State Farm Mutual Automobile Insurance v. Boellstorff

FILED
United States Court of Appeals
Tenth Circuit

September 12, 2008
Elisabeth A. Shumaker
Clerk of Court
PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

STATE FARM MUTUAL
AUTOMOBILE INSURANCE CO.,

Defendant – Appellant,
v. No. 07-1241

LESLIE BOELLSTORFF,

Plaintiff – Appellee.

Appeal from the United States District Court
for the District of Colorado
(D.C. No. 05-cv-02192-MSK-CBS)

Marie E. Williams (Michael S. McCarthy with her on the briefs), Faegre &
Benson LLP, Denver, CO, for Defendant-Appellant.

Walter H. Sargent (Robert B. Carey & Julie B. Cliff, The Carey Law Firm,
Colorado Springs, CO, with him on the briefs), Colorado Springs, CO, for
Plaintiff-Appellee.

Before TACHA, EBEL, and MCCONNELL, Circuit Judges.

EBEL, Circuit Judge.
 This interlocutory appeal asks us to determine whether the class action

tolling doctrine, originally announced by the Supreme Court in American Pipe &

Construction Co. v. Utah, 414 U.S. 538 (1974), applies when an individual

member of a putative class pursues an independent, individual claim before the

district court has decided the class certification issue but after a non-tolled statute

of limitations would have run. The district court certified this question, in part,

because it involves a legal question about which there is substantial ground for

differences of opinion, and so it does; the four circuits that have offered opinions

on the issue have split evenly.

Plaintiff-Appellee Leslie Boellstorff (“Boellstorff”) initiated an individual

action against Defendant-Appellant State Farm Mutual Automobile Insurance

Company (“State Farm”) over four years after she suffered injuries in a car

accident. Boellstorff alleged various violations of the Colorado Auto Accident

Reparations Act (“CAARA” or “No Fault Act”), Colo. Rev. Stat §§ 10-4-701 to -

726 (2002) (repealed effective July 1, 2003). 1 State Farm moved for summary

judgment, arguing that Boellstorff’s claims were untimely in light of the

applicable three-year statute of limitations. Boellstorff countered that her claims

1
Although the Act has since been repealed, see Colo. Rev. Stat. § 10-4-726
(effective July 1, 2003), the parties do not dispute that its provisions govern the
instant matter because they were in effect at the time of Boellstorff’s accident.
All citations to CAARA herein refer to the version in effect from 1992 through
2002. Cf. Stickley v. State Farm Mut. Auto. Ins. Co., 505 F.3d 1070, 1073 (10th
Cir. 2007).

-2-
were in fact timely, and, alternatively, that a putative class action brought against

State Farm even before her accident (captioned Clark v. State Farm Mutual Auto

Insurance Company (“Clark” class action), No. 00-cv-01841-LTB (D. Colo. Sept.

19, 2000)) – but alleging the same conduct about which Boellstorff complains –

tolled the statute of limitations under American Pipe. State Farm responded to

this latter argument by asserting that Boellstorff forfeited any benefit offered by

the American Pipe doctrine when she pursued her individual claim prior to the

district court’s class certification decision in Clark.

The district court concluded that Boellstorff’s claims were stale, but were

saved nonetheless by the American Pipe tolling doctrine. The court then certified

the American Pipe question to us. Because we believe that the Colorado Supreme

Court would agree with the district court’s conclusion, we affirm the district

court’s order denying State Farm summary judgement. 2

I. BACKGROUND

On September 21, 2001, Boellstorff sustained serious injuries in a car

accident while driving her then-husband Brian’s Ford Explorer. Brian Boellstorff

had procured a Colorado automobile insurance policy from State Farm in May

1998. 3 At that time, he selected the minimal level of personal injury protection

2
Thus, we need not delve into the other theories Boellstorff raised in her
Answer brief.
3
For its part, State Farm contends that the Boellstorff’s then-husband
(continued...)

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(“PIP”) benefits. The parties do not dispute that Boellstorff was covered by

Brian’s State Farm automobile insurance policy at the time of her accident.

Within a week after the accident, State Farm sent Boellstorff a letter setting

forth the PIP benefits to which she was entitled. This letter listed the minimum

PIP benefits selected by Brian when he purchased the State Farm policy; the letter

did not discuss the option of procuring enhanced PIP benefits. A few months

later, Boellstorff retained the law firm of Abadie & Zimsky to represent her in a

suit against another driver involved in her accident. 4

A. Colorado’s Automobile Insurance Statutory Scheme

In 1973, Colorado’s legislature enacted the No Fault Act with the stated

goal of “avoid[ing] inadequate compensation to victims of automobile accidents.”

Colo. Rev. Stat. § 10-4-702. The Act provided that all Colorado automobile

liability policies must include minimum PIP benefits. See Colo. Rev. Stat. § 10-

4-706. More to the point, the No Fault Act mandated that insurers offer to their

3
(...continued)
purchased the policy on or about June 3, 1999. The date Brian procured the
policy is of no import to this appeal.
4
The parties dispute whether Boellstorff retained Abadie & Zimsky to
represent her generally “in connection with the accident” or solely to bring a
personal injury claim against the allegedly negligent driver. State Farm posits
that even if Boellstorff’s claims did not accrue on the day she received the letter
listing the minimum PIP benefits, they accrued when she retained Abadie &
Zimsky. However, we need not wade into the accrual quagmire; regardless of the
exact date on which Boellstorff’s claims accrued (of those dates proposed by the
parties), her action was timely if American Pipe applies.

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policyholders the option of purchasing enhanced PIP benefits. Id. § 10-4-710.

While the minimum PIP benefits include time and dollar cut-offs, enhanced PIP

benefits do not. 5 See Clark v. State Farm Mut. Auto. Ins. Co. (“Clark I”), 319

F.3d 1234, 1238 (10th Cir. 2003) (noting that enhanced “PIP benefits do not place

time or dollar limitations on medical expense claims and offer the possibility of

greater wage loss reimbursements”). PIP benefits were payable to four classes of

individuals: (1) the person named as the insured in the policy; (2) household

relatives of the named insured; (3) permissive occupants of the insured vehicle;

and (4) pedestrians injured in an accident involving the insured vehicle. Id. § 10-

4-707.

The Colorado courts eventually clarified the scope of the No Fault Act’s

mandate in a series of decisions, including Brennan v. Farmers Alliance Mutual

Insurance Co., 961 P.2d 550 (Colo. Ct. App. 1998). There, the Colorado Court of

Appeals held that Colorado insurers were obligated to offer enhanced PIP

coverage to people in all four of the § 10-4-707 categories, not just to the named

insured. Id. at 554. These decisions triggered a slew of litigation: many

policyholders who had not been offered enhanced coverage – and individuals in

the other three § 10-4-707 categories – brought suit under the No Fault Act

5
For a thorough parsing of the No Fault Act and Colorado court decisions
interpreting the statutory scheme, see Clark v. State Farm Mut. Auto. Ins. Co.
(“Clark I”), 319 F.3d 1234, 1237-40 (10th Cir. 2003).

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seeking reformation of their policies to provide benefits without the minimum PIP

time and dollar cut-offs. See, e.g., Clark v. State Farm Mut. Auto. Ins. Co.

(“Clark II”), 433 F.3d 703, 705 (10th Cir. 2005). 6

B. The Clark Class Action

In August 2000, Ricky Clark filed a putative class action against State

Farm in Colorado state court. Clark, a pedestrian who was struck and injured by

a vehicle insured by State Farm, alleged that State Farm had routinely failed to

offer or pay enhanced PIP benefits as required by the No Fault Act’s § 710 and by

Brennan. See Clark I, 319 F.3d at 1237.

Clark filed suit on behalf of himself and “[a]ll injured persons covered

under a State Farm automobile insurance policy who were not offered extended

coverage as required by C.R.S. § 10-4-710 of the Colorado Auto Accident

Reparations Act, and who were not provided the additional benefits provided for

therein.” The parties do not dispute that Clark’s original class definition included

6
In Clark I, this court reversed a district court’s decision holding that the
Brennan could not be applied retroactively to Clark’s claims. See 319 F.3d at
1240, 1244. Clark II affirmed the district court’s handling of Clark’s case on
remand. See 433 F.3d at 710-14. Specifically, the Clark II court affirmed the
district court’s decision to (1) award Clark PIP benefits at the level of the
extended pedestrian coverage which State Farm should have offered to its
insured; (2) cap the PIP benefits at $200,000; (3) use the date of its order as the
effective date of the reformation of Clark’s policy; and (4) limit reformation of
the policy to provide extended PIP benefits only to pedestrians. Id.

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Boellstorff. 7 State Farm removed Clark’s suit to federal court on September 19,

2000, predicating federal jurisdiction on the parties’ diversity. See Clark class

action, Dkt. No. 1. The Clark case then oscillated between the U.S. District Court

for the District of Colorado and the Tenth Circuit through 2005, resulting in two

published opinions from this court. See Clark I, 319 F.3d 1234; Clark II, 433

F.3d 703. Clark finally filed a Motion for Class Certification on May 14, 2007.

7
The fact that Boellstorff had yet to be injured at the time Clark filed his
class action also does not alter her membership in Clark’s putative class. See,
e.g., Council of and for the Blind of Delaware County Valley, Inc. v. Regan, 709
F.2d 1521, 1543 n.39 (D.C. Cir. 1983) (“[M]any class actions involve classes
whose membership predictably fluctuates over the course of the litigation. . . .
[T]he exclusion of an individual at the time the class is defined does not imply
exclusion at the time judgment is entered.”); cf. M ANUAL FOR C OMPLEX
LITIGATION § 21.222, at 270 (4th ed. 2004) (“A class may be defined to include
individuals who may not become part of the class until later.”).
By the time the district court entered a decision on the class certification
question, however, Clark had winnowed the class to include only pedestrians
injured by vehicles insured by State Farm. See Clark class action, Dkt. No. 227
at 1-2 (Sept. 18, 2007). Clark did so to comply with the district court’s April 9,
2007, order instructing Clark to narrow the scope of his putative class. See id.
Dkt. No. 199 at 3-5. We may take judicial notice of these documents from the
public record. See, e.g., Valley View Angus Ranch, Inc. v. Duke Energy Field
Servs. Inc., 497 F.3d 1096, 1107 n.18 (10th Cir. 2007).
Clark’s narrowing of the definition would have displaced Boellstorff from
the class, had Boellstorff not done so already. In its initial summary judgment
decision on Boellstorff’s individual claim, the district court ruled that, in the
interests of judicial economy, Boellstorff could not proceed both individually and
as a member of the putative Clark class. The court thus stayed the proceedings in
Boellstorff’s individual action until Boellstorff made the decision. She opted to
proceed with her individual claims on February 8, 2007, moving the court to lift
the stay. For our purposes, it is important only that Boellstorff was a member of
the putative Clark class at the time she filed her individual action against State
Farm.

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Clark class action, Dkt. No. 205. The district court denied the motion for class

certification on September 18, 2007, approximately a week before State Farm

filed its Reply Brief in this appeal. See id. Dkt. No. 227 at 1-2.

C. Boellstorff’s Individual Action

Boellstorff brought this individual action against State Farm on October 31,

2005, alleging violations of the No Fault Act that mirrored those alleged in

Clark’s complaint. As had Clark, she sought (1) reformation of the insurance

policy to include enhanced PIP benefits, and (2) damages for alleged breach of

contract, willful and wanton breach of contract, and breach of the implied

covenant of good faith and fair dealing.

Because Boellstorff filed suit over four years after her accident, State Farm

moved to dismiss the case as untimely under the No Fault Act’s three-year statute

of limitations. See Nelson v. State Farm Mut. Auto. Ins. Co., 419 F.3d 1117,

1120 (10th Cir. 2005) (“[W]hen an action for benefits is brought under CAARA,

it is subject to CAARA’s three-year statute of limitations.”). The district court

converted the motion to dismiss into a Rule 56 motion for summary judgment and

both parties filed supplementary materials. State Farm maintained that

Boellstorff’s cause of action accrued when she received the letter listing her PIP

benefits or, alternatively, when she first retained counsel. Boellstorff countered

that her claims were in fact timely. She also asserted that the class action tolling

-8-
doctrine initially announced in American Pipe saved her claims because the Clark

action tolled the statute of limitations.

In an Order dated September 11, 2006, the district court found that

Boellstorff’s cause of action accrued on September 25, 2001, the date on which

State Farm sent her the letter informing her of the PIP benefits to which she was

entitled. As such, the No Fault Act’s three-year limitations period had expired by

the time Boellstorff commenced her individual action. Having held Boellstorff’s

claims untimely, the court continued on and concluded that American Pipe tolling

protected her claims because of the pendency of the Clark action, which was filed

before her claims accrued and remained pending at the time Boellstorff filed the

instant, individual action. The court rejected State Farm’s argument that

Boellstorff had forfeited the benefits of the class action tolling doctrine by filing

her individual action before the Clark court decided whether to certify a class.

State Farm quickly moved the court to certify the issue for appellate review

pursuant to 28 U.S.C. § 1292(b). 8 The district court accepted this invitation, and,

8
In relevant part, § 1292(b) provides:
When a district judge, in making in a civil action an order not otherwise
appealable under this section, shall be of the opinion that such order
involves a controlling question of law as to which there is substantial
ground for difference of opinion and that an immediate appeal from the
order may materially advance the ultimate termination of the litigation,
he shall so state in writing in such order. The Court of Appeals which
would have jurisdiction of an appeal of such action may thereupon, in
its discretion, permit an appeal to be taken from such order, if
(continued...)

-9-
on February 20, 2007, amended its September 11 Order to certify for review this

question: “whether the opportunity to invoke the class action toll of American

Pipe is lost by a putative class member who commences an individual action prior

to a decision as to class certification . . . .” We granted State Farm’s Petition for

Permission to Appeal on May 25, 2007. Hence, we exercise jurisdiction pursuant

to § 1292(b). 9 We answer the certified question in the negative.

II. DISCUSSION

A. Standard of Review

On interlocutory appeal, as always, we review de novo the denial of a

motion for summary judgment, applying the same standard as the district court

pursuant to Rule 56(c) of the Federal Rules of Civil Procedure. Chessin v.

Keystone Resort Mgmt., Inc., 184 F.3d 1188, 1191 (10th Cir. 1999); see also

Qwest Corp. v. AT&T Corp., 479 F.3d 1206, 1209 (10th Cir. 2007). We are

governed by this standard even when we sit in diversity. See Morris v. Travelers

Indem. Co. of Am., 518 F.3d 755, 758 (10th Cir. 2008).

8
(...continued)
application is made to it within ten days after the entry of the order . .
..
28 U.S.C. § 1292(b).
9
Of course, an order denying summary judgment is ordinarily not
immediately appealable. See Powell v. Mikulecky, 891 F.2d 1454, 1456 (10th
Cir. 1989).

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 B. Applicable Law

As this is a diversity action, we must apply Colorado law in deciding

whether Boellstorff’s claims are time-barred. Burnham v. Humphrey Hospitality

REIT Trust, Inc., 403 F.3d 709, 712 (10th Cir. 2005) (“A federal court sitting in

diversity applies state law for statute of limitations purposes.”). Additionally, we

must follow Colorado’s tolling rules, as they are “an integral part of the several

policies served by the statute of limitations.” Cook v. G.D. Searle & Co., 759

F.2d 800, 802 (10th Cir. 1985) (quoting Walker v. Armco Steel Corp., 446 U.S.

740, 751 (1980)). In so doing, “we apply the most recent statement of state law

by the Colorado Supreme Court.” Clark II, 433 F.3d at 709. Absent such

guidance, we consider “decisions of a state’s intermediate appellate courts [as]

some evidence of how the state supreme court would decide the issue,” though

such decisions are only persuasive authority. Id. (quotation omitted).

Colorado’s Rule 23 “is virtually identical” to the Federal Rule, and so

Colorado courts “rely on cases applying the federal rule.” Goebel v. Colo. Dep’t

of Instits., 764 P.2d 785, 794 n.12 (Colo. 1988); see also Rosenthal v. Dean

Witter Reynolds, Inc., 883 P.2d 522, 531 (Colo. Ct. App. 1994), aff’d in part,

rev’d in part, 908 P.2d 1095 (Colo. 1995). Colorado has adopted American Pipe’s

class action tolling doctrine. See Kuhn v. Colo. Dep’t of Rev., 897 P.2d 792, 795

& 798 (Colo. 1995) (affirming, without comment on American Pipe, a trial court

order asserting that “[t]he filing of a class action lawsuit tolls the limitations

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period as to all putative class members, even before the certification of the

class”); Rosenthal, 883 P.2d at 531-32 (“The statute of limitations remains tolled

for all members of the putative class until class certification is denied.”); Levine

v. Empire Sav. & Loan Ass’n, 579 P.2d 642, 646 (Colo. Ct. App. 1977). But

neither the Colorado Supreme Court nor any Colorado appellate court has spoken

to the instant issue. With this in mind, we will consult Colorado cases in the first

instance, but will also rely on federal cases interpreting American Pipe.

C. Merits

The controlling issue certified by the district court is whether Boellstorff,

who was unequivocally a member of the putative Clark class, may avail herself of

the American Pipe tolling doctrine to save her otherwise time-barred claim even

though she filed her claim before the Clark court decided the class certification

question. We anticipate that the Colorado Supreme Court would, as do we, find

persuasive the reasoning of In re WorldCom Securities Litigation, 496 F.3d 245

(2d Cir. 2007). We therefore hold that Colorado would apply the American Pipe

doctrine to toll the statute of limitations for otherwise-stale individual claims

filed before the class certification decision.

1. American Pipe and its Progeny

The American Pipe Court held that parties are entitled to intervene in an

action after the denial of class certification even though the statute of limitations

had expired as to the parties seeking to intervene. See American Pipe, 414 U.S.

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at 552-53. The “commencement of the original class suit” tolls the running of the

statute of limitations “for all purported members of the class” until after the

denial of the class certification motion, 10 id. at 553, or until they “chose not to

continue” as a class member, id. at 551. At that juncture, the statute of

limitations begins running again. Id.

Conceptually, American Pipe incarnates the principle that the class action

is a representative creature. See id. at 550. That is, members of a putative class

are treated as if they were parties to the action itself “until and unless they

received notice thereof and chose not continue.” Id. at 551. Thus, the filing of a

class action, in a classic legal fiction, causes the courts to treat “members of the

asserted class” as if they “hav[e] instituted their own actions, at least so long as

they continue to be members of the class . . . ” and they have “the benefit of

tolling . . . for as long as the class action purports to assert their claims.” In re

WorldCom, 496 F.3d at 255; see also American Pipe, 414 U.S. at 550 (“[T]he

filing of a timely class action complaint commences the action for all members of

the class as subsequently determined.”). Relying on the representativeness of

class actions, the American Pipe Court concluded that “no different a standard

should apply to those members of the class who did not rely upon the

10
At least when the denial was because of the “failure to demonstrate that
the class was so numerous that joinder of all members is impracticable.”
American Pipe, 414 U.S. at 552-53 (quotation omitted).

- 13 -
commencement of the class action (or who were even unaware that such a suit

existed) . . . .” American Pipe, 414 U.S. at 551; see also id. at 552.

Pragmatically, the Court also concluded that a tolling rule was necessary to

advance the goals of Rule 23, namely “the efficiency and economy of litigation.”

Id. at 553. If not for a tolling doctrine, individuals would feel compelled to file

placeholder lawsuits prior to the expiration of the statute of limitations, thereby

clogging the channels of the court with suits already encompassed by the class

action. Id. at 551, 553-54 (“[A] rule requiring successful anticipation of the

determination of the viability of the class would breed needless duplication of

motions.”). The tolling doctrine clears that clutter by sidelining lawsuits that

might have been filed merely to preserve the option of later, individual

intervention. Id. at 551-52, 553-54.

Lastly, the American Pipe Court concluded that the tolling doctrine would

not subvert the purpose of statutes of limitation. Id. at 554-55. Such statutes are

“designed to promote justice by preventing surprises through the revival of claims

that have been allowed to slumber until evidence has been lost, memories have

faded, and witnesses have disappeared.” Id. at 554 (quoting Order of R.R.

Telegraphers v. Ry. Express Agency, 321 U.S. 342, 348-49 (1944)). Triggered as

it is by the filing of a class action, the tolling doctrine also obviates surprises.

The class action “notifies the defendants not only of the substantive claims being

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brought against them, but also of the number and generic identities of the

potential plaintiffs who may participate in the judgment.” Id. at 555.

The Supreme Court subsequently expanded on American Pipe’s holding.

First, the Court asserted – albeit in dicta – that American Pipe disposed of the

argument that class members, even if notified individually of the class’s

certification, would not exercise their Federal Rule of Civil Procedure

23(c)(2)(B)’s “opt-out” rights because of concerns that their claims would be

time-barred. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 176 n.13 (1974). Eisen

asserted that American Pipe dispelled this concern because it “established that

commencement of a class action tolls the applicable statute of limitations as to all

members of the class,” whether the class was ultimately certified or not. Id.

Second, in Crown, Cork & Seal Co. v. Parker, 462 U.S. 345 (1983), the

Court reemphasized the broad strokes of American Pipe: “[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.” Id. at 353-54 (quoting American Pipe, 414 U.S. at

554). This is the case regardless of whether those class members sought to

intervene or to bring individual actions after the denial of class certification. Id.

at 354. The Court also underscored its holding that, “once the statute of

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limitations has been tolled, it remains tolled for all members of the putative class

until class certification is denied.” Id. (emphasis added). 11

2. Lower Court Opinions on the Instant Issue

American Pipe, Eisen, and Crown all address the question of whether a

litigant may intervene or file an individual suit after the class certification

decision. In this case, however, the court must consider an earlier window, the

time period running from the moment a class action is filed up to the time when

the trial court denies class certification or the plaintiff opts not to continue as a

member of the class. The Supreme Court has not addressed this question

squarely, leaving it to percolate in the lower courts. At the federal appellate

level, the Second Circuit has recently considered this very issue in In re

WorldCom, holding that a plaintiff who chooses to bring an individual action

while the class action is pending can still claim the benefit of the American Pipe

tolling doctrine. And, even more recently, the Ninth Circuit, in In re Hanford

11
In a final case fleshing out American Pipe, the Supreme Court clarified
the effect of the tolling doctrine on the statute of limitations. See Chardon v.
Soto, 462 U.S. 650 (1983). The Chardon Court recognized that the filing of a
class action tolled the statute of limitations, but maintained that American Pipe
had not explained whether the tolling rule suspended the limitations period,
restarted the limitations clock entirely, or extended the period. Id. at 652 n.1.
The Court concluded that a federal court handling a 42 U.S.C. § 1983 claim, must
look to state tolling rules – as mandated by 42 U.S.C. § 1988 – to determine what
effect the filing of the class action had on the state statute of limitations. Id. at
654-57 & 662. Accordingly, Chardon directs the courts to look to the tolling
rules associated with a particular statute of limitations for the effect of the
American Pipe rule.

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Nuclear Reservation Litig., — F.3d —, 2008 WL 2892318 (9th Cir. July 29,

2008), has adopted the reasoning of In re WorldCom. In earlier cases, however,

both the Sixth and First Circuits have reached the opposite conclusion. 12

We agree with the analysis of the Second and Ninth Circuits. After

reviewing the Supreme Court’s precedents, the Second Circuit concluded that it

should take at face value the Court’s repeated assertion that “the 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.” In re WorldCom, 496 F.3d at 254 (quoting Crown,

462 U.S. at 353-54). The court also echoed the point that tolling does not

undermine the purpose of statutes of limitation. Id. at 255.

Additionally, “[w]hile reduction in the number of suits filed by class

members” would follow from a forfeiture rule, “it was not the purpose of

American Pipe either to reduce the number of suits filed, or to force individual

plaintiffs to make an early decision whether to proceed by individual suit or rely

on a class representative.” Id. at 256. Granted, judicial efficiency and economy

were foremost in the American Pipe Court’s mind, but the case “was not meant to

induce class members to forgo their right to sue individually.” Id. Thus, the

tolling doctrine applies to protect separate suits whenever they are filed. Id.

12
See Wyser-Pratte Management Co. v. Telxon Corp., 413 F.3d 553 (6th
Cir. 2005); Glater v. Eli Lilly & Co., 712 F.2d 735, 739 (1st Cir. 1983).

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 The Ninth Circuit recently relied on the In re WorldCom rule in concluding

that members of a plaintiff-class who filed otherwise untimely individual suits

before the putative class representatives decided to withdraw their motion for

certification were “entitled to the benefits of American Pipe tolling.” In re

Hanford, 2008 WL 2892318, *16. As did the Second Circuit, the Ninth Circuit

concluded that “applying American Pipe tolling to plaintiffs who filed individual

suits before certification is consistent with the purpose underlying statutes of

limitation.” Id. at *15. Moreover, that “the American Pipe doctrine protects

plaintiffs from being forced to file suit before the certification decision . . .

doesn’t mean that plaintiffs who file before certification are not entitled to

tolling. They have a right to file at the time of their choosing . . . .” Id. at *16

(citation omitted).

State Farm counsels that this court should instead rely on the Sixth

Circuit’s Wyser-Pratte decision. There, after it had already decided that “the

applicable two-year statute of limitations expired before this class action was

filed,” 413 F.3d at 568, the court continued on to “find in the alternative” that the

“purposes of American Pipe tolling are not furthered when plaintiffs file

independent actions before decision on the issue of class certification, but are

when plaintiffs delay until the certification issue has been decided.” Id. at 569.

Specifically, the Sixth Circuit concluded that freezing the situation until a class

certification decision has been issued ensures that the “courts will not be

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burdened by separate lawsuits which, in any event, may evaporate once a class

has been certified.” Id. (quoting In re WorldCom Inc. Sec. Litig., 294 F. Supp. 2d

431, 452 (S.D.N.Y. 2003) 13). Those separate lawsuits, the court rationalized,

might disappear because putative class members “usually are in a far better

position [after the class certification decision] to evaluate whether they wish to

proceed with their own lawsuit, or to join a class . . . .” Id. (quoting In re

WorldCom, 294 F. Supp. 2d at 452). 14

State Farm also relies on Glater, a First Circuit case. There, the plaintiff

argued that she should be considered a New Hampshire resident on the ground

that she was a resident of that state at the time of the filing of a separate class

action, which named Eli Lilly as a defendant and included the plaintiff in the

13
The Second Circuit subsequently overturned this decision. See In re
WorldCom, 496 F.3d at 256.
14
This same argument underpins many district court decisions holding that
American Pipe tolling does not save time-barred claims filed before the class
certification decision. See, e.g., In re Enron Corp. Secur. Litig., 465 F. Supp. 2d
687, 730 (S.D. Tex. 2006) (“Their actions [filed pre-certification] constitute the
inefficiency of multiple suits prior to class certification that the American Pipe
tolling doctrine was developed to avoid.”); Chazen v. Deloitte & Touche LLP,
247 F. Supp. 2d 1259, 1272 (N.D. Ala. 2003), rev’d on other grounds, 88 Fed.
Appx. 390 (11th Cir. Dec. 12, 2003) (unpublished); In re Brand Name
Prescription Drugs Antitrust Litig., No. 94 C 897, 1998 WL 474146, *8-*9 (N.D.
Ill. Aug. 6, 1998); Wachovia Bank & Trust Co. v. Nat’l Student Mktg. Corp., 461
F. Supp. 999, 1012 (D.D.C. 1978), rev’d on other grounds, 650 F.2d 342 (D.C.
Cir. 1980).

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putative class. 15 See 712 F.2d at 739. The First Circuit rejected this argument,

noting that “American Pipe says nothing about [the plaintiff’s] ability to maintain

a separate action while class certification is pending. The policies behind Rule 23

and American Pipe would not be served, and in fact would be disserved, by

guaranteeing a separate suit at the same time that a class action is ongoing.” Id.

Thus, the court concluded that “the pendency of the [separate] class action did not

preclude a dismissal of th[e] [plaintiff’s] case for lack of personal jurisdiction.”

Id.

Despite the concerns of the Sixth and First Circuits, we find the rationale of

the In re WorlCom and In re Hanford decisions consonant with American Pipe’s

language and its conceptual and pragmatic underpinnings. For the following

reasons, we join the Second and Ninth Circuits.

First and foremost is the Supreme Court’s language in American Pipe and

Crown. Crown underscored what American Pipe first asserted:

“The commencement of a class action suspends the applicable statute
of limitations as to all asserted members of the class would have been
parties had the suit been permitted to continue as a class action.” Once

15
The residency issue was important not to the issue of the court’s subject-
matter jurisdiction, as one might expect, but to the district court’s decision not to
exercise personal jurisdiction over the defendant under New Hampshire’s long-
arm statute. Glater, 712 F.2d at 738. The district court concluded the plaintiff
was not a resident of New Hampshire and that the state thus had little interest in
her suit or in protecting her; accordingly, the court decided not to exercise
personal jurisdiction over the foreign defendant. Id.

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 the statute of limitations has been tolled, it remains tolled for all
members of the putative class until class certification is denied.

Crown, 462 U.S. at 353-54 (quoting American Pipe, 414 U.S. 554) (internal

citation omitted). The Supreme Court’s language is clear. And at least one

Colorado appellate court has adopted this particular language from American

Pipe, as contoured by Crown. See Rosenthal, 883 P.2d at 531 (“The

commencement of a class action tolls the statute of limitations for all members of

the putative class . . . until class certification is denied.”). 16 We see no reason

why Colorado would not give effect to the broad language of those cases. This

broad language suggests that the statute of limitations applicable to Boellstorff’s

claim remained tolled while the putative Clark class remained in limbo.

Second, “in a sense, application of the American Pipe tolling doctrine to

cases such as this one does not involve ‘tolling’ at all.” Joseph v. Wiles, 223

16
In Rosenthal, a putative class action had been initiated within the statute
of limitations period and before the applicable statute of repose barred suit.
Rosenthal, 883 P.2d at 525. After the repose limit passed, the named class
representative sought to amend the complaint to add another named
representative. Id. The trial court, in rejecting class certification, concluded that
the statute of repose would apply to the second class representative. Id. The
Colorado Court of Appeals disagreed. Id. at 531-32. After finding no authority
on point, the court held that
as long as the party seeking to act as a class representative does not
commence a new, separate suit as class representative, but merely seeks
to maintain the currently pending and timely filed action as a class
action and act as class representative, the statute of repose does not
apply.
Id. at 531. As such, Rosenthal has little to say about the situation we now
confront.

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F.3d 1155, 1168 (10th Cir. 2000). The class action mechanism’s inherent

representativeness means that each putative class member “has effectively been a

party to an action” against the defendant “since a class action covering him” was

filed. Id. American Pipe made much of this principle, positing that the class

action tolling doctrine would apply regardless of the reliance or awareness of

putative class members. 414 U.S. at 551-52. Thus, when Clark filed a class

action against State Farm in August 2000, alleging the same claims later asserted

by Boellstorff, Clark in essence pre-filed Boellstorff’s suit. Thereafter, when

Boellstorff filed her independent suit she simply retook the reins from Clark.

Third, State Farm was afforded the benefit of the No Fault Act’s statute of

limitations. Clark’s suit put State Farm on notice of the “substantive claims being

brought against” it as well as the “number and generic identities of the potential

plaintiffs.” American Pipe, 414 U.S. at 555; see also In re WorldCom, 496 F.3d

at 254 (“[T]he initiation of a class suit gives defendants all the information they

need to prepare their defense.”) (citing American Pipe, 414 U.S. 353-53).

Accordingly, application of the tolling doctrine here would not undermine the

policy choices embodied by Colorado’s statute of limitations. See In re

WorldCom, 496 F.3d at 255.

Fourth, as Boellstorff notes, locking putative class members into the class

until the class certification decision makes little sense and could adversely affect

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certain individuals. Rule 23(c)(1)(A) 17 mandates that the trial judge “[a]t an

early practicable time” after a putative class action is filed “determine by order

whether to certify the action as a class action.” Fed. R. Civ. P. 23(c)(1)(A). In

practice, however, this decision may take time. Here, for example, Clark filed his

class action in August 2000, but did not file a motion for class certification until

May 2007, nearly seven years later. The Second Circuit’s rule permits litigants to

decide to bring an individual action if they either (1) deem their own claims

valuable enough or (2) decide that class certification is doubtful. Cf. In re

WorldCom, 496 F.3d at 256 (noting that the American Pipe doctrine “was not

meant to induce class members to forgo their right to sue individually”); Jahn v.

ORCR, Inc., 92 P.3d 984, 989 (Colo. 2004) (noting prerogative of class members

to opt-out of class and pursue claims individually). Forcing such plaintiffs to

wait out a class certification decision makes even less sense when we consider the

costs of delay (for example, the possibility that the evidence will grow stale and

added time the plaintiff must go without recovery).

Fifth, on the macrocosmic level, the Second Circuit’s rule would not

substantially impede the efficiency and economy of the class action mechanism.

Presumably, the only litigants likely to avail themselves of the Second Circuit’s

17
Colorado Rule of Civil Procedure 23(c)(1) similarly provides: “As soon as
practicable after the commencement of an action brought as a class action, the
court shall determine by order whether it is to be so maintained.”

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rule are those that would opt out of a certified class in any case. Permitting early

“opt-outs” would not dramatically increase the number of cases filed: most

litigants with claims valuable enough to pursue separately will likely have filed

their individual claims before the end of their own limitations period. As such,

the group that would file individual suits during the window at issue here is likely

to approximate in number the group that would later opt-out if a class is certified

or file individual suits if not. The courts’ case-load will likely remain the same;

the only difference is when those cases show up on the dockets. State Farm, in

our opinion, has not made a convincing case that imposing an individual claim

moratorium until the moment of the class certification decision would have any

noticeable effect on judicial efficiency and economy.

In fact, State Farm’s proposed rule has the potential to backfire. The rule

would compel individual class members to make a choice as the limitations period

for their individual claim approaches: file an individual action now or sit tight for

a class certification decision, no matter how long it might take. Litigants in this

bind might file placeholder suits rather than risk placing their individual actions

on ice during a potentially prolonged class certification process. Thus, State

Farm’s proposed rule might well precipitate a “needless duplication” of actions

that would “deprive Rule 23 class actions of the efficiency and economy of

litigation which is a principal purpose of the procedure.” American Pipe, 414

U.S. at 553-54.

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 State Farm complains that the Second Circuit’s rule allows plaintiffs to

“have their cake and eat it too,” that is, to rely on a representative suit as a

placeholder for purposes of the statute of limitations and then ditch the

representative later. See In re Brand Name Prescription Drugs Antitrust Litig.,

1998 WL 474146, at *8. However, that is the essence of the American Pipe

holding even in the situation where the individual suit was not filed until after

resolution of the class certification decision. In addition, as noted above, the

American Pipe and Crown decisions highlight the fact that reliance or even

awareness of the class action are irrelevant. In this vein, we have concluded that

American Pipe tolling is “legal rather than equitable in nature,” Wiles, 223 F.3d

at 1166, and operates regardless of the putative class member’s awareness or

reliance. 18 Thus, State Farm’s protests are misplaced because the alleged

unfairness of such a rule is besides the point. See Schimmer v. State Farm Mut.

18
In this sense, the American Pipe doctrine acts like other legal tolling
rules. Consider, for example, the law tolling statutes of limitation for members of
the military on active service, see Conroy v. Aniskoff, 507 U.S. 511, 513-14
(1993) (permitting active U.S. Army officer to benefit from tolling provision of
the Soldiers’ and Sailors’ Civil Relief Act of 1940 (“SSCRA”) to bring a suit
while officer was still on active duty); Mason v. Texaco, Inc., 862 F.2d 242, 244-
45 (10th Cir. 1988) (concluding that otherwise untimely suit brought by then-
active serviceman was saved by SSCRA), or the rules relating to those who are
non compos mentis, see, e.g., Barnhill v. Pub. Serv. Co. of Colo., 649 P.2d 716,
717 (Colo. Ct. App. 1982) (“[W]e hold that the statutory period . . . never started
to run because plaintiff’s mental incapacity continued through the date this action
was commenced.”). These cases undermine (though rather obliquely) State
Farm’s forfeiture argument because the plaintiffs in these cases were permitted to
file stale claims before the tolling period’s end.

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Auto. Ins. Co., No. 05-cv-02513-MSK, 2006 WL 2361810, at *6 (D. Colo. Aug.

15, 2006) (“The problem with Wyser-Pratte, however, is that it treats class action

tolling as an equitable doctrine in which fairness considerations drive its

application.”).

Similarly, State Farm’s assertions about the potential for abuse of this

tolling rule are unavailing. Justice Blackmun’s concurrence in American Pipe

cautioned that the opinion “must not be regarded as encouragement to lawyers in

a case of this kind to frame their pleadings as a class action, intentionally, to

attract and save members of the purported class who have slept on their rights.”

American Pipe, 414 U.S. at 561 (Blackmun, J., concurring). State Farm presses

this point, raising the specter of countless class action suits filed solely to

suspend the limitations period. However, there is no evidence that American Pipe

released any such flood of class actions, and the application of American Pipe

that we approve here is only a very small extension of American Pipe. And, of

course, it is not in the interest of class action counsel to help individual plaintiffs

split off from the class.

III. CONCLUSION

The rule of the Second and Ninth Circuits, articulated in In re WorldCom

and In re Hanford, comports with the language and the legal and pragmatic bases

for American Pipe and its progeny. The American Pipe rule “preserves for class

members a range of options pending a decision on class certification.” Crown,

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462 U.S. at 354 (Powell, J., concurring). One of those options is to bring an

individual suit during the pendency of a district court’s consideration of class

certification in a class action raising the same issues and thereby take advantage

of the tolling effect that, under American Pipe, the class action has on statute of

limitations. Thus, we conclude that Colorado would concur with the Second and

Ninth Circuits and, as such, AFFIRM the district court’s decision to deny State

Farm summary judgment.

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