Usdc-Azp

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

IN RE SWIFT TRANSPORTATION No. 15-70592

COMPANY INCORPORATED;

INTERSTATE EQUIPMENT D.C. No. LEASING INCORPORATED; CHAD 2:10-cv-00899-JWS

KILLIBREW; JERRY MOYES,

OPINION

SWIFT TRANSPORTATION

COMPANY INCORPORATED;

INTERSTATE EQUIPMENT

LEASING INCORPORATED; CHAD

KILLIBREW; JERRY MOYES,

Petitioners,

v.

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA,

PHOENIX,

Respondent,

VIRGINIA VAN DUSEN,

individually and on behalf of all other similarly situated persons; JOSEPH SHEER, individually and on behalf of all other similarly situated persons; JOSE

MOTOLINA; VICKII SCHWALM;

PETER WOOD,

Real Parties in Interest. IN RE SWIFT TRANSPORTATION

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.

Per Curiam Opinion; Concurrence by Judge Hurwitz; Dissent by Judge Ikuta

SUMMARY*

Arbitration…

Concurrence by Judge HURWITZ;

Dissent by Judge IKUTA

OPINION

In this companion case to Van Dusen v. Swift, No. 15-15257 (“Van Dusen III”), Swift Transportation Company, Inc., Interstate Equipment Leasing, Inc., and senior executives at both companies (collectively “Swift”) seek a writ of mandamus ordering the district court to vacate its case man *915 agement order and decide the petition to compel arbitration without discovery or trial. We deny the petition for a writ of mandamus.

I

The factual background of this case is set forth in some detail in the opinion in Van Dusen III. In short, two interstate truckers (collectively “Van Dusen”) entered into contracts with Swift that designated them as independent contractors and also contained a clause requiring them to arbitrate “[a]ll disputes and claims arising under, arising out of or relating to [the] [a]greement[s].” After contract termination, Van Dusen filed a collective and class action complaint against Swift alleging that Swift miselassified Van Dusen and others as independent contractors. Swift moved to compel arbitration and dismiss or stay the district court action. Van Du-sen objected that § 1 of the Federal…

concurring:

If this were a direct appeal from a district court order denying Swift’s motion to compel arbitration, I might agree with Judge Ikuta that the issue before the district court is one of law not requiring discovery. But, because the district judge has neither granted nor denied Swift’s motion, there is no appealable order. What is before us, rather, is a petition for mandamus.

“Mandamus is a drastic remedy and is to be used only in extraordinary circumstances.” Johnson v. Consumerinfo.com, Inc., 745 F.3d 1019, 1023 (9th Cir. 2014) (quoting United States v. Sherman, 581 F.2d 1358, 1361 (9th Cir. 1978)). Here, virtually nothing would be gained by granting the writ. The district court will shortly decide whether Van Dusen’s contract is one of employment under the Federal Arbitration Act, 9 U.S.C. § 1 . If the court decides that it is not, it will order arbitration, mooting the mandamus petition. And, if the court finds that Van Du-sen’s contract is one of employment and denies the motion to compel arbitration, Swift can appeal. Id. § 16(a)(1)(B). Even assuming, as Judge Ikuta persuasively argues, that the issue before the district court could have been resolved without…

dissenting:

Interstate truck driver Van Dusen signed an agreement with Swift designating Van Dusen as an independent contractor. The agreement also stated that the parties would arbitrate any dispute. Van Dusen now says that she was actually an employee and the contract was really one of employment, so it was exempt from the Federal Arbitration Act (FAA). We have twice before given this district court a single task: Decide whether the agreement falls into the category of “contracts of employment” for purposes of the FAA. Instead, six years after our first ruling, the district court is erroneously requiring the parties to undertake an evidentiary hearing on the merits to decide whether Van Dusen is functionally an employee. Under the circumstances of this case, the extraordinary remedy of a writ of mandamus is warranted.

I

Van Dusen entered into a contractor agreement with Swift for the interstate transportation of freight. The parties agreed that Van Dusen was an independent contractor who would “determine the method, means and manner of performing work and services” under the agreement and could provide the same services for others. The parties also bargained to arbitrate…