Englert v. City of Merced ( 2020 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 CHAD ENGLERT, et al., Case No. 1:18-cv-01239-NONE-SAB 10 Plaintiffs, FINDINGS AND RECOMMENDATIONS RECOMMENDING GRANTING MOTION 11 v. FOR FINAL APPROVAL OF COLLECTIVE ACTION 12 CITY OF MERCED, ORDER REQUIRING PLAINTIFFS TO 13 Defendant. SUBMIT DOCUMENTATION TO SUPPORT REQUEST FOR COSTS 14 (ECF Nos. 38, 41, 42, 43) 15 OBJECTIONS DUE WITHIN FOURTEEN 16 DAYS 17 18 Chad Englert, Richard Ramirez, Matthew Van Hagen, Ryan Paskin, and Casey Wilson, 19 on behalf of themselves and all other similarly situated individuals (collectively “Plaintiffs”) 20 filed this collective action against the City of Merced (“Defendant”) alleging violation of the Fair 21 Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq. Currently before the Court is a joint 22 motion for approval of a settlement agreement. 23 I. 24 BACKGROUND 25 Plaintiffs are or were employed by Defendant with the conditions of their employment 26 governed by a memorandum of understanding (“MOU”) between Defendant and the 27 International Association of Firefighters, Local 1479. (Compl. ¶¶ 20, 21, ECF No. 1.) Plaintiffs’ salaries were paid pursuant to the MOU. (Id. at ¶ 22.) Defendant did not allow Plaintiffs idle 1 holiday hours but they were required to work their regular assigned shift regardless of whether it 2 was a holiday. (Id. at ¶ 26.) Plaintiffs are paid compensation in lieu of observing holidays 3 (“holiday-in-lieu”) and are not allowed to use this holiday in lieu compensation as leave. (Id.) 4 Defendant excluded this holiday-in-lieu pay from the “regular rate” used to calculate overtime 5 for Plaintiffs. (Id. at 27.) Plaintiffs take the position that Defendant is miscalculating their 6 overtime rate by not including the holiday-in-lieu pay in the overtime rate calculation. Plaintiffs 7 contend that by excluding the holiday-in-lieu pay from their “regular rate” of pay, Defendant is 8 violating the Fair Labor Standards Act (“FLSA”) by failing to pay for all hours of overtime 9 worked. 10 Plaintiffs filed this action alleging failure to pay overtime compensation on September 11 12, 2018. (ECF No. 1.) On October 9, 2018, Defendant filed a motion to dismiss that was 12 denied on December 21, 2018. (ECF Nos. 4, 18.) Plaintiffs were ordered to file an amended 13 complaint setting forth the additional payments they contend were improperly excluded from the 14 regular rate or a notice that they are intending to proceed based on their allegations regarding 15 holiday pay within thirty days. (ECF No. 18.) On January 18, 2019, Plaintiffs filed a notice that 16 they intend to proceed based on their allegations regarding holiday pay. (ECF No. 19.) On 17 February 7, 2019, Defendant filed an answer to the complaint. (ECF No. 22.) 18 On February 13, 2019, the scheduling order issued in this matter. (ECF No. 24.) The 19 parties stipulation to amend the scheduling order was granted on November 11, 2019. (ECF 20 Nos. 29, 30.) On January 15, 2020, Plaintiffs filed a motion to compel which was withdrawn on 21 February 6, 2020, and a notice of settlement was filed. (ECF Nos. 31, 34, 35.) All pending dates 22 and matters were vacated and the parties were ordered to file a motion for approval of the 23 settlement on or before April 6, 2020. (ECF No. 36.) A joint motion to approve the settlement 24 agreement was filed on April 6, 2020. (ECF No. 38.) During the pendency of this action, 25 additional plaintiffs have filed a consent to join in the action. 26 On April 24, 2020, an order issued requiring supplemental briefing to be filed within 27 seven days. (ECF No. 40.) On May 1, 2020, Plaintiffs filed a supplemental brief in support of 1 collective action, and a notice of filing of amended signature pages. (ECF Nos. 41, 42, 43.) 2 II. 3 TERMS OF THE SETTLMENT AGREEMENT 4 Defendants shall pay a total of $350,000.00 to settle the action. (Settlement Agreement 5 and Release of Claims (hereafter “Settlement Agreement”) ¶ 1.A., ECF No. 38-5.) This amount 6 includes damages for the plaintiffs, attorney fees, and the costs of the action. (Id.) A total of 7 $236,503.85 is allocated to pay damages to the plaintiffs. (Id. at ¶ 1.B.) Attorney fees and costs 8 will be paid in the amount of $113,496.15 for services rendered in the action. (Id. at ¶ 1.C.) 9 Each collective action member agrees to dismiss with prejudice his or her claims in the 10 action. (Id. at ¶ 2.) This agreement applies to any complaint, claim, grievance or charge for 11 FLSA overtime compensation related to the action filed with any state or federal court, with any 12 administrative body, agency, board, commission, or other entity. (Id.) Plaintiffs are releasing all 13 claims, known or unknown, arising out of the matters raised in this action. (Id. at ¶ 3.) This 14 includes all claims made in this lawsuit for unpaid overtime, liquidated damages and attorney 15 fees that have occurred up to and including the effective date of the settlement agreement. (Id.) 16 Each of the fifty-seven plaintiffs that have joined the action has signed an individual 17 signature page for the settlement agreement and release.1 (See ECF No. 38-5 at 7-63.) 18 III. 19 LEGAL STANDARD 20 The FLSA establishes federal minimum-wage, maximum-hour, and overtime guarantees 21 that cannot be modified by contract or otherwise waived. Genesis Healthcare Corp. v. 22 Symczyk, 569 U.S. 66, 69 (2013); Barrentine v. Arkansas-Best Freight Sys., Inc., 450 U.S. 728, 23 740 (1981). The FLSA provides the right of an employee to represent similarly situated 24 employees in a suit against their employer for the failure to pay minimum wage or overtime 25 1 The joint motion states that the settlement agreement is signed by all 53 plaintiffs. However, the Court finds that 57 individuals have signed the agreement and Exhibit A which includes the calculation of damages lists 57 26 individuals. 27 In the joint motion, several of the individual release forms stated that attorney fees in the amount of $116,965.39. On May 1, 2020, amended signature pages were filed stating that the original forms filed were the draft signature 1 compensation. 29 U.S.C. § 216(b). To participate in the collective action an employee is 2 required to give his consent in writing to become a party. 29 U.S.C. § 216(b); see Hoffmann-La 3 Roche Inc. v. Sperling, 493 U.S. 165, 170 (1989) (rights in a collective action under the FLSA 4 are dependent on the employee receiving accurate and timely notice about the pendency of the 5 collective action, so that the employee can make informed decisions about whether to 6 participate). “If an employee does not file a written consent, then that employee is not bound by 7 the outcome of the collective action.” Edwards v. City of Long Beach, 467 F.Supp.2d 986, 989 8 (C.D. Cal. 2006). 9 Since an employee cannot waive claims under the FLSA, an FLSA claim “may not be 10 settled without supervision of either the Secretary of Labor or a district court.” Nen Thio v. Genji, 11 LLC, 14 F.Supp.3d 1324, 1333 (N.D. Cal. 2014); Selk v. Pioneers Mem’l Healthcare Dist., 159 12 F.Supp.3d 1164, 1172 (S.D. Cal. 2016); Kerzich v. Cty. of Tuolumne, 335 F.Supp.3d 1179, 1183 13 (E.D. Cal. 2018). The Ninth Circuit has not established criteria for district courts to use in 14 determining whether an FLSA collective action settlement should be approved. Kerzich, 335 15 F.Supp.3d at 1183. District courts in this circuit have used the Eleventh Circuit’s approach which 16 considers whether the settlement is a fair and reasonable resolution of a bona fide dispute. Id.; Nen 17 Thio, 14 F.Supp.3d at 1333; Selk, 159 F.Supp.3d at 1172. 18 After determining that a bona fide dispute exists, the court must determine whether the 19 settlement is fair and reasonable. Nen Thio, 14 F.Supp.3d at 1340; Selk, 159 F.Supp.3d at 1172. 20 “In making this determination, many courts begin with the well-established criteria for assessing 21 whether a class action settlement is ‘fair, reasonable, adequate’ under Fed. R. Civ. P. 23(e),” 22 recognizing that not all the factors apply in an FLSA settlement Selk, 159 F.Supp.3d at 1172; 23 Kerzich, 335 F.Supp.3d at 1184; Smith v. Kaiser Found. Hosps., No. 3:18-CV-00780-KSC, 2019 24 WL 5864170, at *10 (S.D. Cal. Nov. 7, 2019). In this circuit, courts “have balanced factors such 25 as: the strength of the plaintiffs’ case; the risk, expense, complexity, and likely duration of further 26 litigation; the risk of maintaining class action status throughout the trial; the amount offered in 27 settlement; the extent of discovery completed and the stage of the proceedings; the experience and 1 members to the proposed settlement. Kerzich, 335 F.Supp.3d at 1184 (quoting Khanna v. Intercon 2 Sec. Sys., Inc., No. 2:09-CV-2214 KJM EFB, 2014 WL 1379861, at *6 (E.D. Cal. Apr. 8, 2014), 3 order corrected, 2015 WL 925707 (E.D. Cal. Mar. 3, 2015)). If the settlement reflects a reasonable 4 compromise over a bona fide dispute, the district court may approve the settlement in order to 5 promote the policy of encouraging settlement of litigation. Nen Thio, 14 F.Supp.3d at 1340; 6 Kerzich, 335 F.Supp.3d at 1185. 7 IV. 8 DISCUSSION 9 A. Whether Collective Action Should be Certified 10 The parties have filed a stipulation for conditional certification of the FLSA collective 11 action.2 Determining whether a collective action is appropriate is within the discretion of the 12 district court. Leuthold v. Destination Am., Inc., 224 F.R.D. 462, 466 (N.D. Cal. 2004). The 13 Ninth Circuit has held that “plaintiffs are similarly situated, and may proceed in a collective, to 14 the extent they share a similar issue of law or fact material to the disposition of their FLSA 15 claims.” Campbell v. City of Los Angeles, 903 F.3d 1090, 1117 (9th Cir. 2018). While it is 16 unclear what standard should be used to determine if the employees are similarly situated under 17 the FLSA, given that the employee consents to participating in the FLSA actions courts do find 18 that “the requisite showing of similarity of claims under the FLSA is considerably less stringent 19 than the requisite showing under Rule 23 of the Federal Rules of Civil Procedure.” Hill v. R+L 20 Carriers, Inc., 690 F.Supp.2d 1001, 1009 (N.D. Cal. 2010); accord Millan v. Cascade Water 21 Servs., Inc., 310 F.R.D. 593, 607 (E.D. Cal. 2015). The plaintiffs can proceed as a collective 22 action where they allege a single, FLSA-violating policy and argue a common theory of 23 defendants’ statutory violations. Senne v. Kansas City Royals Baseball Corp., 934 F.3d 918, 24 949 (9th Cir. 2019). 25 26 2 Plaintiffs assert in their supplemental memorandum that Campbell made clear that they are not required to certify a collective action. However, Campbell does not stand for the proposition that a collective action can proceed without 27 a finding that the members are similarly situated which typically occurs when the collective is certified. The parties’ memorandum in support of approval of the settlement did not specifically address whether the employees were 1 Federally courts generally use a two-step approach to determine whether to allow a 2 collective action to proceed. Tijero v. Aaron Bros., Inc., 301 F.R.D. 314, 323 (N.D. Cal. 2013). 3 Initially, the court determines whether the potential class members should receive notice of the 4 action, and plaintiffs can satisfy their burden to show that they are “similarly situated” by 5 making substantial allegations, supported by declarations or discovery, that “the putative class 6 members were together the victims of a single decision, policy, or plan.” Nen Thio, 14 7 F.Supp.3d at 1340 (citations omitted). The determination is based on a fairly lenient standard, 8 and typically results in conditional certification. Id. 9 The second certification decision is usually made at the close of discovery when the 10 defendant brings a motion to decertify the class. Nen Thio, 14 F.Supp.3d at 1341. In Campbell, 11 the Ninth Circuit declined to adopt the two approaches used by courts to decertify a collective 12 action, finding the district court may be able to decertify where conditions make the collective 13 mechanism truly infeasible, but it cannot reject the party plaintiffs’ choice to proceed 14 collectively based on its perception of likely inconvenience. Campbell, 903 F.3d at 1117. The 15 Court did not identify the method that should be used to decertify a collective action stating that 16 it did “not intend to preclude the district courts from employing, if they wish, a version of the ad 17 hoc test modified so as to account for the flaws we have identified. Nor do we intend to 18 preclude the district courts from employing any other, differently titled or structured test that 19 otherwise gives full effect to our understanding of section 216(b).” Id. at 1117 n.21. Plaintiffs 20 have the burden at all stages of litigation of proving they meet the “similarly situated” 21 requirement. Vasquez v. Coast Valley Roofing, Inc., 670 F.Supp.2d 1114, 1123–24 (E.D. Cal. 22 2009). Here, since the parties are stipulating to conditionally certify the collective action, the 23 Court considers certification using the fairly lenient standard for the first step. Nen Thio, 14 24 F.Supp.3d at 1340. 25 In this instance, all members of the collective action are either current or former 26 firefighters employed by Defendant. Plaintiffs allege that they were all subjected to the same 27 policy under the MOU which deprived them of overtime based on a policy that failed to include 1 the FLSA is a department-wide policy to which all plaintiffs were subjected which supports 2 finding that the employees are similarly situated under the FLSA. Campbell, 903 F.3d at 1120. 3 The Court finds that the plaintiffs are similarly situated under the FLSA to proceed as a 4 collective action. 5 B. Whether a Bona Fide Dispute Exists 6 The parties argue that settlement of this action resolves several bona fide disputes 7 between the parties regarding the existence and extent of Defendant’s liability: treatment of 8 holiday-in-lieu pay which has not been addressed by the Ninth Circuit and the methodology to be 9 used to calculate the “regular rate” of pay, as well as whether Plaintiffs are entitled to liquidated 10 damages and the limitations period that would apply to Plaintiffs’ claims. 11 A bona fide dispute exists where there are legitimate questions about the existence and 12 extent of a defendant’s liability and there is some doubt that the plaintiffs would succeed on the 13 merits of their FLSA claims in the litigation. Selk, 159 F.Supp.3d at 1172. “If there is no 14 question that the FLSA entitles plaintiffs to the compensation they seek, then a court will not 15 approve a settlement because to do so would allow the employer to avoid the full cost of 16 complying with the statute.” Id. 17 The Court finds that a bona fide dispute exists between the parties over Defendant’s 18 potential liability under the FLSA. At the time that this lawsuit was filed, the parties disagreed 19 regarding whether it was required for Defendant to include holiday-in-lieu pay in the regular rate 20 for the purposes of calculating overtime under the FLSA. 21 The treatment of holiday-in-lieu pay under the FLSA has not been addressed by the Ninth 22 Circuit. The issue of whether “in-lieu” benefits must be included in the “regular rate” is 23 currently being, or has recently been, litigated in numerous California District courts. See 24 Aboudara, et al. v. City of Santa Rosa, Case No. 4:17-cv-01661-HSG (N.D. Cal.) (settlement 25 agreement approved May 10, 2019); Lewis, et al. v. County of Colusa, Case No. 2:16-cv-01745- 26 VC (E.D. Cal.) (closed July 10, 2019 due to settlement); Goddard, et al. v. City of Cathedral 27 City, Case No. 5:19-cv-00482-PSG-SHK (C.D. Cal.) (filed March 18, 2019); Burris v. City of 1 settlement agreement June 28, 2019); Valentine v. Sacramento Metro. Fire Dist., No. 2:17-CV- 2 00827-KJM-EFB, 2019 WL 651654, at *3 (E.D. Cal. Feb. 15, 2019) (granting motion for 3 approval of settlement agreement). 4 While some courts have held that holiday-in-lieu pay must be included in the regular rate 5 of pay, the Department of Labor (“DOL”) recently issued a final rule addressing the regular rate 6 under the FLSA. 7 Current Department regulations support excluding holiday-in-lieu pay from the regular rate. Under 29 CFR 778.219, where an employee forgoes his or her 8 holiday and works, and is paid for his or her normal work plus an additional amount for the holiday, the additional amount paid for working the holiday is not 9 included in the regular rate. The Department applied this principle in a 2006 opinion letter concluding that holiday-in-lieu pay could be excluded from the 10 regular rate where the employer provided nine “recognized” holidays and two “floating” holidays paid in a lump sum, and on occasion when employees forgo a 11 holiday and work they received both pay for the hours worked and holiday pay. The Department notes that it does not matter whether the employee voluntarily 12 forgoes the holiday to work or is required to work the holiday by the schedule set for the employee. Nothing in this regulation makes the excludability of such 13 payments dependent on the employee having the option to work or not work on the holiday. All that is required for the holiday-in-lieu pay to be excludable is that 14 the employee is paid an amount for the holiday, in addition to being paid for his hours worked on the holiday. 15 Regular Rate Under the Fair Labor Standards Act, 84 FR 68736-01 (Dec. 2019). 16 To clarify the regulation, the following example was added to 29 C.F.R. § 778.219(a) 17 involving employees who work a set schedule irrespective of holidays. 18 An employee is scheduled to work a set schedule of two 24–hour shifts on duty, 19 followed by four 24–hour shifts off duty. This cycle repeats every six days. The employer recognizes ten holidays per year and provides employees with holiday 20 pay for these days at amounts approximately equivalent to their normal earnings for a similar period of working time. Due to the cycle of the schedule, employees 21 may be on duty during some recognized holidays and off duty during others, and due to the nature of their work, employees may be required to forgo a holiday if 22 an emergency arises. In recognition of this fact, the employer provides the employees holiday pay regardless of whether the employee works on the holiday. 23 If the employee works on the holiday, the employee will receive his or her regular salary in addition to the holiday pay. In these circumstances, the sum allocable to 24 the holiday pay may be excluded from the regular rate. 25 29 C.F.R. § 778.219(a)(4). 26 Plaintiffs argue that in denying Defendant’s motion to dismiss, Judge O’Neill made the 27 legal determination that holiday-in-lieu pay may not be excluded under 29 U.S.C. § 270(e)(2) 1 Judge O’Neill’s ruling compensation only needs to be included in the regular rate when an 2 employee actually works the holiday. Given this clarification of the regulations by the DOL, the 3 Court finds that there is a bona fide dispute as to whether Defendant was required to provide 4 holiday-in-lieu pay in the regular rate and whether Plaintiffs could prevail in this action. 5 Additionally, the parties dispute the method to calculate damages if Plaintiffs were to 6 prevail in this action. Plaintiffs contend that damages should be calculated using the method 7 prescribed by 29 C.F.R. § 778.113 while Defendant contends that the correct method is set forth 8 in 29 C.F.R. § 778.110(b). 9 Section 778.113 applies to salaried employees in general. For employees paid other than 10 by workweek, subsection (b) provides: 11 A monthly salary is subject to translation to its equivalent weekly wage by multiplying by 12 (the number of months) and dividing by 52 (the number of 12 weeks). A semimonthly salary is translated into its equivalent weekly wage by multiplying by 24 and dividing by 52. . . . The parties may provide that the regular 13 rates shall be determined by dividing the monthly salary by the number of working days in the month and then by the number of hours of the normal or 14 regular workday. 15 29 C.F.R. § 778.113(b). Once a weekly rate is arrived at, the “regular hourly rate of pay, on 16 which time and a half must be paid, is computed by dividing the salary by the number of hours 17 which the salary is intended to compensate.” 29 C.F.R. § 778.113(a). 18 Under section 778.110(b) which applies to hourly rate employees, the bonus is added to 19 the period for which the compensation applies and the total amount of compensation is divided 20 by the number of hours worked to arrive at the hourly rate. 29 C.F.R. § 778.110(b). 21 Plaintiffs state that if Defendant’s method prevails their claims would be reduced by over 22 sixty-six percent. A bona fide dispute exists between the parties as to the proper method to 23 calculate damages in this action. 24 The parties also dispute whether Plaintiffs would be entitled to liquidated damages. 25 Under 29 U.S.C. § 216(b), an employer who violates minimum wage or overtime provisions of 26 the FLSA can be liable for an equal amount of liquidated damages in addition to the unpaid 27 compensation due. Under 29 U.S.C. § 260, an employer has a defense to liquidated damages 1 omission was not a violation of the FLSA. “[T]he employer has the burden of establishing 2 subjective and objective good faith in its violation of the FLSA.” Local 246 Util. Workers Union 3 of Am. v. S. California Edison Co., 83 F.3d 292, 297 (9th Cir. 1996). 4 Plaintiffs contend that Defendant cannot establish that it acted in good faith based on the 5 numerous court decisions addressing the exclusion of holiday-in-lieu pay. Defendant argues that 6 the prior rulings are distinguishable and the lack of Ninth Circuit guidance on the exclusion of 7 holiday-in-lieu pay renders recovery of liquidated damages uncertain. Further, Defendant asserts 8 that its position was consistent with the 2006 DOL opinion letter finding that holiday in lieu pay 9 was not to be included in the regular rate of pay. A bona fide dispute exists as to whether 10 Plaintiffs are entitled to liquidated damages should they prevail in this action. 11 Finally, the parties dispute whether any alleged violation would be willful. The 12 limitations period for any cause of action to recover unpaid minimum wages, unpaid overtime 13 compensation, or liquidated damages under the FLSA is two years after the cause of action 14 accrued. 29 U.S.C. § 255(a). However, where the violation arises out of a willful violation of 15 the FLSA, the action may be commenced within three years after the cause of action accrued. 29 16 U.S.C.A. § 255(a). If it was found that the conduct of Defendant was not willful then Plaintiffs 17 would be precluded from recovering damages beyond two years prior to filing this action. A 18 bona fide dispute exists over the limitations period that applies in this action. 19 The Court finds that a bona fide dispute exists as to whether there was a violation of the 20 FLSA, the method for calculating damages, whether liquidated damages could be recovered in 21 this action, and the appropriate statute of limitations. 22 C. Whether Settlement is Fair and Reasonable 23 Having found that a bona fide dispute exists, the Court considers whether the settlement 24 is fair and reasonable. The parties agree that the factors identified in Selk should be used to 25 determine whether a settlement is fair and reasonable. In Selk, the court considered “(1) the 26 plaintiff’s range of possible recovery; (2) the stage of proceedings and amount of discovery 27 completed; (3) the seriousness of the litigation risks faced by the parties; (4) the scope of any 1 opinion of participating plaintiffs; and (6) the possibility of fraud or collusion.” Selk, 159 2 F.Supp.3d at 1173. “In considering these factors under a totality of the circumstances approach, 3 a district court must ultimately be satisfied that the settlement’s overall effect is to vindicate, 4 rather than frustrate, the purposes of the FLSA.” Id. 5 1. Possible Range of Recovery 6 “An important consideration in judging the reasonableness of a settlement is the strength 7 of the plaintiffs’ case on the merits balanced against the amount offered in the settlement.” Nat’l 8 Rural Telecommunications Coop. v. DIRECTV, Inc. (“DIRECTV”), 221 F.R.D. 523, 526 (C.D. 9 Cal. 2004) (quoting 5 Moore Federal Practice, § 23.85[2][b] (Matthew Bender 3d. ed.)). “When 10 evaluating the strength of a case, the Court should ‘evaluate objectively the strengths and 11 weaknesses inherent in the litigation and the impact of those considerations on the parties’ 12 decisions to reach these agreements.’ ” Millan, 310 F.R.D. at 610 (quoting Adoma v. Univ. of 13 Phoenix, Inc., 913 F.Supp.2d 964, 975 (E.D. Cal. 2012)). 14 “The amount offered in settlement is generally considered to be the most important 15 considerations of any class settlement.” Millan, 310 F.R.D. at 611. The range of possible 16 approval focuses on “substantive fairness and adequacy,” and “courts primarily consider 17 plaintiffs’ expected recovery balanced against the value of the settlement offer.” Vasquez, 670 18 F.Supp.2d at 1125 (quoting In re Tableware Antitrust Litig., 484 F.Supp.2d 1078, 1080 (N.D. 19 Cal. 2007)). 20 In the joint motion for approval of the settlement, Plaintiffs assert that the amount offered 21 to settle this action is near the maximum range for Plaintiffs’ recovery at trial. Plaintiffs did not 22 provide the amount of damages that could be recovered using their method of calculating 23 damages. For this reason, the Court required Plaintiffs to provide supplemental briefing on the 24 damages that could be recovered using the alternate method of calculating damages. 25 In their supplemental briefing, Plaintiffs state that in order to efficiently prosecute and 26 settle this action, damages estimates were prepared based on the plaintiffs’ payroll data because 27 precise calculations of backpay are difficult, costly and overly time consuming to prepare. 1 overstates the maximum damages available because it counts paid time off as hours worked for 2 all unscheduled overtime in 2018; provides 6 hours of scheduled overtime each week regardless 3 of whether leave was taken in the twenty-four day work cycle, and does not apply any statutory 4 offsets or credits that Defendant could have asserted. 5 Defendant calculated that damages in this action would be roughly $68,060.00, including 6 liquidated damages. (Youril Decl. ¶ 10.) This amount was arrived at based on the actual hours 7 worked and a .5 premium. (Id.) The rate used was the 2018-2019 fiscal year compensation 8 which was a 2.5 percent increase over the previous two years. (Id.) The calculation also 9 included hours worked on mutual assignments. (Id.) Defendants believe this is close to or above 10 the maximum range of recovery. (Id.) 11 The district court is to evaluate the potential range of recovery to ensure that the 12 settlement amount agreed to bears some reasonable relationship to the true settlement value of 13 the claims. Selk, 159 F.Supp.3d at 1174; see also Millan, 310 F.R.D. at 611 (“To determine 14 whether that settlement amount is reasonable, the Court must consider the amount obtained in 15 recovery against the estimated value of the class claims if successfully litigated.”). “[I]n 16 comparing the amount proposed in the settlement with the amount that plaintiffs could have 17 obtained at trial, the court must be satisfied that the amount left on the settlement table is fair and 18 reasonable under the circumstances presented.” Selk, 159 F.Supp.3d at 1174. “It is well-settled 19 law that a cash settlement amounting to only a fraction of the potential recovery does not per se 20 render the settlement inadequate or unfair.” In re Mego Fin. Corp. Sec. Litig., 213 F.3d 454, 459 21 (9th Cir. 2000), as amended (June 19, 2000) (quoting Officers for Justice v. Civil Serv. Comm’n, 22 688 F.2d 615, 628 (9th Cir. 1982)). “Even a fractional recovery of the possible maximum 23 recovery amount may be fair and adequate in light of the uncertainties of trial and difficulties in 24 proving the case.” Millan, 310 F.R.D. at 611. 25 Defendant has offered $350,000 to settle this action, which is seventy-five percent of 26 Plaintiffs’ estimated damages. However, Plaintiffs assert that their estimated damages exceed 27 the actual amount that they could be expected to receive if they were to prevail at trial. Plaintiff 1 matter proceed to trial. 2 Each plaintiff will receive damages based upon the number of statutory overtime hours 3 worked over the three years prior to the individual plaintiff’s opt in date and the amount of 4 holiday-in-lieu pay earned. Each plaintiff was provided with the schedule of payments showing 5 the damages that he or she would receive and accepted the settlement and release. 6 Given the uncertainties in the method of calculating damages, that the amount offered in 7 settlement is approximately seventy-five percent of what Plaintiffs assert is beyond what could 8 actually be recovered in this action, and that each plaintiff has approved his individual 9 settlement, the Court finds that the amount offered to settle this action is fair and reasonable. 10 The amount offered in settlement weighs in favor of approving the settlement agreement. 11 2. Stage of the Proceedings and Amount of Discovery Completed 12 The Court next considers the stage of the proceedings and the amount of discovery that 13 has been completed. Where evidence is presented that a considerable amount of discovery has 14 been conducted it weighs in favor of settlement “because it suggests that the parties arrived at a 15 compromise based on a full understanding of the legal and factual issues surrounding the case.” 16 Millan, 310 F.R.D. at 610 (quoting Adoma, 913 F.Supp.2d at 977). A settlement that occurs in 17 an advanced stage of the proceedings indicates that the parties have carefully investigated the 18 claims before resolving the action. Ontiveros v. Zamora, 303 F.R.D. 356, 370 (E.D. Cal. 2014). 19 In considering the fairness of the settlement, the court’s focus is on whether “the parties carefully 20 investigated the claims before reaching a resolution.” Ontiveros, 303 F.R.D. at 371. 21 Plaintiffs contend that they have engaged in sufficient formal and informal discovery to 22 form an adequate determination of the merits of the action prior to reaching the proposed 23 settlement. The scheduling order setting the discovery deadlines was filed on February 13, 2019. 24 (ECF No. 24.) The discovery deadlines were extended on August 2, 2019 and November 11, 25 2019. (ECF Nos. 28, 30.) Defendant produced records related to the hours worked for each 26 Plaintiff and the compensation paid as well as policies, the MOU and other legal authority 27 governing compensation. The matter settled just prior to the close of the nonexpert discovery 1 Here, Plaintiffs contend that sufficient discovery was conducted to obtain a full 2 understanding of the damages that were at issue in this action prior to engaging in mediation. 3 Further, the parties fully explored that legal issues that are raised by the plaintiff’s claims in this 4 action. The Court finds that the stage of the proceedings and the amount of discovery that was 5 conducted weighs in favor of approving the settlement agreement. 6 3. The Seriousness of the Litigation Risks Faced by the Parties 7 Plaintiffs argue that the settlement agreement provides almost complete recovery and 8 continued litigation would harm them by jeopardizing the relief that has been secured on their 9 behalf. The parties dispute whether Defendant would be liable for the failure to include holiday- 10 in-lieu pay in the regular rate. If Defendant was to prevail on the issue of liability, Plaintiffs 11 would not obtain any recovery in this action. Further, a jury could find that any violation was 12 not willful or that the Defendant acted in good faith which would reduce any damages awarded. 13 As discussed above, the DOL’s December 2019 final opinion and the amendment of the 14 statutory language to include an example stating that holiday in lieu pay is not to be included in 15 the regular rate creates a doubt as to whether Plaintiff’s could prevail in this matter. In light of 16 the risks and costs associated with continuing to litigate this matter, settlement of this action with 17 an immediate award to the collective members is preferable to continuing to litigate. 18 Bellinghausen v. Tractor Supply Co., 306 F.R.D. 245, 255 (N.D. Cal. 2015). This factor weighs 19 in favor of finding the settlement fair and reasonable. 20 4. Scope of Release Provision in the Settlement Agreement 21 The court reviews the scope of any release provision in an FLSA settlement to ensure that 22 the collective action members are not pressured to forfeit claims, or waive rights, that are 23 unrelated to the litigation. Selk, 159 F.Supp.3d at 1178. “A FLSA release should not go beyond 24 the specific FLSA claims at issue in the lawsuit itself.” Seguin v. Cty. of Tulare, No. 1:16-CV- 25 01262-DAD-SAB, 2018 WL 1919823, at *4 (E.D. Cal. Apr. 24, 2018) (quoting Slezak v. City of 26 Palo Alto, No. 16-CV-03224-LHK, 2017 WL 2688224, at *4 (N.D. Cal. June 22, 2017)). “The 27 concern is that an expansive release of claims would effectively allow employers to use 1 concessions from employees.” Selk, 159 F.Supp.3d at 1178 2 Here, Plaintiffs are releasing all claims, known or unknown, arising out of the matters 3 raised in this action. (Settlement Agreement at ¶ 3.) This includes all FLSA claims made in this 4 lawsuit for unpaid overtime, liquidated damages and attorney fees that have occurred up to and 5 including the effective date of the settlement agreement. (Id.) The parties agree that the release 6 covers only those FLSA violations that have occurred up to and including the effective date of 7 the settlement agreement. 8 Here, the settlement agreement releases all FLSA claims that have been or could have 9 been raised in this lawsuit up to the effective date of the settlement. The parties have agreed that 10 only those claims that arise from or are attributable to Plaintiffs’ FLSA claims in this action are 11 being released. The Court finds that the scope of the released claims weighs in favor of finding 12 the settlement to be fair and reasonable. 13 5. Experience and Views of Counsel and Opinion of Participating Plaintiffs 14 The court is to accord great weight to the recommendation of counsel because they are 15 aware of the facts of the litigation and in a better position than the court to produce a settlement 16 that fairly reflects the parties’ expected outcome in the litigation. DIRECTV, 221 F.R.D. at 528. 17 Here, counsel for both the parties are experienced in litigating wage and hour claims and 18 agree that the terms of the settlement agreement are fair and reasonable. Plaintiffs’ counsel 19 states that the settlement amount in within the maximum range that Plaintiffs could expect to 20 recover were they to proceed to trial. Plaintiffs’ counsel has over nineteen years of experience in 21 litigating wage and hour actions, including FLSA actions. (Mastagni Decl. ¶ 2, ECF No. 38-2.) 22 Given counsel’s experience in this field, his assertion that the settlement is fair and reasonable 23 supports final approval of the settlement. Bellinghausen, 306 F.R.D. at 257. Additionally, each 24 plaintiff has been provided with a copy of the settlement agreement, had the opportunity to 25 review it, and voluntarily agreed to the terms of the agreement. 26 This factor weighs in favor of finding the settlement agreement to be fair and reasonable. 27 6. Risk of Collusion 1 there has been no collusion or fraud. In evaluating the settlement, the court must ensure that “the 2 agreement is not the product of fraud or overreaching by, or collusion between, the negotiating 3 parties.” Monterrubio v. Best Buy Stores, L.P., 291 F.R.D. 443, 453 (E.D. Cal. 2013) (quoting 4 Officers for Justice, 688 F.2d at 625. “[I]t is appropriate for the court to consider the procedure 5 by which the parties arrived at their settlement to determine whether the settlement is truly the 6 product of arm’s length bargaining, rather than the product of collusion or fraud.” Millan, 310 7 F.R.D. at 613. 8 The parties engaged in a full day mediation with a professional mediator experienced in 9 FLSA collective action disputes. (Youril Decl. ¶ 5, ECF No 38-1; Mastagni Decl. ¶¶ 7-9.) 10 While the matter did not settle that day, it did settle the following day with the assistance of the 11 mediator. (Youril Decl. ¶ 5; Mastagni Decl. ¶ 9.) The fact that the parties participated in 12 mediation prior to agreeing to a settlement in this action “tends to support the conclusion that the 13 settlement process was not collusive.” Millan, 310 F.R.D. at 613 (quoting Palacios v. Penny 14 Newman Grain, Inc., 2015 WL 4078135 (E.D. Cal. July 6, 2015)). 15 There are no indications that the settlement was the result of collusion or fraud and the 16 Court finds that the settlement was reached by arm’s length bargaining. This factor weighs in 17 favor of finding the settlement to be fair and reasonable. 18 7. Consideration of Selk Factors Weigh in Favor of Settlement 19 Generally, approval of a settlement that is not clearly inadequate is “preferable to lengthy 20 and expensive litigation with uncertain results.” DIRECTV, 221 F.R.D. at 526, Millan, 310 21 F.R.D. at 611. Here, all the factors weigh in favor of finding the settlement to be fair and 22 reasonable. The Court is satisfied that the settlement’s overall effect is to vindicate the purposes 23 of the FLSA and recommends that the settlement be found to be a fair and reasonable resolution 24 of a bona fide dispute. 25 D. Attorney Fees 26 The Court must also approve the award of attorney fees in an FLSA action. The parties 27 have agreed for Plaintiffs’ counsel to receive $113,496.15 in attorney fees and costs. This 1 slightly over 31 percent of the settlement fund. The FLSA provides for an award of attorney fees 2 in a collective action. 29 U.S.C. § 216(b) (“The court in such action shall, in addition to any 3 judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney’s fee to be paid by the 4 defendant, and costs of the action.”). Since the statute states that the court “shall” award a 5 reasonable attorney’s fee, “[t]he award of an attorney’s fee is mandatory, even though the 6 amount of the award is within the discretion of the court.” Gary v. Carbon Cycle Arizona LLC, 7 398 F.Supp.3d 468, 485 (D. Ariz. 2019) (quoting Houser v. Matson, 447 F.2d 860, 863 (9th Cir. 8 1971)). 9 “In ‘common-fund’ cases where the settlement or award creates a large fund for 10 distribution to the class, the district court has discretion to use either a percentage or ‘lodestar 11 method.’ ” Hanlon v. Chrysler Corp., 150 F.3d 1011, 1029 (9th Cir. 1998). The “lodestar” 12 method is typically used where the benefit received by the class is primarily injunctive in nature, 13 and therefore, monetary benefit is not easily calculated. In re Bluetooth Headset Prod. Liab. 14 Litig. (“In re Bluetooth”), 654 F.3d 935, 941 (9th Cir. 2011). 15 1. Common Fund 16 Since the benefit to the class is easily calculated in a common fund case, courts may 17 award a percentage of the common fund rather than engaging in a “lodestar” analysis to 18 determine the reasonableness of the fee request. In re Bluetooth, 654 F.3d at 942. In the Ninth 19 Circuit, courts typically calculate twenty-five percent of the common fund as the “benchmark” 20 for a reasonable fee award providing adequate explanation in the record for any special 21 circumstances that justify departure. Id. The usual range for common fund attorney fees are 22 between twenty to thirty percent. Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1047 (9th Cir. 23 2002). While the benchmark figure can adjust upward or downward to fit the individual 24 circumstances of a case, the deviation must be accompanied by a reasonable explanation of why 25 the benchmark is unreasonable under the circumstances. Paul, Johnson, Alston & Hunt v. 26 Graulty, 886 F.2d 268, 273 (9th Cir. 1989). 27 Here, the parties agreed to pay attorney fees in the amount of $109,547.98 in the 1 settlement agreement which is just over thirty-one percent of the common fund.3 Other courts 2 have approved awards in FLSA and class action settlements seeking a similar percentage of the 3 common fund. See Gutierrez-Bejar v. SOS Int’l, LLC, No. LA-CV-1609000-JAK-JEM X, 2019 4 WL 5683901, at *10 (C.D. Cal. Nov. 1, 2019) (approving 29.33 percent of common fund); 5 Milburn v. PetSmart, Inc., No. 1:18-CV-00535-DAD-SKO, 2019 WL 1746056, at *11 (E.D. Cal. 6 Apr. 18, 2019) (approving 33.3 percent at preliminary approval); Beidleman v. City of Modesto, 7 No. 1:16-CV-01100-DAD-SKO, 2018 WL 1305713, at *6 (E.D. Cal. Mar. 13, 2018) (approving 8 30 percent of common fund where represents negative multiplier). 9 2. Lodestar Cross Check 10 When applying the percentage of the common fund method in calculating attorney fees, 11 courts use the “lodestar” method as a crosscheck to determine the reasonableness of the fee 12 request. See Vizcaino, 290 F.3d at 1050. “This amount may be increased or decreased by a 13 multiplier that reflects any factors not subsumed within the calculation, such as ‘the quality of 14 representation, the benefit obtained for the class, the complexity and novelty of the issues 15 presented, and the risk of nonpayment.’ ” Adoma, 913 F.Supp.2d at 981 (quoting In re 16 Bluetooth, 654 F.3d at 942). 17 The “lodestar” approach calculates attorney fees by multiplying the number of hours 18 reasonably expended by a reasonable hourly rate. Gonzalez v. City of Maywood, 729 F.3d 1196, 19 1202 (9th Cir. 2013); Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 978 (9th Cir. 2008). 20 Generally, the Court would conduct a more cursory review of the attorney fee request in 21 addressing the settlement of a class action. However, since Plaintiffs request is well above the 22 Ninth Circuit benchmark, the Court will do a more detailed review in calculating the lodestar to 23 determine whether the amount requested is reasonable. 24 a. Hours Reasonably Expended 25 Plaintiffs submitted billing records in support of the request for attorney fees. The 26 records contain one redacted entry that appears to still be included in the total. The Court finds 27 3 The joint memorandum states that that award of fees and costs is approximately thirty-one percent of the common fund. However, if both are included the award is 32.5 percent of the common fund. The court assumes that this 1 that the records attached demonstrate that 319.4 attorney hours and 167.44 paralegal/forensic 2 accountant hours were expended in this action for a total of 486.84 hours. 3 Upon review of the billing records in this instance, the Court does find that some of the 4 hours included for the paralegals are not reasonably incurred in this action because they are for 5 clerical tasks. “Clerical or secretarial tasks should not be billed at a paralegal or lawyer’s rate.” 6 Isom v. JDA Software Inc., 225 F.Supp.3d 880, 889 (D. Ariz. 2016). Plaintiffs billing includes 7 filing documents and administrative functions such as calendaring dates and setting up a 8 deposition which the Court finds to be clerical tasks that cannot be reimbursed at an attorney or 9 paralegal rate. “When clerical tasks are billed at hourly rates, the court should reduce the hours 10 requested to account for the billing errors.” Nadarajah v. Holder, 569 F.3d 906, 921 (9th Cir. 11 2009) (affirming finding that filing, transcript, and document organization were clerical tasks 12 that should be subsumed in firm overhead rather than billed at paralegal rate). Therefore, the 13 following hours are found to be clerical in nature. 14 The Court deducts .8 hours for Patrick R. Barbieri on September 12, 2018; .5 hours on 15 September 17, 2018; 1.8 hours on October 30, 2018; .7 hours on February 13, 2019; and 1 hour 16 on January 8, 2020. The Court deducts 1 hour for Todd Thomas on January 15, 2020; and .2 17 hours on February 6, 2020. The following are the hours found to be reasonably expended in this 18 action. 19 Name Position Deductions Total Hours 20 David E. Mastagni Partner 97.7 21 Isaac S. Stevens Senior Associate 6.4 22 Ian B. Sangster Associate 176.2 23 Ace T. Tate Associate 29.5 24 Tashayla D. Billington Associate 9.6 25 Toni Scannell Forensic Accountant 137.48 26 Patrick R. Barbieri Paralegal -4.8 12.7 27 Todd Thomas Paralegal -1.2 11.26 1 b. Hourly Rate 2 Plaintiffs state that the fees have been calculated using a rate of $125 to $150 per hour for 3 paralegals, $300 to $420 per hour for associates, and $490 to $695 per hour for senior counsel 4 and partners. The loadstar amount is to be determined based upon the prevailing market rate in 5 the relevant community. Blum v. Stenson, 465 U.S. 886, 896 (1984). The “relevant legal 6 community” for the purposes of the lodestar calculation is generally the forum in which the 7 district court sits. Gonzalez, 729 F.3d at 1205. Here, although Plaintiff states that these rates 8 have been accepted by other courts in evaluating attorney fee requests. But Plaintiffs have 9 presented no evidence of the prevailing rates in this district and Plaintiffs rates are higher than 10 what courts have authorized in the Fresno Division of the Eastern District of California. 11 In the Fresno Division of the Eastern District of California, attorneys with experience of 12 twenty or more years of experience are awarded $350.00 to $400.00 per hour. See In re Taco 13 Bell Wage & Hour Actions, 222 F.Supp.3d 813, 839 (E.D. Cal. 2016); see also Garcia v. FCA 14 US LLC, No. 1:16-CV-0730-JLT, 2018 WL 1184949, at *6 (E.D. Cal. Mar. 7, 2018) (awarding 15 $400.00 per hour to attorney with approximately thirty years of experience, $300.00 to attorney 16 with fifteen years of experience; $250.00 to attorney with ten years of experience; and $225.00 17 to attorney with five years of experience; and $175.00 to attorney with less than five years of 18 experience); Mike Murphy’s Enterprises, Inc. v. Fineline Indus., Inc., No. 1:18-CV-0488-AWI- 19 EPG, 2018 WL 1871412, at *3 (E.D. Cal. Apr. 19, 2018) (awarding attorneys with over twenty 20 years of experience $325.00 and $300.00 per hour, and attorney with 7 years of experience 21 $250.00 per hour); TBK Bank, SSB v. Singh, No. 1:17-CV-00868-LJO-BAM, 2018 WL 22 1064357, at *8 (E.D. Cal. Feb. 23, 2018), report and recommendation adopted, No. 1:17-CV- 23 00868-LJO-BAM, 2018 WL 3055890 (E.D. Cal. Mar. 21, 2018) (awarding attorneys with over 24 thirty-five years of experience $400.00 per hour, attorney with twenty years of experience 25 $350.00 per hour; and attorney with ten years of experience $300.00 per hour); Johnston Farms 26 v. Yusufov, No. 1:17-CV-00016-LJO-SKO, 2017 WL 6571527, at *11 (E.D. Cal. Dec. 26, 2017) 27 (awarding attorney with more than twenty years of experience $395.00 per hour); Phillips 66 Co. 1 July 6, 2017), report and recommendation adopted, No. 1:16-CV-01102-LJO-SKO, 2017 WL 2 3382974 (E.D. Cal. Aug. 7, 2017) (awarding attorney with twenty-years of experience $400.00 3 per hour). Even in the Sacramento Division, where rates are higher than in Fresno, the amount 4 Plaintiffs have requested for partners is high. See Smothers v. NorthStar Alarm Servs., LLC, 5 No. 2:17-CV-00548-KJM-KJN, 2020 WL 1532058, at *1 (E.D. Cal. Mar. 31, 2020). 6 While Plaintiffs calculated paralegals using the rate of $125.00 to $150.00 per hour, in 7 this district, “the reasonable rate of compensation for a paralegal would be between $75.00 to 8 $150.00 per hour depending on experience.” Schmidt v. City of Modesto, No. 1:17-CV-01411- 9 DAD-MJS, 2018 WL 6593362, at *6 (E.D. Cal. Dec. 14, 2018). Plaintiffs have provided no 10 information on the experience of the paralegals. 11 The Court has reviewed those declarations attached setting forth the experience of 12 counsel. No information has been provided for Isaac Stevens or Ace Tate and the Court bases 13 the hourly rate on their position. The Court finds that the following rates would be considered a 14 reasonable hourly rate for the purpose of determining the lode star in this class action settlement. 15 Name Experience Hourly Rate 16 David E. Mastagni 19 years $450 17 Isaac S. Stevens Senior Associate $400 18 Ian B. Sangster 8 years $325 19 Ace T. Tate Associate $300 20 Tashayla D. Billington 5 years $200 21 Toni Scannell Forensic Accountant $125 22 Patrick R. Barbieri Paralegal $75 23 Todd Thomas Paralegal $75 24 25 / / / 26 / / / 27 / / / / / / 1 c. Lodestar amount 2 Based on the foregoing, the lodestar amount in this action is $133,542.00. 3 Name Hourly Rate Total Hours Total 4 David E. Mastagni $450 97.7 $43,965 5 Isaac S. Stevens $400 6.4 $2,560 6 Ian B. Sangster $325 176.2 $57,265 7 Ace T. Tate $300 29.5 $8,850 8 Tashayla D. Billington $200 9.6 $1,920 9 Toni Scannell $125 137.48 $17,185 10 Patrick R. Barbieri $75 12.7 $952.50 11 Todd Thomas $75 11.26 $844.50 12 13 The Court finds that the amount requested is reasonable. Although it is above the bench 14 mark at approximately 31 percent of the common fund, it is less than the lode star amount which 15 is considered a reasonable fee. See Milburn, 2019 WL 5566313, at *10 (a negative multiplier 16 supports the award of attorney fees). Plaintiffs obtained significant relief for the plaintiffs in this 17 action and are requesting less in attorney fees than the lode star rate which is presumptively a 18 reasonable fee amount. Van Gerwen v. Guarantee Mut. Life Co., 214 F.3d 1041, 1045 (9th Cir. 19 2000). The Court recommends that attorney fees of $109,547.98 be approved. 20 E. Costs 21 The FLSA also provides for an award of costs. 29 U.S.C. § 216(b). “To support an 22 expense award, Plaintiffs should file an itemized list of expenses by category and the total 23 amount advanced for each category, allowing the Court to assess whether the expenses are 24 reasonable.” Flores v. TFI Int’l Inc., No. 12-CV-05790-JST, 2019 WL 1715180, at *11 (N.D. 25 Cal. Apr. 17, 2019). Counsel should provide receipts to support their claimed expenses. Flores, 26 2019 WL 1715180, at *11. 27 / / / 1 Plaintiffs have submitted the following list of costs that are sought in this matter. 2 Item Cost 3 Filing Fee $400.00 4 Service of Process $65.00 5 Mileage $.55 6 Costs for One Legal $110.00 7 Mediation Costs $3,250.00 8 9 Although Plaintiffs have not submitted receipts to support the costs incurred in this 10 action, the Court finds that the costs sought appear to be reasonable. However, Plaintiffs shall 11 file a supplement providing receipts or other documentation for the costs sought in this action 12 Accordingly, the Court recommends approving the award of costs subject to Plaintiffs submitting 13 appropriate documentation to support the request for costs. 14 V. 15 CONCLUSION AND RECOMMENDATIONS 16 Accordingly, IT IS HEREBY RECOMMENDED that: 17 1. The settlement agreement be approved as fair and reasonable; and 18 2. The joint motion for approval of the settlement be granted. 19 IT IS FURTHER ORDERED that within fourteen (14) days of the date of service of this 20 order, Plaintiffs’ shall submit documentation to support their request for costs. 21 This findings and recommendations is submitted to the district judge assigned to this 22 action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 304. Within fourteen 23 (14) days of service of this recommendation, any party may file written objections to this 24 findings and recommendations with the court and serve a copy on all parties. Such a document 25 should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The 26 district judge will review the magistrate judge’s findings and recommendations pursuant to 28 27 U.S.C. § 636(b)(1)(C). The parties are advised that failure to file objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th WAS 40°UV YVEEOVWINYVINE SVEN UETPOTEIL Sta POI I Ee AY IT I OT 1 | Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 2 3 IT IS SO ORDERED. OF. nf ee 4 | Dated: _May 7, 2020 _ ef UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28