Rivas v. Terminix International Co.

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
DEC 21 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
RODRIGO RIVAS, as an individual, and No. 13-17672
on behalf of all others similarly situated,
D.C. No. 3:13-cv-04962-MMC
Plaintiff - Appellee,

v. MEMORANDUM*

TERMINIX INTERNATIONAL
COMPANY, a Delaware corporation;
ERNEST WALKER,

Defendants - Appellants.

Appeal from the United States District Court
for the Northern District of California
Maxine M. Chesney, Senior District Judge, Presiding

Argued and Submitted December 7, 2015
San Francisco, California

Before: WARDLAW, W. FLETCHER, and MURGUIA, Circuit Judges.

Defendants Terminix International Company and Ernest Walker

(collectively “Terminix”) appeal the district court’s grant of Plaintiff Rodrigo

Rivas’s motion for dismissal without prejudice under Federal Rule of Civil

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Procedure (“FRCP”) 41(a)(2). We have jurisdiction under 28 U.S.C. 1291, and we

affirm.

Rivas originally filed his class and representative action against Terminix in

state court. Terminix removed the case to federal court under the Class Action

Fairness Act of 2005. After arriving in federal court, Rivas filed an amended

complaint, which included only a single cause of action based on California’s

Private Attorneys General Act of 2004 (“PAGA”). The PAGA claim, standing

alone, would not have provided a basis for removal. Rivas moved unsuccessfully

for remand. Terminix moved to compel arbitration under the Federal Arbitration

Act, 9 U.S.C. § 1, et seq. Rivas then moved for dismissal without prejudice under

FRCP 41(a)(2). The court granted Rivas’s motion, and denied Terminix’s motion

as moot.

When Terminix removed this case to federal court, neither the California

Supreme Court nor our court had determined whether employees could waive their

right to bring a PAGA action in an arbitration agreement. The legal landscape has

since changed. In June 2014, the California Supreme Court ruled that an

employee’s right to bring a PAGA action is unwaivable. See Iskanian v. CLS

Transp. L.A., LLC, 327 P.3d 129, 148-49 (Cal. 2014), cert. denied, 135 S. Ct. 1155

(2015). In September 2015, we held that the Iskanian rule is not preempted by the

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Federal Arbitration Act. See Sakkab v. Luxottica Retail N. Am., Inc., 803 F.3d 425,

431 (9th Cir. 2015). 3333

Because both the California Supreme Court and our court have now held

that waivers of representative PAGA claims are unenforceable, and because any

motion now made in the district court under Rule 41(a)(2) would not be subject to

a motion to compel arbitration, we affirm. That is, given the current state of the

law, the district court’s grant of Rivas’s motion under Rule 41(a)(2) would not be

an abuse of discretion.

AFFIRMED.

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