McKinney-drobnis v. Massage Envy Franchising, LLC

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 15, 2025
• Docket: 24-4095
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 15 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

BAERBEL MCKINNEY- No. 24-4095 DROBNIS; JOSEPH B. D.C. No. PICCOLA; CAMILLE BERLESE, 3:16-cv-06450-MMC individually and on behalf of all others similarly situated, MEMORANDUM* Plaintiffs - Appellants,

v.

MASSAGE ENVY FRANCHISING, LLC, a Delaware Limited Liability Company,

Defendant - Appellee, ---------------------------------------- FINKLESTEIN & KRINSK, LLP

Interested Party - Appellant.

Appeal from the United States District Court for the Northern District of California Maxine M. Chesney, District Judge, Presiding

Submitted July 11, 2025**

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). San Francisco, California

Before: H.A. THOMAS and DE ALBA, Circuit Judges, and RAKOFF, District Judge.***

Appellant Finklestein & Krinsk, LLP1 (“Class Counsel”) appeals the district

court’s denial of their post-judgment motion for attorneys’ fees as untimely under

the express terms of a class action settlement agreement with Appellee Massage

Envy Franchising, LLC (“MEF”).

As part of the settlement agreement, class members received vouchers for

retail goods and services in various amounts that they could redeem at MEF

franchise locations. Under the terms of the settlement and this Court’s ruling in

McKinney-Drobnis v. Oreshack, 16 F.4th 594 (9th Cir. 2021), Class Counsel could

seek attorneys’ fees related to the voucher remedy based on the total value of the

redeemed vouchers. The written settlement agreement required MEF to provide

Class Counsel with the “aggregate value of redeemed vouchers” within 10 days of

the voucher redemption deadline, which was December 24, 2023. The settlement

agreement also required Class Counsel to file any voucher-related fee motion

*** The Honorable Jed S. Rakoff, United States District Judge for the Southern District of New York, sitting by designation. 1 The class representatives are also named as Appellants in the Notice of Appeal, but because the attorneys’ fees at issue are separate and apart from any class member relief, the named representatives lack standing to appeal the district court’s order. See Glasser v. Volkswagen of Am., Inc., 645 F.3d 1084, 1088–89 (9th Cir. 2011).

2 24-4095 within 10 days of MEF reporting the redemption value. On December 27, 2023,

MEF’s attorney reported the total redemption value to Mr. Krinsk via email with

the subject line “Redemption Total for McKinney Settlement.” Accordingly, Class

Counsel had until January 8, 2024, to file their fee motion. Mr. Krinsk conceded

that he saw the December 27 email but did not “focus on its importance.”

Consequently, Class Counsel did not file the motion until February 8, 2024.

Further, even though MEF’s attorney had previously offered to discuss an

extension to the deadline, Class Counsel did not request one.

We review the interpretation of settlement contracts de novo. Jeff D. v.

Andrus, 899 F.2d 753, 759 (9th Cir. 1989). Where a district court relied on

extrinsic evidence to interpret the contract, “the court’s findings of fact must be

upheld unless clearly erroneous.” United States v. 1.377 Acres of Land, 352 F.3d

1259, 1264–65 (9th Cir. 2003). The “construction and enforcement” of settlement

agreements “are governed by principles of local law which apply to interpretation

of contracts generally.” Jeff D., 899 F.2d at 759 (citation omitted). Under

California law, which governs the settlement agreement in the instant case, courts

must interpret contracts “as to give to effect to the mutual intention of the parties as

it existed at the time of contracting.” Cal. Civ. Code § 1636. The “clear and

explicit” language of the contract controls the analysis. See Revitch v. DIRECTV,

LLC, 977 F.3d 713, 717 (9th Cir. 2020) (quoting Kashmiri v. Regents of the Univ.

3 24-4095 of Cal., 156 Cal. App. 4th 809, 831 (2007)); see also Cal. Civ. Code §§ 1639,

1644.

We have jurisdiction under 28 U.S.C. § 1291. We affirm.

1. The district court correctly interpreted the settlement agreement and

ruled that Class Counsel’s fee motion was untimely. The settlement agreement,

which Class Counsel negotiated and helped draft, plainly required Class Counsel to

seek voucher-related attorneys’ fees within 10 days after receipt of the total value

of the redeemed vouchers from MEF. Class Counsel’s arguments that the

December 27 email did not count as MEF “providing” the redemption value are

unpersuasive and disingenuous. Nothing in the settlement states or implies that

MEF had to communicate that number through an agent other than its attorneys.

Nor does any settlement provision require MEF to provide the information in any

particular form or manner, such as the “evidentiarily admissible” form that Class

Counsel demanded after it missed the filing deadline.

2. Class Counsel also argues that MEF breached the contract or failed to

fulfill a “condition precedent” by redeeming some vouchers for cash. Class

Counsel waived this argument by failing to sufficiently raise it to the district court,

so we do not consider it here. See W. Water Project v. U.S. Dep’t of the Interior,

677 F.3d 922, 925 (9th Cir. 2012); Baccei v. United States, 632 F.3d 1140, 1149

(9th Cir. 2011). In any event, whether some vouchers were redeemed for cash has

4 24-4095 nothing to do with when Class Counsel was required to file its fee motion,

particularly since the value of those vouchers was included in the total redemption

amount, and there is no showing of harm to either the class members or Class

Counsel.

3. The district court did not abuse its discretion by not sua sponte ruling

on whether MEF’s redemption of some vouchers for cash excused Class Counsel’s

delayed fee motion filing. Class Counsel’s motion only sought attorneys’ fees—it

never asked the district court to issue any kind of enforcement order against MEF.

The district court cannot abuse its discretion over something it was never asked to

do. Cf. Alvarado v. Table Mountain Rancheria, 509 F.3d 1008, 1017 (9th Cir.

2007) (noting “the party seeking enforcement of the settlement agreement” must

actually claim a violation of the agreement). Any lack of “oversight” of the

voucher redemption process was the result of the settlement agreement’s clear

written terms. If Class Counsel had concerns about MEF self-policing the voucher

redemption process, they should have addressed them in the written settlement

agreement, not after the fact as an attempt to excuse their untimely request for fees.

AFFIRMED.

5 24-4095