In Re Van Dusen

Susan Martin, Martin & Bonnett, Phoenix, AZ, for the plaintiff-appellant.

Ronald Holland, Sheppard, Mullin, Richter & Hampton, San Francisco, CA, for the defendant-appellee.

Before: PROCTER HUG, JR. and RICHARD A. PAEZ, Circuit Judges, and LIAM O'GRADY, District Judge. [*]

O'GRADY, District Judge:

This matter comes before us on petition for a writ of mandamus. Petitioners argue that the District Court erred by refusing to resolve their claim of exemption from arbitration under Section 1 of the Federal Arbitration Act ("FAA") and Section 12-1517 of the Arizona Arbitration Act ("AAA") before compelling arbitration pursuant to those acts. We agree that Petitioners make a strong argument that the District Court erred, but we nonetheless hold that this case does not warrant the extraordinary remedy of mandamus. We therefore deny the petition.

Petitioners Joseph Sheer ("Sheer") and Virginia Van Dusen ("Van Dusen") (collectively "Petitioners") are interstate truck drivers who entered independent contractor operating agreements ("ICOAs") with Swift Transportation Co., Inc. ("Swift"). In December 2009, Sheer brought suit against Swift and Interstate Equipment Leasing, Co., Inc.…