Edgardo Seminiano v. Xyris Enterprise, Inc.
Opinion
Opinion
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).