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Brown v. Cinemark USA, Inc.

United States Court of Appeals, Ninth Circuit

December 7, 2017

Silken Brown; Mario de la Rosa, individually and on behalf of other members of the general public similarly situated and as aggrieved employers pursuant to the Private Attorneys General Act ("PAGA"), Plaintiffs-Appellants,
v.
Cinemark USA, Inc.; Century Theatres, Inc., Defendants-Appellees.

         D.C. No. 3:13-cv-05669-WHO

          Liana Carter (argued), Katherine Kehr, Robert Drexler, and Glenn Danas, Capstone Law APC, Los Angeles, California, for Plaintiffs-Appellants.

          Emily B. Vicente (argued) and M. Brett Burns, Hunton & Williams LLP, Los Angeles, California, for Defendants-Appellants.

          Before: Sidney R. Thomas, Chief Judge, and Stephen Reinhardt and Kathleen M. O'Malley, [*] Circuit Judges.

         SUMMARY [**]

         Appellate Jurisdiction

         The panel denied a motion to dismiss for lack of jurisdiction a class action complaint alleging wage and hour claims, and held that the court had jurisdiction under 28 U.S.C. § 1291 to consider the appeal on the merits.

         Defendants Cinemark USA, Inc. and Century Theaters, Inc. sought to dismiss for lack of appellate jurisdiction in light of the Supreme Court decision in Microsoft Corp. v. Baker, 137 S.Ct. 1702 (2017), because plaintiffs voluntarily settled some of their claims.

         The panel held that this case was unlike Baker, where the plaintiffs intended to sidestep Fed.R.Civ.P. 23(f) when they voluntarily dismissed their claims. The panel held that the parties' mutual settlement for consideration in this case did not raise the same concerns. Unlike the plaintiffs in Baker, the plaintiffs in this case continued litigating their remaining individual claims after the district court denied class certification. The panel further held that the resolution of this case was not a unilateral dismissal of claims, but a mutual settlement for consideration reached by both parties which expressly preserved certain claims for appeal.

          ORDER

         Defendants have moved to dismiss this case for lack of appellate jurisdiction under 28 U.S.C. § 1291, in light of the Supreme Court decision in Microsoft Corp. v. Baker, 582 U.S. ___, 137 S.Ct. 1702 (2017), because Plaintiffs voluntarily settled some of their claims. We deny the motion.

         I

         We begin with a short procedural history. Silken Brown filed a Class Action Complaint against Defendants Cinemark USA, Inc. and Century Theatres, Inc. alleging several wage and hour claims. Defendants removed the case, and it was consolidated with similar pending actions by the district court, including one filed by Mario De La Rosa.

         The district court dismissed Brown's direct wage statement claim and denied class certification of Plaintiffs' meal and rest break claims, reporting pay claims, off-the-clock work claims, derivative wage statement claims, and direct wage statement claims. Plaintiffs' remaining individual claims were set for trial. Defendants filed a summary judgment motion on the remaining claims. The district court issued a tentative ruling, which proposed granting the motion in part and denying it in part.

         Subsequently, the parties stipulated to the tentative order and settled all remaining individual claims. Brown and De La Rosa reserved the right to challenge the district court's judgment denying class certification of the direct wage claim and dismissing Brown's individual direct wage ...


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