F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

S I L K E N B R O W N ; M A R I O D E L A R O S A , individually and on behalf of other members of the g eneral public similarly situated and as ag g rieved employ e rs pursuant to the Private Attorney s General Act (“PAGA”),

Plaintiffs-Appellants
,

v

.
C I N E M A R K USA, I

N C .; C E N T U R Y T H E A T R E S , I N C ., Defendants-Appellees. N o. 16-15377

D.C. No. 3:13-cv-05669- W HO

ORDER

F iled December 7, 2017

B efore: Sidney

R. Thomas, Chief J udg e, and Stephen Reinhardt and Kathleen M. O’Malley
, * Circuit J udg e s.

* T h e Ho n o rab le Kath leen M. O ’ Malley
, Un ited S tates Circu it J u dg e f o r th e U.S. Co u rt of A pp eals f o r th e Fed eral Ci r c u i t , s ittin g b y d esig n atio n

.B R O W N V

. C I N E M A R K USA 2

SUMMARY * *

Appellate Jurisdiction

The panel denied a moti on to dismiss for lack o f jurisdiction a c lass action complaint alleg ing wag e and hour claims, and held that the court h a d jurisdiction under 28 U.S.C. § 1291 to consider the appeal on the merits.

Defendants Cinemark USA, I nc

. a nd Century Theaters, I nc. soug ht to dismiss for la c k of appellate jurisdiction in lig ht of the Supreme Court decision in M i c r osoft Corp. v

. Baker
, 137 S. Ct. 1702 (2017), because plaintiffs voluntarily settled some of their claims.

The p anel h eld that this case w as unlike B aker
, where the plaintiffs intended to sidestep F ed. R. Civ. P. 23(f) when they voluntarily dismissed their c laims. The panel held th a t t h e parties’ mutual settlement for consideration in this ca s e did not raise the same concerns. Unlike the plaint i ffs in Baker
, the plaintiffs in this case continued litig ating their remaining individual cla i m s after the district court denied class certification. The panel further held that the resolution of this

case was not a unilateral dismi s s a l of claims, but a mutual settlement for consideration reached by b oth parties which

ex p ressly preserved certain claims for appeal.

** T h is su m m ary co n stitu

t es n o p art o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.B R O W N V

. C I N E M A R K USA 3

COUNSEL

L i a na Carter (arg

ued), Katherine Kehr, Robert Drex ler, a n d Glenn D anas, Capstone L a w APC, L os Ang eles, California, for Plaintiffs-Appellants.

Emily B

. Vicente ( arg ued) and M. B rett B u rns, Hunton & W illiams L L P, L os A ng ele s, California, for DefendantsAppellants.

ORDER

Defendants h ave mov e d t o dismiss this case for lack o f appellate jurisdiction under 28 U.S.C. § 1291, in lig ht of the Supreme Court decision in Microsoft Corp. v

. B a ker
, 582 U.S. __, 137 S. Ct. 1702 (2017), because Plaintiffs voluntarily settled some of their c laims. W e deny the motion.

I

W e beg in with a short p rocedural h istory

. Silken B rown filed a Class Action Complaint ag ainst Defendants Cinemark USA, I nc. and Century Theatres, I nc. alle g ing several w ag e and hour claims. Defendants removed the case, and it was consolidated with similar pending actions b y the dis t rict court, including one filed by Mario De L a Rosa.

The district court dismissed B rown’s direct w ag e statement claim and denied class certificatio n of Plaintiffs’ meal and rest break claims, r eport i n g pay claims, off-theclock work claims, d erivative w a ge statement claims, a nd direct wag e stat e m e n t claims. Plaintiffs’ remaining ind i v i d ual claims were set for trial. Defendants filed aB R O W N V

. C I N E M A R K USA 4

s u m m a ry judg ment motion on the remaining claims. T h e district court issued a tentative ruling
, which proposed g ranting the motion in part and deny ing it in part.

Subsequently
, the parties stipulated to the tentative order

a nd settled all remaining individual claims. B rown an d D e L a Rosa reserved the rig ht to challeng e the dis t r i ct c o urt’s judg ment deny ing class c ertification of the direct wag e claim and dismissing B rown’s individual direct wag e s t atement claim. B rown and De L a Rosa ap p e a l ed the issues reserved by the settlement.

I I

Defendants arg ue that we lack jurisdiction u n d e r Microsoft v

. Baker to consider an appeal of the district court’s i nterlocutory judg ment because B rown and De L a R o s a voluntarily settled the remaining c laims. I n Baker
, the district court d eclined to certify the plaintiffs’ proposed c lass, a nd the appellate court declined discretionary interlocutory r eview 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 cl a i m s with the ex press purpose o f

c r e a t i n g a final judg ment for appeal. Id. at 1711. T h e plaintiffs then appealed only the district court’s interlocutory order striking their class alleg ations. Id. The Supreme Court held that “the voluntary dismissal essay ed by r e s p ondents do es n ot qualify as a ‘final decision’ w ithin the compass o f § 1291.” Id. at 1707. The Court ex plained t hat this “tactic would undermine § 1 291’s fir m f i n a lity principle, desig n ed to g uard ag a inst piecemeal appeals, a n d subvert the balanced solution Rule 23(f) pu t in place for immediate review o f class-action orders.” Id.B R O W N V

. C I N E M A R K USA 5

The parties’ mutual settlement f or c onsid er a t i o n in this

case does not raise the same concerns. Unlike the p l a i n t i f fs in Baker
, B rown and D e L a Rosa continued litig ating their remaining individual claims af ter the district court denied class c ertification. Some of these individual claims resolved in favor of Defendants a n d s o me r esulted in settlement. No facts sug g est that B rown and De L a Ro sa eng ag e d in sham tactics t o a c h ieve an appealable final judg ment. The resolution of the p r esent case was n ot a unilateral dismissal o f claims, but a mutual settlement for consideration reached b y both parties which ex pressly p reserved certain c laims for appeal. This case is unlike Baker
, where the plaintiffs openly i n t e n ded to sidestep Rule 23(f) when they voluntarily dismissed their claims.

I I I

The settlement reached in this c a se does not implicate the

concerns raised in Baker and constitutes a vali d f i nal judg ment. Therefore, w e have jurisdiction under 28 U .S.C. § 1291 to consider the appeal on the merits. 1

MOTION DENIED.

1 A ll o th er issu es presen te d b y t h i s case are d iscu ssed in th e
m em o ran d u m

d isp o s itio n

f iled co n co m itan tly

w ith th e o rd er.