United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 19, 2005
_____________________
Charles R. Fulbruge III
No. 05-00016 Clerk
_____________________
LANE McNAMARA, On behalf of himself and all others similarly
situated; REUVEN RANDALL SINGER, On behalf of themselves and
others similarly situated; JOHN QUICK, On behalf of themselves
and others similarly situated; JOHN C MCCARTHY, On behalf of
themselves and others similarly situated; MARIAN MCCARTHY;
PATRICIA HUNT, On behalf of themselves and others similarly
situated; SCOTT WILDING, On behalf of themselves and others
similarly situated; MELVIN B MILLER, On behalf of themselves and
others similarly situated; MEISSNER MUSIC PROMOTIONS LIMITED,
Meissner Music Productions Inc; NEW MADRAS LIMITED PARTNERSHIP,
On behalf of themselves and others similarly situated; ALAN
HIRSCH, On behalf of themselves and others similarly situated;
BENJAMIN KEMPER, On behalf of themselves and others similarly
situated; DEBORAH L FOSS, On behalf of themselves and others
similarly situated; DONALD LYTLE, On behalf of themselves and
others similarly situated
Plaintiffs-Petitioners
versus
JOHN B FELDERHOF, JEANNETTE WALSH, On behalf of themselves and
others similarly situated; T. STEPHEN MCANULTY; JOHN B. THORPE;
ROLAND C FRANCISCO; HUGH C LYONS; PAUL M KAVANAUGH; KILBORN ENG
PACIFIC; P T KILBORN PAKAR REKAYASA, An Indonesian Company;
BARRICK GOLD CORPORATION; NESBITT BURNES INC; JP MORGAN & CO INC
Defendants-Respondents
---------------------
Petition for Leave to Appeal under Federal
Rule of Civil Procedure 23(f)
---------------------
Before WIENER, BENAVIDES, and STEWART, Circuit Judges.
WIENER, Circuit Judge:
Petitioners Lane McNamara, et al. (“Petitioners”), seek leave
under Federal Rule of Civil Procedure 23(f) to appeal the district
court’s denial of class certification. Because the petition was
untimely filed, we lack appellate jurisdiction and therefore must
dismiss the petition.
I. FACTS AND PROCEEDINGS
Petitioners are investors in gold-mining companies who sued
defendants-respondents (“respondents”) for securities fraud,
alleging that defendants misled the investing public by confirming
the existence and exaggerating the quantity of gold in an
Indonesian deposit. In May 2001, petitioners filed a motion in
district court seeking certification of a class comprising
investors who acquired their stock in respondents on the NASDAQ
exchange from August 1996 through March 1997 (“the NASDAQ class”).
On March 31, 2003, the district court denied class certification.
Petitioners then asked the district court to schedule a status
conference. At a May 2003 hearing, petitioners sought leave to
file a trial plan that would address the district court’s reasons
for denying class certification. The district court granted
petitioners leave to do so, and, on June 2, 2003, petitioners filed
“Plaintiffs’ Trial and Case Management Plan” (“the TCMP”).
In July 2004, the district court ruled that it would treat the
TCMP as a motion to reconsider under Federal Rule of Civil
Procedure 60. On March 31, 2005, the district court denied the
TCMP, after which petitioners filed with us their Petition for
Permission to Appeal under Federal Rule of Civil Procedure 23(f) on
April 14, 2005.
2
II. ANALYSIS
Rule 23(f) provides that “[a] court of appeals may in its
discretion permit an appeal from an order of a district court
granting or denying class certification under this rule if
application is made to it within ten days after entry of the
order.”1 It is uncontested that petitioners did not file their
Rule 23(f) petition within ten days after the district court
entered its order on March 31, 2003 denying class certification.
Unless some exception applies, we lack appellate jurisdiction to
entertain the petition.2
Petitioners contend that the TCMP was no more than “further
certification proceedings,” and that, because they filed their Rule
23(f) petition within ten days after the district court’s March 31,
2005 denial of the TCMP, their petition was timely filed.
Petitioners also assert that the district court erred when it
treated the TCMP as a motion to reconsider under Rule 60. We find
no merit in either of petitioners’ positions.
The district court did not err when it treated the TCMP as a
motion to reconsider under Rule 60. Citing our opinion in Bertulli
v. Independent Ass’n of Continental Pilots, respondents maintain
1
FED. R. CIV. P. 23(f) (emphasis added).
2
See Shin v. Cobb County Bd. of Educ., 248 F.3d 1061,
1064-65 (11th Cir. 2001); Gary v. Sheahan, 188 F.3d 891, 892 (7th
Cir. 1999); Blair v. Equifax Check Servs., Inc., 181 F.3d 832,
837 (7th Cir. 1999); see also White v. Imperial Adjustment Corp.,
75 Fed. Appx. 972, 974 (5th Cir. 2003)(relying on Gary and
Blair).
3
that petitioners may not appeal this issue under Rule 23(f).3 We
do not read Rule 23(f) as so limiting in nature. The issue whether
the district court properly treated petitioners’ TCMP motion as a
Rule 60 motion to reconsider bears directly on the threshold
question of the timeliness of petitioners’ attempt to invoke our
jurisdiction and take an appeal. In Bertulli, we reviewed the
district court’s standing determination because standing “goes to
the constitutional power of a federal court to entertain an
action,” as does our jurisdiction.4 In addition, the question
whether the district court properly treated the TCMP as a motion to
reconsider bears directly on whether the order from which a
discretionary appeal is sought is an order granting or denying
class certification appealable under Rule 23(f).
In the TCMP, petitioners set forth the law on “revisitation”
and “modification” of class certification rulings.5 They
specifically asked the district court to modify its ruling with
respect to class certification.6 As the TCMP called into question
3
242 F.3d 290, 294 (5th Cir. 2001) (“[U]nder Rule 23(f), a
party may appeal only the issue of class certification; no other
issues may be raised.”).
4
See id. at 294.
5
Petitioners also noted that “[t]his trial plan is
submitted in response to the Court’s March 31, 2003 order denying
certification of a class . . . .”
6
See Gary, 188 F.3d at 893 (“. . . and we do not think that
it matters what caption the litigant places on the motion to
reconsider.”).
4
the correctness of the district court’s order, that court did not
err when it treated the TCMP as a motion to reconsider its order.
Petitioners asked the district court to modify its ruling
under Rule 23(c)(1)(C),7 but this rule has no bearing on the time
limit prescribed in Rule 23(f). Indeed, on remand, a district
court is free to reconsider its class certification ruling as often
as necessary before judgment.8 Rule 23(c)(1)(C) addresses the
federal rules as they apply to a district court’s order granting or
denying certification; it does not bear on the ten-day time limit
imposed by Rule 23(f). In addition, to hold that —— no matter how
styled —— a motion under Rule 23(c) is always distinct from a
motion to reconsider would allow a party to subvert the ten-day
time limit prescribed in Rule 23(f). This in turn would permit a
party to file a Rule 23(c) motion and thereafter appeal any grant
or denial within ten days, no matter how long after the district
court had initially ruled on the issue of class certification.9
7
“An order under Rule 23(c)(1) may be altered or amended
before final judgment.” FED. R. CIV. P. 23(c)(1)(C).
8
See FED. R. CIV. P. 23(c)(1)(C); In re Integra Realty Res.,
Inc., 354 F.3d 1246, 1261 (10th Cir. 2004) (“Moreover, a trial
court overseeing a class action retains the ability to monitor
the appropriateness of class certification throughout the
proceedings and to modify or decertify a class at any time before
final judgment.”); Boucher v. Syracuse Univ., 164 F.3d 113, 188
(2d Cir. 1999) (“But under Rule 23(c)(1), courts are required to
reassess their class rulings as the case develops.” (citations
and quotations omitted)).
9
See, e.g., Gary, 188 F.3d at 893 (“[B]y styling a motion
to reconsider as a motion to decertify the class, a litigant
could defeat the function of the ten-day line drawn in Rule
5
Further, the district court noted that “lead counsel [for
petitioners] have identified no new legal authority or a changed
circumstance that compels the court to arrive at a different
conclusion.” Specifically, the district court stated: “By now
asking the court to revisit issues similar to those presented and
argued when the court was deciding whether to certify the NASDAQ
class, [petitioners’] lead counsel are effectively seeking
repetitive proceedings in hopes of keeping alive the possibility of
obtaining class certification.” As the district court concluded
that petitioners had failed to identify any reason why its previous
order was incorrect and merely reaffirmed its prior ruling, the
court’s order was not “an order . . . granting or denying class
action certification” under Rule 23(f).10
Even if we were to determine that the district court erred
when it treated the TCMP as a motion to reconsider under Rule 60,
this would have no bearing on our conclusion that the petition was
untimely. Those courts of appeals that have considered the issue
have unanimously held that a Rule 59 motion to reconsider filed
within the ten-day limit set forth in Rule 23(f) tolls the period
23(f). . . Rule 23(f) permits the court of appeals to accelerate
appellate review; but to ensure that there is only one window of
potential disruption, and to permit the parties to proceed in
confidence about the scope and stakes of the case thereafter, the
window of review is relatively small.”).
10
FED. R. CIV. P. 23(f); see also White, 75 Fed. Appx. at
974.
6
for appeal until the district court rules on that motion.11
Petitioners did not file the TCMP within ten days after the March
31, 2003 order denying class certification. Consequently, whether
or not the TCMP is treated as a Rule 60 motion to reconsider, it
failed to toll the ten-day time limit.
Likewise, even if we were to treat the TCMP as “further
certification procedures,” we would hold that to toll Rule 23(f)’s
ten-day limit, petitioners would have had to file it within ten
days after the order denying certification was entered. As the
courts of appeal uniformly require that a motion to reconsider be
filed within ten days if it is going to toll the ten-day period
within which to seek permission to appeal, we see no reason to
deviate from this general rule merely because a party has styled
its motion differently.
III. CONCLUSION
For the foregoing reasons, we dismiss the petition for lack of
appellate jurisdiction.
PETITION DISMISSED FOR LACK OF APPELLATE JURISDICTION.
11
See Shin, 248 F.3d at 1064-65; Gary, 188 F.3d at 892;
Blair, 181 F.3d at 837; see also White, 75 Fed. Appx. at 974
(quoting Seventh Circuit).
7