Philip Bobbitt v. Milberg LLP

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 1, 2018
• Docket: 13-15812
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 1 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

PHILIP BOBBITT, individually and on No. 13-15812 behalf of all others similarly situated; et al., D.C. No. 4:09-cv-00629-FRZ Plaintiffs, District of Arizona, Tucson and ORDER LANCE LABER,

Intervenor-Plaintiff- Appellant,

v.

MILBERG LLP; et al.,

Defendants-Appellees.

On Remand from the United States Supreme Court

Before: THOMAS, Chief Judge, OWENS, Circuit Judge, and BATTAGLIA,* District Judge.

This case returns to us pursuant to the Supreme Court’s order remanding in

light of Microsoft Corp. v. Baker, 137 S. Ct. 1702 (2017).

* The Honorable Anthony J. Battaglia, United States District Judge for the Southern District of California, sitting by designation. When the district court denied class certification in this case, Plaintiffs

Philip Bobbitt and John J. Sampson stipulated to voluntary dismissal with

prejudice of their personal claims, and Intervenor-Plaintiff-Appellant Lance Laber

intervened solely for the purpose of appealing the denial of class certification. In

Microsoft, the Supreme Court held that 28 U.S.C. § 1291 does not establish

jurisdiction over an appeal from a denial of class certification where the named

plaintiffs have stipulated to the dismissal with prejudice of their individual claims

in order to obtain a final judgment. 137 S. Ct. at 1715. As that is precisely the

procedural posture here, this court lacks appellate jurisdiction over this case. Cf.

Brown v. Cinemark USA, Inc., 876 F.3d 1199, 1201 (9th Cir. 2017).

Accordingly, we DISMISS this appeal for lack of jurisdiction. The parties

shall bear their own fees and costs on appeal. A certified copy of this order shall

constitute the mandate.