Damian Langere v. Verizon Wireless Services ( 2020 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAMIAN LANGERE, on behalf of No. 19-55747
himself and others similarly situated,
Plaintiff-Appellant, D.C. No.
2:15-cv-00191-
v. DDP-AJW
VERIZON WIRELESS SERVICES, LLC,
Defendant-Appellee. OPINION
Appeal from the United States District Court
for the Central District of California
Dean D. Pregerson, District Judge, Presiding
Argued and Submitted November 9, 2020
Pasadena, California
Filed December 29, 2020
Before: Barrington D. Parker, Jr., * Paul J. Watford, and
Patrick J. Bumatay, Circuit Judges.
Opinion by Judge Bumatay
*
The Honorable Barrington D. Parker, Jr., United States Circuit
Judge for the U.S. Court of Appeals for the Second Circuit, sitting by
designation.
2 LANGERE V. VERIZON WIRELESS SERVS.
SUMMARY **
Arbitration / Appellate Jurisdiction
The panel dismissed for lack of jurisdiction a Verizon
Wireless customer’s appeal from the district court’s orders
denying his motions to compel arbitration and
reconsideration, and from his own voluntary dismissal, in a
case in which the plaintiff brought a putative class action
against Verizon for violation of federal and state consumer-
protection laws.
In Omstead v. Dell, Inc., 594 F.3d 1081 (9th Cir. 2010),
this court held that a plaintiff can avoid arbitration and
manufacture appellate jurisdiction simply by voluntarily
dismissing his claims with prejudice. The panel concluded
that Omstead has been effectively overruled by Microsoft
Corp. v. Baker, 137 S. Ct. 1702 (2017). The panel therefore
held that a plaintiff does not create appellate jurisdiction by
voluntarily dismissing his claims with prejudice after being
forced to arbitrate them.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
LANGERE V. VERIZON WIRELESS SERVS. 3
COUNSEL
Jordan S. Esensten (argued) and Robert L. Esensten,
Esensten Law, Los Angeles, California, for Plaintiff-
Appellant.
Julia B. Strickland (argued) and David W. Moon, Stroock
Stroock & Lavan LLP, Los Angeles, California, for
Defendant-Appellee.
OPINION
BUMATAY, Circuit Judge:
After being compelled to arbitrate by court order, can a
plaintiff avoid arbitration and manufacture appellate
jurisdiction simply by voluntarily dismissing his claims with
prejudice? We’ve previously answered that question in the
affirmative. See Omstead v. Dell, Inc., 594 F.3d 1081 (9th
Cir. 2010). But a later decision of the Supreme Court has
forced us to reconsider. See Microsoft Corp. v. Baker, 137 S.
Ct. 1702 (2017). After finding that our previous approach is
clearly irreconcilable with that outlined by the Court, we
change our answer.
We conclude that our decision in Omstead has been
effectively overruled by the Court’s decision in Microsoft.
And so we hold that a plaintiff does not create appellate
jurisdiction by voluntarily dismissing his claims with
prejudice after being forced to arbitrate them.
I.
Damian Langere is a Verizon Wireless customer who
purchased the company’s extended warranty program for his
4 LANGERE V. VERIZON WIRELESS SERVS.
cellphone. He was unhappy to find out that the Verizon
warranty offers similar protections to those already provided
by his cellphone’s manufacturer for the first year. He
therefore brought this putative class action against Verizon
for the violation of federal and state consumer-protection
statutes. Verizon moved to compel arbitration and stay
judicial proceedings under 9 U.S.C. § 4. 1 The district court
obliged and granted the motion to compel arbitration. It also
denied Langere’s later motion for reconsideration.
Ordinarily, a plaintiff in this position has two choices to
appeal: arbitrate the claims to completion and then appeal as
of right, see 9 U.S.C. § 16(a)(1)(3), (b)(1)–(3), or hope that
the courts approve an interlocutory appeal, id. § 16(b);
28 U.S.C. § 1292(b). But Langere tried something different.
Finding himself in a “procedural bind,” Langere voluntarily
dismissed his claims with prejudice, as he was entitled to
under Federal Rule of Civil Procedure 41(a)(1), without
leave from the district court. 2 He did so because arbitration
was not “economically feasible,” and he felt that appealing
the arbitration order was his only viable option. He assured
the district court that he was “not refusing to prosecute his
claims,” but only refusing to do so in a way that he thought
“would be futile and uneconomical.”
1
That section permits a party aggrieved by another party’s refusal
to arbitrate to move the district court for an order directing that
arbitration proceed as agreed by the parties.
2
Under Rule 41(a)(1)(A)(i), a plaintiff can file for voluntary
dismissal without order of the court if filed before the opposing party
serves either an answer or a motion for summary judgment. Here,
Verizon did not file either and so Langere’s dismissal was procedurally
proper.
LANGERE V. VERIZON WIRELESS SERVS. 5
Langere then appealed his own voluntary dismissal, and
the district court’s orders, to this court. Verizon moved to
dismiss for lack of appellate jurisdiction. A motions panel
of this court denied that motion without prejudice to renew
during the merits consideration of the case. Verizon so
renewed its concern about appellate jurisdiction before this
panel. We now grant that motion.
II.
A.
Generally speaking, we may only review decisions from
district courts that are “final.” See 28 U.S.C. § 1291. That
means that a party normally must raise all their claims of
error in a single appeal following a final judgment.
Flanagan v. United States, 465 U.S. 259, 263 (1984). This
principle, called the final-judgment rule, is fundamental to
our legal system. See McLish v. Roff, 141 U.S. 661, 665–66
(1891). Few have said it better than Justice Frankfurter:
“Since the right to a judgment from more than one court is a
matter of grace and not a necessary ingredient of justice,
Congress from the very beginning has, by forbidding
piecemeal disposition on appeal of what for practical
purposes is a single controversy, set itself against enfeebling
judicial administration.” Cobbledick v. United States,
309 U.S. 323, 325 (1940). The Supreme Court, therefore,
has “resisted efforts to stretch § 1291 to permit appeals of
right that would erode the finality principle and disserve its
objectives.” Microsoft, 137 S. Ct. at 1712.
On top of the general final-judgment rule, Congress has
carefully designed a framework for appeals in the arbitration
context. In the Federal Arbitration Act (“FAA”), Congress
has expressed “a national policy favoring arbitration.”
Southland Corp. v. Keating, 465 U.S. 1, 10 (1984). For that
6 LANGERE V. VERIZON WIRELESS SERVS.
reason, the FAA “endeavors to promote appeals from orders
barring arbitration and limit appeals from orders directing
arbitration.” Bushley v. Credit Suisse First Bos., 360 F.3d
1149, 1153 (9th Cir. 2004) (simplified). It does so by
explicitly prohibiting the appeal of orders compelling
arbitration. See 9 U.S.C. § 16(b)(3). The sole exception is a
limited one: immediate appeal of an order compelling
arbitration may only be taken under 28 U.S.C. § 1292(b).
9 U.S.C. § 16(b). That section allows interlocutory appeals
when the district judge certifies that an appeal involves a
“controlling question of law as to which there is substantial
ground for difference of opinion and that an immediate
appeal from the order may materially advance the ultimate
termination of the litigation.” 28 U.S.C. § 1292(b).
Afterwards, the court of appeals may permit the appeal
within its discretion. Id.Accordingly, it is “well established that § 16(b) bars
appeals of interlocutory orders compelling arbitration and
staying judicial proceedings,” and that § 1292(b) is the “sole
avenue” to immediate appeal of such orders. Johnson v.
Consumerinfo.com, Inc., 745 F.3d 1019, 1021–23 (9th Cir.
2014); see also MediVas, LLC v. Marubeni Corp., 741 F.3d
4, 7 (9th Cir. 2014) (holding that “an order compelling
arbitration . . . may not be appealed if the court stays the
action pending arbitration”). This approach honors
Congress’s efforts to funnel parties into arbitration “as
quickly and easily as possible.” Moses H. Cone Mem’l
Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 22 (1983). At
bottom, our job is to enforce the clear commands of
Congress. In the FAA, Congress has commanded the “rapid
and unobstructed enforcement of arbitration agreements.”
Id. at 23.
LANGERE V. VERIZON WIRELESS SERVS. 7
B.
For every rule, there’s an exception. In Omstead, we
created one such exception to the rules for appealing
arbitration orders. In that case, like here, a district court
ordered arbitration of plaintiffs’ claims and stayed judicial
proceedings. 594 F.3d at 1083. In response, the plaintiffs
told the district court that they would not arbitrate their
claims, citing economic infeasibility and arbitration bias. Id.They also requested that the court enter a final order
allowing them to appeal. Id. The district court refused, and
instead dismissed the plaintiffs’ claims for failure to
prosecute under Federal Rule of Civil Procedure 41(b). Id.
at 1084.
On appeal, we held that the district court abused its
discretion in dismissing the action for want of prosecution
because the Rule 41(b) dismissal factors favored the
plaintiffs. Id. But we then explained what the plaintiffs
should have done instead of refusing to arbitrate its claims:
we advised that plaintiffs could have obtained immediate
review of the arbitration order if they voluntarily dismissed
their claims with prejudice under Rule 41(a)(2). Id. at 1085. 3
We indicated that “a plaintiff that deems an interlocutory
ruling to be so prejudicial as to deserve immediate review
. . . has the alternative of dismissing the complaint
voluntarily [with prejudice].” Id. (quoting John’s
Insulation, Inc. v. L. Addison and Associates, Inc., 156 F.3d
101, 107 (1st Cir. 1998)). To avoid a “useless remand,” we
sua sponte construed the district court’s Rule 41(b) dismissal
3
Rule 41(a)(2) permits the voluntary dismissal by court order at the
request of the plaintiff, if the court finds it proper. Fed. R. Civ. P.
41(a)(2).
8 LANGERE V. VERIZON WIRELESS SERVS.
as a Rule 41(a)(2) voluntary dismissal with prejudice and
proceeded to decide the merits of the case. Id. 4
C.
1.
Seven years after Omstead, the Court decided Microsoft.
137 S. Ct. at 1702. That case had a procedural history like
this one. The plaintiffs filed a putative class action against
Microsoft for defects in its gaming console. Id. at 1710.
Based on a prior class certification denial in a related case,
the district court denied class certification and struck the
class allegations. Id. at 1710–11. In one twist from the
instant case, the plaintiffs came to us first and petitioned for
an interlocutory appeal under Federal Rule of Civil
Procedure 23(f). Id. at 1711. We declined. Id.
The plaintiffs then returned to the district court and
moved to dismiss their case with prejudice; Microsoft
stipulated to the dismissal but maintained that such a
dismissal would not be appealable. Id. The district court
granted the stipulated dismissal motion, and the plaintiffs
appealed. Id. We granted jurisdiction over the stipulated
dismissal, holding it was a sufficiently adverse, final
decision under § 1291. Id.
The Supreme Court granted certiorari to resolve the
question: “Do federal courts of appeals have jurisdiction
under § 1291 and Article III of the Constitution to review an
order denying class certification . . . after the named
plaintiffs have voluntarily dismissed their claims with
4
It is unclear under what authority we were able to make this sua
sponte conversion since none was cited.
LANGERE V. VERIZON WIRELESS SERVS. 9
prejudice?” Id. at 1712. For the reasons explained below,
the Court said “no” and reversed our decision. Id.
2.
In Microsoft, the Court held that “[p]laintiffs in putative
class actions cannot transform a tentative interlocutory order
into a final judgment within the meaning of § 1291 simply
by dismissing their claims with prejudice—subject, no less,
to the right to ‘revive’ those claims if the denial of class
certification is reversed on appeal.” Id. at 1715 (simplified).
The Court identified three factors demonstrating why a
voluntary dismissal of class certification claims would not
be treated as “final” under § 1291.
First, the Court considered it of “prime significance” that
the plaintiffs’ dismissal tactic would “undercut[]
Rule 23(f)’s discretionary regime.” Id. at 1714. Rule 23(f)
permits the appeal of an order granting or denying class
certification, but similar to an appeal under 28 U.S.C.
§ 1292(b), only with the approval of the court of appeals.
Compare Fed R. Civ. P. 23(f) with 28 U.S.C. § 1292(b). In
the Court’s view, if this dismissal tactic could “yield an
appeal of right,” it would undermine Rule 23(f) and render
the final judgment rule superfluous. Microsoft, 137 S. Ct.
at 1714–15.
The Court also was concerned that the voluntary-
dismissal tactic “invites protracted litigation and piecemeal
appeals.” Id. at 1713. It explained that the voluntary
dismissal deprives appellate courts of the ability to decline
an appeal and, therefore, allows the plaintiff to exclusively
determine whether an immediate appeal will lie. Id.
Furthermore, a plaintiff may deploy this method more than
once, “stopping and starting the district court proceedings
10 LANGERE V. VERIZON WIRELESS SERVS.
with repeated interlocutory appeals.” Id. Rule 23(f) was
meant to “prevent such disruption and delay.” Id.
The Court finally explained that the “one-sidedness” of
plaintiffs’ voluntary-dismissal device demonstrated that
treating the dismissal as a final judgment was inappropriate.
Id. at 1715. Recognizing a final judgment in that case would
permit “plaintiffs only,” and “never defendants,” to force an
immediate appeal. Id. Again, such a tactic, the Court
observed, would allow litigants to disturb the rulemaking
process that Congress chose to settle appellate procedures.
Id.
In addition, three Justices would have ruled that the
plaintiffs’ voluntary dismissal tactic deprived the court of
jurisdiction because there was no longer a case or
controversy. Id. at 1717 (Thomas, J., concurring). Justice
Thomas, along with Chief Justice Roberts and Justice Alito,
concluded that when plaintiffs voluntarily dismiss their
claims, “they consent[] to the judgment against them and
disavow[] any right to relief [from the defendant].” Id. In
such a case, the parties were no longer “adverse to each other
on any claims,” and the court of appeals could not “affect
their rights” in any legally cognizable manner. Id.
(simplified). This view was supported by the long-
established rule that “a party may not appeal from the
voluntary dismissal of a claim, since the party consented to
the judgment against it.” Id.; see, e.g., Evans v. Phillips,
17 U.S. 73 (1819) (dismissing writ of error on ground that
plaintiff had “submitted to a nonsuit in the circuit court”);
United States v. Babbitt, 104 U.S. 767, 768 (1881)
(explaining that “consent to the judgment below” waived
right to appeal); see also Keena v. Groupon, Inc., 886 F.3d
360, 365 (4th Cir. 2018) (recognizing, in this exact
procedural context, “the longstanding principle that a party
LANGERE V. VERIZON WIRELESS SERVS. 11
is not entitled to appeal from a consensual dismissal of her
claims”).
As a result, a unanimous Court ruled that plaintiffs can’t
evade the discretionary framework for appealing class-
certification denials by simply voluntarily dismissing their
claims with prejudice and manufacturing appellate
jurisdiction.
III.
Before considering Microsoft’s impact on Omstead, we
pause to explain our framework for examining the interplay
between circuit and Supreme Court precedent. Our circuit’s
published opinions on the law are authoritative once issued
and remain binding on subsequent panels of this court. See
Hart v. Massanari, 266 F.3d 1155, 1171 (9th Cir. 2001).
Generally speaking, the law announced in such cases can be
changed only by Congress, our court itself sitting en banc, or
the Supreme Court. Id.Sometimes, though, our precedent becomes effectively
overruled by a Supreme Court decision that is closely on
point, even if the decision does not do so expressly. Miller
v. Gammie, 335 F.3d 889, 899 (9th Cir. 2003) (en banc).
While following our past decisions is important to preserve
the stability of circuit law, that is secondary to following the
Supreme Court. Id. After all, “unless we wish anarchy to
prevail within the federal judicial system,” we are always
required to follow the controlling opinions of the Court.
Hutto v. Davis, 454 U.S. 370, 375 (1982). Importantly, this
deference extends to the reasoning of Court decisions, too—
not just their holdings. See Thompson v. Hebdon, 909 F.3d
1027, 1043 (9th Cir. 2018); see also United States v. Slade,
873 F.3d 712, 715 (9th Cir. 2017) (finding a prior decision
12 LANGERE V. VERIZON WIRELESS SERVS.
effectively overruled because its reasoning skipped an
“analytical step” that the Supreme Court later required).
So when the reasoning of a prior case of ours is “clearly
irreconcilable” with the reasoning of a subsequent Supreme
Court case, a three-judge panel is not bound by the former
and is free to reject it as “effectively overruled.” Miller,
335 F.3d at 893. This happens when the Supreme Court has
“undercut the theory or reasoning underlying the prior circuit
precedent in such a way that the cases are clearly
irreconcilable.” Id. at 900. Thus, even when the issue in the
Supreme Court case is not “identical” to the one decided by
our court, the Supreme Court’s reasoning may be controlling
nonetheless. Id. This burden is high, but not
insurmountable. See Aleman Gonzalez v. Barr, 955 F.3d
762, 765 (9th Cir. 2020).
In employing this principle, we’ve said it is enough that
the issues, while not carbon copies, “ultimately derive[d]
from the same inquiry.” SEIU Local 121RN v. Los Robles
Reg’l Med. Ctr., 976 F.3d 849, 855 (9th Cir. 2020). In SEIU
Local 121RN, our prior precedent held that courts may
construe a broad arbitration clause in a labor agreement as
conferring authority on the arbitrator to decide arbitrability.
Id. at 853 (discussing United Bhd. of Carpenters & Joiners
of Am., Local No. 1780 v. Desert Palace, Inc., 94 F.3d 1308(9th Cir. 1996)). But the Supreme Court had since held that
in both the commercial and labor contexts, whether parties
have agreed to submit their dispute to arbitration is
presumptively a matter for the court to decide. Id. at 854
(discussing Granite Rock Co. v. Int’l Bhd. of Teamsters,
561 U.S. 287 (2010)). While the Supreme Court case dealt
with formation of an arbitration agreement generally and
ours dealt with delegation to the arbitrator, more
fundamentally, both cases dealt with what the parties agreed
LANGERE V. VERIZON WIRELESS SERVS. 13
to have the arbitrator decide. Id. at 855. The
“incompatibility of the rationale[s]” of the two cases was
enough to render them “clearly irreconcilable.” Id. at 860.
The Supreme Court’s decision therefore trumped our own.
Id. at 861.
And in Dorman v. Charles Schwab Corp., we viewed the
Supreme Court’s holding that arbitrators can competently
interpret and apply federal statutes as a general matter as
effectively overruling our holding that ERISA claims in
particular could not be competently decided by arbitrators.
934 F.3d 1107, 1111–12 (9th Cir. 2019). The Court’s
decision had swallowed our prior decision, even if it didn’t
do so explicitly. Id. at 1112.
At the end, our cases distill to a simple principle: when a
rule announced by this court and a rule later announced by
the Supreme Court cannot both be true at the same time, they
are clearly irreconcilable. In such a case, the former must
give way to the latter. On the other hand, where two rules
can coexist, we leave them both undisturbed. 5 At bottom,
this just reflects the definition of “irreconcilable.” 6
5
See, e.g., United States v. Grandberry, 730 F.3d 968, 973 (9th Cir.
2013) (finding our precedent—that law enforcement must have probable
cause to believe that a parolee lives at the home to be searched before
executing a warrantless search pursuant to a parole condition—was not
irreconcilable with a Court holding that parolees may be subject to
suspicionless searches of their person, not their home); see also United
States v. Green, 722 F.3d 1146, 1150 (9th Cir. 2013) (finding the Court’s
application of Apprendi to criminal fines did not effectively overrule our
precedent that Apprendi doesn’t apply to restitution).
6
See Oxford English Dictionary Online, https://www.oed.com/vie
w/Entry/99616? (defining “irreconcilable” as “[o]f statements, ideas,
14 LANGERE V. VERIZON WIRELESS SERVS.
IV.
Applying these principles to this case, we hold that
Omstead has been effectively overruled by the Supreme
Court’s decision in Microsoft. Class certification and
compelling arbitration are not the same. But the ultimate,
fundamental question is whether a plaintiff may bypass a
regime for discretionary appellate review through a
voluntary dismissal. Because the Supreme Court has clearly
rejected that tactic, we must do so as well. At its core, the
Supreme Court’s reasoning in Microsoft is clearly
irreconcilable with our approach in Omstead.
A.
First and foremost, Langere’s voluntary-dismissal tactic
undermines the discretionary appellate-review scheme
designed by Congress in the FAA. See 9 U.S.C. § 16. That
section of the FAA embodies “Congress’ deliberate
determination that appeal rules should reflect a strong policy
favoring arbitration.” Stedor Enterprises, Ltd. v. Armtex,
Inc., 947 F.2d 727, 730 (4th Cir. 1991) (simplified). It does
so by privileging arbitration over litigation: any order
refusing to compel arbitration is immediately appealable,
even if interlocutory in nature. Id. (citing 9 U.S.C. § 16(a)(1)
and (2)). On the other hand, no appeal as of right exists from
an order compelling arbitration until the arbitration has
concluded. Id. It is only by leave of the courts that an appeal
may be brought before then. 9 U.S.C. § 16(b); 28 U.S.C.
§ 1292(b).
etc.: That cannot be brought into harmony or made consistent;
incompatible”).
LANGERE V. VERIZON WIRELESS SERVS. 15
The dismissal tactic here is antagonistic to Congress’s
plan because it transforms discretionary, interlocutory
appeals of orders compelling arbitration into appeals as of
right. As a result, Congress’s final decision rule is rendered
into “a pretty puny one,” Digital Equip. Corp. v. Desktop
Direct, Inc., 511 U.S. 863, 872 (1994), and its scheme for
discretionary appellate review of arbitration orders is
nullified.
This concern applies with even more force here, since
Langere has unilaterally removed the district court from any
role in the appellate process. Under the FAA, to appeal an
interlocutory arbitration order, the plaintiff must first seek
the concurrence of the district court. 28 U.S.C. § 1292(b).
Langere did not do so and instead filed for voluntary
dismissal without court order. Unlike in Microsoft when the
plaintiffs at least sought district court blessing for its
stipulated dismissal, 137 S. Ct. at 1711, Langere’s conduct
has removed the district court completely from the picture
and further undermined the will of Congress.
Second, Langere’s voluntary-dismissal tactic “invites
protracted litigation and piecemeal appeals.” Microsoft,
137 S. Ct. at 1713. Since the strategy removes the courts’
discretion in policing appeals and places appellate rights
exclusively in the hands of plaintiffs, nothing prevents them
from exercising this option more than once, “stopping and
starting the district court proceedings with repeated
interlocutory appeals.” Id. at 1713. This directly
undermines Congress’s effort in the FAA “to prevent parties
from frustrating arbitration through lengthy preliminary
appeals.” Stedor Enterprises, Ltd., 947 F.2d at 730. Indeed,
a case might ping pong back and forth between the district
and circuit courts with every new ground for compelling
16 LANGERE V. VERIZON WIRELESS SERVS.
arbitration, if this voluntary-dismissal tactic were allowed to
proceed.
Third, like in Microsoft, the dismissal tactic here is one-
sided: only plaintiffs, never defendants, may force the
immediate appeal of an order compelling arbitration. It is
true that 9 U.S.C. § 16(a) favors defendants by permitting
the immediate appeal of an order denying arbitration. But,
“whatever similarities or differences there are between
plaintiffs and defendants” in arbitration appellate rights is a
“question[] of policy” left for Congress to decide. Microsoft,
137 S. Ct. at 1715 (simplified). Reasonable people might
disagree about the propriety of arbitration, but it’s not our
prerogative to rethink Congress’s policy judgments. See
Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1619 (2018).
Were we to replace three words in Microsoft, “denying
class certification,” with “compelling arbitration,” and
substitute “Rule 23(f)” with “§ 16(b),” that decision would
be indistinguishable from our own. One case is about class
certification and one is about arbitration. But we cannot
cover our eyes to binding Court decisions on that basis alone.
The reasoning of Microsoft was that the voluntary-dismissal
device cannot be permitted to subvert the final judgment rule
or a finely wrought, discretionary-appellate regime. And
that is precisely what the gambit before us now purports to
do. Simply, the rationales of Omstead and Microsoft are
incompatible and irreconcilable. For that reason, we
conclude that Omstead’s jurisdictional holding is overruled.
B.
Our decision today hardly breaks new ground. Rather,
we just solemnize what seems obvious. Our court has
previously acknowledged—on two separate occasions—that
Microsoft effectuated a change in law in our circuit for the
LANGERE V. VERIZON WIRELESS SERVS. 17
purposes of Federal Rule of Civil Procedure 60(b). See
Henson v. Fid. Nat’l Fin., Inc., 943 F.3d 434, 447–48 (9th
Cir. 2019) (acknowledging that Microsoft represented a
change in the law from Ninth Circuit precedent such as
Omstead); Bobbitt v. Milberg LLP, 807 F. App’x 628, 630
(9th Cir. 2020) (observing that “before [Microsoft],” the
court could review interlocutory orders after a plaintiff
voluntarily dismissed his claims with prejudice, citing
Omstead). And in Johnson we held, notwithstanding
Omstead, that § 1292(b) provides the sole route for
immediate appeal of an order staying proceedings and
compelling arbitration. 745 F.3d at 1023. But Johnson did
not deal with Omstead explicitly. In light of Microsoft, we
pick up where Johnson left off and formally put Omstead to
bed. The Supreme Court, too, appears to have confirmed our
understanding, albeit in dicta. It has subsequently described
its holding in Microsoft as standing for the proposition that
“plaintiffs cannot generate a final appealable order by
voluntarily dismissing their claim.” Lamps Plus, Inc. v.
Varela, 139 S. Ct. 1407, 1414 n.2 (2019) (emphasis
omitted). 7
7
Our decision in Rodriguez v. Taco Bell Corp., is not to the contrary
since it had nothing to do with a discretionary appellate regime mandated
by Congress. 896 F.3d 952 (9th Cir. 2018). There, we simply
acknowledged that Microsoft does not prevent appellate jurisdiction
when a district court grants partial summary judgment as to some claims
and grants the plaintiff’s voluntary dismissal as to the remaining claims.
Id. at 955.
Further, in Rodriguez, we relied on our decision in Brown v.
Cinemark USA, Inc., 876 F.3d 1199 (9th Cir. 2017), which explained that
Microsoft did not preclude appellate jurisdiction because “the present
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.” Id. at 1201. Unlike in the present case, the
18 LANGERE V. VERIZON WIRELESS SERVS.
Applying Microsoft’s rationale to the appeal of orders to
compel arbitration puts us in line with at least one other
circuit. In Keena, the Fourth Circuit likewise applied the
Microsoft factors to determine that plaintiffs cannot create
appellate jurisdiction by voluntarily dismissing their claims
after an arbitration order. 886 F.3d at 363–65 (explaining
that, instead, “a party seeking to appeal an order staying the
action and compelling arbitration must first secure
permission from both the district court and the court of
appeals under 28 U.S.C. § 1292(b)”).
Two other out-of-circuit cases do not counsel in favor of
the Omstead rule either. First, the Fifth Circuit has
concluded that Microsoft does not preclude the immediate
appeal of an involuntary dismissal for want of prosecution,
before affirming the district court’s dismissal because the
litigant refused to arbitrate. See Griggs v. S.G.E. Mgmt.,
L.L.C., 905 F.3d 835 (5th Cir. 2018). That case obviously
offers no support to Langere, who has voluntarily dismissed
his claims. Second, Langere points to the Tenth Circuit,
which concluded that a voluntary dismissal with prejudice
was appealable as a final order. See Spring Creek Expl. &
Prod. Co., LLC v. Hess Bakken Inv., II, LLC, 887 F.3d 1003,
1016 (10th Cir. 2018). But that conclusion depended on the
fact that dismissal was stipulated to by the parties, and that
the case fully resolved in arbitration before the appeal. Id.With a procedural posture unlike Microsoft and the case
before us now, Spring Creek does not help Langere, either.
procedural history in Brown did “not implicate the concerns raised in
[Microsoft].” Id. Brown therefore has no bearing on our decision today.
LANGERE V. VERIZON WIRELESS SERVS. 19
V.
After careful consideration of our own precedent, and
that of the Supreme Court, we conclude that the voluntary
dismissal of claims following an order compelling
arbitration does not create appellate jurisdiction. We
therefore DISMISS this appeal for lack of jurisdiction.