Giovanni Martinez; v. Flowers Foods, Inc;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GIOVANNI MARTINEZ; et al.,
Plaintiffs,
and
ANDREW NELSON, proposed plaintiff
intervenor and SAMUEL FALCON,
proposed plaintiff intervenor,
Movants-Appellants,
v.
FLOWERS FOODS, INC; et al.,
Defendants-Appellees.
No. 16-56327
D.C. No.
2:15-cv-05112-RGK-E
ORDER*
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Submitted April 13, 2018**
San Francisco, California
Before: WARDLAW and HURWITZ, Circuit Judges, and OLIVER, *** District
Judge.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Solomon Oliver, Jr., United States District Judge for
the Northern District of Ohio, sitting by designation.
FILED
APR 25 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2
The complaint in this diversity case asserted claims on behalf of a putative
class of present and former truck drivers against Flowers Foods, Inc. and related
entities, alleging that the drivers should have been treated as employees rather than
independent contractors. After the district court denied class certification, the parties
settled and stipulated to dismissal of the action with prejudice. Pursuant to the
stipulation, the district court entered the proposed judgment. Andrew Nelson and
Samuel Falcon then moved to intervene both as of right under Federal Rule of Civil
Procedure 24(a) and permissively under Rule 24(b), seeking to challenge the denial
of class certification. The district court denied the motion and this appeal by Nelson
and Falcon followed.
We dismiss the appeal for lack of jurisdiction. In Microsoft Corp. v. Baker,
the Supreme Court held that 28 U.S.C. § 1291 does not establish jurisdiction over
an appeal from a denial of class certification if the named plaintiffs stipulated to the
dismissal with prejudice of their individual claims. 137 S. Ct. 1702, 1715 (2017).
And, in Bobbitt v. Milberg LLP, --- F. App’x. ---- (9th Cir. 2018), after a remand by
the Supreme Court in light of Baker, we dismissed an appeal by proposed intervenors
who sought to challenge the denial of class certification. As here, the appeal in
Bobbitt was filed after the plaintiffs had “stipulated to voluntary dismissal with
prejudice of their personal claims.” Id.
APPEAL DISMISSED.

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