                                                                                 FILED
                             NOT FOR PUBLICATION                                 MAY 12 2015

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



                             FOR THE NINTH CIRCUIT


EDGARDO SEMINIANO,                                 No. 13-56133

               Plaintiff - Appellee,               D.C. No. 2:10-cv-01673-JST-JEM

  v.
                                                   MEMORANDUM*
XYRIS ENTERPRISE, INC.; et al.,

               Defendants - Appellants.


                    Appeal from the United States District Court
                        for the Central District of California
                    Josephine L. Staton, District Judge, Presiding

                              Submitted May 7, 2015**
                                Pasadena California

Before: PREGERSON, TALLMAN, and NGUYEN, Circuit Judges.

       Xyris Enterprise, Inc. et al. (collectively “Xyris”), appeal the district court’s

summary judgment in favor of Edgardo Seminiano in his action under the Fair




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Labor Standards Act (“FLSA”) and the California Labor Code. We have

jurisdiction under 18 U.S.C. § 1291 and we affirm.

      We had previously reversed the district court’s order in favor of Seminiano.

We held that In re Bucknum, 951 F.2d 204 (9th Cir. 1991), did not compel the

district court to automatically find insufficient as a matter of law defense counsel’s

declaration of non-receipt of Seminiano’s unanswered request for admissions.

Seminiano v. Xyris Enter., Inc., 512 Fed. App’x 735, 736 (9th Cir. 2013).

      We now hold that the district court accurately complied with our mandate

upon remand. After a review of the record, the district court found defense

counsel’s sworn declaration of non-receipt insufficient based on two subsequent

occasions where Defendants were reminded of the outstanding unanswered

requests for admission and the circumstances surrounding Defendants’ avoidance

of discovery. These factual findings are not clearly erroneous. Husain v. Olympic

Airways, 316 F.3d 829, 835 (9th Cir. 2002).

      Furthermore, the district court did not abuse its discretion in failing to set

aside Xyris’s admissions by default pursuant to Fed. R. Civ. P. 36(b) because Xyris

failed to make a proper motion. Cf. Conlon v. United States, 474 F.3d 616, 621

(9th Cir. 2007) (citing Carney v. IRS (In re Carney), 258 F.3d 415, 419 (5th Cir.

2001) (“[A] deemed admission can only be withdrawn or amended by motion in


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accordance with Rule 36(b).”)). Even if Xyris had filed the proper motion, we

would affirm the district court’s conclusion. Although upholding the admissions

would practically eliminate any presentation on the merits, the record demonstrates

Xyris ignored repeated reminders of the request for admissions, failed to show

good cause for its failure to respond, and that Seminiano relied on these admissions

for about two months prior to filing his motion for summary judgment. Cf. id. at

624 (finding prejudice, in part, because nonmoving party relied on admissions for

two and a half months) (citing Perez v. Miami-Dade Cnty., 297 F.3d 1255, 1268

(11th Cir. 2002) (finding no prejudice, in part, because Perez had relied on the

admissions for only six days)).

      The record also supports the district court’s denial of Seminiano’s request to

settle and dismiss his FLSA claims. FLSA claims may not be settled without

approval of either the Secretary of Labor or a district court. See Nall v.

Mal-Motels, Inc., 723 F.3d 1304, 1306 (11th Cir. 2013) (citing 29 U.S.C. §

216(c)). Here, the district did not err in denying dismissal of the FLSA suit

because a “legal assistant,” who had worked for Xyris in the past, assisted

Seminiano in drafting his letter to the district court requesting dismissal without

the presence of counsel from either side. See Lynn’s Food Stores, Inc. v. United

States, 679 F.2d 1350, 1352–54 (11th Cir. 1982) (“[T]o approve an ‘agreement’


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between an employer and employees outside of the adversarial context of a lawsuit

brought by the employees would be in clear derogation of the letter and spirit of

the FLSA.”) (citing Brooklyn Sav. Bank v. O’Neil, 324 U.S. 697, 706–07 (1945)

and Schulte, Inc. v. Gangi, 328 U.S. 108, 113 n.8 (1946)).

      Finally, the district court did not abuse its discretion in awarding attorneys’

fees under the FLSA. See Childress v. Darby Lumber, Inc., 357 F.3d 1000, 1011

(9th Cir. 2004). In light of our decision, we need not reach the question whether

the case should be reassigned to a different district judge.

      AFFIRMED.




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