Johnson v. Gruma Corp.

MEMORANDUM **

Dennis Johnson appeals the district court’s May 1, 2003 order that prohibits arbitration of class-wide claims and dismisses his complaint for declaratory relief against Gruma Corporation with prejudice. We vacate the order and remand.

We must first decide whether we have appellate jurisdiction, which turns on whether the order is a final decision with respect to an arbitration and thus appeal-able under 9 U.S.C. § 16 (a)(3), see Green Tree Fin. Corp. — Alabama v. Randolph, 531 U.S. 79, 86-89 , 121 S.Ct. 513 , 148 L.Ed.2d 373 (2000); Interactive Flight Techs., Inc. v. Swissair Swiss Air Transp. Co., Ltd., 249 F.3d 1177, 1178-79 (9th Cir. 2001), or an interlocutory order that arbitration should proceed as to individual claims which effectively stays the class claims and is not appealable under 9 U.S.C. § 16 (b)(2), see Bushley v. Credit Suisse First Boston, 360 F.3d 1149, 1152 (9th Cir.2004); Dees v. Billy, 394 F.3d 1290, 1294 (9th Cir.2005). Unfortunately, the order can be interpreted either way. On the one hand, it dismisses Johnson’s Keating petition 1 with prejudice; on the other hand, the order appears partially to allow and partially to disallow arbitration,…