Petition for Writ of Certiorari — Armstrong v. Martin Marietta Corp.

Supreme Coy

PIL RDO

98 552 10199

‘OFFICE OF THE CLERK

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UNITED STATES SUPREME COURT

OCTOBER TERM, 1997

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NO.

DAVID M. ARMSTRONG, et al.,

Petitioners,

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MARTIN MARIETTA CORPORATION, et al.,

Respondents.

REKKKKKKKKKKKKKKKKKRKKKKEKKEKKEKRKEKKEKRKKEKKKKEE

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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PETITION FOR WRIT OF CERTIORARI

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Seth R. Cohen

Smith, James, Rowlett & Cohen, L.L.P.

P.O. Box 990

Greensboro, NC 27402

(336) 274-2992

Counsel of Record for Petitioners

Norman B. Smith

Smith, James, Rowlett & Cohen, L.L.P.

P.O. Box 990

Greensboro, NC 27402

(336) 274-2992

Additional Counsel for Petitioners

Allen M. Blake

3000 Gulf to Bay Blvd., Ste. 203

Clearwater, FL 33759-3404

Additional Counsel for Petitioners

wor!

QUESTION PRESENTED

WHETHER THE EN BANC COURT BELOW ERRED

BY JUDICIALLY OVERRULING FEDERAL RULE

OF CIVIL PROCEDURE 54(b) BY HOLDING

THAT THE DISMISSAL OF FEWER THAN ALL

THE PARTIES PLAINTIFF IN AN ON-GOING

LAWSUIT RESTARTED THE STATUTE OF

LIMITATIONS FOR THE DISMISSED PARTIES,

EVEN THOUGH THE UNEQUIVOCAL AND

EXPRESS LANGUAGE OF RULE 54(b) STATES

THAT (1) THE RIGHTS OF THE DISMISSED

PARTIES ARE NOT TERMINATED UNTIL FINAL

JUDGMENT AS TO ALL PARTIES, AND (2)

THE INTERLOCUTORY ORDER REMAINS

SUBJECT TO REVISION.

LI8ST or PARTIES

Pursuant to Rules 14(b) and 29.6 of

the Supreme Court Rules, following is an

alphabetical list of the Petitioners in

this action:

1. David M. Armstrong —

a. L. Benson Barger

3 Wallace D. Black

4. Howard Brooks

S. Jerry A. Budd

6. Sonja M. Carter

re Dominick C. Cizek

8. Carol D. Clark-Iley

9. Charles H. Davis

10. Kenneth o. Giessuebel

11. Herold Pp. Glaser

12. Robert A. Havlish

13. Kumar Hinduja

14. Joseph c. Jett

15. Glenn E. Johnson

16. Robert C. Lerche

17. Calvin M. Lightner

18. George W. McGuirk

19. James W. McLean

20. William G. Murphy

21. Donald L. Prasky

22. tee es ete

23. Myrtle Y. Redding

24. Kenneth A. Richards

25. Russell G. Roberts

26. Linda L. Ryan

27. Victor W. Shaw

28. Linton W. Smith

29. Michael Sylvestri

30. Marlon K. Tarter

31. Delbert S. Turner

32. Edward W. Walsh

33. Joseph W. Williamson

-iii-

TABLE OF CONTENTS

QUESTION PRESENTED. . .. . ins i

LIST OF ALL a gos eee

TABLE OF CONTENTS iy Ae tal tee tea coe

ire oF SEES ceneenettees amas ae

OPINIONS BELOW. . es oar ame eet 1

JURISDICTION. .. Pe ee ew 1

STATUTES AND RULES INVOLVED . . 2

STATEMENT OF THE CASE. . ae 3

REASONS FOR GRANTING THE WRIT ° 9

CONCLUSION. .. iene a ee ae ae

APPRMDING 2 ¢ ie on ace OR ee ae Se

Report and Recommendation A1-A9

Opinion of the United States A1o

District Court, Middle

District of Florida

Opinion of the United States

Court of Appeals for the

Eleventh Circuit (Panel) A11-A40

Opinion of the United States

Court of Appeals for the

Eleventh Circuit (En Banc) A4l1-

A120

TABLE OF CASES AND AUTHORITIES

Cases Page

Utah, 414 U.S. 538 (1974) + . © . . 17

American Tierra Corp. v. City of

West Jordan, 840 P.2d 757

(Utah 1992) . . . . . . . . . . 17-18

138 F.3d 1354 (11th Cir.

1998) . . . . . . « . 8, 10-11, 14-18

Ansam Associates, Inc. v. Cola

Petroleum, Ltd, 760 F.2d 442

eo eae ee tg ae

Brown v. E.W. Bliss Co., 818 F.2d

1408. tou Gey Geet. 6k eae 13

Cc

Carson Carmichael, et al. v. Martin

Marietta Corp., et al., No. 93-0434-

Civ-ORLO18 (M.D. Fla. ) i a = . . > 4

Sen is. See Te sk os ss OS

Hanna _v. Plumer, 380 U.S. 460 (1965) 13

i , 523 F.2d 689

(7th Gir. 1975) “Sew Se: e 7 7 « > 17-18

King Corp., 631 F.2d 1367

(10th Car. 1979) ° . 7 ° « * 2 > 7 14

-Yy=

CASES PAGE

,

eee: Val. G27. (4086) ..... "Ser Seta ee

Sibbach v. Wilson & co., 312 U.S. 1

(T0685 a ee, a aaa.

F.2d 24 (D.C. Cir, SEER 36 eee 14

’

794-0 -Ry408 42877)... . oe |

oe eee Been. hopin iin. Si

28 U.S.C. §§ 2072(a), | ep, Y

elit ke S| |’ eine 3-5, 10, 15

*? U.3G~ S006... . 3-4, 10, 15

oP Vslste. G Meee of iii 5's

oF Vests 2 Oeeias ee

Rule 23 of the Federal Rules of Civil

Procedure . . Aiuis SS RIE De Cee oe

Rule 54(b) of the Federal Rules of Civil

FEOUIENTS. 4.4 4. co 8 © © © © + passin

Rule 10(a) of Supreme Court Rules .. 9

10 Wright Miller ¢ Kane,

i Cavan. . . + me

-vi-

OPINIONS BELOW

The Report and Recommendation of

the United States Magistrate Judge,

United States District Court, Middle

District of Florida, Orlando Division,

is not officially reported. The opinion

is reprinted in the appendix, infra.

The handwritten affirmance of the

_United States District eo

District of Florida, Orlando Division,

of the Report and Recommendation of the

Magistrate Judge is not officially

reported. The handwritten note is

reprinted in the appendix, infra.

The opinion of the United States

Court of Appeals for the Eleventh

Circuit is reported at 93 F.3d 1505

(11th Cir. 1996). This opinion is

reprinted in the appendix, infra.

The opinion of the United States

Court of Appeals for the Eleventh

Circuit, en banc, is reported at 138

F.3d 1354 (1ith Cir. 1998). This

opinion is reprinted in the appendix,

infra.

JURISDICTION

The United States Court of Appeals

for the Eleventh Circuit, en banc,

rendered its opinion on April 16, 1998,

reversing the panel decision of the

United States Court of Appeals for the

Eleventh Circuit.

This Court has jurisdiction to

review the judgment below pursuant to 28

U.S.C. § 1254(1).

The district court had original

jurisdiction pursuant to 29 U.s.c. §

STATUTES AND RULES INVOLVED

Rule 54(b) of the Federal Rules of

Civil Procedure:

Judgment Upon Multiple Claims or

Involving Multiple Parties. When

more than one claim for relief is

presented in an action, whether as

a clain, counterclain, cross-clain,

or third-party Claim, or when

final judgment as to one or more

but fewer than all of the claims or

Parties only upon an express

determination that there is no just

reason for delay and upon an

express direction for the entry of

judgment. In the absence of such

Claims or the rights and

liabilities of fewer than all the

parties shall not terminate the

action as to any of the claims or

Parties, and the order or other

form of decision is subject to

revision at any time before the

-2-

entry of judgment adjudicating all

the claims and the rights and

liabilities of all the parties.

29 U.S.C. § 216(b), as incorporated

by 29 U.S.C. § 626(b), in pertinent

part:

An action to recover the liability

_prescribed in either of the

- preceding sentences nay be———_—

maintained against any employer

(including a public agency) in any

Federal or State court of competent

jurisdiction by any one or more

employees for and in behalf of

himself or themselves and other

employees similarly situated. No

employee shall be a party plaintiff

to any such action unless he gives

his consent in writing to become

such a party and such consent is

filed in the court in which such

action is brought.

STATEMENT OF THE CASE

Each of the petitioners in this

case opted-in as a to an

existing lawsuit brought against

respondents under the Age Discrimination

in Employment Act ("ADEA"),

iMarietta

Corp., et al., Case NO. 93-4434-ciy-

ee ; ‘States District

Court for the Middle District of

Florida. (RE 1-1-4, RE 1-3-4) The

case had been brought by

individual Plaintiffs and on behalf of

others Similarly situated. Petitioners

case pursuant to 29 U.S.C. § 626(b),

incorporating by reference 29 U.S.C. §

216(b) (Fair Labor Standards Act).

Rule 23 of the Federal Rules of Civil

who does not opt-out is not a named

plaintiff. See Fed. R. Ciy. P.

23(C) (2). In contrast, under the ADEA

opt-in procedure, "No employee shall be

-4-

a party plaintiff to any such action

unless he gives his consent in writing

to become such a party and such consent

is filed in the court in which such

action is brought." 29 U.S.C. § 216(b)

(emphasis added).

In the Carmichael] case, the

plaintiffs alleged that defendants

violated the ADEA by dismissing them

from their long-term jobs.

On April 7, 1994, United States

District Judge G. Kendall Sharp entered

an order in the Carmichael case

dismissing without prejudice the claims

of the current petitioners on the theory

that they did not fit the narrow

criteria of similarly situatedness that

the court prescribed in the same order.

(RE 2-24-2 to 4; RE 2-11-14 to 22)

The April 7, 1994, order in the

Carmichael case specified that the

dismissals were without prejudice, but

did not set forth any time limit within

which to file a new lawsuit. (RE 2-11-

22)

On October 11, 1994, in the United

States District Court for the Middle

District of Florida, Orlando Division,

David M. Armstrong and other plaintiffs

commenced this action against

defendants. This case, no. 94-1066-Civ-

ORL-18, again alleged that petitioners

were dismissed from their positions of

employment with defendants in violation

of the ADEA.

-5=

Defendant Martin Marietta

Technologies, Inc., on January 17, 1995,

filed a motion for partial summary

judgment, Claiming that the petitioners

in this case, who had been dismissed

without prejudice from the Carmichae]

lawsuit, had failed to file the present

lawsuit within 90 days after their

dismissal from j - (RE 1-DC-pkt

Magistrate Judge Donald Pp. Dietrich

recommended on March 22, 1995, that the

motion for partial Summary judgment be

granted on the theory that the

petitioners had only 90 days within

which to file their new lawsuits after

being dismissed from the j

case, and that their claims were

therefore barred by the 90-day statute

of limitations because they did not file

their new lawsuits within that time

frame.

District Court Judge G. Kendall

Sharp adopted the magistrate judge’s

recommendation on April 5, 1995, ina

handwritten entry on the margin of

plaintiffs’ objection to the magistrate

judge’s recommendation.

Because 13 plaintiffs remained in

this case and were unaffected by Judge

Sharp’s partial Summary judgment order,

the dismissed Plaintiffs moved that the

-6-

court enter judgment under Rule 54(b) of

the Rules of Civil Procedure, so that

the case could become immediately

appealable. (RE 1-DC Dkt Sh-14) Judge

Sharp entered an order on September 14,

1995, granting the Rule 54(b) motion,

and a judgment on the same date

dismissing the current petitioners from

the action. (RE 2-29 and RE 2-30)

Notice of appeal was filed September 25,

1995. (RE 1-DC Dkt Sh-14)

A panel of the Eleventh Circuit

Court of Appeals, by a 2-1 vote,

reversed the district court in an

opinion filed September 11, 1996. 93

F.3d 1505 (11th Cir. 1996). The panel

majority held that a claimant dismissed

from a “class action" may: (1) within

the time remaining before the statute of

limitations runs, file an individual

lawsuit; (2) await final judgment in the

"class action," appeal from that final

judgment, and if not successful, file an

individual lawsuit within the time

remaining under the statute of

limitations at the time of dismissal; or

(3) move for interlocutory appeal before

the running of the statute of

limitations. 93 F.3d at 1509. The

court did not apply its new rules to

petitioners because the law had been

unsettled before the decision in the

instant case was announced. The court

held that the petitioners were permitted

to continue their individual lawsuits in

the present case, but were precluded

from appealing the dismissal order or

the final judgment in the prior lawsuit.

Id. at 1510.

The Eleventh Circuit Court of

Appeals, sitting en banc, reversed the

Panel decision. The en banc court

stated that the question presented was

whether, in the absence of controlling

authority, the Statute of limitations

begins to run again immediately upon the

district court’s entry of the

of an appeal from the order denying

Class certification. 4

, 138 F.3a 1374,

1378 (11th Cir. 1998).

previous lawsuit, the en banc court

affirmed the trial court’s decision.

plaintiffs does not terminate the action

“as to any of the claims or parties, ..

" See Fed. R. Civ. P. 54(b).

REASONS FOR GRANTING THE WRIT

I. INTRODUCTION

This Court should grant its writ of

certiorari to review the decision of the

en banc court because that court, in

judicially overruling Rule 54(b), "so

far departed from the accepted and usual

course of judicial proceedings, .. . as

to call for an exercise of this Court’s

supervisory power.” See Sup. Ct. R.

10(a).

Neither this court nor any other

court has squarely focused on the narrow

issue presented: Does the dismissal of

one plaintiff in a multi-plaintiff

lawsuit restart the statute of

limitations for the dismissed plaintiff,

even though Rule 54(b) of the Federal

Rules of Civil Procedure specifically

and expressly states that an order which

adjudicates fewer than all the claims or

the rights and liabilities of fewer than

all the parties does not terminate the

action, and that any such interlocutory

decision is subject to revision at any

time before the entry of judgment

adjudicating all claims and the rights

and liabilities of all parties?

The various courts below which have

considered this case have mischaracter-

ized it as one involving class action

-9-

lawsuits. As set out in the Statement

of the Case, this is not a class action

case. Instead, this is a case involving

multiple parties Plaintiff, pursuant to

the opt-in procedure of the ADEA.

29 U.S.C. § 626(b), incorporating by

reference 29 U.S.c. § 216(b). This

unfortunate mischaracterization has

resulted in the courts below focusing on

this Court’s class action jurisprudence.

The en banc court, relying on dicta in

Vv

, 138 F.3d 1374, 1378

(llth Cir. 1998),

Although petitioners do not believe

these class action cases are dispositive

Court, reliance on these cases, in any

event, does not necessitate the

unfortunate result of the en banc court.

In no case cited by the en banc court,

54(b), and what effect Rule 54(b) has on

the outcome of the legal analysis.

Indeed, not even the en banc court

discussed Rule 54(b), even though

petitioners’ brief and oral argument

focused heavily on this rule. The

obvious reason for the en banc court’s

refusal to address petitioners’ argument

is that, once Rule 54(b) is objectively

-10—-

analyzed, there can be only one result:

The dismissal of one plaintiff ina

multi-plaintiff lawsuit does not restart

the statute of limitations for the

dismissed party until final judgment has

been entered with regard to all claims

and all parties, including a party

plaintiff who has been dismissed by way

of an interlocutory order.

Petitioners, therefore, seek the

following simple, straightforward,

bright line rule: A plaintiff ina

multi-plaintiff lawsuit who is dismissed

from that lawsuit pursuant to a Rule

54(b) interlocutory order remains a part

of that lawsuit until there is a final

adjudication of all claims and the

rights and liabilities of all parties,

including the dismissed party plaintiff.

The statute of limitations, therefore,

as to the dismissed plaintiff remains

tolled until such final judgment is

entered.

II. THE PROVISIONS OF RULE 54(b) OF THE

FEDERAL RULES OF CIVIL PROCEDURE

ARE VALID AND MANDATORY: ABSENT AN

ENTRY OF FINALITY, NO INTERLOCUTORY

ORDER BECOMES FINALLY EFFECTIVE

UNTIL FINAL JUDGMENT.

Rule 54(b) of the Federal Rules of

Civil Procedure states, in pertinent

part:

In the absence of such determin-

ation and direction, any order or

other form of decision, however

-11-

designated, which adjudicates fewer

than all the claims or the rights

and liabilities of fewer than all

the parties i the

action as to any of the claims or

parties, and the order or other

form of decision is j

i before the

entry of judgment adjudicating all

the claims and the rights and

liabilities of all the parties.

Fed. R. Civ. P. 54(b) (emphasis added).

The Federal Rules of Civil

Procedure are prescribed by the Supreme

Court and approved by Congress. 28

U.S.C. §§ 2072(a), 2074(a). The Rules

of Civil Procedure have the force of

law. ¢ aan U.S.

1, 9 (1941); :

818 F.2d 1405, 1409 (8th cir. 1987).

This Court has never invalidated any of

the Rules of Civil Procedure. Hanna v,

Plumer, 380 U.S. 460 (1965).

Furthermore, this Court has

expressly held that Rule 54(b) is valid.

s o0a ULB.

427, 438 (1956).

No Rule 54(b) determination of

finality was made with respect to the

April 7, 1994, order of the district

court. Thus, even though that order

dismissed some of the Plaintiffs from

the case, it does not become a final

order until the j Case has

ended, and the dismissed Plaintiffs have

-12-

completed their appeal of the April 7,

1994 order.

As stated in the authoritative

treatise on civil procedure, "If the

court does not enter a Rule 54(b) order,

the litigant knows that waiting until

the disposition of the entire case

before seeking an appeal will not lose

him the right to have the order

reviewed." 10 Wright Miller & Kane,

Federal Practice and Procedure: Civil

§ 2654. If no Rule 54(b) certificate

issues, the court’s order remains

interlocutory, and no time for appeal or

anything else begins to run. [d,. at

§ 2661;

Burger King Corp., 631 F.2d 1367, 1370,

n.2 (10th Cir. 1979); Ansam Associates,

Inc. v. Cola Petroleum, Ltd, 760 F.2d

442, 445 (2nd Cir. 1985); Spann v.

, 899 F.2d 24, 31

(D.C. Cir. 1990).

The petitioners, therefore, have

the absolute right under Rule 54(b) to

await the final determination of the

Carmichael case before filing new

lawsuits. Until such time as all the

claims and the rights and liabilities of

all the parties, including these

petitioners, have been decided, these

petitioners, by the plain language of

Rule 54(b), have not been terminated

from the Carmichael] lawsuit.

Furthermore, as stated in no

uncertain terms in Rule 54(b), “the

order or other form of decision is

-13-

before

the entry of judgment adjudicating all

the claims and the rights and

liabilities of all the parties." Fed.

R. Civ. P. 54(b) (emphasis added). In

other words, by the Plain language of

the rule, the district court can reverse

itself at any time until final judgment.

Indeed, the en banc court concedes

that there are cases in which the

district court reconsiders and reverses

a denial of "class certification." The

en banc court noted that, although such

reconsideration and reversal is rare,

they do occur in approximately 3% of

cases in which class certification is

denied. See Armstrong, 138 F.3d at 1391

n.12.

‘The en banc court, ina startling

piece of legal analysis, however,

creates what appears to be a new

judicial standard, the Rule of Three

Percent. According to this new rule,

the petitioners in this case were not

reasonable by waiting more than 90 days

to file their new lawsuits because,

“motions for reconsideration of a denial

of class certification are granted in

less than 3% of cases in which

certification is denied." See id. The

en banc court gives no guidance as to

how high the percentage would need to

rise before it would be reasonable to

depend on the express language of Rule

54(b).

-14-

The language of Rule 54(b) is

simple and clear. The en banc court,

by judicially overruling this rule, has

created a dangerous situation not only

in the Eleventh Circuit, but possibly

throughout the nation. Based upon this

holding, any plaintiff in a multi-

plaintiff lawsuit who is dismissed prior

to the conclusion of the entire lawsuit

would be forced to file a protective

individual lawsuit to ensure that her

rights are protected. This Court, which

has never addressed this narrow issue,

should either grant its writ of

certiorari, or in the alternative,

simply reverse the en banc court per

curiam, in order to correct this

fundamental and unfortunate decision.

III. THIS COURT’S CLASS ACTION

JURISPRUDENCE, EVEN THOUGH NOT

APPLICABLE TO THIS CASE, IS NOT

DISPOSITIVE OF THE ISSUE BEFORE THE

COURT.

As stated throughout this petition,

the courts below, including the en banc

court, have consistently mischaracter-

ized this case as one involving a class

action. This is simply not the case.

There are no unnamed plaintiffs in this

case. Each and every petitioner, and

each and every plaintiff in the

Carmichael case, is a named plaintiff.

Each was required to affirmatively opt-

in to this case. See 29 U.S.C. §

626(b), incorporating by reference 29

U.S.C. § 216(b).

-15-

Even taking into account this

Court’s class action jurisprudence,

however, the en banc court incorrectly

concluded that the statute of

limitations begins to run upon a denial

of a class certification.

Ve

\

» 462 U.S. 345

(1983). The Purpose of such tolling is

to encourage class members reasonably to

rely on the class action to protect

their rights. Without tolling, class

members would have to take action prior

to the running of the statute of

limitations in order to protect

themselves in case class certification

is later denied, even when they may

reasonably expect to receive relief

through the already filed class action.

See id. at 350-51; i

Marietta Corp., 138 F.3d at 1380.

The en banc court, citing Crown

Cork, c

Vv. Utah, 414 U.S. 538 (1974) and United

432 U.S.

’

385 (1977), states that this Court has,

in dicta, opined that the statute of

limitations would begin upon denial of

Class certification. , 138

F.3d at 1381-832. Although these cases

could be read to Support the en banc

court’s analysis, there are three

crucial distinctions that the en banc

court ignores: (1) each of these three

-16-

cases involve class certifications, not

multi-plaintiff cases pursuant to an

opt-in procedure, (2) this Court, in

none of these cases, has ever focused on

or even considered the effect of Rule

54(b) on its legal analysis, and (3) in

each of these three cases, the narrow

issue now before this Court was never

addressed because the affected parties

had filed lawsuits or intervened in an

existing lawsuit within the appropriate

statute of limitations or relevant time

frame. Crown, Cork, 462 U.S. at 348;

United Airlines, 432 U.S. at 392;

, 414 U.S.

at 561. Perhaps it is because this

exact issue has never come before this

Court, the interplay between Rule 54(b)

and the tolling of a statute of

limitations has never been addressed.

Finally, it is important to note

that, even the en banc court recognized

that circuit courts of appeals are not

unanimous with regard to this issue.

See Armstrong, 138 F.3d at 1384 and

n.18. The en banc court candidly

concedes that the Seventh Circuit Court

of Appeals, in Jimenez v. Weinberger,

523 F.2d 689 (7th Cir. 1975), the Utah

Supreme Court in

, 840 P.2da 757

(Utah 1992), and various federal

district courts, disagree with its

analysis with regard to the tolling of

the statute of limitations. Id,

Therefore, even though petitioners

do not believe this case implicates

Class actions, there appears to be a

split in the circuits, and this Court

should issue its writ of certiorari to

resolve this split.

CONCLUSION

For the reasons set out above,

petitioners respectfully request this

Court grant its writ of certiorari to

correct the fundamental error made by

the en banc court below.

Respectfully submitted this 15

day of September, 1998.

Z ‘Ma

Seth R. Cohen

Smith, James, Rowlett ¢& Cohen, LLP

P.O. Box 990

Greensboro, NC 27402

(336) 274-2992

Counsel of Record for Petitioners

-~18-

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

DAVID M. ARMSTRONG, et al.,

Plaintiffs,

-vs- Case No. 94-1066-Civ-Orl-18

MARTIN MARIETTA CORPORATION,

MARTIN MARIETTA TECHNOLOGIES,

INC.,

Defendant.

REPORT AND RECOMMENDATION

TO THE UNITED STATES DISTRICT COURT:

This cause is before this Court

pursuant to endorsed reference dated

February 8, 1995. In accordance

therewith, this Court was directed to

make report and recommendation on the

Defendant’s' Motion for Pretrial

Summary Judgment, filed January 17, 1995

[Document #11]. This Motion is at issue

on the response of the Plaintiffs, filed

l

There are two named defendants in this

case. This Court assumes, as did the

Plaintiffs in their response, that this

Motion is being filed on the behalf of

both.'

A-1

February 1, 1995 [Document #15).* For

the reasons set forth hereafter, it is

respectfully recommended that the Motion

be GRANTED and that Summary judgment be

entered against Plaintiffs David M.

Armstrong, L. Benson Barger, Wallace p.

Black, Howard Brooks, Jerry A. Budd,

Sonja M. Carter, Dominick Cc, Cizek,

Carol D. Clark-Iley, Charles H. Davis,

Kenneth oO , Giessuebel, Herold P.

Glaser, Robert A. Havlish, Kumar

Hinduja, Joseph c. Jett, Glenn E.

Johnson, Robert c. Lerche, Calvin N.

Lightner, George W. McGuirk, James W.

McLean, William c. Murphy, Donald L.

Prasky, Clark c. Rains, Myrtle uU.

Redding, Kenneth A. Richards, Russell c.

Roberts, Linda L. Ryan, Victor w. Shaw,

Linton W. Smith, Michael Sylvestri,

Marlon K. Tarter, Delbert s. Turner,

Edward W. Walsh, and Joseph W.

Williamson, and in favor of the

Defendants.

PRIOR PROCEEDINGS AND FACTS

The Plaintiffs allege that the

Defendants, Martin Marietta Corporation

and Martin Marietta Technologies, Inc.,

(Martin), discriminated against them on

the basis of age in violation of the Age

2

The Defendant’s Supplemental Memorandum

of Law, filed February 3, 1995,

(Document #18], is stricken as an

impermissible reply. Local Rule

3.01(b).

A-2

Discrimination in Employment Act, 29

U.S.C. § 621 et seg., (ADEA). These 46

Plaintiffs have joined in filing

individual actions against Martin. The

Defendants seek the entry of summary

judgment against the Plaintiffs Carol

Clark-Iley, Glen Johnson, and Victor

Shaw, (the Shaw Plaintiffs), on the

basis that none of these Plaintiffs has

ever filed their claims with the EEOC.

As to Plaintiffs David M. Armstrong, L.

Benson Barger, Wallace D. Black, Howard

Brooks, Jerry A. Budd, Sonja M. Carter,

Dominick C. Cizek, Charles H. Davis,

Kenneth 0. Giesseubel, Herold P. Glaser,

Robert A. Havlish, Kumar Hinduja, Joseph

Cc. Jett, Robert C. Lerche, Calvin N.

Lightner, George W. McGuirk, James W.

McLean, William G. Murphy, Donald L.

Prasky, Clark C. Rains, Myrtle Y.

Redding, Kenneth A. Richards, Russell G.

Roberts, Linda L. Ryan, Linton W. Smith,

Michael Sylvestri, Delbert S. Turner,

Edward W. Walsh, and Joseph W.

Williamson (the Armstrong Plaintiffs),

as well as the Shaw Plaintiffs, summary

judgment is sought on the grounds that

these plaintiffs failed to file this

action within ninety (90) days of their

dismissal from the Carmichael case.?

“as to Plaintiff James W. McLean,

judgment is sought on the basis that he

failed to bring suit within ninety (90)

days of the receipt of his right to sue

letter.

A-3

In May 18, 1993, a former employee

of the Defendant, Raymond T. McGoldrick,

(McGoldrick), filed a charge of age

discrimination on behalf of himself and

other similarly Situated. All of the

Armstrong Plaintiffs have filed charges

with the EEoc. None of the Shaw

Plaintiffs has filed EEOC charges. A])

of the Plaintiffs in this case were

dismissed as class members in

Inc., Case No. 93-434-CIV-ORL-19. This

dismissal, which was without prejudice,

occurred on April 7, 1994. The instant

action commenced on October 11, 1994,

(Document #1], some 180 days after the

dismissal. No appeal was taken on that

Order.

ISSUES AND ANALYSIS

As to all Plaintiffs summary

judgment is Sought on the grounds that

EEOC determination of the individual’s

4

As to Plaintiff James WwW. McLean,

judgment is Sought on the basis that he

A-4

claim. 29 U.S.C. §626(e).° The

Defendants contend that such period

commenced upon the entry of the Order of

dismissal in Carmichael. The Plaintiffs

disagree, asserting that they were, and

remain, under no obligation to file this

case within ninety (90) days of their

dismissal from Carmichael] because the

Order dismissing them was not a final

appealable order. The Plaintiffs

maintain that they need not file this

action until ninety (90) days after the

conclusion of the appellate process in

Carmichael, which as a practical matter

may not be for a number of years.

It is settled that the running of

the ninety (90) day period within which

a Plaintiff must commence suit is tolled

during the period that there is a

pending class action in which the

Plaintiff is a putative class member.

Parker, 462 U.S. 345 (1983). The

rationale for this rule is simple; as

long as a class action is pending the

employer is on notice as to the claims

of all putative class members. Andrews

v. Orr, 851 F.2d 146, 150 (6th Cir.

1988). Further, it is reasonable for

putative class members to rely ona

pending class action to protect their

The Defendant does not contest, and

thus the Court assumes, that the

Plaintiffs herein filed suit in a timely

fashion in the Carmichael case.

A-5

rights. Griffin v. Singletary, 17 F.3d

356, 360 (11th Cir. 1994).

The single, unfailing requirement

set forth in every case which discusses

the matter of tolling during the

Class. E.g.: , 17

F.3d 356 (11th Cir. 1994). Putative is

defined as reputed; Supposed; commonly

esteemed. 1401

(4th ed. 1968). The Plaintiffs against

whom summary judgment is sought herein

were dismissed from the Carmichael class

because they did not satisfy the

requirements of that Class. Thus, these

Plaintiffs can no longer be considered

to be putative members of such class.

That being the case, is there any

sound reason why the Statutory period

Should remain tolled after these

Plaintiffs have been dismissed from the

Class? The answer is no. It is only

reasonable that the Defendants will

expect the dismissed Plaintiffs to

assert their individual Claims once they

have been removed from the Class, and to

° Additionally, to hold otherwise would

require putative class members to

protect their individual rights by

filing individual suits resulting in the

burden and inefficiency of potentially

needless multiple actions. See:

i onst. Co. v. Utah, 414

U.S. 538 (1974).

A-6

assume once the statutory filing period

has lapsed that no claims will be

brought. Further, it is also reasonable

to expect that Plaintiffs removed from a

class action will promptly act on their

individual claims, there being no good

reason for them to assume that their

interests are being protected by that

class action.

The Plaintiffs’ argument that

because the dismissal in the Carmichael

case was no a final order and appellate

rights remain that the statutory period

remains tolled reflects a

misunderstanding of the judicial purpose

for tolling. As discussed above,

tolling protects the reasonable

expectations of putative class

Plaintiffs, places a demand of

reasonable expectation on the Defendant,

and protects the courts from multiple

individual suits where a class action

exists that can afford the Plaintiffs

relief.’ None of these policy reasons

apply herein. Therefore, summary

judgment should be granted.

7

This Court recognizes that the

Plaintiffs contend that the Carmichael

class may afford them relief, assuming

Judge Sharp’s order of dismissal is

appealed, and the appellate court’s find

the order to be in error. However, at

present, and as of the date of dismissal

there exists no class which can afford

these Plaintiffs any relief.

A-7

The Defendant also seeks the entry

of summary judgment against the

Plaintiffs Carol Clark-Iley, Glen

Johnson, and Victor Shaw, (the Shaw

Plaintiffs), on the basis that none of

these Plaintiffs has ever filed their

Claims with the EEoc. Though summary

judgment should be entered against these

Plaintiffs for the reasons set forth

above, this asserted ground is without

merit.

As set forth above, a timely EEOC

by filing was made by McGoldrick

alleging class discrimination during the

Same time frame. This satisfies the

EEOC filing requirement even though the

Plaintiffs here in are Plaintiffs in a

different action than McGoldrick.

’

986 F.2d 446, 449-50 (11th Cir. 1993).

CONCLUSION AND RECOMMENDATION

The period during which the

Plaintiffs Statutory ninety (90) day

filing period wa: tolled expired when

they were no longer putative class

members, that being the date on which

they were dismissed from the

case. As such, as to the 32 identified

Plaintiffs, their claims having been

filed more than 180 days after their

dismissal are untimely, and summary

judgment should be entered against then.

Such relief is respectfully recommended.

Failure to file written objections

to the proposed findings and

recommendations contained in this report

A-8

within ten (10) days of the date of its

filing shall bar an aggrieved party from

attacking the factual findings on

appeal.

Respectfully submitted this the

22nd day of March, 1995.

OPINION OF THE UNITED STATES DISTRICT

COURT FOR THE MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

United States District Court Judge

Kendall Sharp hand wrote his decision

across the cover Page of Plaintiffs’

Objection to Recommendation of

Magistrate Judge. Judge Sharp’s

decision read as follows:

Class plaintiffs were no longer

putative members of the class, 90

day statute is applicable.

Magistrate order is affirmed and so

ordered. 5 April 95.

Signature of Judge Sharp.

A copy of Judge Sharp’s handwritten

note is attached.'

l

Please excuse the fact that the text

over which Judge Sharp wrote his opinion

does not comply with Supreme Court Rule

33. This page is included so that the

Court can see Judge Sharp’s actual

notation.

A-10

a

than al ’

eet

-“

2a »9

VA mrren STATES DISTRICT COURT Ca.

TOR THE MIDDLE DISTRICT OF FLORIDA -"

4 ORLANDO DIVISION Stee

ut I = RS et al.,

Of NP Ne Plaintiffs,

yw : Case No. 94-1066-CIV-ogi-

N MARIETTA CORPORATION,

t 4l., Stee)

ad td Defendants. Sex

of aig

oR, ee

Ae Pursuant to 28 U.S.C. § 636(b)(1), plaintiffs file this

Ky Peace objection to the report and recommendation of the United

W r nded that the claims of 33 of the plaintiffs be dismissed by

4 ee of this action not having been filed within 90 days after

m4 gente on which these plaintiffs were dismissed in Carmichael-v>—~

3

\\ gan Marietta corporation, 93-434-CIV-ORL~19.

giant

SUMMARY AND INTRODUCTION

2\ aN C

Voniv

2

2iHd S- Yuy 8

G3 Nd

tates Magistrate Judge dated March 22, 1995, to the extent it is

)- The magistrate judge does not cite any case law that would

require the result he recommends. He mentions two relevant cases,

» 462 U.S. 345 (1983),

and Griffin yv. Singletary, 17 F.3d 356 (lith Cir. 1994), but the

first of these cases does not require the result reached by the

magistrate judge, and his recommendation is flatly inconsistent

with the second case. The magistrate judge ignores altogether the

controlling provisions of Rule 54(b) of the Rules of Civil

Procedure, establishing that the April 7, 1994, order in the

BEST AVAILABLE COPY

David M. ARMSTRONG, L. Benson Barger,

Wallace D. Black, Howard Brooks, Jerry

A. Budd, Sonja M. Carter, Dominick c.

Cizek, Carol pD. Clark-Iley, Charles H.

Davis, Kenneth o . Giessuebel, Herold P.

Glaser, Robert A. Havlish, Kumar

Hinduja, Joseph C. Jett, Glenn E.

Johnson, Robert c. Lerche, Calvin N.

Lightner, George W. McGuirk, James w.

McLean, William c. Murphy, Donald L.

Prasky, Clark c. Rains, Myrtle vu.

Redding, Kenneth A. Richards, Russell c.

Roberts, Linda L. Ryan, Victor w. Shaw,

Linton wW. Smith, Michael Sylvestri,

Marlon K. Tarter, Delbert s. Turner,

Edward W. Walsh, and Joseph wW.

Williamson, Plaintiffs-Appellants,

Constantino A. Barbitta, James R.

Baxter, Robert pD. Biggs, James H. Black,

Rick L. Bordner, Rodmond M. Cookson,

David B. Pool, Roger A. Purcell, Rama Ss.

Singh, Charles M. Smith, Robert c.

Swanson, William F. Waldrop, Kenneth E.

Welch, Plaintiffs,

Ve

MARTIN MARIETTA CORP, Martin Marietta

Technologies, Inc., Defendants-

Appellees.

No. 95-3255

United States court Of Appeals

Eleventh Circuit

September 11, 1996.

A-11

Before HATCHETT and ANDERSON, Circuit

Judges, and WOOD, Senior Circuit Judge.

HATCHETT, Circuit Judge.

As a matter of first impression in

this circuit, the court outlines options

that plaintiffs, who have been dismissed

from class actions after opting-in to

the class actions, may take to protect

their right to litigate their claims

individually before a statute of

limitations runs. We affirm in part,

reverse in part, and remand.

FACTS AND PROCEDURAL HISTORY

In 1993, David M. Armstrong and

thirty-two other former employees of

Martin Marietta Corporation and Martin

Marietta Technologies, Inc.,

(collectively "Martin Marietta") opted

in an Age Discrimination in Employment

Act (ADEA) class action captioned

Carmichael et al. v. Marietta

Technologies, Inc., case no. 94-100-Civ-

Orl-18. On April 7, 1994, the district

court dismissed Armstrong and the other

thirty-two employees’ claims without

prejudice concluding that they were not

similarly situated to the Carmichael

plaintiffs. On October 11, 1994, more

than ninety days after the district

court’s order of dismissal, Armstrong,

the thirty-two employees, and twelve

additional former employees of Martin

Marietta (hereinafter the "Armstrong

plaintiffs) filed this ADEA action in

the Middle District of Florida alleging

A-12

that Martin Marietta engaged in age

discrimination when it laid them off in

1988 as part of its large scale work

force reduction. on October 25, 1994,

the Armstrong Plaintiffs filed an

amended complaint adding an additional

plaintiff making the number of

Plaintiffs in this action forty-six.

On January 17, 1995, Martin

Marietta filed a motion for partial

Summary judgment against twenty-nine of

the forty-six Armstrong plaintiffs on

ITley, Glenn Johnson and Victor Shaw, on

the additional ground that they each

failed to file a charge of

discrimination with the Equal Employment

Opportunity Commission (EEOC) within 300

days of the alleged unlawful practice,

in violation of 29 U.S.C. 626(d) (2)

(1994).

On March 22, 1995, a magistrate

judge issued a report recommending that

the district court grant Martin

Marietta’s partial Summary judgment

motion. The magistrate judge concluded

that the ninety-day filing period

commenced to run on the Armstrong

Plaintiffs’ claims when the district

court dismissed them from the Carmichael

Class action; therefore, their claims

A~-13

were time barred. The magistrate judge

also recommended that the district court

grant summary judgment against Marlon K.

Tarter who was not included in Martin

Marietta’s summary judgment motion.

Finally, the magistrate judge concluded

that the "single-file" rule did not

require plaintiffs Johnson, Clark-Iley

and Shaw to file charges of

discrimination with EEOC rejecting

Martin Marietta’s alternative ground for

partial summary judgment. On May 10,

1995, the district court adopted the

magistrate judge’s report and

recommendation and granted partial

summary judgment in favor of Martin

Marietta. On September 14, 1995, the

district court amended its order and

entered final judgment pursuant to Rule

54(b). This appeal followed.

CONTENTIONS

The Armstrong plaintiffs contend

that the ninety-day filing period for

bringing an ADEA action in district

court remained tolled after their

dismissal from the class action because

the district court did not enter a final

judgment. In the alternative, the

Armstrong plaintiffs contend that this

court should excuse their failure to

file their individual lawsuits within

the filing period because they did not

receive notice that the ninety-day

filing period resumed upon their

dismissal from the class action. In

response, Martin Marietta contends that

the "interlocutory" status of the order

A-14

dismissing the Armstrong plaintiffs from

the Carmichael action does not affect

the Armstrong plaintiffs’ obligation to

file their individual lawsuits within ~

ninety-days of their dismissal from the

Class action. Martin Marietta also

contends that this court should not

excuse the Armstrong plaintiffs’ failure

to file their individual ADEA lawsuit

within the statute of limitations

period.

ISSUES

The sole issue we address is

whether the tolling of the ninety-day

statute of limitations Of the ADEA, due

to the claimants’ membership in the

Class action, remains tolled when the

district court dismisses claimants from

the pending class action in an

interlocutory order.

DISCUSSION

[2,2] We review the district

court’s grant of summary judgment de

novo. Johnson v. Arros Co., 75 F.3d

1528, 1531 (11th Cir. 1996). Title 29

U.S.C. § 626(e) requires an ADEA

Claimant to file a lawsuit within ninety

days of receiving notice of the right to

sue from the EEoOc. Membership in a

pending class action, however, tolls the

ninety-day period for filing an

individual lawsuit. See Crown, Cork &

Seal Co., Inc. v. Parker, 462 U.S. 345,

352-53, 103 S.ct. 2392, 2396-97, 76

L.Ed.2d 628 (1983). Title 29 U.S.c. 6

A-15

216(b) authorizes an ADEA claimant to

commence a class action or opt into an

existing class action. See 26 U.S.C. §

626(b) (1994) (borrowing the Fair Labor

Standards Act of 1938, 29 U.S.C. §

216(b)); See also Grayson v. K Mart

Corporation, 79 F.3d 1086, 1097 (11th

Cir. 1996) (an ADEA claimant must

demonstrate that a reasonable basis

exists for his or her claim of class-

wide age discrimination and make

detailed allegations, supporting those

allegations with affidavits). As the

Supreme Court explained in Crown, Cork &

Seal Co.:

‘(T)he commencement of a class

action suspends the applicable

statute of limitations as to all

asserted members of the class who

would have been parties had the

suit been permitted to continue as

a class action.’ Once the statute

of limitations has been tolled, it

remains tolled for all members of

the putative class until class

certification is denied.

Crown, Cork & Seal Co., 462 U.S. at 353-

54, 103 S.Ct. at 2397-98 (quoting

American Pipe & Construction Co. v.

Utah, 414 U.S. 538, 554, 94 S.Ct. 756,

766-67, 38 L.Ed.2d 713 (1974))

(citations omitted). The tolling of the

ninety-day statute of limitations

protects the claimant in the event class

certification is ultimately denied or

vacated. Courts provide this protection

because it is reasonable for such

A-16

Claimants to rely on the named

Plaintiffs in the pending class action

to protect their rights. Crown, Cork &

Seal Co., 462 U.S. at 352-53, 103 S.ct.

at 2396-97 ("Rule 23 both permits and

encourages class members to rely on the

named plaintiffs to press their

Claims."); Griffin v. Singletary, 17

F.3d 356, 360 (11th Cir. 1994) ("Insofar

as the individual claims are concerned,

punitive class members should be

entitled to rely in a class action as

long as it is pending."). Neither this

court nor other circuits, however, have

addressed whether the ninety-day statute

of limitations period remains tolled

when the district court dismisses

Claimants from a pending class action in

an interlocutory order. This question

is of particular importance because at

the time of dismissal Claimants cannot

appeal the district court’s dismissal

order as of right because it is not a

final judgment. See Fed.R.Civ.P. 54(b).

In this case, the district court

held that section 626(e) bars the

Armstrong plaintiffs’ individual ADEA

lawsuit because they failed to commence

their action within ninety days of

receiving notice of their dismissal from

the Carmichael class action. The

district court found that in order for

the Armstrong Plaintiffs to timely file

their individua] lawsuits under section

626(e), they were required to file a

lawsuit on or before July 7, 1994; the

Armstrong plaintiffs, however, filed

their lawsuit on October 11, 1994. The

A-17

Armstrong plaintiffs argue that the

district court erred in holding that

section 626(e) barred their ADEA claims.

They contend that the ninety-day filing

period remained tolled even after their

dismissal from the class action because

the district court’s order constituted

an unappealable order under rule 54(b)

of the Rules of Civil Procedure.

Specifically, the Armstrong plaintiffs

argue that the dismissal order did not

have the effect of commencing the

ninety-day statute of limitations

because the district court in Carmichael

dismissed their claims without

prejudice; therefore, the district court

could have vacated its order any time

before final judgment. See Fed.R.Civ.P.

54(b). Based on this reasoning, the

Armstrong plaintiffs contend that

tolling of the ninety-day filing period

does not end until the district court

enters a final judgment in the

Carmichael action.

Martin Marietta concedes that the

Armstrong plaintiffs’ status as opt-in

plaintiffs in the class action tolled

the ninety-day filing period under

Section 626(e), but argues that the

tolling of the ninety-day filing period

ceased and the ninety-day filing period

resumed when the district court

dismissed the appellants from the

Carmichael action. Martin Marietta also

contends that this is a just result

because the Armstrong plaintiffs could

not reasonably rely on the class to

A-18

represent their interests after

receiving notice of their dismissal.

(3,4) As previously discussed,

courts will not toll the running of the

statute of limitations if claimants

unreasonably relied on the pending class

action to protect their rights. Crown,

Cork & Seal Co., 462 U.S. at 352-53, 103

S.Ct. 2396-97. Thus, the centra

question in this case is whether it is

reasonable for claimants to rely ona

pending class action to protect their

rights after their dismissal from the

class action when the district court’s

dismissal order is subject to revision

at any time before the entry of final

judgment and is unappealable until entry

of final judgment. Federal Rule of

Civil Procedure 54(b) provides:

any order or other form of

decision, however designated, which

adjudicates fewer than all the

Claims or the rights and

liabilities of fewer than all the

parties shall not terminate the

action as to any of the claims or

parties, and the order or other

form of decision is subject to

revision at any time before the

entry of judgment adjudicating all

claims and the rights and

liabilities of all the parties.

Fed.R.Civ.P. 54(b) (emphasis added).

Although rule 54(b) permits the court,

upon a party’s motion for entry of final

judgment, to direct final judgment as to

A-19

one or more but fewer than all the

parties in a class action where "no just

reason for delay exists," the court is

not required to enter final judgment in

an action involving multiple parties.

Fed.R.Civ.P. 54(b)

{5} In the context of class

actions, the “interlocutory” status of

the dismissal order does not negate the

fact that the claimants lose their

membership in the class action. This

loss of membership, however, may only be

temporary because the district court may

reconsider its dismissal order and

vacate the order, or upon final judgment

the claimants may appeal their dismissal

and the appellate court may reverse the

district court’s decision. For these

reasons, we hold that claimants

dismissed from a class action may: (1)

within the remaining time before the

statute of limitations runs, file an

individual lawsuit thereby rendering any

appeal of their dismissal from the class

action moot; or (2) await final judgment

in the class action, appeal from that

final judgment, and if not successful

file an individual lawsuit within the

time that remained at the time of their

dismissal; or (3) before the running of

the statute of limitations, move for an

interlocutory appeal. If the district

court certifies the issue for

interlocutory appeal, interlocutory

appeal is taken, and the district court

is affirmed, tolling of the running of

the statute of limitations ceases and

the claimant may file an individual

A-20

lawsuit before the statute of

limitations runs. [If the district court

declines to certify the issue for appeal

or an interlocutory appeal is not taken,

the claimant may file an individual

lawsuit within the time remaining or

exercise option 2 and await final

judgment.

Our holding today promotes section

216(b) because it eliminates the need

for claimants who intend to appeal their

dismissal from the class action to file

individual lawsuits while awaiting final

judgment and avoids "needless

multiplicity of actions - precisely the

situation that (class actions] and the

tolling rule of American Pipe were

designed to avoid." Crown, Cork & Seal

Co., 462 U.S. at 351, 103 S.ct. at 2396.

In addition, this requirement

discourages claimants who have opted

into a pending class and are ultimately

dismissed from taking no action during

the pendency of the class action when

they have no intention of appealing

their dismissal from the class.

Moreover, the interests of justice

necessitate our extending the

application of the class action tolling

rule for several reasons. First,

"(C]lass members who do not file [an

individual lawsuit] while the class

action is pending cannot be excused of

Sleeping on their rights." Crown, Cork

& Seal Co., 462 U.S. at 352, 103 S.ct.

at 2397. Second, ending the tolling of

the statute of limitations under these

A-21

circumstances, in effect, forces the

claimants upon dismissal from a class

action in an interlocutory order to

choose between filing an individual

lawsuit within the statute of

limitations period or exercising their

right to appeal their dismissal. Third,

and most importantly, the tolling of the

ninety-day statute "creates no potential

for unfair surprise" because the class

complaint notifies the defendants of the

substantive claims, the number and

"‘generic identities of the potential

plaintiffs who may participate in the

judgment.’" Crown, Cork & Seal Co., 462

U.S. at 353, 103 S.Ct. at 2398 (quoting

American Pipe, 414 U.S. at 555, 94 S.Ct.

at 767-68).

{6) If we applied this new rule of

law to this case, section 626(e) would

bar the Armstrong plaintiffs’ individual

actions because the Armstrong plaintiffs

filed their individual ADEA lawsuit

after the ninety-day statute of

limitations had expired but before final

judgment. We find this result unjust

because the law prior to our holding

today was silent on this issue. We

therefore conclude that the Armstrong

plaintiffs may continue in their

individual lawsuits in this case, but

may not appeal the dismissal order or

the final judgment in the Carmichael

class action. Accordingly, we reverse

the district court’s conclusion of law

that section 626(e) bars the individual

ADEA lawsuit as to these plaintiffs.

A-22

We find that our holding today

renders the Armstrong plaintiffs’

remaining arguments moot; therefore, we

summarily reject them without

discussion.

CONCLUSION

For the foregoing reasons, we

reverse the district court’s grant of

summary judgment against the Armstrong

plaintiffs and remand for further

proceedings consistent with this

opinion.

REVERSED and REMANDED

ANDERSON, Circuit Judge,

dissenting:

Because I believe the rule created

by the majority is inconsistent with

Supreme Court precedent and unjustified

by considerations of policy, I

respectfully dissent. I would have

affirmed the district court by holding

that the tolling period ceased, and thus

the statute of limitations began to run

again, as soon as the district court

excluded appellants as members of the

Carmichael class action.

The majority’s holding - that the

statute of limitations remains tolled

through completion of the appeals

process in the names plaintiffs’ case -

conflicts with Supreme Court precedent.

In American Pile & Constr. Co. yv. Utah,

414 U.S. 538, 94 S.ct. 756, 38 L.Ed.2da

A-23

713 (1974), the State of Utah filed a

Class action antitrust complaint with

just eleven days left to run in the

limitations period. Several months

later, the district court entered an

order denying class certification,

because of the failure to satisfy the

numerosity requirement of Fed.R.Civ.P.

23(a) (1). Eight days after this order,

several state and local agencies who had

been putative class members moved to

intervene in the action to become

plaintiffs. The Court held that the

filing of the original class action

complaint "suspended the running of the

limitations period only during the

pendency of the motion to strip the suit

of its class action character." Id. at

561, 94 S.Ct. at 770 (emphasis added).

The Court explained that "the

intervenors thus had 11 days after the

entry of the order denying them

participation in the suit as class

members in which to move for permission

to intervene." Id. Although apparently

there was no argument that tolling

should continue thereafter because the

order denying class status was

interlocutory, and thus it might be said

that the Court did not squarely reject

such an argument, surely the Court

assumed that the crucial time for

tolling to end was the district court’s

order denying class certification, not

some later final order.

In Crown, Cork & Seal Co., Inc. v.

Parker, 462 U.S. 345, 103 S.Ct. 2392, 76

L.Ed.2d 628 (1983), the Court applied

A-24

the American Pipe tolling rule not only

for persons who sought to intervene in

the named plaintiffs’ case after class

certification was denied, but also for

persons who wished to file separate

suits. Within ninety days after the

district court denied class

certification in the Title VII action,

but almost two years after receiving a

right to sue notice from the EEOC,

respondent Parker filed an individual

Title VII complaint. By explaining that

Parker “retained a full 90 days in which

to bring suit after class certification

was denied," id. at 354, 103 S.Ct. at

2398 (emphasis added), the Court

indicated that the tolling of the

statute of limitations ceased as soon as

the district court denied class

certification, and not when a final

decision on the merits was reached.'

The first sentence of the opinion

reveals the Court’s belief that the

statute of limitations recommences when

the district court denies Class

certification, not at some later time:

The question presented in this case is

whether the filing of a class action

tolls the applicable statute of

limitations and thus permits all members

of the putative class to file individual

actions in the event that class

certification is denied, provided, of

course, that those actions are

instituted within the time that remains

A-25

In United Airlines, Inc. v.

McDonald, 432 U.S. 385, 97 S.Ct. 2464,

53 L.Ed.2d 423 (1977), the district

court denied class certification ina

Title VII case, and the named plaintiffs

successfully litigated their case to a

settlement. Eighteen days after the

district court entered a judgment of

dismissal upon the settlement, a

putative class member filed a motion to

intervene for the sole purpose of

appealing the district court’s earlier

denial of class certification. The

Court held that the motion was timely

under Fed.R.Civ.P. 24 because it was

filed "within the [30 day] time period

in which the named plaintiffs could have

taken an appeal." In its analysis, the

Court addressed the defendant’s argument

that the intervenor had no interest in

the litigation because the statute of

limitations had expired. The Court

emphasized that the purpose of the

motion was to appeal the denial of class

certification, and not to litigate an

individual claim:

This [statute of limitations]

argument might be persuasive if the

respondent had sought to intervene

in order to join the named

plaintiffs in litigating her

individual claim .. ., for she

then would have occupied the same

on the limitations period.

Id. at 346-47, 103 S.Ct. at 2394.

A-26

position as the intervenors in

American Pipe. But the later

motion to intervene in this case

was for a wholly different purpose.

That purpose was to obtain

appellate review of the District

Court’s order denying class action

status ..., and the motion

complied with, as it was required

to, the time limitation for lodging

an appeal. ... Success in that

review would result in the

certification of a class, the named

members of which had complied with

the statute of limitations; the

respondent is a member of that

class against whom the statute had

not run at the time the class

action was commenced.

Id. at 392, 97 S.Ct at 2468-69 (footnote

omitted). The passage quoted above

strongly implies that the statute of

limitations for suing in one’s own name

begins to run again as soon as the

district court denies class

certification, although an excluded

putative class member whose individual

Claim is barred by the statute of

limitations may still appeal the denial

of class certification. |

In addition to the Supreme Court

precedent discussed above, at least two

federal appellate courts have rejected

the argument that the statute of

limitations for filing an individual

Claim should remain tolled through an

unsuccessful appeal of the denial of

A-27

Class certification. See Nelson v.

County of Allegheny, 860 F.Supp. 1080,

1084 (W.D.Pa. 1994) ("({T]he claims of

the plaintiff in United Airlines only

survive as part of the class action and

only if the decertification order is

reversed on appeal."). aff’d, 60 F.3d

1010 (3d Cir.1995) (holding that the

tolling of the statute of iimitations

ceased upon the district court’s order

denying class certification, and did not

continue through completion of the

appeals process), cert. denied, U.S.

, 116 S.Ct. 1266, 134 L.Ed.2d 213

(1996); Calderon v. Presidio Valley

Farmers Ass‘’n, 863 F.2d 384, 390 (5th

Cir.) (per curiam) (holding that the

statute of limitations begins to run

again upon the district court’s original

denial of class certification, even if

the district court later reconsiders the

issue and certifies a class), cert.

denied, 493 U.S. 821, 110 S.Ct. 79, 107

L.Ed.2d 45 (1989).

Considering the case law discussed

above, I would hold that the statute of

limitations began to run again as soon

as the district court excluded

appellants as members of the Carmichael

class action. Moreover, several

considerations of policy persuade me

that the result reached by the majority

is unwise, and that the court should

have adopted the simpler approach I

advocate.

- Tolling the statute of limitations

while a class action is pending

A-28

encourages reasonable reliance on the

named plaintiffs to protect the

interests of the putative class members.

See Crown, Cork & Seal, 462 U.S. at 362-

63, 103 S.Ct. at 2397 ("Class members

who do not file suit while the class

action is pending cannot be accused of

sleeping on their rights; Rule 23 both

permits and encourages class members to

rely on the named plaintiffs to press

their claims."). In my view, after the

district court enters the order denying

class action status, reliance on the

named plaintiffs is no longer

reasonable, and the excluded putative

class members should be on notice that

they must act to protect their rights.

See United Airlines, Inc., v. McDonald,

432 U.S. 385, 399, 97 S.Ct. 2464, 2472,

53 L.Ed.2d 423 (1977) (Powell, Jr.,

dissenting). According to the majority,

however, continuing to toll the statute

of limitations after denial of class

certification is justified: the denial

of class action status "may be only

temporary because the district court may

reconsider its dismissal order and

vacate the order, or upon final judgment

of the claimants may appeal their

dismissal and the appellate court may

reverse the district court’s decision."

Maj. Op. at 3460. To the contrary, I

find it difficult to believe that a

reasonable person would rely on the hope

that some day a court might determine

that the suit should have proceeded as a

Class action. When the district court

A-29

denies class certification,* the named

plaintiffs no longer have a duty to

advance the interests of the excluded

putative class members. See

Fed.R.Civ.P. 239(c)(1), advisory

committee’s note (explaining that the

trial court’s order denying class action

status "strip[({s] (the suit) of its

character as a class action," thus

requiring the litigation to proceed as a

non-class action, even though the

district court may change its mind and

certify a class at any time before a

decision on the merits); Pearson v.

Ecological Science Corp., 522 F.2d 171,

177 (5th Cir.1975) (rejecting the

argument that the interlocutory nature

of the district court’s order denying

Class certification requires the named

plaintiffs to exercIse a continuing

fiduciary duty to the putative class

members). Although it is possible that

the district court may reconsider its

order denying class certification, or

that an appellate court may ultimately

reverse it, district courts have broad

discretion with respect to such rulings.

: Technically speaking, the district

court in the instant case did not deny

class certification altogether; rather,

it certified a narrow class that did not

include appellants as members. As a

shorthand, I will refer in this opinion

to the more common situation where the

district court denies class

certification altogether.

A-30

See, eg., Jones v. Fireston Tire &

Rubber Co., Inc., 977 F.2d 927, $31

(11th Cir.1992) (citing cases for the

proposition that "[a] district court’s

denial of a class certification will not

be disturbed absent an abuse of

discretion"), cert. denied, 508 U.S.

961, 113 S.Ct. 2932, 124 L.Ed.2d 682

(1993). Thus, reliance on the

possibility of a change in the order

denying class certification is

ordinarily not reasonable.* For the

foregoing reasons, I believe that

tolling the statute of limitations after

the district court denies class

certification is unnecessary to protect

any reasonable reliance by putative

class members on their former class

representatives.

While tolerating unreasonable

reliance by putative class members on

Furthermore, it could take years for

the named plaintiffs’ case to reach

final judgment on completion of the

appeals process, and there are no

guarantees that the named plaintiffs

will prevail on the merits (or obtain a

favorable settlement). Thus, even if

the tolling of the statute of

limitations is extended as contemplated

by the majority, many putative class

members will protect themselves by

filing an individual suit soon after the

district court denies class

certification.

A-31

their former class representatives, the

majority’s extended tolling rule creates

a substantial risk of unfair prejudice

to defendants. Statutes of limitations

are intended to protect defendants by

preventing "the revival of claims that

have been allowed to slumber until

evidence has been lost, memories have

faded, and witnesses have disappeared."

Order of Railroad Telegraphers v.

Railway Express Agency, 321 U.S. 342,

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

(1944). The majority’s rule will

unfairly prejudice at least some

defendants by extending the tolling of

the limitations period through the

completion of an appeal of the class

certification decision. The statute of

limitations conceivably could remain

tolled for several years, especially

under the majority’s option 2 where no

interlocutory appeal occurs. See Nelson

v. County of Allegheny, 60 F.3d 1010,

1013 (3d Cir.1995) (holding that such an

extended tolling period would be

"unreasonable"), cert. denied, 0.8.

, 116 S.Ct. 1266, 134 L. Ed. 2d 213

(1996). The potential length of the

delay certainly increases the

probability of lost evidence, faded —

memories, missing witnesses, and other

forms of prejudice to the defendant. Of

course, the American Pipe tolling rule

also causes some delay, even if the

tolling ceases as soon as the district

court denies class certification.

However, the length of the delay (and

hence the risk of prejudice) is much

smaller, in part because Fed.R.Civ.P.

A-32

23(c)(1) directs the district court to

make the class certification decision

“[a])s soon as practicable after the

commencement of an action brought as a

class action." See American Pipe, 414

U.S. at 562, 94 S.Ct. at 770 (Blackmun,

J., concurring) (noting that district

courts can make the American Pipe rule

more fair to defendants, inter alia, by

making the class certification decision

promptly).

Because I believe it is

unreasonable for plaintiffs to rely on

an action after being dismissed from it,

and because I believe the majority’s

rule unfairly prejudices defendants, I

would end the tolling of the statute of

limitations as soon as the trial court

denies class certification. Thus, when

the district court denies class

certification, I would require the

dismissed class member to file an

individual suit (or intervene to become

a party in the named plaintiffs’ case)

within the time remaining in the statute

of limitations period. If the claimant

also wished to appeal his or her

exclusion from the class, he or she

could file a motion pursuant to

Fed.R.Civ.P. 54(b) (or 28 U.S.C.

§ 1292(b)) seeking the class action

judge’s permission to file an

interlocutory appeal. The claimant

could then request a stay of his or her

individual lawsuit pending the outcome

of the class certification appeal.

Although a decision whether to grant a

stay is a matter of discretion with the

A-33

eT

a strong argument for a stay if the

class action judge allowed an

interlocutory appeal of the class

certification issue and the claimant

could demonstrate that there was merit

to the interlocutory appeal. My

approach thus depends on the sound

discretion of district judges: the

discretion of the class action judge to

allow an interlocutory appeal in cases

where there is some hope for a

successful appeal, and the discretion of

the individual suit judge to stay

proceedings pending the outcome of an

appeal if such a stay would serve the

interests of justice.

district court, the claimant would have |

The foregoing discussion

demonstrates that the approach I

advocate is supported by strong Supreme

Court dicta, by the square holdings of

two circuit courts of appeal, and by

relevant policy considerations. I also

respectfully submit that the rule set

forth by the majority contains

unnecessary ambiguities and

complexities.

As I understand it, the majority

offers putative class members the.

following three options after the

district court enters the order denying

them participation in the class action:

(1) They may file an individual lawsuit

within the remaining time before the

statute of limitations expires. The

majority apparently contemplates that

A-34

the tolled statute of limitations would

recommence its running at the time of

the district court’s order denying class

certification.* The majority opinion

also indicates that filing the

individual suit operates as a waiver of

the right to participate in any appeal

regarding the denial of class

certification;> or

The majority makes this point clear in

its treatment of the facts of the case.

See Maj. Op. at 3461 ("If we applied

this new rule of law to this case, [the

statute of limitations] would bar the

Armstrong plaintiffs’ individual actions

because the Armstrong plaintiffs filed

their individual ADEA lawsuit after the

ninety-day statute of limitations had

expired but before final judgment.").

Also, in its description of option 1,

the majority states that the individual

suit should be filed "within the

remaining time before the statute of

limitations runs."

I infer this "waiver" concept from the

majority’s description of option 1,

which states that the filing of an

individual suit renders "moot" any

appeal regarding the denial of class

certification. I think the majority is

creating a wavier, because it is not

clear how the concept of mootness would

operate in this context. Both ordinary

principles of mootness and the dicta in

United Airlines, 432 U.S. at 392, 97

A-35

ne ee eT

(2) They may await final judgment in

the named plaintiffs’ case, intervene

therein and appeal from the earlier

order denying class certification.® If

that appeal is unsuccessful, they may

then file an individual suit within the

time that remained as of the district

court’s order denying class

certification.’ In other words, after

S.Ct. at 2468-69, suggest that there is

no mootness. (The doctrine of res

judicata, or the related doctrine of

collateral estoppel, might apply when

the individual suit is simply filed.)

6

It is not clear what happens if the

putative class members choose not to

appeal their exclusion from the class

(e.g., if the defendant prevails on the

merits). I presume that the statute of

limitations begins to run again upon the

expiration of the time for filing an

appeal from the final judgment in the

named plaintiffs’ case.

7

The majority’s opinion does not

explain the exact point at which the

statute of limitations begins to run

again. For example, does it recommence

on the date of the appellate court’s

opinion, or when the time for seeking

certiorari expires? The appropriate

time would probably be when no further

appeals (or rehearings) are possible,

which of course entails the maximum

delay before the statute of limitations

A-36

the district court denies class

certification, the statute of

limitations for filing an individual

suit remains tolled until the named

plaintiffs’ case reaches final judgment

and no further appeals with respect to

the denial of class certification are

possible;® or

would recommence.

8

To say that the statute of limitations

remains "tolled" this entire time is not

completely accurate, because the

majority apparently contemplates that no

individual suits may be filed in the

time period falling between options 1

and 2. The instant case provides an

example. The Armstrong plaintiffs filed

this suite more than ninety days after

the district court’s order dismissing

them from the Carmichael class action;

thus, they are too late to exercise

option 1. However, their suit was filed

before the Carmichael case reached final

judgment; thus, they are too early to

exercise option 2. Unwary plaintiffs

who file suit in the interim period

between options 1 and 2 will have their

individual suits dismissed: should the

dismissal be with prejudice (because the

statute of limitations has expired), or

without prejudice (because under option

2 the statute of limitations will

resurrect after the named plaintiffs’

case reaches final judgment)? The

majority apparently contemplates that

A-37

(3) They may move to intervene in the

named plaintiffs’ case in order to

pursue an interlocutory appeal of the

class certification decision.’ In this

option, as in option 1, the majority

apparently contemplates that the tolled

statute of limitations would recommence

its running at the time of the district

court’s order denying class

certification, but would cease running

and be tolled again when the claimant

moves for an interlocutory appeal.” If

the dismissal would be with prejudice.

Maj.Op. at 3461 ("If we applied this new

rule of law to this case, section 626(e)

would bar the Armstrong plaintiffs’

individual actions. .. ."). Thus, the

unwary plaintiff who files an individual

suit late is barred forever, but an

individual plaintiff who waits pursuant

to option 2 is not barred.

9 If the named plaintiffs file an

interlocutory appeal regarding the

denial of class certification, do the

putative class members still have to

intervene in order to take advantage of

option 3?

10

I infer that the running of the

statute of limitations recommences when

the district court denies class

certification. See supra note 4.

However, if the statute of limitations

does recommence at the time of the

district court’s order denying class

A-38

an interlocutory appeal is permitted and

the district court is affirmed, then the

majority explains that the running of

statute of limitations recommences.'' If

the district court declines to certify

the issue for appeal or if an

interlocutory appeal is not accepted,

the majority apparently contemplates

that the tolling ceases and the running

of the statute of limitations

recommences.'* If the recommended

certification, then the statute would

clearly have expired by the time of

final judgment in the named plaintiffs’

case; however, option 2 contemplates a

resurrection of the statute of that

time. Does the statute of limitations

run for purposes of options 1 and 3, but

not for purposes of option 2? See supra

note 8.

ll

The majority does not clarify at what

exact point the statute of limitations

begins to run again after an

unsuccessful appeal. See supra note 7.

12

I infer this point from the majority’s

description of option 3, i.e., the

language that the claimant may file an

individual lawsuit "within the time

remaining." In this situation, it is

unclear exactly when the statute of

limitations recommences. It probably

begins to run again when the district

court enters the order denying

permission to file an interlocutory

A-39

statute of limitations expires before

the claimant files an individual suit,

the claimant may exercise option 2

(i.e., file suit after final judgment in

the named plaintiffs’ case - at which

time the expired statute of limitations

becomes resurrected).

From the foregoing discussion, it

appears that the majority’s array of

options will generate confusion and

uncertainty.

In sum, I submit that the

majority’s approach to this case is

inconsistent with precedent and the

relevant policy considerations, and also

contains ambiguities and complexities.

Respectfully, I dissent.

appeal (or, if the district court grants

such permission, when the appellate

court enters an order refusing to

entertain an interlocutory appeal).

A-40

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 95-3255

D.C. Docket No. 94-1066-CV-ORL-18

DAVID M. ARMSTRONG, L. BENSON BARGER,

WALLACE D. BLACK, HOWARD BROOKS, JERRY

A. BUDD, SONJA M. CARTER, DOMINICK Cc.

CIZEK, CAROLD . CLARKE-ILEY, CHARLES H.

DAVIS, KENNETH 0. GIESSUEBEL, HEROLD P.

GLASER, ROBERT A. HAVLISH, KUMAR

HINDUJA, JOSEPH C. JETT, GLENN E.

JOHNSON, ROBERT C. LERCHE, CALVIN N.

LIGHTNER, GEORGE W. MCGUIRK, JAMES W.

MCLEAN, WILLIAM G. MURPHY, DONALD L.

PRASKY, CLARK C. RAINS, KENNETH A.

RICHARDS, RUSSELL G. ROBERTS, LINDA L.

RYAN, VICTOR W. SHAW, LINTON W. SMITH,

MICHAEL SYLVESTRI, DELBERT S. TURNER,

EDWARD W. WALSH, JOSEPH W. WILLIAMSON,

Plaintiffs-Appellants,

versus

MARTIN MARIETTA CORP.,

MARTIN MARIETTA TECHNOLOGIES, INC.,

Defendants-Appellees.

Appeal from the United States District

Court

for the Middle District of Florida

A-41

aa ia

(April 16, 1998)

Before HATCHETT, Chief Judge, TJOFLAT,

ANDERSON, EDMONDSON, COX, BIRCH, DUBINA,

BLACK, CARNES, AND BARKETT, Circuit

Judges.*

*Circuit Judges Frank M. Hull and

Stanley Marcus became members of the

court after this case was argued and

taken under submission. They elected

not to participate in this decision.

TJOFLAT, Circuit Judge.

In

Parker, 462 U.S. 345, 103 S.Ct. 2392

(1983), the Supreme Court held that the

commencement of a class action suspends

the applicable statute of limitations

for all asserted members of the putative

class “until class certification is

denied." Id, at 354-55, 103 S.Ct. at

2397-98. The question presented in this

case is whether, in the absence of

controlling authority, the statute of

limitations begins to run again

immediately upon the district court’s

entry of the interlocutory order denying

class certification,' or whether the

l

The district court’s denial of class

certification is an interlocutory order,

not reviewable as of right until after

the entry of final judgment. See

Coopers & Lybrand v. Livesay, 437 U.S.

statute of remains tolled through final

judgment in the former class action and

completion of an appeal from the order

denying class certification.* The

appellants advocate the latter rule, and

a divided panel of this court adopted a

variation that rule.* For the reasons

463, 467-69, 98 S.Ct. 2454, 2457-58, 57

L.Ed.2d 351 (1978).

2 The scope of our holding today is

limited. Chardon v. Soto, 462 U.S. 650,

103 S.Ct. 2611, 77 L.Ed.2d 74 (1983),

establishes the proposition that, in

cases brought under 42 U.S.C. § 1983,

state law on tolling will control the

issue we address today. Federal

statutes that specifically provide for

suspension of the statute of

limitations, such as the Clayton Act,

see 15 U.S.C. § 16(i), will of course

control when they are applicable. Our

holding today therefore establishes a

rule of decision for this circuit that

applies only when no federal statute or

state law controls.

3

The dissent apparently would have us

adopt a variation of that rule. The

precise contours of both the panel’s

holding and of the dissent’s preferred

holding are unclear. As discussed infra

Part III, we prefer a clear rule that

operates early in the litigation, and

that settles the tolling question with

regard to all parties, as opposed to a

A-43

————

set forth below, we hold that the

tolling of the statute of limitations

ceases when the district court enters an

interlocutory order denying class

certification.

I.

This case arises under the Age

Discrimination in Employment Act, 29

U.S.C. § 621 et seg, (1994) (the

"“ADEA"). The thirty-one appellants in

the instant case are former Martin

Marietta’ employees who lost their jobs

between 1992 and 1993. (Two other |

appellants, Myrtle Y. Redding and Marlon |

K. Tarter, have been dismissed from this

appeal pursuant to joint stipulation of

the parties.) Following their

complex of vague rules under which the

tolling period will be indeterminate and

almost certainly very long.

4

It is unclear from the record on |

appeal whether appellee Martin Marietta |

Corporation or appellee Martin Marietta

Technologies, Inc., was the employer in

this case, although Martin Marietta

Corporation asserts that all the

appellants were employees of the

subsidiary Martin Marietta Technologies

and not of the parent corporation. It

is unnecessary for us to decide this |

issue, however. We therefore use the

name "Martin Marietta" to refer to both

parties.

A-44

PT

terminations, twenty-nine appellants

filed timely charges of age

discrimination with the Equal Employment

Opportunity Commission (the "EEOC"), as

is required by statute. See 29 U.S.C.

§ 626(d) (providing that a person who

wishes to bring a civil action against

his or her employer pursuant to the ADEA

must first file a timely charge of

discrimination with the EEOC). Three

appellants--Clarke-Iley, Johnson, and

Shaw--did not file EEOC charges.

At various times, the EEOC notified

each appellant (other than Clarke-Iley,

Johnson, and Shaw) that his or her

charge of age discrimination was

dismissed. Receipt of such notice

triggers the statute of limitations for

bringing a civil action in court, and

the plaintiff must then file suit within

ninety days. See 29 U.S.C. § 626(e).°

5

Section 626(e) reads in pertinent

part:

If a charge filed with the Commission

under this chapter is dismissed or the

proceedings of the Commission are

otherwise terminated by the Commission,

the Commission shall notify the person

aggrieved. A civil action may be

brought under this section. .. against

the respondent named in the charge with

in 90 days after the date of the receipt

of such notice.

A-45

This ninety-day limitations period is

tolled, however, while the plaintiff is

a putative member of a class action.

See Crown, Cork, 462 U.S. at 353-54, 103

S.Ct. at 2397-98. Twenty-eight of the

thirty-one appellants opted into

’

Case No. 93-434-CIV-ORL-19, an age

discrimination class action that was

already proceeding in the Middle

District of Florida, on June 4, 1993.°

29 U.S.C. § 626(e).

The ninety-day statute of

limitations applies in the instant case

because all of the adverse employment

decisions at issue occurred after

November 21, 1991, the effective date of

the Civil Rights Act of 1991, Pub. L.

No. 102-166, § 115, 105 Stat. 1071, 1079

(1991), which altered the statute of

limitations applicable to ADEA cases.

The previous statute of limitations for

ADEA cases was two years from the date

of the adverse employment decision, or

three years from that date for willful

violations. See 29 U.S.C. § 626(e) (1)

(repealed 1991); 29 U.S.C. § 255. See

also Grayson v. K Mart Corp., 79 F.3d

1086, 1100 (11th Cir. 1996).

6

Class actions under the ADEA are

authorized by 29 U.S.C. § 626(b), which

expressly borrows the opt-in class actin

mechanism of the Fair Labor Standards

Act of 1938, 29 U.S.C. § 216(b) (1994).

eee ee

A-46

The remaining three appellants--Davis,

Havlish, and Hinduja--were named

plaintiffs in the Carmichael action.

On April 7, 1994, the district

court in Carmichael determined that the

appellants were not “similarly situated"

Section 216(b) provides for a class

action where the complaining employees

are “similarly situated." However,

"(njo employee shall be a party

plaintiff to any such action unless he

gives his consent in writing to become

such a party and such consent is filed

in the court in which such action is

brought." Jd. See also

= , 513 F.2d 286, 288

(Sth Cir. 1975) (explaining the

fundamental difference between the opt-

in class action under section 216(b) and

the opt-out class action under Federal

Rule of Civil Procedure 23).

The sparse record on appeal in the

instant case does not satisfactorily

establish the exact date or dates on

which the appellants opted into the

Carmichael class action. Construing the

facts in the light most favorable to the

appellants (the non-moving parties in

Martin Marietta’s motion for summary

judgment), we assume argquendo that all

appellants opted into the class on June

4, 1993--the date when the Carmichael

class action complaint was filed. The

record on appeal presents no conclusive

evidence to the contrary.

A-47

to the other Carmichael plaintiffs. The

court therefore certified a

plaintiff class that did not include as

members the appellants in the instant

case. The court then dismissed the

claims of appellants Davis, Havlish, and

Hinduja without prejudice, and denied

the remaining appellants’ requests to

opt into the Carmichael] class. None of

the appellants requested leave to file

an interlocutory appeal from that order

under 28 U.S.C. § 1292(b).’

On October 11, 1994, more than

ninety days after the Carmichael court’s

partial denial of class certification,

the thirty-one appellants and fourteen

additional plaintiffs (including former

appellants Redding and Tarter) filed the

complaint that commenced the instant

action in the district court. On

October 25, 1994, an amended complaint

added a forty-sixth plaintiff, appellant

Wallace Black.

On January 17, 1995, Martin

Marietta filed a motion for partial

summary judgment against the thirty-one

7

The Carmichael] action is still an

active lawsuit as of the date of this

opinion. No judgment was ever entered

under Fed.R.Civ.P. 54(b) with regard to

the dismissal of appellants Davis,

Havlish, and Hinduja from the Carmichael

action, and that dismissal remains non-

final and non-appealable.

A-48

= ——

appellants, on the ground that they had

failed to file their individual lawsuits

within ninety days after their dismissal

from the Carmichael] class action.

Martin Marietta also sought summary

judgment against appellants Clarke-Iley,

Johnson, and Shaw on the alternative

ground that each had failed to file a

charge of age discrimination with the

EEOC within 300 days of the alleged

discrimination.

On March 22, 1995, a magistrate

judge issued a report recommending that

the district court grant Martin

-Marietta’s motion for partial summary

judgment. The magistrate judge

concluded that the ninety-day statute of

limitations, which was tolled while the

appellants were putative members of the

Carmichael] class action, recommenced

when the Carmichael court dismissed

their claims. Therefore, because the

appellants’ instant claims were filed

more than ninety days after the

dismissal in Carmichael, those claims

were barred by the statute of

limitations. The magistrate judge

rejected Martin Marietta’s alternative

ground for partial summary judgment

against Clarke-Iley, Johnson and Shaw,

concluding that this circuit’s

“piggybacking" rule excused them form

filing charges of discrimination with

the EEOC. See ’

79 F.3d 1086, 1101-02 (11th Cir. 1996)

(holding that an individual who did not

file an EEOC charge may opt into an ADEA

class action by “piggybacking"™ onto a

A-49

timely charge filed by one of the named

plaintiffs, provided that the claims of

the named plaintiff and the piggybacking

plaintiff arise out of similar

discriminatory treatment in the same

time frame) .°

On May 10, 1995, the district court

adopted the magistrate judge’s report

and recommendation, and granted partial

summary judgment against the thirty-one

appellants. On September 14, 1995, the

district court amended its order and

replaced the partial summary judgment

with a final judgment pursuant to

Federal Rule of Civil Procedure 54(b).

This appeal followed.

It.

The primary issue on appeal is

whether the district court was correct

in holding that the statute of

limitations, which was tolled while the

appellants were putative members of the

class action, resumed running when the

Carmichael court dismissed the

appellants’ claims in that case. We

hold that the limitations period for

filing an individual suit (and for

8

Because we hold that the district

court correctly granted summary judgment

against appellants Clarke-Iley, Johnson

and Shaw, see infra part IV, we do not

address Martin Marietta’s argument that

the district court misapplied the

piggybacking rule.

A-50

Og Oe Ce ey re ke eee ee eT he Oe ee ee a rt eae eee

intervening in an extant action) did so

resume. We therefore affirm the

decision of the district court with

regard to almost all of the appellants.’

The ADEA’s statute of limitations

requires the plaintiff to file suit

within ninety days after receiving

notice that the EEOC has dismissed the

plaintiff’s age discrimination charge.

See 29 U.S.C. § 626(e). Membership in a

pending class action, however, tolls the

ninety-day period for filing an

individual lawsuit. See Crown, Cork,

462 U.S. at 353-54, 103 S.Ct. at 2397-

98. The purpose of such tolling is to

encourage class members reasonably to

rely on the class action to protect

their rights. Without tolling, class

members would have to take action prior

to the running of the statute of

limitations in order to protect

themselves in case class certification

is later denied, even when they may

reasonably expect to receive relief

through the already-filed class action.

See id, at 350-51, 103 S.Ct. at 2396;

see also Griffn v. Singletary, 17 F.3d

356, 360 (11th Cir. 1994) ("Insofar as

the individual claims are concerned,

putative class members should be

entitled to rely on a class action as

9

As explained in detail infra part IV,

we reverse the district court’s entry of

summary judgment against appellants

Armstrong, Cizek, Richards and Walsh.

A-51

long as it is pending."). Once the

district court enters the order denying

Class certification, however, reliance

on the named plaintiffs’ prosecution of

the matter ceases to be reasonable, and,

we hold, the excluded putative class

members are put on notice that they must

act independently to protect their

rights. See

McDonald, 432 U.S. 385, 399, 97 S.Ct.

2464, 2472, L.Ed.2da 423 (1977) (Powell,

Jr., dissenting).

The appellants, however, argue that

the statute of limitations should

continue to be tolled, even after the

district court’s denial of class

certification, because the denial of

certification in an interlocutory order

may be reversed by the district court at

any time before final judgment, or by

the court of appeals after final

judgment, or, in rare cases, on

interlocutory review. We disagree. No

reasonable person would rely on the hope

that either the district court or this

court might someday determine that the

suit should have proceeded as a class

action.

When the district court denies

class certification,'® the named

10

In the instant case, the Carmichael

court did not deny class certification

altogether; rather, it certified a

narrow class that did not include the

A-52

plaintiffs no longer have a duty to

advance the interests of the excluded

putative class members. See

Fed.R.Civ.P. 23(c) (1), advisory

committee’s note to 1966 amendment

(explaining that the trial court’s order

denying class certification "strip[(s]

[the suit] of its character as a class

action, "thus requiring the litigation

to proceed as a non-class action, even

though the district court may change its

mind and certify a class at any time

before a decision on the merits);

j j a

F.2d 171, 177 (Sth Cir. 1975) (rejecting

the argument that the interlocutory

nature of the district court’s order

denying class certification requires the

named plaintiffs to exercise a

continuing fiduciary duty to the

putative class members).'' Although it

is possible that the district court may

reconsider its order denying class

appellants. This of course amounted to

a denial of class certification as to

the appellants. For simplicity’s sake,

we refer in the text to the more common

situation, where a district court denies

class certification altogether.

thon nner v. Pri , 661

F.2d 1206, 1209 (11th Cir. 1981) (en

banc), this court adopted as binding

precedent all decisions of the former

Fifth Circuit handed down prior to

October 1, 1981.

A-53

certification, or that an appellate

court may later reverse it, district

courts have broad discretion with

respect to such rulings, and denials of

class certification usually stand. See

e.g., Jones v. Fireston Tire and Rubber

Co., Inc., 977 F.2d 527, 531, 535 (11th

Cir. 1992) (citing cases for the

proposition that "{a] district court’s

denial of class certification will not

be disturbed absent an abuse of

discretion" and affirming denial of

Class certification), cert denied, 508

U.S. 961, 113 S.Ct. 2932 (1993); see

also, 2.4,

, 89 F.3d 1562

(11th Cir. 1996) (affirming

decertification of plaintiff class) ;

, 90 F.3d

451 (llth Cir. 1996) (affirming denial

of class certification); Washington v.

Brown & Williamson Tobacco Corp., 959

F.2d 1566 (1lith Cir. 1992) (same); Ray

, 908

F.2d 1549 (llth Cir. 1990) (same);

Palmer _v. BRG of Georgia, 874 F.2d 1417

(11th Cir. 1989) (same). Indeed, a

review of this court’s published case

law reveals that one must go back to

1987--over a decade ago--to find a case

in which this court squarely reversed a

district court’s denial of class

certification on grounds that the

district court abused its discretion.

A-54

Se ee eee ae a ee ae

a. eae ee ee ee re ee ee ee ee ee a a ee

See ’

827 F.2d 718 (11th Cir. 1987).

Thus, reliance on the possibility of a

reversal of the court’s certification

decision is ordinarily not reasonable.

We therefore conclude that continued

tolling of the statute of limitations

12

Reconsideration and reversal of a

denial of class certification by the

district court is also rare. A recent

study conducted by the Federal Judicial

Center found that, of the cases studied:

1) motions for reconsideration of a

denial of class certification were filed

in only 4% of cases in which

certification was denied;

2) of those cases in which a motion

for reconsideration was filed, the

motion was denied in 72% of the cases;

and

3) in the remaining 28% of the cases,

the district either took some other

action or, for various reasons, did not

rule on the motion for reconsideration.

See Thomas E. Willging, et al., "An

Empirical Analysis of Rule 23 to Address

the Rulemaking Challenges," 71 N.Y.U.L.

Rey. 74, 113-14 (1996). In sum, motions

for reconsideration of a denial of class

certification are granted in less than

3% of cases in which certification is

denied.

A-55

after the district court denies class

certification is unnecessary to protect

any reasonable reliance by putative

class members on their former class

representatives.

Case law from the Supreme Court and

several federal appellate courts also

indicates that the tolling period should

cease upon denial of class

certification. The plain language of

Crown, Cork itself clearly implies that

tolling is to end upon the district

court’s denial of class certification.

The Crown, Cork Court wrote: "Once the

statute of limitations has been tolled,

it remains tolled for all members of the

putative class until class certification

is denied. At that point, class members

may choose to file their own suits or to

intervene as plaintiffs in the pending

action." Crown, Cork, 462 U.S. at 354,

103 S.Ct. at 2397-98. The dissent would

have us read the word "denied" in the

above passage to mean (among other

things) "denied, appealed, denied again,

appealed (perhaps) again, and denied

again." Even if we were to inclined to

divine so much from that one word,

"denied," we could not do so in light of

the fact that in the very next sentence

the Court suggests that putative class

members who have been denied

certification might “intervene as

plaintiffs in the pending action." Id.

at 354, 103 S.Ct. at 2398. IF, as the

dissent advocates, we are to read

"denied" to mean "finally denied, after

all hope for reversal on appeal is

A-56

gone," then there will rarely be a

"pending action" into which the

disappointed putative class members

might thereafter intervene." We

therefore read Crown, Cork to imply

strongly, if not to hold, that tolling

of the statute of limitations ends upon

the district court’s denial of class

certification."

American Pipe & Construction Co. v.,

Utah, 414 U.S. 538, 94 S.Ct. 756, 38

L.Ed.2d 713 (1974), provides further

guidance from the Court. In American

Pipe, the State of Utah filed a class

action antitrust complaint with just

eleven days before the limitations

period expired. Several months later,

the district court entered an order

denying class certification. See id. at

541-43, 94 S.Ct. at 760-61. Eight days

after that order was entered, several

state and local agencies that had been

putative class members moved to

lS as explained infra part III, review of

class certification decisions usually

follows a final judgment.

14

Because we read Crown, Cork clearly to

imply that the tolling of the statute of

limitations should, in the absence of

controlling authority to the contrary,

end upon the district court’s denial of

class certification, we refer to that

rule of decision, for brevity’s sake, as

the "Crown, Cork" rule.

A-57

intervene in the action and become

plaintiffs. Id. at 543-44, 94 S.Ct. at

761. THe Supreme Court stated:

that the commencement of the class

action in this case suspended the

running of the limitation period

only during the pendency of the

¥ , Ein ¢] it of i

class action character. The class

suit. . . was filed with 11 days

yet to run in the [limitations]

period. . .and the intervenors thus

had 11 days after the entry of the

order denying them participation in

the suit as class members in which

to move for permission to

intervene. Since their motions

were filed only eight days after

the entry of [the] order, it

follows that the motions were

timely.

Id. at 561, 94 S.Ct. at 770 (emphasis

added). In American Pipe, the parties

did not argue that tolling should

continue through appeals. It thus

15

The primary reason why this issue was

not addressed in American Pipe, we

imagine, was because, in that case, the

Clayton Act provided not only a

controlling statute of limitations but

also an instruction regarding tolling--

specifically, that tolling would be

"suspended" during the pendency of the

class action. See id at 561, 94 S.Ct.

A-58

might be said that the Court did not

Squarely reject such an argument. The

Court, however, clearly assumed that

tolling should end when the district

court denies class certification, not

after the appeals process has run and

some later final order is entered.

The Supreme Court’s decision in

j Vv , 432

U.S. 385, 97 S.Ct. at 2464, 53 L.Ed.2d

423 (1977), also strongly suggests that

the tolling of the statute of

limitations ceases as soon as the

district court denies class

certification. In that Title vII case,

at 770. The Court read this statutory

language to direct that the tolling

period end upon the district court’s

denial of class certification. See id.

It therefore might be said that American

Pipe’s clear implication that tolling

should end upon denial of certification

below should be honored only when the

Clayton Act’s limitations provisions

control. We read j ,

however, as establishing a general

federal rule of decision--that the

limitations period will be tolled while

a class action is pending--pursuant to

an historical "judicial power to toll

statutes of limitation in federal

courts," see id. at 558, 94 S.Ct. at

768, and as explained in the text, we

also read the Court’s opinion as

assuming that the rule we adopt today is

the "default rule."

A-59

|

the district court denied class

certification and the named plaintiffs

thereafter settled their claims against

the defendant. Eighteen days after the

district court entered a judgment of

dismissal based on the settlement, a

disappointed putative class member filed

a motion to intervene for the sole

purpose of appealing the district

court’s earlier denial of class

certification. See id. at 388-90, 97

S.Ct. at 2466-67. The Supreme Court

held that the motion was timely because

it was filed "within the [(thirty-day)

time period in which the named

plaintiffs could have taken an appeal."

Id at 396, 103 S.Ct. at 2471. In its

analysis, the Court addressed the

defendant’s argument that the intervenor

had no interest in the litigation

because the statute of limitations has

expired. The Court emphasized that the

purpose of the motion was to appeal the

denial of class certification, and not

to litigate an individual claim:

This [statute of limitations]

argument might be persuasive if the

respondent had sought to intervene

in order to join the named

plaintiffs in litigating her

individual claim. . . for she then

would have occupied the same

position as the intervenors in

- But the later

motion to intervene in this case

was for a wholly different purpose.

That purpose was to obtain

appellate review of the District

A-60

Court’s order denying class action

status. . . and the motion complied

with, as it was required to, the

(thirty day] time limitation for

lodging an appeal ... . Success

in that review would result in the

certification of a Class, the named

members of which had complied with

the statute of limitations; the

respondent is a member of that

Class against whom the statute had

not run at the time the class

action was commenced.

id. at 392, 97 S.ct. at 2468-69. The

Court’s rationale strongly implies that

the statute of limitations for filing an

individual suit (and for intervening to

litigate one’s claim) begins to run

again as soon as the district court

denies class certification--although an

excluded putative class member whose

individual claim is barred by the

statute of limitations may still

intervene for the purpose of appealing

the denial of class certification after

final judgment."

16

We note that, in at least some cases,

the named plaintiff also may appeal the

denial of class certification, even if

she prevails on the merits below,

settles her claim, or otherwise ceases

individually to have a controversy with

the defendant. See

e Vv , 445 U.S. 326, 336,

100 S.Ct. 1166, 1173, 63 L.Ed.2da 427

A-61

|

Finally, as the dissent concedes,

language in Chardon v. Soto, 462 U.S.

650, 103 S.Ct. 2611, 77 L.Ed.2d 74

(1983), is in tension with the dissent’s

position. The specific issue before the

Court in Chardon was whether a Puerto

Rican statute of limitations would

control in a case brought under 42

U.S.C. § 1983. See id, at 651-52, 103

S.Ct. at 2613-14. The Court concluded

that the Puerto Rican statute, and state

statutes of limitations generally, would

control in actions under section 1983

because the

federal interest in assuring the

efficiency and economy of the class

action procedure. . . is vindicated

as long as each unnamed plaintiff

is given as much time to intervene

or file a separate action as he

would have under a state savings

statute applicable to a party whose

action has been dismissed for

~easons unrelated to the merits,

or, in the absence of a statute,

(1980) (holding that named plaintiffs’

case or controversy was not mooted, and

that they might appeal denial of class

certification, even after entry of final 4

judgment in their favor but over their

objections) ;

, 445 U.S. 388, 408, 100

S.Ct. 1202, 1215, 63 L.Ed.2d 479 (1980)

(holding that named plaintiff may appeal

denial of class certification even when

his own claim has been rendered moot).

‘

A-62

the time provided under the most

Closely analogous state tolling

statute.

id. at 661, 103 S.ct. at 2618. As

stated, Chardon dealt with a question of

the applicability of state law under

section 1983, and the Court’s decision

was therefore motivated in large part by

concerns of federalism; in short, the

Court concluded that the federal

interest in the efficiency of federal

class action procedure was satisfied as

long as a putative class member in

federal court had as long to file his

individual suit as he would have had in

state court.

The instant case presents no

concerns of federalism, but the Court’s

holding in Chardon is still instructive.

Chardon held that the federal interest

in the efficiency of federal class

action procedure was satisfied by the

application of state statutes of

limitations only "after class

rtifi j is denied" (and the facts

of the case make it clear that the Court

was referring to the district court’s

denial of certification). Id, (emphasis

added). We therefore read Chardon to

draw a distinction between 1) the

federal interest in encouraging reliance

upon the class action mechanism prior to

denial of certification in the district

court, and 2) the federal interest in

doing so after denial of certification

in the district court. The federal

interest in encouraging reliance upon

A-63

|

the class action mechanism prior to

denial of certification is strong,

because reliance on the mechanism is

reasonable and saves many individual

suits and motions for intervention from

being filed; for this reason, as the

Chardon Court noted,

established tolling of limitations

during the pendency of a class action.

See id. at 658-60, 103 S.Ct. at 2617-18.

The federal interest in encouraging

reliance upon the class action mechanism

after denial of certification in the

district court, however, is at best very

weak (as explained infra, we believe it

to be virtually non-existent); this, we

believe, is the central reason why the

Chardon Court allowed state tolling

rules to trump the asserted federal

interest in class action efficiency

after the denial of certification in the

district court but not before.

In addition to this guidance from

the Supreme Court, several appellate

courts have explicitly rejected the

argument that the statute of limitations

for filing an individual claim should

remain tolled through an appeal of the

denial of class certification. See

, 860

F.Supp. 1080, 1084 (W.D. Pa. 1994) ("In

our view, . . . once certification has

been denied by the district court, class

members cannot reasonably rely on the

existence of the suit to protect their

rights, and they must timely assert

claims in their individual

capacities."), aff’d 60 F.3d 1010 (3d

A-64

Cir. 1995) (reviewing state law and

holding that, in federal courts, the

tolling of the statute of limitations

ceases upon the entry of the district

court’s order denying class

certification, and does not continue

through completion of the appeals

process), Cert. denied, _—aU.Ss. ~ _—s,

116 S.Ct. 1266, 134 L.Ed.od 216 (1996);

j V

Assn, 863 F.2d 384, 390 (Sth Cir.) (per

curiam) (holding that the statute of

limitations begins to run again upon

entry of the district court’s order

denying class certification, even if the

district court later reconsiders the

issue and certifies a Class), cert.

denied, 493 U.S. 821, 110 S.Ct. 79, 107

L.Ed.2d 45 (1989); e , 851

F.2d 146, 149-50 (6th Cir. 1988)

(holding that the instant suit ‘ceased

to be a class action," and tolling

ended, upon entry of order denying class

certification); d Vv P

681 F.2d 42, 48 (lst Cir. 1982)

("(T)olling would have ended, and the

remaining portion of the limitations

period would have recommenced running .

- - when the district court declined to

certify the class."), cert. granted sub

nom Vv , 459 U.S.

987, 103 3$.Ct. 339, 74 L.Ed.2d 382

(1982); cert. denied sub nom Fumero Soto

yv. Chardon, 459 U.S. 989, 103 S.Ct. 343,

74 L.Ed.2d 384 (1982), aff'd Chardon v.

Soto, 462 U.S. 650, 103 S.Ct. 2611, 77

L.Ed.2d 74 (1983); see also

Hunt, 827 F.2d 874, 877-79 (2d Cir.

1987) (holding that tolling under

A-65

American Pipe “does not apply to permit

a (disappointed putative class member]

to file a subsequent class action

following a definitive determination of

the inappropriateness of class

certification," and holding that a

district court’s determination that a

class action would be unmanageable

constitutes such a "definitive

determination.");"’ but see Jimenez v.

j , 523 F.2d 689, 696 (7th Cir.

1975) (stating, in dictum, court’s

supposition that an appeal from a denial

of class certification would further

toll the statute of limitations) ."™

\7 whe Second Circuit in Korwek also

noted that "(tjhe motion for amendment

{of the district court’s order denying

certification] under Rule 23(c)(1), a

mechanism which protects scarce

administrative resources while ensuring

re-evaluation of a frequently complex

question, provides adequate opportunity

for" putative class members expediently

to address asserted errors in the

district court’s initial class

certification decision. See Korwek, 827

F.2d at 879. We note that a

disappointed putative class member could

exercise this option even after filing

his individual suit, and that a pending

motion for amendment could be a ground

of a stay of the individual suit.

18 one dissent also cites several

district court opinions, see West Haven

A-66

Ill.

Practical considerations also lead

us to conclude that, if class

certification is denied in whole or in

part, the statute of limitations begins

to run again as to exclude putative

class members as of the date of the

district court’s order denying

certification.

The district court’s class

certification decision, which defines

Corp., 721 F.Supp. 1547, 1555 (D.Conn.

1988) ; , 675

F.Supp. 342, 347 (N.D. Miss. 1987);

vi e , 600

F.Supp. 1312, 1316 (D. Md.), aff‘’d on

other grounds, 769 F.2d 210 (4th Cir.),

cert. denied, 474 U.S. 1021, 106 S.Ct.

573, 88 L.Ed.2d 557 (1985), and an

opinion of the Utah Supreme Court,

Jordan, 840 P.2d 757, 762 (Utah 1992),

in support of its argument. We believe

the various district court statements

cited to have been wrongly decided. We

also note that the Utah Supreme Court

case contains no rationale, and instead

bases its holding on Jimenez and the

above-cited district court decisions

alone, without citing or discussing

Calderon, Andrews, or Fernandez, see id

at 761-62; we therefore conclude that

the i court misread

federal law.

A-67

which claimants are class members and

which are not, is not a "final decision"

within the meaning of 28 U.S.C. § 1291,

because an excluded putative class

member is free to proceed with his

individual claim. Class certification

decisions are therefore not appealable

as a matter of right. See

, 437 U.S. 463, 467-

69, 98 S.Ct. 2454, 2457-58 (1978).

"Such an order is [interlocutorily]

appealable, therefore, only if it comes

within an appropriate exception to the

final-judgment rule." Id, at 467, 98

S.Ct. at 2457. A class certification

decision therefore could come before the

Court of Appeals in one of three ways."

The most common way is review after a

final judgment in the case, be it after

trial, after summary judgment or

dismissal, or on a partial final

judgment under Fed.R.Civ.P. 54(b).” A

19

Note that, under Rule 23, there are

numerous reasons why a district judge

might deny class certification. For

example, the named plaintiff may not be

an adequate class representative; there

may be too few putative class members to

make a class action worthwhile; or the

putative class claims may be too diverse

to make a class action workable. See

Fed.R.Civ.P. 23(a), (b).

20pule 54(b) provides:

Judgment Upon Multiple Claims or

A-68

much narrower route to the court of

appeals is interlocutory review of the

district court’s class certification

order under 28 U.S.C. § 1292(b).*" An

Involving Multiples Parties. When more

than one claim for relief is presented

in an action, whether as a Clain,

counterclaim, cross-claim, or third-

party claim, or when multiple parties

are involved, the court may direct the

entry of a final judgment as to one or

more but fewer than all of the claims or

parties only upon an express

determination that there is no just

reason for delay and upon an express

direction for the entry of judgment.

Fed.R.Civ.P. 54(b). A final judgment

under Rule 54(b) will not be available

to excluded putative class members,

because they are not party plaintiffs

and therefore present no claim upon

which the district court can enter

judgment.

21

Section 1292(b) provides:

When a district judge, in making 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

A-69

even rarer basis for appellate review of

a district court’s certification

decision is this court’s mandamus

jurisdiction.

A.

Let us consider the possibility of

mandamus review first. In In re

Estelle, 516 F.2d 480 (5th Cir. 1975),

we stated that the writ of mandamus may

issue to correct a clear abuse of

discretion or the failure to carry out a

ministerial task. We may issue the

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 application is made to it within ten

days after the entry of the order:

That application for

an appeal hereunder shall not stay

proceedings in the district court unless

the district judge or the Court of

Appeals or a judge thereof shall so

order.

28 U.S.C. § 1292(b).

22

Estelle stated that:

The Writs of Mandamus and Prohibition. .

- are reserved for really extraordinary

A-70

writ "only in drastic situations, when

no other adequate means are available to

remedy a clear usurpation of power or

abuse of discretion." in re Temple, 851

F.2d 1269, 1271 (1ith Cir. 1988). We

may issue the writ to direct a district

court to take a particular action with

regard to class certification only when

1) the district court’s certification

decision "inflict[s] irreparable harm in

that an appeal at the end of the case

would be ineffectual," and 2) the

certification order constitutes, at a

causes, and should be issued only when

the right to such relief is clear and

indisputable. To some extent they are

supervisory in nature and are used to

confine an inferior court to a lawful

exercise of its prescribed jurisdiction

or to compel it to exercise its

authority when it is its duty to do so.

They are not to be used as a substitute

for appeal, or to control the decision

of the trial court in discretionary

matters.

The Writ is thus a drastic remedy,

that must not be used to regulate the

trial court’s judgment in matters

properly left to its sound discretion,

but that may be available to confine the

lower court to the sphere of its

discretionary power.

Estelle, 516 F.2d at 482 (internal

citations and quotations marks omitted).

A-71

minimum, a clear abuse of discretion.=

5 James Wm. Moore et al., Moore’s

Federal Practice § 23.61[9][{c], 23-290

(3d ed. 1997) (citing Temple, 851 F.2d

1269). These conditions are rarely met;

class certification decisions are left

to the sound discretion of the district

court, see Increase Minority

-2d 1189,

1197 (11th Cir. 1990) (Edmondson,

concurring in part and dissenting in

part), and in most cases, the

certification issue can be effectively

reviewed on appeal after final _gudgnent .

See €.g-,

Co., 357 F. 2a 1218, 1220 (5th Cir.

1977). In any case, excluded putative

Class members are not "“irreparably

harmed" by a denial of class

certification, because they may still

intervene in the ongoing action or file

their own suits.

We have in the past issued mandamus

to direct a district court to decertify

an improperly certified class, when the

certification of that class was a clear

abuse of discretion. See e.g., Temple,

Pa,

“kj

23 ve

A district court’s class certification

decision, in and of itself, will

constitute a "clear usurpation of power"

or a failure to carry out a ministerial

task only in the most unusual of

circumstances.

A-72

851 F.2d 1269;

on, 829 F.2d 1539

(11th Cir. 1987). These cases, however,

presented circumstances not present in

the instant case or in most cases, and

moreover, for a court of appeals to

direct the certification of a class

after the district court has

certification is even less likely than

for a court of appeals to direct the

decertification of a class after the

district court has granted

certification.* In short, mandamus

2

4

Both Temple and Greenman involved a

district court’s certification of

mandatory classes in mass tort cases;

when the district court has certified a

non-mandatory class, the argument that

the court has clearly abused its

discretion, and that mandamus relief is

appropriate, will be much more

difficult, because the district court’s

decision will have left other avenues of

relief. Moreover, as the Temple court

noted, "any certification of a mandatory

class in a mass tort case {such as

Greenman or Temple), especially one

predominantly involving issues of

liability and compensation, must be

reviewed with utmost scrutiny [because]

({SJuch certification clearly implicates

the Anti-Injunction Act." Temple, 851

F.2d at 1271 (citations omitted) .

25

Courts of appeals are less likely to

direct the certification of a Class than

A-73

review of a district court’s denial of

class certification will be very rare,

and reversal] of such a denial pursuant

to our mandamus jurisdiction will be

extremely so; a review of this court’s

published case law of the last twenty

years reveals no case in which we

overturned a district court’s denial of

class certification pursuant to our

mandamus jurisdiction.

A.

Let us next consider the

possibility of appellate review of a

denial of class certification pursuant

to 28 U.S.C. § 1292(b). Section 1292(b)

authorizes the courts of appeals to

exercise interlocutory review of

district court orders only when the

lower court certifies for review a

question of law, and not when the lower

court attempts to certify only

discretionary matters such as the

to direct a decertification simply

because it is easier to notice abusively

exercised discretion, or legal error, in

a certification already granted, than it

is to pick on hypothetical class

definition, from a myriad of possible

definitions, and confidently conclude

that that one definition is so clearly

the right one that the district court

abused its discretion in failing to

certify that one class.

A-74

decision to certify a class vel non.

See 28 U.S.C. § 1292(b) (1994) (stating

that a district court may certify for

interlocutory appeal "a controlling

question of law as to which there is

substantial ground for difference of

opinion") (emphasis added); Link v.

= , 550 F.2d

860, 862-63 (3d Cir. 1976) (holding that

“section 1292(b) is not designed for

review of factual matters but addresses

itself to a ‘controlling question of

law,’" and that a class certification

decision "does not present a

‘controlling question of law’ to which

this court should be hospitable under

$_1292(b)"), cert, denied, 431 U.S. 933,

97 S.Ct. 2641, 53 L.Ed.2d 250 (1977);

see also

Ltd., 101 F.3d 863, 866 (2d Cir. 1996)

(citing Link in support of the

proposition that "§ 1292(b) was not

meant to substitute an appellate court’s

26

Class certification orders are also

not among the sorts of interlocutory

orders over which the courts of appeals

have jurisdiction pursuant to 28 U.s.c.

§ 1292(a). See Wyatt v. Rogers, 92 F.3d

1074, 1081 (11th Cir. 1996). Class

certification decisions may be reviewed

under section 1292(a) only when they are

integral to a district court’s decision

regarding an injunctive order, review or

which is authorized by section 1292(a).

See Plekowski, 557 F.2d at 1220-21 (11th

Cir. 1997).

A-75

judgment for that of the trial court").

See also e.g... Andrews v. American Tel,

& Tel. Co., 95 F.3d 1014 (11th Cir.

1996) (addressing legal issue of

standing as well as discretionary Rule

23 issues); Delta Air Lines, 90 F.3d 451

(lith Cir. 1996) (addressing legal issue

of district court’s supplemental

jurisdiction as well as discretionary

Rule 23 issues); K Mart, 79 F.3d 1086

(llth Cir. 1996) (grounding review of

grant of class certification on several

specified, certified legal issues) ;

, 847 F.2d

740 (11th Cir. 1988) (reviewing class

certification based on specified,

certified issue of contract

interpretation under Georgia law);

» 827 ¥.24 718 (iith Cir.

1987) (addressing “fraud-on-the-market"

issue as well as Rule 23 issues in Rule

10b-5 securities fraud case); Tucker v.

Phyfer, 819 F.2d 1030, 1033-35 (11th

Cir. 1987) (affirming denial of class

certification on grounds of mootness) .*’

27

This not to say that "no district

court order involving some exercise of

discretion may be reviewed in a §

1292(b) appeal," see Katz v. Carte

Blanche Corp., 496 F.2d 747, 753 (5th

Cir. 1974). It is instead to say that

section 1292(b) does not authorize

review of wholly discretionary orders,

i.e., that the review must involve, and

the district court must certify as

appealable, "a controlling question of

A-76

Moreover, the availability of

review under section 1292(b) is subject

to both the district court’s willingness

to certify the matter for review and

this court’s willingness to hear the

appeal. See 28 U.S.C. § 1292(b) (1994)

(stating that, after certification of

interlocutory appeal by district court

order, "(tjhe 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 application is made

to it within ten days after the entry of

the order"); see also Mason v.

, 82 F.3d 1007, 1009-1010 (11th

Cir. 1996) (noting that, where district

court has denied § 1292(b)

certification, review "is not open to"

court of appeals); j

j , 280 F.3d

755, 757 (2d Cir. 1960) ("[{Ijn no event

can [an] action be appealable" where

there is no final judgment can where

circuit court has denied to leave to

appeal under § 1292(b).). Thus,

appellate review of class certification

daw." Once the district court has

certified a question of law for appeal

and this court has granted leave to

appeal, the entire order of the district

court, including both purely legal

questions and discretionary

determinations, is subject to our

review. See

Corp., 123 F.3d 1353, 1365 (Zith Cir.

1997).

A-77

decisions under § 1292(b) is and will be

rare. Successfu] appeals under

§ 1292(b) may be expected to be rarer

still; this court has not accepted a

§ 1292(b) appeal from a denial of class

certification and reversed that denial

A-78

in over a decade. See Kirkpatrick, 827

28

It has also been suggested that a :

denial of class certification might be

reviewable under the "collateral order

doctrine” established in Cohen v.

¢ vad

U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528

(1940). That is not the case. The |

Supreme Court has settled this question :

conclusively:

To come within the "small class" of

decisions excepted from the final-

judgment rule by Cohen, the order

must conclusively determine the

disputed question, resolve an

important issue completely separate

from the merits of the action, and

be effectively unreviewable on

appeal from a final judgment.

, 431 U.S.

651, 658, 97 S.Ct. 2034, 2039, 52

L.Ed.2d 651;

United States v.

MacDonald, 435 U.S. 850, 855, 98

S.Ct. 1547, 1549, 56 L.Ed.2d 18.

- First, such an

order is subject to revision in the

District Court. Fed.Rule.Civ.Proc.

23(c)(1). Second, the class

determination generally involves

considerations that are "enmeshed

in the factual and legal issues

comprising the plaintiff’s cause of

action." Mercantile Nat. Bank v.

A-79

F.2d 718 (llth Cir. 1987).

Cc.

Let us finally consider the third

possible jurisdictional basis for

appellate review of a denial of class

certification--review after a final

judgment in the case below. A denial of

Class certification is "a procedural

ruling, collateral to the merits of a

litigation, that is appealable after the

entry of final judgment" pursuant to our

jurisdiction under 28 U.S.C. § 1291.

‘ , 445

U.S. 326, 336, 100 S.Ct. 1166, 1173, 63

Langdeau, 371 U.S. 555, 558, 83

S.Ct. 520, 522, 9 L.Ed.2d 523

(1963). Finally, an order denying

Class certification is subject to

effective review after final

judgment at the behest of the named

plaintiff or intervening class

members.

McDonald, 432 U.S. 385, 97 S.Ct.

2464, 53 L.Ed.2d 423. For these

reasons, as the Courts of Appeals

have consistently recognized, the

collateral-order doctrine is not

applicable to the kind of order

involved in this case.

, 437 U.S.

463, 468-69, 98 S.Ct. 2454, 2458, 57

L.Ed.2d 351 (1978) (emphasis added); see

also Wyatt, 92 F.3d at 1081 (11th Cir.

1996).

A-80

eimai

L.Ed.2d 427 (1980).77 The district

court’s class certification decision is

reviewed only for abuse of discretion.

See IMPACT, 893 F.2d at 1197.™

Review pursuant to section 1291,

after entry of a final judgment, is by

far the most common basis for appellate

review of class certification decisions.

See Willging et. al., 71

at 170 (noting that the overwhelming

majority of appeals in cases studied

were from a final judgment or order).

In this context, the dissent’s preferred

29

The final judgment supporting review

of a class certification decision under

section 1291 could arise in numerous

ways: after settlement and dismissal,

see €.9.,

, 675 F.2d 671 (5th Cir.

United B. 1982); after summary judgment,

see €.g., Heaven v. Trust Co. Bank, 118

F.3d 735 (11th Cir. 1997); after trial,

see, @.g.,

Beach, 875 F.2d 1546 (11th Cir. 1989);

or pursuant to Fed.R.Civ.P. 54(b), as in

the instant case. i)

30

The district court’s reading of the

law that controls its discretionary

certification decision is of course

reviewed de novo for error. As noted

supra, rulings on such questions of law

can also support a discretionary

interlocutory appeal under 28 U.S.C.

§ 1292(b).

A-81

rule admittedly might lead a few

disappointed putative class members to

refrain from filing individual lawsuits

prior to an eventual reversal of the

district court’s denial of class

et certification. The dissent’s rule might

thereby avoid some duplicitous,

unnecessarily costly litigation in the

few cases where we find the district

court to have abused its discretion.

But this small measure of added

efficiency would come at too high a

cost.

First, continuing to toll the

statute of limitations through trial and

through the entire appeals process would

seriously contravene the policies

underlying statutes of limitations.

Statutes of limitations are intended to

prevent “the revival of claims that have

been allowed to slumber until evidence

has been lost, memories have faded, and

witnesses have disappeared." Order of

Agency, 321 U.S. 342, 348-49, 64 S.Ct.

582, 586, 88 L.Ed. 788 (1944).°' If we

31 age discrimination cases are

especially likely to grow stale, as many

plaintiffs and witnesses are at or near

retirement age when the litigation

commences, and could be in failing

health or deceased by the time a final

judgment is entered and appellate review

of the class certification decision has

run its lengthy course.

A-82

accept the appellants’ argument, the

statute of limitations will remain

tolled, in many cases, for several

years. ' The case at bar, for instance--

which comes to us upon the entry of a

Rule 54(b) judgment, without triai--was

initiated when the appellants opted into

the already~-extant Carmichael action

almost five years ago. See Neison v.

, 60 F.3d 1010, 1013,

(3d Cir. 1995) (holding that such an

extended tolling period would be

“unreasonable"), cert. denied sub nom

’

U.S. __, 116 S.Ct. 1266, 134 L.Ed.2da

213 (1996). The potential length of the

delay certainly increases the

possibility that evidence will be lost,

memories will fade, and witnesses will

disappear. In short, the dissent’s rule

(to the extent that excluded putative

class members might take advantage of

32

See supra note 5.

A-83

it) would leave cases in limbo for

years at a time.

Moreover, the extended tolling

period may be expected to prejudice many

defendants because plaintiffs will be

able to choose when to file their

suits.“ As the Court noted in American

33

The dissent’s tolling rule, if

utilized by disappointed putative class

members, would leave them waiting for

years for tolling to end, along with the

defendants. We doubt whether many

Claimants would in fact delay their day

in court by several years in hopes of

success on appeal, simply because any

such hopes are usually slight. As

explained in the text, to the extent

that claimants might be inclined to rely

on appeals of the denial of class

certification, such reliance is

unreasonable and is to be discouraged.

To the extent that excluded putative

class members might in fact take

advantage of the dissent’s rule, they

could be expected to do so in large part

because of the rule’s prejudicial effect

on defendants. See discussion infra.

* ay conditioning tolling upon the named

plaintiffs’ decision to appeal and upon

putative class members’ decisions to

file individual suits, the dissent’s

rule would leave decisions regarding the

tolling period in the hands, not of the

court, but of plaintiffs and putative

A-84

Pipe, class action procedure prior to

the 1966 revision of Rule 23 was

criticized for allowing putative class

members in some situations to wait until

final judgment on the merits of an

action before determining whether

participation in the action was in their

best interests. American Pipe, 414 U.S.

at 545-47, 94 S.Ct. 762-63. Putative

class members could thereby "benefit

from a favorable judgment without

subjecting themselves to the binding

class members. The potential for abuse

under such an arrangement is

significant. Defendants, for instance,

regularly extract waivers of the right

to appeal from named plaintiffs at

settlement, and named plaintiffs have a

powerful incentive to grant such

waivers; under the dissent’s rule, the

granting of such a waiver would

presumably cause the limitations period

to resume running--an unpleasant

surprise for putative class members,

whom the dissent wants to rely on the

appeals process. The dissent’s rule

would also encourage plaintiffs and

plaintiffs’ counsel to file overly broad

class complaints; if the limitations

period may be tolled indefinitely merely

by the filing of a class complaint,

there will be an incentive to draw the

putative class in the broadest terms

possible, so as to toll limitations even

as regards claimants who cannot

reasonably expect to be included in any

class.

A-85

effect of an unfavorable one." Id. at

547, 94 S.Ct. at 763. The dissent’s

preferred rule would make such abuse

possible again.

The threat of such delay and such

prejudice would cause many defendants

not to contest motions for class

certification. The costs to a defendant

of this unlimited extension of the

tolling period--not knowing when its

exposure to claims of putative class

members will end--may be such that the

defendant forgoes a meritorious defense

to certification and instead agrees to

litigate all the putative class claims

in the instant case. Thus, the

dissent’s rule would impose an

unnecessary--and perhaps an intolerable-

-tax on the judiciary, as courts are

forced to preside over large class

actions as to which a meritorious

defense exists but has not been

proffered.

Although appeals from denials of

class certification can take years, the

certification decision itself should

come early in the litigation. Rule 23

counsels early determination of motions

for class certification. See

Fed.R.Civ.P. 23(c)(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"). In fact,

motions to certify are filed, on

average, within three to four months

after the filing of an action, and the

A-86

EE EE EEE

motions are ruled upon, on average,

within three to eight months. See

Willging et al., 71 N.Y.U.L. Rev. at

101-02. See also 28 U.S.C. § 476 (1994)

(requiring motions pending for more than

six months to be included in semi-annual

report under Civil Justice Reform Act).

If the district court acts seasonably in

deciding the certification issue, the

extension of the limitations period

under the Crown, Cork rule should not be

great. See American Pipe, 414 U.S. at

562, 94 S.Ct. at 770 (Blackmun, J.,

concurring) (noting that district courts

can make the tolling rule more fair to

defendants by making the class

certification decision promptly).

Therefore, if the district court’s

denial of certification triggers the

resumption of the limitations period,

then the litigants--named plaintiffs,

potential class members, and the

defendant-~should know at an early stage

in the litigation how long the statute

of limitations will be tolled. In

contrast, under the dissent’s preferred

rule, litigants often would have to wait

for years for tolling to end. Waiting

until the appellate process has run its

course, or until the time for taking an

appeal has expired, creates far greater

uncertainty as to when the limitations

period will resume running than the

uncertainty, if any, created by the

Crown, Cork rule.

D.

As the preceding discussion

indicates, interlocutory appeals of

denials of class certification are

relatively uncommon and are very rarely

successful. Therefore, reliance on the

possibility of reversal upon an

interlocutory appeal is unreasonable.™

35

Proposed Federal Rule of Civil

Procedure 23(f), holds the potential to

change this analysis if passed in its

current form. Proposed Rule 23(f)

reads:

(f) Appeals. A court of appeals may in

its discretion permit an appeal from an

order of a district court granting or

denying class action certification under

this rule if application is made to it

within ten days after entry of the

order. An appeal does not stay

proceedings in the district court unless

the district judge or the court of

appeals so orders.

167 F.R.D. 559, 560 (1996). If the rule

passes, and if it significantly

increases the frequency of interlocutory

appeals of class certification orders--a

development which would depend in large

part upon how this court chooses to

exercise the discretion granted to it by

the proposed rule--then we may revisit

the decision taken today, and might for

instance allow continued tolling of

statutes of limitations during the

pendency of an appeal under the new

A-88

i alll

This proposition is as true for the

dissent as it is for disappointed

putative class members; since

interlocutory appeals are uncommon and

rarely successful, the dissent’s

preferred rule would often toll the

statute of limitations through a final

judgment as well as through multi-issue

appeals--a process that can take years--

on the off chance that a few filings

will be saved by the slim prospect of a

rule. We decline, however, to speculate

regarding how we might exercise our

discretion under the proposed rule and

to decide the instant case in reliance

upon an as-yet unenacted rule.

The dissent also suggests that a

stay of a district court’s order denying

class certification pending review under

the proposed rule would operate to toll

the limitations period until the

interlocutory appeal has been settled.

We do not find support for this

proposition in the text of the proposed

rule. In the absence of guidance, we do

not hold that a stay of a district

court’s order denying certification

would toll the limitations period,

either under the proposed rule or under

the law controlling our decision today.

A stay of an order does not constitute a

challenge to that order, and a stay of a

denial of class certification in itself

offers no reasonable hope for later

reversal of the order.

A-89

a ————

successful appeal.™ This is

fundamentally different from Crown, Cork

tolling of the limitations period during

the pendency of the motion for

certification in the district court.

Crown, Cork tolling is short and saves

numerous filings by encouraging

reasonable reliance on the pending class

action. Tolling under the dissent’s

proposed rule would be long and would

save few filings by encouraging

unreasonable reliance on the slin.

possibility of reversal after a long

appeal. This is simply too high a cost

for too little benefit.

Moreover, the dissent’s analysis

fails to delineate how its rule would

operate when, as happens in perhaps the

greatest number of class actions, the

named plaintiffs (along with, perhaps,

members of a partially-certified class)

settle their claims after denial of

certification. When, under the

dissent’s rule, does the statute of

limitations resume running? When the

stipulation of dismissal or the final

judgment is entered? After appeal by

the named plaintiffs (who now have

little incentive to pursue years of

appeals)? And what if disappointed

Rote that the dissent’s rule would

justifiably save filings only when the

district court has abused its

discretion--that is, in the uncommon

case.

A-90

putative class members seek to

intervene, as in United Airlines, for

the purpose of appeal? Should they be

given the benefit of years of continued

tolling, despite the fact that their

chances for success on appeal are

terribly slim? This is not the idle

nit-picking. The earlier the event that

triggers the resumption of the

limitations period--say, the joint

stipulation of dismissal--the greater

the potential for prejudicial surprise

of excluded putative class members. >’

The later that event--say, the final

failure of an appeal by intervening

putative class members--the greater the

potential that cases will grow stale.

The dissent anticipates that we might

work these sorts of problems out in due

course. We prefer to avoid these

problems altogether, with a clear rule

that operates early in the litigation

37

The NAACP Legal Defense Fund, as amici

curiae, have suggested that we today

fashion a rule requiring the

courts to notify excluded putative class

members of the court’s denial of

certification in all class actions, as

is required in ADEA "opt-in" class

actions. We regard this as an

unworkable proposition and, in any case,

we do not think it unjust to require

that claimants who take advantage of

Crown, Cork tolling also monitor

developments in the district court and

file individually when necessary.

A-91

m |

and that settles the tolling question

with regard to all parties at once.*

We therefore conclude thet the

pendency of a class action tolls the

applicable statute of limitations only

until the district court makes a class

certification decision. If class

certification is denied in whole or in

part, the statute of limitations begins

to run again as to those putative class

members who were excluded from the

Class. In order to protect their

rights, such individuals must seek to

intervene in the pending action (like

the plaintiffs in American Pipe), or

file a separate individual action (like

the plaintiff in Crown, Cork) before the

time remaining in the limitations period

expires. If the dismissed class member

takes no such action within the

38

In contrast, under the dissent’s rule,

the tolling period would vary widely

from case to case--depending on whether

the named plaintiffs settle, or prevail

at trial and do not seek review through

appeal or cross-appeal of the

certification issue, or lose at trial

and take all appeals due them. The

limitations period would be dictated by

the time it takes to bring a case to

conclusion in the district court and to

allow the appellate process to run, and

by the plaintiffs’ strategic decisions

regarding which actions to take, and

when.

A-92

remainder of the limitations period,

then he may neither fie a suit in his

own name nor intervene in the already-

pending action. In such a situation,

the dismissed class member’s only avenue

of relief is to wait until the pending

action reaches final judgment, and then,

like the plaintiff in United Airlines,

file a timely motion to intervene for

the limited purpose of appealing the

district court’s class certification

decision.

The appellants argue that the rule

we adopt will force disappointed

putative class members to choose between

1) filing an individual lawsuit within

the statute of limitations period or 2)

exercising their right to appeal the

denial of class certification. This

does not have to be the case. A

putative class member who wishes to

preserve both rights should file her

individual suit and immediately seek a

stay of the individual suit pending the

outcome of an appeal from the denial of

class certification.” If, in the

39

The disappointed putative class member

might also seek consolidation of his

case with the original class action

pursuant to Fed.R.Civ.P. 42. The

dissent’s rule, we note, would frustrate

the policy behind consolidation of

cases: Most disappointed putative class

members’ individual suits would not be

amenable to consolidation under the

A-93

judgment of the district (or state)

court to whom the application for a stay

has been made, the plaintiffs hopes for

reversal of the initial denial of class

certification are strong, and if the

delay caused by the stay will not be too

great, the court may, in its discretion,

grant the stay; if the court believes

that the chances of reversal are be slim

or the delay caused by waiting for the

appellate process to conclude will be

too long (as will usually be the case),

the stay will properly be denied, and

the plaintiff will properly have to

proceed individually. This is a just,

efficient result.

IV.

In light of our conclusion that the

limitations period recommenced when the

dissent’s rule, because under that rule,

disappointed putative class members may

choose to file their individual suits at

any point during the years-long process

of trial and appeal. Many of these

individual cases would presumably be

filed at widely different times, and

consolidation would therefore not be

practicable. In contrast, under the

rule we adopt, the class certification

decision and subsequent decisions to

file individual suits--and therefore

also decisions regarding consolidation

of those suits--will come early in the

litigation and all at roughly the same

time.

A-94

district court dismissed appellants from

the Carmichael] class action, we now

address whether any of the appellants

complied with the applicable statute of

limitations.“

*oohe dissent argues that the rule we

adopt today should not apply

retroactively to the appellants.

Retroactive application of a "new" rule

of law may be avoided only if:

1) the decision adopting the rule

does so “either by overruling clear

past precedent or by deciding an

issue of first impression the

resolution of which was not clearly

foreshadowed;" and

2) “the application of the old

rule in the instant case [does] not

contravene the purpose and

operation of the provision being

interpreted;" and

3) “application of the new rule

in the instant case [would] be

inequitable."

, 20 F.3d 1550, 1565

(llth Cir. 1994). The precedent

discussed in the text clearly

foreshadows the result we reach today.

We therefore apply today’s holding

retroactively.

A-95

Civil actions under the ADEA must

be filed within ninety days after the

plaintiff receives notice of the EEOC’s

dismissal of the age discrimination

charge. See 29 U.S.C. § 626(e) (1994).

Three appellants (Davis, Havlish, and

Hinduja) were named plaintiffs in

Carmichael prior to their dismissal on

April 7, 1994. Hinduja’s employment at

Martin Marietta was terminated on April

24, 1992; Davis’ employment was

terminated on May 8, 1992; and Havlish’s

employment was terminated Jan. 1, 1993.

The inadequate record on appeal does not

disclose when the Carmichael action was

filed, or when these three appellants

might have intervened therein. These

three appellants’ claims are certainly

barred, however, even if we assume that

Davis, Havlish and Hinduja filed motions

to intervene in the Carmichael action

immediately upon receipt of their right-

to-sue letters from the EEOC. If these

three appellants had filed immediately,

they would have retained ninety days

from the Carmichae] court’s April 7,

1994, dismissal order to which to bring

suit. The instant lawsuit was not filed

until October 11, 1994, which is well

beyond the end of the ninety-day

limitations period. Havlish’s,

Hinduja’s and Davis’ claims are

therefore barred.

Twenty-two appellants (Armstrong,

Barger, Brooks, Budd, Carter, Cizek,

A-96

Giessuebel, Glaser, Jett, Lerche, *'

Lightner, McGuirk, Murphy, Prasky,

Rains, Richards, Ryan, Smith, Sylvestri,

Turner, Walsh, and Williamson) received

EEOC right-to-sue letters while they

were still putative class members in the

Carmichael action (i.e., they received

their notices after they opted into the

class action on June 4, 1993,

but before the Carmichael court’s April

7 partial denial of certification).

These twenty-two appellants thus

retained ninety days from the

court’s April 7, 1994, dismissal order

in which to bring suit. Three other

appellants (Black, Davis, and Roberts)

received their EEOC notices before

opting into the Carmichae] class action;

thus, they had less than ninety days

from the Carmichael court’s April 7,

1994, dismissal order in which to file

suit. The instant lawsuit was not filed

until October 11, 1994, which is well

beyond the end of the limitations period

with regard to all twenty-five

41

Appellant Lerche’s EEOC notice is not

in the record; however, an undisputed

affidavit filed by the appellees

indicates that the EEOC orally informed

Lerche of the dismissal of his age

discrimination charge while he was a

putative member of the Carmichael] class

action. In any event, appellants do not

argue that Lerche should be treated

differently.

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_—

appellants named above. Their claims

are therefore barred.

The record indicates that the EEOC

notified McLean of the dismissal of his

age discrimination charge on June 30,

1994--over two months after the

Carmichael court’s dismissal order.

Accordingly, McLean had ninety days from

the date on which he received the June

30, 1994, EEOC notice in which to file

suit. Because the instant suit was

filed on October 11, 1994, it is not

timely as to appellant McLean.

Invoking the "piggybacking" rule,

three appellants--Clarke-Iley, Johnson,

and Shaw--never filed age discrimination

charges with the EEOC.** Clarke-Iley,

Johnson, and Shaw had 300 days from the

date of their termination by Martin

Marietta to file a charge with the EEOC.

See 29 U.S.C. § 626(d) (1994) (providing

that, in an ADEA case arising in a state

that has its own fair employment

practice agency, as does Florida, EEOC

Claims must be filed within 300 days of

the allegedly illegal employment

action). Shaw’s employment with Martin

Marietta was terminated on Sept. 25,

42

Instead of filing their own EEOC

charges, the three appellants relied on

the timely-filed EEOC charge of Raymond

T. McGoldrick, one of the named

plaintiffs in the Carmichael class

action.

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1994; Johnson’s was terminated on Oct.

2, 1992; and Clarke-Iley’s was

terminated on Oct. 9, 1992. All three

then opted into the Carmichael] action on

June 4, 1993. The EEOC administrative

charge filing period was tolled as to

Clarke-Iley, Johnson and Shaw during the

pendency of their participation in the

class action--that is, from

the time the Carmichae] action was filed

until the district court, on April 7,

1994, certified a class that did not

include the appellants. See Seaetin. 27

F.3d at 359-61 (11th Cir. 1994) (holding

that "the [EEOC] charge-filing period

for the individual claims asserted in [a

Title VII class action is] tolled during

the pendency of the class action").

Thus, Clarke-Iley, Johnson, and Shaw

each had much less than 300 days after

the entry of that order to file charges

with the EEOC; specifically, Clarke-Iley

had 64 days remaining in the limitations

period when the district court denied

certification on April 7, 1994; Johnson

had 59 days left; and Shaw had 54 days

43

Martin Marietta asserts that all three

opted in much later than June 4, and

that all three actually opted in after

the 300-day EEOC filing period had

elapsed. The inadequate record on

appeal, however, does not establish this

assertion. We therefore adhere to our

assumption, see note 6, supra, that all

appellants opted in on June 4. The

result remains the same.

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left. These periods elapsed even before

the instant action was filed in the

district court, at which time none of

these appellants had filed a timely

charge with the EEOC.“ Their claims are

therefore barred by the administrative

statute of limitations and by the

requirement that a prospective plaintiff

file a timely charge of discrimination

with the EEOC prior * suit in federal

court. See 29 U.S.C. § 626(d) (1994).”

Finally, the appellants also make

an alternative argument that the statute

44

We reach this conclusion on the basis

of an undisputed affidavit, filed by a

Martin Marietta EEO officer, which

states that none of three appellants

filed with the EEOC before the date of

the affidavit (January 17, 1995).

45

Less this result seem inequitable, we

note that appellants’ counsel discussed

at length in their

response to Martin Marietta’s motion for

partial summary judgment, and relied on

that opinion’s adoption of the

"“piggybacking" rule in arguing for the

inclusion of Clarke-Iley, Johnson and

Shaw in the instant action. It is not

inequitable to hold these appellants to

‘s other holding; that once class

certification has been denied to a

piggybacking claimant, she must hie

herself to the EEOC in order to seek

further consideration of her clain.

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of limitations should be “equitably

tolled,” because the EEOC told several

of them (Armstrong, Cizek, Richards and

Walsh) that the statute of limitations

gave them two or three years in which to

file suit,“ and because the EEOC failed

to notify a number of other appellants

(Barger, Brooks, Budd, Carter,

Giesseubel, Glaser, Havlish, Jett,

McGuirk, Murphy, Prasky, Rains, Smith,

Sylvestri, Turner and Williamson) that

any statute of limitations applied.

This argument has merit with regard to

the four appellants who were

affirmatively misinformed by the EEOC

regarding the statute of limitations.

See . 120 F.3d

222, 225-27 (11th Cir. 1997) (applying ~

equitable tolling in ADEA case when EEOC

affirmatively misinformed plaintiff

regarding statute of limitations). We

therefore hold that the ninety-day

statute of limitations was equitably

tolled with regard to appellants

Armstrong, Cizek, Richards, and Walsh

until they filed the instant action. We

therefore reverse the district court’s

Summary judgment against them and allow

them to proceed.

We do not, however, accord

equitable tolling to the appellants who

complain that the EEOC’s right-to-sue

46

The EEOC was apparently relying on the

pre~1991 ADEA statute of limitations.

See supra note 4.

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letters failed to notify them that the

statute of limitations for bringing an

individual claim would resume running as

of the date of the letter. Appellants

have cited

v. Brown, 466 U.S. 147, 151, 104 S.Ct.

1723, 80 sie Ed.2d 196 (1984), and Gates

, 492 F.2d 292,

295 (9th Cir. 1974), in support of the

proposition that the EEOC is required to

inform a complainant, in the right-to-

sue letter, that the statute of

limitations resumes running as of the

date of the letter. If the EEOC fails

to do so, the appellants have argued,

then the statute should be tolled.

Even if the above-cited cases do

establish that proposition, they are

readily distinguished from the instant

case. In Baldwin and Gates (and in

Browning supra, which in dicta read

Baldwin and Gates much like the

appellants), the right-to-sue letter (or

an analog thereto) was received long

prior to the initiation of any private

litigation by the claimant. The EEOC’s

letters to appellants Barger, Brooks,

Budd, Carter, Giessuebel, Glaser,

Havlish, Jett, McGuirk, Murphy, Prasky,

Rains, Smith, Sylvestri, Turner and

Williamson, in contrast, informed them

that their EEOC complaints were being

terminated because they were part of the

ongoing Carmichae] litigation. At the

time that these appellants received

notice that their EEOC complaints were

being terminated, they were aware that

they had claims against Martin Marietta

A-102

under the law; they were represented by

counsel; and they were in fact putative

class members (and in Havlish’s case, a

named plaintiff), in an ongoing ADEA

class action. Under these

circumstances, these appellants were as

well-prepared to ascertain the

requirements of the statute of

limitations as any claimant. Equitable

tolling of the limitations period with

regard to these appellants would

“contravene({] the normal rule that

ignorance of legal rights or failure to

seek legal advice does not toll the

statute,"

Co., 704 F.2d 1527, 1530 (11th Cir.

1983) (internal quotations marks and

citations omitted), and is unwarranted.

We therefore decline to hold that the

statute of limitations was equitably

tolled with regard to these appellants.

CONCLUSION

Because we hold that, in the

absence of controlling authority to the

contrary, statute of limitations resume

running immediately upon the district

court’s entry of an interlocutory order

denying class certification, we AFFIRM

the district court’s grant of summary

judgment against appellants Barger,

Black, Brooks, Budd, Carter, Davis,

Giessuebel, Glaser, Havlish, Hinduja,

Jett, Lerche, Lightner, McGuirk, McLean,

Murphy, Prasky, Rains, Roberts, Ryan,

Smith, Sylvestri, Turner, and

Williamson.

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We also AFFIRM the district court’s

grant of summary judgment against

appellants Clarke-Iley, Johnson, and

Shaw, because their claims are barred by

the administrative statute of

limitations and by the requirement that

a prospective plaintiff file a timely

charge of discrimination with the EEOC

prior to suit in federal court.

Finally, we hold that the ninety-

day statute of limitations was equitably

tolled with regard to appellants

Armstrong, Cizek, Richards, and Walsh

until they filed the instant action. We

therefore REVERSE the district court’s

summary judgment against them and REMAND

the case so that they may proceed.

SO ORDERED.

EDMONDSON, Circuit Judge, concurring, in

which BIRCH and BARKETT, Circuit Judges,

join:

I concur in the result and in all

but Part III of the court’s opinion.

The question before us is whether

the ADEA’s statute of limitations was no

longer tolled once the district court

denied class certification. I agree

that, although the statute of

limitations is tolled while a class

action is pending, the statute is no

longer tolled when class certification

is denied by the district court. But we

need not decide such issues as the

limits of the appealability (or the

A~-104

Sarees ST ll ee ea oe ee ee |

likelihood of success on appeal) of a

district court’s denial of class

certification. Therefore, while the

court’s discussion in Part III might be

legally correct, I do not believe the

discussion is necessary to decide this

case. So, I do not concur in that part

of today’s court opinion.

HATCHETT, Chief Judge, dissenting in

part, concurring in part:

I respectfully dissent in part, and

concur in part. For the reasons

expressed below, I would reverse the

district court’s ruling that 29 U.S.c.

§ 626(e) operates to bar the individual

ADEA lawsuits of the appellants and

remand for further proceedings.

In i

Corp., 93 F.3d 1505 (11th Cir. 1996), a

divided panel of this court outlined

three options that plaintiffs who have

been dismissed from class actions may

take to protect their rights to litigate

their claims individually before the

applicable statute of limitations runs.

The court agreed to reconsider the

panel’s decision en banc, Armstrong v.

, 107 F.3d 830 (11th

Cir. 1997) (en banc). The principal

question that brought this case en banc

concerned what action ousted class

members may take to protect their

rights.

The Judicial Conference of the

United States, through its Committee on

A-105

Rules of Practice and Procedure, has now

effectively answered that question. An

amendment to the Federal Rules of Civil

Procedure that is currently pending

details a clear procedure for avoiding

an undesirable result like the one that

the majority endorses today. See

Proposed Fed.R.Civ.P. 23(f).*” The

proposed amendment vests in the federal

appellate courts the discretion to

permit an appeal from an order of a

district court granting or denying class

action certification if an application

is made within ten days after the entry

of the district court’s order. Under

the proposed amendment, the court of

appeals and the district court would

each have the discretion to stay

proceedings pending the appeal--an

action that would also operate to

47

Proposed Federal Rule of Civil

Procedure 23(f) states:

(f) Appeals. A court of appeals may in

its discretion permit an appeal from an

order of a district court granting or

denying class action certification under

this rule if application is made to it

within ten days after entry of the

order. An appeal does not stay

proceedings in the district court unless

the district court judge or the court of

appeals so orders.

A-106

continue the tolling of any applicable

statute of limitations.“

Of course, the proposed amendment

has not yet been adopted.*? put that

48

Unlike the majority, I find no reason

not to conclude that a stay necessarily

tolls the applicable statute of

limitations. After all, “[(tjo ‘stay’ an

order. . . means to hold it in abeyance,

or refrain from enforcing it." Black’s

Law Dictionary 1267 (5th ed. 1979). In

the abundance of caution, however,

ousted plaintiffs may wish to accompany

their motion to stay with a motion

asserting that good cause exists for

continued tolling.

49

On November 12, 1997, the Judicial

Conference of the United States

forwarded the proposed amendment to the

Supreme Court with the recommendation

that the "amendment be approved by the

Court and transmitted to the Congress

pursuant to law." Memorandum from

Leonidas Ralph Mecham, Director,

Administrative Office of the United

States Courts, to the Chief Justice of

the United States and the Associate

Justices of the Supreme Court (Nov. 12,

1997). See 28 U.S.C. §§ 2072-74 (1994).

On or before May 1, 1998, the Supreme

Court will decide whether to approve the

proposed rule and transmit it to

Congress. See 28 U.S.C. § 2074(a). If

adopted, the rule could take effect as

A-107

does not mean that the courts currently

lack the supervisory authority to extend

the doctrine of tolling to fashion an

interim rule, so long as that rule

promotes the purposes of Federal Rule of

Civil Procedure 23 and does not

encourage dismissed class members to

"“sleep({] on their rights." Crown, Cork

, 462 U.S. 345, 351

(1983). In the interim, the appropriate

answer to the central question before

the court-- that is, whether the tolling

of the ADEA’s ninety-day statute of

limitations due to the plaintiffs’

membership in a pending class action

remained tolled when the district court

dismissed the plaintiffs from the

pending class action in an interlocutory

order ~-- turns on the policy

considerations animating tolling in the

first instance, and the interplay

between those policy considerations and

the purposes statutes of limitations

serve.

In Crown, Cork & Sea], the Supreme

Court indicated that "the commencement

of a class action suspends the

applicable statute of limitations as to

all asserted members of the class who

i} would have been parties had the suit

a been permitted to continue as a class

action." 462 U.S. at 349. According to

the Court, tolling is appropriate when a

Class action is pending in order to

early as December 1, 1998. See 28

U.S.C. § 2074(a

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