EDMOND CARMONA, and ABRAHAM MENDOZA; ROGER NOGUERIA, on behalf of themselves and all others similarly situated, Plaintiffs, v. DOMINO‘S PIZZA, LLC, a Michigan Corporation, Defendant-Appellant.
No. 21-55009
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
July 21, 2023
D.C. No. 8:20-cv-01905-JVS-JDE. On Remand from the United States Supreme Court. Argued and Submitted June 20, 2023 Seattle, Washington.
Opinion by Judge Hurwitz
SUMMARY**
Federal Arbitration Act
On remand from the United States Supreme Court, the panel affirmed the district court‘s order denying Domino Pizza‘s motion to compel arbitration in a putative class action brought by three Domino truck drivers, alleging violations of California labor law.
The panel previously affirmed the district court‘s denial of Domino‘s motion to compel arbitration, holding that because the drivers were a “class of workers engaged in foreign or interstate commerce,” their claims were exempt from the Federal Arbitration Act by
On remand, the panel stated that its prior decision squarely rested upon its reading of Rittmann v. Amazon.com, Inc., 971 F.3d 904 (9th Cir. 2020), which concerned Amazon
Rejecting Domino‘s attempts to distinguish Rittmann, the panel stressed that the issue was not how the purchasing order was placed, but rather whether the plaintiff drivers operate in a single, unbroken stream of interstate commerce that renders interstate commerce a central part of their job description. A pause in the journey of the goods at a warehouse did not remove the goods from the stream of interstate commerce because the goods were inevitably destined from the outset of the interstate journey for Domino‘s franchisees.
COUNSEL
Norman M. Leon (argued), DLA Piper LLP US, Chicago, Illinois; Steve L. Hernandez, DLA Piper LLP US, Los Angeles, California; Taylor Wemmer, DLA Piper LLP US, San Diego, California; Courtney G. Saleski, DLA Piper LLP US, Philadelphia, Pennsylvania; Jacob Frasch, DLA Piper LLP US, Washington, D.C.; Gerson H. Smoger, Smoger & Associates, Dallas, Texas; for Defendant-Appellant.
Aashish Y. Desai (argued) and Adrianne De Castro, Desai Law Firm P.C., Costa Mesa, California, for Plaintiff-Appellee.
Jeffrey R. White and Tad Thomas, American Association for Justice, Washington, D.C.; Gerson H. Smoger, Smoger & Associates, Dallas, Texas; for Amicus Curiae American Association for Justice.
OPINION
HURWITZ, Circuit Judge:
This is a putative class action by three truck drivers against their employer, Domino‘s Pizza. We previously affirmed the district court‘s denial of Domino‘s motion to compel arbitration, holding that because the drivers were a “class of workers engaged in foreign or interstate commerce,” their claims were exempted from the Federal Arbitration Act (“FAA“) by
I.
Domino‘s sells ingredients used to make pizzas to its franchisees. As relevant to this case, Domino‘s buys those ingredients from suppliers outside of California, and they are then delivered to Domino‘s Southern California Supply Chain Center. At the Supply Center, Domino‘s employees
Three D&S drivers filed this putative class action against Domino‘s in 2020, alleging various violations of California labor law. Each plaintiff‘s agreement with Domino‘s requires arbitration of “any claim, dispute, and/or controversy” between them. But the district court denied Domino‘s motion to compel arbitration, finding the plaintiffs exempt from the FAA under
II.
In Saxon, the Supreme Court considered whether
Saxon did not address the question now before us. Rather, the Court expressly pretermitted whether “last leg” drivers like the D&S drivers in this case qualified for the exemption, stating:
We recognize that the answer will not always be so plain when the class of workers carries out duties further removed from the channels of interstate commerce or the actual crossing of borders. Compare, e.g., Rittmann v. Amazon.com, Inc., 971 F.3d 904, 915 (C.A.9 2020) (holding that a class of “last leg” delivery drivers falls within § 1‘s exemption), with, e.g., Wallace v. Grubhub Holdings, Inc., 970 F.3d 798, 803 (C.A.7 2020) (holding that food delivery drivers do not). In any event, we need not address those questions to resolve this case.
III.
The Supreme Court remanded “for further consideration in light of [Saxon].” Carmona, 143 S. Ct. at 361. Our prior
Rittmann confronted whether delivery drivers who transported goods from Amazon warehouses to in-state consumers were exempt from the FAA under
Our prior opinion held that the FAA exempted the claims in this case because the D&S drivers were part of a “class of workers engaged in foreign or interstate commerce,”
Our prior opinion also squarely rejected Domino‘s attempts to distinguish Rittmann. Id. We find them no more persuasive the second time around. Domino‘s primarily argues that Rittmann does not control because, unlike Amazon customers, Domino‘s franchisees do not order the goods until after they arrive at the warehouse. But we previously stressed that “[t]he issue is not how the purchasing order is placed, but rather whether the D&S drivers operate in a single, unbroken stream of interstate commerce that renders interstate commerce a central part of their job description.” Id. (cleaned up). Indeed, the Supreme Court has long rejected the notion that the timing of an order is itself dispositive of whether goods remain in the stream of interstate commerce. See Walling v. Jacksonville Paper Co., 317 U.S. 564, 570 (1943) (“We do not mean to imply that a wholesaler‘s course of business based on anticipation of needs of specific customers, rather than on prior orders or contracts, might not at times be sufficient to establish that practical continuity in transit necessary to keep a movement of goods ‘in commerce’ . . . .“).
Nor does the pause in the journey of the goods at the warehouse alone remove them from the stream of interstate commerce. See id. at 568 (“The entry of the goods into the warehouse interrupts but does not necessarily terminate their interstate journey.“); id. (“[I]f the halt in the movement of goods is a convenient intermediate step in the process of
Citing A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935), Domino‘s also argues that the interstate journey ended at the Supply Center because the goods were repackaged there. But in contrast to Schechter, which involved chickens slaughtered at the poultry company and only then delivered to local buyers, id. at 520-21, the relevant ingredients in this case are unaltered from the time they arrive in the Supply Center until they are delivered to franchisees. Immediato v. Postmates, Inc., 54 F.4th 67 (1st Cir. 2022), upon which Domino‘s also relies, is similarly inapposite: the products delivered in that case were transformed from their constituent ingredients into meals before the plaintiff drivers delivered them. Id. at 78.
IV.
We conclude that Saxon is not inconsistent, let alone clearly irreconcilable, with Rittmann, which continues to control our analysis. We therefore AFFIRM the order of the district court.