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

J E S S E B U S K

and L A U R I E C A S T R

O , on behalf of themselves and all others similarly situated,

Plaintiffs-Appellants
,

v

.

I N T E G R I T Y S T A F F I

N G S O L U T I O N S , I N C ., Defendant-Appellee

. N o. 11-16892

D.C. No. 2:10-cv-01854- RL H-RJ J

ORDER

F iled Aug ust 13, 2015

B efore: Sidney R. Thomas, Chief J udg e, and J erome F arris, and N. Randy Smith, Circuit J udg es.

OrderB U S K V

. I N T E G R I T Y S T A F F I

N G S O L U T I O N S 2

SUMMARY *

Labor Law

The panel denied a s moot a motion for reconsideration,
vacate d a n d w ithdrew a prior order on remand from the United States Supreme Court, and r e m a n d e d the case to the d i s t rict court for proceeding s consistent with the Supre m e Court’s decision in Integrity Staffing S olutions, Inc. v. Busk
, 135 S. Ct. 513, 519 (2014).

ORDER

Pending b efore the Court is the Plaintiff s ’ M o t ion for Reconsideration of o u r O rder dated J uly 7, 2 015, followi n g remand from the United States Supreme Court. A review o f the docket indic a t e s that there have been a number o f developments in the case of which the panel was unaware.

A b r ief procedural history is useful to understanding th e status. The panel issued its opinion on April 12, 2013. Busk

v. Integrity Staffing Solutions, I nc. , 713 F .3d 5 2 5 (9th Cir. 20 1 3 )
, r ev’d
, 1 35 S. Ct. 513 (2014). On May 3, 2013, the Def e n d a nt filed a petition for r ehearing and rehearing en banc

. No active judg e requested a v o t e on the petition for rehea ri ng en banc

. Therefore, on J une 3, 2013, the panel issued an order d eny ing the petition for rehearing a nd rehearing en banc. No party

soug h t a stay

of the issuance of the mandate. Therefo re, pursuant to F ed. R. App. P. 41(b),

* T h is su m m ary co n stitu

tes n o part 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 U S K V

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N G S O L U T I O N S 3

the Cle rk of Court issued the mandate on J une 12, 2013,
g iving effect to the judg ment ent e r e d A pril 1 2, 2013. The Defendant filed a petition for a writ of certiorari to the United States Supreme Court on O c t o b er 3, 2013. The Supreme C o u r t g ranted the writ on March 7
, 2014. On December 9
, 2014, the Supreme Court issued an opinion reversing the judg ment of this Court. Integrity Staffing Sol u t i o n s, Inc. v

. Busk
,

_ _ U.S. __, 135 S. Ct. 513, 519 (2014). On J uly 7, 2015, o n r emand from the Supreme Court reversing our judg ment, we issued an order affirming the judg m e n t of the district court.

However, d

ur i n g t h ese events, and after the issuance o f the mandate, the case continued to prog ress in district court in Nevada. No party soug h t a stay of p roceeding s. The case

was referred to a mag istrate j u d ge , a nd the Plaintiffs filed a Second Amended Complaint.

On October 12, 2013, the Plaintiffs t h en moved the United States J udicial Panel on Multidistr i ct L itig ation (“MDL Panel”) for centraliz ation of this case and r elated li t i ga t i on in the D istrict of N evada. In re Amazon.com Fulfillment Center W

age and Hour Litigation
, MDL -2504. The MDL Panel concluded that centr a l i z a t ion of the r elated litig ation was warranted, but determined tha t t h e W estern District of Kentucky was the appropriate transferee district for all of the related litig ation. Therefore, on F eb r u a r y 19, 2014, pursuant to 28 U .S.C. § 1407, the MDL Panel issued an order transferring this case to the W e s t e r n D istrict o f Kentucky

.

The case w as opened in the W e stern District of Kentucky

on F e bruary 21, 2014 a s c ase no. 3:14-cv-00139. Since then, the case has prog r essed. F oll o w ing the Supreme CourtB U S K V

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decision in Integrity Staffing Solutions
, the Plaintiffs moved the district court to sug g est to the MDL Panel a remand to the District of Nevada, but it subsequently withdrew the request and the district court denied the motion as moot. The Plaintiffs subsequently filed a Third Amended Complai nt, and the case remains pending in t h e W estern District o f Kentucky

.

The Plaintiffs did not ad v i s e us of any of these developments in their motion t o r e c onsider. However, the de v e l o p ments have g reat bearing o n our proposed action. The Plaintiffs seek reconsideration of our order, arg uing that the state law claims raised f or the first time on appeal should be remand ed

. However, the filing of multiple amended complaints in district court following the i s suance of the mandate renders any

further remand of state claims moot.

Nonetheless, we recog n iz e that there is a possibility that

our J uly 7, 2015 order could be miscons t r u e d as bearing on the merits of the pending litig ation. Therefore, we vacate a nd withdraw our order issued on J uly 7
, 2 0 1 5

. I n lieu thereof,

we simply remand this case to the district c o u r t for proceeding s consistent with the Supreme Court’s decision in Integrity Staffing Solutions

.

W e need n ot, and do not, decide or r e a ch any f urther issues in the c ase. W e d e n y Plaintiff’s Motion for Reconsideration of our J u ly 7, 2015 Order as moot. The Clerk of Court shall transmit a c o p y of this o rder to the District o f Nevada, the W estern District o f Kentucky
, a nd t he MDL Panel.

IT IS SO ORDERED.