                                                                           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                            NOT FOR PUBLICATION                             APR 28 2011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.

                                          2
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. §


                                          3
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


                                           4
“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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