FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JESSE BUSK and LAURIE CASTRO, on

behalf of themselves and all others

similarly situated,

Plaintiffs-Appellants,

v.

INTEGRITY STAFFING SOLUTIONS,

INC.,

Defendant-Appellee.

No. 11-16892

D.C. No.

2:10-cv-01854-

RLH-RJJ

ORDER

Filed August 13, 2015

Before: Sidney R. Thomas, Chief Judge,

and Jerome Farris, and N. Randy Smith, Circuit Judges.

Order
2 BUSK V. INTEGRITY STAFFING SOLUTIONS

SUMMARY*

Labor Law

The panel denied as moot a motion for reconsideration,

vacated and withdrew a prior order on remand from the

United States Supreme Court, and remanded the case to the

district court for proceedings consistent with the Supreme

Court’s decision in Integrity Staffing Solutions, Inc. v. Busk,

135 S. Ct. 513, 519 (2014).

ORDER

Pending before the Court is the Plaintiffs’ Motion for

Reconsideration of our Order dated July 7, 2015, following

remand from the United States Supreme Court. A review of

the docket indicates that there have been a number of

developments in the case of which the panel was unaware.

A brief procedural history is useful to understanding the

status. The panel issued its opinion on April 12, 2013. Busk

v. Integrity Staffing Solutions, Inc., 713 F.3d 525 (9th Cir.

2013), rev’d, 135 S. Ct. 513 (2014). On May 3, 2013, the

Defendant filed a petition for rehearing and rehearing en

banc. No active judge requested a vote on the petition for

rehearing en banc. Therefore, on June 3, 2013, the panel

issued an order denying the petition for rehearing and

rehearing en banc. No party sought a stay of the issuance of

the mandate. Therefore, pursuant to Fed. R. App. P. 41(b),

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

been prepared by court staff for the convenience of the reader.
BUSK V. INTEGRITY STAFFING SOLUTIONS 3

the Clerk of Court issued the mandate on June 12, 2013,

giving effect to the judgment entered April 12, 2013. The

Defendant filed a petition for a writ of certiorari to the United

States Supreme Court on October 3, 2013. The Supreme

Court granted the writ on March 7, 2014. On December 9,

2014, the Supreme Court issued an opinion reversing the

judgment of this Court. Integrity Staffing Solutions, Inc. v.

Busk, __ U.S. __, 135 S. Ct. 513, 519 (2014). On July 7,

2015, on remand from the Supreme Court reversing our

judgment, we issued an order affirming the judgment of the

district court.

However, during these events, and after the issuance of

the mandate, the case continued to progress in district court

in Nevada. No party sought a stay of proceedings. The case

was referred to a magistrate judge, and the Plaintiffs filed a

Second Amended Complaint.

On October 12, 2013, the Plaintiffs then moved the

United States Judicial Panel on Multidistrict Litigation

(“MDL Panel”) for centralization of this case and related

litigation in the District of Nevada. In re Amazon.com

Fulfillment Center Wage and Hour Litigation, MDL-2504. 

The MDL Panel concluded that centralization of the related

litigation was warranted, but determined that the Western

District of Kentucky was the appropriate transferee district

for all of the related litigation. Therefore, on February 19,

2014, pursuant to 28 U.S.C. § 1407, the MDL Panel issued an

order transferring this case to the Western District of

Kentucky.

The case was opened in the Western District of Kentucky

on February 21, 2014 as case no. 3:14-cv-00139. Since then,

the case has progressed. Following the Supreme Court
4 BUSK V. INTEGRITY STAFFING SOLUTIONS

decision in Integrity Staffing Solutions, the Plaintiffs moved

the district court to suggest 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 Complaint,

and the case remains pending in the Western District of

Kentucky.

The Plaintiffs did not advise us of any of these

developments in their motion to reconsider. However, the

developments have great bearing on our proposed action. 

The Plaintiffs seek reconsideration of our order, arguing that

the state law claims raised for the first time on appeal should

be remanded. However, the filing of multiple amended

complaints in district court following the issuance of the

mandate renders any further remand of state claims moot.

Nonetheless, we recognize that there is a possibility that

our July 7, 2015 order could be misconstrued as bearing on

the merits of the pending litigation. Therefore, we vacate and

withdraw our order issued on July 7, 2015. In lieu thereof,

we simply remand this case to the district court for

proceedings consistent with the Supreme Court’s decision in

Integrity Staffing Solutions.

We need not, and do not, decide or reach any further

issues in the case. We deny Plaintiff’s Motion for

Reconsideration of our July 7, 2015 Order as moot. The Clerk

of Court shall transmit a copy of this order to the District of

Nevada, the Western District of Kentucky, and the MDL

Panel.

IT IS SO ORDERED.