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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1998
- **Citation:** 525 U.S. 1019

## Text

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,

Ve

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
kkkkkkkkkeekerekkeeeereeeeeeeeRRKRKKKKKES

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 cau

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_1683%3A1. Public record. Not legal advice.