Tabitha Sperring v. LLR, INC., a Wyoming corporation

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TABITHA SPERRING; PAISLIE
M ARCHANT ; SALLY POSTON ,
individually and on behalf of
similarly situated persons,
Plaintiffs-Appellants,
v.
LLR, I NC., a Wyoming corporation;
LULAROE , LLC, a California limited
liability company; LENNON LEASING,
LLC, a Wyoming limited liability
company; MARK A. STIDHAM , an
individual; DEANNE BRADY , an
individual; DOES , 1–30, inclusive,
Defendants-Appellees.
No. 19-56295
D.C. No.
5:19-cv-00433-
AB-SHK
OPINION
Appeal from the United States District Court
for the Central District of California
Andre Birotte, Jr., District Judge, Presiding
Submitted February 5, 2021*
Pasadena, California
* The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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2 SPERRING V. LLR
Filed April 23, 2021
Before: Ronald M. Gould, John B. Owens, and
Lawrence VanDyke, Circuit Judges.
Per Curiam Opinion
SUMMARY**
California Insurance Law
The panel dismissed for lack of appellate jurisdiction an
appeal from the district court’s order compelling arbitration
of a putative class action.
The panel held that Langere v. Verizon Wireless
Services, LLC, 983 F.3d 1115 (9th Cir. 2020), controlled the
outcome of this case. Appellants, like Langere, voluntarily
dismissed their action with prejudice in an attempt to obtain
an appealable final judgment following an order compelling
arbitration, and this tactic no longer creates appellate
jurisdiction. The panel further held that it was of no
consequence that appellants moved for a court order
dismissing their action under Fed. R. Civ. P. 41(a)(2), while
Langere unilaterally dismissed his action under Fed. R. Civ.
P. 41(a)(1). Finally, the panel held that appellants’
contention, that there was appellate jurisdiction under
9 U.S.C. § 16(a)(3), was without merit.
** This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

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SPERRING V. LLR 3
COUNSEL
Justin P. Karczag, Encore Law Group LLP, Los Angeles,
California; Kevin D. Gamarnik, Foley Bezek Behle & Curtis
LLP, Costa Mesa, California; Aaron L. Arndt, Foley Bezek
Behle & Curtis LLP, Santa Barbara, California; for
Plaintiffs-Appellants.
Steven T. Graham, William S. O’Hare, Elizabeth M.
Weldon, Todd E. Lundell, and Jing (Jenny) Hua, Snell &
Wilmer LLP, Costa Mesa, California, for Defendants-
Appellees.
OPINION
PER CURIAM:
Tabitha Sperring, Paislie Marchant, and Sally Poston
(collectively “Appellants”) appeal from the district court’s
order compelling arbitration of their putative class action
against LLR, Inc.; LuLaRoe, LLC; Lennon Leasing, LLC;
Mark Stidham; and Deanne Brady (collectively
“LuLaRoe”). Appellants, all consultants for LuLaRoe,
alleged that LuLaRoe operated an illegal endless-chain
pyramid scheme in violation of California and federal law.
LuLaRoe moved the district court to compel arbitration
under the agreement each consultant had signed with
LuLaRoe. The district court compelled arbitration and
stayed proceedings pending arbitration. Appellants then
filed a motion to voluntarily dismiss the case with prejudice
so they could “immediately appeal” the court’s order
compelling arbitration, noting that “the Order ha[d] so
damaged their case that seeing their cases through the
arbitration process would be a waste of resources for”

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4 SPERRING V. LLR
Appellants. The district court granted the voluntary
dismissal, and Appellants filed the instant appeal. We
dismiss the appeal for lack of jurisdiction.
“The courts of appeals . . . shall have jurisdiction of
appeals from all final decisions of the district courts of the
United States . . . .” 28 U.S.C. § 1291 (emphasis added).
We had long held that § 1291 gave us jurisdiction over
appeals of interlocutory orders following a plaintiff’s
voluntary dismissal with prejudice. See Ward v. Apple Inc.,
791 F.3d 1041, 1045–46 (9th Cir. 2015); Omstead v. Dell,
Inc., 594 F.3d 1081, 1085 (9th Cir. 2010) (so holding in
compelled arbitration context). However, in Microsoft
Corp. v. Baker, 137 S. Ct. 1702, 1715 (2017), the Supreme
Court reversed our judgment, holding that the voluntary-
dismissal tactic does not yield an appealable final judgment
in the class certification context. Recently, in Langere v.
Verizon Wireless Services, LLC, we concluded that
Omstead, which had upheld appellate jurisdiction in the
compelled arbitration context, “has been effectively
overruled by the Court’s decision in Microsoft.” 983 F.3d
1115, 1117 (9th Cir. 2020). Therefore, we held that “the
voluntary dismissal of claims following an order compelling
arbitration does not create appellate jurisdiction.” Id.
at 1124.
Langere controls the outcome here. Appellants, like
Langere, voluntarily dismissed their action with prejudice in
an attempt to obtain an appealable final judgment following
an order compelling arbitration. As we stated in Langere,
this tactic no longer “create[s] appellate jurisdiction.” Id.
Contrary to Appellants’ contention, it is of no consequence
that Appellants moved for a court order dismissing their
action under Federal Rule of Civil Procedure 41(a)(2), while
Langere unilaterally dismissed his action under Rule

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SPERRING V. LLR 5
41(a)(1). The plaintiffs in Microsoft also moved the district
court to dismiss their case with prejudice under Rule
41(a)(2), rather than dismissing unilaterally. See 137 S. Ct.
at 1711. And Langere expressly held that Omstead, which
had approved of appellate jurisdiction following a Rule
41(a)(2) dismissal, has been overruled. See Langere,
983 F.3d at 1119, 1122.
Appellants’ additional contention that Langere is
inapplicable because we have jurisdiction under 9 U.S.C.
§ 16(a)(3) is without merit. Section 16(a)(3) allows an
appeal from “a final decision with respect to an arbitration
that is subject to” the Federal Arbitration Act. 9 U.S.C.
§ 16(a)(3). Whether a voluntary dismissal with prejudice
constitutes an appealable “final decision” under either § 16
or 28 U.S.C. § 1291 is the very question we confronted in
Langere and answered in the negative. Therefore, under our
clear holding in Langere, we lack appellate jurisdiction here.
DISMISSED.

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