FILED

NOT FOR PUBLICATION

JUN 15 2018

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

RODWAN SABOW, No. 16-35521

Plaintiff-Appellee, D.C. No. 2:16-cv-00111-JCC

v.

MEMORANDUM*

AMERICAN SEAFOODS COMPANY,

Defendant-Appellant.

RODWAN SABOW, No. 16-35553

Plaintiff-Appellant, D.C. No. 2:16-cv-00111-JCC

v.

AMERICAN SEAFOODS COMPANY,

Defendant-Appellee.

Appeal from the United States District Court for the Western District of Washington John C. Coughenour, District Judge, Presiding

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Argued and Submitted May 14, 2018 Seattle, Washington

Before: BERZON, THACKER,** and HURWITZ, Circuit Judges.

In this maritime case, Rodwan Sabow’s former employer, American

Seafoods Company LLC (“ASC”), appeals the district court’s grant of Sabow’s

motion to compel maintenance, and Sabow cross-appeals the court’s denial of

attorney fees. We affirm in part and reverse in part.

1. Under Barnes v. Sea Hawaii Rafting, LLC, “seamen are entitled to

maintenance in the amount of their actual expenses on food and lodging up to the

reasonable amount for their locality.” 889 F.3d 517, 541–42 (9th Cir. 2018)

(quoting Hall v. Noble Drilling (U.S.) Inc., 242 F.3d 582, 590 (5th Cir. 2001))

(italics omitted). Contrary to ASC’s arguments, a maintenance award’s

reasonableness is not determined solely by reference to the cost of food and

lodging aboard a ship. Instead, to determine the reasonableness of an award, a

district court may consider “the seaman’s actual costs”; “reasonable costs in the

locality or region,” i.e., on land; “union contracts stipulating a rate of maintenance

or per diem payments for shoreside food or lodging while in the service of a

** The Honorable Stephanie Dawn Thacker, United States Circuit Judge for the U.S. Court of Appeals for the Fourth Circuit, sitting by designation.

2 vessel”; and other maintenance awards “in the same region.” Id. at 540 (quoting

Hall, 242 F.3d at 590). The district court appropriately considered such factors

here.

2. The district court also applied the correct summary judgment and burden-

shifting frameworks to Sabow’s motion. As required by Barnes, 889 F.3d at

540–42, Sabow produced prima facie evidence that his actual expenses were

$37.97 per day. The burden then shifted to ASC to identify a genuine dispute as to

whether “[Sabow’s] actual expenses were unreasonable.” Id. at 542; see id. at

537–40. ASC did not maintain that Sabow’s expenses were unreasonable, but

instead suggested that lower expenses of $30 per day were also reasonable when

compared to the expenses at sea. Because ASC failed to identify a genuine dispute

as to whether Sabow’s actual expenses were unreasonable on-land expenses—and

in fact submitted evidence of comparable expenses that exceeded Sabow’s—the

district court properly granted Sabow’s motion to compel maintenance.

3. The district court did not abuse its discretion in declining to delay

consideration of Sabow’s pretrial motion under Fed. R. Civ. P. 56(d). ASC did not

submit an “affidavit or declaration [indicating] that, for specified reasons, it [could

not] present facts essential to justify its opposition,” or even separately move for

3 relief under Rule 56(d). Id. ASC’s failure to comply with the procedural

requirements of Rule 56(d) “is a proper ground for denying discovery and

proceeding to summary judgment.” Family Home & Fin. Ctr., Inc. v. Fed. Home

Loan Mortg. Corp., 525 F.3d 822, 827 (9th Cir. 2008) (internal quotation marks

omitted) (addressing Rule 56(d)’s substantially similar predecessor).

4. Taking all factors into consideration, the district court acted within its

discretion in denying Sabow’s request for attorney fees. See Madeja v. Olympic

Packers, LLC, 310 F.3d 628, 635 (9th Cir. 2002).

Here, unlike in Vaughan v. Atkinson, 369 U.S. 527, 530–31 (1962), and

Glynn v. Roy Al Boat Mgmt. Corp., 57 F.3d 1495, 1497 (9th Cir. 1995), ASC did

not refuse to pay maintenance to Sabow altogether; instead, it failed to raise

Sabow’s daily maintenance amount from $30.00 to $37.97.

Further, before Barnes, our standards for calculating maintenance were

unclear. ASC’s litigation position was therefore not entirely unfounded. And,

counter to Sabow’s arguments, both parties failed to produce to one another

information concerning the payment and receipt of maintenance checks, and ASC

was responsive when Sabow’s counsel raised concerns as to how checks were sent.

4 5. Finally, the district court erred in denying ASC’s request to enforce its

contract with Sabow regarding an advance payment to Sabow. The parties agreed

that Sabow’s advance would be offset against any higher maintenance payments or

certain other awards. Although “the right to maintenance cannot be abrogated by

contract,” Gardiner v. Sea-Land Serv., Inc., 786 F.2d 943, 946 (9th Cir. 1986), this

contract did not reduce the amount of any maintenance owed to Sabow; instead, it

provided Sabow the maintenance owed to him in an advance lump sum “to cover

unexpected expenses.”1

AFFIRMED IN PART, REVERSED IN PART, and REMANDED.

1 The parties disagree as to whether Sabow and ASC have settled this offset claim in a manner rendering it moot. On remand, the district court may consider whether such a settlement rendered the claim moot.

5