Consumer Law

Third Circuit Ruling On Permissive Class Certification Appeals Under Rule 23(f)

By Brian Wolfman

by Brian Wolfman

Federal Rule of Civil Procedure 23(f) says a court of appeals may permit an appeal from a district court order granting or denying class certification if a petition for permission to appeal is filed with the court of appeals within 10 days of entry of the district court?s order. In Gutierrez v. Johnson & Johnson, No. 07-8025 (3d Cir. Apr. 22, 2008), a race discrimination class action, the district court denied class certification, and the plaintiffs moved for reconsideration 30 days later. The district court denied the reconsideration motion, and the plaintiffs petitioned for permission to appeal within 10 days of that denial. The Third Circuit dismissed the Rule 23(f) petition as untimely. The court of appeals noted that regardless of whether Rule 23(f)?s 10-day deadline is ?jurisdictional,? it is nevertheless ?strict and mandatory? ? meaning, presumably, that it will be enforced in virtually every case. The court of appeals dismissed the petition because the plaintiffs did not seek permission to appeal or reconsideration in the district court within 10 days of denial of class certification. I understand the first part of the Third Circuit?s holding. Rule 23(f) says 10 days, and so if you miss the deadline, you?re out of luck. But I don?t understand the second part. The court of appeals said that if the losing party seeks reconsideration within 10 days of the district court?s class certification, then the 10-day time limit disappears and starts anew after the motion for reconsideration is ruled on. Why? What?s a motion for reconsideration anyway? And what?s the origin of the 10-day period for seeking reconsideration? Is it imported from Rule 23(f), which says nothing at all about motions for reconsideration?

Full post as published by CL&P Blog on April 28, 2008 (boomark / email).