Harry Dennis v. Stephanie Berg

Court of Appeals for the Ninth Circuit · 13-56768 · 2016-01-05 · Unpublished

Harry DENNIS and Jon Koz, Plaintiffs-Appellees, Stephanie Berg and Omar Rivero, Objectors-Appellants, v. KELLOGG COMPANY, a Delaware Corporation, Defendant-Appellee

Area: other
Panel: Stephen R. Reinhardt (author), Katherine L. Lucero, Jacqueline H. Nguyen

Analysis

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Opinion

FILED NOT FOR PUBLICATION JAN 05 2016

MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

HARRY DENNIS and JON KOZ, No. 13-56768 Plaintiffs - Appellees, D.C. No. 3:09-cv-01786-IEG- WMC STEPHANIE BERG and OMAR RIVERO, MEMORANDUM* Objectors - Appellants, v. KELLOGG COMPANY, a Delaware corporation, Defendant - Appellee.

Appeal from the United States District Court for the Southern District of California Irma E. Gonzalez, Senior District Judge, Presiding Submitted December 10, 2015** Pasadena, California * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes that this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Before: REINHARDT, LUCERO***, and NGUYEN, Circuit Judges.

Plaintiffs Stephanie Berg and Omar Rivero appeal the district court’s denial of their motion for attorneys’ fees in a certified class action. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

The district court did not abuse its discretion in denying Plaintiffs’ fee motion as untimely. In re Mercury Interactive Corp. Sec. Litig., 618 F.3d 988, 992 (9th Cir. 2010). Despite a clear court order that all fee applications be submitted at least forty-five days prior to the settlement hearing, Plaintiffs did not submit their motion until two weeks after the settlement had been finalized. This delay contravened Federal Rule of Civil Procedure 23(h), which requires that fee motions in certified class actions be made “at a time the court sets.” Fed. R. Civ. P.

23(h)(1).

We need not reach the remaining issues raised on appeal.

AFFIRMED.

*** The Honorable Carlos F. Lucero, Circuit Judge for the U.S. Court of Appeals for the Tenth Circuit, sitting by designation.