Petition — Crown, Cork & Seal Co. v. Parker

Office - Supreme Court, U.S.

82-118 FILED

1962

ALEXANDER . STEVAS,

CLERK

In Tue

Supreme Court of the United States

Ocroser Term, 1982

CROWN, CORK & SEAL COMPANY, INC.,

Petitioner,

Vv.

THEODORE PARKER,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Georce D. Sourer,

Ricnarp J. Maaip,

Wurrerorp, Taytor, Preston,

Trimate & Jounstron,

2000 First Maryland Bldg.,

25 South Charles Street,

Baltimore, Md. 21201,

752-0987,

Counsel for Petitioner.

The Daily Record Co., baltimore, MD 21202 —

QUESTION PRESENTED

Whether the pendency of a proposed class action tolls

the running of the ninety-day statute of limitations (under

42 U.S.C. § 2000e-5(f(1) (1972) ) for purposes of allowing

Respondent (a putative class member) to file a separate,

private Title VII action after certification of the putative

class has been denied.

TABLE OF CONTENTS

PAGE

DL i

. A e 2

r x artntonneens 2

Srarutory Provision anp Rute INxVOIVED 2

e 2

REASONS FOR GRANTING THE Wart 4

1. The Decision Below Directly Conflicts

With Decisions Of The Second Circuit

As To The Proper Interpretation Of The

American Pipe Tolling Doctrine ........... 4

2. The Decision Below Raises Significant

And Recurring Problems Concerning

The Judicial Administration Of Cases

Brought Pursuant To Rule 23 Of The

Federal Rules Of Civil Procedure ........ 7

3. The Fourth Circuit Tolling Rule

Seriously Erodes The Effectiveness Of

Rule 23 And Multiplies Litigation 10

.. 12

e eee des la

Parker v. Crown, Cork & Seal Company,

Inc., 677 F.2d 391 (4th Cir. 1982) ........ la

Parker v. Crown, Cork & Seal Company,

Inc., 514 F. Supp. 122 (D. Md. 1981) 8a

United States Code, Title 42, § 2000e-5(f)(1)

—— 17a

iii

PAGE

TABLE OF AUTHORITIES

Cases

American Pipe & Construction Co. v. Utah, 414

111 ee 4, 5, 6. 7, 8, 9, 10

Arneil v. Ramsey, 550 F. 2d 774 (2nd Cir. 1977) 5, 6

Bantolina v. Aloha Motors, Inc., 419 F. Supp.

I 7

Burnett v. New York Central R. R. Co., 380 U.S.

4,;—/!Rł 8

Gluck v. Amicor, Inc., 487 F. Supp. 608 (S. D. N. V.

J ᷣ̃ D AE SR 7

Gramby v. Westinghouse Electric Corp., 84

F. R. D. 666 (E. D. Pa. 1979) . . . .. . . . .. 7

In re Fine Paper Litigation, 632 F.2d 1081 (3rd

J ee 6

Jefferson v. H. K. Porter Co., 648 F.2d 337 (5th

. 7

Jefferson v. H. K. Porter Co., 485 F. Supp. 356

D . 7

Nelson v. United Credit Plan, Inc., 77 F. R. D. 54

I I Race ee ee 7

Order of Railroad Telegraphers v. Railway Ex-

press Agency, 321 U.S. 342 (1944) ................. 8

Pendleton, et al v. Crown, Cork & Seal Co., Inc.,

Civil No. M-78-1734 (D. Md. filed Sept. 15,

„ 3,4

Sanders v. Faraday Laboratories, Inc., 82 F.R.D.

fk RE 7

Stull v. Bayard, 561 F.2d 429 (2nd Cir. 1977) 5

Sussman v. Lincoln American Corp., 587 F.2d

L ceprrsncecstienntncesshsnesiitnnesnecesces 6

iv

Wachovia Bank & Trust v. National Student

Marketing Corp., N.A. 650 F.2d 342

r ...

Wachovia Bank & Trust Co., N. A. v. National

Marketing Corp., 461 F. Supp. 999 D. D.C.

1100011 —

PAGE

2,3

„ •— 2. 3. 6. 7. 10. 11

In Tur

Supreme Court of the United States

Ocroper Term, 1982

No.

CROWN, CORK & SEAL COMPANY, INC.,

Petitioner,

V.

THEODORE PARKER.

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Petitioner, Crown, Cork & Seal Company, Inc., respect-

fully prays that a writ of certiorari issue to review the

judgment and opinion of the United States Court of

Appeals for the Fourth Circuit entered in this proceeding

on April 23, 1982.

2

OPINION BELOW

The opinion of the Court of Appeals is reported in 677

F.2d 391. The opinion of the United States District Court

for the District of Maryland is reported in 514 F. Supp.

122. Both opinions appear in the Appendix hereto.

JURISDICTION

The judgment of the Court of Appeals for the Fourth

Circuit was entered on April 23, 1982. This Court's

jurisdiction is invoked under 28 U.S.C. § 1254(1) (1976).

STATUTORY PROVISION AND RULE INVOLVED

United States Code, Title 42, § 2000e-5(f\ 1) (1976); (See

p. 17a of Appendix hereto).

Federal Rules of Civil Procedure 23; (See p. 18a of

Appendix hereto).

STATEMENT OF THE CASE

Respondent Parker, a black man, was discharged from

his employment with Petitioner Crown, Cork & Seal

Company, Inc. (hereafter “Crown”) on July 15, 1977. On

October 3, 1977, Respondent filed a charge of discrimina-

tion with the EEOC alleging racially discriminatory

harassment and discharge by Crown. In a letter dated

November 9, 1978 the EEOC issued a determination that

there was no probable cause to believe that Respondent's

charge of discrimination against Petitioner was true and

issued to Respondent Parker a “Notice of Right to Sue.”

Mr. Parker received that “Notice of Right to Sue,” but did

not file suit within the statutorily prescribed period.

On September 15, 1978, Mr. Pendleton and Mr. Allen

filed a Title VII class action in the United States District

3

Court for the District of Maryland, Pendleton, et al v.

Crown, Cork & Seal Co., Inc., Civil No. M-78-1734 (D.

Md.), on their own behalf, and on behalf of all similarly

situated black persons, alleging racial discrimination by

petitioner in various employment practices, including

harassment and discharge. On May 31, 1979 plaintiffs

moved to certify a class, pursuant to Rule 23(b)(2) of the

Federal Rules of Civil Procedure, consisting of all black

persons who were terminated by petitioner on or after

January 12, 1973 and all black persons who were hired by

petitioner on or after March 31, 1973. By a Memorandum

and Order dated September 4, 1980, and after an eviden-

tiary hearing, the District Court denied that motion

for class certification.

On October 27, 1980 Respondent Parker filed the

present Title VII action in the United States District

Court for the District of Maryland alleging that Crown

discriminatorily harassed and discharged him on account

of his race. The jurisdiction of the District Court was

invoked under Title VII of the Civil Rights Act of 1964, as

amended by the Equal Employment Opportunity Act of

1972, 42 U.S.C. § 2000e, et seq. (general federal question

jurisdiction). On November 25, 1980 Crown filed its

answer denying Respondent’s allegation of discrimination

and moved for summary judgment against Respondent

Parker. Crown asserted that nearly two years had passed

since Respondent received his ninety-day notice to sue,

and therefore, Respondent had not satisfied a jurisdiction-

al prerequisite to his present suit. In a Memorandum and

Order filed April 20, 1981, the District Court granted

Crown’s Motion for Summary Judgment. Judgment was

entered on April 22, 1981 and Respondent appealed to the

United States Court of Appeals for the Fourth Circuit.

On February 26, 1981 a stipulated order of dismissal

with prejudice was signed by the District Court as the

result of a settlement of the remaining individual claims

4

of Pendleton and Allen. On March 20, 1981 Appellant

Parker filed a Motion, pursuant to Rule 24 of the Federal

Rules of Civil Procedure, for leave to intervene in the case

of Pendleton and Allen v. Crown, Cork & Seal Co., Inc.,

Civil No. M-78-1734 (D. Md.), for purposes of filing an

appeal of the denial of class certification. The District

Court, by a Memorandum and Order dated April 16, 1981,

granted Respondent’s motion to intervene. Thereafter, on

May 14, 1980, Respondent noticed an appeal of the denial

of class certification in Pendleton to the Court of Appeals

for the Fourth Circuit, but later consented to Crown's

motion to dismiss that appeal as untimely filed.

In an Opinion dated April 23, 1982, the United States

Court of Appeals for the Fourth Circuit reversed the

summary judgment granted to Petitioners by the District

Court on April 22, 1981, and remanded the case to the

District Court for trial. The Fourth Circuit, noting the

opposite conclusion reached previously by the Second

Circuit, interpreted this Court’s decision in American Pipe

& Construction Co. v. Utah, 414 U.S. 538, 94 S. Ct. 756, 38

L. Ed. 2d 713 (1974), to mean that the pendency of a

putative class action tolls the running of limitations

against members of that putative class for purposes of both

intervention and the filing of a new private suit.

REASONS FOR GRANTING THE WRIT

1. THE DECISION BELOW DIRECTLY CONFLICTS WITH DECI-

SIONS OF THE COURT OF APPEALS FOR THE SECOND CIR-

CUIT AS TO THE PROPER INTERPRETATION OF THE AMER-

ICAN PIPE TOLLING DOCTRINE.

In 1974 the Supreme Court addressed the issue of tolling

the statute of limitations in an antitrust suit and held that

“the commencement of the original class suit tolls the

running of the statute for all purported members of the

class who make timely motions to intervene after the court

has found the suit inappropriate for class action status.”

5

American Pipe & Construction Co. v. Utah, 414 US. at

552-53 (emphasis supplied). Subsequently, in United Air-

lines, Inc. v. McDonald, 432 U.S. 385, 97 S. Ct. 2464, 53 L.

Ed. 2d 423 (1977) the Court extended the rule enunciated

in American Pipe for the limited purpose of allowing

putative class members to appeal the denial of class

certification, regardless of whether a final judgment was

rendered. United Airlines, Inc. v. McDonald, 432 U.S. at

396. To date, the Supreme Court has neither directly nor

indirectly established any further extension of the Amer-

ican Pipe tolling doctrine to include putative class mem-

bers who file private actions after the statute of limita-

Recognizing the Supreme Court’s present position, the

Court of Appeals for the Second Circuit directly held that

the American Pipe tolling doctrine does not extend to the

commencement of a new action by a putative class

member. Arneil v. Ramsey, 550 F.2d 774 (2nd Cir. 1977).

In Arneil v. Ramsey the court maintained that the rule of

American Pipe was intended solely for the purpose of

allowing members of a putative class to intervene in an

action after class status was denied. Arneil v. Ramsey, 550

F.2d at 783. One year later, the Second Circuit upheld its

prior ruling in Arneil and concluded that an extension of

the American Pipe doctrine to putative “class members

who file separate suits after the class action has been

terminated and the statute of limitations has expired is

completely without merit.” Stull v. Bayard, 561 F.2d 429,

433 (2nd Cir. 1977), cert. denied, 434 U.S. 1035, 98 S. Ct.

769, 54 L. Ed. 2d 783 (1978).

Contrary to the rulings of the Second Circuit, the Fourth

Circuit Court of Appeals has held that “the correct reading

of American Pipe is that the pendency of a putative class

action tolls the running of limitations for members of the

putative class both for purposes of intervention and the

filing of a new suit based upon a cause of action embraced

6

within the putative class action until certification of the

class is denied.” (emphasis supplied). See p. 7a of Appen-

dix hereto). In so holding, the Fourth Circuit specifically

conceded that its interpretation of American Pipe conflicts

with that adopted by the Second Circuit. Reasoning that

the purpose of any statute of limitations “is to put

defendant on notice of a claim with reasonable prompt-

ness” (see p. 6a of Appendix hereto), the Fourth Circuit

declined to follow the Second Circuit’s interpretation of the

American Pipe tolling doctrine. Instead, the court below

maintains that permitting the statute of limitations to be

tolled for the purpose of intervention, but not for the

purpose of instituting a new suit, “exalt|s) form over

substance.” (see p. 6a of Appendix hereto).

In American Pipe & Construction Co. v. Utah, the

Supreme Court noted that if the statute of limitations was

not tolled, it “would deprive Rule 23 class actions of the

efficiency and economy of litigation which is a principal

purpose of the procedure.” 414 U.S. at 553. While the

Second Circuit held that tolling the statute of limitations

to allow the filing of a new private suit would be contrary

to this purpose and “would result in the maintenance of

another suit by plaintiffs . . .,” Arneil v. Ramsey, 550

F.2d at 3, the Fourth Circuit reached the opposite

conclusion, stating that if the statute of limitations was

not tolled in this circumstance it would “violate the spirit

and purpose of class action Rule 23,” (see p. 7a n.4 of

Appendix hereto), and “encourage the filing of individual

suits or interventions by members of the putative class.

. . .” (See p. 6a of Appendix hereto).

Thus, the conflict between the Fourth and the Second

Circuits is complete. The substantial benefit accorded to

7

putative class members under the Fourth Circuit's exten-

sion of the tolling doctrine will unquestionably make that

Circuit a uniquely hospitable forum for plaintiff class

litigants and significantly affect the result of class litiga-

tion.

2. THE DECISION BELOW RAISES SIGNIFICANT AND RECUR-

RING PROBLEMS CONCERNING THE JUDICIAL ADMINISTRA-

TION OF CASES BROUGHT PURSUANT TO RULE 23 OF THE

FEDERAL RULES OF CIVIL PROCEDURE.

The Fourth Circuit’s extension of the American Pipe

tolling doctrine is not limited to claims of discrimination

under Title VII; rather it is quite clear that it applies

broadly to all class actions under Rule 23 of the Federal

Rules of Civil Procedure. Particularly since the Supreme

Court has not had the occasion to address itself to the very

broad issue involved, there are compelling reasons why

some definitive guidelines in the application of tolling the

statute of limitations in class actions should now be

marked by this Court.

some general support for the Fourth Circuit's present rule.

However, decisions by the District of Columbia and Fifth

Circuits in Wachovia Bank & Trust Co., N.A. v. National

Student Marketing Corp., 650 F.2d 342, 346 (C.A.D.C. 1980),

cert. denied, 452 U.S. 954, 101 S. Ct. 3098 (1981), and Jefferson

v. H. X. Porter Co., 648 F.2d 337, 339 (5th Cir. 1981), provide

even more support for the Second Circuit's rule. District Court

decisions are essentially split on the present issue: Gramby o.

Westinghouse Electric Corp., 84 F.R.D. 655, 662 (E.D. Pa. 1979)

(tolling); Green v. United States Steel Corp., 481 F. Supp. 295,

299 (E.D. Pa. 1979) (tolling); Nelson v. United Credit Plan, Inc.,

77 F.R.D. 54, 58 (E.D. La. 1978) (tolling); Bantolina v. Aleha

Motors, Inc., 419 F. Supp. 1116, 1121-22 n.19 (D. Hawaii 1976)

(tolling); Jefferson v. H. K. Porter Co., 485 F. Supp. 356, 360-61

(N.D. Ala. 1980), aff'd. 648 F.2d 337 (5th Cir. 1981) (no tolling);

Wachovia Bank & Trust Co., NA. v. National Student Market-

ing Corp., 461 oe . 999, 1012 (D.D.C. 1978), rev'd on

2d 342 (C.A.D.C. 1980) (no tolling);

Gluck e micor, — 487 F. 608, 614-15 (8. D. N. x. 1980)

(no Sanders v. Faraday ies, Inc., 82 F.R.D. 99,

103 (E.D.N.Y. 1979) (no tolling).

8

(a) Statutes of Limitation

Statutory limitation periods are instituted on the theory

that “even if one has a just claim, it is unjust not to put

the adversary on notice to defend within the period of

limitation and that the right to be free of stale claims in

time comes to prevail over the right to prosecute them.”

Order of Railroad Telegraphers v. Railway Express Agen-

cy, Inc., 321 U.S. 342, 348-349, 64 S. Ct. 582, 586, 88 L. Ed.

788, 792 (1944). Punishing the negligent person who

asserts an otherwise meritorious claim ensures “fairness

to defendant,” Burnett v. New York Central R.R. Co., 380

U.S. 424, 428, 85 S. Ct. 1050, 1054, 13 L. Ed. 2d 941, 945

(1965), and promotes “security and stability to human

affairs.” Wood v. Carpenter, 101 U.S. 135, 139, 25 L. Ed.

807, 808 (1879). In respect for these concepts, this Court

applies the judicial tolling of statutory limitations only

sparingly and, more importantly, only for the benefit of

putative class members attempting to further the collec-

tive interest of the putative class by intervention or

appeal. See American Pipe & Construction Co. v. U.ah, 414

U.S. 538 (1974) (intervention); United Airlines, Inc. v.

McDonald, 432 U.S. 385 (1977) (appeal of denial ui class

action).

The Fourth Circuit’s wholesale and mechanical exten-

sion of the American Pipe tolling doctrine establishes a

major and unprecedented incursion upon legislatively

enacted statutes of repose. In American Pipe, this Court

carefully considered the impact of the doctrine of judicial

tolling upon legislatively prescribed statutes of limitation

and concluded that federal courts have the power to toll

statutes of limitation “under certain circumstances not

inconsistent with the legislative purpose.” 414 U.S. at 559.

The Fourth Circuit’s broad extension of the tolling doc-

trine, however, runs roughshod over all legislatively

prescribed statutes of limitations, without any coasidera-

tion of legislative purpose. Thus, under the Fourth Circuit

rule, a judicial tolling of limitations in derogation of

statutory law, is automatically triggered by the mere

filing of a lawsuit denominated a class action. At the same

time, those benefited by the tolling of limitations depends

in large measure upon the ‘raftsmanship of the class

action complaint, rather thau a consideration of the

applicable law or facts. Furthermure, the amount of time

from the filing of a class action until denial of certification

can realistically entail many months or years.’

(b) Notice to Defendant

A primary support for this Court’s establishment of a

tolling rule in American Pipe and United Airlines is the

fact that the defendants in both cases were put on notice of

potential class-wide liability by the filing of complaints

seeking class relief. American Pipe & Construction Co. v.

Utah, 414 U.S. at 554-555; United Airlines, Inc. v.

McDonald, 432 U.S. at 395. In American Pipe, this Court

stated:

[w]ithin the period set by the statute of limitations, the

defendants have the essential information necessary

to determine both the subject matter and size of the

prospective litigation, whether the actual trial is

conducted in the form of a class action, as a joint suit,

or as a principal suit with additional intervenors.

414 U.S. at 555. However, where a defendant is not only

subject to liability through a class action and/or individual

actions by the named class representatives plus interve-

nors, but is also subject to further liability in separate

private actions by anyone or all of the putative class

members, there is insufficient notice to the class action

~ * The Fourth Circuit rule does not consider that class

certification can be denied or that decertification can occur at a

late date, after appeal or remand. In addition, the present rule

does not address successive or overlapping class actions, which

could toll the applicable limitations period for an indefinite

period of time.

10

defendant to justify an equitable tolling of the statute of

limitations.

It is well recognized that the discovery and proof of a

Title VII class action case, with its emphasis upon

statistics and expert opinion, is markedly different from

the discovery and proof of an individual action, with its

emphasis upon a more limited set of facts and the

credibility of lay witnesses. Admittedly, the notice pro-

vided to a defendant through the filing of a proposed class

action suit should be enough to allow that defendant to

make preparations (such as securing experts, collecting

and analyzing data) for the defense of a class action as

well as a defense against the claims of the named plaintiff.

However, such notice is of little value if defendant is

subject to separate individual actions for an indeterminate

period of time by anyone falling within the parameters of

a proposed class. Given such circumstance and the nature

of the discovery and proof of individual actions, a defen-

dant will unquestionably be prejudiced by the fact that

“evidence has been lost, memories have faded, and witnes-

ses have disappeared.” American Pipe & Construction Co.

v. Utah, 414 U.S. at 554. Certainly, a party opposing a

putative class action cannot be expected to conduct an

investigation of the facts and circumstances of each and

every person falling within wide and often arbitrary

boundaries set forth in a proposed class action complaint.

Thus, an extension of the American Pipe tolling doctrine

will unfairly prejudice defendants and provide an unjust

advantage to plaintiffs who benefit from the tolling rule.

3. THE FOURTH CIRCUIT TOLLING RULE SERIOUSLY ERODES

THE EFFECTIVENESS OF RULE 23 AND MULTIPLIES LITIGA-

TION.

In fashioning the tolling rule in American Pipe, this

Court gave careful consideration to the efficiency and

economy of litigation as a principal purpose of Rule 23.

American Pipe & Construction Co. v. Utah, 414 U.S. at

11

553. There, a major concern of the Court was avoiding a

multiplicity of protective motions for intervention in the

proposed class action by putative class members apprehen-

sive about the likelihood of success of class certification.

Under the Fourth Circuit rule, the threat to judicial

efficiency and economy under Rule 23 is far more serious

than a multiplicity of protective motions for intervention

in the same proposed class action. Indeed, a denial of class

certification will undoubtedly provoke a multiplicity of

independent actions in various forums, each with its full

complement of discovery, court proceedings, and potential-

ly inconsistent results. Undoubtedly, there are countless

individuals, corporations, and other legal entities through-

out the nation who are, or were members of putative

classes and who, under the rule below, can file private

suits after certification has been denied to their class.

A Rule 23 class action is designed to provide a method

for an efficient and final resolution of the common claims

of many individuals in a single action. The effectiveness of

a class action, in turn, must depend upon the support and

interest provided by the members or putative members of

the class. Where class certification is denied, the Fourth

Circuit’s tolling rule will unquestionably encourage puta-

tive class members to desert the class and file their own

private actions, rather than remain with the class and

appeal the denial of class certification. This will be

especially true in Title VII cases where limitation periods

are very short and generally expire before an appeal of the

denial of class certification can be heard. Instead of

strengthening and facilitating Rule 23, a broad tolling

rule for the benefit of private actions will actually foster

defections from the putative class, particularly by the

more active and informed members. Thus, a judicial

commitment to the broad intent and purpose of Rule 23

can only be underinined and disserved by authorizing the

Fourth Circuit's extension of the American Pipe tolling

doctrine.

12

CONCLUSION

For these reasons, a writ of certiorari should issue to

review the judgment and opinion of the Fourth Circuit.

Respectfully submitted,

Georce D. Sorter,

Ricuarp J. Maain,

Wuirerorp, TVU OR, Preston,

Tung & JOHNSTON,

2000 First Maryland Bldg.,

25 South Charles Street,

Baltimore, Md. 21201,

Counsel for Petitioner. —

APPENDIX

Theodore Parker,

Appellant,

v.

Crown, Cork and Seal Company, Inc.,

Appellee.

No. 81-1465.

United States Court of Appeals, Fourth Circuit.

Argued Dec. 7, 1981.

Decided April 23, 1982.

Discharged black employee appealed from a summary

judgment of the United States District Court for the

District of Maryland, James R. Miller, Jr., J., 514 F. Supp.

122, in favor of employer in an employment discrimination

suit. The Court of Appeals, Harrison L. Winter, Chief

Judge, held that running of 90-day statutory period in

2a

which employee could commence his private Title VII

action was tolled during period that there was pending a

class action in which he was a member of the putative

class but in which class certification was denied and action

subsequently dismissed, even though he took no action to

intervene as a named plaintiff in the class and did not

seek to file an individual suit until after the class

certification was denied.

Reversed and remanded.

1. Limitation of Actions — 126

Pendency of putative class action tolls running of

limitations for members of putative class both for purposes

of intervention and filing of new suit based upon cause of

action embraced within putative class action until certi-

fication of class is denied.

2. Civil Rights — 40

Running of 90-day statutory period in which dismissed

black employee could commence his private Title VII

action to redress alleged racial discrimination in employ-

ment was tolled during period that there was pending a

class action in which he was a member of the putative

class but in which class certification was denied and action

subsequently dismissed, even though he took no action to

intervene as a named plaintiff in the class and did not

seek to file an individual suit until after the class

certification was denied. Civil Rights Act of 1964, §§ 701 et

seq., 706(e) as amended 42 U.S.C.A. 5 2000e et seq.,

2000e-5(f)(1).

Norris C. Ramsey, Baltimore, Md., for appellant.

Richard J. Magid, Baltimore, Md. (George D. Solter,

Francis John Gorman, Baltimore, Md., on brief), for

3a

Before WINTER, Chief Judge, and PHILLIPS and

MURNAGHAN, Circuit Judges.

HARRISON L. WINTER, Chief Judge:

The question we must decide is whether the running of

the ninety-day statutory period, fixed by 42 U.S.C.

§ 2000e-5(f)(1), in which plaintiff could commence his

private Title VII action to redress alleged racial discrim-

ination in employment was tolled during the period that

there was pending a class action in which plaintiff was a

member of the putative class but in which class certifica-

tion was denied and the action subsequently dismissed.

The district court ruled that the running of the period was

not tolled. 514 F. Supp. 122. We conclude otherwise. We

reverse and remand for further proceedings.

I.

Plaintiff, a black male, was discharged by defendant on

July 15, 1977. He duly filed a charge of discrimination

with EEOC, alleging racially motivated harassment and

termination. A right-to-sue letter issued on November 9,

1978.

Meanwhile, however, a class action against defendant

alleging racial discrimination in employment in violation

of Title VII was filed September 15, 1978. Plaintiff was a

member of the putativé class, and his claim was encom-

passed within the scope of the action. On July 13, 1979, a

hearing was held and the court ruled on some, but not all,

of the class certification issues. On September 4, 1980, the

court finally denied class certification. The allegations of

class-wide harassment were denied for lack of numerosity,

and those of illegal termination because the named

plaintiff, a probationary employee, was not representative

of the class.

Plaintiff took no action to intervene as a named plaintiff

in the class action; nor did he seek to file an individual

4a

suit until after the class certification was denied. Plaintiff

filed his own suit on October 27, 1980.

He was promptly met by a motion for summary

judgment on the ground that his suit was untimely since

his right-to-sue notice issued November 9, 1978, and he

did not file suit until October 27, 1980. Of course, as a

factual matter, if the ninety-day statutory period for

bringing suit was tolled until class certification was

finally denied, unquestionably plaintiff instituted suit

before the bar of the statute.

The district court granted summary judgment for

defendant, ruling that plaintiff’s right to file suit began to

run on November 9, 1978, when he received his right-to-

sue notification and that the running of the period was not

tolled by the pendency of the intervening class action so as

to permit plaintiff to file his own suit, although it would

have tolled the running of the period had plaintiff sought

to intervene in the putative class action after certification

was denied.

II.

[1,2] As the district court recognized, the decision in

this case depends upon the reading to be given to

American Pipe and Construction Co. v. Utah, 414 U.S. 538,

5a

Jacquelin, 417 U.S. 156, 94 S. Ct. 2140, 40 L. Ed. 2d 732

(1974), in deciding that notice must be sent to all members

of a Rule 23(b)(3) class actior because, inter alia, members

of the class have a right to “opt out” of the class, the Court

noted:

Petitioner also argues that class members will not

opt out because the statute of limitations has long

since run out on the claims of all class members other

than petitioner. This contention is disposed of by our

recent decision in American Pipe which estab-

lished that commencement of a class action tolls the

—— statute of limitations as to all members of

6a

broadly enough to include new suits as well as motions to

intervene in the aborted class action.

With due respect to the views of the Second Circuit, we

think that American Pipe should be read to toll limitations

with respect to a new suit as well as to a motion to

intervene. The rationale of any statute of limitations is to

put a defendant on notice of a claim with reasonable

promptness so that defense evidence is not lost, memories

have not faded and witnesses have not disappeared. Order

of Railroad Telegraphers v. Raiiway Express Agency, Inc.,

321 U.S. 342, 348-49, 64 S. Ct. 582, 586, 88 L. Ed. 788

(1943). Where plaintiff's individual complaint is within

the scope of the putative class action, those purposes are

fully served since the defendant has “sufficient informa-

tion within the statutory period to timely apprise lit!

of the nature and scope of the prospective litigation.” Haas

v. Pittsburgh National Bank, 526 F.2d 1083, 1097 n.19 (3

Cir. 1975). Therefore, intervention is not barred by the

statute of limitations, and it seems to us to exalt form over

substance to say that intervention would be permitted but

not institution of a new suit.

Moreover, such a rule would encourage the filing of

individual suits or interventions by members of the

7a

defendant.‘ In addition, intervention is often at the

discretion of the district court, Rule 24(b), F.R.Civ.P., and

intervention may be denied if it will defeat the jurisdiction

of the district court, if additional or extrinsic issues would

be brought in by the intervenor, or if intervention would

delay or prejudice adjudication of the rights of the original

parties. 3B Moore’s Federal Practice J 24. 10041980). Thus

the rule of American Pipe, if limited to intervenors, might

achieve the inequitable result of allowing some putative

TA Le

82 151

11

13

He

i if

: 0

85

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2

2

2

9

2

5

9

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Ei

8a

Theodore Parker

v.

Crown, Cork & Seal Company, Inc.

Civ. A. No. M-80-2839.

United States District Court, District Maryland.

April 20, 1981.

Action was instituted on a complaint alleging that

plaintiff was harassed and terminated from his employ-

ment because of his race. On motion of defendant for

summary judgment, the District Court, James R. Miller,

Jr., J., held that filing of class based claims in another

case did not toll period of limitations with respect to

plaintiff's filing of his individual action under equal

employment statute until class certification motions in

other case were denied, notwithstanding claim that plain-

tiff, as a member of classes proposed in other case, could

borrow any tolling that occurred in that case and use it for

purposes of his own action, where plaintiff was not a class

member who sought to intervene in original class suit, but

was seeking benefit of tolling rule in an independent

action on which statute of limitations had otherwise run.

Motion granted.

1. Civil Rights — 40

Unless tolled on recognized and equitable grounds,

running of the statutory 90-day period extinguishes

forever an individual’s right to bring a private action

under the equal employment statute. Civil Rights Act of

1964, § 706(e) as amended 42 U.S. C. A. § 2000e-5(f)(1).

9a

2. Civil Rights — 40

If a suit under the equal employment statute is not

commenced within 90 days from the receipt by the

claimant of the “Notice of Right to Sue” issued by the

Equal Employment Opportunity Commission, the court is

without jurisdiction to entertain the suit. Civil Rights Act

of 1964, § 706(e) as amended 42 U.S.C.A. § 2000e-5(f)(1).

3. Civil Rights — 40

Where plaintiff, who received the first “Notice of Right

to Sue” from the EEOC more than 90 days from the time

suit for alleged discrimination in employment was filed,

failed to allege any equitable considerations militating in

favor of giving effect to second “Notice of Right to Sue”

issued by the EEOC, including the filing of a purported

class action which did not toll the period of limitations

with respect to plaintiff's individual action, the second

notice was without legal effect and, given expiration of

statutory 90-day period subsequent to the first notice, the

private suit filed by the plaintiff under the equal employ-

ment provision was barred. Civil Rights Act of 1964,

§ 706(e) as amended 42 U.S. C. A. § 2000e-5(f)(1); Fed. Rules

Civ. Proc. Rules 23, 23(b)(2, 3), 28 U.S.C.A.

4. Limitation of Actions — 124, 126

The benefit of the tolling rule in American Pipe, that the

commencement of the original class suit tolls the running

of the statute for all purported members of the class who

made timely motions to intervene after the court has

found the suit inappropriate for class action status, is

limited to those class members who seek to intervene in

the original class suit and is inapplicable to independent

suits on which the statute of limitations has otherwise

run.

5. Civil Rights — 40

Viling of class based clairs in another case did not toll

period of limitations with respect to iff’s filing of his

individual action under equal statute until

10a

class certification motions in other case were denied,

notwithstanding claim that plaintiff, as a member of

classes proposed in other case, could borrow any tolling

that occurred in that case and use it for purposes of his

own action, where plaintiff was not a class member who

sought to intervene in original class suit, but was seeking

benefit of tolling rule in an independent action on which

statute of limitations had otherwise run. Civil Rights Act

of 1964, § 706(e) as amended 42 U.S.C.A. § 2000e-5(f(1);

Fed. Rules Civ. Proc. Rules 23, 23(b)(2, 3), 28 U.S.C.A.

Norris C. Ramsey, Baltimore, Md., for plaintiff.

George D. Solter, Richard J. Magid, and Francis John

Gorman of Whiteford, Taylor, Preston, Trimble & John-

ston, Baltimore, Md., for defendant.

MEMORANDUM AND ORDER

JAMES R. MILLER, Jr., District Judge.

The plaintiff, Theodore Parker, brought this Title VII

action alleging that he was harassed and terminated from

his job because of his race. The defendant, Crown, Cork &

Seal Company, Inc. (Crown), has moved for summary

judgment on the grounds that Parker did not file his

complaint in this action within the 90-day period required

by 42 U.S.C. § 2000e-5(f)(1). Parker has filed a memoran-

dum opposing Crown’s motion. The material facts neces-

sary for a resolution of this motion are undisputed. Since

only a legal question is presented, the court concludes that

no hearing is recessary. Local Rule 6(E).

I. Factual Overview

On July 15, 1977, Parker was permanently discharged

by Crown. (Paper No. 14, Ex. 4). On October 3, 1977, he

filed a discrimination charge with the Equal Employment

Opportunity Commission (EEOC), alleging racially moti-

vated harassment and termination by Crown (Paper No.

lla

15, Ex. B; see Paper No. 14, Ex. 7). By letter dated October

19, 1977, the Maryland Commission on Human Relations

(MCHR) notified Parker that his charge had been deferred

to it for investigation (Paper No. 14, Ex. 6). The MCHR

issued a written decision on September 20, 1978, finding

no probable cause to believe that Parker had been

terminated or harassed by Crown because of his race

(Paper No. 14, Ex. 8).

On November 9, 1978, the EEOC issued a “Letter of

Determination,” addressed to Parker, Crown, and Parker's

union, stating that there was no reasonable cause to

believe that Parker’s charge of racial discrimination was

true. The letter also stated:

“Should the Charging Party wish to pursue this

matter further, he/she may do so by filing a private

action in Federal District Court within 90 days of the

receipt of this letter, and by taking the other

procedural steps set out in the enclosed NOTICE-OF-

RIGHT TO SUE.”

Paper No. 14, Ex. 10.

A “Notice of Right to Sue” was issued by the EEOC on

November 9, 1978. It was addressed to Parker at 1316

South Hanover Street, Baltimore, Maryland 21230, and to

Crown at its corporate offices (Paper No. 14, Ex. 9). A

second “Notice of Right to Sue,” dated July 25, 1980, was

issued to Parker and a copy was sent to Parker's lawyer

(Paper No. 14, Ex. 11). This action was filed on October 27,

1980 (Paper No. 1). Parker’s deposition establishes that he

received the first “Notice of Right to Sue” by mail shortly

after it was issued by the EEOC (Paper No. 14, at pp.

134-39).

II. Discussion

Crown contends that since the first “Notice of Right

Sue” was issued by the EEOC on November 9, 1978,

received by Parker shortly thereafter, the filing of

present case on October 27, 1980, is untimely under

U.S.C. §2000e-5(f)(1) because the 90-day period

Les

12a

expired. According to Crown, the second “Notice of Right

to Sue” was without legal effect and did not operate to

begin a new 90-day period.

Parker does not challenge directly Crown’s contention

that the 90-day period began to run from his receipt of the

first notice. Instead, Parker contends (1) the filing of the

purported class action in Randy Pendleton et al. v. Crown,

Cork & Seal Co., Inc., Civil Action No. M-78-1734, tolled

the limitations period for all members of the classes

proposed in that case; (2) the period of limitations did not

commence to run again on the discrimination claims of the

putative class members until the court issued its Memor-

andum and Order of September 4, 1980, denying the

remaining class certification issues; and (3) as a member

of the putative classes, he had 90 days from the court's

Memorandum and Order of September 4, 1980, in which to

file his individual Title VII suit. For the reasons set out

below the court will grant Crown’s motion for summary

judgment.

{1, 2] It is well settled in this Circuit that unless tolled

“on recognized equitable grounds,” Stebbins v. Nationwide

Mutual Insurance Co., 469 F.2d 268, 269 (4th Cir. 1972),

cert. denied, 410 U.S. 939, 93 S. Ct. 1403, 35 L. Ed. 2d 606

(1973), the running of the 90-day period set out in 42

U.S.C. § 2000e-5(f)(1) extinguishes forever an individual's

right to bring a private Title VII action. E.g., EEOC v.

Cleveland Mills Co., 502 F.2d 153, 156 (4th Cir. 1974);

Bailey v. Boilermakers Local 667, 480 F. Supp. 274, 282

(D.C.N.D.W.Va. 1979). Consequently, if a suit is not

commenced within 90 days from the receipt by the

claimant of the “Notice of Right to Sue” the court is

without jurisdiction to entertain the action. Menn o.

Amstar Corp., 476 F. Supp. 303, 305 (D.C.D.Md. 1979). See

Garner v. E. I. DuPont De Nemours & Co., 538 F.2d 611,

614-15 (4th Cir. 1976).

{3] The undisputed evidence submitted by Crown dem-

onstrates that Parker in fact received the first “Notice of

Right to Sue” more than 90 days before the instant suit

13a

was filed. Parker has not alleged any equitable considera-

tions militating in favor of giving effect to the second

notice. See, e.g., Trujillo v. General Electric Co., 621 F.2d

1084, 1086-87 (10th Cir. 1980); Gonzalez v. Firestone Tire

& Rubber Co., 610 F.2d 241, 245-46 (5th Cir. 1980). The

court concludes, therefore, that the second notice was

without legal effect and Parker’s 90-day period within

which to file a private Title VII suit commenced to run

upon his receipt of the first notice. See, g., Cleveland v.

Douglas Aircraft Co., 509 F.2d 1027, 1030 (9th Cir. 1975);

Ford v. General Motors Corp., 452 F. Supp. 355, 357

(D.C.E.D.Mo. 1978); Fannie v. Chamberlain Mfg. Corp.,

445 F. Supp. 65, 78 (D.C.W.D.Pa. 1977).

A more substantial issue is whether the filing of the

class based claims in the Pendleton case tolled the period

of limitations, with respect to Parker's filing of his

individual action, until the class certification motions in

Pendleton were denied. Parker contends that as a member

of the classes proposed in Pendleton, he may borrow any

tolling that occurred in that case and use it for the

purposes of this case. In support of this argument, Parker

urges this court to interpret broadly the Supreme Court’s

holding in American Pipe & Construction Co. v. Utah, 414

U.S. 538, 94 S. Ct. 756, 38 L. Ed. 2d 713 (1974).

American Pipe involved a private antitrust class action

that had been filed eleven days before the running of the

statute of limitations. The trial court subsequently denied

the class certification motion on the ground that the

purported class failed to satisfy the numerosity require-

ment of Rule 23(a)1). Eight days after the entry of the

order denying class status, a number of the putative class

members moved to intervene as plaintiffs. The trial court

denied their motions as untimely.

Reasoning that a refusal to toll the statute of limitations

with respect to the claims of the putative class members,

for the period between the filing of the suit and the trial

court’s ruling on the class certification motion, would

l4a

result in the filing of numerous intervention petitions

prior to the class determination, the Court held that

“the commencement of the original class suit tolls

the running of the statute for all purported members

of the class who make timely motions to intervene after

the court has found the suit inappropriate for class

action status.”

414 U.S. at 553, 94 S. Ct. at 766 (emphasis supplied).

Some Circuit Courts have suggested, see, e. g., In re Fine

Paper Litigation, 632 F.2d 1081, 1087 (3d Cir. 1980);

Sussman v. Lincoln American Corp., 587 F.2d 866, 869

(7th Cir. 1978), cert. denied, Eberstadt v. Flamm, 445 U.S.

942, 100 S. Ct. 1337, 63 L. Ed. 2d 775 (1980), and some

District Courts have apparently held, see, e. g., Gramby v.

Westinghouse Electric Corp., 84 F.R.D. 655, 662 (D.C.E.D.

Pa. 1979); Green v. United States Steel Corp., 481 F. Supp.

295, 299 (D.C.E.D.Pa.1979); Nelson v. United Credit Plan,

Inc., 77 F.R.D. 54, 58 (D.C.E.D.La. 1978); Bantonlina v.

Aloha Motors, Inc., 419 F. Supp. 1116, 1121-22 n.19

(D.C.D.Hawaii 1976), that the Supreme Court’s decision in

American Pipe created a broad, general rule that the

statutes of limitation are tolled with respect to the claims

of all putative class members until the trial court rules on

the class certification motion. In effect, these cases suggest

that a putative class member may take advantage of the

tolling arising from the class suit, and maintain an

independent action subsequent to the denial of the class

certification motion, notwithstanding that such indi-

viduals did not seek to intervene in the original class suit.

Although there is dictum in Eisen v. Carlisle &

Jacquelin, 417 U.S. 156, 176 n.13, 94 S. Ct. 2140, 2152

n.13, 40 L. Ed. 2d 732 (1974), suggesting such a reading of

American Pipe as applied to Rule 23(b)(3) suits, neither

the facts nor the reasoning of American Pipe support the

broad rule urged by Parker with respect to Title VII suits

status under Rule 23(b)(2). The Court in

American Pipe was concerned that if notice to members of

a putative Rule 23(b)(3) class “did not reach them until

15a

aſter the running of the limitation period, such persons

would be compelled to file intervention motions prior to

the class certification decision, thereby creating the

multiplicity of activity which Rule 23 was designed to

avoid.” 414 U.S. at 551, 94 S. Ct. at 765. The decision to

allow intervention by class members subsequent to the

trial court’s decision to deny class status was held to be

fair to the defendant because:

“Within the period set by the statute of limitations,

the defendants have the essential information neces-

sary to determine both the subject matter and size of

the prospective litigation, whether the actual trial is

—— in the form of a class action, as a joint suit,

or as a principal suit with additional intervenors.”

414 US. at 555, 94 S. Ct. at 767 (footnote omitted)

(emphasis supplied).

{4} The conclusion that the benefit of the American Pipe

tolling rule is limited to those class members who seek to

intervene in the original class suit, and is inapplicable to

independent suits on which the statute of limitations has

otherwise run, has been reached by a number of courts.

See, e. g., Stull v. Bayard, 561 F.2d 429, 433 (2d Cir. 1977),

cert. denied, 434 U.S. 1035, 98 S. Ct. 769, 54 L. Ed. 2d 783

(1978); Arneil v. Ramsey, 550 F.2d 774, 783 (2d Cir. 1977);

Gluck v. Amicor, Inc., 487 F. Supp. 608, 614-15 (S.D.N.Y.

1980); Jefferson v. H. K. Porter Co., 485 F. Supp. 356,

360-61 (D.C.N.D.Ala. 1980); Wachovia Bank & Trust Co. v.

National Student Marketing Corp., 461 F. Supp. 999, 1012

(D.C. D.C. 1978). In addition, Part II of Judge Widener’s

opinion in Paxman v. Campbell, 612 F.2d 848, 855 (4th

Cir. 1980) (en banc), in which all members of the court

except for Judge Phillips concurred, suggests that if

presented with the question, the Fourth Circuit would

limit the rule of American Pipe to class members seeking

to intervene in the original suit. See also 3B Moore's

Federal Practice J 23.-90[{3) at 23-555 to 23-556 n.16 (1980)

(“Although the statute of limitations is tolled by the filing

of a class action for purposes of permitting a member of

the purported class to intervene after the class has been

16a

disallowed, it is doubtful that a class member will be

permitted to bring an individual action after the statute of

limitations has run.”).

151 Finally, the interpretation of American Pipe urged

by Parker is unsupportable from a policy standpoint.

Although relief under Title VII may be awarded on a class

basis to those unnamed class members who have not

exhausted their administrative remedies, see, e. g., Franks

v. Bowman Transportation Co., Inc., 424 U.S. 747, 771, 96

S. Ct. 1251, 1267, 47 L. Ed. 2d 444 (1976); Albemarle

Paper Co. v. Moody, 422 U.S. 405, 414 n.8, 95 S. Ct. 2362,

2370 n.8, 45 L. Ed. 2d 280 (1975), the rule urged by Parker

would eviscerate Title VII's time limitations concerning

suits brought by individual claimants. Under Parker’s

theory, if a broad based Title VII class action suit were

filed against a particular defendant the period of limita-

tions on all claims would be tolled. Once the trial court

denied class status in the original suit, that defendant

would be subject to untold numbers of individual Title VII

suits brought by persons who had not timely pursued their

administrative remedies.

In light of the purposes underlying Title VII's time

limitations, this court doubts that the Supreme Court

would sanction, or that Congress intended, the result

urged by Parker. The court holds, therefore, that the

tolling rule of American Pipe is applicable only to Title VII

class members who seek intervention in the original suit.

Consequently, Parker’s 90-day period for filing suit was

not tolled by the Pendleton suit, and his filing of the

instant case on October 27, 1980, was untimely.

Accordingly, it is this 20th day of April, 1981,

ORDERED:

(1) Crown’s motion for summary judgment is

GRANTED.

(2) The Clerk is instructed to forward a copy of this

Memorandum and Order to counsel for the parties.

17a

42 § 2000e-5

(f(1) If within thirty days after a charge is filed with the

Commission or within thirty days after expiration of any

period of reference under subsection (c) or (d) of this

section, the Commission has been unable to secure from

the respondent a conciliation agreement acceptable to the

Commission, the Commission may bring a civil action

against any respondent not a government, governmental

agency, or political subdivision named in the charge. In

the case of a respondent which is a government, gov-

ernmental agency, or political subdivision, if the Commis-

sion has been unable to secure from the respondent a

conciliation agreement acceptable to the Commission, the

Commission shall take no further action and shall refer

the case to the Attorney General who may bring a civil

action against such respondent in the appropriate United

States district court. The person or persons aggrieved shall

have the right to intervene in a civil action brought by the

Commission or the Attorney General in a case involving a

government, governmental agency, or political subdivi-

sion. If a charge filed with the Commission pursuant to

subsection (b) of this section is dismissed by the Commis-

sion, or if within one hundred and eighty days from the

filing of such charge or the expiration of any period of

reference under subsection (c) or (d) of this section,

whichever is later, the Commission has not filed a civil

action under this section or the Attorney General has not

filed a civil action in a case involving a government,

governmental agency, or political subdivision, or the

Commission has not entered into a conciliation agreement

to which the person aggrieved is a party, the Commission,

or the Attorney General in a case involving a government,

governmental agency, or political subdivision, shall so

notify the person aggrieved and within ninety days after

the giving of such notice a civil action may be brought

against the respondent named in the charge (A) by the

18a

person claiming to be aggrieved or (B) if such charge was

filed by a member of the Commission, by any person whom

the charge alleges was aggrieved by the alleged unlawful

employment practice. Upon application by the com-

plainant and in such circumstances as the court may deem

just, the court may appoint an attorney for such com-

plainant and may authorize the commencement of the

action without the payment of fees, costs, or security.

Upon timely application, the court may, in its discretion,

permit the Commission, or the Attorney General in a case

involving a government, governmental agency, or political

subdivision, to intervene in such civil action upon certi-

fication that the case is of general public importance.

Upon request, the court may, in its discretion, stay further

proceedings for not more than sixty days pending the

termination of State or local proceedings described in

subsections (c) or (d) of this section or further efforts of the

Commission to obtain voluntary compliance.

Fed. R. Civ. P. 23. Class Actions

(a) Prerequisites to a Class Action. One or more

members of a class may sue or be sued as representative

parties on behalf of all only if (1) the class is so numerous

that joinder of all members is impracticable, (2) there are

questions of law or fact common to the class, (3) the claims

or defenses of the representative parties are typical of the

claims or defenses of the class, and (4) the representative

ap will fairly and acequately protect the interests of

class. ö

(b) Class Actions Maintainable. An action may be

maintained as a class action if the prerequisites of

subdivision (a) are satisfied, and in addition:

(1) the prosecution of separate actions by or against

individual members of the class would create a risk of

(A) inconsistent or varying adjudications with respect to

individual members of the class which would establish

incompatible standards of conduct for the party opposing

the class, or

19a

(B) adjudications with respect to individual members of

the class which would as a practical matter be dispositive

of the interests of the other members not parties to the

adjudications or substantially impair or impede their

ability to protect their interests; or

(2) the party opposing the class has acted or refused to

act on grounds generally applicable to the class, thereby

making appropriate final injunctive relief or correspond-

ing declaratory relief with respect to the class as a whole;

or

(3) the court finds that the questions of law or fact

common to the members of the class predominate over any

questions affecting only individual members, and that a

class action is superior to other available methods for the

fair and efficient adjudication of the controversy. The

matters pertinent to the findings include: (A) the interest

of members of the class in individually controlling the

prosecution or defense of separate actions; (B the extent

and nature of any litigation concerning the controversy

already commenced by or against members of the class; (C)

the desirability or undesirability of concentrating the

litigation of the claims in the particular forum; D) the

difficulties likely to be encountered in the management of

a class action.

(c) Determination by Order Whether Class Action

to be Maintained; Notice; Judgment; Actions Con-

ducted Partially as Class Actions.

(1) 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. An order under

this subdivision may be conditional, and may be altered or

amended before the decision on the merits.

(2) In any class action maintained under subdivision

(b\3), the court shall direct to the members of the class the

individual notice to all members who can be identified

through reasonable effort. The notice shall advise each

member that (A) the court will exclude him from the class

20a

if he so requests by a specified date; (B) the judgment,

whether favorable or not, will include all members who do

not request exclusion; and (C) any member who does not

request exclusion may, if he desires, enter an appearance

through his counsel.

(3) The judgment in an action maintained as a class

action under subdivision (bi) or (by), whether or not

favorable to the class, shall include and describe those

whom the court finds to be members of the class. The

judgment in an action maintained as a class action under

subdivision (bg), whether or not favorable to the class,

shall include and specify or describe those to whom the

notice provided in subdivision (c was directed, and who

have not requested exclusion, and whom the court finds to

be members of the class.

(4) When appropriate (A) an action may be brought or

maintained as a class action with respect to particular

issues, or (B) a class may be divided into subclasses and

each subclass treated as a class, and the provisions of this

rule shall then be construed and applied accordingly.

d) Orders in Conduct of Actions. In the conduct of

actions to which this rule applies, the court may make

appropriate orders: (1) determining the course of proceed-

ings or prescribing measures to prevent undue repetition

or complication in the presentation of evidence or

argument; (2) requiring, for the protection of the members

of the class or otherwise for the fair conduct of the action,

that notice be given in such manner as the court may

direct to some or all of the members of any step in the

action, or of the proposed extent of the judgment, or of the

2la

matters. The orders may be combined with an order under

Rule 16, and may be altered or amended as may be

desirable from time to time.

(e) Dismissal or Compromise. A class action shall not

be dismissed or compromised without the approval of the

court, and notice of the proposed dismissal or compromise

shall be given to all members of the class in such manner

as the court directs.

As amended Feb. 28, 1966, eff. July 1, 1966.