FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SILKEN BROWN; MARIO DE LA ROSA,

individually and on behalf of other

members of the general public

similarly situated and as aggrieved

employers pursuant to the Private

Attorneys General Act (“PAGA”),

Plaintiffs-Appellants,

v.

CINEMARK USA, INC.; CENTURY

THEATRES, INC.,

Defendants-Appellees.

No. 16-15377

D.C. No.

3:13-cv-05669-

WHO

ORDER

Filed December 7, 2017

Before: Sidney R. Thomas, Chief Judge, and Stephen

Reinhardt and Kathleen M. O’Malley,

*

 Circuit Judges.

* The Honorable Kathleen M. O’Malley, United States Circuit Judge

for the U.S. Court of Appeals for the Federal Circuit, sitting by

designation.
2 BROWN V. CINEMARK USA

SUMMARY**

Appellate Jurisdiction

The panel denied a motion to dismiss for lack of

jurisdiction a class action complaint alleging wage and hour

claims, and held that the court had jurisdiction under

28 U.S.C. § 1291 to consider the appeal on the merits.

Defendants Cinemark USA, Inc. and Century Theaters,

Inc. sought to dismiss for lack of appellate jurisdiction in

light of the Supreme Court decision in Microsoft Corp. v.

Baker, 137 S. Ct. 1702 (2017), because plaintiffs voluntarily

settled some of their claims.

The panel held that this case was unlike Baker, where the

plaintiffs intended to sidestep Fed. R. Civ. P. 23(f) when they

voluntarily dismissed their claims. The panel held that the

parties’ mutual settlement for consideration in this case did

not raise the same concerns. Unlike the plaintiffs in Baker,

the plaintiffs in this case continued litigating their remaining

individual claims after the district court denied class

certification. The panel further held that the resolution of this

case was not a unilateral dismissal of claims, but a mutual

settlement for consideration reached by both parties which

expressly preserved certain claims for appeal.

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
BROWN V. CINEMARK USA 3

COUNSEL

Liana Carter (argued), Katherine Kehr, Robert Drexler, and

Glenn Danas, Capstone Law APC, Los Angeles, California,

for Plaintiffs-Appellants.

Emily B. Vicente (argued) and M. Brett Burns, Hunton &

Williams LLP, Los Angeles, California, for DefendantsAppellants.

ORDER

Defendants have moved to dismiss this case for lack of

appellate jurisdiction under 28 U.S.C. § 1291, in light of the

Supreme Court decision in Microsoft Corp. v. Baker,

582 U.S. __, 137 S. Ct. 1702 (2017), because Plaintiffs

voluntarily settled some of their claims. We deny the motion.

I

We begin with a short procedural history. Silken Brown

filed a Class Action Complaint against Defendants Cinemark

USA, Inc. and Century Theatres, Inc. alleging several wage

and hour claims. Defendants removed the case, and it was

consolidated with similar pending actions by the district

court, including one filed by Mario De La Rosa.

The district court dismissed Brown’s direct wage

statement claim and denied class certification of Plaintiffs’

meal and rest break claims, reporting pay claims, off-theclock work claims, derivative wage statement claims, and

direct wage statement claims. Plaintiffs’ remaining

individual claims were set for trial. Defendants filed a
4 BROWN V. CINEMARK USA

summary judgment motion on the remaining claims. The

district court issued a tentative ruling, which proposed

granting the motion in part and denying it in part.

Subsequently, the parties stipulated to the tentative order

and settled all remaining individual claims. Brown and De

La Rosa reserved the right to challenge the district court’s

judgment denying class certification of the direct wage claim

and dismissing Brown’s individual direct wage statement

claim. Brown and De La Rosa appealed the issues reserved

by the settlement.

II

Defendants argue that we lack jurisdiction under

Microsoft v. Bakerto consider an appeal of the district court’s

interlocutory judgment because Brown and De La Rosa

voluntarily settled the remaining claims. In Baker, the district

court declined to certify the plaintiffs’ proposed class, and the

appellate court declined discretionary interlocutory review

under Rule 23(f). 137 S. Ct. at 1710–11. Rather than pursue

their individual claims on the merits, the plaintiffs voluntarily

dismissed their own claims with the express purpose of

creating a final judgment for appeal. Id. at 1711. The

plaintiffs then appealed only the district court’s interlocutory

order striking their class allegations. Id. The Supreme Court

held that “the voluntary dismissal essayed by respondents

does not qualify as a ‘final decision’ within the compass of

§ 1291.” Id. at 1707. The Court explained that this “tactic

would undermine § 1291’s firm finality principle, designed

to guard against piecemeal appeals, and subvert the balanced

solution Rule 23(f) put in place for immediate review of

class-action orders.” Id.
BROWN V. CINEMARK USA 5

The parties’ mutual settlement for consideration in this

case does not raise the same concerns. Unlike the plaintiffs

in Baker, Brown and De La Rosa continued litigating their

remaining individual claims after the district court denied

class certification. Some of these individual claims resolved

in favor of Defendants and some resulted in settlement. No

facts suggest that Brown and De La Rosa engaged in sham

tactics to achieve an appealable final judgment. The

resolution of the present case was not a unilateral dismissal of

claims, but a mutual settlement for consideration reached by

both parties which expressly preserved certain claims for

appeal. This case is unlike Baker, where the plaintiffs openly

intended to sidestep Rule 23(f) when they voluntarily

dismissed their claims.

III

The settlement reached in this case does not implicate the

concerns raised in Baker and constitutes a valid final

judgment. Therefore, we have jurisdiction under 28 U.S.C.

§ 1291 to consider the appeal on the merits.1

MOTION DENIED.

1 All other issues presented by this case are discussed in the

memorandum disposition filed concomitantly with the order.