Serjik Hatami v. Kia Motors America, Inc.
544 F. App'x 724
9th Cir.
2013
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Docket

Virginia VAN DUSEN; et al., Plaintiffs-Appellants, v. SWIFT TRANSPORTATION CO., INC.; et al., Defendants-Appellees.

No. 11-17916

United States Court of Appeals, Ninth Circuit

November 6, 2013

724

Dan Getman, Getman & Sweeney, PLLC, New Paltz, NY, Jennifer Kroll, Susan Joan Martin, Martin & Bonnett PLLC, Phoenix, AZ, Edward Tuddenham, New York, NY, for Plaintiffs-Appellants.

Ellen M. Bronchetti, Esquire, Paul Scott Cowie, Esquire, Ronald J. Holland, Esquire, Sheppard Mullin Richter & Hampton LLP, San Francisco, CA, for Defendants-Appellees.

Before: FARRIS, FERNANDEZ, and IKUTA, Circuit Judges.

MEMORANDUM **

Virginia Van Dusen and Joseph Sheer appeal the district court‘s denial of their motion for reconsideration of the grant of Swift Transportation Co., Inc.‘s (Swift) motion to compel arbitration. We have jurisdiction under 28 U.S.C. § 1292(b).*

Our prior opinion in this case, , expressly held that a district court must determine whether an agreement for arbitration is exempt from arbitration under § 1 of the Federal Arbitration Act (FAA) as a threshold matter. This ruling is the law of the case. . Further, the resolution of this issue was germane to Van Dusen‘s consideration of the third Bauman factor (whether the district court‘s order was clearly erroneous), see , and occurred “after reasoned consideration in a published opinion.” (en banc) (plurality opinion). Therefore, the ruling is also the law of the circuit. The district court erred in holding otherwise. On remand, the district court must determine whether the Contractor Agreements between each appellant and Swift are exempt under § 1 of the FAA before it may consider Swift‘s motion to compel.

REVERSED AND REMANDED.

Serjik HATAMI, Plaintiff-Appellant, v. KIA MOTORS AMERICA, INC., Defendant-Appellee, and Kia Motors Corporation, Defendant.

No. 11-57074

United States Court of Appeals, Ninth Circuit

November 6, 2013

725

Martin W. Anderson, Anderson Law Firm, Santa Ana, CA, Lucy Kasparian, Glendale, CA, for Plaintiff-Appellant.

Julian G. Senior, O‘Hagan Spencer LLP, Manhattan Beach, CA, for Defendant-Appellee.

Before: O‘SCANNLAIN, GRABER, and BEA, Circuit Judges.

MEMORANDUM **

Plaintiff Serjik Hatami appeals the district court‘s order granting in part and denying in part his motion for attorney fees following his settlement with Defendant Kia Motors America, Inc. For the reasons that follow, we affirm.*

1. We have appellate jurisdiction over this appeal. Contrary to Defendant‘s assertion, the district court awarded fees pursuant to California Civil Code section 1794(d), which allows the award of attorney fees after voluntary dismissal. See (“[W]e hold that the pretrial dismissal with prejudice pursuant to the compromise agreement was sufficient for purposes of section 1794(d) to allow an award of attorney fees and costs.“). Although a party generally may not appeal from a voluntary dismissal, , an award of attorney fees pursuant to a statute is separately appealable from the judgment on the merits, see (“[A]n order on attorneys’ fees is collateral to, and separately appealable from, the judgment.“).

2. The district court did not abuse its discretion by denying attorney fees for the period following Defendant‘s Federal Rule of Civil Procedure 68 offer. See (“We review the denial of attorney‘s fees for abuse of discretion . . . .“). “When a plaintiff rejects a Rule 68 offer, the reasonableness of an attorney fee award . . . will depend, at least in part, on the district court‘s consideration of the results the plaintiff obtained by going to trial compared to the Rule 68 offer.” . The district court properly found that, to the extent that the terms of the final judgment exceeded, if at all, the terms of the Rule 68 offer, that benefit accrued only to Plaintiff‘s lawyer. Cf. (“Clearly, the only one who benefited by pursuing the litigation after the Rule 68 offer was made was the plaintiffs’ attorney.“). The district court‘s weighing of the relevant factors was permissible, and its findings were not “illogical, implausible or without support in the record.” .

3. Because we conclude that the district court did not abuse its discretion, we need not, and do not, reach the court‘s alternative holding that Rule 68 prohibited the award of fees.

AFFIRMED.

Notes

*
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). The panel unanimously concludes that this case is suitable for decision without oral argument. Fed. R. App. P. 34(a)(2).
**
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.