NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 21 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
SERGIO GONZALEZ, on behalf of himself No. 19-55511 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 July 7, 2020 Pasadena, California
Before: BERZON and COLLINS, Circuit Judges, and KATZMANN,** Judge.
Memorandum joined by Judge BERZON and Judge KATZMANN; Dissent by Judge COLLINS
Plaintiff Sergio Gonzalez (“Gonzalez”) appeals the district court’s order
denying his motion to reopen his lawsuit against defendant Coverall North
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Gary S. Katzmann, Judge for the United States Court of International Trade, sitting by designation. America, Inc. (“Coverall”). We remand to the district court to apply Henson v.
Fidelity National Financial, Inc., 943 F.3d 434 (9th Cir. 2019).
Gonzalez contends that, following the district court’s order compelling
arbitration and staying the case, he moved to dismiss in reliance on this Court’s
precedent holding that a district court has discretion to stay or dismiss an action
after compelling arbitration and that a dismissal in those circumstances is
appealable. See, e.g., Johnmohammadi v. Bloomingdale’s, Inc., 755 F.3d 1072,
1073-74 (9th Cir. 2014). Gonzalez asserts he could not have anticipated this
Court’s dismissal of his subsequent appeal for lack of jurisdiction. See Gonzalez v.
Coverall N. Am., Inc., 754 F. App’x 594, 596 (9th Cir. 2019).
While Gonzalez’s present appeal—from the district court’s denial of his
motion to reopen—was pending, this Court decided Henson. Addressing
circumstances somewhat analogous to those presented here, Henson analyzed
several factors that a district court should consider when “evaluating the merits of a
Rule 60(b)(6) motion that seeks relief from the dismissal of a [lawsuit] on the
ground of an intervening change in the law.” 943 F.3d at 440.
Because the district court did not have an opportunity to consider whether
and how the Henson factors might apply to this case, we remand to allow the
district court to do so in the first instance.
We decline to address Gonzalez’s arguments that he could not pay for
2 arbitration and was precluded from a forum because of Coverall’s position
regarding the allocation of costs. The only issue before us is whether the district
court should have reopened the case notwithstanding Gonzalez’s motion to dismiss
and failed first appeal. We remand for further consideration of that question in
light of Henson.
REMANDED.
3 FILED Gonzalez v. Coverall North America, Inc., No. 19-55511 OCT 21 2020 MOLLY C. DWYER, CLERK COLLINS, Circuit Judge, dissenting: U.S. COURT OF APPEALS
I dissent from the majority’s holding that this court’s prior decision in this
very case can be said to constitute “an intervening change in the law” that may
warrant granting Plaintiff-Appellant Sergio Gonzalez’s motion to reopen his case
under Federal Rule of Civil Procedure 60(b).
After Gonzalez filed this suit alleging that Defendant-Appellee Coverall
North America, Inc. (“Coverall”) had misclassified him and others similarly
situated to him as independent contractors rather than employees, Coverall moved
to compel arbitration under Gonzalez’s franchise agreement with Coverall. The
district court compelled arbitration on the question of the arbitrability of
Gonzalez’s claims and stayed the case pending the outcome of that arbitration.
After Gonzalez requested a voluntary dismissal in the hope that he might thereby
be able to appeal the arbitration order, the district court dismissed the case without
prejudice but specifically stated that “it did not make a finding as to whether
Plaintiff actually has a right to appeal in this instance.” We ultimately concluded
that there was no appealable final judgment, and we dismissed Gonzalez’s appeal
for lack of jurisdiction. Gonzalez v. Coverall North America, Inc., 754 F. App’x
594, 595 (9th Cir. 2019). Thereafter, Gonzalez (who had previously tried to
reopen his case while the prior appeal was pending) filed the Rule 60(b)(6) motion currently under consideration, which the district court denied. The majority
remands the case with instructions “to apply Henson v. Fidelity National
Financial, Inc., 943 F.3d 434 (9th Cir. 2019),” see Mem. Dispo. at 2, a case which
addressed the standards for a Rule 60(b) motion based on a “change in the
controlling law,” Henson, 943 F.3d at 444. Henson is inapplicable here, and the
majority errs in remanding the case on that basis.
Although the majority asserts that Henson “[a]ddress[ed] circumstances
somewhat analogous to those presented here,” see Mem. Dispo. at 2, that is not
true. In Henson, an intervening decision of the Supreme Court “overrul[ed]
precedent, on which Plaintiffs had relied, that was settled in the Ninth Circuit[.]”
943 F.3d at 447. Of course, nothing comparable is presented here: the majority
does not identify any intervening decision from the Supreme Court or the en banc
Ninth Circuit that altered the governing law applicable to Gonzalez’s case. In
deeming the prior decision in this case to be “somewhat analogous” to a change in
the law, the majority insinuates that it sympathizes with Gonzalez’s assertion that
“he could not have anticipated this Court’s dismissal of his subsequent appeal for
lack of jurisdiction.” See Mem. Dispo. at 2. But there are two problems with this
reasoning.
First, it is inconsistent with law-of-the-case principles for a panel of this
court to treat a decision in a prior appeal in the same case as so unexpected and
2 dubious as to possibly warrant a grant of a Rule 60(b) motion based on a change in
law. See Gonzalez v. Arizona, 677 F.3d 383, 389 n.4 (9th Cir. 2012) (en banc)
(three-judge panel generally must follow the decision in a prior appeal in the same
case). Although we are permitted to depart from the law of the case when the prior
decision “is clearly erroneous and its enforcement would work a manifest
injustice,” id. (citation omitted), that high showing has not been made here, and the
majority does not suggest that it has been. And it is even more troubling for the
majority to suggest that a district court, on remand from a decision of this court,
apparently has discretion to grade a Ninth Circuit panel’s homework by granting a
Rule 60(b) motion on the ground that the panel’s decision was too unanticipated.
The majority cites no authority that justifies this unorthodox conception of the
discretion conferred by Rule 60(b).
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 21 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
SERGIO GONZALEZ, on behalf of himself No. 19-55511 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 July 7, 2020 Pasadena, California
Before: BERZON and COLLINS, Circuit Judges, and KATZMANN,** Judge.
Memorandum joined by Judge BERZON and Judge KATZMANN; Dissent by Judge COLLINS
Plaintiff Sergio Gonzalez (“Gonzalez”) appeals the district court’s order
denying his motion to reopen his lawsuit against defendant Coverall North
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Gary S. Katzmann, Judge for the United States Court of International Trade, sitting by designation. America, Inc. (“Coverall”). We remand to the district court to apply Henson v.
Fidelity National Financial, Inc., 943 F.3d 434 (9th Cir. 2019).
Gonzalez contends that, following the district court’s order compelling
arbitration and staying the case, he moved to dismiss in reliance on this Court’s
precedent holding that a district court has discretion to stay or dismiss an action
after compelling arbitration and that a dismissal in those circumstances is
appealable. See, e.g., Johnmohammadi v. Bloomingdale’s, Inc., 755 F.3d 1072,
1073-74 (9th Cir. 2014). Gonzalez asserts he could not have anticipated this
Court’s dismissal of his subsequent appeal for lack of jurisdiction. See Gonzalez v.
Coverall N. Am., Inc., 754 F. App’x 594, 596 (9th Cir. 2019).
While Gonzalez’s present appeal—from the district court’s denial of his
motion to reopen—was pending, this Court decided Henson. Addressing
circumstances somewhat analogous to those presented here, Henson analyzed
several factors that a district court should consider when “evaluating the merits of a
Rule 60(b)(6) motion that seeks relief from the dismissal of a [lawsuit] on the
ground of an intervening change in the law.” 943 F.3d at 440.
Because the district court did not have an opportunity to consider whether
and how the Henson factors might apply to this case, we remand to allow the
district court to do so in the first instance.
We decline to address Gonzalez’s arguments that he could not pay for
2 arbitration and was precluded from a forum because of Coverall’s position
regarding the allocation of costs. The only issue before us is whether the district
court should have reopened the case notwithstanding Gonzalez’s motion to dismiss
and failed first appeal. We remand for further consideration of that question in
light of Henson.
REMANDED.
3 FILED Gonzalez v. Coverall North America, Inc., No. 19-55511 OCT 21 2020 MOLLY C. DWYER, CLERK COLLINS, Circuit Judge, dissenting: U.S. COURT OF APPEALS
I dissent from the majority’s holding that this court’s prior decision in this
very case can be said to constitute “an intervening change in the law” that may
warrant granting Plaintiff-Appellant Sergio Gonzalez’s motion to reopen his case
under Federal Rule of Civil Procedure 60(b).
After Gonzalez filed this suit alleging that Defendant-Appellee Coverall
North America, Inc. (“Coverall”) had misclassified him and others similarly
situated to him as independent contractors rather than employees, Coverall moved
to compel arbitration under Gonzalez’s franchise agreement with Coverall. The
district court compelled arbitration on the question of the arbitrability of
Gonzalez’s claims and stayed the case pending the outcome of that arbitration.
After Gonzalez requested a voluntary dismissal in the hope that he might thereby
be able to appeal the arbitration order, the district court dismissed the case without
prejudice but specifically stated that “it did not make a finding as to whether
Plaintiff actually has a right to appeal in this instance.” We ultimately concluded
that there was no appealable final judgment, and we dismissed Gonzalez’s appeal
for lack of jurisdiction. Gonzalez v. Coverall North America, Inc., 754 F. App’x
594, 595 (9th Cir. 2019). Thereafter, Gonzalez (who had previously tried to
reopen his case while the prior appeal was pending) filed the Rule 60(b)(6) motion currently under consideration, which the district court denied. The majority
remands the case with instructions “to apply Henson v. Fidelity National
Financial, Inc., 943 F.3d 434 (9th Cir. 2019),” see Mem. Dispo. at 2, a case which
addressed the standards for a Rule 60(b) motion based on a “change in the
controlling law,” Henson, 943 F.3d at 444. Henson is inapplicable here, and the
majority errs in remanding the case on that basis.
Although the majority asserts that Henson “[a]ddress[ed] circumstances
somewhat analogous to those presented here,” see Mem. Dispo. at 2, that is not
true. In Henson, an intervening decision of the Supreme Court “overrul[ed]
precedent, on which Plaintiffs had relied, that was settled in the Ninth Circuit[.]”
943 F.3d at 447. Of course, nothing comparable is presented here: the majority
does not identify any intervening decision from the Supreme Court or the en banc
Ninth Circuit that altered the governing law applicable to Gonzalez’s case. In
deeming the prior decision in this case to be “somewhat analogous” to a change in
the law, the majority insinuates that it sympathizes with Gonzalez’s assertion that
“he could not have anticipated this Court’s dismissal of his subsequent appeal for
lack of jurisdiction.” See Mem. Dispo. at 2. But there are two problems with this
reasoning.
First, it is inconsistent with law-of-the-case principles for a panel of this
court to treat a decision in a prior appeal in the same case as so unexpected and
2 dubious as to possibly warrant a grant of a Rule 60(b) motion based on a change in
law. See Gonzalez v. Arizona, 677 F.3d 383, 389 n.4 (9th Cir. 2012) (en banc)
(three-judge panel generally must follow the decision in a prior appeal in the same
case). Although we are permitted to depart from the law of the case when the prior
decision “is clearly erroneous and its enforcement would work a manifest
injustice,” id. (citation omitted), that high showing has not been made here, and the
majority does not suggest that it has been. And it is even more troubling for the
majority to suggest that a district court, on remand from a decision of this court,
apparently has discretion to grade a Ninth Circuit panel’s homework by granting a
Rule 60(b) motion on the ground that the panel’s decision was too unanticipated.
The majority cites no authority that justifies this unorthodox conception of the
discretion conferred by Rule 60(b).
Second, there is no basis for the majority’s insinuation that the prior panel
decision was wrong or unexpected. The majority notes that we have allowed an
appeal from a district court order dismissing a case without prejudice when “the
court determines that all of the claims raised in the action are subject to
arbitration.” Johnmohammadi v. Bloomingdale’s Inc., 755 F.3d 1072, 1074 (9th
Cir. 2014) (emphasis added) (cited at Mem. Dispo. at 2); see also Interactive
Flight Techs., Inc. v. Swissair Swiss Air Transp. Co., 249 F.3d 1177, 1178–79 (9th
Cir. 2001) (appeal allowed where, after dismissing one claim, the district court
3 “ordered the parties to arbitrate the remaining claims” and “dismissed the action
without prejudice”). But that is not what happened here. The district court had
only determined that the threshold issue of arbitrability needed to be arbitrated,
and that is an inherently interlocutory decision that bears no resemblance to the
definitive dismissal at issue in Johnmohammadi or Interactive Flight. Gonzalez’s
effort to manufacture appellate jurisdiction over the district court’s interlocutory
arbitration ruling by requesting voluntary dismissal thus fell squarely within the
settled rule that such dismissals do not create a final appealable decision, see
Concha v. London, 62 F.3d 1493, 1507 (9th Cir. 1995)—as the prior panel
properly held.
Because the majority’s remand is improper, and I otherwise find no basis for
concluding that the district court abused its discretion in refusing to undo the
consequences of Gonzalez’s “fruitless” “litigation tactic,” I would affirm the
district court’s denial of Gonzalez’s Rule 60(b) motion. I respectfully dissent.