HARRY DENNIS and JON KOZ v. Kellogg Company, a Delaware corporation

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
HARRY DENNIS and JON KOZ,
Plaintiffs - Appellees,
STEPHANIE BERG and OMAR
RIVERO,
Objectors - Appellants,
v.
KELLOGG COMPANY, a Delaware
corporation,
Defendant - Appellee.
No. 13-56768
D.C. No. 3:09-cv-01786-IEG-
WMC
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Irma E. Gonzalez, Senior District Judge, Presiding
Submitted December 10, 2015**
Pasadena, California
FILED
JAN 05 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes that this case is suitable for
decision without oral argument. See Fed. R. App. P. 34(a)(2).

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Before: REINHARDT, LUCERO***, and NGUYEN, Circuit Judges.
Plaintiffs Stephanie Berg and Omar Rivero appeal the district court’s denial
of their motion for attorneys’ fees in a certified class action. We have jurisdiction
under 28 U.S.C. § 1291, and we affirm.
The district court did not abuse its discretion in denying Plaintiffs’ fee
motion as untimely. In re Mercury Interactive Corp. Sec. Litig., 618 F.3d 988, 992
(9th Cir. 2010). Despite a clear court order that all fee applications be submitted at
least forty-five days prior to the settlement hearing, Plaintiffs did not submit their
motion until two weeks after the settlement had been finalized. This delay
contravened Federal Rule of Civil Procedure 23(h), which requires that fee motions
in certified class actions be made “at a time the court sets.” Fed. R. Civ. P.
23(h)(1).
We need not reach the remaining issues raised on appeal.
AFFIRMED.
*** The Honorable Carlos F. Lucero, Circuit Judge for the U.S. Court of
Appeals for the Tenth Circuit, sitting by designation.

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