Simmons v United Mortgage and Loan Investment

reasonable attorney's fees supported by time records 18 simmons v. united mortgage and loan case or controversy no longer existed with respect to such dant's contractual promise to pay the same amount embodied "the factual allegations in the complaint as true." bass v. e.i. amend for abuse of discretion. id. "although leave to amend judge motz and judge keenan joined. terms, the letter conditioned the offer upon the plaintiffs sub- ular letter from defense counsel to counsel for the plaintiffs, arises when the claimant receives the relief he or she sought we also vacate the district court's order denying the findings is under clearly erroneous standard in light of the flsa, supports the conclusion that the plaintiffs' flsa late review of dismissal of case as moot, review of factual had worked; and (5) following an investigation by the united per week from june 2006 to february 2007, is insufficient to more than 10 days before the trial begins, a party plaint. on remand, the district court is free to revisit its ruling required plaintiff pruitt to work in excess of 40 hours per would "enter a settlement agreement specifying that all claims 16, 2008, and as clarified by the follow-up letter thirteen days carraway, on behalf of broad allegation that the defendants routinely required fed. proc. § 51:29 (l. ed., current through sept. 2010). in writing to become such a party and such consent is filed in umlic holdings, llc; united the regular rate at which he is employed." 29 u.s.c. `the doctrine of standing set in a time frame: the requisite conviction that a mistake has been committed." united states while we agree with the plaintiffs that the may 16, 2008 provided a private cause of action for such violations. pursuant to federal rule of civil procedure 15(a)(2), which 2003). on a rule 12(b)(6) motion, a "complaint must be dis- district court, the plaintiffs have been offered full relief in regard to attor- between january 28, 2008, and march 20, 2008, the of themselves and all others action the plaintiff represents only him- or herself until 68). perspective the willingness of the defendant to allow letter, left these questions unanswered. in defense of the provides that "a party may amend its pleading only with the miss the case as moot. federal practice and procedure § 3002 (2d ed. supp. 2010) and facsimile) a letter dated may 16, 2008, to counsel for the such persons were vance williams, marlena brooks, lisa samuels, each opt-in plaintiff will be compensated fully upon rule 7.1(a), counsel for the plaintiffs had conferred with offer was also open to the would-be opt-in plaintiffs." (j.a. higher than the federal minimum wage, the amended com- court's jurisdictional findings of fact on any issues that are not defendants "disclose the names, addresses, email addresses, flsa claims moot is the requirement of confidentiality. if the affirmed in part; on may 29, 2008, pursuant to federal rule of civil procedure damages ($3,281.25) to which she claimed individu- practices act, which offer of judgment agreed to pay statutory to comply with the settlement agreement. even if the 1 claimed was done." (j.a. 201). third, rather than offer to have statement explaining how the calculation of overtime amounts 21simmons v. united mortgage and loan dants had offered [the plaintiff] the full amount of each week of their employment up to the date of days after receipt on may 23, 2008. thereafter, if month of january 2007 is to return to the technical rules of similarly situated; yolanda overtime was worked, the total hours they worked ages . . . ." 29 u.s.c. § 216(b). since judgments are enforceable under the power of austin investments, l.p.; fed. r. civ. p. 68 (2008) (emphasis added).6 in contrast to the public nature of an unsealed judgment tion of their flsa claims and their amended version of such refused to grant the plaintiffs leave to file their proposed sec- 2008), but lack the power to enforce the terms of a settlement involving claims for unpaid overtime interpreting that statute, for ease of reference, we will refer to all nine form of an offer of judgment prevented the mooting of the members of the ncwha class, "damages in the amount of umlic consolidated, inc.; 224) (emphasis added). ultimately, the district court held "the flsa by willfully: (1) failing to pay the named plaintiffs and on october 17, 2007, the named plaintiffs filed their initial and, what if the defendants did violations of the record keeping and notice requirements of dure 12(b)(6). based upon the plain language of the ncwha, judgment to be entered has substantial importance similarly situated, plaintiffs fully litigated and prevailed on their flsa claims behalf of themselves and "on behalf of all persons . . . who defendants' offer of settlement's requirement that the plain- filed an amended complaint (the amended complaint). the for the western district of north carolina, at charlotte. (3:07-cv-00496-gcm) the second reason the may 16, 2008 letter did not render pertained to the named plaintiffs as well as the opt-in plain- stating "the dates on which overtime was worked, the total asset managers. ment. abrams, 719 f.2d at 25. in sum, the failure of the ditional. 12 charles alan wright, arthur r. miller, & richard addition to any judgment awarded to the plaintiff or plaintiffs, allow a rea- claims. accordingly, we hold the district court erred by dis- that, in an action to recover unpaid overtime and liquidated llc, did not constitute a rule 68 offer of judgment. first, the may states department of labor in 2006, instructed junior asset in their entirety," leaving no "live case or controversy requir- review a district court's dismissal for lack of subject matter judgment. id. "the plain purpose of rule 68 is to encourage tion, because they "ha[d] offered to satisfy plaintiffs' claims their amended version of such motion, and remand this por- tial and there will be no admission of liability or dis- carolina; burton craige, patterson harkavy, llp, their dismissal for lack of subject matter jurisdiction. we claimed to be offering the plaintiffs "full relief in this case," llp, chapel hill, north carolina, for appellants. kevin v. with this opinion. had turned over to the plaintiffs were time sheets for the period of april 25.14(a)(1)(b). according to the original defendants, under procedure. letter, as clarified by the may 29, 2008 letter, did not consti- raise the inference above the speculative level that she always, 5simmons v. united mortgage and loan refused to allow the motion to be amended. wages and hours; (4) by failing to provide them lawful notice arthur kechijian and larry austin are both corporate officers plaintiff represents only himself until a similarly-situated worked unpaid overtime during the brief window of time allow a reasonable attorney's fee to be paid by the defendant, judgment was invalid under rule 68 for failure to properly to the opposing party, the moving party has acted in bad faith, plaint does not allege that any plaintiff worked overtime after matter jurisdiction to certify the collective action. apparently opt-in collective action, pursuant to 29 u.s.c. § 216(b), on receipt of an affidavit stating the dates on which plaintiff delana pruitt had worked overtime hours during the made pursuant to rule 68 must specify a definite sum or other ing such motion, and therefore, it no longer possessed subject gage loan and investment, llc. fused to pay them for hours worked in excess of 40 hours per such persons were kathy raymer, andre moser, and john mays, jr. the balance of mootness. "[t]he doctrine of mootness constitutes a part of behalf of themselves and all others eral rule of civil procedure 12(b)(6), upon substantially the their unpaid earned compensation, plus liquidated damages, complaint (the complaint) in north carolina state court a scheduling conference is to be held or a scheduling order is later) did not offer for judgment to be entered against the against united mortgage, arthur kechijian, and larry austin no longer remains any active case or controversy carolina, for appellees. plaintiffs' motion for conditional collective action certifica- carolina. after removal, on november 26, 2007, the original minimum wage was not higher than the federal minimum mine the wages and hours of the named plaintiffs and other named plaintiff delana pruitt to work in excess of forty hours of subject matter jurisdiction. according to the defendants, complaint which sought to include william kelly, andre intervening factual or legal events effectively dispel the case dants' motion to dismiss the plaintiffs' flsa claims for lack also ross v. reed, 719 f.2d 689, 693-694 (4th cir. 1983) ("if (j.a. 28). recovery of attorneys' fees and costs, as provided to which the defendants point us as the circuit precedent man- holding. chief among them is that the contents of the may 16, may 29, 2008 letter, did not render moot the plaintiffs' flsa do not consider the plaintiffs' alternative argument in challenge to the dis- and therefore, actually worked more than forty hours per rogatories." id. the plaintiff rejected the offer. id. the direc- by the applicable version of rule 68. second, rather than 12(b)(1), defendants moved to dismiss the entire case for lack argued: narendra k. ghosh, patterson harkavy, same persons overtime pay; (3) by failing to make, keep, and claim is owed to them, and a statement explaining jurisdiction, vacate the district court's order dismissing such such denial on the record. not constrained by the formalities of rule 68. nonetheless, for vague offer of judgment in suit under fair debt collection judgment in their favor is far preferable to a contractual prom- [this] exemption." darveau v. detecon, inc., 515 f.3d 334, named plaintiffs sought court-facilitated notice to other ed donnelly enters., inc., 575 f.3d 567, 575 (6th cir. 2009) (affirming been offered relief in whole." (j.a. 226). the district court defendants moved to dismiss the ncwha claims, pursuant complaint was substantially identical in substance to the given the fact that, from a plaintiff's perspective, a judg- as clarified by a follow-up letter from defense counsel thirteen relief as the court deems just and proper." (j.a. 27). addi- sen, smith and christensen, llp, charlotte, north for "full relief in this case" did not offer for judgment to be granted the motion, and the plaintiff appealed. id. on appeal, since class certification had been denied, and defen- was more than the federal minimum wage.10 their motion for leave to file a second amended complaint based upon the same set of facts underlying the named were, are, or will be employed by united mortgage in the the original defendants timely removed the case to the preempted by the flsa, pursuant to provisions of the ncwha. ing dismissal under rule 12(b)(6) is reviewed de novo taking flsa claims did not moot the plaintiffs' flsa claims, we need not and wage during any time when three of the named plaintiffs or 22 simmons v. united mortgage and loan april 4, 2004, through may 19, 2006, with respect to named 337 (4th cir. 2008). an employer who violates the flsa's between the parties. this offer remains open for five compensation "at a rate not less than one and one-half times standards act (flsa), 29 u.s.c. §§ 201-219, such that a live ii this timely appeal followed. on appeal, the plaintiffs chal- at the heart of the question presented is the doctrine of § 207(a)(1). however, "any employee employed in a bona ing this case for all parties." (j.a. 158). in the second burden of proving that a particular employee's job falls within motion to amend when the amendment would be prejudicial lenge the rule 12(b)(1) dismissal of their flsa claims and tioned the offer upon the plaintiffs submitting affidavits this offer is not accepted, i will file a motion to dis- under the flsa.2 as relief, the named plaintiffs sought, on behalf of them- "employee[s]" of the original defendants, within the meaning telephone numbers and social security numbers of all poten- than court judgment seeks something not authorized by rule by the ncwha, were also sought. investment, llc; arthur e. when although there is evidence to support it, the reviewing of united mortgage. at various times, united mortgage overtime provision is "liable to the employee or employees determined by the court is consonant with the statutory language which other similarly situated employees overtime wages for hours cingular wireless, llc, 553 f.3d 913, 919 (5th cir. 2008) should be freely given when justice so requires, a district ment demand as the defendants had requested early in the seq. pursuant to rule 23 of the north carolina rules of civil 135). the district court determined that north carolina's decided: january 21, 2011 they are exempted from liability for unpaid overtime under 23 (2d cir. 1983). [the plaintiff's] personal stake in tions may not be given the effect of a formal offer of judg- 9 described as "the ncwha class." added). often becomes a breach of contract action for failure court on the entire evidence is left with the definite and firm mortgage employed named plaintiff delana pruitt during the heading "first claim for relief," the complaint or notice of any changes in such policies and practices; and situated employees to work off the clock; (3) failing to make, court should freely give leave when justice so requires." fed. managers to fill out time cards documenting the hours they in light of our holding that the defendants' offer to settle the plaintiffs' 12(b)(6) dismissal of their ncwha claims, as alleged in the notice accepting the offer, either party may then file closure of the settlement terms. i will provide you week during any week in january 2007. accordingly, we hold by united mortgage in the position of junior asset manager not sit simply to bestow vindication in a vacuum. $3,281.25 plus costs, the maximum amount of damages that the complaint alleged that all overtime claims are cov- being kept confidential and judgment under seal; party counsel for the defendants regarding the motion, but that litigation (standing) must continue throughout its existence 17simmons v. united mortgage and loan to litigants who "also seek liability under the flsa." (j.a. on december 19, 2007, the parties held a conference pur- united states district court for the western district of north condition on the balance of the offer. this circumstance pre- company-irving, 939 f.2d 289, 291 (5th cir. 1991) (in appel- their motion for conditional certification of the flsa collec- or the amendment would be futile." equal rights center v. plaintiffs ma'lissa simmons, monterrus marshall, and tiffs, we agree with the plaintiffs that the may 16, 2008 letter intertwined with the facts central to the merits of the plain- such terms are defined and delimited from time to time by entered against the defendants, but rather only offered for the the ncwha, because the named plaintiffs and the other its erroneous belief that the plaintiffs' flsa claims had the conditional nature of the offer rendered the offer vague, speaking, one such [factual] circumstance mooting a claim confidential, prevented the mooting of the plaintiffs' flsa entire record as a whole). "a finding is `clearly erroneous' as "the opt-in plaintiffs." tiff's claims under the clearly erroneous standard of review able conclusions, or arguments." monroe, 579 f.3d at 385-86 circumstances, or due to a change in the law." bankwest, inc., entered against the defendants was clearly erroneous. fourth, 9simmons v. united mortgage and loan waived and released, this action will be dismissed donald barnes, anthony papas, and william kelly. the named plaintiffs in response, on april 15, 2008, the original defendants and the distinction affects when claims under the ncwha are effectively this offer of full relief moots this case since there in a letter dated may 29, 2008, responding to a may 23, already been rendered moot. on remand, we direct the district regulations of the secretary [of labor] . . .)," is exempt from 7 time of the may 16, 2008 letter, the parties had yet to agree defendants-appellees. a rule 68 offer of judgment conditioned on settlement being agreement by attorneys as to reasonable compensation for and definition of the flsa, id. at § 203(e). collectively as "the plaintiffs." review the district court's denial of a rule 15(a)(2) motion to the plaintiffs to keep the fact of settlement and the terms of requires that the court `allow' the reasonable fee when it awards a judg- the calculation of overtime amounts claimed was done? the § 213(a)(1)" and alleged the original defendants violated the the newly named defendants (collectively the defendants) amended complaint, and remand for further proceedings con- similarly-situated employees opt in."). also notable is the fact plaintiffs' flsa claims were moot prior to the plaintiffs fil- appeal from the united states district court cir. 2009) (quoting twombly, 550 u.s. at 555). "[t]he court judgment of dismissal, so that from the plaintiff's upon an agreement by the plaintiffs to keep the settlement mitting affidavits stating "the dates on which overtime was inference that named plaintiff delana pruitt worked overtime situated; delana pruitt, on behalf 5 (1985). in furtherance of this purpose, an offer of judgment (mootness).'" arizonans for official english v. arizona, 520 agreement absent jurisdiction over a breach of contract action same grounds as the first motion to dismiss. the named does not moot the action. u.s.c. § 216(b)." id. 12 simmons v. united mortgage and loan therefore, vacate the district court's dismissal of the plaintiffs' the district court erred in holding that the contents of a partic- dupont de nemours & co., 324 f.3d 761, 764 (4th cir. due under federal rule of civil procedure 16(b), the parties fully prevailed on such claims, the district court would have before motz and keenan, circuit judges, and in sum, the fact that the defendants' offer to settle the u.s. 43, 68 n.22 (1997) (quoting u.s. parole comm'n v. united states court of appeals 29, 2008 letter to the effect that the defendants' may 16, court retains jurisdiction, plaintiff is left to litigate a complain that they had no choice but to present their offer in how the calculation of overtime amounts claimed relief that is plausible on its face.'" giarratano v. johnson, of that corporation. id. at 387-88. the district court denied the kept confidential and judgment under seal; party engaged in for the hours she worked in excess of 40 hours per week."; plaintiffs' counsel, as clarified by a follow-up letter from the we will refer to the named plaintiffs and the opt-in plaintiffs before the named plaintiffs have had a reasonable opportunity to move for ment to a flsa plaintiff"). no longer existed with respect to such claims, thus requiring (the original defendants). the complaint alleged the original procedure: conditions to be fulfilled by the plaintiffs as well as the dismiss an action pursuant to rule 12(b)(6) . . . [a court] must the plaintiffs make several arguments challenging this dismissal of the complaint to the extent it sought recovery for the district court no longer possessed subject matter jurisdic- were "employer[s]," within the meaning and definition of the tional collective action certification of their flsa claims, preserve accurate time records sufficient to determine their r. civ. p. 15(a)(2) (2008). "a district court may deny a ditional offer of judgment on specified terms, the letter condi- accept a rule 68 offer of judgment conditioned on settlement v. u.s. gypsum co., 333 u.s. 364, 395 (1948). and (4) "plaintiff pruitt has sustained substantial losses from moreover, the district court determined that, while united diction by any one or more employees for and in behalf of claim for relief," the complaint alleged the original ond amended complaint without giving any justifying reason. on march 26, 2008, the named plaintiffs several reasons, we hold the defendants' settlement offer, as id. vance here, in zimmerman, a plaintiff, alleging securities hamilton, senior circuit judge: kechijian investments, l.p.; dating that the district court dismiss the plaintiffs' flsa sonable attorney's fee to be paid by the defendant . . ."); see o'brien v. ing the plaintiff sought "relief from the dismissal of her indi- employee opts in as a "party plaintiff" by giving "his consent provide the plaintiffs the information the defendants pos- same amount. this is because district courts have inherent grissom v. the mills corp., 549 f.3d 313, 319 (4th cir. the settlement confidential. see mccauley v. trans union, accordingly, we vacate the district court's order denying the upon the scope of the plaintiffs' alleged damages under the on june 9, 2008, plaintiffs moved for reconsideration of also filed an opt-in consent form with respect to each of these persons. see plaintiffs' flsa claims. claims of the named plaintiffs in a proposed collective action are mooted 521 f.3d 298, 302 (4th cir. 2008) (emphasis in original) 11simmons v. united mortgage and loan ous, and thus ineffective at mooting the plaintiffs' flsa will be waived and released . . . ." id. the district court's find- (united mortgage), headquartered in charlotte, north caro- ment"); arkla energy resources, 9 f.3d at 867 (10th cir. complaint. affirm the district court's dismissal of such claims. trict court's order denying the plaintiffs' motion for condi- calculation of overtime amounts claimed was done." (j.a. 4, 2004, through may 19, 2006, for named plaintiffs ma'lissa simmons, tors then moved to dismiss the plaintiff's individual claims for are powerless to decide the questions presented."). "generally amended complaint, on the basis that the amended com- january 2007, when north carolina's minimum wage was the third and final reason the may 16, 2008 letter, as clari- (2007)). "in twombly, the supreme court upheld a rule court has discretion to deny a motion to amend a complaint, hours in january 2007: (1) "defendants employed plaintiff even when considering the clarifications made by the may on or after the date that is two years before the filing of this 12(b)(6) dismissal of their ncwha claims, because the fol- the named plaintiffs brought this portion of the case as an and the named plaintiffs requested the original defendants to 19simmons v. united mortgage and loan claim is owed to them, and a statement explaining how the ing attorney's fees and taxable costs," (j.a. 225-26), and that the rule 12(b)(6) dismissal of their ncwha claims. claims were not moot. in other words, the parties still had counsel 1997) (footnote omitted). in the district court, they would be entitled to an unsealed zimmerman v. bell, 800 f.2d 386 (4th cir. 1986). of rele- mortgages, business loans, and consumer loans. defendants parties to enter into a settlement agreement. had the plaintiffs tute a rule 68 offer of judgment, such agreement does not their termination, the total amount of back pay they has been allayed by the blanket nature of the offer of judg- 10 investments, lp, umlic consolidated, inc., umlic holdings, llc, flsa claims and remand for further proceedings consistent lowing allegations in the amended complaint create the clear claims, requiring their dismissal for lack of subject matter making an unconditional offer of judgment on specified inc., 336 f.3d 451, 454-55 (5th cir. 2003) (describing as the plaintiffs' flsa claims became moot due to a change in ncwha claims pursuant to rule 12(b)(6), and therefore, dure 68, which rule provided, at all times relevant to this the district court erred in holding that the contents of the letter claims for overtime wages. the first reason is that the offer 16, 2008 letter provided for a five day window to accept the on september 14, 2009, the district court granted defen- judgment against the defendant, as compared to a party an offer to allow judgment on specified terms, umlic-seven corp., united mortgage holdings, llc, and united mort- case is moot when the issues presented are no longer `live' or costs incurred by the defendant from the time of the offer of defendants refused to consent to the motion. yolanda carraway. however, the original defendants pro- 1, 2009, provides that at least fourteen days before the date set for trial, jurisdiction de novo. pitt county v. hotels.com, l.p., 553 f.3d the may 16, 2008 letter, as clarified by the may 29, 2008 let- managers to stop filling out the time cards. (j.a. 24). under § 216(b); injunctive relief requiring defendants to cease and date of their termination, the total amount of back pay they produce documentation reflecting the hours worked and wage routinely requiring the named plaintiffs and other similarly 8 the offer and notice of acceptance, plus proof of ser- each of these persons. information for each of the named plaintiffs in order to aid earned wages for all hours worked; (2) by failing to pay the 2 12 charles alan wright, arthur r. miller, & richard l. mar- hamilton, senior circuit judge. in a settlement agreement, we are not surprised that the case therefore, this case is dismissed." (j.a. 225) (emphasis court to reconsider these motions in light of our holding that the seven new defendants were austin investments, lp, kechijian the named plaintiffs also filed an opt-in consent form with respect to niles bolton assocs., 602 f.3d 597, 603 (4th cir. 2010). we alleged "[t]he position of junior asset manager does not meet 1994) (adhering to "principle that mere settlement negotia- the court. indeed, should a settlement not embodied trict court's rule 12(b)(1) dismissal of their flsa claims that, when the standards act [was] less than the minimum wage provided relief can be granted, pursuant to federal rule of civil proce- the district court did not err in dismissing the plaintiffs' position of junior asset manager on or after the date that is argued: october 27, 2010 action under the flsa] unless he gives his consent in writing to become tors then offered judgment to the plaintiff "in the amount of amended complaint for failure to state a claim upon which and therefore, ineffective in mooting the plaintiffs' flsa claims. what if the hours and dates of overtime claimed by the complaint are `enough to raise a right to relief above the in a judgment come unraveled, the court may be the flsa, bringing the total of opt-in plaintiffs to nine by complaint (the `ncwha class period')."1 kechijian; larry e. austin; without jurisdiction to proceed in the case, which of their respective unpaid wages and overtime compensation, parsons, smith, parsons & vickstrom, pllc, char- motion, because the district court denied these motions upon speculative level.'" andrew v. clark, 561 f.3d 261, 266 (4th geraghty, 445 u.s. 388, 397 (1980)). mccauley, 402 f.3d at 342 (plaintiff not obligated to accept hours per workweek unless the employee receives overtime power to compel defendants to satisfy judgments entered tion of the case for further proceedings consistent with this of judgment). on june 2, 2008, the plaintiffs moved to amend/correct the original defendants' rule 12(b)(6) motion also sought 14 simmons v. united mortgage and loan plaintiffs then filed notices that three more persons had con- v. baker, 446 f.3d 1358, 1364 (11th cir. 2006) (alteration this general rule. id. at § 213(a)(1). "an employer bears the defendants stated that the offer of settlement in the may 16, action in which the named plaintiffs sought to represent a original defendants produced time sheets for the period of (j.a. 21). the named plaintiffs filed notices that a total of six persons had liquidated damages to be recovered, and was conditioned ed. 1997). this is because the plaintiff must know unequivo- duced no such time sheets for named plaintiff delana pruitt plaintiff's motion for class certification. id. at 388. the direc- ered by the flsa, but failed to allege that any plaintiff vacated and remanded in part pursuant to 29 u.s.c. § 216(b). as part of such motion, the collective action certification, an offer of full relief to the named plaintiffs relief for which judgment may be entered and must be uncon- v are insufficient to raise the reasonable inference that named (j.a. 69). according to the plaintiffs, to hold these allegations weeks. the e-mails show that the original defendants tional collective action certification of their flsa claims and addition to any judgment awarded to the plaintiff or plaintiffs, this motion in toto. many unanswered questions, which made the offer ambigu- week."; (3) "defendants failed to compensate plaintiff pruitt north carolina general statute § 95-25.14(a)(1) and all cases for ease of reference, we will refer to the class of persons just controversy. see abrams v. interco, inc., 719 f.2d sentence, he reported that his clients had authorized him, tiffs and would-be opt-in plaintiffs was for full relief, includ- to obtain through the claim." friedman's, inc. v. dunlap, 290 plaintiff full relief in this case." id. no specific mention was denying the plaintiffs leave to file their proposed second defendants violated various provisions of the north carolina 12(b)(6) dismissal because the complaint did not allege suffi- missing the plaintiffs' flsa claims and corresponding judg- 6 simmons v. united mortgage and loan situated; monterrus marshall, on provided by the defendants?7 with the information my client has that is necessary entered a judgment against the defendants for full relief with plaintiffs leave to file their proposed second amended com- claimed by [the plaintiff] individually in her answers to inter- the district court determined that the ncwha does not apply ment. both the actual plaintiffs and would-be plaintiffs have mortgage loan and investment, . . . ." u.s. ex rel. vuyyuru v. jadhav, 555 f.3d 337, 347-48 sistent with this opinion. action, depriving this court of subject matter jurisdiction; to allow judgment on specified terms with the costs then accrued. neither relying upon the same reasoning, the district court also cf. basha v. mitsubishi motor credit of america, civ. p. 26(f) (requiring, inter alia, that at least 21 days before remember, at this point, the only employment records the defendants brought."). respect to those claims. from the view of the plaintiffs, a with the costs then accrued. if, within 10 days after the district court's order dismissing their ncwha claims when "the applicable minimum wage under the fair labor cient facts showing a claim was plausible rather than merely themselves and all others similarly sonably worked which can be either agreed upon by "[c]oncern over the defendants' ability to `pick-off' plaintiffs ment, because "defendants' offer to pay the reasonable attorneys' fee as claims and corresponding judgment, and remand such portion offer of judgment and then ultimately recovers less at trial delana pruitt as a junior asset manager from june 2006 to all parties, including attorney's fees and taxable costs--the damages but left amount of additional actual damages to later neys' fees under the flsa. 29 u.s.c. § 216(b) (providing that, in an employer . . . in any federal or state court of competent juris- february 2007."; (2) "during this time defendants routinely ment agreement specifying that all claims will be procedure, this part of the case was styled as a purported class 24 simmons v. united mortgage and loan id. at 390 (emphasis added). notably, the abrams case cited similarly situated employees; and (4) other practices. addi- the plaintiffs did not match with whatever records were to be "a case can become moot either due to a change in factual not believe that the plaintiffs had sufficiently explained how the balance of the letter stated as follows: named plaintiffs agreed to work on preparing such a demand; plaintiffs' flsa claims (as contained in the letter dated may the constitutional limits of federal court jurisdiction . . . . [a] 3 settlement and avoid litigation." marek v. chesny, 473 u.s. 1, plaintiffs and other members of the ncwha class their cally what is being offered in order to be responsible for determined that "defendants['] offer of judgment to all plain- and need not accept as true unwarranted inferences, unreason- tiffs sought to recover, on behalf of themselves and the other requested a settlement demand from the named plaintiffs; the in conclusion, we: (1) vacate the district court's order dis- l. marcus, federal practice and procedure § 3002, p. 92 (2d ation marks, and citation omitted). here, the district court employed ma'lissa simmons, monterrus marshall, yolanda 201). moreover, the offer stated that the defendants would plaintiffs' flsa claims, under the heading "second we hold the allegations regarding named plaintiff delana 15simmons v. united mortgage and loan marks, internal quotation marks, and ellipses omitted). see against them, spallone v. u.s., 493 u.s. 265, 276 (1990); we affirmed the district court's dismissal. id. after recogniz- may 16, 2008 letter, even as clarified by the may 29, 2008 days later, rendered moot the plaintiffs' claims for unpaid united mortgage and loan 4 vented the mooting of the plaintiffs' flsa claims. cf. members of the ncwha class are covered by the flsa. or resolving the case . . ."). an exchange of e-mails between vice. the clerk must then enter judgment. monterrus marshall, and yolanda carraway. for failure to comply with the settlement agreement. as ably gating the claims sought to be settled. may 6, 2008.4 of subject matter jurisdiction. in this regard, the district court lastly, the plaintiffs challenge the district court's denial of was done. my clients will also pay taxable costs and 2008 letter by counsel for the plaintiffs, counsel for the attorneys' fees and the costs, as provided by the flsa, 29 cifically, 29 u.s.c. § 216(b) provides that an flsa action for defendants to make their attempted offer for full relief in the as provided by the ncwha, n.c. gen. stat. § 95-25.22." defendants' failure to pay her earned wages and overtime." this manner because the plaintiffs had failed to make a settle- developing, inc., 9 f.3d 855, 867 (10th cir. 1993). the next day, on may 30, 2008, the district court granted worked, the total hours they worked each week of their named plaintiffs as well as all of the opt-in plaintiffs. also dated may 16, 2008, from the defendants' counsel to the conceivable." monroe v. city of charlottesville, va., 579 f.3d such a party and such consent is filed in the court in which such action is 402 f.3d 340, 342 (2d cir. 2005) (plaintiff is not obligated to . . ." under north carolina law. n.c. gen. stat. § 95- (offer of judgment requiring confidential settlement rather "without admitting legal liability or fault, to offer each opt-in the parties lack a legally cognizable interest in the outcome." 2 simmons v. united mortgage and loan doctrine of mootness is constitutional in nature, and therefore, and, in the alternative, sought leave to file a second amended named plaintiffs. in the first sentence, counsel for the defen- to pay the plaintiffs their reasonable attorney's fees as determined by the suant to federal rule of civil procedure 26(f). see fed. r. to federal rule of civil procedure 12(b)(6), on the ground 6 lack of a live case or controversy. id. the district court the primary question presented in this appeal is whether we note that the absence of an amount certain with respect to the fully violated the ncwha by: (1) failing to pay the named graham c. mullen, senior district judge. in support of our disposition also involved an offer of judg- action, that: asserting each was an employer within the meaning and defi- tial collective action members." (j.a. 98). from here forward, ter, did not render the plaintiffs' flsa claims moot. (5) by other practices. with respect to relief, the named plain- complaint specifically alleged the original defendants will- plaintiff's claimed actual damages, and holding such offer of of company policies and practices concerning compensation tiffs agree to keep the entire settlement confidential placed a entered pursuant to rule 68, the may 16, 2008 letter required the court in which such action is brought." id. see sandoz v. opposing party's written consent or the court's leave. the of this action for further proceedings consistent with this opin- arrow honor soc'y v. heckler, 464 u.s. 67, 70 (1983) refusing such offer. arkla energy res. v. roye realty & the primary question presented in this appeal is whether jurisdiction. we answer this question in the affirmative, and (internal quotation marks and citations omitted). see also iron plaintiffs-appellants, tionally, the named plaintiffs sought to recover, on behalf of 3simmons v. united mortgage and loan rule 12(b)(1) dismissal of flsa claims as moot based upon offer of judg- 29 u.s.c. § 216(b) ("no employee shall be a party plaintiff to [a collective selves and any opt-in collective action plaintiffs, "the amount settlements often do not involve the entry of a or controversy during pendency of the suit, the federal courts action for violation of the flsa's overtime provision, the court "shall, in vagaries inherent in their offer of settlement, the defendants pruitt's employment. the district court subsequently denied f.3d 191, 197 (4th cir. 2002). here, the district court held that with prejudice, the settlement will be kept confiden- any justifying reason." id. (internal quotation marks, alter- i keep the fact of such judgment confidential. therefore, the umlic-seven corporation; determine whether it is plausible that the factual allegations in iii carraway, and delana pruitt (the named plaintiffs) as junior groninger, patterson harkavy, llp, charlotte, north 10 simmons v. united mortgage and loan dants stated that he was "writ[ing] for the purpose of resolv- to potential collective action members on the ground that the 16 simmons v. united mortgage and loan mean an automatic win for the plaintiffs. this is because the of the flsa collective action and for court-facilitated notice as a general rule, the flsa prohibits an employer from judgment in their favor, without obligation on their part to the plaintiffs argue the district court erred in granting rule the plaintiffs do not dispute this determination on appeal. were allegedly owed under the flsa. in sum, although the cus, federal practice and procedure § 3002, p. 90 (2d ed. defendants' offer to provide unspecified information raised desist from their violations of the flsa described herein and judgment entered against them as the district court found, the federal rule of civil procedure 23 or a comparable state the outcome had disappeared, and federal courts do requiring "any of his employees" to work more than forty sented to be opt-in plaintiffs in their collective action under tive action members to report that, in accordance with local set forth in the may 16, 2008 letter and as clarified by the defendants' counsel thirteen days later, rendered the plain- to comply with the flsa; and such other legal and equitable (quotation marks and alteration marks omitted). defendant united mortgage and loan investment, llc lotte, north carolina, for appellees. on brief: ann e. ters not to a mootness inquiry. indeed, the fact that, at the claims.8 2008 letter did not comply with federal rule of civil proce- version of rule 68 requires an admission of liability by the defendant. 1a during that month. federal rule of civil procedure 68(a), as amended effective december factual circumstances. according to the district court, such ment, and remand that portion of the case for further plain language of the letter offered only that the defendants damages under the flsa, "[t]he court in such action shall, in defendants' offer rather than a ten day window as provided personal interest that must exist at the commencement of the change occurred when, "[o]n may 16, 2008, defendants sent v. because their constitutional authority extends only to actual engaged in litigation is not entitled to confidentiality); 12 lina, is in the business of buying and servicing distressed ing that the may 16, 2008 letter offered for judgment to be moved to dismiss the amended complaint, pursuant to fed- 13simmons v. united mortgage and loan amend, we instruct the district court to put its rationale for the defendants sent (via electronic mail, united states mail, nition of the flsa and the ncwha, and deleted claims for advantage over the same amount of recovery via a defen- the flsa and the ncwha, on the ground that neither statute no. 09-2147 cient to raise a right to relief above the speculative level. the tionally, the complaint alleged that the original defendants ally to be entitled, there was no longer any case or keep, and preserve accurate time records sufficient to deter- the parties or submitted to the court for resolution. class of "all persons . . . who were, are, or will be employed potential collective action members and an order that the an order grant- raleigh, north carolina, for appellants. aaron m. christen- tiffs' ncwha claims; and (4) vacate the district court's order defendants, was ambiguous as to the amounts of actual and on may 21, 2008, the named plaintiffs moved for condi- opposing counsel then took place over the next couple of tion . . . and in an additional equal amount as liquidated dam- cases or controversies."). "mootness has been described as employment up to the date of their termination, the total proceedings consistent with this opinion; (2) vacate the dis- ner, contribute to our holding that such letter offered the plaintiffs less 1993) (defendant cannot invoke rule 68 with ambiguous offer may 16, 2008 letter, as clarified by the may 29, 2008 letter, opinion; (3) affirm the district court's dismissal of the plain- 5 plaintiffs' attorneys' fees in the may 16, 2008 letter does not, in any man- missed if it does not allege `enough facts to state a claim to must confer to consider "the possibilities for promptly settling mortgage holdings, llc; united opinion consented to be opt-in plaintiffs in their collective action (quoting bell atl. corp. v. twombly, 550 u.s. 544, 570 week,"; (4) in august 2004, began requiring junior asset and costs of the action." 29 u.s.c. § 216(b). amended complaint named seven additional defendants,3 breach of contract action or, perhaps, to continue liti- defendants['] may 16, 2008 offer of judgment mooted the ise by the defendants in a settlement agreement to pay the ing litigation." (j.a. 123). 4 simmons v. united mortgage and loan missing the plaintiffs' flsa claims for lack of subject matter 23simmons v. united mortgage and loan a party defending against a claim may serve on an opposing party an offer and liquidated damages, as provided by the flsa, 29 u.s.c. case. unfortunately for the defendants, such complaint mat- work to do in order to figure out what amounts the plaintiffs than the offer amount, the plaintiff must pay the litigation affected in the amount of their . . . unpaid overtime compensa- charles alan wright, arthur r. miller, & richard l. marcus, fraud, filed a class action against the directors of the defen- managers to work in excess of forty hours per week; (3) "re- tiffs' flsa claims moot, such that a live case or controversy tive action and for court-facilitated notice to potential collec- need not accept the legal conclusions drawn from the facts, to prepare the affidavits. himself or themselves and other employees similarly situ- so long as it does not outright refuse to grant the leave without ion.9 380, 386 (4th cir. 2009). thus, "[i]n reviewing a motion to explained in the well respected treatise federal practice and the plaintiffs next challenge the district court's rule defendants: (1) paid their junior asset managers as "salaried published this offer requires that the parties enter a settle- code pleading that prevailed before the federal rules of civil rule 68 provides that, in the event the plaintiff refuses the injunctive and other remedial relief. otherwise, the amended defendants' motion to dismiss the ncwha claims in the hours they worked each week of their employment up to the anyoftheopt-inplaintiffswereemployedbyunitedmortgage.5 united states v. hardy, 545 f.3d 280, 283 (4th cir. 2008) dant corporation on behalf of herself and other shareholders three years before the filing of this complaint." (j.a. 20). spe- sessed "that is necessary to prepare the affidavits." id. these defending against a claim may serve on an opposing claims as moot involved an offer of judgment. the case is court rule, in a collective action under the flsa, a named quantify damages); clark v. sims, 28 f.3d 420, 424 (4th cir. pruitt just quoted from the amended complaint are insuffi- ated." id. however, unlike in a class action filed pursuant to 7simmons v. united mortgage and loan worked in excess of forty hours per week; (2) regularly and `exempt' employees,"; (2) routinely required junior asset nor wage information for any of the named plaintiffs. the standards for exemption under the flsa, 29 u.s.c. also denied the plaintiffs' motion for conditional certification themselves and the opt-in collective action plaintiffs, "their flsa, 29 u.s.c. § 203(d), and that the named plaintiffs were iv fied by the may 29, 2008 letter, did not render the plaintiffs' ment entered by a court in his favor carries a substantial the plaintiffs an offer of judgment providing for full relief for ("federal courts lack jurisdiction to decide moot cases 2008 letter included liquidated damages and pertained to the overtime wages in a collective action under the fair labor ("[u]nlike in a rule 23 class action, in a flsa collective than full relief. this is because, when as here, the defendants have offered 20 simmons v. united mortgage and loan december 2006, when the minimum wage in north carolina affirmed in part; vacated and remanded in part by published in preparation of such demand. on january 18, 2008, the the plaintiffs' flsa claims moot is the conditional nature of overtime compensation "may be maintained against any plaint did not allege that she actually worked any overtime amount of back pay they claim is owed to to them, and a vidual claims after defendants offered judgment," we held: the offer. as previously noted, rather than making an uncon- for the fourth circuit being served, the opposing party serves written litigation is not entitled to confidentiality). opinion. senior judge hamilton wrote the opinion, in which ma'lissa simmons, on behalf of themselves and all others similarly been allowed to litigate fully their flsa claims and had they fide executive, administrative, or professional capacity . . . (as in this regard, and, if the district court again denies leave to 308, 311 (4th cir. 2009). moreover, "[w]e review a district made regarding the named plaintiffs or an offer of judgment. moser, and marlena brooks as named plaintiffs and contained a more specific allegation regarding named plaintiff delana 8 simmons v. united mortgage and loan of significant relevance to the issues on appeal, counsel for (4th cir. 2009). see also matter of block shim dev. properly describing the work done and the hours rea- 2008 offer included liquidated damages under the flsa and wage and hour act (ncwha), n.c. gen. stat. § 95-25.1 et