Rodrigo Rivas, as an individual, and on behalf of all others similarly situated v. Terminix International Company, a Delaware corporation; ERNEST WALKER

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RODRIGO RIVAS, as an individual, and
on behalf of all others similarly situated,
Plaintiff - Appellee,
v.
TERMINIX INTERNATIONAL
COMPANY, a Delaware corporation;
ERNEST WALKER,
Defendants - Appellants.
No. 13-17672
D.C. No. 3:13-cv-04962-MMC
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Maxine M. Chesney, Senior District Judge, Presiding
Argued and Submitted December 7, 2015
San Francisco, California
Before: WARDLAW, W. FLETCHER, and MURGUIA, Circuit Judges.
Defendants Terminix International Company and Ernest Walker
(collectively “Terminix”) appeal the district court’s grant of Plaintiff Rodrigo
Rivas’s motion for dismissal without prejudice under Federal Rule of Civil
FILED
DEC 21 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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Procedure (“FRCP”) 41(a)(2). We have jurisdiction under 28 U.S.C. 1291, and we
affirm.
Rivas originally filed his class and representative action against Terminix in
state court. Terminix removed the case to federal court under the Class Action
Fairness Act of 2005. After arriving in federal court, Rivas filed an amended
complaint, which included only a single cause of action based on California’s
Private Attorneys General Act of 2004 (“PAGA”). The PAGA claim, standing
alone, would not have provided a basis for removal. Rivas moved unsuccessfully
for remand. Terminix moved to compel arbitration under the Federal Arbitration
Act, 9 U.S.C. § 1, et seq. Rivas then moved for dismissal without prejudice under
FRCP 41(a)(2). The court granted Rivas’s motion, and denied Terminix’s motion
as moot.
When Terminix removed this case to federal court, neither the California
Supreme Court nor our court had determined whether employees could waive their
right to bring a PAGA action in an arbitration agreement. The legal landscape has
since changed. In June 2014, the California Supreme Court ruled that an
employee’s right to bring a PAGA action is unwaivable. See Iskanian v. CLS
Transp. L.A., LLC, 327 P.3d 129, 148-49 (Cal. 2014), cert. denied, 135 S. Ct. 1155
(2015). In September 2015, we held that the Iskanian rule is not preempted by the
-2-

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Federal Arbitration Act. See Sakkab v. Luxottica Retail N. Am., Inc., 803 F.3d 425,
431 (9th Cir. 2015). 3333
Because both the California Supreme Court and our court have now held
that waivers of representative PAGA claims are unenforceable, and because any
motion now made in the district court under Rule 41(a)(2) would not be subject to
a motion to compel arbitration, we affirm. That is, given the current state of the
law, the district court’s grant of Rivas’s motion under Rule 41(a)(2) would not be
an abuse of discretion.
AFFIRMED.
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