Virginia Van Dusen v. Swift Transportation Co

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

VIRGINIA VAN DUSEN; JOSEPH No. 15-15257 SHEER; JOHN DOE 1, individually and on behalf of all other D.C. No. similarly situated persons, 2:10-cv-00899-JWS Plaintiffs-Appellees,

v. OPINION

SWIFT TRANSPORTATION

COMPANY INCORPORATED;

INTERSTATE EQUIPMENT

LEASING INCORPORATED; CHAD

KILLIBREW; JERRY MOYES,

Defendants-Appellants.

Appeal from the United States District Court for the District of Arizona John W. Sedwick, District Judge, Presiding

Argued and Submitted November 16, 2015 San Francisco, California

Filed July 26, 2016

Before: Sidney R. Thomas, Chief Judge and Sandra S. Ikuta and Andrew D. Hurwitz, Circuit Judges. Opinion by Chief Judge Thomas; Concurrence by Judge Ikuta

SUMMARY*

Arbitration / Appellate Jurisdiction

Dismissing an interlocutory appeal from a district court’s case management order in a labor law case, the panel held that the Federal Arbitration Act did not grant it jurisdiction to hear the appeal.

In a prior appeal, the court of appeals held that the district court, rather than an arbitrator,…

Concurrence by Judge IKUTA

OPINION

We must determine whether the Federal Arbitration Act (“FAA”), 9 U.S.C. § 1 et seq., grants us jurisdiction to hear an interlocutory appeal from a district court’s case management order. We conclude it does not, and we dismiss the appeal for lack of appellate jurisdiction.

I

Virginia Van Dusen and Joseph Sheer are interstate truck drivers who entered into contracts with Swift Transportation Company, Inc. (“Swift”) and Interstate Equipment Leasing, Inc. (“Interstate”). Van Dusen and Sheer each agreed to drive trucks, Interstate agreed to finance the trucks, and Swift agreed to pay Van Dusen and Sheer for their services. The contracts designated Van Dusen and Sheer as independent contractors, not employees. Each contract also contained a clause to arbitrate “[a]ll disputes and claims arising under, arising out of or relating to [the] [a]greement[s].”

Van Dusen eventually terminated her contract with Swift. Swift separately terminated its contract with Sheer. Van Du-sen and Sheer (collectively “Van Dusen”) later filed a collective and class action complaint against Swift, Interstate, and senior executives at both companies (collectively…

concurring:

The majority has issued two separate opinions in.this case. This opinion holds that we lack jurisdiction to hear an interlocutory appeal from the district court’s case management order. I agree with this conclusion.

But the majority has issued a second opinion denying Swift’s petition for a writ of mandamus, see In re Swift Transp Co. Inc., No. 15-70592, 830 F.3d 913 (9th Cir. 2016), even though the district court has *900 made repeated errors and is forcing Swift to litigate a matter that it may be entitled to arbitrate. For the reasons explained in my dissent to that opinion, I would hold that the extraordinary remedy of mandamus is warranted in this case.