Edgardo SEMINIANO, Plaintiff-Appellee, v. XYRIS ENTERPRISE, INC.; et al., Defendants-Appellants, 602 F. App'x 682

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

summary judgment in favor of Edgardo Semi-niano in his action under the Fair Labor Standards Act (“FLSA”) and the California Labor Code. We have jurisdiction under 28 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.Appx. 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Cir.2007) (citing Carney v. IRS (In re Carney), 258 F.3d 415, 419 (5th Cir.2001) (“[A] deemed admission can only be withdrawn or amended by motion in accordance with Rule 36(b).”)).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’ 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, 65 S.Ct. 895, 89 L.Ed. 1296 (1945) and Schulte, Inc. v. Gangi, 328 U.S. 108, 113 n. 8, 66 S.Ct. 925, 90 L.Ed. 1114 (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. -This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.