                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS

                            FOR THE NINTH CIRCUIT


JOSE GUADALUPE PEREZ-FARIAS; et                  No. 10-35397
al.,
                                                 D.C. No. 2:05-cv-03061-RHW
              Plaintiffs - Appellants,

  v.                                             MEMORANDUM*

GLOBAL HORIZONS, INC; et al.,

              Defendants - Appellees.


                  Appeal from the United States District Court
                      for the Eastern District of Washington
                Robert H. Whaley, Senior District Judge, Presiding

                       Argued and Submitted July 12, 2011
                              Seattle, Washington

Before: CLIFTON and N.R. SMITH, Circuit Judges, and KORMAN, Senior
District Judge.**

       Plaintiffs Jose Guadalupe Perez-Farias, Jose F. Sanchez, and Ricardo

Betancourt (Workers) brought this action, as class representatives, against Global


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Edward R. Korman, Senior District Judge for the U.S.
District Court for Eastern New York, Brooklyn, sitting by designation.
Horizons, Inc. (Global); Green Acre Farms, Inc., Valley Fruit Orchards, LLC,

(collectively, Growers); and, Platte River Insurance Company. We have

jurisdiction pursuant to 28 U.S.C. § 1291 and we AFFIRM in part, REVERSE in

part, and REMAND.

      On December 5, 2011, after withdrawing our previous memorandum

disposition, we certified three questions to the Washington Supreme Court

regarding the statutory damages provision under the Washington Farm Labor

Contractors Act (FLCA), Chapter 19.30, Wash. Rev. Code. On September 27,

2012, the court answered those questions. The Washington Supreme Court held

that, when a trial court awards statutory damages under the FLCA, it “must award

statutory damages of $500 per plaintiff per violation.” Perez-Farias v. Global

Horizons, Inc., 286 P.3d 46, 52 (Wash. 2012).

1.    Based on the Washington Supreme Court’s construction of the FLCA’s

statutory damages provision, we conclude that the district court erred when it

awarded Workers less than the full amount of statutory damages provided for by

the FLCA. In other words, when the district court decided to award statutory

damages, it was required to award $500 per plaintiff per violation, for a statutory

damages award totaling $1,998,500.




                                          2
      The full amount of statutory damages does not violate federal due process

law because is not “so severe and oppressive as to be wholly disproportioned [sic]

to the offense and obviously unreasonable.” St. Louis, I.M. & S. Ry. Co. v.

Williams, 251 U.S. 63, 66 (1919); see also United States v. Citrin, 972 F.2d 1044,

1051 (9th Cir. 1992). Washington state public policy or due process principles

also do not require a reduction of the award. Perez-Farias, 286 P.3d at 54. Thus,

we reverse the district court’s award of statutory damages. The district court is

directed to enter judgment for Workers in the amount of $1,998,500.1

      Because the FLCA creates legal rights, Workers have standing under both

federal and state law to seek statutory damages by showing a violation of those

rights. See Linda R.S. v. Richard D., 410 U.S. 614, 617 n.3 (1973); Perez-Farias,

286 P.3d at 54. Proof of injury from each class member is not required. See Six

(6) Mexican Workers v. Ariz. Citrus Growers, 904 F.2d 1301, 1306 (9th Cir. 1990).

2.    We remand the issue of attorneys’ fees under the FLCA, Wash. Rev. Code

§ 19.30.170(1), for further proceedings consistent with this disposition. Under

Washington law, “[a] ‘prevailing party’ is any party that receives some judgment

in its favor. If neither party completely prevails, the court must decide which, if


      1
             Because reviewing the purported legislative history of the FLCA is
unnecessary to resolution of this issue, we deny Workers’ motion to take judicial
notice of these materials.
                                          3
either, substantially prevailed. This question depends upon the extent of the relief

afforded the parties.” Guillen v. Contreras, 169 Wash. 2d 769, 775, 238 P.3d

1168, 1171 (Wash. 2010) (en banc) (internal quotation marks, alteration, and

citations omitted).

       Under the FLCA, Workers could only obtain statutory damages or actual

damages. Wash. Rev. Code § 19.30.170(2). Workers opted for statutory damages,

which they were awarded. Therefore, whether actual damages were awarded is

irrelevant to determining who is the prevailing party.

3.     Workers waived their right to a jury trial regarding the discrimination claims

regarding “any claim for any liability . . . insofar as the [G]rower defendants are

concerned.” Normally, Workers could rely on Global’s assertion of its right to a

jury trial. See DePinto v. Provident Sec. Life Ins. Co., 323 F.2d 826, 832 (9th Cir.

1963). However, Workers (1) consented to a bench trial on all issues before

Global was relieved from the district court’s adverse summary judgment ruling; (2)

failed to clarify their rights before trial; and, (3) participated in a trial in which

Growers did not participate in jury selection, opening, or closing arguments. These

actions by Workers constitute waiver of their Seventh Amendment right to a jury

trial as to “any claim” of Growers’ liability. See White v. McGinnis, 903 F.2d 699,

703 (9th Cir. 1990). Accordingly, the district court’s Findings of Fact and


                                             4
Conclusions of Law with respect to Growers’ liability on the discrimination claims

are affirmed.

      AFFIRMED in part, REVERSED in part, and REMANDED to the district

court for further proceedings consistent with this disposition. Each party shall bear

its own costs.




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