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In Re: Virginia Van Dusen; John Doe; Joseph Sheer v. United States District Court For the District of Arizona

July 27, 2011

IN RE: VIRGINIA VAN DUSEN; JOHN DOE; JOSEPH SHEER, VIRGINIA VAN DUSEN; JOSEPH SHEER; JOHN DOE, PETITIONERS,
v.
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA, PHOENIX, RESPONDENT, SWIFT TRANSPORTATION CO. INC. INTERSTATE EQUIPMENT; INTERSTATE EQUIPMENT LEASING; INCORPORATED; CHAD KILLIBREW; JERRY MOYES, REAL PARTIES IN INTEREST.



Petition for Writ of Mandamus to the United States District Court for the District of Arizona D.C. No. 2:10-cv-00899-JWS

The opinion of the court was delivered by: O'grady, District Judge:

FOR PUBLICATION

OPINION

Argued and Submitted May 9, 2011-San Francisco, California

Before: Procter Hug, Jr. and Richard A. Paez, Circuit Judges, and Liam O'Grady, District Judge.*fn1

Opinion by Judge O'Grady

OPINION

This matter comes before us on petition for a writ of mandamus. Petitioners argue that the District Court erred by refusing to resolve their claim of exemption from arbitration under Section 1 of the Federal Arbitration Act ("FAA") and Section 12-1517 of the Arizona Arbitration Act ("AAA") before compelling arbitration pursuant to those acts. We agree that Petitioners make a strong argument that the District Court erred, but we nonetheless hold that this case does not warrant the extraordinary remedy of mandamus. We therefore deny the petition.

I. FACTUAL AND PROCEDURAL HISTORY

Petitioners Joseph Sheer ("Sheer") and Virginia Van Dusen ("Van Dusen") (collectively "Petitioners") are interstate truck drivers who entered independent contractor operating agreements ("ICOAs") with Swift Transportation Co., Inc. ("Swift"). In December 2009, Sheer brought suit against Swift and Interstate Equipment Leasing, Co., Inc. ("IEL") in the United States District Court for the Southern District of New York. On March 24, 2010, Petitioners filed a Second Amended Collective and Class Action Complaint against Swift and IEL*fn2 (collectively "Defendants), alleging violations of the Fair Labor Standards Act, 29 U.S.C. § 206 et seq., forced labor in violation of 18 U.S.C. § 1589, unjust enrichment, and violations of California and New York labor laws. The trial court subsequently transferred the matter to the United States District Court for the District of Arizona.

On May 21, 2010, Defendants moved to compel arbitration pursuant to arbitration clauses contained in the ICOAs. Petitioners opposed the motion, asserting that the ICOAs were exempt from arbitration under Section 1 of the FAA ("Section 1"), which exempts "contracts of employment of seaman, railroad employees, or any other class of workers engaged in foreign or interstate commerce" from the FAA's provisions. 9 U.S.C. § 1. The District Court declined to rule on the applicability of the exemption, holding that the question of whether an employer/employee relationship existed between the parties was a question for the arbitrator to decide in the first instance. Finding that the ICOAs contained valid arbitration clauses, the District Court ordered arbitration. Petitioners subsequently moved for certification of an interlocutory appeal, which the District Court denied. Petitioners now seek mandamus relief before this court.

II. DISCUSSION

A. STANDARD OF REVIEW

The writ of mandamus is a "drastic and extraordinary" remedy "reserved for really extraordinary causes." Ex parte Fahey, 332 U.S. 258, 259-60 (1947). "[O]nly exceptional circumstances amounting to a judicial usurpation of power, or a clear abuse of discretion will justify the invocation of this . . . remedy." Cheney v. U.S. Dist. Court for Dist. of Columbia, 542 U.S. 367, 380 (2004) (internal quotations and citations omitted). The petitioner bears the burden of showing that "its right to issuance of the writ is 'clear and ...


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