Supreme Court Holds Rule 23(f) FRCP Requires Strict Compliance
Nutraceutical Corporation V. Lambert, (U.S. Sup. Ct. (No. 17-1094, Feb. 25, 2019)
By: Arthur Crais
Rule 23(f) of the Federal Rules of Civil Procedure permits appeals of an order granting or denying class certification if the party wishing to appeal seeks permission within 14 days after the order is entered from the district clerk of the court of appeals. After the district court entered an order decertifying the class, the plaintiff indicated he wanted to appeal and timely filed a motion for reconsideration. Neither he nor the district court mentioned any appeal thereafter. After denying the motion for reconsideration, the plaintiff filed with the Ninth Circuit a petition to appeal the initial order decertifying the class. The defendant, Nutraceutical Corp., filed a motion to dismiss the appeal as the petition for appeal was filed four months after the order decertifying the class. On appeal, the Ninth Circuit held that the time period for filing an immediate appeal was tolled and reversed the decertification ruling of the district court. Nutraceutical filed a writ of certiorari.
Justice Sotomayor authored the unanimous opinion reversing the Ninth Circuit. The Court agreed that Rule 23(f) is non-jurisdictional; but, the provision is not subject to equitable tolling. The Court based its opinion on strict statutory construction. “Appellate Rule 26(b), which generally authorizes extensions of time, in turn includes this express carveout: A court of appeals ‘may not extend the time to file . . . a petition for permission to appeal.'” (No. 17-1094 at 5)
A copy of the decision may be found following this URL:
https://www.supremecourt.gov/opinions/18pdf/17-1094_bq7d.pdf
