                                                                            FILED
                            NOT FOR PUBLICATION                              OCT 20 2014

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


JONATHAN SULTAN, an individual, on                No. 12-57072
behalf of himself and all others similarly
situated,                                         D.C. No. 2:11-cv-04132-MWF-
                                                  PLA
              Plaintiff - Appellant,

  v.                                              MEMORANDUM*

MEDTRONIC, INC., a Minnesota
Corporation,

              Defendant - Appellee.


                   Appeal from the United States District Court
                       for the Central District of California
                  Michael W. Fitzgerald, District Judge, Presiding

                       Argued and Submitted October 6, 2014
                               Pasadena, California

Before: PREGERSON, TALLMAN, and BEA, Circuit Judges.

       Jonathan Sultan filed a labor law class action suit in which he is the sole

proposed representative on behalf of a putative class against Medtronic, Inc., his

former employer. The district court denied class certification and dismissed some


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
of Sultan’s overtime claims. Shortly thereafter, Sultan entered into a Fed. R. Civ.

P. Rule 68 Judgment with Medtronic—effectively settling the case. Although

Sultan now says he intended this settlement agreement to cover only his remaining

individual claims, the Order of Judgment, to which Sultan agreed, reads: “[T]he

total amount paid by defendant is paid on account of any liability claimed in this

action, including all costs of suit, interest, and attorney’s fees otherwise

recoverable in this action by plaintiff . . . .”

       If a putative class representative wishes to settle his own claims while

preserving his right to appeal the denial of class certification, it is incumbent upon

him to include language to that effect in the settlement. See Narouz v. Charter

Comm’ns, LLC, 591 F.3d 1261, 1264 (9th Cir. 2010) (“In order to retain such a

‘personal stake,’ a class representative cannot release any and all interests he or

she may have had in class representation through a private settlement agreement.”

(emphasis added)). Here, Sultan agreed to this broad language. As a result, any

individual and class claims Sultan alleged in the action merged into the Rule 68

Judgment and have been exhausted. The language of that judgment controls on the

jurisdictional question. Evon v. Law Offices of Sidney Mickell, 688 F.3d 1015,

1021 (9th Cir. 2012).




                                              2
      Sultan retains no “personal stake” in the class claims he is attempting to

appeal, and no other named plaintiff is present to argue the class certification

question, rendering this case moot.

      DISMISSED.




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