NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 22 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SERGIO GONZALEZ, on behalf of himself No. 17-55787
and all others similarly situated,
D.C. No.
Plaintiff-Appellant, 5:16-cv-02287-JGB-KK
v.
MEMORANDUM*
COVERALL NORTH AMERICA, INC.,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
Jesus G. Bernal, District Judge, Presiding
Argued and Submitted December 5, 2018
Pasadena, California
Before: RAWLINSON and BEA, Circuit Judges, and RICE,** Chief District
Judge.
Coverall North America, Inc. (“Coverall”) is a franchisor of commercial
cleaning businesses. Sergio Gonzalez (“Gonzalez”) is one of Coverall’s
franchisees. In November 2016, Gonzalez filed a class action against Coverall,
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Thomas O. Rice, Chief United States District Judge
for the Eastern District of Washington, sitting by designation.
alleging that he and other similarly situated individuals are misclassified as
independent contractors, rather than employees of appellee, in violation of
California law. Coverall subsequently filed a Motion to Compel Arbitration
pursuant to the parties’ “Janitorial Franchise Agreement.” The district court
granted Coverall’s motion to compel arbitration and stayed further proceedings
pending a ruling by the arbitrator as to whether the parties’ dispute was subject to
arbitration. Thereafter, rather than proceeding to arbitration, Gonzalez filed a
motion to dismiss his claims, which the district court granted without prejudice.
Having secured the dismissal of his complaint, Gonzalez pursued an appeal in this
court under 28 U.S.C. § 1291. Gonzalez seeks reversal of the district court’s order
granting Coverall’s motion to compel arbitration. We assume the parties’
familiarity with the facts and procedural history.
Coverall argues that this court lacks jurisdiction to hear Gonzalez’s appeal
because “Plaintiff’s attempt to manufacture appellate jurisdiction violates the final-
judgment rule, the Federal Arbitration Act’s explicit bar on interlocutory appeals,
and prevailing case law.” We agree, and we dismiss Gonzalez’s appeal for lack of
jurisdiction.
It is well-established that § 16(b) of the Federal Arbitration Act (“FAA”)
bars appeals of interlocutory orders compelling arbitration and staying judicial
proceedings. See, e.g., Green Tree Fin. Corp.-Alabama v. Randolph, 531 U.S. 79,
2 17-55787
86 & n.2 (2000) (contrasting a dismissal with prejudice, appealable as a “final
decision” under § 16(a)(3), with a stay, which “would not be appealable”);
MediVas, LLC v. Marubeni Corp., 741 F.3d 4, 7 (9th Cir. 2014) (“[A]n order
compelling arbitration may be appealed if the district court dismisses all the
underlying claims, but may not be appealed if the court stays the action pending
arbitration.”). Under the FAA, a party seeking to appeal an order staying the
action and compelling arbitration must first secure permission from both the
district court and the court of appeals under 28 U.S.C. § 1292(b). See 9 U.S.C. §
16(b); Johnson v. Consumerinfo.com, Inc., 745 F.3d 1019, 1023 (9th Cir. 2014)
(holding that Ҥ 1292(b) provides the sole route for immediate appeal of an order
staying proceedings and compelling arbitration.”).
Here, the district court’s order directing the parties to arbitration and staying
further proceedings is not an appealable, final decision under 28 U.S.C. § 1291.
To appeal from the arbitration order, Gonzalez was obliged to obtain the district
court’s permission for an interlocutory appeal under 28 U.S.C. § 1292(b). See 9
U.S.C. § 16(b). It is undisputed, however, that Gonzalez failed to seek or secure
the requisite certification from the district court.
It makes no difference that Gonzalez then secured a voluntary dismissal
without prejudice. A plaintiff’s “voluntary dismissal without prejudice is
ordinarily not a final judgment from which the plaintiff may appeal.” Concha v.
3 17-55787
London, 62 F.3d 1493, 1507 (9th Cir. 1995) (emphasis in original). Indeed,
Gonzalez made clear that he wished voluntarily to dismiss his case only so that he
could immediately “seek review of the [stay order].”
Accordingly, we dismiss this appeal for lack of jurisdiction.
DISMISSED.
4 17-55787