LOHIER, Circuit Judge:
We return to consider this consolidated appeal in light of the answers provided by the Supreme Court of Virginia in Casey v. Merck & Co. ("Casey III"), 283 Va. 411, 722 S.E.2d 842 (2012), in response to questions that we certified to it in Casey v. Merck & Co. ("Casey II"), 653 F.3d 95 (2d Cir.2011).
On appeal, the plaintiffs argued that the statute of limitations was tolled by the filing of a federal class action in the United States District Court for the Middle District of Tennessee that alleged similar injuries and raised similar claims. We determined that state law controlled the availability of tolling in this context and certified two questions regarding equitable and statutory cross-jurisdictional tolling to the Supreme Court of Virginia. Casey II, 653 F.3d at 104.
The Supreme Court of Virginia answered both of our questions in the negative, concluding that "Virginia recognizes neither equitable nor statutory tolling due to the pendency of a putative class action in another jurisdiction." Casey III, 722 S.E.2d at 846. In light of this response, we affirm the judgment of the District Court.
We assume familiarity with the underlying facts and procedural history of this case, which are set forth in our previous opinion, Casey II, and we recount them here only as necessary to explain our disposition of this appeal.
Merck manufactures Fosamax, a prescription drug, used to treat osteoporosis,
A federal class action on behalf of a nationwide class of plaintiffs who allegedly suffered personal injuries due to the use of Fosamax, captioned Wolfe v. Merck & Co., No. 3:05-0717 (M.D. Tenn.), was filed in the United States District Court for the Middle District of Tennessee in September 2005, before the plaintiffs filed their individual suits. The putative class action included "[a]ll persons who consume or have consumed FOSAMAX, whether intravenously or by mouth." That action was transferred to the Southern District of New York by the Judicial Panel on Multidistrict Litigation. In re Fosamax Prods. Liab. Litig., 444 F.Supp.2d 1347, 1350 (J.P.M.L.2006). The District Court denied the motion for class certification on January 3, 2008, In re Fosamax Prods. Liab. Litig., 248 F.R.D. 389, 404 (S.D.N.Y.2008),
On June 23, 2009, Merck moved for summary judgment in Casey I, contending that the plaintiffs' actions were untimely under Virginia's two-year statute of limitations for personal injury actions. In response, the plaintiffs claimed that the Wolfe putative class action, which was filed within the two-year limitation period, tolled the running of the Virginia statute of limitations on their individual actions because they would have been members of the proposed class had certification been granted. The District Court granted Merck's motion, concluding that the filing of the Wolfe putative class action did not toll Virginia's limitations period for the plaintiffs' state law claims. Casey I, 694 F.Supp.2d at 259.
On appeal in Casey II, we considered the applicability of the class action tolling doctrine established in American Pipe & Construction Company v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974), to state law causes of action and held that "a federal court evaluating the timeliness of state law claims must look to the law of the relevant state to determine whether, and to what extent, the statute of limitations should be tolled by the filing of a
Id. at 104.
The Supreme Court of Virginia accepted the certified questions and answered both in the negative. Addressing the first question, the court noted that it "is well-established that statutes of limitations are strictly enforced." Casey III, 722 S.E.2d at 845 (quotation marks omitted). Further, "[a] statute of limitations may not be tolled, or an exception applied, in the absence of a clear statutory enactment to such effect." Id. (quotation marks omitted). Relying on those principles, the court concluded that "there is no authority in Virginia jurisprudence for the equitable tolling of a statute of limitations based upon the pendency of a putative class action in another jurisdiction." Id.
As for our second question, the Supreme Court of Virginia explained that, in order for a statute of limitations to be tolled for a subsequent action under Va.Code Ann. § 8.01-229(E)(1), "the party who brought the original action must be the same as the plaintiff in the subsequent action or a recognized representative of that plaintiff asserting the same cause and right of action." Id. at 846. In addition, because class actions are not recognized under Virginia law, "a class representative who files a putative class action is not recognized as having standing to sue in a representative capacity on behalf of the unnamed members of the putative class. Thus, . . . there is no identity of parties between the named plaintiff in a putative class action and the named plaintiff in a subsequent action filed by a putative class member individually." Id. Accordingly, the Supreme Court of Virginia held that Va.Code Ann. § 8.01-229(E)(1) "does not toll the statute of limitations for unnamed putative class members due to the pendency of a putative class action in another jurisdiction." Id.
The plaintiffs' arguments on appeal relied exclusively on their contention that the statute of limitations should have been tolled during the pendency of the Wolfe
For the foregoing reasons, we AFFIRM the judgment of the District Court. We thank the Supreme Court of Virginia for its assistance in construing these tolling principles under Virginia law.