The opinion of the court was delivered by: Karen E. Schreier Chief Judge
ORDER ON POST-TRIAL MOTIONS
Pending before the court are plaintiffs' renewed motion for judgment as a matter of law, or in the alternative, motion for a new trial, and motion to amend or alter the judgment (Docket 120), plaintiffs' motion for liquidated damages (Docket 117), and plaintiffs' motion for attorneys' fees (Docket 123).
This case arises out of the employment of plaintiffs, Brendon S. Albers (Albers) and Christopher Estes (Estes), by defendant Tri-State Implement, Inc. (Tri-State).*fn1 Defendants Steve Mellegard (Steve) and Stan Mellegard (Stan) are the officers, directors, and shareholders of Tri-State. Albers, a member of an American Indian tribe, began working at Tri-State as a part-time laborer in January 2002. He was promoted to the position of head painter in June 2003. Albers did not receive health insurance benefits until he was promoted to head painter. Albers never received overtime pay while working at Tri-State. Estes, also a member of an American Indian tribe, began working at Tri-State in July 2005. He held the position referred to as "assistant to the head painter." Estes never received health insurance benefits or overtime pay during his employment at Tri-State. At some point during Estes' employment, defendants allowed him to buy gas for personal use at the station across the street from Tri-State and charge the price of the gas to the Tri-State account. Albers and Estes complain that Steve and Stan made offensive race-based comments to them in the workplace.
On August 10, 2006, Estes asked Stan for health insurance, and Stan told him he was not entitled to benefits. Estes and Albers informed defendants that they were quitting. They left Tri-State together in Estes' car, and Estes drove to the gas station across the street, put gas into his car, and charged TriState's account for the $42.02 purchase price. When a new employee began working at Tri-State, defendants discovered that certain tools and supplies were missing.
Plaintiffs filed suit against defendants, alleging wrongful denial of health insurance benefits on the basis of race and constructive discharge in violation of 42 U.S.C. § 1981 (§ 1981), wrongful denial of access to the company health insurance plan in violation of the Employee Retirement Income Security Act (ERISA), and failure to pay overtime wages in violation of the Fair Labor Standards Act (FLSA). Defendants counterclaimed, alleging that plaintiffs unlawfully converted defendants' property and cash monies and that Albers owed money on a loan extended by Tri-State. Plaintiffs' constructive discharge and ERISA claims, as well as defendants' conversion of money claim against Albers, were dismissed at summary judgment, and Albers confessed judgment in favor of Tri-State for the loan before trial.
Plaintiffs' race discrimination claims, plaintiffs' FLSA claims, defendants' conversion of money claim against Estes, and defendants' conversion of property claim against both plaintiffs were tried to a jury on February 24, 2009, through February 27, 2009. On February 27, 2009, the jury returned a verdict in favor of Tri-State on Albers' race discrimination claim and Estes' race discrimination claim. The jury found in favor of Albers on his FLSA claim and awarded him $1,372.25 for the period of November 22, 2004, through August 10, 2006. The jury also found that Tri-State did not willfully violate the FLSA. The jury found in favor of Estes on his FLSA claim and awarded him $265.72 in damages.*fn2 With respect to defendants' counterclaims, the jury found in favor of defendants on their claim of conversion of money against Estes and awarded $42.02 in damages, and in favor of plaintiffs on defendants' claim of conversion of tools and supplies. Docket 111.
On March 13, 2009, the court entered judgment in favor of defendants and against Albers on Albers' claim of race discrimination under § 1981, judgment in favor of Albers and against defendants in the sum of $1,372.25 for violation of the FLSA, judgment in favor of defendants and against Estes on Estes' claim of race discrimination under § 1981, judgment in favor of Estes and against defendants in the sum of $265.72 for violation of the FLSA, judgment in favor of defendants and against Estes in the sum of $42.02 for conversion of money, judgment in favor of plaintiffs and against defendants on defendants' claim of conversion of tools and supplies, and judgment in favor of Tri-State and against Albers in the sum of $3,284 plus post-judgment interest as provided by law pursuant to the confession of judgment signed by Albers on February 11, 2009. Docket 113. The court also ordered that neither party was entitled to costs.
Now plaintiffs renew their motion for judgment as a matter of law, or in the alternative, move for a new trial, and move to amend or alter the judgment (Docket 120), move for an award of liquidated damages (Docket 117), and move for an award of attorneys' fees (Docket 123).
I. Renewed Motion for Judgment as a Matter of Law, Motion for New Trial, and Motion to Amend/Alter Judgment (Docket 120)
Defendants argue that plaintiffs' renewed motion for judgment as a matter of law, alternative motion for a new trial, and motion to amend or alter the judgment are untimely. Rules 50(b), 59(b), and 59(e), which govern plaintiffs' postjudgment motions, require that plaintiffs' motions be brought within a certain time after the entry of judgment. The court may not extend the time to act under these rules. Fed. R. Civ. P. 6(b). Indeed, when a Rule 59 motion is untimely made, "the district court loses jurisdiction over that motion and any ruling upon it becomes a nullity." Sanders v. Clemco Indus., 862 F.2d 161, 168 (8th Cir. 1988) (citing Spinar v. South Dakota Bd. of Regents, 796 F.2d 1060, 1062 (8th Cir. 1986)). 1. Timeliness under Pre-December 1, 2009, Rules Prior to December 1, 2009, Rule 50(b) provided that "[n]o later than 10 days after the entry of judgment . . . the movant may file a renewed motion for judgment as a matter of law and may include an alternative or joint request for a new trial under Rule 59." Fed. R. Civ. P. 50(b). Likewise, prior to December 1, 2009, the time period in which a party had to file a motion for a new trial under Rule 59(b) or a motion to alter or amend a judgment under Rule 59(e) was no later than 10 days after the entry of judgment. Fed. R. Civ. P. 59(b) and (e). Rule 6, which was also amended effective December 1, 2009, governs the computation of time periods specified in the Federal Rules of Civil Procedure. Fed. R. Civ. P. 6(a). Under the version of Rule 6(a) effective prior to December 1, 2009, the day of the act that began the period was excluded and, when the period was less than 11 days, intermediate Saturdays, Sundays, and legal holidays were excluded. Fed. R. Civ. P. 6(a)(1)-(2). Under these rules, plaintiffs' motions were untimely. Judgment was entered in this case on March 13, 2009. Docket 113. Because the time period was less than 11 days, the intermediate Saturdays and Sundays-March 14, 2009, March 15, 2009, March 21, 2009, and March 22, 2009-are excluded from the time period computation. Thus, 10 days after the entry of judgment was March 27, 2009. Plaintiffs filed their motions on March 31, 2009,*fn3 so they were untimely.
Plaintiffs argue that they were entitled to 3 extra days for mailing under Rule 6(d). Rule 6(d) provides that "[w]hen a party may or must act within a specified time after service and service is made under Rule 5(b)(2)(C), (D), (E), or (F), 3 days are added after the period would otherwise expire under Rule 6(a)." Fed. R. Civ. P. 6(d) (emphasis added).*fn4 Rule 6(d), however, only applies when the time period is triggered by "service." Where, as here, the entry of judgment triggers the time period, Rule 6(d) does not provide for an additional 3 days for mailing. Arnold v. Wood, 238 F.3d 992, 995 n.2 (8th Cir. 2001) ("We may not extend [plaintiff's] filing time by three days for mail service, see Fed. R. Civ. P. 6(e), because the ten-day filing period prescribed in Rule 59(e) runs from the entry of judgment, rather than its service upon the parties."); see also 4B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1171 at 587-88 (3d ed. 2002) ("[T]hree days will be added under Rule 6(e) only when the period in question is measured from the service of a notice or other paper; the subdivision is inapplicable when some other act or event commences the time period, such as the entry of judgment."). Thus, plaintiffs are not entitled to an additional 3 days under Rule 6(d), and their motions were untimely.
Plaintiffs advance a number of theories under which their renewed motion for judgment as a matter of law, alternative motion for a new trial, and motion to amend or alter the judgment were timely.
Plaintiffs argue that their motions were not untimely because the March 13, 2009, judgment was not a final judgment that triggered the 10-day time period in Rules 50(b), 59(b), and 59(e). Plaintiffs' argument is unavailing. The judgment filed and entered on March 13, 2009, was set out in a separate document as required by Rule 58. See Fed. R. Civ. P. 58(a). The judgment stated that it was "ordered, adjudged, and decreed" that judgment was entered in favor of the applicable party and was signed by the court. Docket 113 at 2. And the electronic docket sheet indicates that the case was terminated on March 13, 2009. Based on these facts, the March 13, 2009, judgment was, on its face, a final judgment. See Reyher v. Champion Int'l Corp., 975 F.2d 483, 487 (8th Cir. 1992) (finding that judgment signed by the district court, reflected on a separate document, and entered on docket with notation "Terminates Case" was a final judgment that complied with Rule 58). Moreover, plaintiffs treated the March 13, 2009, judgment as a final judgment by filing a renewed motion for judgment as a matter of law under Rule 50(b), an alternative motion for new trial under Rule 59(a), and a motion to alter or amend the judgment under Rule 59(e). See id. (considering that parties treated judgment as final judgment in filing motions to alter or amend the judgment under Rule 59). Each of these motions must be filed within a certain time after "entry of judgment." Plaintiffs did not challenge the finality of the March 13, 2009, judgment until they realized their motions may have been untimely.
Plaintiffs also argue that the March 13, 2009, judgment was not a final judgment because it did not address liquidated damages or attorneys' fees, which plaintiffs requested in their complaint and are mandatory under 29 U.S.C. § 216. Plaintiffs cite several cases holding that a judgment is not final for the purposes of appellate court jurisdiction under 28 U.S.C. § 1291 until the court determines the amount of attorneys' fees. Assuming that the standard for finality under § 1291 applies to the determination of when Rules 50 and 59 apply, the cases cited by plaintiff do not compel the conclusion that the court's March 13, 2009, judgment was not final because it did not address the amount of attorneys' fees to which plaintiffs are entitled. Plaintiffs cite Shelton v. Ervin, 830 F.2d 182, 184 (11th Cir. 1987) for the proposition that "attorney fees are an integral part of the merits of FLSA cases and part of the relief sought therein [so that] a final determination as to the award of attorney fees is required as part of the final appealable judgment." But Shelton's reasoning is invalid in light of the Supreme Court's adoption of a "bright-line rule . . . that a decision on the merits is a 'final decision' for purposes of [28 U.S.C.] § 1291 whether or not there remains for adjudication a request for attorney's fees attributable to the case." See Budinich v. Becton Dickinson & Co., 486 U.S. 196, 202-03 (1988). Plaintiffs also cite Maristuen v. Nat'l State Ins. Co., 57 F.3d 673, 678 (8th Cir. 1995), in which the Eighth Circuit held that a judgment awarding damages but not deciding the amount of damages or finding liability but not fixing the extent of the liability is not a final and appealable judgment. In Maristuen, the judgment stated, "plaintiff is entitled to bad faith damages in the form of attorney's fees, the amount of which will be determined by the court." Id. at 677. The court reasoned that Budinich did not apply because "the award of unquantified attorney fees here is set out in and is an integral part of the judgment entered . . . in accordance with the jury's verdicts." Id. The situation in Maristuen is not present in this case. The March 13, 2009, judgment does not include an unquantified damage award. The judgment does not order that plaintiffs are entitled to liquidated damages or attorneys' fees in an amount to be determined by the court. In the absence of such language, the March 13, 2009, judgment falls under the Budinich rule that a decision on the merits, which the March 13, 2009, judgment surely is, is a final judgment whether or not there remains for adjudication a request for attorneys' fees. Plaintiffs' argument that the time period in Rules 50 and 59 were not triggered by the March 13, 2009, judgment because it did not address attorneys' fees is unavailing.
Likewise, plaintiffs offer no authority for their contention that in an FLSA case, the judgment is not final until the court has addressed the issue of liquidated damages. Indeed, in Reyher v. Champion International Corporation, 975 F.2d at 488, the Eighth Circuit explained that the timeliness of a motion for liquidated damages under the Age Discrimination in Employment Act (ADEA) "must be determined under Rule 59 and Rule 60, the rules applicable to postjudgment motions." The Eighth Circuit explicitly rejected the argument that Rule 59 does not apply to a motion for liquidated damages because these damages should be automatically added by the district court. Id. The Eighth Circuit explained that the Supreme Court has stated that a motion for prejudgment interest must be made under Rule 59 even if this remedy is available as a matter of right. Reyher, 975 F.3d at 488 (citing Osterneck v. Ernst & Whinney, 489 U.S. 169, 176 n.3 (1989)). Further, the Eighth Circuit reasoned, an award of liquidated damages under the ADEA is not a "ministerial" task for the district court. Id. Rather, the court must make a " 'painstaking study' of the plaintiff's case on the merits." Id. (internal citation omitted). Finally, the Eighth Circuit explained that ADEA liquidated damages are punitive in nature, and Rule 59 applies to postjudgment motions for punitive damages. Reyher, 975 F.3d at 488.
Although there are some differences between liquidated damages under the ADEA and under the FLSA,*fn5 the court finds that the Eighth Circuit's reasoning in Reyher compels the conclusion that a motion for liquidated damages under the FLSA must be brought under Rule 59 or Rule 60. Just as a motion for liquidated damages under the ADEA requires the court to examine the case on the merits, a request for liquidated damages under the FLSA may require the court to consider the evidence and determine if the defendant employer's FLSA violation was in good faith and reasonable. See 29 U.S.C. § 260. And even if liquidated damages are available as a matter of right, they should not be considered a "collateral" matter to which Rule 59(e) does not apply. See Osterneck, 489 U.S. at 169, 175 (explaining that motion for prejudgment interest does not raise issues wholly collateral to the judgment in the main cause of action). The rule that a motion for liquidated damages must be made pursuant to Rule 59 or Rule 60, both of which are postjudgment motions, belies plaintiffs' argument that a judgment in a FLSA case is not final for the purposes of triggering the time period in the postjudgment motions until the court has determined the issue of liquidated damages. Plaintiffs' argument that the 10-day time periods in Rules 50(b), 59(a)-(b), and 59(e) have not begun is unavailing.
(b) Construction of Motions under Rule 60
Next plaintiffs argue that their motions should be construed as Rule 60 motions and as a result, be considered timely. As relevant to plaintiffs' argument, Rule 60(b) permits the court, upon a party's motion made within a reasonable time-and for reasons (1), (2), and (3), no more than one year after the entry of judgment-to grant relief from a final judgment on grounds of "(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party; . . . or (6) any other reason that justifies relief." Fed. R. Civ. P. 60(b).*fn6
"Rule 60(b) provides for extraordinary relief which may be granted only upon an adequate showing of exceptional circumstances." Reyher, 975 F.2d at 488 (internal quotation omitted). "It does not provide a 'safe harbor' for all who exceed the time limits of Rule 59." Wilson v. Runyon, 981 F.2d 987, 989 (8th Cir. 1992) (per curiam). "[B]efore treating a post-trial motion filed more than ten days after a final judgment as a Rule 60(b) motion, the district court [must] determine that the motion on its face alleges grounds for relief available under Rule 60." Id.
Here, plaintiffs' renewed motion for judgment as a matter of law, alternative motion for a new trial, and motion to amend or alter the judgment do not allege grounds for relief available under Rule 60. Plaintiffs do not allege any mistake, inadvertence, surprise, excusable neglect, newly discovered evidence, or fraud, misrepresentation, or misconduct by defendants. Plaintiffs have made no showing of "exceptional circumstances," as required to construe their motions as Rule 60 motions. "[W]hen a motion can fairly be characterized as one under Rule 59(e) (i.e., lacking any special circumstances justifying relief under Rule 60(b)) it must be filed within the 10-day period and will not be treated under Rule 60(b)(1)." Reyher, 975 F.2d at 488 (internal quotation omitted). Plaintiffs' argument that their motions should be construed under Rule 60 is unavailing.
2. Application of Amended Rules
Finally, plaintiffs argue that the December 1, 2009, amendments to Rules 50 and 59 apply to their renewed motion for judgment as a matter of law, alternative motion for a new trial, and motion to amend or alter the judgment. Under the amended version of Rule 50(b), a party may file a renewed motion for judgment as a matter of law "[n]o later than 28 days after the entry of judgment." Fed. R. Civ. P. 50(b). Likewise, under the amended versions of Rule 59(b) and 59(e), motions for a new trial and to alter or amend the judgment must be filed no later than 28 days after the entry of judgment. Fed. R. Civ. P. 59(b), 59(e). In amending the Federal Rules of Civil Procedure, the Supreme Court ordered that the amended rules "shall take effect on December 1, 2009, and shall govern in all proceedings thereafter commenced and, insofar as just and practicable, all proceedings then pending." Order, Mar. 26, 2009, available at http://www.supremecourtus.gov/orders/courtorders/frcv09.pdf. The present case was pending on December 1, 2009, because the court had not ruled on plaintiffs' postjudgment motions. Thus, the amended rules must govern plaintiffs' motions if "just and practicable." Id.
Amended rules should be given retroactive application "to the maximum extent possible" and should apply unless their application "would work injustice." Burt v. Ware, 14 F.3d 256, 258-59 (5th Cir. 1994) (internal quotations omitted). The Eighth Circuit has explained that "the determination of when it is 'just and practicable' to retroactively apply [an amended version of a rule] is necessarily a case-by-case consideration." United States v. Duke, 50 F.3d 571, 575 (8th Cir. 1995) (considering amendment to Rule 4(a)(4) of the Federal Rules of Appellate Procedure).
The court finds that it would be just and practicable to apply the amended versions of Rules 50(b), 59(b), and 59(e) to plaintiffs' pending motions. The Supreme Court announced the proposed amended rules on March 26, 2009, one day before plaintiffs' motions were due under the then-applicable version of the rules. Thus, both parties had notice that the time periods would likely be expanded. Defendants have had ample opportunity to brief the timeliness issue and respond to plaintiffs' request that the court apply the amended version of the rules. The parties have also fully briefed the motions on their merits, so there is no indication that defendants relied on the pre-December 1, 2009, rules to their detriment. Defendants may lose the "potential 'windfall' " of having plaintiffs' motions dismissed on the timing issue, but this loss does not equate to prejudice to defendants. See Burt, 14 F.3d at 260 ("The appellees will not be prejudiced by employment of the new rules; rather, they will have simply lost a potential 'windfall' of having the appeal dismissed." (internal citation omitted)). And, application of the amended rules is practicable in this case because it does not require any additional briefing or argument.
The court's conclusion that application of the amended rules would be just and practicable in this case is bolstered by the decision of other courts to apply or not apply previous amendments to Rule 59 in favor of consideration on the merits. In Long v. Simmons, 77 F.3d 878, 879 (5th Cir. 1996), the Fifth Circuit found that the December 1, 1995, amendment to Rule 59(e) should be given retroactive application so that the plaintiff's motion was timely. Under the previous version of Rule 59(e), which was in effect when the plaintiff filed his motion in February of 2005, a motion to alter or amend a judgment had to be served within 10 days of the entry of judgment. Id. The plaintiff's motion was untimely under that version of Rule 59(e). Under the amended version of Rule 59(e), which went into effect over 9 months after the plaintiff filed his motion, a motion to alter or amend a judgment had to be filed within 10 days of the entry of judgment. Id. The plaintiff's motion was timely under the amended rule, and the court concluded that the amended rule should be applied in that case. Id. In Alvarez v. City of Westmorland, No. 96-55431, 119 F.3d 5 (table decision), 1997 WL 407872, at *1 (9th Cir. July 21, 1997), the Ninth Circuit declined to apply the 1995 amendment to Rule 59(b) which would have made the plaintiff's motion untimely because it would be "unjust and impracticable for this court not to address the merits."
There is little guidance on the question of whether the December 1, 2009, amendments to Rules 50(b), 59(b), and 59(e), should be applied retroactively. Compare Kalos v. Law Offices of Eugene A. Seidel, P.A., No. 1:09cv833 (JCC), 2009 WL 4683551, at *2 (E.D. Va. Dec. 3, 2009) (applying without discussion 28-day deadline to Rule 59(e) motion filed on November 5, 2009) with Trepanier v. City of Blue Island, No. 08-4070, 2010 WL 411109, at *1 (7th Cir. Feb. 3, 2010) (finding Rule 59(e) motion filed October 17, 2009, untimely under 10-day time limit without discussing whether application of amended rule would be just and practicable). But Long and Alvarez suggest that application of the amended rules in a way that allows the court to consider the merits of the postjudgment motions is just and practicable.
Defendants' only argument against application of the amended rules is that there is a presumption against retroactive application of legislation that would alter jurisdiction. Defendants' argument, and their reliance on Landgraf v. USI Film Prods. 511 U.S. 244 (1994), is unavailing. Landgraf does not support defendants' argument that there is a presumption against retrospective application of legislation altering jurisdiction. As the Supreme Court noted in Landgraf, 511 U.S. at 274, the court has retroactively applied "statutes conferring or ousting jurisdiction, whether or not jurisdiction lay when the underlying conduct occurred or when the suit was filed." And, defendants ignore the distinction the Supreme Court drew between changes in procedural rules and changes in substantive law: "[c]hanges in procedural rules may often be applied in suits arising before their enactment without raising concerns about retroactivity." Id. at 275.
But most importantly, defendants' argument ignores Landgraf's pronouncement that when faced with a retroactivity question, "the court's first task is to determine whether Congress has expressly prescribed the statute's proper reach. If Congress has done so, of course, there is no need to resort to judicial default rules." Id. at 280. In the context of the Federal Rules of Civil Procedure, the enabling statute authorizing the Supreme Court to prescribe rules and amendments provides,
[t]he Supreme Court may fix the extent such rule shall apply to proceedings then pending, except that the Supreme Court shall not require the application of such rule to further proceedings then pending to the extent that, in the opinion of the court in which such proceedings are pending, the application of such rule in such proceedings would not be feasible or would work injustice, in which event the former rule applies.
28 U.S.C. § 2074. Consistent with Congress's authorization, the Supreme Court has ordered that the December 1, 2009, amendments shall govern all proceedings pending on December 1, 2009, "insofar as just and practicable." Order, March 26, 2009. Thus, to the extent there is a presumption against retroactive application of legislation affecting jurisdiction, this presumption does not apply in light of Congress's authorization of application of amendments to the Federal Rules of Civil Procedure in certain cases pending when the amendments took effect.
Further, defendants' argument that application of the amended rules in this case would impermissibly expand the court's jurisdiction is belied by several cases applying amended rules in a manner that allowed the court to address the merits of a matter it would not have had jurisdiction to address under the previous rules. For example, in Long, the court applied the amended version of Rule 59(e) so that a motion that would have been untimely under the old rule (and therefore outside of the court's jurisdiction) was timely. Similarly, many courts, including the Eighth Circuit, have applied the amended version of Rule 4(a)(4) of the Federal Rules of Appellate Procedure to determine the validity of a notice of appeal filed before the effective date of the amendment.
In these cases, application of the amended version of Rule 4(a)(4) resulted in the court having jurisdiction to hear the appeal when it would not have had jurisdiction under the previous version of the rule.*fn7 See, e.g., Duke, 50 F.3d at 575-77; Wallis v. J.R. Simplot Co., 26 F.3d 885, 887-88 (9th Cir. 1994); Burt, 14 F.3d at 257-60 (finding that appellate court would have jurisdiction after district court ruled on pending postjudgment motions). These cases suggest that application of the amended version of a rule may be "just and practicable" even where it would alter the determination of the court's jurisdiction to address the motion to the detriment of the nonmoving party. But see PortleyEl v. Milyard, No. 09-1327, 2010 WL 369378 at *3 n.8 (10th Cir. Feb. 3, 2010) (declining to apply amended version of Rule 4(a)(6) of Federal Rules of Appellate Procedure because district court applied then-current version of rule and the amended rule would give the plaintiff the "unexpected benefit of more time to file the appeal, which would alter the outcome of the jurisdictional issue to the prejudice of the non-moving party").
Taking into account all of the circumstances of this case, the court finds that application of the amended versions of Rules 50(b), 59(b), and 59(e) to plaintiffs' pending motions would be just and practicable. Thus, the deadline for plaintiffs' to file their motions was 28 days after the entry of judgment. Under the amended version of Rule 6(a), when the time period is stated in days or a longer unit of time, the court must exclude the day of the event that triggers the period and then count every day, including intermediate Saturdays, Sundays, and legal holidays. Fed. R. Civ. P. 6(a). Under these rules, ...