NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       OCT 21 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

SERGIO GONZALEZ, on behalf of himself           No.    19-55511
and all others similarly situated,
                                                D.C. No.
                Plaintiff-Appellant,            5:16-cv-02287-JGB-KK

 v.
                                                MEMORANDUM*
COVERALL NORTH AMERICA, INC.,

                Defendant-Appellee.

                   Appeal from the United States District Court
                       for the Central District of California
                    Jesus G. Bernal, District Judge, Presiding

                        Argued and Submitted July 7, 2020
                              Pasadena, California

Before: BERZON and COLLINS, Circuit Judges, and KATZMANN,** Judge.

          Memorandum joined by Judge BERZON and Judge KATZMANN;
                          Dissent by Judge COLLINS

      Plaintiff Sergio Gonzalez (“Gonzalez”) appeals the district court’s order

denying his motion to reopen his lawsuit against defendant Coverall North


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Gary S. Katzmann, Judge for the United States Court
of International Trade, sitting by designation.
America, Inc. (“Coverall”). We remand to the district court to apply Henson v.

Fidelity National Financial, Inc., 

(9th Cir. 2019).

       Gonzalez contends that, following the district court’s order compelling

arbitration and staying the case, he moved to dismiss in reliance on this Court’s

precedent holding that a district court has discretion to stay or dismiss an action

after compelling arbitration and that a dismissal in those circumstances is

appealable. See, e.g., Johnmohammadi v. Bloomingdale’s, Inc., 

,

1073-74 (9th Cir. 2014). Gonzalez asserts he could not have anticipated this

Court’s dismissal of his subsequent appeal for lack of jurisdiction. See Gonzalez v.

Coverall N. Am., Inc., 754 F. App’x 594, 596 (9th Cir. 2019).

       While Gonzalez’s present appeal—from the district court’s denial of his

motion to reopen—was pending, this Court decided Henson. Addressing

circumstances somewhat analogous to those presented here, Henson analyzed

several factors that a district court should consider when “evaluating the merits of a

Rule 60(b)(6) motion that seeks relief from the dismissal of a [lawsuit] on the

ground of an intervening change in the 

.

       Because the district court did not have an opportunity to consider whether

and how the Henson factors might apply to this case, we remand to allow the

district court to do so in the first instance.

       We decline to address Gonzalez’s arguments that he could not pay for


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arbitration and was precluded from a forum because of Coverall’s position

regarding the allocation of costs. The only issue before us is whether the district

court should have reopened the case notwithstanding Gonzalez’s motion to dismiss

and failed first appeal. We remand for further consideration of that question in

light of Henson.

      REMANDED.




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                                                                           FILED
Gonzalez v. Coverall North America, Inc., No. 19-55511                         OCT 21 2020
                                                                        MOLLY C. DWYER, CLERK
COLLINS, Circuit Judge, dissenting:                                      U.S. COURT OF APPEALS



      I dissent from the majority’s holding that this court’s prior decision in this

very case can be said to constitute “an intervening change in the law” that may

warrant granting Plaintiff-Appellant Sergio Gonzalez’s motion to reopen his case

under Federal Rule of Civil Procedure 60(b).

      After Gonzalez filed this suit alleging that Defendant-Appellee Coverall

North America, Inc. (“Coverall”) had misclassified him and others similarly

situated to him as independent contractors rather than employees, Coverall moved

to compel arbitration under Gonzalez’s franchise agreement with Coverall. The

district court compelled arbitration on the question of the arbitrability of

Gonzalez’s claims and stayed the case pending the outcome of that arbitration.

After Gonzalez requested a voluntary dismissal in the hope that he might thereby

be able to appeal the arbitration order, the district court dismissed the case without

prejudice but specifically stated that “it did not make a finding as to whether

Plaintiff actually has a right to appeal in this instance.” We ultimately concluded

that there was no appealable final judgment, and we dismissed Gonzalez’s appeal

for lack of jurisdiction. Gonzalez v. Coverall North America, Inc., 754 F. App’x

594, 595 (9th Cir. 2019). Thereafter, Gonzalez (who had previously tried to

reopen his case while the prior appeal was pending) filed the Rule 60(b)(6) motion
currently under consideration, which the district court denied. The majority

remands the case with instructions “to apply Henson v. Fidelity National

Financial, Inc., 

(9th Cir. 2019),” see Mem. Dispo. at 2, a case which

addressed the standards for a Rule 60(b) motion based on a “change in the

controlling law,” 

. Henson is inapplicable here, and the

majority errs in remanding the case on that basis.

      Although the majority asserts that Henson “[a]ddress[ed] circumstances

somewhat analogous to those presented here,” see Mem. Dispo. at 2, that is not

true. In Henson, an intervening decision of the Supreme Court “overrul[ed]

precedent, on which Plaintiffs had relied, that was settled in the Ninth 

. Of course, nothing comparable is presented here: the majority

does not identify any intervening decision from the Supreme Court or the en banc

Ninth Circuit that altered the governing law applicable to Gonzalez’s case. In

deeming the prior decision in this case to be “somewhat analogous” to a change in

the law, the majority insinuates that it sympathizes with Gonzalez’s assertion that

“he could not have anticipated this Court’s dismissal of his subsequent appeal for

lack of jurisdiction.” See Mem. Dispo. at 2. But there are two problems with this

reasoning.

      First, it is inconsistent with law-of-the-case principles for a panel of this

court to treat a decision in a prior appeal in the same case as so unexpected and


                                           2
dubious as to possibly warrant a grant of a Rule 60(b) motion based on a change in

law. See Gonzalez v. Arizona, 

, 389 n.4 (9th Cir. 2012) (en banc)

(three-judge panel generally must follow the decision in a prior appeal in the same

case). Although we are permitted to depart from the law of the case when the prior

decision “is clearly erroneous and its enforcement would work a manifest

injustice,”

high showing has not been made here, and the

majority does not suggest that it has been. And it is even more troubling for the

majority to suggest that a district court, on remand from a decision of this court,

apparently has discretion to grade a Ninth Circuit panel’s homework by granting a

Rule 60(b) motion on the ground that the panel’s decision was too unanticipated.

The majority cites no authority that justifies this unorthodox conception of the

discretion conferred by Rule 60(b).

      Second, there is no basis for the majority’s insinuation that the prior panel

decision was wrong or unexpected. The majority notes that we have allowed an

appeal from a district court order dismissing a case without prejudice when “the

court determines that all of the claims raised in the action are subject to

arbitration.” Johnmohammadi v. Bloomingdale’s Inc., 

, 1074 (9th

Cir. 2014) (emphasis added) (cited at Mem. Dispo. at 2); see also Interactive

Flight Techs., Inc. v. Swissair Swiss Air Transp. Co., 

, 1178–79 (9th

Cir. 2001) (appeal allowed where, after dismissing one claim, the district court


                                          3
“ordered the parties to arbitrate the remaining claims” and “dismissed the action

without prejudice”). But that is not what happened here. The district court had

only determined that the threshold issue of arbitrability needed to be arbitrated,

and that is an inherently interlocutory decision that bears no resemblance to the

definitive dismissal at issue in Johnmohammadi or Interactive Flight. Gonzalez’s

effort to manufacture appellate jurisdiction over the district court’s interlocutory

arbitration ruling by requesting voluntary dismissal thus fell squarely within the

settled rule that such dismissals do not create a final appealable decision, see

Concha v. London, 

, 1507 (9th Cir. 1995)—as the prior panel

properly held.

      Because the majority’s remand is improper, and I otherwise find no basis for

concluding that the district court abused its discretion in refusing to undo the

consequences of Gonzalez’s “fruitless” “litigation tactic,” I would affirm the

district court’s denial of Gonzalez’s Rule 60(b) motion. I respectfully dissent.




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