declares bankruptcy or is
otherwise unable to satisfy the award of attorney's
fees.” ECF No. 40 at 3. Shin's choice to appeal the
attorneys' fee award added no additional incentive for
Plaintiff to secure a default judgment against Pak and Green
Wireless, so it would be improper to award fees to Shin
related to that motion.
Plaintiff seeks fees in connection with the work performed on
the Fourth Circuit appeal. There can be no question that
“[p]revailing plaintiffs in FLSA cases are entitled to
attorneys' fees for prosecuting or defending
appeals.” See, e.g., Velez v. Vassallo, 203
F.Supp.2d 312, 315 (S.D.N.Y. 2002). But to qualify as
prevailing, a plaintiff “must show at least some
success on the merits.” Bly v.
McLeod, 605 F.2d 134, 137 (4th Cir. 1979) (emphasis
added). Plaintiffs are now seeking attorneys' fees for
appellate work performed defending the prior award of
attorneys' fees, but they have not shown success on the
merits with regards to the appeal, as opposed to merely with
regards to the underlying FLSA claim.
Fourth Circuit's reasoning in Bly is
instructive. There, a group of plaintiffs appealed the
district court's dismissal of their constitutional
claims. Id. at 136. The Fourth Circuit vacated and
remanded the case without expressing any opinion on the
merits because it could not determine the basis for the
district judge's decision. Id. After their case
became moot before the district court could reach the merits,
the plaintiffs contended that the remand of the case was
sufficient to render them the prevailing party in the case.
Id. at 137. The Fourth Circuit rejected this
argument, finding the lack of an opinion on the merits
the Fourth Circuit has dismissed the appeal for lack of
jurisdiction, and thus has offered no opinion as to its
merits. Crucially, the question as to the merit of the
Court's fee award remains a live controversy, and it will
remain live until either the Fourth Circuit renders an
opinion or until Defendant chooses not to file a notice of
appeal. Until one of these eventualities comes to pass,
Plaintiff's fee petition is premature.
Motion for Attorneys' Fees, ECF No. 50, is denied with
prejudice in part, and without prejudice in part.
Plaintiff's Motion to Stay, ECF No. 54, is denied as
moot. A separate order shall issue.
 Pin cites to documents filed on the
Court's electronic filing system (CM/ECF) refer to the
page numbers ...