Marcus Abbe v. City of San Diego, California , 444 F. App'x 189 ( 2011 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUL 20 2011
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
MARCUS R. ABBE; MARK S. ANNIS; Nos. 09-56437
NEAL BROWDER et al., 09-56444
Plaintiffs - Appellants, 10-55087
10-55089
v.
D.C. Nos. 3:05-cv-01629-DMS-
CITY OF SAN DIEGO, CALIFORNIA, RBB
3:06-cv-00538-DMS-
Defendant - Appellee. RBB
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Dana M. Sabraw, District Judge, Presiding
Argued and Submitted June 28, 2011
Pasadena, California
Before: KOZINSKI, Chief Judge, IKUTA, Circuit Judge, and BOLTON, District
Judge.**
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Susan R. Bolton, District Judge for the District of
Arizona, sitting by designation.
Marcus Abbe and the other plaintiffs below (“plaintiffs”) did not raise a
genuine issue of material fact that the law, workplace policy, or nature of a San
Diego police officer’s work required them to don and doff Class B uniforms and
safety equipment on the employer’s premises. Therefore, the district court did not
err in granting the City summary adjudication on the plaintiffs’ claim for overtime
compensation for such activity. See Bamonte v. City of Mesa, 598 F.3d 1217, 1231
(9th Cir. 2010).
Nor did the district court err in relying on issue preclusion to enter judgment
against all remaining plaintiffs after the trial of the eight test plaintiffs. The jury’s
answers to the interrogatories on the verdict form precluded employer liability for
overtime under the FLSA, see Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680,
686–87 (1946), superseded by statute on other grounds, and therefore obviated the
need for any further determination on the claims of the non-test plaintiffs; the
plaintiffs’ agreement to be bound by the liability issues decided at trial established
their privity with the test plaintiffs, see Taylor v. Sturgell, 553 U.S. 880, 893–94
(2008); and the plaintiffs’ prior representations established the identity of the
relevant issues. See In re Reynoso, 477 F.3d 1117, 1122 (9th Cir. 2007). The
district court did not abuse its discretion in invoking judicial estoppel to bar the
plaintiffs’ claim that they could present materially different evidence of
2
uncompensated work than did the test plaintiffs. See New Hampshire v. Maine,
532 U.S. 742, 749–51 (2001); Estate of Shapiro v. United States, 634 F.3d 1055,
1057 (9th Cir. 2011).1
The plaintiffs waived their claims that the district court erred in entering
summary judgment on the breach of contract cause of action and in denying the
plaintiffs’ motion for a new trial by failing to develop those claims on appeal. See
United States v. Kama, 394 F.3d 1236, 1238 (9th Cir. 2005). In any event, the
claims are meritless. The district court did not err in determining that the plaintiffs
failed to exhaust the grievance procedures required by the Collective Bargaining
Agreement. See Carr v. Pac. Mar. Ass’n, 904 F.2d 1313, 1317 (9th Cir. 1990).
Nor did it abuse its discretion in determining that the jury’s verdict was not against
the clear weight of the evidence. See Kode v. Carlson, 596 F.3d 608, 612 (9th Cir.
2010). Finally, the plaintiffs lack standing to challenge the district court’s order
that Jackson, DeMarco, Tidus & Peckenpaugh would represent certain plaintiffs
because that order did not affect any party to this appeal. See Matter of Grand
Jury Subpoena Issued to Chesnoff, 62 F.3d 1144, 1145–46 (9th Cir. 1995). This
claim is therefore dismissed.
1
The district court’s application of the City’s § 207(k) exemption in its
August 19, 2008, ruling is not at issue in this appeal because the district court
chose not to enter judgment against any plaintiffs on this basis.
3
AFFIRMED IN PART AND DISMISSED IN PART.
4