FILED
NOT FOR PUBLICATION APR 12 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LAUREN ROTHER; et al., Nos. 11-35922, 11-35953
Plaintiffs - Appellees and D.C. No. 3:08 cv-0161-MO
Cross-Appellants,
v. MEMORANDUM*
LESLIE LUPENKO; et al.,
Defendants - Appellants and
Cross-Appellees.
Appeals from the United States District Court
for the District of Oregon
Michael W. Mosman, District Judge, Presiding
Argued and Submitted March 8, 2013
Portland, Oregon
Before: TASHIMA, CLIFTON and BEA, Circuit Judges.
Following a jury trial, Defendants Leslie Lupenko and Telelanguage, Inc.
(“Defendants”), appeal from several of the district court’s rulings in this Fair Labor
Standards Act, 29 U.S.C. § 201 et seq. (“FLSA”), collective action. Plaintiffs
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Lauren Rother and other members of the collective action (“Plaintiffs”) cross-
appeal. The district court had jurisdiction under 28 U.S.C. §§ 1331 and 1367; we
have jurisdiction under 28 U.S.C. § 1291. Because the facts are known to the
parties, we do not recite them here, except as necessary to explain our decision. We
affirm in part, reverse in part, and remand.
I. Defendants’ Appeal
1. Defendants contend that the district court abused its discretion in
imposing discovery sanctions against them. A district court has broad discretion to
impose sanctions where a party flouts its discovery obligations. See Fair Hous. of
Marin v. Combs, 285 F.3d 899, 905-06 (9th Cir. 2002); Fed. R. Civ. P. 37(b). We
will defer to the reasonable exercise of that discretion so long as we are able to
discern from the record why and how that discretion has been exercised. See
Primus Auto. Fin. Servs. v. Batarse, 115 F.3d 644, 648-49 (9th Cir. 1997).
Because the record in this case makes perfectly clear that the court imposed
sanctions as a result of Defendants having twice failed to honor discovery
deadlines, to remand to the district court for further explanation would
unnecessarily “elevate form over substance.” Optyl Eyewear Fashion Int’l Corp.
v. Style Cos., 760 F.2d 1045, 1051 (9th Cir. 1985). Plaintiffs provided a detailed
accounting of their costs and fees resulting from Defendants’ discovery violations,
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and the amount awarded was reasonable. Accordingly, the district court did not
abuse its discretion in its imposition of discovery sanctions against Defendants.
See Fair Hous. of Marin, 285 F.3d at 905 (stating that the imposition of discovery
sanctions is reviewed for abuse of discretion).
2. Defendants appeal the denial of their motion for summary judgment
on Plaintiffs’ unpaid meal break claims.1 It is well established that “[a] party need
not plead specific legal theories in the complaint, so long as the other side receives
notice as to what is at issue in the case.” Am. Timber & Trading Co. v. First Nat’l
Bank of Or., 690 F.2d 781, 786 (9th Cir. 1982). Although Plaintiffs’ Second
Amended Complaint did not spell out their unpaid break claims in so many words,
Defendants nonetheless had sufficient notice of those claims by the summary
judgment stage, and it was within the district court’s discretion to allow those
claims to proceed. See id.
As for the merits of Plaintiffs’ claims, it is the general rule under federal law
that breaks of less than thirty minutes are compensable. 29 C.F.R. §§ 785.18,
785.19. Although in some cases “special circumstances” may mean that a meal
1
Although the denial of summary judgment ordinarily is not appealable
following a trial on the merits, because this appeal challenges the district court’s
ruling on a question of law, we may review this summary judgment denial. See
Banuelos v. Constr. Laborers’ Trust Funds, 382 F.3d 897, 902-03 (9th Cir. 2004).
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break of less than thirty minutes need not be counted as compensable time worked,
see 29 C.F.R. § 785.19, there is no basis on this record to conclude that such
circumstances existed in this case as a matter of law.
Like federal law, Oregon law also entitles employees to receive
compensation for breaks of less than thirty minutes, Or. Admin. R. 839-020-
0050(2)(b), and “authorizes an employee who is not paid all the wages to which he
is entitled to bring an action to recover those unpaid wages, plus penalties.” Gafur
v. Legacy Good Samaritan Hosp. & Med. Ctr., 185 P.3d 446, 449 (Or. 2008). In
this case, it is undisputed that Plaintiffs were not always compensated for breaks of
less than thirty minutes, and their unpaid break claims were properly allowed
before the jury. The district court did not err in its refusal to grant summary
judgment to Defendants on Plaintiffs’ unpaid breaks claims. For the same reasons,
the district court did not err in denying Defendants’ motion for judgment as a
matter of law under Fed. R. Civ. P. 50(a) & (b) on these claims
3. Defendants contend that Plaintiffs’ award of attorneys’ fees was
excessive. We review an award of attorneys’ fees for abuse of discretion. See,
e.g., Sorenson v. Mink, 239 F.3d 1140, 1144 (9th Cir. 2001). Here, it is undisputed
that Plaintiffs were the prevailing party, and Defendants are unable to show that the
district court abused its discretion in the amount of the fee award. Although the
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jury awarded less than Plaintiffs sought, it awarded more than nominal damages,
cf. Farrar v. Hobby, 506 U.S. 103, 115 (1992) (noting that for a plaintiff who is a
prevailing party, but is awarded no more than nominal damages, “the only
reasonable fee is usually no fee at all”), and it was within the district court’s
discretion to use Plaintiffs’ current fee rates in its lodestar calculation, see Missouri
v. Jenkins by Agyei, 491 U.S. 274, 283-84 (1989). See also Schwartz v. Sec’y of
Health & Human Serv., 73 F.3d 895, 908 (9th Cir. 1995). Accordingly, we reject
Defendants’ argument; the district court did not abuse its discretion in its award of
attorneys’ fees.
II. Plaintiffs’ Appeal
1. Plaintiffs contend that the district court erred in granting summary
judgment on their late paycheck claims in Defendants’ favor. We review a grant of
summary judgment de novo. Covington v. Jefferson Cnty., 358 F.3d 626, 641 n.22
(9th Cir. 2004).
A. Although there is no provision in the FLSA that explicitly requires an
employer to pay its employees in a timely fashion, this Circuit has read one into the
Act. Biggs v. Wilson, 1 F.3d 1537, 1541 (9th Cir. 1993). In Biggs, we held that
payment must be made on payday, and that a late payment immediately becomes a
violation equivalent to non-payment. Id. at 1540. “After [payday], the minimum
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wage is ‘unpaid.’” Id. at 1544. The district court misread Biggs. For purposes of
the FLSA, there is no distinction between late payment violations and minimum
wage violations: late payment is a minimum wage violation. See id. Accordingly,
we reverse the district court’s entry of summary judgment for Defendants on
Plaintiffs’ federal minimum wage claim.
B. The district court did not err, however, to the extent that Oregon
law expressly draws a distinction between late payment violations and minimum
wage violations that the FLSA does not. Oregon law does include an explicit
provision that mandates timely payment of wages. See Or. Rev. Stat. § 652.120.
Thus, there is no need for the courts to read a timeliness requirement into the
statute’s minimum wage provision, or to treat late payment as non-payment.
Hurger v. Hyatt Lake Resort, Inc., establishes that late final paychecks are not also
minimum wage violations under Oregon law. 13 P.3d 123, 125 (Or. Ct. App.
2000). It follows by analogy that violations of the timely payment requirement
similarly are not minimum wage violations under Oregon law. We therefore
affirm the district court’s grant of summary judgment to Defendants on Plaintiffs’
state minimum wage claim.
2. Plaintiffs contend that the district court abused its discretion in
granting Defendants’ in limine motion to exclude “previously unclaimed” wage
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and hour violations alleged for the first time after the entry of summary judgment.
We review the district court’s pre-trial in limine ruling for abuse of discretion. See
GCB Commc’ns, Inc. v. U.S. South Commc’ns, Inc., 650 F.3d 1257, 1262 (9th Cir.
2011). Given the complexity of this case and the continually shifting nature of the
specifics of Plaintiffs’ claims, it was not an abuse of discretion for the district court
to limit the case to claims that had been previously identified. See Campbell Indus.
v. M/V Gemini, 619 F.2d 24, 27 (9th Cir. 1980) (“A district court is vested with
broad discretion to make . . . evidentiary rulings conducive to the conduct of a fair
and orderly trial.”)
3. Plaintiffs contend that the district court erred in dismissing the claims
of non-testifying Plaintiffs based on their failure to attend the trial and testify.
There is no rule that a party must be present in court during a civil trial, and
judgment as a matter of law is appropriate only when “a reasonable jury would not
have a legally sufficient evidentiary basis to find” for a party, issue, or claim. Fed.
R. Civ. P. 50(a). Here, there was sufficient evidence regarding the non-testifying
Plaintiffs’ claims in Defendants’ records and in the representative testimony of
other similarly-situated Plaintiffs. See Wirtz v. Dix Box Co., 322 F.2d 499, 501-02
(9th Cir. 1963). The district court should have permitted Plaintiffs to admit into
evidence the employment records of the non-testifying Plaintiffs. Moreover,
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FLSA collective actions are representative in nature, designed to allow efficient
aggregation and resolution of the claims of similarly situated employees who opt
in, and it would be needlessly cumulative to require that every plaintiff testify. See
Hoffman-La Roche Inc. v. Sperling, 493 U.S. 165, 170 (1989).
Nor may we affirm the district court’s involuntary dismissal of the non-
testifying Plaintiffs as a sanction under Fed. R. Civ. P. 41. Involuntary dismissal is
“a harsh penalty and should be imposed only in extreme circumstances” not
present in this case. Johnson v. U.S. Dep’t of Treasury, 939 F.2d 820, 825 (9th
Cir. 1991). Just as Plaintiff Joey Law’s claims were properly allowed before the
jury in spite of her absence from the proceedings, the claims of the other non-
testifying Plaintiffs should have been allowed to proceed as well. Accordingly, we
reverse the district court’s judgment as a matter of law against the seven non-
testifying Plaintiffs.
4. Plaintiffs contend that the district court erred in reducing the amount
of the verdict. A district court may amend a judgment upon finding that
amendment “is necessary to correct manifest errors or law . . . upon which the
judgment is based.” McDowell v. Calderon, 197 F.3d 1253, 1255 n.1 (9th Cir.
1999) (en banc) (quoting 11 Charles Alan Wright et al., Fed. Proc. & Practice §
2810.1 (2d ed. 1995)). Oregon law caps an employee’s recovery at “100 percent of
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the employee’s unpaid wages” where that employee fails to provide his employer
with “written notice of nonpayment.” Or. Rev. Stat. § 652.150(2). Here,
Plaintiffs’ notice to Defendants failed to “include the estimated amount of wages or
compensation alleged to be owed or an allegation of facts sufficient to estimate the
amount owed,” as required by § 652.150(2)(c). Thus, the district court properly
amended the judgment to cap Plaintiffs’ recovery at 100% of unpaid wages in light
of Plaintiffs’ deficient written notice.
5. Finally, Plaintiffs contend that the district court erred in denying them
attorneys’ fees under Oregon law and reducing their fee claim under federal law.
A. Oregon law requires pre-litigation notice before a prevailing
plaintiff is entitled to attorneys’ fees. Or. Rev. Stat. § 652.200(2). In Belknap v.
U.S. Bank NA, 234 P.3d 1041 (Or. Ct. App. 2010), the Oregon Court of Appeals of
Oregon emphasized the importance of a plaintiff’s including sufficient information
in the notice for the defendant to evaluate the claim and seek promptly to settle it.
Id. at 1047-48. The district court did not err in concluding that Plaintiffs’ pre-
litigation notice was deficient under this standard, and in denying attorneys’ fees
under § 652.200(2) on that ground.
B. Nor can we say that the district court abused its discretion in
reducing its award of attorneys’ fees under federal law for limited success. It is
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usually the case that when a district court determines the amount of reasonable
attorneys’ fees, the “results obtained” factor is subsumed within the lodestar
analysis. Cunningham v. Cnty. of L.A., 879 F.2d 481, 488 (9th Cir. 1989). Here,
however, the district court did not impermissibly “double-reduce” Plaintiffs’ award
based on that factor. Rather, the district court concluded that Plaintiffs’ reduction
of some of the hours from the lodestar analysis did not yield a reasonable award
under the circumstances. See Van Gerwen v. Guarantee Mut. Life Co., 214 F.3d
1041, 1046 (9th Cir. 2000) (“[I]n rare cases the lodestar amount might be
unreasonable and considerations such as ‘the important factor of the results
obtained’ might lead a district court permissibly to adjust a fee upward or
downward.” (quoting Blum v. Stenson, 465 U.S. 886, 697 & n.14 (1984))). The
district court did not abuse its discretion in this regard.2
CONCLUSION
For the foregoing reasons:
In No. 11-35922, the rulings of the district court are AFFIRMED.
2
Although we affirm the district court’s fee award under the FLSA,
because that award was based in part on the results obtained, our affirmance of the
present fee award does not preclude Plaintiffs from applying for, and the district
court considering, a supplemental fee award, should Plaintiffs prevail on their
remanded claims.
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In No. 11-35953, the rulings of the district court are AFFIRMED, except
for (1) its grant of summary judgment to Defendants on Plaintiffs’ FLSA late
payment claims; and (2) its judgment as a matter of law against the seven non-
testifying Plaintiffs. As to these matters, the judgment of the district court is
REVERSED and the case is remanded for further proceedings consistent with this
disposition.3
Each party shall bear its own costs on appeal.
AFFIRMED in part, REVERSED and REMANDED in part.
3
Plaintiffs’ request, made for the first time at oral argument, that, on
remand, this case be reassigned to a different district judge is denied.
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