Newby v. Exxon Mobile Corp.

289 F. App'x 204

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 11, 2008
• Docket: No. 07-35714
• Status: Published

Opinion

MEMORANDUM

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, Richard Newby ( Newby ) appeals the dedaion of the district court finding him ineligible to participate in the Exxon Qualified Settlement Fund (“EQSF”) because he did not file a timely claim. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

W Fil’st, Newby argues that the EQSF provided him with insufficient no-rice 0f the claims deadline and claim filing information under Federal Rule of Civil Procedure 23(c)(2). Rule 23(c) has no application to the district court’s notice to potential class claimants of a claims deadline and claim filing information for a settlement fund, which is governed by Rule 23(d)(2). “[I]nstead of requiring individual notice to all class members who can be identified through reasonable effort, [R]ule 23(d)(2) provides only that notice be given ‘in a manner as the court may direct.’ ” In re G'yPsum Antitrust Cases, 565 F.2d 1123, 1126 (9th Cir.1977). The sufficiency of such notice is measured “against the broader standards of due process.” Id. at 1126-27. Even assuming that Newby’s argument as to the insufficiency of this notice was neither waived for failure to present it to the district court nor untimely brought, Newby has not shown that the district court’s order, which required publication of the claims filing deadline in local newspapers for three consecutive weeks, violated due process. Further, even assuming the court’s order required plaintiffs’counsel to mail claims forms directly to all known class claimants, the district court found that Newby was not known to any class attorney as an identified claimant. This finding is not clearly erroneous, and so Newby’s argument that he was entitled to individual notice fails.

Second, Newby argues that the district court erred by refusing him permission to file a late claim. We review the district court’s disallowance of a late claim to a settlement fund for abuse of discretion. In re Gypsum Antitrust Cases, 565 F.2d at 1128. Although the district court accepted a limited number of other late-filed claims, we have firmly rejected New-by’s argument that “since the district court permitted other late-filed claims in connection with [a] settlement, its denial of [appellant’s] claim constituted an abuse of discretion.” Id. Newby “has made no showing that [his] claim was treated in a fashion inconsistent with those of other claimants similarly situated.” Id. Speeifically, the district court found that other claimants had plausible excuses for not filing timely, whereas Newby offered no plausible excuse. These findings are not clearly erroneous and the district court therefore did not abuse its discretion by refusing to allow his late claim.

Thirdj Newby argues that the district court erred by refusing to consider hig argument that he should be allowed to participate in any Mure punitive damages fund arising from the Exxon VaMez litiga. tion, notwithstanding his faihire to file a timely claim for compensatory damages ^ the EQgF_ Newby wag on ample notice that he needed to raige all objec_ tiong to the Special Magter in order to haye them considered by the district court. Hig Qwn notice of objections filed ^ the Special Master stated that «j understand that j mugt m all of my objections on this form nQW¡ and ^ not have a chance to make any additional objecti0ns later.” The digtrict court did not err by refuging to congider Newbylg arguments made for the fírgt time before the court

Minuimu.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.