Jose Ramirez v. Xpo Cartage, Inc.

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 20, 2019
• Docket: 17-55848
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 20 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JOSE ANGEL RAMIREZ; et al., No. 17-55848

Plaintiffs-Appellees, D.C. Nos. 2:15-cv-03830-WDK-AGR v. 2:15-cv-06059-WDK-AGR 2:15-cv-06062-WDK-AGR XPO CARTAGE, INC., FKA Pacer Cartage, 2:15-cv-06064-WDK-AGR Inc., 2:15-cv-06065-WDK-AGR

Defendant-Appellant. MEMORANDUM*

Appeal from the United States District Court for the Central District of California William D. Keller, District Judge, Presiding

Submitted February 15, 2019** Pasadena, California

Before: CALLAHAN and OWENS, Circuit Judges, and KORMAN,*** District Judge.

XPO Cartage, Inc., formerly known as Pacer Cartage, Inc. (“Pacer”), appeals

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Edward R. Korman, United States District Judge for the Eastern District of New York, sitting by designation. from the district court’s judgment, after a four-day bench trial, awarding damages

in favor of truck drivers Jose Ramirez, Jose Alba, Jose Peraza, Mario Alba, and

Mauricio Rodriguez (“the Drivers”), who alleged that Pacer misclassified them as

independent contractors instead of employees. As the parties are familiar with the

facts, we do not recount them here. We decline to reach the sole issue raised on

appeal due to waiver and affirm the district court judgment.

Pacer presents a single issue on appeal: Whether California Labor Code

section 2802 is preempted by the federal Truth in Leasing (“TIL”) regulations, 49

C.F.R. § 376.12(e)-(j). Pacer asserts that the Drivers, even as employees, are not

entitled to damages under section 2802, which mandates that employers reimburse

employees “for all necessary expenditures” incurred by employees in the discharge

of their duties. Cal. Lab. Code § 2802(a). Pacer argues that the TIL regulations

guarantee a zone of “free play” where motor carriers and owner-operator truck

drivers may decide how to allocate costs between them without any regulatory

interference. Thus, according to Pacer, section 2802 and the TIL regulations

unavoidably conflict.

“As a general rule, an appellate court will not hear an issue raised for the

first time on appeal.” Whittaker Corp. v. Execuair Corp., 953 F.2d 510, 515 (9th

Cir. 1992). Although there is no “bright line rule” to determine whether an issue

was properly raised below, “[a] workable standard . . . is that the argument must be

2 raised sufficiently for the trial court to rule on it.” Id. (citation omitted).

Here, Pacer did not sufficiently raise the issue before the district court.

Pacer mentioned the possibility of the TIL regulations preempting section 2802 in

one sentence in a brief early in the litigation, and the district court copied this

sentence in a pre-trial conference order summarizing Pacer’s defenses. But Pacer

never raised the issue again, even when the district court repeatedly pressed Pacer

to explain its preemption arguments and requested that Pacer address whether the

Drivers were entitled to reimbursement under section 2802. See Foti v. City of

Menlo Park, 146 F.3d 629, 637-38 (9th Cir. 1998) (concluding that an issue was

waived when a party “failed to present complete arguments” after the court “noted

that it needed fuller explanations”), amended on denial of reh’g (July 29, 1998).

Thus, Pacer “effectively abandoned” the issue. Walsh v. Nev. Dep’t of Human

Res., 471 F.3d 1033, 1037 (9th Cir. 2006) (“Without any ‘overture to the district

court to suggest that [the party] had a continuing interest in pursuing [the claim] . .

. the district court had no reason to consider the contention . . . .’” (citation

omitted)).

Pacer argues that the TIL regulations were discussed during the trial, but

these references to the regulations concerned the separate issue of whether the

Drivers were independent contractors or employees under California common law.

On appeal, Pacer does not challenge the district court’s conclusion that the Drivers

3 are employees. See Moreno Roofing Co. v. Nagle, 99 F.3d 340, 343 (9th Cir.

1996) (determining that an issue was waived, even though the party referenced the

relevant statutory provision before the district court, because the party made a

different argument based on the provision on appeal).1

AFFIRMED.

1 The Drivers’ motion to dismiss the appeal (Dkt. Nos. 32 and 34) is now moot.