United States Court of Appeals,
Eleventh Circuit.
No. 95-3255.
David M. ARMSTRONG, L. Benson Barger, Wallace D. Black, Howard
Brooks, Jerry A. Budd, Sonja M. Carter, Dominick C. Cizek, Carol D.
Clark-Iley, Charles H. Davis, Kenneth O. Giessuebel, Herold P.
Glaser, Robert A. Havlish, Kumar Hinduja, Joseph C. Jett, Glenn E.
Johnson, Robert C. Lerche, Calvin N. Lightner, George W. McGuirk,
James W. McLean, William G. Murphy, Donald L. Prasky, Clark C.
Rains, Myrtle Y. Redding, Kenneth A. Richards, Russell G. Roberts,
Linda L. Ryan, Victor W. Shaw, Linton W. Smith, Michael Sylvestri,
Marlon K. Tarter, Delbert S. Turner, Edward W. Walsh, Joseph W.
Williamson, Plaintiffs-Appellants,
Constantino A. Barbitta, James R. Baxter, Robert D. Biggs, James
H. Black, Rick L. Bordner, Rodmond M. Cookson, David B. Pool, Roger
A. Purcell, Rama S. Singh, Charles M. Smith, Robert G. Swanson,
William F. Waldrop, Kenneth E. Welch, Plaintiffs,
v.
MARTIN MARIETTA CORP., Martin Marietta Technologies, Inc.,
Defendants-Appellees.
Sept. 11, 1996.
Appeal from the United States District Court for the Middle
District of Florida. (No. 94-1066-CV-ORL-18), G. Kendall Sharp,
Judge.
Before HATCHETT and ANDERSON, Circuit Judges, and WOOD*, Senior
Circuit Judge.
HATCHETT, Circuit Judge.
As a matter of first impression in this circuit, the court
outlines options that plaintiffs, who have been dismissed from
class actions after opting-in to the class actions, may take to
protect their right to litigate their claims individually before a
statute of limitations runs. We affirm in part, reverse in part,
and remand.
*
Honorable Harlington Wood, Jr., Senior U.S. Circuit Judge
for the Seventh Circuit, sitting by designation.
FACTS AND PROCEDURAL HISTORY
In 1993, David M. Armstrong and thirty-two other former
employees of Martin Marietta Corporation and Martin Marietta
Technologies, Inc. (collectively "Martin Marietta") opted in an Age
Discrimination in Employment Act (ADEA) class action captioned
Carmichael et al. v. Marietta Technologies, Inc., case no. 94-100-
Civ-Orl-18. On April 7, 1994, the district court dismissed
Armstrong and the other thirty-two employees' claims without
prejudice concluding that they were not similarly situated to the
Carmichael plaintiffs. On October 11, 1994, more than ninety days
after the district court's order of dismissal, Armstrong, the
thirty-two employees, and twelve additional former employees of
Martin Marietta (hereinafter the "Armstrong plaintiffs") filed this
ADEA action in the Middle District of Florida alleging that Martin
Marietta engaged in age discrimination when it laid them off in
1988 as part of its large scale work force reduction. On October
25, 1994, the Armstrong plaintiffs filed an amended complaint
adding an additional plaintiff making the number of plaintiffs in
this action forty-six.
On January 17, 1995, Martin Marietta filed a motion for
partial summary judgment against twenty-nine of the forty-six
Armstrong plaintiffs on the grounds that these plaintiffs failed to
file their individual lawsuits within ninety days after receiving
notice of their dismissal from the Carmichael class action. Martin
Marietta also sought summary judgment against three other Armstrong
plaintiffs, Carol Clark-Iley, Glenn Johnson and Victor Shaw, on the
additional ground that they each failed to file a charge of
discrimination with the Equal Employment Opportunity Commission
(EEOC) within 300 days of the alleged unlawful practice, in
violation of 29 U.S.C. 626(d)(2) (1994).
On March 22, 1995, a magistrate judge issued a report
recommending that the district court grant Martin Marietta's
partial summary judgment motion. The magistrate judge concluded
that the ninety-day filing period commenced to run on the Armstrong
plaintiffs' claims when the district court dismissed them from the
Carmichael class action; therefore, their claims were time barred.
The magistrate judge also recommended that the district court grant
summary judgment against Marlon K. Tarter who was not included in
Martin Marietta's summary judgment motion. Finally, the magistrate
judge concluded that the "single-file" rule did not require
plaintiffs Johnson, Clark-Iley and Shaw to file charges of
discrimination with EEOC rejecting Martin Marietta's alternative
ground for partial summary judgment. On May 10, 1995, the district
court adopted the magistrate judge's report and recommendation and
granted partial summary judgment in favor of Martin Marietta. On
September 14, 1995, the district court amended its order and
entered final judgment pursuant to Rule 54(b). This appeal
followed.
CONTENTIONS
The Armstrong plaintiffs contend that the ninety-day filing
period for bringing an ADEA action in district court remained
tolled after their dismissal from the class action because the
district court did not enter a final judgment. In the alternative,
the Armstrong plaintiffs contend that this court should excuse
their failure to file their individual lawsuits within the filing
period because they did not receive notice that the ninety-day
filing period resumed upon their dismissal from the class action.
In response, Martin Marietta contends that the "interlocutory"
status of the order dismissing the Armstrong plaintiffs from the
Carmichael action does not affect the Armstrong plaintiffs'
obligation to file their individual lawsuits within ninety-days of
their dismissal from the class action. Martin Marietta also
contends that this court should not excuse the Armstrong
plaintiffs' failure to file their individual ADEA lawsuit within
the statute of limitations period.
ISSUES
The sole issue we address is whether the tolling of the
ninety-day statute of limitations of the ADEA, due to the
claimants' membership in the class action, remains tolled when the
district court dismisses claimants from the pending class action in
an interlocutory order.
DISCUSSION
We review the district court's grant of summary judgment de
novo. Johnson v. Arrow Co., 75 F.3d 1528, 1531 (11th Cir.1996).
Title 29 U.S.C. § 626(e) requires an ADEA claimant to file a
lawsuit within ninety days of receiving notice of the right to sue
from the EEOC. Membership in a pending class action, however,
tolls the ninety-day period for filing an individual lawsuit. See
Crown, Cork & Seal Co., Inc. v. Parker, 462 U.S. 345, 352-53, 103
S.Ct. 2392, 2396-97, 76 L.Ed.2d 628 (1983). Title 29 U.S.C. §
216(b) authorizes an ADEA claimant to commence a class action or
opt into an existing class action. See 26 U.S.C. § 626(b) (1994)
(borrowing the Fair Labor Standards Act of 1938, 29 U.S.C. §
216(b)); See also Grayson v. K Mart Corporation, 79 F.3d 1086,
1097 (11th Cir.1996) (an ADEA claimant must demonstrate that a
reasonable basis exists for his or her claim of class-wide age
discrimination and make detailed allegations, supporting those
allegations with affidavits). As the Supreme Court explained in
Crown, Cork & Seal Co.:
"[T]he commencement of a class action suspends the applicable
statute of limitations as to all asserted members of the class
who would have been parties had the suit been permitted to
continue as a class action.' Once the statute of limitations
has been tolled, it remains tolled for all members of the
putative class until class certification is denied.
Crown, Cork & Seal Co., 462 U.S. at 353-54, 103 S.Ct. at 2397-98
(quoting American Pipe & Construction Co. v. Utah, 414 U.S. 538,
554, 94 S.Ct. 756, 766-67, 38 L.Ed.2d 713 (1974)) (citations
omitted). The tolling of the ninety-day statute of limitations
protects the claimant in the event class certification is
ultimately denied or vacated. Courts provide this protection
because it is reasonable for such claimants to rely on the named
plaintiffs in the pending class action to protect their rights.
Crown, Cork & Seal Co., 462 U.S. at 352-53, 103 S.Ct. at 2396-97
("Rule 23 both permits and encourages class members to rely on the
named plaintiffs to press their claims."); Griffin v. Singletary,
17 F.3d 356, 360 (11th Cir.1994) ("Insofar as the individual claims
are concerned, punitive class members should be entitled to rely in
a class action as long as it is pending."). Neither this court nor
other circuits, however, have addressed whether the ninety-day
statute of limitations period remains tolled when the district
court dismisses claimants from a pending class action in an
interlocutory order. This question is of particular importance
because at the time of dismissal claimants cannot appeal the
district court's dismissal order as of right because it is not a
final judgment. See Fed.R.Civ.P. 54(b).
In this case, the district court held that section 626(e) bars
the Armstrong plaintiffs' individual ADEA lawsuit because they
failed to commence their action within ninety days of receiving
notice of their dismissal from the Carmichael class action. The
district court found that in order for the Armstrong plaintiffs to
timely file their individual lawsuits under section 626(e), they
were required to file a lawsuit on or before July 7, 1994; the
Armstrong plaintiffs, however, filed their lawsuit on October 11,
1994. The Armstrong plaintiffs argue that the district court erred
in holding that section 626(e) barred their ADEA claims. They
contend that the ninety-day filing period remained tolled even
after their dismissal from the class action because the district
court's order constituted an unappealable order under rule 54(b) of
the Rules of Civil Procedure. Specifically, the Armstrong
plaintiffs argue that the dismissal order did not have the effect
of commencing the ninety-day statute of limitations because the
district court in Carmichael dismissed their claims without
prejudice; therefore, the district court could have vacated its
order any time before final judgment. See Fed.R.Civ.P. 54(b).
Based on this reasoning, the Armstrong plaintiffs contend that
tolling of the ninety-day filing period does not end until the
district court enters a final judgment in the Carmichael action.
Martin Marietta concedes that the Armstrong plaintiffs' status
as opt-in plaintiffs in the class action tolled the ninety-day
filing period under section 626(e), but argues that the tolling of
the ninety-day filing period ceased and the ninety-day filing
period resumed when the district court dismissed the appellants
from the Carmichael action. Martin Marietta also contends that
this is a just result because the Armstrong plaintiffs could not
reasonably rely on the class to represent their interests after
receiving notice of their dismissal.
As previously discussed, courts will not toll the running of
the statute of limitations if claimants unreasonably relied on the
pending class action to protect their rights. Crown, Cork & Seal
Co., 462 U.S. at 352-53, 103 S.Ct. 2396-97. Thus, the central
question in this case is whether it is reasonable for claimants to
rely on a pending class action to protect their rights after their
dismissal from the class action when the district court's dismissal
order is subject to revision at any time before the entry of final
judgment and is unappealable until entry of final judgment.
Federal Rule of Civil Procedure 54(b) provides:
any order or other form of decision, however designated, which
adjudicates fewer than all the claims or the rights and
liabilities of fewer than all the parties shall not terminate
the action as to any of the claims or parties, and the order
or other form of decision is subject to revision at any time
before the entry of judgment adjudicating all claims and the
rights and liabilities of all the parties.
Fed.R.Civ.P. 54(b) (emphasis added). Although rule 54(b) permits
the court, upon a party's motion for entry of final judgment, to
direct final judgment as to one or more but fewer than all the
parties in a class action where "no just reason for delay exists,"
the court is not required to enter final judgment in an action
involving multiple parties. Fed.R.Civ.P. 54(b).
In the context of class actions, the "interlocutory" status
of the dismissal order does not negate the fact that the claimants
lose their membership in the class action. This loss of
membership, however, may only be temporary because the district
court may reconsider its dismissal order and vacate the order, or
upon final judgment the claimants may appeal their dismissal and
the appellate court may reverse the district court's decision. For
these reasons, we hold that claimants dismissed from a class action
may: (1) within the remaining time before the statute of
limitations runs, file an individual lawsuit thereby rendering any
appeal of their dismissal from the class action moot; or (2) await
final judgment in the class action, appeal from that final
judgment, and if not successful file an individual lawsuit within
the time that remained at the time of their dismissal; or (3)
before the running of the statute of limitations, move for an
interlocutory appeal. If the district court certifies the issue
for interlocutory appeal, interlocutory appeal is taken, and the
district court is affirmed, tolling of the running of the statute
of limitations ceases and the claimant may file an individual
lawsuit before the statute of limitations runs. If the district
court declines to certify the issue for appeal or an interlocutory
appeal is not taken, the claimant may file an individual lawsuit
within the time remaining or exercise option 2 and await final
judgment.
Our holding today promotes section 216(b) because it
eliminates the need for claimants who intend to appeal their
dismissal from the class action to file individual lawsuits while
awaiting final judgment and avoids "needless multiplicity of
actions—precisely the situation that [class actions] and the
tolling rule of American Pipe were designed to avoid." Crown, Cork
& Seal Co., 462 U.S. at 351, 103 S.Ct. at 2396. In addition, this
requirement discourages claimants who have opted into a pending
class and are ultimately dismissed from taking no action during the
pendency of the class action when they have no intention of
appealing their dismissal from the class.
Moreover, the interests of justice necessitate our extending
the application of the class action tolling rule for several
reasons. First, "[c]lass members who do not file [an individual
lawsuit] while the class action is pending cannot be accused of
sleeping on their rights." Crown, Cork & Seal Co., 462 U.S. at
352, 103 S.Ct. at 2397. Second, ending the tolling of the statute
of limitations under these circumstances, in effect, forces the
claimants upon dismissal from a class action in an interlocutory
order to choose between filing an individual lawsuit within the
statute of limitations period or exercising their right to appeal
their dismissal. Third, and most importantly, the tolling of the
ninety-day statute "creates no potential for unfair surprise"
because the class complaint notifies the defendants of the
substantive claims, the number and " "generic identities of the
potential plaintiffs who may participate in the judgment.' "
Crown, Cork & Seal Co., 462 U.S. at 353, 103 S.Ct. at 2398 (quoting
American Pipe, 414 U.S. at 555, 94 S.Ct. at 767-68).
If we applied this new rule of law to this case, section
626(e) would bar the Armstrong plaintiffs' individual actions
because the Armstrong plaintiffs filed their individual ADEA
lawsuit after the ninety-day statute of limitations had expired but
before final judgment. We find this result unjust because the law
prior to our holding today was silent on this issue. We therefore
conclude that the Armstrong plaintiffs may continue their
individual lawsuits in this case, but may not appeal the dismissal
order or the final judgment in the Carmichael class action.
Accordingly, we reverse the district court's conclusion of law that
section 626(e) bars the individual ADEA lawsuit as to these
plaintiffs.
We find that our holding today renders the Armstrong
plaintiffs' remaining arguments moot; therefore, we summarily
reject them without discussion.
CONCLUSION
For the foregoing reasons, we reverse the district court's
grant of summary judgment against the Armstrong plaintiffs and
remand for further proceedings consistent with this opinion.
REVERSED and REMANDED
ANDERSON, Circuit Judge, dissenting:
Because I believe the rule created by the majority is
inconsistent with Supreme Court precedent and unjustified by
considerations of policy, I respectfully dissent. I would have
affirmed the district court by holding that the tolling period
ceased, and thus the statute of limitations began to run again, as
soon as the district court excluded appellants as members of the
Carmichael class action.
The majority's holding—that the statute of limitations remains
tolled through completion of the appeals process in the named
plaintiffs' case—conflicts with Supreme Court precedent. In
American Pipe & Constr. Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38
L.Ed.2d 713 (1974), the State of Utah filed a class action
antitrust complaint with just eleven days left to run in the
limitations period. Several months later, the district court
entered an order denying class certification, because of the
failure to satisfy the numerosity requirement of Fed.R.Civ.P.
23(a)(1). Eight days after this order, several state and local
agencies who had been putative class members moved to intervene in
the action to become plaintiffs. The Court held that the filing of
the original class action complaint "suspended the running of the
limitation period only during the pendency of the motion to strip
the suit of its class action character." Id. at 561, 94 S.Ct. at
770 (emphasis added). The Court explained that "the intervenors
thus had 11 days after the entry of the order denying them
participation in the suit as class members in which to move for
permission to intervene." Id. Although apparently there was no
argument that tolling should continue thereafter because the order
denying class status was interlocutory, and thus it might be said
that the Court did not squarely reject such an argument, surely the
Court assumed that the crucial time for tolling to end was the
district court's order denying class certification, not some later
final order.
In Crown, Cork & Seal Co., Inc. v. Parker, 462 U.S. 345, 103
S.Ct. 2392, 76 L.Ed.2d 628 (1983), the Court applied the American
Pipe tolling rule not only for persons who sought to intervene in
the named plaintiffs' case after class certification was denied,
but also for persons who wished to file separate suits. Within
ninety days after the district court denied class certification in
the Title VII action, but almost two years after receiving a right
to sue notice from the EEOC, respondent Parker filed an individual
Title VII complaint. By explaining that Parker "retained a full 90
days in which to bring suit after class certification was denied,"
id. at 354, 103 S.Ct. at 2398 (emphasis added), the Court indicated
that the tolling of the statute of limitations ceased as soon as
the district court denied class certification, and not when a final
decision on the merits was reached.1
In United Airlines, Inc. v. McDonald, 432 U.S. 385, 97 S.Ct.
2464, 53 L.Ed.2d 423 (1977), the district court denied class
certification in a Title VII case, and the named plaintiffs
successfully litigated their case to a settlement. Eighteen days
after the district court entered a judgment of dismissal upon the
settlement, a putative class member filed a motion to intervene for
1
The first sentence of the opinion reveals the Court's
belief that the statute of limitations recommences when the
district court denies class certification, not at some later
time:
The question presented in this case is whether the
filing of a class action tolls the applicable statute
of limitations and thus permits all members of the
putative class to file individual actions in the event
that class certification is denied, provided, of
course, that those actions are instituted within the
time that remains on the limitations period.
Id. at 346-47, 103 S.Ct. at 2394.
the sole purpose of appealing the district court's earlier denial
of class certification. The Court held that the motion was timely
under Fed.R.Civ.P. 24 because it was filed "within the [30 day]
time period in which the named plaintiffs could have taken an
appeal." Id. at 396, 103 S.Ct. at 2471. In its analysis, the
Court addressed the defendant's argument that the intervenor had no
interest in the litigation because the statute of limitations had
expired. The Court emphasized that the purpose of the motion was
to appeal the denial of class certification, and not to litigate an
individual claim:
This [statute of limitations] argument might be
persuasive if the respondent had sought to intervene in order
to join the named plaintiffs in litigating her individual
claim ..., for she then would have occupied the same position
as the intervenors in American Pipe. But the later motion to
intervene in this case was for a wholly different purpose.
That purpose was to obtain appellate review of the District
Court's order denying class action status ..., and the motion
complied with, as it was required to, the time limitation for
lodging an appeal.... Success in that review would result in
the certification of a class, the named members of which had
complied with the statute of limitations; the respondent is
a member of that class against whom the statute had not run at
the time the class action was commenced.
Id. at 392, 97 S.Ct. at 2468-69 (footnote omitted). The passage
quoted above strongly implies that the statute of limitations for
suing in one's own name begins to run again as soon as the district
court denies class certification, although an excluded putative
class member whose individual claim is barred by the statute of
limitations may still appeal the denial of class certification.
In addition to the Supreme Court precedent discussed above, at
least two federal appellate courts have rejected the argument that
the statute of limitations for filing an individual claim should
remain tolled through an unsuccessful appeal of the denial of class
certification. See Nelson v. County of Allegheny, 860 F.Supp.
1080, 1084 (W.D.Pa.1994) ("[T]he claims of the plaintiff in United
Airlines only survive as part of the class action and only if the
decertification order is reversed on appeal."), aff'd, 60 F.3d 1010
(3d Cir.1995) (holding that the tolling of the statute of
limitations ceased upon the district court's order denying class
certification, and did not continue through completion of the
appeals process), cert. denied, --- U.S. ----, 116 S.Ct. 1266, 134
L.Ed.2d 213 (1996); Calderon v. Presidio Valley Farmers Ass'n, 863
F.2d 384, 390 (5th Cir.) (per curiam) (holding that the statute of
limitations begins to run again upon the district court's original
denial of class certification, even if the district court later
reconsiders the issue and certifies a class), cert. denied, 493
U.S. 821, 110 S.Ct. 79, 107 L.Ed.2d 45 (1989).
Considering the case law discussed above, I would hold that
the statute of limitations began to run again as soon as the
district court excluded appellants as members of the Carmichael
class action. Moreover, several considerations of policy persuade
me that the result reached by the majority is unwise, and that the
court should have adopted the simpler approach I advocate.
Tolling the statute of limitations while a class action is
pending encourages reasonable reliance on the named plaintiffs to
protect the interests of the putative class members. See Crown,
Cork & Seal, 462 U.S. at 362-63, 103 S.Ct. at 2397 ("Class members
who do not file suit while the class action is pending cannot be
accused of sleeping on their rights; Rule 23 both permits and
encourages class members to rely on the named plaintiffs to press
their claims."). In my view, after the district court enters the
order denying class action status, reliance on the named plaintiffs
is no longer reasonable, and the excluded putative class members
should be on notice that they must act to protect their rights.
See United Airlines, Inc. v. McDonald, 432 U.S. 385, 399, 97 S.Ct.
2464, 2472, 53 L.Ed.2d 423 (1977) (Powell, J., dissenting).
According to the majority, however, continuing to toll the statute
of limitations after denial of class certification is justified:
the denial of class action status "may be only temporary because
the district court may reconsider its dismissal order and vacate
the order, or upon final judgment the claimants may appeal their
dismissal and the appellate court may reverse the district court's
decision." Maj.Op. at 3460. To the contrary, I find it difficult
to believe that a reasonable person would rely on the hope that
some day a court might determine that the suit should have
proceeded as a class action. When the district court denies class
certification,2 the named plaintiffs no longer have a duty to
advance the interests of the excluded putative class members. See
Fed.R.Civ.P. 23(c)(1), advisory committee's note (explaining that
the trial court's order denying class action status "strip[s] [the
suit] of its character as a class action," thus requiring the
litigation to proceed as a non-class action, even though the
district court may change its mind and certify a class at any time
2
Technically speaking, the district court in the instant
case did not deny class certification altogether; rather, it
certified a narrow class that did not include appellants as
members. As a shorthand, I will refer in this opinion to the
more common situation where the district court denies class
certification altogether.
before a decision on the merits); Pearson v. Ecological Science
Corp., 522 F.2d 171, 177 (5th Cir.1975) (rejecting the argument
that the interlocutory nature of the district court's order denying
class certification requires the named plaintiffs to exercise a
continuing fiduciary duty to the putative class members). Although
it is possible that the district court may reconsider its order
denying class certification, or that an appellate court may
ultimately reverse it, district courts have broad discretion with
respect to such rulings. See, e.g., Jones v. Firestone Tire &
Rubber Co., Inc., 977 F.2d 527, 531 (11th Cir.1992) (citing cases
for the proposition that "[a] district court's denial of class
certification will not be disturbed absent an abuse of
discretion"), cert. denied, 508 U.S. 961, 113 S.Ct. 2932, 124
L.Ed.2d 682 (1993). Thus, reliance on the possibility of a change
in the order denying class certification is ordinarily not
reasonable.3 For the foregoing reasons, I believe that tolling the
statute of limitations after the district court denies class
certification is unnecessary to protect any reasonable reliance by
putative class members on their former class representatives.
While tolerating unreasonable reliance by putative class
members on their former class representatives, the majority's
extended tolling rule creates a substantial risk of unfair
3
Furthermore, it could take years for the named plaintiffs'
case to reach final judgment and completion of the appeals
process, and there are no guarantees that the named plaintiffs
will prevail on the merits (or obtain a favorable settlement).
Thus, even if the tolling of the statute of limitations is
extended as contemplated by the majority, many putative class
members will protect themselves by filing an individual suit soon
after the district court denies class certification.
prejudice to defendants. Statutes of limitation are intended to
protect defendants by preventing "the revival of claims that have
been allowed to slumber until evidence has been lost, memories have
faded, and witnesses have disappeared." Order of Railroad
Telegraphers v. Railway Express Agency, 321 U.S. 342, 348-49, 64
S.Ct. 582, 586, 88 L.Ed. 788 (1944). The majority's rule will
unfairly prejudice at least some defendants by extending the
tolling of the limitations period through the completion of an
appeal of the class certification decision. The statute of
limitations conceivably could remain tolled for several years,
especially under the majority's option 2 where no interlocutory
appeal occurs. See Nelson v. County of Allegheny, 60 F.3d 1010,
1013 (3d Cir.1995) (holding that such an extended tolling period
would be "unreasonable"), cert. denied, --- U.S. ----, 116 S.Ct.
1266, 134 L.Ed.2d 213 (1996). The potential length of the delay
certainly increases the probability of lost evidence, faded
memories, missing witnesses, and other forms of prejudice to the
defendant. Of course, the American Pipe tolling rule also causes
some delay, even if the tolling ceases as soon as the district
court denies class certification. However, the length of the delay
(and hence the risk of prejudice) is much smaller, in part because
Fed.R.Civ.P. 23(c)(1) directs the district court to make the class
certification decision "[a]s soon as practicable after the
commencement of an action brought as a class action." See American
Pipe, 414 U.S. at 562, 94 S.Ct. at 770 (Blackmun, J., concurring)
(noting that district courts can make the American Pipe rule more
fair to defendants, inter alia, by making the class certification
decision promptly).
Because I believe it is unreasonable for plaintiffs to rely on
an action after being dismissed from it, and because I believe the
majority's rule unfairly prejudices defendants, I would end the
tolling of the statute of limitations as soon as the trial court
denies class certification. Thus, when the district court denies
class certification, I would require the dismissed class member to
file an individual suit (or intervene to become a party in the
named plaintiffs' case) within the time remaining in the statute of
limitations period. If the claimant also wished to appeal his or
her exclusion from the class, he or she could file a motion
pursuant to Fed.R.Civ.P. 54(b) (or 28 U.S.C. § 1292(b)) seeking the
class action judge's permission to file an interlocutory appeal.
The claimant could then request a stay of his or her individual
lawsuit pending the outcome of the class certification appeal.
Although the decision whether to grant a stay is a matter of
discretion with the district court, the claimant would have a
strong argument for a stay if the class action judge allowed an
interlocutory appeal of the class certification issue and the
claimant could demonstrate that there was merit to the
interlocutory appeal. My approach thus depends on the sound
discretion of district judges: the discretion of the class action
judge to allow an interlocutory appeal in cases where there is some
hope for a successful appeal, and the discretion of the individual
suit judge to stay proceedings pending the outcome of an appeal if
such a stay would serve the interests of justice.
The foregoing discussion demonstrates that the approach I
advocate is supported by strong Supreme Court dicta, by the square
holdings of two circuit courts of appeal, and by relevant policy
considerations. I also respectfully submit that the rule set forth
by the majority contains unnecessary ambiguities and complexities.
As I understand it, the majority offers putative class members
the following three options after the district court enters the
order denying them participation in the class action:
(1) They may file an individual lawsuit within the remaining
time before the statute of limitations expires. The majority
apparently contemplates that the tolled statute of limitations
would recommence its running at the time of the district
court's order denying class certification.4 The majority
opinion also indicates that filing the individual suit
operates as a waiver of the right to participate in any appeal
regarding the denial of class certification;5 or
(2) They may await final judgment in the named plaintiffs'
case, intervene therein and appeal from the earlier order
denying class certification.6 If that appeal is unsuccessful,
4
The majority makes this point clear in its treatment of the
facts of the case. See Maj.Op. at 3461 ("If we applied this new
rule of law to this case, [the statute of limitations] would bar
the Armstrong plaintiffs' individual actions because the
Armstrong plaintiffs filed their individual ADEA lawsuit after
the ninety-day statute of limitations had expired but before
final judgment."). Also, in its description of option 1, the
majority states that the individual suit should be filed "within
the remaining time before the statute of limitations runs."
5
I infer this "waiver" concept from the majority's
description of option 1, which states that the filing of an
individual suit renders "moot" any appeal regarding the denial of
class certification. I think the majority is creating a waiver,
because it is not clear how the concept of mootness would operate
in this context. Both ordinary principles of mootness and the
dicta in United Airlines, 432 U.S. at 392, 97 S.Ct. at 2468-69,
suggest that there is no mootness. (The doctrine of res
judicata, or the related doctrine of collateral estoppel, might
apply when the individual suit reaches a judgment; however,
those doctrines would not apply when the individual suit is
simply filed.)
6
It is not clear what happens if the putative class members
choose not to appeal their exclusion from the class (e.g., if the
defendant prevails on the merits). I presume that the statute of
they may then file an individual suit within the time that
remained as of the district court's order denying class
certification.7 In other words, after the district court
denies class certification, the statute of limitations for
filing an individual suit remains tolled until the named
plaintiffs' case reaches final judgment and no further appeals
with respect to the denial of class certification are
possible;8 or
(3) They may move to intervene in the named plaintiffs' case
in order to pursue an interlocutory appeal of the class
certification decision.9 In this option, as in option 1, the
majority apparently contemplates that the tolled statute of
limitations begins to run again upon the expiration of the time
for filing an appeal from the final judgment in the named
plaintiffs' case.
7
The majority's opinion does not explain the exact point at
which the statute of limitations begins to run again. For
example, does it recommence on the date of the appellate court's
opinion, or when the time for seeking certiorari expires? The
appropriate time would probably be when no further appeals (or
rehearings) are possible, which of course entails the maximum
delay before the statute of limitations would recommence.
8
To say that the statute of limitations remains "tolled"
this entire time is not completely accurate, because the majority
apparently contemplates that no individual suits may be filed in
the time period falling between options 1 and 2. The instant
case provides an example. The Armstrong plaintiffs filed this
suit more than ninety days after the district court's order
dismissing them from the Carmichael class action; thus, they are
too late to exercise option 1. However, their suit was filed
before the Carmichael case reached final judgment; thus, they
are too early to exercise option 2. Unwary plaintiffs who file
suit in the interim period between options 1 and 2 will have
their individual suits dismissed: should the dismissal be with
prejudice (because the statute of limitations has expired), or
without prejudice (because under option 2 the statute of
limitations will resurrect after the named plaintiffs' case
reaches final judgment)? The majority apparently contemplates
that the dismissal would be with prejudice. Maj.Op. at 3461 ("If
we applied this new rule of law to this case, section 626(e)
would bar the Armstrong plaintiffs' individual actions....").
Thus, the unwary plaintiff who files an individual suit late is
barred forever, but an individual plaintiff who waits pursuant to
option 2 is not barred.
9
If the named plaintiffs file an interlocutory appeal
regarding the denial of class certification, do the putative
class members still have to intervene in order to take advantage
of option 3?
limitations would recommence its running at the time of the
district court's order denying class certification, but would
cease running and be tolled again when the claimant moves for
an interlocutory appeal.10 If an interlocutory appeal is
permitted and the district court is affirmed, then the
majority explains that the running of statute of limitations
recommences.11 If the district court declines to certify the
issue for appeal or if an interlocutory appeal is not
accepted, the majority apparently contemplates that the
tolling ceases and the running of the statute of limitations
recommences.12 If the recommenced statute of limitations
expires before the claimant files an individual suit, the
claimant may exercise option 2 (i.e., file suit after final
judgment in the named plaintiffs' case—at which time the
expired statute of limitations becomes resurrected).
From the foregoing discussion, it appears that the majority's array
of options will generate confusion and uncertainty.
In sum, I submit that the majority's approach to this case is
inconsistent with precedent and the relevant policy considerations,
and also contains ambiguities and complexities. Respectfully, I
dissent.
10
I infer that the running of the statute of limitations
recommences when the district court denies class certification.
See supra note 4. However, if the statute of limitations does
recommence at the time of the district court's order denying
class certification, then the statute would clearly have expired
by the time of final judgment in the named plaintiffs' case;
however, option 2 contemplates a resurrection of the statute of
that time. Does the statute of limitations run for purposes of
options 1 and 3, but not for purposes of option 2? See supra
note 8.
11
The majority does not clarify at what exact point the
statute of limitations begins to run again after an unsuccessful
appeal. See supra note 7.
12
I infer this point from the majority's description of
option 3, i.e., the language that the claimant may file an
individual lawsuit "within the time remaining." In this
situation, it is unclear exactly when the statute of limitations
recommences. It probably begins to run again when the district
court enters the order denying permission to file an
interlocutory appeal (or, if the district court grants such
permission, when the appellate court enters an order refusing to
entertain an interlocutory appeal).