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Dusen v. Swift Transportation Co. Inc.

United States Court of Appeals, Ninth Circuit

July 26, 2016

Virginia Van Dusen; Joseph Sheer; John Doe 1, individually and on behalf of all other similarly situated persons, Plaintiffs-Appellees,
v.
Swift Transportation Company Incorporated; Interstate Equipment Leasing Incorporated; Chad Killibrew; Jerry Moyes, Defendants-Appellants.

          Argued and Submitted November 16, 2015 San Francisco, California

         Appeal from the United States District Court for the District of Arizona John W. Sedwick, District Judge, Presiding D.C. No. 2:10-cv-00899-JWS

          Ronald J. Holland (argued), Ellen M. Bronchetti, and Paul S. Cowie; Sheppard, Mullin, Richter & Hampton LLP, San Francisco, California; for Petitioners-Appellants.

          Edward Tuddenham (argued), New York, New York; Dan Getman and Lesley Tse, Getman & Sweeney PLLC, New Paltz, New York; Jennifer Kroll and Susan Martin, Martin & Bonnett PLLC, Phoenix, Arizona; for Plaintiffs-Appellants.

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

         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, must decide whether the dispute was exempt from arbitration under 9 U.S.C. § 1, which provides that the Federal Arbitration Act does not apply to contracts of workers engaged in foreign or interstate commerce. On remand, the district court issued a scheduling order for discovery and a trial on the § 1 issue.

         The panel held that the district court's order was not final and was not subject to review under the collateral order doctrine. In addition, the order was not reviewable under 9 U.S.C. § 16(a)(1)(B) on the basis that it had the practical effect of denying a motion to compel arbitration.

         Concurring, Judge Ikuta agreed with the majority's holding that the court lacked jurisdiction to hear an interlocutory appeal from the district court's case management order. She wrote that for the reasons explained in her dissent to the panel's other opinion in this matter, Van Dusen v. Swift, No. 15-70592, - F.3d - (9th Cir. 2016), the defendant nonetheless was entitled to a writ of mandamus.

          OPINION

          THOMAS, Chief Judge:

         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, ...


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