1 18-607 Bernardino v. Barnes & Noble Booksellers, Inc. 

### UNITED STATES COURT OF APPEALS FOR THE SECO ND CIRCUIT SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROC EDURE 32.1 AND THIS COURT = S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMEN T FILED WITH THIS CO URT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATA BASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPR ESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Fole y Square, in the City of New York, on the 7 th day of March, two thousand nineteen.

Present: D EBRA A NN L IVINGSTON , G ERARD E. L YNCH , Circuit Judges , A LISON J. N ATHAN , District Judge .*

_____________________________________ M ELINA B ERNARDINO , individually and on behalf of other similarly situated persons, Plaintiff-Appellant , v. 18-607

B ARNES & N OBLE B OOKSELLERS , I NC ., Defendant-Appellee

.

_____________________________________ For Plaintiff-Appellant: J AY B ARNES , Barnes & Associates, Jefferson City, MO. David A. Straite, Joel B. Strauss, Ralph E. Labaton, Kaplan Fox & Kilsheimer LLP, New York, NY.

* Judge Alison J. Nathan, of the United States District Court for the Southern District of New York, sitting by designation.2 Laurence D. King, Kaplan Fox & Kilsheimer LLP, San Francisco, CA. Barry R. Eichen, Evan J. Rosenberg, Eichen Crutchlow & Zaslow, LLP, Edison, NJ. Marc Wites, Wites Law Firm, Lighthouse Point, FL. For Defendant-Appellee: S ANDRA C. G OLDSTEIN , P.C. (Stefan Atkinson, on the brief ), Kirkland & Ellis LLP, New York, NY. Appeal from a judgment of the U.S. District Court for the So uthern District of New York (Kaplan, J .). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that this appeal is DISMI SSED for lack of jurisdiction. Plaintiff-Appellant Melina Bernardino (“ Bernardino”) appeals from a January 31, 2018

order of the U.S. District Court for the Southern District of New York (Kaplan, J .), granting Defendant-Appellee Barnes & Noble Booksellers, In c.’s (“B&N”) motion to compel arbitration, denying as moot Bernardino’s motion to strike, and directing the Clerk of Court to “close the case.” SPA-3. We assume the parties’ fam iliarity with the underlying facts, the procedural history of the case, and the issues on appeal. Under the Federal Arbitration Act (“FAA”), “[ a]n appeal may be taken from . . . a final decision with respect to an arbitration,” 9 U.S.C. § 16(a)(3), but “an appeal may not be taken from an interlocutory order” granting a stay or compelling arbitration, id. §§ 16(b)(1), (3) (emphasis added). It is undisputed that the motion granted by the district court sought an “order compelling arbitration of [Bernardino’s] claims against [B&N] and st aying all proceedings.” A-151; see Appellant’s Reply Br. at 3; Appell ee’s Br. at 2. It is that motion, lo cated at District Court Docket No. 39, that was referenced in the di strict court’s Memo randum and Order. See SPA-3 (“Defendant’s motion to compel arbitration [DI 39 ] is granted.”). Moreover , the magistrate judge3 below issued a Report and Recommendation “respect fully recommend[ing]” that the district court “grant B&N’s motion to compel arbitration and st ay all proceedings.” SPA-32. The district court accepted that recommendation. See SPA-3 (agreeing, in relevant part, “with the findings and conclusions” of the magistrate judge). Despite this clear evidence that the district court entered only a stay of proceedings pending arbitration, Bernardino argue s that the district court actually “entered judgment dismissing, rather than staying, the action,” Appellant’s Br. at 1, because the Memorandum a nd Order directed that “[t]he Clerk shall close the case,” SPA-3. However, this Court has previously determined that there is “no jurisdictional significance to [a] docket entry marking [a] case as ‘closed,’ which we will

assume was made for administrativ e or statistical convenience.” Filanto, S.p.A. v. Chilewich Int’l Corp. , 984 F.2d 58, 61 (2d Cir. 1993). 1 Bernardino has cited no bindi ng precedent to the contrary. 2 Nor do the entry of judgment on the docket or th e attachment of “Right to Appeal” documents

1 Many other circuits concur with the proposition that “closing” a case in the arbitration context has no jurisdictional effect. See, e.g. , Freeman v. Pittsburgh Glass Works, LLC , 709 F.3d 240, 247 (3d Cir. 2013) (concluding that where district court ordered only that case “be marked CLOSED,” but “never mentioned a dismissal,” district court’s order was not a final appealable decision); Dees v. Billy , 394 F.3d 1290, 1294 (9th Cir. 2005) (collecting cases and no ting that “[a]lthough we have yet to address the jurisdictional effects of a district court order admi nistratively closing a case, those circuits that have confronted the issue have unanimously echoed the Fift h Circuit’s conclusion that an administrative closing has no jurisdictional effect. . . . We see no reason to depart from this substan tial body of persuasive precedent. We therefore hold that a district court order staying judicial proceedings and compelling arbitration is not appealable even if accompanied by an administrative closing. An order administratively closing a case is a docket management tool that has no jurisdictional effect”); Corion Corp v. Chen , 964 F.2d 55, 56–57 (1st Cir. 1992) (determining that directi on of district court “that the case be ‘administratively closed’ pending arbitration . . . [is not] equivalent to a final judgment of dismissal”).

2 Bernardino argues that this Court’s decision in Filanto is no longer good law after the Supreme Court’s decision in Green Tree Fin. Corp.-Ala v. Randolph , 521 U.S. 79 (2000). This is incorrect. It is true that Filanto relied on the “independent/embedded” analysis routinely applied by this Court prior to Green Tree and subsequently abrogated. See Salim Oleochemicals v. M/V SHROPSHIRE , 278 F.3d 90, 92–93 (2d Cir. 2002). However, our separate conclusion in Filanto that directing the clerk to close the case is not jurisdictionally equivalent to a dismi ssal, 984 F.2d at 61, was unaffected by Green Tree and remains good law.4 have any jurisdictional significan ce, as these were administrativ e actions taken by the Clerk of Court following the district court’ s direction that the case be closed. Furthermore, throughout the proceedings leading up to its Memorandum and Order, the district court repeat edly made clear that it interpreted B&N’s motion as a motion to stay all proceedings pending arbitration. See, e.g. , A-56 (“Look, my experience is that typically when a de fendant is sued on a claim which the defendant asserts is subject to arbitration, the de fendant moves to stay the proceeding pending arbitration . . . .”); A-56 (“So what we’re really talking about is a motion to stay the case . . . pending arbitration on the ground that the dispute tendered by the plainti ff to the Court is arbitrable and that’s it.”); A-63 (making a handwritten not e on the parties’ proposed briefing schedule that “the anticipated motion will be one to stay the ac tion pending the outcome of arbitration. On that basis, the proposed schedule is approved on cons ent”). The district co urt’s understanding was correct. As we have held, a district court is required to enter a st ay when a party has so requested

and “all claims have been referred to ar bitration.” Katz v. Cellco P’ship , 794 F.3d 341, 345 (2d Cir. 2015). For these reasons, we conclude that the distri ct court’s order was an interlocutory order

rather than a final decision and is not appealable under the FAA.

* * * We have considered Bernardino’s remaining ju risdictional arguments and find them to be without merit. Accordingly, we DISMISS the appeal for lack of jurisdiction.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk