Andrew Nelson, proposed plaintiff intervenor and Samuel Falcon, proposed plaintiff intervenor, Movants-Appellants, v. FLOWERS FOODS INC (2018)

United States Court of Appeals, Ninth Circuit.

Giovanni MARTINEZ; et al., Plaintiffs, Andrew Nelson, proposed plaintiff intervenor and Samuel Falcon, proposed plaintiff intervenor, Movants-Appellants, v. FLOWERS FOODS, INC; et al., Defendants-Appellees.

No. 16-56327

Decided: April 25, 2018

Before: WARDLAW and HURWITZ, Circuit Judges, and OLIVER, ** District Judge.

Aaron David Kaufmann, Attorney, Elizabeth Gropman, Beth A. Ross, Esquire, Attorney, Leonard Carder, LLP, Oakland, CA, Valerie Brender, Peter Rukin, Attorney, Rukin Hyland LLP, Oakland, CA, for Plaintiffs Giovanni Martinez, Jose Almendariz, James King, Martin Salazar, Humberto Lopez Aaron David Kaufmann, Attorney, Beth A. Ross, Esquire, Attorney, Leonard Carder, LLP, Oakland, CA, Valerie Brender, Peter Rukin, Attorney, Rukin Hyland LLP, Oakland, CA, for Movant-Appellant Andrew Nelson Aaron David Kaufmann, Attorney, Leonard Carder, LLP, Oakland, CA, Valerie Brender, Peter Rukin, Attorney, Rukin Hyland LLP, Oakland, CA, Beth A. Ross, Esquire, Attorney, Leonard Carder, LLP, San Francisco, CA, for Movant-Appellant Samuel Falcon Alexander M. Chemers, Attorney, Johnnie Alphonso James, Esquire, Attorney, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Los Angeles, CA, Shay Dvoretzky, Jones Day, Washington, DC, A. Craig Cleland, Attorney, Margaret Santen Hanrahan, Esquire, Attorney, Kevin Patrick Hishta, Esquire, Attorney, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Atlanta, GA, Francis L. Tobin, Attorney, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., San Diego, CA, for Defendants-Appellees Anton Metlitsky, O'Melveny & Myers LLP, New York, NY, Brittany Allison Rogers, Attorney, O'Melveny & Myers LLP, Los Angeles, CA, for Amicus Curiae Chamber of Commerce of the United States of America

ORDER ***

The complaint in this diversity case asserted claims on behalf of a putative class of present and former truck drivers against Flowers Foods, Inc. and related entities, alleging that the drivers should have been treated as employees rather than independent contractors. After the district court denied class certification, the parties settled and stipulated to dismissal of the action with prejudice. Pursuant to the stipulation, the district court entered the proposed judgment. Andrew Nelson and Samuel Falcon then moved to intervene both as of right under Federal Rule of Civil Procedure 24(a) and permissively under Rule 24(b), seeking to challenge the denial of class certification. The district court denied the motion and this appeal by Nelson and Falcon followed.

We dismiss the appeal for lack of jurisdiction. In Microsoft Corp. v. Baker, the Supreme Court held that 28 U.S.C. § 1291 does not establish jurisdiction over an appeal from a denial of class certification if the named plaintiffs stipulated to the dismissal with prejudice of their individual claims. ––– U.S. ––––, 137 S.Ct. 1702, 1715, 198 L.Ed.2d 132 (2017). And, in Bobbitt v. Milberg LLP, ––– Fed.Appx. –––– (9th Cir. 2018), after a remand by the Supreme Court in light of Baker, we dismissed an appeal by proposed intervenors who sought to challenge the denial of class certification. As here, the appeal in Bobbitt was filed after the plaintiffs had “stipulated to voluntary dismissal with prejudice of their personal claims.” Id.

APPEAL DISMISSED.

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