No. 22-1015

DAMON IMMEDIATO, STEPHEN LEVINE, and ERIC WICKBERG, on behalf of themselves and all others similarly situated,

Plaintiffs, Appellants,

v.

POSTMATES, INC.,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Richard G. Stearns, U.S. District Judge]

Before

Lynch and Selya, Circuit Judges, and McElroy,* District Judge.

Shannon Liss-Riordan, with whom Michelle Cassorla and Lichten & Liss-Riordan, P.C. were on brief, for appellants. Theane Evangelis, with whom Blaine H. Evanson, Dhananjay S. Manthripragada, Shaun A. Mathur, Allison L. Mather, and Gibson, Dunn & Crutcher LLP were on brief, for appellee.

November 29, 2022

* Of the District of Rhode Island, sitting by designation. SELYA, Circuit Judge. This appeal requires us to determine whether couriers who deliver goods from local restaurants and retailers are transportation workers engaged in interstate commerce such that they are exempt from the Federal Arbitration Act (FAA or Act). See 9 U.S.C. § 1. The district court concluded that they were not exempt, compelled arbitration of the parties' dispute, and dismissed the appellants' suit. The appellants assign error: they insist that our decision in Waithaka v. Amazon.com, Inc., in which we held that Amazon delivery drivers responsible for the final leg of interstate package deliveries were exempt from the FAA, demands a different outcome. 966 F.3d 10, 13 (1st Cir. 2020).

The appellants are comparing plums with pomegranates. Unlike the Amazon delivery drivers in Waithaka, the couriers here are not actively engaged in the interstate transport of goods and, thus, are not within a class of workers exempted from the Act. Accordingly, we affirm the judgment below.

I

The genesis of this appeal can be traced back to the district court's grant of the appellee's motion to compel arbitration. Because the motion to compel was made in conjunction with a motion to stay, "we draw the relevant facts from the operative complaint and the documents submitted to the district

- 2 - court in support of the motion to compel arbitration." Cullinane v. Uber Techs., Inc., 893 F.3d 53, 55 (1st Cir. 2018).

Defendant-appellee Postmates, Inc. operates an online and mobile platform that enables customers to order take-out meals from local restaurants as well as comestibles and sundries from local grocery stores. Once an order is placed, the appellee arranges — at the customer's behest — for a courier to deliver the order. As relevant here, nearly all orders placed in Massachusetts (99.66%) are fulfilled within the state, and the average distance travelled by a courier during a delivery is about 3.7 miles.

Individuals register as couriers through a mobile application. As part of that registration, they must accept the appellee's "Fleet Agreement," which generally sets forth the rights and obligations of the parties and — in the bargain — classifies couriers as independent contractors. The agreement contains a mutual arbitration provision that is "governed exclusively" by the FAA and applies to "any and all claims" against the appellee. Such claims include those that arise from disputes over the terms of the Fleet Agreement itself, as well as those that sound in federal, state, or local law.

The mutual arbitration provision requires that a