Lambert v. Nutraceutical Corp., No. 15-56423 (9th Cir. 2017)
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The Federal Rule of Civil Procedure 23(f) deadline, which governs interlocutory appeals of orders granting or denying class action certification, is not jurisdictional, and thus equitable exceptions apply. The Ninth Circuit held that a motion for reconsideration filed within the Rule 23(f) deadline will toll the deadline; additional equitable circumstances may also warrant tolling; and, in this case, the Rule 23(f) deadline was tolled when counsel for the lead plaintiff, within fourteen days of the district court's decertification order, informed the court of his intention to
seek reconsideration, explained his reasons for doing so, and the court set a date for filing the motion with which counsel complied. On the merits, the panel held that the district court abused its discretion in decertifying the class. Accordingly, the court reversed and remanded for further proceedings.
Court Description: Fed. R. Civ. P. 23(f) & 23(b)(3) / Class Certification. The panel concluded that plaintiff’s Fed. R. Civ. P. 23(f) petition for class certification was timely filed with this court; reversed the district court’s order decertifying the class; and remanded for further proceedings. Rule 23(f) governs interlocutory appeals of “order[s] granting or denying class-action certification,” and requires that a petition for permission to appeal be filed “within 14 days after the order is entered.” Fed. R. Civ. P. 23(f). The plaintiff filed his motion for reconsideration twenty days after the district court decertified the class. The panel held that the fourteen-day Rule 23(f) deadline was not jurisdictional. Specifically, the panel that under Bowles v. Russell, 551 U.S. 205 (2007), and Eberhart v. United States, 546 U.S. 12 (2005), the Rule 23(f) deadline was not jurisdictional because it was procedural, did not remove a court’s authority over subject matters or persons, and was in the Federal Rules of Civil Procedure, rather than in a statute. The panel held that because the Rule 23(f) deadline was not jurisdictional, equitable exceptions, such as tolling, might apply. The panel also held that a motion for reconsideration filed within the Rule 23(f) deadline would toll the deadline. LAMBERT V. NUTRACEUTICAL CORP. 3 The panel held that the Rule 23(f) deadline could be tolled as a result of additional equitable circumstances. The panel further held that a number of equitable factors supported tolling the Rule 23(f) deadline. The panel held that because plaintiff informed the court orally of his intention to seek reconsideration of the decertification order and the basis for his intended filing within fourteen days of the decertification order and otherwise acted diligently, and because the district court set the deadline for filing a motion for reconsideration with which plaintiff complied, the Rule 23(f) deadline should be tolled. The panel noted that other circuits would likely not toll the Rule 23(f) deadline in this case, and would only allow tolling when the motion for reconsideration was filed within the fourteen-day period. The panel concluded that plaintiff’s Rule 23(f) petition was timely filed in this court. Turning to the merits of the certification petition, the panel held that the district court abused its discretion in decertifying the class on the basis of plaintiff’s inability to prove restitution damages through the full refund model. Plaintiff brought his consumer class action under Fed. R. Civ. P. 23(b)(3), which requires that a plaintiff show a class wide method for damages calculations as a part of the assessment of whether common questions predominate over individual questions. The full refund model measures damages by presuming a full refund for each customer, on the basis that the product has no, or only a de minimis, value. The panel held that because plaintiff’s damages model matched his theory of liability, and because plaintiff had shown that his damages model was supportable on evidence that could be introduced at trial, the class should not have been decertified. The panel further held that whether plaintiff could prove damages to a reasonable certainty on the basis of his full 4 LAMBERT V. NUTRACEUTICAL CORP. refund model was a question of fact that should be decided at trial on remand.
The court issued a subsequent related opinion or order on August 27, 2019.
Subsequent History
- Nutraceutical Corp. v. Lambert, No. 17-1094 (U.S. Feb. 26, 2019)
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