                             NOT FOR PUBLICATION                         FILED
                      UNITED STATES COURT OF APPEALS                     MAY 19 2015
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                             FOR THE NINTH CIRCUIT


 JESSICA GESSELE; ASHLEY ORTIZ;                  No. 15-35262
 NICOLE GESSELE; TRICIA TETRAULT;
 CHRISTINA MAULDIN; JASON DIAZ,                  D.C. No. 3:14-cv-01092-BR
 both on behalf of themselves individually
 and in addition, on behalf of the other
 similarly situated employees,                   MEMORANDUM*

              Plaintiffs - Appellees,

    v.

 JACK IN THE BOX, INC., a Delaware
 Corporation,

              Defendant - Appellant.

                     Appeal from the United States District Court
                              for the District of Oregon
                      Anna J. Brown, District Judge, Presiding

                          Argued and Submitted May 4, 2015
                                  Portland, Oregon

Before: W. FLETCHER and HURWITZ, Circuit Judges and WALTER, ** Senior
District Judge.


         *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
         **
             The Honorable Donald E. Walter, Senior District Judge for the U.S.
District Court for the Western District of Louisiana, sitting by designation.
      This is an appeal from a district court order remanding to state court a putative

class action by employees of Jack in the Box Inc. (“the Employees”), asserting

violations of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201–219, and

Oregon law.

      The Employees made similar claims in a previous suit. The district court

found that the FLSA claims in that suit were untimely because the Employees had

failed to file the written consents required in FLSA collective actions within the

statute of limitations. See 29 U.S.C. §§ 216(b), 255(a), 256. The district court

dismissed the prior action without prejudice, describing the failure to file timely

consents as depriving the court of jurisdiction. Jack in the Box did not appeal.

      The Employees then filed this case in state court, asserting FLSA claims not

included in the previous suit. Jack in the Box removed, asserting federal question

jurisdiction under 28 U.S.C. § 1331, and diversity jurisdiction under the Class

Action Fairness Act (“CAFA”), id. § 1332(d). The district court remanded, finding

the jurisdictional assertions barred by issue preclusion and judicial estoppel in light

of the dismissal of the prior suit.

      We have jurisdiction over Jack in the Box’s appeal of the remand order under

28 U.S.C. § 1453(c)(1). We reverse and remand.

      1. Regardless of whether the jurisdictional issues in the prior suit were

correctly decided, Jack in the Box is precluded from relitigating them. See Gupta


                                          2
v. Thai Airways Int’l, Ltd., 487 F.3d 759, 767 (9th Cir. 2007); Kendall v. Overseas

Dev. Corp., 700 F.2d 536, 539 (9th Cir. 1983).            But, issue preclusion only

“forecloses relitigation of factual or legal issues that have been actually and

necessarily decided in earlier litigation.” San Remo Hotel, L.P. v. San Francisco

City & Cnty., 364 F.3d 1088, 1094 (9th Cir. 2004), aff’d, 545 U.S. 323 (2005).

Because the prior decision did not address the timeliness of the newly asserted FLSA

claims, nor did it consider CAFA jurisdiction, Jack in the Box is not precluded from

invoking federal jurisdiction in this suit.     The district court therefore erred in

remanding any of the Employees’ FLSA and state-law claims to state court.

      2. Judicial estoppel bars a party from taking contradictory positions. See

Hendricks & Lewis PLLC v. Clinton, 766 F.3d 991, 1001–02 (9th Cir. 2014); United

Steelworkers of Am. v. Ret. Income Plan for Hourly-Rated Emps. of ASARCO, Inc.,

512 F.3d 555, 563–64 (9th Cir. 2008). In the first case, Jack in the Box argued that

the court lacked original jurisdiction over the untimely FLSA claims, and the court

therefore could not exercise supplemental jurisdiction over the state-law claims.

This argument is not inconsistent with Jack in the Box’s current arguments that there

is no time bar to the newly asserted FLSA claims, or that the district court has CAFA

jurisdiction over the state-law claims.

      3. We agree with the district court that Jack in the Box did not waive its right

to remove through its filings in the state court or its prior conduct in this litigation.


                                           3
See Chapman v. Deutsche Bank Nat’l Trust Co., 651 F.3d 1039, 1045 n.2 (9th Cir.

2011) (per curiam); EIE Guam Corp. v. Long Term Credit Bank of Japan, Ltd., 322

F.3d 635, 649 (9th Cir. 2003).

      4. For the reasons above, we REVERSE the district court’s remand order

and REMAND for further proceedings consistent with this disposition.




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