Swift Transportation Co. v. United States District Court for District of Arizona

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

IN RE SWIFT TRANSPORTATION No. 15-70592

COMPANY INCORPORATED;

INTERSTATE EQUIPMENT D.C. No.

LEASING INCORPORATED; CHAD 2:10-cv-00899-JWS

KILLIBREW; JERRY MOYES,

OPINION

SWIFT TRANSPORTATION

COMPANY INCORPORATED;

INTERSTATE EQUIPMENT

LEASING INCORPORATED; CHAD

KILLIBREW; JERRY MOYES,

Petitioners,

v.

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA,

PHOENIX,

Respondent,

VIRGINIA VAN DUSEN,

individually and on behalf of all

other similarly situated persons;

JOSEPH SHEER, individually and

on behalf of all other similarly

situated persons; JOSE

MOTOLINA; VICKII SCHWALM;

PETER WOOD,

Real Parties in Interest.

2 IN RE SWIFT TRANSPORTATION

Appeal from the United States District Court

for the District of Arizona

John W. Sedwick, District Judge, Presiding

Argued and Submitted November 16, 2015

San Francisco, California

Filed July 26, 2016

Before: Sidney R. Thomas, Chief Judge and Sandra S.

Ikuta and Andrew D. Hurwitz, Circuit Judges.

Per Curiam Opinion;

Concurrence by Judge Hurwitz;

Dissent by Judge Ikuta

SUMMARY*

Arbitration / Mandamus

The panel denied a petition for a writ of mandamus in a

labor law case in which the defendants sought to compel

arbitration.

In a prior appeal, the court of appeals held that the district

court, rather than an arbitrator, must decide whether the

dispute was exempt from arbitration under 9 U.S.C. § 1,

which provides that the Federal Arbitration Act does not

apply to contracts of workers engaged in foreign or interstate

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

IN RE SWIFT TRANSPORTATION 3

commerce. On remand, the district court issued a scheduling

order for discovery and a trial on the § 1 issue.

In a companion appeal, Van Dusen v. Swift, No.

15-15257, the panel held that it lacked jurisdiction to review

the district court’s interlocutory scheduling order. Defendants

also sought a writ of mandamus ordering the district court to

vacate its order and decide defendants’ petition to compel

arbitration without discovery or trial.

The panel denied the mandamus petition because

defendants had a remedy in urging their position before the

district court in dispositive motions and in the form of direct

appeal following the issuance of a final order. Normal

litigation expense did not constitute sufficient prejudice to

warrant relief, and the discovery cost had already been

incurred. And, most crucially, the district court’s order was

not clearly erroneous.

Concurring, Judge Hurwitz wrote that the extraordinary

remedy of a writ of mandamus was not warranted.

Dissenting, Judge Ikuta wrote that a writ of mandamus

should be granted because the district court clearly erred in

ordering discovery, pretrial proceedings, and trial rather than

addressing the only legal issue before it¯whether the

workers’ contract was a “contract of employment” for

purposes of § 1 of the Federal Arbitration Act. She wrote that

other factors also weighed in favor of granting the writ.

4 IN RE SWIFT TRANSPORTATION

COUNSEL

Ronald J. Holland (argued), Ellen M. Bronchetti, and Paul S.

Cowie; Sheppard, Mullin, Richter & Hampton LLP, San

Francisco, California; for Petitioners-Appellants.

Edward Tuddenham (argued), New York, New York; Dan

Getman and Lesley Tse, Getman & Sweeney PLLC, New

Paltz, New York; Jennifer Kroll and Susan Martin, Martin &

Bonnett PLLC, Phoenix, Arizona; for Plaintiffs-Appellants.

OPINION

PER CURIAM:

In this companion case to Van Dusen v. Swift, No. 15-

15257 (“Van Dusen III”), Swift Transportation Company,

Inc., Interstate Equipment Leasing, Inc., and senior

executives at both companies (collectively “Swift”) seek a

writ of mandamus ordering the district court to vacate its case

management order and decide the petition to compel

arbitration without discovery or trial. We deny the petition

for a writ of mandamus.

I

The factual background of this case is set forth in some

detail in the opinion in Van Dusen III. In short, two interstate

truckers (collectively “Van Dusen”) entered into contracts

with Swift that designated them as independent contractors

and also contained a clause requiring them to arbitrate “[a]ll

disputes and claims arising under, arising out of or relating to

[the] [a]greement[s].” After contract termination, Van Dusen

IN RE SWIFT TRANSPORTATION 5

filed a collective and class action complaint against Swift

alleging that Swift misclassified Van Dusen and others as

independent contractors. Swift moved to compel arbitration

and dismiss or stay the district court action. Van Dusen

objected that § 1 of the Federal Arbitration Act prevented the

district court from compelling arbitration. The district court

granted Swift’s motion to compel arbitration. The court also

determined that an arbitrator should decide whether the § 1

exemption applies. The court subsequently denied Van

Dusen’s motion to reconsider or certify an appeal. Van

Dusen petitioned this Court for a writ of mandamus. In re

Van Dusen, 654 F.3d 838, 840 (9th Cir. 2011) (“Van Dusen

I”). In Van Dusen I, we held that the district court was

required to assess whether a § 1 exemption applies before

ordering arbitration. Id. at 846. We denied the mandamus

petition, holding that the district court had not committed

clear error because there was no controlling precedent. Id.

On remand, the district court denied Van Dusen’s motion for

reconsideration, reiterated its original opinion, and certified

an interlocutory appeal.

On appeal, we applied law of the case as determined by

Van Dusen I, and held that the district court, not an arbitrator,

should decide the § 1 exemption in the first instance. Van

Dusen v. Swift Transp. Co., 544 F. App’x 724 (9th Cir. 2013)

(“Van Dusen II”). We remanded with instructions to

“determine whether the Contractor Agreements between each

appellant and Swift are exempt under § 1 of the FAA before

. . . consider[ing] Swift’s motion to compel.” Id. at 724. On

remand, the district court issued a case management order

that included a discovery schedule, motion deadlines, and set

a potential trial date. Swift moved the court for a stay of

proceedings and for an order determining the § 1 issue

without discovery or trial. Swift filed an interlocutory appeal,

6 IN RE SWIFT TRANSPORTATION

which we dismissed for lack of jurisdiction in Van Dusen III,

and this petition for a writ of mandamus.

II

“The writ of mandamus is a drastic and extraordinary

remedy reserved only for really extraordinary causes.” Van

Dusen I, 654 F.3d at 840 (quoting Ex Parte Fahey, 332 U.S.

258, 259–60 (1947) (internal quotations omitted)). Issuance

of the writ is “in large measure . . . a matter of the court’s

discretion.” Johnson v. Consumerinfo.com, Inc., 745 F.3d

1019, 1023 (9th Cir. 2014) (quoting United States v.

Sherman, 581 F.2d 1358, 1361 (9th Cir. 1978) (internal

quotations omitted)). We weigh five factors to determine

whether mandamus relief is appropriate. Bauman v. U.S.

Dist. Ct., 557 F.2d 650, 654–55 (9th Cir. 1977); see also In re

United States, 791 F.3d 945, 955 (9th Cir. 2015) (reiterating

Bauman factors). We consider whether:

(1) The party seeking the writ has no other

adequate means, such as a direct appeal, to

attain the relief he or she desires. (2) The

petitioner will be damaged or prejudiced in a

way not correctable on appeal. (This guideline

is closely related to the first.) (3) The district

court’s order is clearly erroneous as a matter

of law. (4) The district court’s order is an oft-

repeated error, or manifests a persistent

disregard of the federal rules. (5) The district

court’s order raises new and important

problems, or issues of law of first impression.

Bauman, 557 F.2d at 654–55 (citations omitted).

IN RE SWIFT TRANSPORTATION 7

These “factors are not exhaustive . . . and should not be

mechanically applied.” In re United States, 791 F.3d at 955

(internal quotations and citations omitted).

The first Bauman factor is whether there is any other

adequate means, such as a direct appeal, to attain the relief

the petitioner desires. Here, Swift has the remedy of direct

appeal of the district court’s final order denying or

compelling arbitration. The district court has not decided that

question, and it is by no means certain that the district court

will not ultimately compel arbitration on the basis of the

contractor agreements alone. The case management order

sets forth dates for the parties to file dispositive motions, and

the court has not determined whether there is any fact

deduced in discovery that would affect its determination of

whether arbitration should be compelled. Once the district

court has issued a final order with respect to arbitration, Swift

can appeal directly.

The second Bauman factor, which is closely related to the

first, examines whether the petitioner will be damaged or

prejudiced in a way not correctable on appeal. Swift argues

that “litigation of the § 1 exemption issue will determine the

ultimate issue raised by Plaintiffs’ claim.” But even if this

were the case, Swift can still appeal the district court’s final

order. Any prejudice from the legal effect of the § 1

determination is correctable on appeal.

Swift also argues that it will incur unnecessary litigation

expense if the district court proceeds with its case

management order. However, “litigation costs are a factor

weighing in favor of mandamus relief only in the most

extreme circumstances.” In re Orange, S.A., 818 F.3d 956,

964 (9th Cir. 2016) (citing Varsic v. U.S. Dist. Ct., 607 F.2d

8 IN RE SWIFT TRANSPORTATION

245, 251–52 (9th Cir. 1979)). Swift has not shown that the

expenses in this case are so outside the realm of normal

litigation expense as to be considered among the “most

extreme circumstances.” Further, discovery has now closed,

so the cost of discovery has already been incurred and is not

correctable by mandamus relief. The second Bauman factor

weighs against Swift.

The third Bauman factor is whether the district court’s

order is clearly erroneous as a matter of law. This factor is

the most important for our consideration. “While all the

factors need not be present to issue the writ . . . the absence

of factor three—clear error as a matter of law—will always

defeat a petition for mandamus.” In re United States,

791 F.3d at 955 (internal quotations and citations omitted).

See Van Dusen I, 654 F.3d at 841 (“clear error as a matter of

law . . . is a necessary condition for granting a writ of

mandamus” (citing Hernandez v. Tanninen, 604 F.3d 1095,

1099 (9th Cir. 2010)).

Clear error is a highly deferential standard of review. Van

Dusen I, 654 F.3d at 841 (citing Cal. Dep’t of Water Res. v.

Powerex Corp., 533 F.3d 1087, 1092 (9th Cir. 2008)). We

“will not grant mandamus relief simply because a district

court commits an error, even one that would ultimately

require reversal on appeal.” Id. at 845 (quoting Wilson v.

U.S. Dist. Ct., 103 F.3d 828, 830 (9th Cir. 1996)). Instead,

“we must have a definite and firm conviction that the district

court’s interpretation . . . was incorrect.” Id. at 841 (internal

quotations omitted) (quoting DeGeorge v. U.S. Dist. Ct.,

219 F.3d 930, 936 (9th Cir. 2000)).

It is well established that “[t]he absence of controlling

precedent weighs strongly against a finding of clear error.”

IN RE SWIFT TRANSPORTATION 9

Van Dusen I, 654 F.3d at 845 (citations omitted). If “no prior

Ninth Circuit authority prohibited the course taken by the

district court, its ruling is not clearly erroneous.” In re

Morgan, 506 F.3d 705, 713 (9th Cir. 2007). Further, “a

question of first impression not yet addressed by any circuit

court in a published opinion . . . cannot satisfy the third . . .

Bauman factor[ ], requiring a showing of a clear . . . error by

the district court.” Medhekar v. U.S. Dist. Ct., 99 F.3d 325,

327 (9th Cir. 1996).

The district court did not commit clear error when it

issued its case management order. It did so in response to our

instructions in Van Dusen II that “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.” 544 F. App’x at

724. Crucially, in neither Van Dusen I nor Van Dusen II did

we instruct the district court to make the § 1 determination in

a certain way. Certainly our opinions did not direct the

district court to decide the issue on “briefing alone,” as Swift

contends. Therefore, when the district court sought to resolve

the § 1 question through discovery and a trial, it did not

contravene our instructions. The district court’s management

and planning order is not clearly erroneous on the basis of our

opinions in this case.

Nor is the district court’s case management order contrary

to other precedents of the Supreme Court or this Circuit.

Further, there do not appear to be any decisions from our

sister circuits on the question of whether the FAA compels a

certain procedural choice in a district court’s § 1

determination. The absence of precedent weighs heavily

against finding clear error. In re Morgan, 506 F.3d at 713.

Accordingly, we cannot say that the district court committed

10 IN RE SWIFT TRANSPORTATION

clear error. Van Dusen I, 654 F.3d at 845; Medhekar, 99 F.3d

at 327.

The fourth Bauman factor is whether the district court’s

order is an oft-repeated error, or manifests a persistent

disregard of the federal rules. Given the lack of precedent,

we cannot say that the alleged error is “oft-repeated.” And

the issuance of a case management order is not only

consistent with, but required by, the federal rules. See Fed.

R. Civ. P. 16(b).

The final Bauman factor is whether the district court’s

order raises new and important problems, or issues of law of

first impression. The question of whether the FAA compels

district courts to decide § 1 exemptions on the basis of

briefing alone is an issue of first impression, so this factor

weighs in favor of Swift. However, Swift does have a

remedy in the form of direct appeal to make its argument.

In sum, the Bauman factors weigh against the grant of

mandamus relief. Swift has a remedy in urging its position

before the district court in dispositive motions and, if the

district court is adverse to Swift, in the form of direct appeal

following the issuance of a final order. Normal litigation

expense does not constitute sufficient prejudice to warrant

relief, and the discovery cost has already been incurred. Most

crucially, in the absence of controlling precedent, the district

court order was not clearly erroneous. The district court’s

order is not an “oft-repeated error,” if indeed it is an error at

all, and certainly does not manifest a persistent disregard of

the federal rules. Although the question may be one of first

impression, Swift has a remedy. Therefore, applying the

IN RE SWIFT TRANSPORTATION 11

Bauman factors, we conclude that Swift is not entitled to the

extraordinary relief of the issuance of a writ of mandamus.1

PETITION DENIED.

HURWITZ, Circuit Judge, concurring:

If this were a direct appeal from a district court order

denying Swift’s motion to compel arbitration, I might agree

with Judge Ikuta that the issue before the district court is one

of law not requiring discovery. But, because the district

judge has neither granted nor denied Swift’s motion, there is

no appealable order. What is before us, rather, is a petition

for mandamus.

“Mandamus is a drastic remedy and is to be used only in

extraordinary circumstances.” Johnson v. Consumerinfo.com,

Inc., 745 F.3d 1019, 1023 (9th Cir. 2014) (quoting United

States v. Sherman, 581 F.2d 1358, 1361 (9th Cir. 1978)).

Here, virtually nothing would be gained by granting the writ.

The district court will shortly decide whether Van Dusen’s

contract is one of employment under the Federal Arbitration

Act, 9 U.S.C. § 1. If the court decides that it is not, it will

order arbitration, mooting the mandamus petition. And, if the

court finds that Van Dusen’s contract is one of employment

and denies the motion to compel arbitration, Swift can appeal.

Id. § 16(a)(1)(B). Even assuming, as Judge Ikuta

persuasively argues, that the issue before the district court

could have been resolved without discovery, discovery is now

1

Van Dusen’s motions to take judicial notice of the existence of various

district court documents are GRANTED. See Docket Nos. 9, 13.

12 IN RE SWIFT TRANSPORTATION

complete. There is no extraordinary need to interrupt the

proceedings below.

IKUTA, Circuit Judge, dissenting:

Interstate truck driver Van Dusen signed an agreement

with Swift designating Van Dusen as an independent

contractor. The agreement also stated that the parties would

arbitrate any dispute. Van Dusen now says that she was

actually an employee and the contract was really one of

employment, so it was exempt from the Federal Arbitration

Act (FAA). We have twice before given this district court a

single task: Decide whether the agreement falls into the

category of “contracts of employment” for purposes of the

FAA. Instead, six years after our first ruling, the district

court is erroneously requiring the parties to undertake an

evidentiary hearing on the merits to decide whether Van

Dusen is functionally an employee. Under the circumstances

of this case, the extraordinary remedy of a writ of mandamus

is warranted.

I

Van Dusen entered into a contractor agreement with Swift

for the interstate transportation of freight. The parties agreed

that Van Dusen was an independent contractor who would

“determine the method, means and manner of performing

work and services” under the agreement and could provide

the same services for others. The parties also bargained to

arbitrate “[a]ll disputes and claims arising under, arising out

of or relating to” the contractor agreement, “including the

arbitrability of disputes between the parties.”

IN RE SWIFT TRANSPORTATION 13

Notwithstanding this agreement, Van Dusen and other

interstate truckers brought a lawsuit in 2009 claiming that

they were functionally employees and that Swift had violated

the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201, and

state wage laws by failing to pay them minimum wages

(including overtime) and by making unlawful deductions

from their wages. Van Dusen sought to certify a class of

essentially all truckers who had driven under a contract with

Swift since 2006.

Swift immediately moved to compel arbitration of these

claims as provided in the contractor agreement. Van Dusen

moved to block arbitration on the ground that the agreements

themselves were exempt from arbitration under § 1 of the

FAA, which states, “nothing herein contained shall apply to

contracts of employment of seamen, railroad employees, or

any other class of workers engaged in foreign or interstate

commerce.” 9 U.S.C. § 1. Van Dusen claimed that the

contractor agreements for interstate transportation of freight

were “contracts of employment.”

The district court initially concluded that the arbitrator

should decide whether the form agreements were “contracts

of employment.” We disagreed. See In re Van Dusen,

654 F.3d 838 (9th Cir. 2011) (Van Dusen I). Instead, we

concluded that § 1 “explicitly carves out a category of cases

exempt from the provisions of the Act,” and therefore “a

district court has no authority to compel arbitration” where

§ 1 “exempts the underlying contract from the FAA’s

provisions.” Id. at 843. Although we declined to grant Van

Dusen’s mandamus petition, we sent the case back to the

district court expressly holding that the district court must

decide, as a matter of law, whether the contractor agreement

14 IN RE SWIFT TRANSPORTATION

between Swift and Van Dusen was “of the kind” that is

exempt from the FAA. Id. at 844.

Instead of making this legal determination, the district

court granted Van Dusen’s motion for certification of an

interlocutory appeal. When the case came back to us with the

same question, whether a district court should assess whether

a § 1 exemption applies, we unsurprisingly did not change

our mind. We stated that our prior ruling was law of the case

and law of the circuit, and we remanded to the district court

to determine whether the contractor agreement was exempt

under § 1. Van Dusen v. Swift Transp. Co., Inc., 544 F.

App’x 724 (9th Cir. 2013) (Van Dusen II).

On remand, the district court did not follow our direction.

Instead of addressing the only legal issue before it—whether

the form contract is “a contract of employment” for purposes

of § 1—the district court issued a scheduling order for

discovery, pretrial proceedings, and trial. The purpose of the

proceedings was to determine one of the key substantive

issues on dispute between the parties: the “plaintiffs’ status as

employees or independent contractors.” Applying judicial

interpretations of the scope of the FLSA, the district court

held that its determination depended on the working

relationship between Van Dusen and Swift, including such

factors as “the employer’s right to control the work, the

individual’s opportunity to earn profits from the work, the

individual’s investment in equipment and material needed for

the work, whether the work requires a specialized skill, and

whether the work done by the individual is an integral part of

the employer’s business.” The district court relied on Real v.

Driscoll Strawberry Assocs., Inc., 603 F.2d 748, 754 (9th Cir.

1979), which lays out the relevant factors for determining

IN RE SWIFT TRANSPORTATION 15

whether a person is an employee or independent contractor

under the FLSA.

II

The district court erred in adopting this approach. Under

the “expansive interpretation of the definitions of ‘employer’

and ‘employee’ under the FLSA,” the contract between the

parties is merely a factor to consider; it is not conclusive

regarding whether there is an employer-employee relationship

between the parties for purposes of the FLSA. Id.

“Economic realities, not contractual labels, determine

employment status for the remedial purposes of the FLSA.”

Id. at 755.

But the district court was not called upon to address the

“economic realities” of the relationship between Van Dusen

and Swift. The only issue before the district court is a legal

one. As we have explained, § 1 “explicitly carves out a

category of cases exempt from the provisions of the Act,”

Van Dusen I, 654 F.3d at 843; see also Bernhardt v.

Polygraphic Co. of Am., 350 U.S. 198, 201 (1956) (holding

that the language of the FAA makes clear that Congress chose

certain “kind[s] of agreement[s]” to be brought under federal

regulation and exempted others); Prima Paint Corp. v. Flood

& Conklin Mfg. Co., 388 U.S. 395, 401–02 & n.9 (1967)

(holding that § 1 exempts certain “categories of contracts

otherwise within the Arbitration Act”). Contrary to the

expansive definition of employer under the FLSA, we give

§ 1 a “narrow construction,” Circuit City Stores, Inc. v.

Adams, 532 U.S. 105, 118 (2001), and do not read “contracts

of employment” expansively to mean any contract between

parties in an employment relationship, see Terrebonne v. K-

Sea Transp. Corp., 477 F.3d 271, 278–80 (5th Cir. 2007).

16 IN RE SWIFT TRANSPORTATION

Determining whether a contract qualifies as a “contract of

employment” requires a categorical approach that focuses

solely on the words of the contract and the definition of the

relevant category. We have previously undertaken the task of

determining whether, as a matter of law, a contract was an

employment contract. See Modzelewski v. Resolution Trust

Corp., 14 F.3d 1374 (9th Cir. 1994). In Modzelewski,

“employment contract” was not defined in ERISA or the

applicable regulations, so we turned to Black’s Law

Dictionary, which defined “employment contract” as “an

agreement setting forth ‘terms and conditions’ of

employment.” Id. at 1376. We then reviewed the terms and

conditions contained in the relevant contract. These terms

prohibited “the employee” from maintaining “other

employment without the employer’s consent”; required the

employee to “devote all his working time and ability” to the

employer; created “a covenant not to compete after retirement

or termination as a condition of receiving benefits”; and

authorized the employer “to discharge for cause and voids all

benefits” if the covenant not to compete was breached. Id. at

1376. We determined that “the agreements in question

clearly contain terms related directly to employment, and

hence are also employment contracts.” Id. at 1377. We did

not analyze the “economic realities” of the relationship

between the parties to the contract.

The district court should have followed a similar

approach. It should have first defined “contract of

employment” for purposes of the FAA using standard tools

of statutory construction. The court should then have

determined whether the contract includes terms and

conditions of employment. This information is clear on the

face of the contract. Categorizing the nature of a contract

requires only the examination of its terms; in no event is there

IN RE SWIFT TRANSPORTATION 17

a need to conduct discovery and a trial to consider the

“economic realities” of the relationship of the parties to the

contract.

Indeed, by requiring the parties to litigate the underlying

substance of Van Dusen’s claim—whether the economic

realities of Van Dusen’s work for Swift made Van Dusen an

employee for purposes of the FLSA—the district court risks

depriving Swift of the benefits of its contract.1 If it turns out

that the contractor agreement is not a “contract of

employment,” it is subject to the FAA, and Van Dusen is

bound by her bargain to arbitrate all disputes, including any

question regarding whether the disputes are arbitrable. The

court’s failure to make the legal determination whether the

FAA is applicable potentially defeats Swift’s rights under the

contract and undermines the policies of the FAA and “the

unmistakably clear congressional purpose that the arbitration

procedure, when selected by the parties to a contract, be

speedy and not subject to delay and obstruction in the courts.”

Prima Paint, 388 U.S. at 404. Swift has already spent seven

years and countless dollars litigating an issue that it may very

well have the right to arbitrate.

1

Contrary to Judge Hurwitz’s concurring opinion, there is still much at

stake in this case. Although discovery is complete, the district court’s

scheduling order anticipates a five day trial to determine the relationship

of the parties. Our granting the writ would limit the scope of the district

court’s inquiry to the proper legal question and save the parties the

substantial costs of trial. Moreover, the argument made by the majority

and Judge Hurwitz that we should not grant mandamus because

“discovery has now closed,” Maj. op. at 8, is less than compelling when

it is our delay in issuing a decision in this case that allowed discovery to

be completed.

18 IN RE SWIFT TRANSPORTATION

III

Under the circumstances of this case, where the district

court has declined to make the key legal decision three times

over the span of six years, the extraordinary remedy of

mandamus is warranted. To determine whether the petitioner

has established a right to this remedy, we consider the five

factors from Bauman v. U.S. Dist. Court, 557 F.2d 650 (9th

Cir. 1977):

(1) Whether the petitioner has other adequate

means, such as a direct appeal, to attain the

relief he or she desires; (2) whether the

petitioner will be damaged or prejudiced in a

way not correctable on appeal; (3) whether the

district court's order is clearly erroneous as a

matter of law; (4) whether the district court's

order makes an oft-repeated error, or

manifests a persistent disregard of the federal

rules; and (5) whether the district court’s

order raises new and important problems, or

legal issues of first impression.

In re Perez, 749 F.3d 849, 854–55 (9th Cir. 2014) (internal

quotation marks omitted). “The factors are not to be

mechanically applied; we are neither compelled to grant the

writ when all five factors are present, nor prohibited from

doing so when fewer than five, or only one, are present.” In

re Sussex, 781 F.3d 1065, 1071 (9th Cir. 2015) (internal

quotation marks omitted).

We have held that “the absence of factor three—clear

error as a matter of law—will always defeat a petition for

mandamus.” DeGeorge v. U.S. Dist. Court for Cent. Dist. of

IN RE SWIFT TRANSPORTATION 19

Cal., 219 F.3d 930, 934 (9th Cir. 2000). As explained above,

there is no doubt that the district court’s order scheduling

discovery and trial is clearly erroneous.

The remaining Bauman factors likewise weigh in favor of

granting the remedy. Van Dusen does not dispute that the

first two Bauman factors are satisfied. The district court’s

order is not appealable, and therefore Swift has no adequate

means to obtain review. See Valenzuela-Gonzalez v. U.S.

Dist. Court for Dist. of Ariz., 915 F.2d 1276, 1279 (9th Cir.

1990). And because Swift cannot immediately appeal the

district court’s order, it must proceed with discovery and trial

to determine “plaintiffs’ status as employees or independent

contractors,” the very issue it seeks to arbitrate. Moreover, an

appeal after litigating the key issue in the case would be

meaningless. Swift will have already lost the benefit of its

bargain, the contractual right to arbitration.

This case also satisfies the fourth and fifth Bauman

factors. The district court’s order makes an “oft-repeated

error, or manifests a persistent disregard of the federal rules.”

As the history of this case shows, the district court has

repeated the same error three times. Twice before we

explained that the district court must determine whether the

contractor agreement falls into the category of “contracts of

employment.” Van Dusen I, 654 F.3d at 843–44; Van Dusen

II, 544 F. App’x 724. This is the third time it has

misunderstood our direction, and it is necessary for us to step

in to correct this error. Moreover, this exact issue has arisen

frequently in district courts, and district courts often

erroneously look to the relationship of the parties in

determining whether the contract is one of employment. See,

e.g., Doe v. Swift Transp. Co., 2015 WL 274092, at *3 (D.

Ariz. Jan. 22, 2015); Cilluffo v. Cent. Refrigerated Servs.,

20 IN RE SWIFT TRANSPORTATION

Inc., 2012 WL 8523507, at *4–5 (C.D. Cal. Sept. 24, 2012);

Owner-Operator Indep. Drivers Ass'n, Inc. v. Swift Transp.

Co., 288 F. Supp. 2d 1033, 1034 (D. Ariz. 2003); but see

Owner-Operator Indep. Drivers Ass'n v. C.R. England, Inc.,

325 F. Supp. 2d 1252, 1258 (D. Utah 2004) (looking only to

the contract).

Finally, this case presents a novel and important issue of

law. We have not yet explained in a published opinion how

a court must proceed when a party to a contract containing an

arbitration agreement challenges the contract on the ground

that it is exempt under § 1. A failure to address this issue and

correct the district court’s erroneous approach may encourage

plaintiffs in many different contexts to sidestep an agreement

to arbitrate by strategically claiming that their contract is

exempt and that it is necessary to litigate the key merits issue

outside of arbitration.

Because the Bauman factors weigh in favor of granting

Swift’s petition and mandamus is clearly warranted in this

case, I dissent.