Marlo v. United Parcel Service, Inc. , 453 F. App'x 682 ( 2011 )

FILED
NOT FOR PUBLICATION APR 28 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MICHAEL MARLO, an individual, No. 09-56196
Plaintiff - Appellee, D.C. No. 2:03-cv-04336-DDP-RZ
v.
MEMORANDUM *
UNITED PARCEL SERVICE, INC., a
corporation,
Defendant - Appellant.
MICHAEL MARLO, an individual, No. 09-56206
Plaintiff - Appellant, D.C. No. 2:03-cv-04336-DDP-RZ
v.
UNITED PARCEL SERVICE, INC., a
corporation,
Defendant - Appellee.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
MICHAEL MARLO, an individual, No. 09-56451
Plaintiff - Appellee, D.C. No. 2:03-cv-04336-DDP-RZ
Central District of California,
v. Los Angeles
UNITED PARCEL SERVICE, INC., a
corporation,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Dean D. Pregerson, District Judge, Presiding
Argued and Submitted November 4, 2010
Pasadena, California
Before: RAWLINSON and M. SMITH, Circuit Judges, and JONES,** District
Judge.
Because the parties are familiar with the factual and procedural history of
this case, we do not recount additional facts except as necessary to explain our
decision. We have jurisdiction under 28 U.S.C. § 1291. In a separate opinion
published contemporaneously, we hold that the district court did not err in
decertifying the class. Here, we affirm the district court’s denial of UPS’s motions
**
The Honorable Robert C. Jones, United States District Judge for the
District of Nevada, sitting by designation.
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for judgment as a matter of law (JMOL) and a new trial; grant of Marlo’s motion
for restitution and prejudgment interest; and award of attorneys’ fees to Marlo.
First, we affirm the denial of UPS’s motion for JMOL. “Judgment as a
matter of law is proper when the evidence permits only one reasonable conclusion
and the conclusion is contrary to that reached by the jury.” Ostad v. Or. Health
Sci. Univ., 327 F.3d 878, 881 (9th Cir. 2003). As to the executive exemption,
however, the evidence permits the jury’s conclusion that Marlo’s duties as a hub
supervisor did not “involve the management of the enterprise in which [he was]
employed or of a customarily recognized department of subdivision thereof.” Cal.
Code Regs. tit. 8, § 11090(1)(A)(1)(a). Similarly, the evidence permits a
conclusion that Marlo’s work as a preload supervisor did not require that he
“customarily and regularly exercise discretion and judgment” or be “primarily
engaged in duties which meet the test of the exemption.” Id. § 11090(1)(A)(1)(d),
(e). As to the administrative exemption, the jury could have concluded that
Marlo’s work as a hub supervisor did not require that he “regularly and directly
assist[] an employee employed in a bona fide executive or administrative
capacity”; “perform[] under only general supervision work along specialized or
technical lines requiring special training, experience, or knowledge”; or “execute[]
under only general supervision special assignments and tasks.” Id. §
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11090(1)(A)(2)(c)-(e). Because the evidence supports the jury’s verdict, UPS is
not entitled to JMOL.
We similarly affirm the denial of UPS’s motion for a new trial. The district
court did not abuse its discretion in responding to a jury note by referring the jury
to the court’s previous instructions. See Arizona v. Johnson, 351 F.3d 988, 993-97
(9th Cir. 2003). Nor did it err in denying UPS’s motion to reopen discovery, a
decision that falls within the “wide latitude” afforded district courts in controlling
discovery. United States v. Kitsap Physicians Serv., 314 F.3d 995, 1000 (9th Cir.
2002) (citation and internal quotation marks omitted).
We also affirm the district court’s decision granting Marlo’s motion for
restitution and prejudgment interest. UPS’s sole argument in support of this claim
is that the verdict was not supported by the evidence, an argument we have already
rejected.
Finally, the district court did not err in awarding Marlo attorneys’ fees.
Although the motion was untimely filed and Marlo did not make a formal motion
for an extension of time, the district court treated Marlo’s post-deadline request as
a motion, and UPS’s response indicates that it was on notice that a motion was at
issue. See Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 896 n.5 (1990). The
district court properly considered whether Marlo’s motion was untimely filed
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“because of excusable neglect,” Fed. R. Civ. P. 6(b)(1)(B), evaluating the factors
set forth in Pioneer Investment Services Co. v. Brunswick Associates Limited
Partnership, 507 U.S. 380, 395 (1993). Having properly considered and weighed
those factors, the district court did not abuse its discretion in considering the
motion. See Pincay v. Andrews, 389 F.3d 853, 859 (9th Cir. 2004) (en banc).
Nor did the district court err in calculating attorneys’ fees. The district court
reduced the lodestar to account for Marlo’s unsuccessful individual claim and his
failure to achieve class certification. See Hensley v. Eckerhart, 461 U.S. 424, 436-
37 (1983). Moreover, Marlo succeeded on the majority of his individual claims,
and the district court noted that it decertified the class because “then-counsel had
proffered an approach that was fundamentally flawed in its presentation of
classwide proof,” not because “the case could under no circumstances proceed as a
class action,” and that it had since proceeded as “something of a bellwether’ case
for the numerous individual cases brought by former class members.” Given the
case’s unique history and posture, the district court did not abuse its discretion in
calculating attorneys’ fees.
Each party shall bear its own costs on appeal.
AFFIRMED.
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