FILED
NOT FOR PUBLICATION
AUG 13 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
YADIR A. ONTIVEROS, as an No. 17-56644
individual, and on behalf of all others
similarly situated, D.C. No.
2:15-cv-07118-DMG-RAO
Plaintiff-Appellee,
v. MEMORANDUM*
SAFELITE FULFILLMENT, INC., a
Delaware corporation,
Defendant-Appellant,
and
SAFELITE GROUP, INC., et al.,
Defendants.
Appeal from the United States District Court
for the Central District of California
Dolly M. Gee, District Judge, Presiding
Argued and Submitted August 8, 2018
Pasadena, California
Before: GRABER, WARDLAW, and CHRISTEN, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
In this class action, Plaintiff Yadir A. Ontiveros alleges that Defendant
Safelite Fulfillment, Inc. violated California’s wage and hour laws. The parties
agreed to have the district court decide the merits of Plaintiff’s claims first, on
summary judgment, and then to litigate class certification. After the district court
resolved several key issues in Plaintiff’s favor, Defendant mailed to putative class
members packets containing settlement agreements and encouraging putative class
members to settle. The district court ruled that the communications were
misleading, invalidated the releases contained in the settlement agreements, and
ordered Defendant to send a "curative notice" to the individuals who had received
the packets. Defendant appeals. On de novo review, Bingue v. Prunchak, 512
F.3d 1169, 1172 (9th Cir. 2008), we dismiss the appeal for lack of jurisdiction.
In the absence of a final judgment, we lack jurisdiction to review the orders
in question. 28 U.S.C. § 1291; Dannenberg v. Software Toolworks Inc., 16 F.3d
1073, 1074 (9th Cir. 1994). No exception to the final judgment rule applies here
because Defendant has not identified a "right at stake [that] will be destroyed if not
vindicated before trial." McElmurry v. U.S. Bank N.A., 495 F.3d 1136, 1140 (9th
Cir. 2007) (internal quotation marks and brackets omitted).
Defendant’s interests in avoiding the uncertainty and costs of litigation,
alone, are not so great as to justify immediate review. Assuming that the
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settlement agreements at issue are valid, only some putative class members settled
their claims—meaning that Defendant still must litigate this case. If the result is
adverse to Defendant, it remains free to argue, in a later appeal following final
judgment, that the district court erred in invalidating the releases and that those
releases free Defendant from having to compensate the settling class members
further.
As for the argument that the orders infringe on Defendant’s First
Amendment rights, Defendant has not identified a risk of harm so great as to
justify across-the-board appellate review of all orders requiring curative notice.
See Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 108 (2009) (explaining that a
party seeking review before a final judgment must demonstrate that "deferring
review until final judgment so imperils the interest as to justify the cost of allowing
immediate appeal of the entire class of relevant orders").
DISMISSED.
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