Lee v. Postmates Inc.
Filing
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Order by Chief Magistrate Judge Joseph C. Spero granting 51 Motion to Certify Interlocutory Appeal. The hearing set for May 3, 2019 is VACATED. (jcslc2S, COURT STAFF) (Filed on 4/25/2019)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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DORA LEE, et al.,
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Plaintiffs,
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POSTMATES INC.,
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Re: Dkt. No. 51
Defendant.
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United States District Court
Northern District of California
ORDER GRANTING MOTION TO
CERTIFY INTERLOCUTORY APPEAL
v.
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Case No. 18-cv-03421-JCS
I.
INTRODUCTION
Plaintiffs Dora Lee and Kellyn Timmerman move to certify for interlocutory appeal under
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28 U.S.C. § 1292(b) two previous orders compelling them to arbitrate their claims against
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Defendant Postmates, Inc. The Court finds the matter suitable for resolution without oral
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argument and VACATES the hearing set for May 3, 2019. For the reasons discussed below,
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Plaintiffs’ motion is GRANTED.1
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To the extent that further litigation occurs in this Court, Plaintiffs are admonished to
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comply with all applicable local rules and standing orders requiring chambers copies and proposed
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orders.
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II.
BACKGROUND
Plaintiffs work or worked as couriers who fulfilled orders placed through Postmates’
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platform to deliver food and other items from local restaurants and merchants to local customers.
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There is no indication that Plaintiffs crossed state lines in the course of their work—to the
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contrary, the record suggests that all of their deliveries occurred within California cities—but there
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is evidence that at least some of their deliveries included “goods that were manufactured out-of-
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The parties have consented to the jurisdiction of the undersigned magistrate judge for all
purposes pursuant to 28 U.S.C. § 636(c).
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state,” including clothing, kitchenware, cigarettes, packaged food, and alcoholic beverages.
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Timmerman Decl. (dkt. 37-3) ¶¶ 7–11.
Plaintiff Dora Lee initiated this case in state court as a purported class action, asserting
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wage-and-hour claims under California law and seeking to represent a class of Postmates couriers.
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Evangelis Removal Decl. (dkt. 1-1) Ex. B (Compl.). Postmates removed to this Court based on
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the Class Action Fairness Act and moved to compel individual arbitration of Lee’s claims
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pursuant to the Federal Arbitration Act (“FAA”). See Notice of Removal (dkt. 1); 1st Mot. to
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Compel (dkt. 14). On October 15, 2018, the Court granted that motion, holding that Postmates
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had shown a valid agreement to arbitrate under the FAA and Lee did not fall within the so-called
“transportation worker exception” of 9 U.S.C. § 1 because she was not engaged in interstate
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United States District Court
Northern District of California
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transportation, but allowed an amended complaint naming Kellyn Timmerman and Joshua Albert
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as additional plaintiffs. Order re 1st Mot. to Compel Arbitration (dkt. 31).2 On December 17,
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2018, the Court granted Postmates’ motion to compel arbitration of Timmerman’s claims as
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well—holding once again that the agreement was valid and that Timmerman did not fall within the
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transportation worker exception to the FAA—and severed the claims of Albert, who had opted out
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of the arbitration clause within the time allowed to do so after he initially entered a contract with
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Postmates. Order re 2d Mot. to Compel Arbitration (dkt. 47).3 The Court dismissed Lee and
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Timmerman’s claims at their request, and Plaintiffs appealed to the Ninth Circuit. Id.; see Notice
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of Appeal, Lee v. Postmates, No. 19-15024 (9th Cir. Jan. 4, 2019).
Following entry of judgment, the Ninth Circuit held in a memorandum disposition that a
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voluntary dismissal without prejudice following an order compelling arbitration is not a final order
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appealable by right, and that a party seeking review of an order compelling arbitration before the
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arbitration has occurred is “obliged to obtain the district court’s permission for an interlocutory
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appeal under 28 U.S.C. § 1292(b).” Gonzalez v. Coverall N. Am., Inc., 754 F. App’x 594, 596
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(9th Cir. 2019). Plaintiffs now seek permission to appeal under that statute, arguing that whether
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Lee v. Postmates Inc., No. 18-cv-03421-JCS, 2018 WL 4961802 (N.D. Cal. Oct. 15, 2018).
Lee v. Postmates Inc., No. 18-cv-03421-JCS, 2018 WL 6605659 (N.D. Cal. Dec. 17, 2018).
Albert’s claims are proceeding as Albert v. Postmates Inc., No. 18-cv-07592-JCS (N.D. Cal.).
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their claims are subject to arbitration is a controlling question of law, that there is substantial
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ground for differences of opinion regarding the scope of the transportation worker exception and
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whether the arbitration clause at issue was sufficiently conspicuous, and that an immediate appeal
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would materially advance the ultimate termination of litigation. See generally Mot. (dkt. 51);
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Reply (dkt. 55). Postmates argues that proceeding to arbitration would be more efficient than
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allowing an appeal, there is no guarantee that Plaintiffs can avoid arbitration even if the Court
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erred in its previous orders, and that there is no substantial ground for a difference of opinion as to
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the issues that Plaintiffs identify. See generally Opp’n (dkt. 54).
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III.
ANALYSIS
A.
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United States District Court
Northern District of California
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The Federal Arbitration Act allows a party to appeal the denial of a motion to compel
Legal Standard
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arbitration, but does not generally permit a party to appeal an order granting such a motion.
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9 U.S.C. § 16. The FAA recognizes, however, that an order compelling arbitration may in
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appropriate circumstances be appealed “as otherwise provided in section 1292(b) of title 28,”
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which governs appeals of interlocutory orders generally. 9 U.S.C. § 16(b). The Ninth Circuit has
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declined to “render meaningless the acknowledgment in 9 U.S.C. § 16(b) that an interlocutory
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order pursuant to the Federal Arbitration Act may in some circumstances satisfy the requirements
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of 28 U.S.C. § 1292(b).” Kuehner v. Dickinson & Co., 84 F.3d 316, 319 (9th Cir. 1996).
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Under § 1292(b), a federal district court may certify a non-dispositive order for
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interlocutory review where: (1) “the order involves a controlling question of law”; (2) “as to which
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there is substantial ground for difference of opinion;” and (3) “an immediate appeal from the order
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may materially advance the ultimate termination of the litigation.” 28 U.S.C. § 1292(b). By its
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terms, § 1292(b) requires the district court to expressly find in writing that all three § 1292(b)
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requirements are met. Id. “Courts traditionally will find that a substantial ground for difference of
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opinion exists where ‘the circuits are in dispute on the question and the court of appeals of the
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circuit has not spoken on the point, if complicated questions arise under foreign law, or if novel
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and difficult questions of first impression are presented.’” Couch v. Telescope Inc., 611 F.3d 629,
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633 (9th Cir. 2010) (citation omitted).
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“Section 1292(b) is a departure from the normal rule that only final judgments are
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appealable, and therefore must be construed narrowly.” James v. Price Stern Sloan, Inc., 283 F.3d
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1064, 1067 n.6 (9th Cir. 2002). In seeking interlocutory appeal, a movant must show that
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“exceptional circumstances justify a departure from the basic policy of postponing appellate
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review until after the entry of a final judgment.” Coopers & Lybrand v. Livesay, 437 U.S. 463,
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475 (1978).
The Court’s Previous Orders Warrant Certification for Appeal
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B.
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This Court previously granted Postmates’ motions to compel arbitration of Plaintiffs’
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claims, rejecting Plaintiffs’ arguments that they fell within an exception to the Federal Arbitration
Act for “contracts of employment of seamen, railroad employees, or any other class of workers
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United States District Court
Northern District of California
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engaged in foreign or interstate commerce.” See 9 U.S.C. § 1. The Supreme Court has interpreted
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that exception as governing “only contracts of employment of transportation workers,” Circuit
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City Stores, Inc. v. Adams, 532 U.S. 105, 119 (2001), but has not elaborated on the degree to
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which such workers must be engaged “in foreign or interstate commerce,” 9 U.S.C. § 1, as
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opposed to transportation on a merely local scale.
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1. Controlling Question of Law
“[A]n order may involve a controlling question of law if it could cause the needless
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expense and delay of litigating an entire case in a forum that has no power to decide the matter,”
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including arbitration. Kuehner, 84 F.3d at 319. The effect of the previous orders in this case is
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particularly significant because enforcement of Postmates’ arbitration agreement bars Plaintiffs
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from proceeding with the class action that they sought in their complaints, an outcome for which
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courts have broad authority to certify interlocutory appeals when it arises more directly from the
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denial of a motion for class certification. See Fed. R. Civ. P. 23(f); Chamberlain v. Ford Motor
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Co., 402 F.3d 952, 957 (9th Cir. 2005) (acknowledging that the “drafters [of Rule 23] intended the
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court of appeals to enjoy ‘unfettered discretion’ to grant or deny permission to appeal [class
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certification orders] based on ‘any consideration that the court of appeals finds persuasive’”
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(quoting the Advisory Committee Notes)). If Plaintiffs were required to proceed without an
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appeal and prevailed in their individual arbitrations, whatever rights absent class members might
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have to a judicial resolution of their claims—if this Court’s interpretation of the FAA is
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incorrect—might never be vindicated.
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2. Ground for Difference of Opinion
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There is substantial ground for difference of opinion as to whether Postmates couriers fall
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within the transportation worker exception. Neither the Supreme Court nor the Ninth Circuit has
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squarely addressed the scope of that exception as applied to intrastate delivery workers, and
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decisions from other circuits and district courts considering the exception have set forth a variety
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of different rules and factors for resolving such issues. Although this Court declined to do so and
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is aware of no other decision having done so, one might interpret the Supreme Court’s Circuit City
opinion as extending the exemption to all transportation workers, regardless of their relationship
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United States District Court
Northern District of California
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to interstate transportation, or requiring only a minimal connection to interstate (as opposed to
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local) transportation similar to the broad definition of “Commerce . . . among the several States”
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that the Supreme Court has adopted with respect to Congress’s power under Article I of the
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Constitution. Another court might, for example, accept Plaintiffs’ argument that the fact that some
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of the items that Postmates couriers delivered originated out of state (before being sold by in-state
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retailers from whom the couriers delivered them to local customers) is a sufficient connection to
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interstate commerce. See, e.g., Nieto v. Fresno Beverage Co., Inc., 33 Cal. App. 5th 274, 245 Cal.
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Rptr. 3d 69, 76–77 (2019) (holding that a truck driver employed by a California-based distribution
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company to deliver beverages exclusively within California fell within the transportation worker
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exception because the distributor obtained some of those beverages from outside California). 4
Plaintiffs’ arguments are less persuasive when it comes to the Court’s holding that
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Postmates’ arbitration clause was sufficiently conspicuous to constitute a valid agreement, but
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The Nieto court briefly distinguished one of the orders at issue here—which was brought to that
court’s attention after briefing had concluded—on the basis that this case “involve[s] purely local
deliveries of goods from local restaurants or merchants to local customers.” Nieto, 245 Cal. Rptr.
3d at 77 n.3. Nevertheless, it is not a large leap from the facts of Nieto (intrastate delivery of
beverages produced out of state, held in a warehouse by a distributor, and sold to local customers)
to the facts at issue in the present case (intrastate delivery of, among other things, beverages
produced out of state, stocked on the shelves of a retailer, and sold to local customers). A court
following the reasoning of Nieto might conclude that the facts of this case fall within the
exception.
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§ 1292(b) speaks to appeals from “orders,” not specific “issues” or “holdings.” The Court’s
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holding regarding the transportation worker exception presents sufficient ground for disagreement
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to certify appeal of the previous orders in their entirety. The specific arguments to be addressed
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on any appeal are left to the discretion of the parties and the Ninth Circuit.
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3. Advancement of Termination of Litigation
Finally, “an immediate appeal from the order[s] may materially advance the ultimate
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termination of the litigation.” 28 U.S.C. § 1292(b). Postmates argues that an appeal will take
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more time and effort than arbitration of Plaintiffs Lee and Timmerman’s claims. That may be
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true, but an appeal before arbitration will still conclude more quickly than requiring arbitration to
run its course before the appeal begins, and the Ninth Circuit has recognized the value of
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United States District Court
Northern District of California
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interlocutory appeals to avoid “the needless expense and delay of litigating an entire case in a
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forum that has no power to decide the matter.” Kuehner, 84 F.3d at 319. If a higher court
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determined that the transportation worker exception encompasses Plaintiffs’ claims and the FAA
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therefore does not apply to them, Plaintiffs likely would not be required to arbitrate under
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California law. See Cal. Lab. Code § 229 (“Actions to enforce the provisions of this article for the
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collection of due and unpaid wages claimed by an individual may be maintained without regard to
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the existence of any private agreement to arbitrate.”).
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Perhaps more significantly, if a higher court determines that this Court’s analysis of the
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FAA was incorrect and that Postmates couriers fall within the transportation worker exception,
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resolving all such potential plaintiffs’ claims through a class action could be far more efficient
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than piecemeal litigation and arbitration of individual claims. Cf. Mot. to Compel Arbitration,
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Abadilla v. Uber Techs., No. 18-cv-7343-EMC, ECF Doc. No. 3 (N.D. Cal. Dec. 5, 2018)
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(asserting that more than twelve thousand individual arbitration demands have been filed against
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Uber after the Ninth Circuit determined that Uber drivers were required to arbitrate, and that little
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progress has been made in arbitrating those claims). Conversely, if Postmates prevails on appeal,
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clearer precedent regarding the scope of the transportation worker exception could reduce or
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eliminate further litigation of at least that issue if other couriers seek to pursue their own claims
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against Postmates. Viewing the scope of “the litigation” as all claims of the purported class
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asserted in Plaintiffs’ complaints, the potential for an interlocutory appeal to “materially advance
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[its] ultimate termination” greatly outweighs the risk of delay in resolving these two Plaintiffs’
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claims—a risk that would be realized only if Plaintiffs fully prevailed in arbitration, as the same
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appeal would likely follow the conclusion of arbitration if they did not.
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IV.
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CONCLUSION
For the reasons discussed above, the Court hereby certifies its previous orders dated
October 15, 2018 and December 17, 2018 as suitable for interlocutory appeal under 28 U.S.C.
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§ 1292(b) because they implicate controlling questions of law, there is substantial ground for
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difference of opinion, and an appeal may materially advance the ultimate termination of litigation.
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Although the Court recognizes that other courts have declined to certify similar orders for appeal,
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United States District Court
Northern District of California
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the lack of precedent defining the scope of the transportation worker exception and the potential
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for class resolution if the arbitration agreement is invalid justify immediate appeal in this case.
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IT IS SO ORDERED.
Dated: April 25, 2019
______________________________________
JOSEPH C. SPERO
Chief Magistrate Judge
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