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U.S. Supreme Court Holds Federal Rule of Civil Procedure 23(f) Is Not Subject to Equitable Tolling

In a decision important to class action practice, the U.S. Supreme Court has held that Federal Rule of Civil Procedure 23(f), which establishes a 14-day deadline to seek permission to appeal an order granting or denying class certification, is not subject to equitable tolling. Nutraceutical Corp. v. LambertNo. 17-1094 (Feb. 26, 2019).

Equitable tolling is a legal doctrine providing that a statute of limitations will be suspended or temporarily stopped based on principles of equity. For example, when a plaintiff does not discover an injury until after the statute of limitations has expired, despite reasonable care and diligent efforts, equitable tolling of the statute of limitations would allow that plaintiff to bring his action even though it was untimely.

Rule 23(f) provides that a “court of appeals may permit an appeal from an order granting or denying class-action certification under this rule if a petition for permission to appeal is filed with the circuit clerk within 14 days after the order is entered.” The Supreme Court has been examining the dividing line between jurisdictional rules and non-jurisdictional claim-processing rules over the last decade. Jurisdictional rules cannot be equitably tolled because, absent jurisdiction, a court has no power to issue any holding in a case.

In this case, plaintiff Troy Lambert filed a putative class action taking aim at Nutraceutical Corp.’s sale and marketing of dietary supplements, alleging violations of California’s false advertising, consumer fraud, and unfair competition laws. After the district court first certified and then decertified the class, Lambert asked the court to recertify the class. At that point, Lambert had 14 days to file a Rule 23(f) petition with the U.S. Court of Appeals for the Ninth Circuit for permission to appeal the order. Instead of filing with the Ninth Circuit at that point, he told the district court he wanted to file a motion for reconsideration, and the district court gave him 10 days to do so — no later than March 12th. Lambert filed the motion on March 12th, the district court denied it, and 14 days later, Lambert filed a Rule 23(f) petition with the Ninth Circuit to appeal the decertification order. By then, more than four months had passed since the district court’s initial order decertifying the class, so the Rule 23(f) petition was untimely.

The Ninth Circuit held the Rule 23(f) petition was timely because Rule 23(f)’s time limitation was not jurisdictional, and equitable tolling should apply under the circumstances. Nutraceutical petitioned the U.S. Supreme Court for review based on the existing circuit split.

In a unanimous decision penned by Justice Sonia Sotomayor, the Supreme Court agreed that Rule 23(f)’s time limitation is not jurisdictional; however, it held that the Rule 23(f) is not subject to equitable tolling.

The Court held that Rule 23(f) is a non-jurisdictional claim-processing rule because it is found in a procedural rule rather than a statute. However, the Court wrote, “The mere fact that time limit lacks jurisdictional force … does not render it malleable in every respect.” The Court drew a distinction between “mandatory” claim-processing rules, which are “‘unalterable’ if properly raised by an opposing party,” and procedural rules where the text “leaves room for flexibility.” Mandatory claims-processing rules are not susceptible to equitable tolling. The Court held, “Where the pertinent rule or rules invoked show a clear intent to preclude tolling, courts are without authority to make exceptions merely because a litigant appears to have been diligent, reasonably mistaken, or otherwise deserving.”

This decision will prevent a party from filing a tardy Rule 23(f) motion, and the bright line drawn provides clarity for plaintiffs and defendants alike.

Jackson Lewis P.C. © 2019

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About this Author

David Golder, Jackson Lewis, wage hour dispute attorney, Fair Labor Standard Act Lawyer
Principal

David R. Golder is a Principal in the Hartford, Connecticut, office of Jackson Lewis P.C. Mr. Golder has extensive experience handling class and complex litigation, including nationwide, high-stakes wage and hour disputes. Mr. Golder defends employers in class-based, multi-plaintiff, and multi-district wage and hour class and collective actions involving claims for employee misclassification, improper payment of wages, off-the-clock work, and meal and rest break violations. Mr. Golder also provides preventive advice and counsel to employers wishing to limit their...

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Collin O'Connor Udell, Attorney, Jackson Lewis Law Firm, Supreme Court Litigation
Of Counsel

Collin O’Connor Udell is Of Counsel in the Hartford, Connecticut, office of Jackson Lewis P.C. Her practice focuses on United States Supreme Court litigation and on complex or novel issues arising in other federal appeals. She has taken a central role in 35 cases before the United States Supreme Court, some of which have been widely acknowledged as among the most important cases of the last few terms.

In addition to her Supreme Court experience, Ms. Udell has represented clients in a wide variety of cases in the federal courts of appeals, including matters involving statutory construction and labor and employment.

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