NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
RODWAN SABOW,

Plaintiff-Appellee,

v. AMERICAN SEAFOODS COMPANY,

Defendant-Appellant. No. 16-35521 D.C. No. 2:16-cv-00111-JCC
MEMORANDUM *

RODWAN SABOW,

Plaintiff-Appellant,

v. AMERICAN SEAFOODS COMPANY,

Defendant-Appellee. No. 16-35553 D.C. No. 2:16-cv-00111-JCC

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

# FILED
JUN 15 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.Argued and Subm itted May 14, 2018 Seattle, Washington Before: BERZON, THACKER, * * and HURWITZ, Circuit Judges. In this m aritim e case, Rodwan Sabow’s form e r em ployer, Am erican Seafoods Company LLC (“ASC”), appeals the district cour t’s grant of Sabow’s
m otion to com pel m aintenance, and Sabow cross-appeals the court’s denial of attorney fees. We affirmin part and reverse in part. 1. Under Barnes v. Sea Hawaii Rafting, LLC , “seam e n are entitled to
m aintenance in the am ount of their actual expenses on food and lodging up to the reasonable am ount for their locality.” 889 F.3d 517, 541–4 2 (9th Cir. 2018) (quoting Hall v. Noble Drilling ( U.S.) Inc. , 242 F.3d 582, 590 (5th Cir. 2001)) (italics om itted). Contrary to ASC’s argum e nts, a m aintenance award’s reasonableness is not determ ined solely by reference to the cost of food and lodging aboard a ship. Instead, to determ ine the reasonableness of an award, a district court m ay consider “the seam an’s actual costs”; “reasonable costs in the locality or region,” i.e. , on land; “union contracts stipulating a rate of m a intenance or per diempaym ents 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.

2vessel”; and other m aintenance awards “in the sam e 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 sum m ary judgm e nt and burdenshifting fram eworks to Sabow’s m otion. As required by Barnes , 889 F.3d at 540–42, Sabow produced prim a 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 m aintain that Sabow’s expenses were unreasonable, but instead suggested that lower expenses of $30 per day were also reasonable when
com pared 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 subm itted evidence of com parable expenses that exceeded Sabow’s—the district court properly granted Sabow’s m otion to com pel m aintenance. 3. The district court did not abuse its discretion in declining to delay consideration of Sabow’s pretrial m otion under Fed. R. Civ. P. 56(d). ASC did not subm it an “affidavit or declaration [indicating] that, for specified reasons, it [could not] present facts essential to justify its opposition,” or even separately m ove for

3relief under Rule 56(d). Id. A SC’s failure to com ply with the procedural requirem ents of Rule 56(d) “is a proper ground for denying discovery and proceeding to sum m ary judgm e nt.” Family Home & Fin. Ctr., Inc. v. Fed. Home Loan Mortg. Corp. , 525 F.3d 822, 827 (9th Cir. 2008) (internal quotation m arks
om itted) (addressing Rule 56(d)’s substantially sim ilar 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 m aintenance to Sabow altogether; instead, it failed to raise Sabow’s daily m a intenance am ount from $30.00 to $37.97. Further, before Barnes , our standards for calculating m aintenance were unclear. ASC’s litigation position was therefore not entirely unfounded. And, counter to Sabow’s argum ents, both parties failed to produce to one another inform ation concerning the paym ent and receipt of m aintenance checks, and ASC was responsive when Sabow’s counsel raised concerns as to how checks were sent.

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

contract with Sabow regarding an advance paym ent to Sabow. The parties agreed that Sabow’s advance would be offset against any higher m aintenance paym ents or certain other awards. Although “the right to m aintenance 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 am ount of any m aintenance owed to Sabow; instead, it provided Sabow the m a intenance owed to him in an advance lum p 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 m anner rendering it m oot. On rem and, the district court m ay consider whether such a settlem ent rendered the claim m oot.

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