Opinion

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 SOUTHERN DISTRICT OF CALIFORNIA 7 8 LAURA O’DELL, HOLLY Case No.: 3:22-cv-1151-CAB-MMP ZIMMERMAN, and LAUREN MILLER, 9 individually and on behalf of all others SUPPLEMENTAL ORDER 10 similarly situated, REGARDING DEFENDANT’S PETITION FOR A WRIT OF 11 Plaintiffs, MANDAMUS 12 v. (Appeal No. 26-3867) 13 AYA HEALTHCARE, INC., 14 Defendant. 15 16 Defendant Aya Healthcare, Inc. (“Aya”) recently filed a petition for a writ of 17 mandamus in this case. [Appeal No. 26-3867, DktEntry 1 (“Petition”).] The Circuit 18 provided an opportunity for the Court to address the Petition if desired, [Id., DktEntry 19 11.1.], which the Court elects to do via this supplemental order. 20 A. Background 21 This case was originally filed in August 2022 by three travel nurses who alleged that 22 Aya (1) underpaid its travel nurses and (2) changed the terms of the assignment after the 23 nurse began the assignment with a “take-it-or-leave-it” offer to accept less pay or be 24 terminated. [Doc. No. 1.] The alleged collective under the Fair Labor Standards Act 25 (“FLSA”) could encompass more than 400,000 individuals. [Doc. No. 214 at 11.] 26 On February 25, 2025, the Court denied Aya’s motion to compel arbitration of the 27 255 Plaintiffs who had opted in (“Opt-In Plaintiffs”) on the basis of non-mutual offensive 28 collateral estoppel. [Doc. No. 175.] Based on that decision, the Court “decline[d] to reach 1 the other issues raised by Plaintiff in opposition to the motion,” [id. at 7 n.5], including that 2 the delegation clause and arbitration agreement are unconscionable and that the law of the 3 case doctrine did not apply because the prior Judge’s ruling occurred before the Opt-In 4 Plaintiffs joined the case and had the opportunity to present their arguments. [See generally 5 Doc. No. 150.] 6 Aya appealed. The Court therefore “deemed withdrawn subject to refiling following 7 the outcome of the appeal” Plaintiffs’ motion to certify a conditional FLSA collective and 8 Aya’s motion to dismiss and strike class and collective allegations. [Doc. Nos. 121, 134, 9 189.] 10 On April 1, 2026, the Ninth Circuit reversed the Court’s application of non-mutual 11 offensive collateral estoppel and remanded the case for proceedings consistent with its 12 opinion. O’Dell v. Aya Healthcare Servs., Inc., 171 F.4th 1173 (9th Cir. 2026) (“O’Dell 13 I”). 14 On remand, the Court ordered a joint status report on the parties’ suggested next 15 steps and held a mandate hearing on May 11, 2026. [Doc. Nos. 190, 193, 196.] During 16 the hearing, Aya asserted that if the Court found the arbitration agreement unenforceable 17 against the current Opt-In Plaintiffs, Aya would move to compel arbitration each time any 18 additional plaintiff—of the more than 400,000 potential plaintiffs—subsequently opted in. 19 [Doc. No. 214-4 at 11, ll. 18-19 (“[O]ur position is we are going to be right back here 20 moving to compel those arbitrations as well.”); id. at 10–11, ll. 19–4.] 21 The Court held Aya’s pre-appeal motion to compel arbitration in abeyance, 22 conditionally certified an FLSA collective for the purpose of notice, and ordered the parties 23 to meet and confer regarding a revised notice and notice process. [Doc. No. 199; Doc. No. 24 214-4 at 17.] No notice has since been ordered or distributed. 25 On May 27, 2026, Aya filed an Ex Parte Motion to Compel Arbitration, Decertify 26 or Reconsider Certification, and for Entry of a Stay. [Doc. No. 214 (“Ex Parte Motion to 27 Compel Arbitration”).] The Court ordered a response from Plaintiffs, which was filed on 28 June 5, 2026 after an extension that Aya did not oppose. [Doc. Nos. 216, 218.] 1 Five days later, on June 10, 2026, Aya filed a Notice of Appeal as to (1) the Court’s 2 “oral rulings entered on May 11, 2026, holding Aya’s motion to compel arbitration in 3 abeyance and refusing a stay under 9 U.S.C. § 3”; (2) “the written order entered May 12, 4 2026, partially granting plaintiffs’ motion for conditional certification of a collective 5 action”; and (3) “all other orders, rulings, and judgments merged therein.” [Doc. No. 219.] 6 Aya claimed that the Court’s “orders refusing Aya’s request for a stay under Section 3 are 7 appealable as of right under 9 U.S.C. § 16(a)(1)(A).” [Id.] 8 On June 12, 2026, the Court issued an order regarding Aya’s notice of appeal, 9 explaining that it saw no basis for appeal because Aya’s Ex Parte Motion to Compel 10 Arbitration remained pending and Aya had not asked for, let alone received, a certification 11 for interlocutory appeal under 28 U.S.C. § 1292(b). [Doc. No. 223.] Moreover, as the 12 Court explained, it believed that proceeding by conditionally certifying a collective, 13 ordering notice, and then deciding the Ex Parte Motion to Compel Arbitration (or any 14 motion to arbitrate) on the merits (1) was within the Court’s “substantial judicial 15 discretion” with respect to “the proper means of managing a collective action,” (2) 16 comported with controlling precedent, and (3) avoided the possibility of proceeding 17 seriatim as each new collective member opted-in over time. [Id. at 2–3.] 18 On June 16, 2026, Aya filed this Petition. [Doc. No. 225.] 19 B. The Court Followed the Circuit’s Mandate, Which Reversed the Application of Non-Mutual Offensive Collateral Estoppel 20 21 Aya argues that mandamus is warranted to enforce the Circuit’s mandate in O’Dell I. 22 There, the Circuit held as a matter of first impression that the Federal Arbitration Act 23 (“FAA”) “does not permit the application of non-mutual offensive collateral estoppel that 24 would result in the effective invalidation of arbitration agreements” and so remanded the 25 case “for further proceedings consistent with [the Circuit’s] opinion.” O’Dell I, 171 F.4th 26 at 1174. Aya argues that this Court’s only choice on remand was therefore to compel 27 arbitration and issue a stay under FAA § 3. [Appeal No. 26-3867, DktEntry 1.1 at 17.] 28 1 The Court disagrees. O’Dell I reversed the Court’s application of non-mutual 2 offensive collateral estoppel; it did not analyze or decide the merits of whether the 3 arbitration agreement or delegation clause are unconscionable with respect to the Opt-In 4 Plaintiffs and it did not order that the Opt-In Plaintiffs be sent immediately to arbitration. 5 Significantly, O’Dell I did not do so despite Aya seeking both of these outcomes 6 from the Circuit. Aya’s O’Dell I briefing asked the Circuit to “remand for entry of an order 7 compelling the opt-in plaintiffs to arbitrate.” [Appeal No. 25-1528, DktEntry 15.1 at 28.] 8 And at the Circuit hearing, Aya argued that the “easiest way” to resolve the appeal in its 9 favor was “to say that the delegation clause exists and [the issue of whether the dispute is 10 arbitrable] should get kicked to an arbitrator.” [Appeal No. 25-1528, Oral Argument at 11 1:30; see also id. at 29:30 (Judge Tallman: “Assuming that we determine that the district 12 court erred by applying non-mutual offensive collateral estoppel here, should we decide 13 whether or not the delegation clause is enforceable or should we send it back [to the district 14 court]?”), 38:25 (Aya Counsel: “I think this Court can and should decide [the enforceability 15 of the delegation clause] because it’s been briefed.”). The Court thus believes that the 16 Circuit was keenly aware of Aya’s desired outcome, yet did not order that relief. Instead, 17 O’Dell I narrowly held that non-mutual offensive collateral estoppel is not compatible with 18 the FAA, reversed this Court’s decision on that issue, and remanded accordingly. The 19 Court therefore believes that it acted within the spirit and the letter of the Circuit’s mandate 20 by proceeding with the case on remand as it did. 21 Aya relies on Herrera v. Cathay Pac. Airways Ltd., 104 F.4th 702 (9th Cir. 2024) 22 and Vizcaino v. U.S. Dist. Ct. for W. Dist. of Washington, 173 F.3d 713 (9th Cir. 1999), 23 amended on other grounds on denial of reh’g sub nom. In re Vizcaino, 184 F.3d 1070 (9th 24 Cir. 1999), but both cases are distinguishable because the Circuit either decided the merits 25 question of arbitrability or issued explicit instructions for remand that were disregarded. 26 See Herrera, 104 F.4th at 711 (determining that district court erred in denying defendant’s 27 motion to compel arbitration and remanding “with instructions to stay the action pending 28 arbitration” of plaintiffs’ underlying claim); Vizcaino, 173 F.3d at 720, 725 (explaining 1 that a prior appeal defined a particular class and so mandamus was appropriate when the 2 district court redefined the class on remand). Here, this Court never addressed the merits 3 of the Opt-In Plaintiffs’ arguments regarding arbitrability, namely unconscionability. 4 [Doc. No. 175 at 7 n.5 (“The Court declines to reach the other issues raised by Plaintiff in 5 opposition to the motion.”).] 6 C. Alternatively, None of the Bauman Factors Support Mandamus 7 1. This Court’s Case Management Decision Was Based on Controlling Precedent and Therefore Not Clearly Erroneous 8 9 While the Bauman factors are considered holistically, the presence of clear error is 10 a prerequisite for mandamus relief. Burlington N. & Santa Fe Ry. Co. v. U.S. Dist. Court 11 for the Dist. of Mont., 408 F.3d 1142, 1146 (9th Cir. 2005); Bauman v. U.S. Dist. Ct., 557 12 F.2d 650 (9th Cir. 1977). Without clear error, mandamus is unwarranted. Burlington, 408 13 F.3d at 1146. That is the case here where the Court believes that multiple Ninth Circuit 14 cases support the Court’s case management decision. E.g., Harrington v. Cracker Barrel 15 Old Country Store, Inc., 142 F.4th 678, 684 (9th Cir. 2025) (recognizing a district court’s 16 “substantial judicial discretion” with respect to “the proper means of managing a collective 17 action”); McElmurry v. U.S. Bank Nat. Ass’n, 495 F.3d 1136, 1139–41 (9th Cir. 2007) 18 (denying appeal and mandamus where district court denied motion for notice to collective 19 because issue could be raised on appeal from a final judgment without irreversibly 20 forfeiting some right); Campbell v. City of Los Angeles, 903 F.3d 1090, 1099, 1105–06 21 (9th Cir. 2018) (holding that decertification of certain employees from collective was 22 appealable “after the interlocutory decertification order to which they are adverse merges 23 with final judgment”); Lillehagen v. Alorica, Inc., No. SACV 13-0092-DOC, 2014 WL 24 2009031, at *2 (C.D. Cal. May 15, 2014) (collecting cases deciding that certification 25 decisions are not immediately appealable). 26 On the other hand, Aya can cite only out-of-circuit support for its position that 27 certification of a collective action is immediately appealable. 28 1 Based on these cases, and Aya’s position that even if the Court found the arbitration 2 agreement unenforceable against the current Opt-In Plaintiffs, Aya would move for 3 arbitration each time any of the more than 400,000 potential additional plaintiffs 4 subsequently opted in to the collective, the Court elected to ascertain the full scope of the 5 collective and any potentially fact intensive and individualized issues regarding the 6 applicability and enforceability of the arbitration agreements before deciding Aya’s 7 motion. 8 2. Aya Has Other Adequate Means to Attain Relief and Will Not Be Damaged or Prejudiced in a Way Not Correctable on Appeal 9 10 As the Circuit held in McElmurry, the certification decision is not suitable for 11 interlocutory appeal nor qualifies for mandamus relief because that decision does not 12 decide the merits. So too here. 13 Aya complains that it will be damaged because it will have “lost the benefit of its 14 bargained-for agreements even if the [Circuit] concludes years later that the district court 15 erred by refusing to stay pending arbitration.” [Appeal No. 26-3867, Dkt.Entry 1.1 at 31.] 16 Again, the Court has not refused a stay pending arbitration. The Court exercised its case 17 management discretion to proceed with notice to potential collective members, provide a 18 limited opt-in period, and then resolve any arbitrability issues on the merits as to all Opt- 19 In Plaintiffs. Aya is only required at the notice stage to provide the identities and contact 20 information for potential members of the collective. Aya is not required to screen these 21 individuals and determine whether each is “similarly situated” to Plaintiffs. That will be 22 Plaintiffs’ burden to demonstrate at the appropriate time if the collective action proceeds. 23 Notice to potential opt-in plaintiffs with a set time frame will manage the case so that the 24 enforceability of the arbitration agreement (common to all potential members of the 25 collective) can be resolved efficiently. 26 The Court is also mindful of the statutory framework governing collective actions. 27 Under 29 U.S.C. § 216, employees have a right to bring or join a collective action via a 28 suit against an employer “by any one or more employees for and in behalf of himself or 1 themselves and other employees similarly situated.” And in Hoffman-La Roche Inc. v. 2 Sperling, the Supreme Court emphasized the important role that § 216(b) plays in 3 vindicating employees’ rights to bring collective actions and thus take advantage of lower 4 costs and pooling resources: 5 The judicial system benefits by efficient resolution in one proceeding of common issues of law and fact arising from the 6 same alleged [unlawful] activity. These benefits, however, 7 depend on employees receiving accurate and timely notice concerning the pendency of the collective action, so that they can 8 make informed decisions about whether to participate. Section 9 216(b)’s affirmative permission for employees to proceed on behalf of those similarly situated must grant the court the 10 requisite procedural authority to manage the process of joining 11 multiple parties in a manner that is orderly, sensible, and not otherwise contrary to statutory commands or the provisions of 12 the Federal Rules of Civil Procedure. See Fed. Rule Civ. Proc. 13 83. It follows that, once a[ collective] action is filed, the court has a managerial responsibility to oversee the joinder of 14 additional parties to assure that the task is accomplished in an 15 efficient and proper way. 16 493 U.S. 165, 170–71 (1989). 17 3. Aya Has Not Shown Any Oft-Repeated Error or Persistent Disregard 18 of the Federal Rules 19 Aya contends that the Court’s actions “demonstrate[] a persistent disregard for the 20 FAA.” [Appeal No. 26-3867, DktEntry 1.1 at 34.] The Court disagrees, particularly given 21 the prior appeal was decided as a matter of first impression and on an entirely different 22 issue (the application of non-mutual offensive collateral estoppel) than here. See Bauman, 23 557 F.2d at 660 (explaining that prior cases had not “applied the ‘persistent disregard of 24 the federal rules’ concept to a district judge who had not received, prior to making the 25 objectionable order, warning that such was erroneous”). Indeed, the Court believes that it 26 27 28 1 Aya that has disregarded federal rules and the normal course of litigation by appealing a 2 pending motion! and pursuing this Petition. 3 4. The Court’s Case Management Decision Presents No New and A Important Problems or Legal Issues of First Impression 5 Given the cases previously discussed, the Court does not view this case as raising a 6 || new and important problem or issue of law of first impression. 7 D. The Circuit Need Not Reassign the Case 8 The Court views reassignment as unnecessary. The Court has no hostility to g ||arbitration, the FAA, or the parties, and is committed, as always, to faithfully and 10 impartially applying the law. 11 It is SO ORDERED. 12 ||Dated: July 20, 2026 & 13 Hon. Cathy Ann Bencivengo 14 United States District Judge 15 16 17 18 19 20 21 22 23 24 25 ' To the extent the appeal was filed due to a perceived appeal deadline, Aya’s (still) pending motion was 26 || styled as a motion for reconsideration. It is well settled that a timely motion for reconsideration renders an otherwise final decision no longer final for purposes of appeal. Nutraceutical Corp. v. Lambert, 586 27 188, 197 (2019). 28