FILED
NOT FOR PUBLICATION NOV 06 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
No. 11-17916
VIRGINIA VAN DUSEN; et al.,
D.C. No. 2:10-cv-00899-JWS
Plaintiffs-Appellants,
MEMORANDUM*
v.
SWIFT TRANSPORTATION CO., INC.;
et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Arizona
John W. Sedwick, District Judge, Presiding
Submitted November 4, 2013**
San Francisco, California
Before: FARRIS, FERNANDEZ, and IKUTA, Circuit Judges.
Virginia Van Dusen and Joseph Sheer appeal the district court’s denial of
their motion for reconsideration of the grant of Swift Transportation Co., Inc.’s
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
(Swift) motion to compel arbitration. We have jurisdiction under 28 U.S.C.
§ 1292(b).
Our prior opinion in this case, In re Van Dusen, expressly held that a district
court must determine whether an agreement for arbitration is exempt from
arbitration under § 1 of the Federal Arbitration Act (FAA) as a threshold matter.
654 F.3d 838, 843–45 (9th Cir. 2011). This ruling is the law of the case. United
States v. Jingles, 702 F.3d 494, 499 (9th Cir. 2012). Further, the resolution of this
issue was germane to Van Dusen’s consideration of the third Bauman factor
(whether the district court’s order was clearly erroneous), see Bauman v. U.S. Dist.
Court, 557 F.2d 650, 654–55 (9th Cir. 1977), and occurred “after reasoned
consideration in a published opinion.” United States v. Johnson, 256 F.3d 895,
914 (9th Cir. 2001) (en banc) (plurality opinion). Therefore, the ruling is also the
law of the circuit. Id. The district court erred in holding otherwise. On remand,
the district court must determine whether the Contractor Agreements between each
appellant and Swift are exempt under § 1 of the FAA before it may consider
Swift’s motion to compel.
REVERSED AND REMANDED.
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