VIRGINIA VAN DUSEN V. SWIFT TRANSPORTATION COMPANY I, No. 11-17916 (9th Cir. 2013)

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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS NOV 06 2013 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT No. 11-17916 VIRGINIA VAN DUSEN; et al., D.C. No. 2:10-cv-00899-JWS Plaintiffs-Appellants, MEMORANDUM* v. SWIFT TRANSPORTATION CO., INC.; et al., Defendants-Appellees. Appeal from the United States District Court for the District of Arizona John W. Sedwick, District Judge, Presiding Submitted November 4, 2013** San Francisco, California Before: FARRIS, FERNANDEZ, and IKUTA, Circuit Judges. 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 * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). (Swift) motion to compel arbitration. We have jurisdiction under 28 U.S.C. § 1292(b). Our prior opinion in this case, In re Van Dusen, 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. 654 F.3d 838, 843 45 (9th Cir. 2011). This ruling is the law of the case. United States v. Jingles, 702 F.3d 494, 499 (9th Cir. 2012). 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 Bauman v. U.S. Dist. Court, 557 F.2d 650, 654 55 (9th Cir. 1977), and occurred after reasoned consideration in a published opinion. United States v. Johnson, 256 F.3d 895, 914 (9th Cir. 2001) (en banc) (plurality opinion). Therefore, the ruling is also the law of the circuit. Id. 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. 2

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