FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SILKEN BROWN; MARIO DE LA ROSA, No. 16-15377
individually and on behalf of other
members of the general public D.C. No.
similarly situated and as aggrieved 3:13-cv-05669-
employers pursuant to the Private WHO
Attorneys General Act (“PAGA”),
Plaintiffs-Appellants,
ORDER
v.
CINEMARK USA, INC.; CENTURY
THEATRES, INC.,
Defendants-Appellees.
Filed December 7, 2017
Before: Sidney R. Thomas, Chief Judge, and Stephen
Reinhardt and Kathleen M. O’Malley,* Circuit Judges.
*
The Honorable Kathleen M. O’Malley, United States Circuit Judge
for the U.S. Court of Appeals for the Federal Circuit, sitting by
designation.
2 BROWN V. CINEMARK USA
SUMMARY**
Appellate Jurisdiction
The panel denied a motion to dismiss for lack of
jurisdiction a class action complaint alleging wage and hour
claims, and held that the court had jurisdiction under
28 U.S.C. § 1291 to consider the appeal on the merits.
Defendants Cinemark USA, Inc. and Century Theaters,
Inc. sought to dismiss for lack of appellate jurisdiction in
light of the Supreme Court decision in Microsoft Corp. v.
Baker, 137 S. Ct. 1702 (2017), because plaintiffs voluntarily
settled some of their claims.
The panel held that this case was unlike Baker, where the
plaintiffs intended to sidestep Fed. R. Civ. P. 23(f) when they
voluntarily dismissed their claims. The panel held that the
parties’ mutual settlement for consideration in this case did
not raise the same concerns. Unlike the plaintiffs in Baker,
the plaintiffs in this case continued litigating their remaining
individual claims after the district court denied class
certification. The panel further held that the resolution of this
case was not a unilateral dismissal of claims, but a mutual
settlement for consideration reached by both parties which
expressly preserved certain claims for appeal.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
BROWN V. CINEMARK USA 3
COUNSEL
Liana Carter (argued), Katherine Kehr, Robert Drexler, and
Glenn Danas, Capstone Law APC, Los Angeles, California,
for Plaintiffs-Appellants.
Emily B. Vicente (argued) and M. Brett Burns, Hunton &
Williams LLP, Los Angeles, California, for Defendants-
Appellants.
ORDER
Defendants have moved to dismiss this case for lack of
appellate jurisdiction under 28 U.S.C. § 1291, in light of the
Supreme Court decision in Microsoft Corp. v. Baker,
582 U.S. __, 137 S. Ct. 1702 (2017), because Plaintiffs
voluntarily settled some of their claims. We deny the motion.
I
We begin with a short procedural history. Silken Brown
filed a Class Action Complaint against Defendants Cinemark
USA, Inc. and Century Theatres, Inc. alleging several wage
and hour claims. Defendants removed the case, and it was
consolidated with similar pending actions by the district
court, including one filed by Mario De La Rosa.
The district court dismissed Brown’s direct wage
statement claim and denied class certification of Plaintiffs’
meal and rest break claims, reporting pay claims, off-the-
clock work claims, derivative wage statement claims, and
direct wage statement claims. Plaintiffs’ remaining
individual claims were set for trial. Defendants filed a
4 BROWN V. CINEMARK USA
summary judgment motion on the remaining claims. The
district court issued a tentative ruling, which proposed
granting the motion in part and denying it in part.
Subsequently, the parties stipulated to the tentative order
and settled all remaining individual claims. Brown and De
La Rosa reserved the right to challenge the district court’s
judgment denying class certification of the direct wage claim
and dismissing Brown’s individual direct wage statement
claim. Brown and De La Rosa appealed the issues reserved
by the settlement.
II
Defendants argue that we lack jurisdiction under
Microsoft v. Baker to consider an appeal of the district court’s
interlocutory judgment because Brown and De La Rosa
voluntarily settled the remaining claims. In Baker, the district
court declined to certify the plaintiffs’ proposed class, and the
appellate court declined discretionary interlocutory review
under Rule 23(f). 137 S. Ct. at 1710–11. Rather than pursue
their individual claims on the merits, the plaintiffs voluntarily
dismissed their own claims with the express purpose of
creating a final judgment for appeal. Id. at 1711. The
plaintiffs then appealed only the district court’s interlocutory
order striking their class allegations. Id. The Supreme Court
held that “the voluntary dismissal essayed by respondents
does not qualify as a ‘final decision’ within the compass of
§ 1291.” Id. at 1707. The Court explained that this “tactic
would undermine § 1291’s firm finality principle, designed
to guard against piecemeal appeals, and subvert the balanced
solution Rule 23(f) put in place for immediate review of
class-action orders.” Id.
BROWN V. CINEMARK USA 5
The parties’ mutual settlement for consideration in this
case does not raise the same concerns. Unlike the plaintiffs
in Baker, Brown and De La Rosa continued litigating their
remaining individual claims after the district court denied
class certification. Some of these individual claims resolved
in favor of Defendants and some resulted in settlement. No
facts suggest that Brown and De La Rosa engaged in sham
tactics to achieve an appealable final judgment. The
resolution of the present case was not a unilateral dismissal of
claims, but a mutual settlement for consideration reached by
both parties which expressly preserved certain claims for
appeal. This case is unlike Baker, where the plaintiffs openly
intended to sidestep Rule 23(f) when they voluntarily
dismissed their claims.
III
The settlement reached in this case does not implicate the
concerns raised in Baker and constitutes a valid final
judgment. Therefore, we have jurisdiction under 28 U.S.C.
§ 1291 to consider the appeal on the merits.1
MOTION DENIED.
1
All other issues presented by this case are discussed in the
memorandum disposition filed concomitantly with the order.