Commercial Litigation and Arbitration

Rule 26(a) Disclosures & 37(c)(1) Sanctions — A Computation of Statutory Attorney’s Fees That Are Awardable after Obtaining, & in Addition to, a Successful Judgment Is Not a Required Disclosure under Rule 26(a)

Smith v AS America, Inc., 2016 U.S. App. LEXIS 12917 (8th Cir. July 14, 2016):

AS America, Inc. d/b/a American Standard Brands (ASB) denied Thomas Smith's request for intermittent Federal Medical Leave Act (FMLA) leave and fired him after he missed work. Following a bench trial, the district court found ASB violated Smith's rights under the FMLA and awarded Smith [*2]  actual and liquidated damages, attorney's fees, expenses, and prejudgment interest. ASB appeals the court's decision regarding liability and its awards of liquidated damages and attorney's fees.1 Jamie Smith2 cross-appeals the district court's finding limiting the amount of her damages under the after-acquired evidence doctrine. Having jurisdiction under 28 U.S.C. § 1291, we affirm the district court's decision regarding liability, liquidated damages, and attorney's fees. Because we find the district court made a clearly erroneous factual finding as to ASB under the after-acquired evidence doctrine, however, we reverse and remand the court's decision limiting damages.

1   ASB also appeals the court's May 12, 2015, order denying its April 13, 2015, post-trial motion for reconsideration, or in the alternative, motion to amend the court's order granting attorney's fees, expenses, and pretrial interest, and altering its factual finding regarding Thomas Smith's probate case. ASB makes no meaningful argument regarding its appeal of the court's May 12, 2015 order in its opening or reply briefs and so we deem the claim waived. Jenkins v. Winter, 540 F.3d 742, 751 (8th Cir. 2008).

2   Thomas Smith died in a car accident on March 3, 2014. His wife, Jamie, as the personal [*3]  representative of his estate, was substituted as the plaintiff in the FMLA lawsuit on July 7, 2014.

I. Background

Thomas Smith worked at the ASB plant in Nevada, Missouri. His job required him to manually lift porcelain toilet bowls, tanks, urinals, and sinks on and off the kiln and refire carts. The bowls weighed an average of fifty pounds and the tanks weighed around twenty-five pounds. His shift ran from 11:00 p.m. to 7:00 a.m. Friday through Tuesday, and he was off on Wednesdays and Thursdays. ASB employees are fired when they reach 8 absences in a twelve-month period under ASB's no-fault attendance policy.

In January 2011, Smith missed three days of work due to sinusitis and lower back pain. He went to an urgent care clinic and was prescribed muscle relaxants and advised to get physical therapy. Smith applied for FMLA leave and submitted a certification form that had been completed by a nurse practioner at the clinic. Smith's absentee records for January 9 through 11 contain a notation "FMLA per C. Morris"3 and his absence was recorded as FMLA leave.

3   Chris Morris was the Human Resources Generalist responsible for administering FMLA at the Nevada plant in January 2011.

On Friday, February [*4]  5, 2011, before his shift started, Smith hurt his back plowing snow. That night, he reported to work but left early due to back pain. On Saturday, February 6, and Sunday, February 7, Smith called ASB to report he could not work but that his absence should be covered by the intermittent FMLA leave granted in January.

Smith went to the urgent care clinic on Monday, February 7, and saw a nurse practitioner. He was advised to take anti-inflammatory drugs and the muscle relaxants he had been prescribed in January and to get physical therapy. He was also given a note from the nurse practioner to submit to ASB. The note stated: "Patient seen in clinic 2/7/11. Please excuse from 2/8/11 & needs FMLA form to be completed for lumbar strain." Smith called ASB before his next shift started to report that he would be absent and that the absence should be covered by the intermittent FMLA leave approved in January.

On Tuesday, February 8, 2011, Smith went to the ASB plant to submit the note from the nurse practioner. Jackie Nall4 met with him and gave him documents assessing him three points for leaving his February 6 shift early and missing his February 7 and 8 shifts. She also gave him a document dated [*5]  February 8, 2011, that purportedly denied his January request for FMLA leave. ASB then fired Smith for having 8 absences.

4   Jackie Nall had replaced Morris as the Human Resources Generalist at the Nevada plant.

On February 11, 2011, Smith submitted a new application for FMLA leave and an FMLA certification form filled out by the clinic nurse practitioner. The certification form noted Smith had been prescribed muscle relaxants for a thoracolumbar spasm and referred for physical therapy. ASB did not request any additional information from Smith concerning his February 11 FMLA application but did not grant him FMLA leave and did not reinstate him. Smith then sued ASB, claiming wrongful interference with his FMLA rights.

At Thomas Smith's deposition, ASB learned that he had been arrested and jailed on July 13, 2011. The parties disputed when Smith was released from jail and how many absences he would have accrued as a result of being jailed had he still been employed at ASB. Following trial, the court found ASB proved that Smith had not been released from jail until July 20, 2011, and thus would have reached 8 absences on July 20, 2011. The court awarded Jamie Smith $13,865.84 in lost pay up [*6]  to July 20, 2011, and $13,865.84 in liquidated damages. The court also granted Smith $159,944.66 in attorney's fees and costs.

II. Discussion

The FMLA entitles an eligible employee to twelve weeks of unpaid leave during any twelve-month period for a "serious health condition that makes the employee unable to perform the functions of the position of such employee." 29 U.S.C. § 2612(a)(1)(D). To succeed on a claim of FMLA interference, an employee must show she was eligible for FMLA leave, the employer knew she needed FMLA leave, and the employer denied her an FMLA benefit to which she was entitled. Hasenwinkel v. Mosaic, 809 F.3d 427, 432 (8th Cir. 2015). FMLA interference includes "refusing to authorize FMLA leave." Stallings v. Hussman Corp., 447 F.3d 1041, 1050 (8th Cir. 2006) (quoting 29 C.F.R. § 825.220(b)).


ASB next challenges the court's award of attorney's fees. "The FMLA provides for reasonable attorney's fees to be awarded to a prevailing plaintiff." Marez, 688 F.3d at 965 (citing 29 U.S.C. § 2617(a)(3)). These fees are "in addition to any judgment awarded to the plaintiff." 29 U.S.C. § 2617(a)(3). We review an award of attorney's fees for an abuse of discretion. Marez, 688 F.3d at 965. "The most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable [*12]  hourly rate." Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). After determining this amount, a district court may consider other factors to "adjust the fee upward or downward, including the important factor of the 'results obtained.'" Marez, 688 F.3d at 965 (quoting Hensley, 461 U.S. at 434).

ASB raises a number of challenges to the award of attorney's fees. ASB first argues Smith is not entitled to attorney's fees at all because she did not disclose the amount of the fees requested in her response to discovery requests. ASB asserts this violated Federal Rule of Civil Procedure 26(a)6 and that, pursuant to Federal Rule of Civil Procedure 37(c)(1),7 the district should have excluded evidence of the amount of attorney's fees as a sanction. We review a district court's decision not to exclude evidence under Rule 37(c)(1) for an abuse of discretion. United States v. STABL, Inc., 800 F.3d 476, 487 (8th Cir. 2015).

6   Rule 26(a) requires a party to provide "a computation of each category of damages claimed by the disclosing party." Fed. R. Civ. P. 26(a)(1)(A)(iii).

7   Rule 37(c)(1) provides: "If a party fails to provide information . . . as required by Rule 26(a) . . . the party is not allowed to use that information . . . to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless." Fed. R. Civ. P. 37(c)(1).

The district court did not abuse its discretion in declining to exclude any evidence of Smith's attorney's fees. A computation of attorney's fees is simply not [*13]  a required disclosure under Federal Rule of Civil Procedure 26(a). As the court correctly noted, information regarding the amount of attorney's fees requested had nothing to do with the merits of the FMLA lawsuit. See Young v. Powell, 729 F.2d 563, 566 (8th Cir. 1984) (holding that a claim for attorney's fees is an issue "uniquely separable from the cause of action to be proved at trial"). "Regardless of when attorney's fees are requested, the court's decision of entitlement to fees will therefore require an inquiry separate from the decision on the merits--an inquiry that cannot even commence until one party has 'prevailed.'" Id. (quoting White v. New Hampshire Dep't. of Emp't Sec., 455 U.S. 445, 451-52 (1984)).

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