MARK W. BENNETT, District Judge.
TABLE OF CONTENTS
I. INTRODUCTION .................................................................761
A. Factual Background .......................................................762
B. Procedural Background ....................................................763
C. The Denial Of Class Certification In The Predecessor Case ................765
D. Arguments Of The Parties .................................................767
II. LEGAL ANALYSIS ...............................................................768
A. Applicable Standards .....................................................768
1. Rule 12(b)(6) and the statute of limitations .........................768
2. The applicable statute of limitations ................................769
3. The tolling rule for members of a prior putative class ...............769
a. The general rule .................................................769
b. Individual claims vs. class claims ...............................770
c. The tolling period ...............................................774
d. The controlling reasons for the prior denial .....................779
B. Application Of The Standards .............................................781
1. Prerequisites to application of tolling rules ........................781
2. The tolling period ...................................................783
3. Alternative conclusions ..............................................783
III. CONCLUSION ...................................................................784
Persons arrested on serious misdemeanor charges assert individual and class claims that they were unconstitutionally strip-searched pursuant to an across-the-board jail policy without individualized determinations of probable cause or reasonable suspicion. The question on the defendants' motion to dismiss now before me, however, is not the merits of the plaintiffs' claims, but whether their claims are barred by the applicable statute of limitations and my denial of class certification in a predecessor case involving nearly identical claims of a nearly identical putative class.
"When ruling on a defendant's motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint." Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Thus, the factual background to a motion to dismiss must necessarily be drawn from the plaintiffs' factual allegations. However, while the
Plaintiffs Melinda Barkley, Vickie Dawdy, Ben Curry, Jennifer Curry (then known as Jennifer McGrain), and Shanin Simon (the Barkley Plaintiffs) allege that they were each citizens of Sioux City, Woodbury County, Iowa, and that each was arrested for a serious misdemeanor between February 1, 2006, and October 15, 2007, then booked into the Woodbury County Jail. Specifically, Barkley alleges that, on September 25, 2006, she was arrested on a serious misdemeanor charge of operating a vehicle while intoxicated (OWI), first offense, in violation of IOWA CODE § 321J.2; Dawdy alleges that, on July 18, 2007, she was arrested on a serious misdemeanor shoplifting charge; Ben Curry alleges that, on July 19, 2007, he was arrested on a serious misdemeanor OWI charge; Jennifer Curry alleges that, on July 10, 2007, she was arrested on a serious misdemeanor OWI charge; and Simon alleges that, on November 12, 2006, she was arrested on a serious misdemeanor OWI charge. Each plaintiff, with the exception of Simon, alleges that, upon being booked into the Woodbury County Jail after her or his arrest, an officer of the same sex as the plaintiff placed the plaintiff in an adjacent room, instructed the plaintiff to remove her or his clothes, including undergarments, for a strip search, and then told the plaintiff to turn around and spread the plaintiff's butt checks, so that the jailer could conduct a visual inspection of the plaintiff's body cavities (anal or anal and vaginal, as the case may be). Barkley and Jennifer Curry allege that the door to the room in which their searches were conducted was not completely shut, and Jennifer Curry alleges that male officers actually watched her strip search. Barkley, Dawdy, and the Currys allege that the door to the room had a window that allowed anyone who wanted to observe the strip search to do so. Simon alleges that she was too intoxicated to comply with instructions and was not able to remain entirely conscious, so that she was forcibly strip searched by both male and female jailers. The Barkley Plaintiffs allege that no weapons or contraband were found during their searches. Each alleges that she or he was searched without probable cause to believe that such a search was necessary.
On November 5, 2010, the Barkley Plaintiffs filed their original Class Action Complaint And Jury Demand (docket no. 2), pursuant to 42 U.S.C. § 1983, asserting that the strip searches to which they and class members were subjected violated the Fourth Amendment to the United States Constitution. They named as defendants Woodbury County, Glenn J. Parrett, individually and as Sheriff of Woodbury County, and Robert E. Aspleaf, individually and as Assistant Chief/Deputy Sheriff of Woodbury County. They filed an Amended Class Action Complaint And Jury Demand (Amended Complaint) (docket no. 4) on December 3, 2010, before any responsive pleading or motion to dismiss had been filed by any defendant. In their Amended Complaint, the class of similarly-situated persons that the Barkley Plaintiffs seek to represent was defined as "all persons arrested on a serious misdemeanor charge and strip searched, including visual body cavity inspection, pursuant to [the defendants'] across-the-board strip search policy from February 1, 2006, until October 15, 2007, at 3:00 p.m."
In
On January 10, 2011, the defendants filed a joint Motion To Dismiss (docket no. 5), pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, asserting that the Barkley Plaintiffs' claims in their Amended Complaint (and by extension, their Second Amended Complaint) are barred by the applicable statute of limitations. The defendants argue that the statute of limitations was not tolled during the pendency of a motion to certify a nearly identical putative class asserting nearly identical claims in the predecessor cases consolidated as Rattray v. Woodbury County, No. C 07-4014-MWB (N.D.Iowa), see Rattray v. Woodbury County, 253 F.R.D. 444 (N.D.Iowa 2008), aff'd, 614 F.3d 831 (8th Cir.2010), because the denial of class certification in that case was based on a defect in the class itself. After an extension of time to do so, the Barkley Plaintiffs filed a Resistance To Defendants' Motion To Dismiss (docket no. 12) on February 10, 2011. The defendants filed a Reply (docket no. 14), in further support of their Motion To Dismiss, on February 17, 2011.
I did not reach the defendants' Motion To Dismiss when it first became ripe, however. Instead, on March 24, 2011, I entered an Order Staying Case (docket no. 15), after sua sponte considering whether to impose the same stay that I had entered in the Rattray case,
On April 2, 2012, the Supreme Court issued its long-awaited decision in Florence v. Board of Chosen Freeholders of the County of Burlington, 566 U.S. ___, 132 S.Ct. 1510, 182 L.Ed.2d 566 (2012). That same day, I entered an Order For Status Reports (docket no. 21), again in both this case and the Rattray case, directing the parties to confer and to file a joint status report indicating each party's position on the impact of the Florence decision on each of these cases and what, if any, further proceedings were required in each case. The plaintiffs in both this case and
On May 10, 2012, a magistrate judge granted the Barkley Plaintiffs' May 9, 2012, Motion For Leave To File Second Amend[ed] Complaint (docket no. 25), see Order (docket no. 26), and the Barkley Plaintiffs' Second Amended Class Action Complaint And Jury Demand (Second Amended Complaint) (docket no. 27) was filed that day. The Second Amended Complaint narrows the class somewhat, in light of the Supreme Court's decision in Florence, redefining the class as follows: "All persons arrested on a serious misdemeanor charge who were not admitted to the general jail population, and were strip searched, including visual body cavity inspection, pursuant to Defendant's [sic] across-the-board strip search policy from February 1, 2006 until October 15, 2007 at 3:00 p.m." Second Amended Complaint, ¶¶ 2 and 17 (emphasis added to highlight added language). The plaintiffs also represented that the Second Amended Complaint required them to delete original named plaintiff Amy Meyer, because she may have been strip searched prior to being admitted to the general jail population and, therefore, would not be a member of the proposed class. See Plaintiffs' Motion For Leave To Amend (docket no. 25), ¶ 6. The Second Amended Complaint also added plaintiffs Ben Curry, Jennifer Curry, and Shanin Simon, seeking to assert individual claims and to represent the putative class. See id. at ¶ 4. The Second Amended Complaint did not modify the claims at issue.
The Barkley Plaintiffs' counsel represented in the Motion For Leave To Amend, ¶ 7, that the proffered Second Amended Complaint did not have any effect on the defendants' pending Motion To Dismiss, and I agree. Nor do I believe that supplemental briefing or oral arguments are required on the defendants' Motion To Dismiss, despite the time that has elapsed since the Motion was filed and the stay was imposed, or the filing of the Second Amended Complaint, because no applicable law nor pertinent circumstances have changed, and my crowded schedule does not allow me to set oral arguments within a reasonable time. This conclusion is confirmed by the defendants' filing, on May 22, 2012, of a Motion To Dismiss Second Amended Complaint (docket no. 29) and a supporting brief that are essentially identical to the Motion To Dismiss and supporting brief challenging the Amended Complaint. Therefore, I will deem the defendants' Motion To Dismiss fully submitted on the written submissions.
To put in context the parties' arguments concerning the defendants' Motion To Dismiss, I will briefly summarize the class certification proceedings in the predecessor Rattray case. On February 13, 2007, Maureen Rattray filed an individual claim, pursuant to 42 U.S.C. § 1983, against Woodbury County alleging that a strip search after her arrest on or about August 16, 2006, violated the Fourth and Fourteenth Amendments to the United States
On April 28, 2008, just the day before moving to consolidate her action with the actions filed by Lambert and Mathes, Rattray filed her motion requesting certification of a class defined as follows: "All persons arrested on a serious misdemeanor charge and strip searched pursuant to defendant jail's across-the-board strip search policy from February 13, 2005 until October 15, 2007 at 3:00 p.m." Rattray v. Woodbury County, No. C 07-4014-MWB, Plaintiff's Brief In Support Of Her Motion Directing That Action Proceed As Class Action (docket no. 44-6), 5; compare Rattray, 253 F.R.D. at 447 (identifying the putative class as "all persons arrested on a serious misdemeanor charge and strip searched pursuant to the defendant county jail's across-the-board strip search policy during a twenty-one month period prior to a change in the policy."). On September 2, 2008, I denied Rattray's motion to certify that class on four grounds.
First, although I concluded that the Rule 23(a) requirements of "numerosity," "typicality," and "commonality" were met, I was "not convinced that the last Rule 23(a) prerequisite, `adequacy of representation' for the class, ha[d] been met," because of what I considered to be undue delay in Rattray's request for certification of the class and her counsel's lack of experience with class litigation. See Rattray, 253 F.R.D. at 452-57. "Nevertheless," I explained that I would "turn to consideration of the requirements of Rule 23(b)." Id. at 457.
Second, I concluded that Rattray had not satisfied the requirements of Rule 23(b)(1)(A), which "`covers cases in which separate actions by or against individual class members would risk establishing "incompatible standards of conduct for the party opposing the class."'" Id. at 459 (quoting Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 613, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997), in turn quoting Rule 23(b)(1)(A)). I found that Rattray had conceded that there was really little risk of inconsistent liability judgments among the class members, if their claims were brought separately and, in so doing, she had essentially conceded that she could not meet the requirements of Rule 23(b)(1)(A). Id. at 458-59. Therefore, I concluded that certification pursuant to Rule 23(b)(1) was not appropriate. Id. at 459.
Third, I concluded that certification was inappropriate pursuant to Rule 23(b)(3), which provides for certification of a class when "the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy." FED.R.CIV.P. 23(b)(3); see Rattray, 253 F.R.D. at 459-65. I concluded that "the questions of the existence and constitutionality of a blanket strip-search policy" did not realistically establish that "the class is sufficiently cohesive to warrant adjudication by representation." I also concluded that those questions did not "predominate" over other individualized questions, explaining that I "c[ould not] accept as readily as other courts have been willing to do that the inquiries into whether
Fourth, for similar reasons, I rejected the "superiority" of class action resolution, also required by Rule 23(b)(3), specifically finding that the case "present[ed] the nightmarish scenario of myriad individualized determinations to decide which potential class members actually belong to the class and which can potentially prove liability and/or damages," making "the logistics of attempting to create a class action out of what are, in reality, a myriad of individualized claims" even more "daunting" than the logistics of a multiplicity of similar actions. Id. at 465. Therefore, I concluded that the case should not be conditionally certified as a class action pursuant to Rule 23(b)(3). Id.
I "encourage[d] the disappointed plaintiff [in Rattray's case] to pursue an interlocutory appeal ..., because [I] recognize[d] that [my] decision [was] against the weight of authority granting class certification in strip-search cases." Id. Rattray did, indeed, pursue an interlocutory appeal, pursuant to Rule 23(f), of my denial of certification of her putative class. On August 5, 2010, however, the Eighth Circuit Court of Appeals affirmed my denial of class certification, albeit after addressing only the "adequacy of representation" requirement of Rule 23(a)(4), the first of the four requirements for class certification that I had found Rattray's putative class failed to meet. See Rattray v. Woodbury County, IA, 614 F.3d 831 (8th Cir. 2010). Having concluded that I correctly rejected class certification on this ground, the appellate court concluded that it "need not address the district court's alternative conclusions regarding Rule 23(b)." Id. at 837.
In support of their Motion To Dismiss in this case, the defendants assert that the applicable statute of limitations for the Barkley Plaintiffs' § 1983 action, Iowa's two-year statute of limitations for personal injury claims, IOWA CODE § 614.1(2), expired between the end of the challenged strip-search policy on October 15, 2007, and the filing of the Barkley Plaintiffs' original Complaint on November 5, 2010. The defendants contend that the statute of limitations was not tolled during the pendency of the attempt to certify the class action in the Rattray case, pursuant to American Pipe & Construction Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974), because class certification in the Rattray case was denied due to defects in the class itself, that is, failure to satisfy the requirements of either Rule 23(b)(1) or Rule 23(b)(3). The defendants argue that the current class is nearly identical to the class for which certification was denied in the Rattray case and that the Barkley Plaintiffs should not now be permitted to relitigate the certification issue. Therefore, they contend that the current action should be dismissed.
In their Resistance, the Barkley Plaintiffs concede that they were members of the putative class in the Rattray case and did not seek to intervene in that case. Nevertheless, they argue that their individual claims are timely, for various reasons. First, they argue that the statute of limitations was tolled for individual claims pursuant to American Pipe from the commencement
Next, the Barkley Plaintiffs argue that, because the Eighth Circuit Court of Appeals affirmed my denial of class certification in the Rattray case only on the basis of deficiencies in the class representative, not deficiencies in the class itself, "American Pipe tolling" applies to both their individual claims and their class claims. Specifically, they argue that, where an appellate court affirms on only one of the alternative grounds on which the district court rendered its decision, only the ground affirmed by the appellate court has preclusive effect, citing RESTATEMENT (SECOND) OF JUDGMENTS § 27, cmt. o (1982). They contend that allowing them to assert class claims will allow subsequent classes to pursue class claims until a court has definitively determined that the claims are not suitable for class treatment. They also assert that these defendants have had timely notice of the nature of their individual and potential class claims, from the assertion of nearly identical individual and class claims in the Rattray case.
In reply, the defendants argue that RESTATEMENT (SECOND) OF JUDGMENTS § 27 and comment o are inapplicable here, because an appeal of denial of class certification does not involve a final judgment, but an interlocutory order. The defendants argue that the decision by the appellate court to rule so narrowly here should not affect my prior decision, because the district court ultimately has the final say on whether class certification is appropriate. For example, they argue that, even if the Eighth Circuit Court of Appeals had overruled my conclusions as to sufficiency of the class representative in the Rattray case, I would still have been free to reject class certification on grounds related to the class itself — and that I did, indeed, also deny certification on such grounds. The defendants argue that the Barkley Plaintiffs should not be able to ignore my undisturbed findings as to deficiencies in the class itself. Although the defendants address the effect of the appeal of my class certification decision in the Rattray case, they do not address the Barkley Plaintiffs' contention that their individual claims are timely, whatever the reason that class certification was denied.
As the Eighth Circuit Court of Appeals recently explained,
Illig v. Union Elec. Co., 652 F.3d 971, 976 (8th Cir.2011) (emphasis added). Thus, a Rule 12(b)(6) motion is the proper vehicle for the defendants to challenge the timeliness of the Barkley Plaintiffs' claims of constitutional violations pursuant to 42 U.S.C. § 1983.
Section 1983 contains no statute of limitations, Wilson v. Garcia, 471 U.S. 261, 280, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985), and no federal statute of limitations governs such actions. Board of Regents, Univ. of New York v. Tomanio, 446 U.S. 478, 484, 100 S.Ct. 1790, 64 L.Ed.2d 440 (1980); Carr v. Aubuchon, 969 F.2d 714, 716 (8th Cir.1992). When such a void in federal statutory law occurs, federal courts have repeatedly "borrowed" the state laws governing an analogous cause of action. Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975). Thus, courts have applied the personal injury statute of limitations of the state in which the court sits to constitutional claims brought pursuant to § 1983. Owens v. Okure, 488 U.S. 235, 236, 109 S.Ct. 573, 102 L.Ed.2d 594 (1989); Wilson, 471 U.S. at 280, 105 S.Ct. 1938; Wycoff v. Menke, 773 F.2d 983, 984 (8th Cir.1985), cert. denied, 475 U.S. 1028, 106 S.Ct. 1230, 89 L.Ed.2d 339 (1986).
There is no dispute that the applicable statute of limitations here is Iowa's two-year statute of limitations for personal injury actions in IOWA CODE § 614.1(2). See Sanchez v. United States, 49 F.3d 1329, 1330 (8th Cir.1995) ("Iowa's personal injury statute of limitations for personal injury actions, requiring claims to be brought within two years after the action accrues, has been applied to section 1983 actions." (citing IOWA CODE § 614.1(2) and Wycoff, 773 F.2d at 984)). There is also no dispute that the statute of limitations on the Barkley Plaintiffs' claims began to run no later than October 15, 2007, when the Woodbury County Jail's strip-search policy was withdrawn, or that the Barkley Plaintiffs did not file their individual or class claims until more than two years after that date, on November 5, 2010. Thus, whether the Barkley Plaintiffs' claims are barred by the applicable statute of limitations depends upon the applicability of the so-called "American Pipe rule," which may have tolled the Barkley Plaintiffs' claims during the prior attempt to certify a similar class asserting similar claims in the Rattray case.
The Eighth Circuit Court of Appeals has explained the "American Pipe rule," as follows:
Great Plains Trust Co. v. Union Pacific R. Co., 492 F.3d 986, 997 (8th Cir.2007).
The Barkley Plaintiffs assert, and the defendants never clearly dispute, that tolling pursuant to the "American Pipe rule" applies, at least in some circumstances, to subsequent class claims as well as to subsequent individual claims. The Barkley Plaintiffs also contend that, in Great Plains Trust, the Eighth Circuit Court of Appeals recognized that individual claims are tolled during the pendency of a prior class action, without regard to the reasons that certification of the prior class is denied, even if the tolling effect of the prior class action for subsequent class claims depends upon the reasons for denial of certification of the prior class. This argument is central to the Barkley Plaintiffs' assertion that, whether or not American Pipe tolling applies to their class claims, their individual claims were tolled, and their Amended Complaint is not subject to dismissal in its entirety. Although the defendants do not appear to challenge the Barkley Plaintiffs' assertion that their individual claims are tolled, only whether or not their class claims are tolled, I believe that it is appropriate to explore further the differences, if any, in the circumstances in which American Pipe tolling applies to subsequent individual claims and subsequent class claims.
In American Pipe, the Supreme Court established a tolling rule for subsequent claims by putative members of a failed class action, as follows:
Some courts have suggested that there is a split in the Circuit Courts of Appeals on the question of whether American Pipe tolling even applies to subsequent class claims. See generally Sawyer v. Atlas Heating and Sheet Metal Works, Inc., 642 F.3d 560, 563 (7th Cir.2011).
I acknowledge that the decision in Great Plains Trust is susceptible to a reading that distinguishes between the tolling effect of the prior class action on subsequent individual claims and subsequent class claims, noting that, as to subsequent class claims, whether tolling applies depends upon the reason that prior class certification
In American Pipe, the Supreme Court initially referred to tolling of individual claims "at least" where class action status has been denied solely because of failure to satisfy the "numerosity" requirement. American Pipe, 414 U.S. at 552-53, 94 S.Ct. 756. Although this statement certainly does not suggest that tolling applies only when the denial of class certification was for failure to satisfy that requirement, the Court's reference to the appellate court's "careful" listing of the requirements that had not been the basis for denial of class certification does suggest that, if any of those requirements had been the basis for denial of class certification, tolling of individual claims might not have been available. Id. Ultimately, however, the Court stated the rule that it found to be "most consistent with federal class action procedure" was "that the commencement of a class action suspends the applicable statute of limitations as to all asserted members of the class who would have been parties had the suit been permitted to continue as a class action." Id. at 554, 94 S.Ct. 756. This statement of the rule places no limitation on the tolling effect of a prior class action on individual claims based on the reason that the prior class action was not certified.
In the Supreme Court's subsequent decision in Crown, Cork & Seal, the Court addressed whether American Pipe tolling applies only to the individual claims of putative class members who intervened after class certification was denied, or also applies to the individual claims of putative class members who filed separate actions after certification was denied. See Crown, Cork & Seal, 462 U.S. at 348-49, 103 S.Ct. 2392. The Court concluded that American Pipe was "not to be read so narrowly" as to apply only to intervenors. Id. at 350, 103 S.Ct. 2392. Rather, the Court held that "[t]he filing of a class action tolls the statute of limitations `as to asserted members of the class,' [American Pipe, 414 U.S.] at 554, 94 S.Ct., at 766, not just as to intervenors." Id.; see also id. at 353-54, 103 S.Ct. 2392 (stating the modified rule as follows: "`[T]he commencement of a class action suspends the applicable statute of limitations as to all asserted members of the class who would have been parties had the suit been permitted to continue as a class action.' [American Pipe,] 414 U.S., at 554, 94 S.Ct., at 766. Once the statute of limitations has been tolled, it remains tolled for all members of the putative class until class certification is denied. At that point, class members may choose to file their own suits or to intervene as plaintiffs in the pending action."). The Court did not suggest that there were any restrictions on the applicability of American Pipe tolling for intervenors or plaintiffs filing individual suits based on the reasons that class certification had been denied, however. See Smith v. Pennington, 352 F.3d 884, 892 (4th Cir.2003) (noting that "the Crown, Cork & Seal Court appeared to have untethered this tolling rule from any necessary connection to the reasons for denying certification").
The defendants have not cited, and I have not found, any decisions of the Supreme Court or the Circuit Courts of Appeals
Courts have, however, imposed restrictions on the tolling effect of a prior class action on subsequent class claims, based on the reasons that the prior class was denied certification. For example, in McKowan Lowe & Co., Ltd. v. Jasmine, Ltd., 295 F.3d 380 (3d Cir.2002), the Third Circuit Court of Appeals expressly held that tolling of subsequent class claims was only available in the limited circumstances in which "a district court declines to certify a [prior] class for reasons unrelated to the appropriateness of the substantive claims for certification," as opposed to denial of certification for deficiencies of the class representative. See McKowan, 295 F.3d at 389; see also id. at 386 (noting that the lead plaintiff was not attempting to "resuscitate a class that a court ha[d] held to be inappropriate as a class action," but a class that "was not rejected because of any defects in the class itself but because of [his] deficiencies as a class representative"). Interestingly, the Third Circuit Court of Appeals found the rationale for tolling of subsequent class claims only in these circumstances, in part, in the Supreme Court's identification in American Pipe of the litigants "for whom the American Pipe tolling rule was designed." See id. at 389. The Third Circuit Court of Appeals explained,
As the [Supreme] Court stated,
McKowan Lowe & Co., Ltd., 295 F.3d at 389. The Third Circuit Court of Appeals reiterated the limitation on tolling of class claims stated in McKowan in Yang v. Odom, 392 F.3d 97, 107-08 (3d Cir.2004).
As noted, above, the Eighth Circuit Court of Appeals relied on Yang for its formulation of the tolling effect of a prior class action on a subsequent class action. See Great Plains, 492 F.3d at 997. Therefore, I conclude that individual claims of intervenors and plaintiffs who file separate actions are tolled pursuant to the "American Pipe rule" without regard to the reasons for denial of class certification in the prior class action, but subsequent class claims are tolled only "`where class certification
The Barkley Plaintiffs argue, next, that the period of tolling pursuant to the "American Pipe rule" extends through any appeal of the decision denying certification of the prior class action. I do not read the defendants' reply to challenge that specific contention. Instead, the defendants argue that it is not just the appellate court's decision, but the district court's decision, that determines the grounds on which a prior class was denied certification and, hence, whether subsequent class claims were or were not tolled.
Although neither the Supreme Court nor the Eighth Circuit Court of Appeals has addressed this question, other federal courts have. In Armstrong v. Martin Marietta Corp., 138 F.3d 1374 (11th Cir. 1998) (en banc), a majority of the Eleventh Circuit Court of Appeals held that the statute of limitations was not tolled during the pendency of an interlocutory appeal, at least under former Rule 23. 138 F.3d at 1378 ("[W]e hold that the tolling of the statute of limitations ceases when the district court enters an interlocutory order denying class certification.").
More specifically, in Armstrong, the majority noted that, in American Pipe, the Supreme Court had stated "`that the commencement of the class action in this case suspended the running of the limitation period only during the pendency of the motion to strip the suit of its class action character.'" Armstrong, 138 F.3d at 1382 (quoting American Pipe, 414 U.S. at 561, 94 S.Ct. 756, with emphasis added in Armstrong). The majority reasoned that, while the Supreme Court had not been presented with an argument that tolling should continue through appeals and had not "squarely" rejected such an argument in American Pipe, "[t]he Court, however, clearly assumed that tolling should end when the district court denies class certification, not after the appeals process has run and some later final order is entered." Id. The majority also read the Supreme Court's subsequent decision in United Airlines, Inc. v. McDonald, 432 U.S. 385, 97 S.Ct. 2464, 53 L.Ed.2d 423 (1977), as implying "strongly" that "the statute of limitations for filing an individual suit (and for intervening to litigate one's claim) begins to run again as soon as the district court denies class certification — although an excluded putative class member whose individual claim is barred by the statute of limitations may still intervene for the purpose of appealing the denial of class certification after final judgment." Id. at 1382-83. The majority concluded that Chardon v. Soto, 462 U.S. 650, 103 S.Ct. 2611, 77 L.Ed.2d 74 (1983), also implied, and various federal courts had expressly held, that tolling does not extend through an appeal of denial of class certification. Id. at 1383-84 (citing and explaining cases).
In Armstrong, the majority also stated, "Practical considerations lead us to conclude that, if class certification is denied in whole or in part, the statute of limitations begins to run again as to excluded putative class members as of the date of the district court's order denying certification." Id. at
As the Barkley Plaintiffs contend, the majority in Armstrong acknowledged that a proposed amendment to Rule 23(f) "h[e]ld[ ] the potential to change this analysis if passed in its current form," because it gave courts of appeals discretion to permit an appeal of an order granting or denying class certification, although it did not stay proceedings in the district court unless the district court or the court of appeals so ordered. Id. at 1390 n. 35. Specifically, the court observed, "If the rule passes, and if it significantly increases the frequency of interlocutory appeals of class certification orders — a development which would depend in large part upon how this court chooses to exercise the discretion granted to it by the proposed rule — then we may revisit the decision taken today, and might for instance allow continued tolling of statutes of limitations during the pendency of an appeal under the new rule." Id. However, the court declined to "speculate" on that point. Id.
The dissenter believed that the proposed amendment adding Rule 23(f) should operate to extend tolling through an appeal. He also concluded that there was no reason to wait for enactment of the amendment adding Rule 23(f), because the court could exercise its supervisory authority to fashion an interim rule based on appropriate policy considerations to extend tolling through any appeal. Id. at 1394-95 (Hatchett, C.J., dissenting).
The proposed amendment to Rule 23 discussed in Armstrong was enacted later in 1998. Notwithstanding the suggestion of the en banc majority in Armstrong that it might do so, the Eleventh Circuit Court of Appeals has not yet revisited the question of whether or not American Pipe tolling extends through any interlocutory appeal, in light of amended Rule 23(f). The Barkley Plaintiffs have not cited any cases finding or any evidence showing that amended Rule 23(f) opened the floodgates for appeals of denials of class certification or that appeals, accepted by the Circuit Courts of Appeals exercising the discretion that Rule 23(f) provided them to take interlocutory appeals of denials of class certifications, had resulted in significantly more denials of class certifications being reversed. See id. at 1390 n. 35 (suggesting that these circumstances might lead the court to reconsider whether tolling continued through any appeal).
Nevertheless, the Barkley Plaintiffs argue that subsequent decisions of other courts have recognized that the amendment to Rule 23(f) in 1998, which broadened the circumstances in which a decision on class certification could be appealed on an interlocutory basis, abrogated the conclusion of the majority in Armstrong, and that those courts have, instead, embraced the reasoning of the dissenter that the amendment to Rule 23(f) extends the tolling period through any interlocutory appeal. In support of their assertion that "courts that have addressed the issue"
The Barkley Plaintiffs' failure to cite — or even to acknowledge — that all of the federal Circuit Courts of Appeals (or any of them, besides the Eleventh Circuit Court of Appeals in Armstrong) to consider the question have not so held is misleading, at best. As the Second Circuit Court of Appeals recently observed,
See generally Giovanniello v. ALM Media, L.L.C., 660 F.3d 587, 589 n. 1 (2d Cir.2011).
Moreover, the federal Circuit Courts of Appeals have given cogent reasons for refusing to extend the tolling period after denial of class certification through any appeal of that decision. In Taylor v. United Parcel Serv., Inc., 554 F.3d 510 (5th Cir.2008), the Fifth Circuit Court of Appeals drew a distinction between cases in which the district court had denied certification of the predecessor class and cases in which it had granted certification of the predecessor class. The court explained that, in the Supreme Court's decisions in American Pipe and Crown, Cork & Seal, its own decision in Calderon v. Presidio Valley Farmers Assoc., 863 F.2d 384 (5th Cir.1989), and the decision of the Third Circuit Court of Appeals in Edwards v. Boeing Vertol Co., 717 F.2d 761 (3d Cir. 1983), vacated on other grounds, 468 U.S. 1201, 104 S.Ct. 3566, 82 L.Ed.2d 867 (1984), "the district court's refusal to certify the class was tantamount to a declaration that only the named plaintiffs were parties to the suit." Taylor, 554 F.3d at 520.
Taylor, 554 F.3d at 520 (citing Bell v. Ascendant Solutions, Inc., 422 F.3d 307, 312 (5th Cir.2005), for the focus of the certification inquiry). On the other hand, the court explained,
Taylor, 554 F.3d at 520-21.
Similarly, in Bridges v. Department of Maryland State Police, 441 F.3d 197 (4th Cir.2006), the Fourth Circuit Court of Appeals noted that, in Crown, Cork & Seal, the Supreme Court "adopted the bright-line rule that the statute of limitations `remains tolled for all members of the putative class until class certification is denied' for whatever reason." Bridges, 441 F.3d at 211 (quoting Crown, Cork & Seal, 462 U.S. at 354, 103 S.Ct. 2392, with emphasis added). Like the court in Taylor, the court in Bridges considered the point at which putative plaintiffs could no longer rely on the putative class action to protect their interests:
Bridges, 441 F.3d at 211. The acts following entry of the order denying class certification included the named plaintiffs' failure to file a reply brief in support of certification, the named plaintiffs' actions in settling only their individual claims against the defendants, and the named plaintiffs' notice to the court that all actions, including damages actions, would proceed as individual actions. Id. at 211-12. The court found that these acts were all foreseeable, in light of the district court's order denying class certification, "because the denial, even if only administrative, relieved the district court of its obligation to determine class certification `at an early practicable time.'" Id. at 212 (quoting Rule 23(c)(1)(A)). As the court concluded,
Bridges, 441 F.3d at 212-13; see also Stone Container Corp. v. United States, 229 F.3d 1345, 1355-56 (Fed.Cir.2000) (considering "whether the tolling here stopped with the dismissal of the class action by the district court in [a prior class action] or whether it continues until the district court's decision is no longer subject to appeal," and "concluding that tolling ends with the district court's dismissal of the class action," citing Armstrong, 138 F.3d at 1380-91).
In the absence of express guidance from the Eighth Circuit Court of Appeals, I conclude that the Eighth Circuit Court of Appeals would join its sister circuits in holding that American Pipe tolling ends with the district court's decision denying class certification, not with a decision on any interlocutory appeal. At the time that the district court denies certification, the putative class members know the reasons that the claims of the class are not suitable for class treatment and they are on notice that they can no longer rely on the putative class action to protect their interests. Taylor, 554 F.3d at 520; Bridges, 441 F.3d at 211. To treat the district court's denial of class certification essentially as a nullity, for purposes of determining when American Pipe tolling ends, just because a party attempts an interlocutory appeal of that order, flies in the face of the goal of prompt determination of the viability of class actions apparent from the requirement in Rule 23(c)(1)(A) that the district court decide the certification issue "[a]t an early practicable time"; the requirement in Rule 23(f) permitting prompt appeals, but only in the discretion of the court of appeals and, unless otherwise ordered, without staying proceedings in the district court; the Advisory Committee's comment, concerning amendments in 1986, that "[a] negative determination [by the district court pursuant to Rule 23(c)(1)] means that the action should be stripped of its character as a class action"; and the Advisory Committee's comment, concerning the 1998 amendment adding Rule 23(f), that the short period for seeking permission to appeal "is designed to reduce the risk that attempted appeals will disrupt continuing proceedings." The district court's denial of class certification also provides an appropriate "bright-line" endpoint for the tolling period. Bridges, 441 F.3d at 212-13. Finally, the Supreme Court's conception of American Pipe tolling gives no hint that it was intended to extend beyond the district court's denial of certification; indeed, the Supreme Court's decisions in American Pipe and Crown, Cork & Seal suggest that tolling should end with the district court's denial. See Armstrong,
Therefore, tolling of individual and class claims of putative members ends with the district court's decision denying class certification, not with the appellate court's decision on an interlocutory appeal of the district court's denial of class certification.
As noted above, in Section II.A.3.b., the reasons that certification of the prior class was denied are determinative of whether subsequent class claims are tolled. See, e.g., Great Plains, 492 F.3d at 997 ("Whether the American Pipe rule applies to subsequent class actions, however, depends on the reasons for the denial of certification of the predecessor action."). Thus, the question is, whose reasons for denying certification are controlling, the appellate court's or the district court's? The Barkley Plaintiffs assert that only the reason for denying class certification in the Rattray case that was expressly affirmed by the appellate court, inadequate representation of the class, is binding on them in this subsequent action. The defendants argue that all of my grounds for denying class certification in the Rattray case were either affirmed or left undisturbed by the appellate court, so that all of them are binding on the Barkley Plaintiffs.
I find, first, that the answer to the question of what grounds for the prior denial of class certification are binding on putative plaintiffs in subsequent actions is closely-related to the answer to the question of which court's decision controls the end of the tolling period. If the tolling period ends with the district court's decision denying certification of the prior class, as I have held above, then it follows that the reasons for denying certification that are controlling are also those stated in the district court's decision. After all, the only reasons that exist at the time that class certification is denied, and tolling ends, are those given by the district court. As the Eleventh Circuit Court of Appeals observed, when it considered whether or not tolling should end with the district court's decision or with the appellate court's decision, the Supreme Court contemplated that "denial" of class certification meant the district court's denial, cf. Armstrong, 138 F.3d at 1382, and, hence, the district court's reasons for the denial should control. Similarly, as explained above, the Circuit Courts of Appeals that have expressly recognized that tolling ends with the district court's decision, rather than with the appellate court's decision, have done so in part or primarily because the district court's decision put the class members on notice of the deficiencies in the class or the representative. See, e.g., Taylor, 554 F.3d at 520; Bridges, 441 F.3d at
Even if the appellate court's decision affirming a district court's denial of class certification ends the tolling period, however, I believe that the reasons that control the denial of class certification include any of the district court's reasons that are left undisturbed by the appellate court. Although the Barkley Plaintiffs argue that only the appellate court's reasons are controlling, and that reasons given by the district court that are not expressly affirmed by the appellate court have no effect, I conclude that treating the district court's undisturbed reasons for denying a motion to certify the prior class as nullities, when the appellate court affirms on only limited grounds, is inconsistent with the corollary to the American Pipe rule limiting tolling of class claims to denials of certification for deficiencies in the representative, not deficiencies in the class, with Rule 23, and with the rationale for the American Pipe rule.
First, the Circuit Courts of Appeals, which fashioned the rule limiting tolling of subsequent class action claims to circumstances in which the prior class action was denied certification for reasons other than deficiencies of the class itself, considered only the district court's reasons for the denials. See, e.g., McKowan, 295 F.3d at 386-89; Yang, 392 F.3d at 107-08 and 111 (citing McKowan, 295 F.3d at 386); Great Plains, 492 F.3d at 997 (citing Yang, 392 F.3d at 111). Moreover, even if the appellate decision ends the tolling period, any reasons of the district court left undisturbed by the appellate decision still perform the function of providing notice to putative class members of deficiencies in the class itself. Cf. Taylor, 554 F.3d at 520; Bridges, 441 F.3d at 211.
Second, treating undisturbed reasons given by the district court for denial of class certification as a nullity would be inconsistent with the goals of prompt determination of the viability of class actions and the continuing effect of the district court's decision during any interlocutory appeal apparent from the requirements in Rule 23(c)(1)(A) and (f) and the supporting Advisory Committee comments cited above. Nothing in Rule 23 suggests that, when the appellate court expressly affirms a denial of class certification on interlocutory appeal on only some of the grounds cited by the district court, but leaves others undisturbed (as opposed to expressly rejected), only the grounds expressly affirmed continue to have any force or effect in either the original action or a putative plaintiff's subsequent action. To put it another way, nothing in Rule 23 suggests that an interlocutory appellate decision that lets the entirety of the district court's decision stand, even if it expressly affirms only part of the district court's decision, is an invitation to putative plaintiffs to relitigate the class certification issue in its entirety. Clearly, the named plaintiffs in the original action could not relitigate the undisturbed portions of the district court's decision denying class certification in the original action. Why should the result be any different for persons who were putative plaintiffs in the first action when they bring a subsequent action?
Third, nothing in the "American Pipe rule" suggests that putative plaintiffs may relitigate undisturbed determinations of the district court leading to denial of class certification in the original action. As the Ninth Circuit Court of Appeals has pointed out, "the courts of appeals agree that American Pipe does not `allow tolling when the district court in the previous
The Barkley Plaintiffs argue that RESTATEMENT (SECOND) OF JUDGMENTS § 27, cmt. o (1982), requires a different conclusion. This argument does not bear scrutiny or require much discussion. Section 27 states,
RESTATEMENT (SECOND) OF JUDGMENTS § 27. Comment o states, in the part pertinent here,
RESTATEMENT (SECOND) OF JUDGMENTS § 27, cmt. o (1982). As the defendants point out, § 27 and comment o pertain to a "final" judgment, but any appeal of a district court's denial of class certification pursuant to Rule 23(f) is necessarily "interlocutory." Moreover, applying comment o to the circumstance of an "interlocutory" decision ignores the fact that the district court's additional, undisturbed determinations must necessarily remain in full force and effect in the case from which appeal was taken and, hence, apply to all putative members of the original class.
I conclude that the district court's reasons for denial of class certification in the original action left undisturbed on interlocutory appeal may not be relitigated by a putative plaintiff in a subsequent action and, where such reasons go the deficiencies in the class itself, subsequent class claims are not tolled.
With the questions above resolved, application of the "American Pipe rule" to determine the timeliness of the Barkley Plaintiffs' claims is relatively straight-forward.
As noted above, there is no dispute that the applicable two-year statute of limitations on the Barkley Plaintiffs' claims pursuant to 42 U.S.C. § 1983, "borrowed" from IOWA CODE § 614.1(2), see Wycoff, 773 F.2d at 984, began to run no later than October 15, 2007, when the Woodbury County Jail's strip-search policy was withdrawn, or that the Barkley Plaintiffs did not file their individual or class claims until more than two years after that date, on November 5, 2010. Thus, the Barkley Plaintiffs' claims are untimely, unless the running of the statute of limitations was tolled by the "American Pipe rule" during the pendency of the putative class action in the Rattray case.
As to prerequisites for application of American Pipe tolling, the putative class and their claims bear a proper relationship
The Barkley Plaintiffs also assert, and the defendants do not dispute, that they were all putative plaintiffs in the Rattray case. The claims in the two actions are also nearly identical, that is, in both cases, the representative plaintiffs assert individual claims and claims on behalf of the putative class for unreasonable searches and seizures in violation of the Fourth Amendment to the United States Constitution against both the individual defendants and the institutional defendant arising from the strip searches to which they were subjected.
The tolling period, pursuant to American Pipe, is "the period that certification [wa]s pending" in the Rattray case. See Great Plains, 492 F.3d at 997. Thus, the tolling period here began on October 31, 2007, when Rattray was granted leave to amend her complaint to add claims on behalf of a putative class. As explained above, the tolling period ended with my denial of the motion to certify the Rattray class, on September 2, 2008, not with the decision on interlocutory appeal affirming my denial, on August 5, 2010. Taylor, 554 F.3d at 520; Bridges, 441 F.3d at 211. Thus, the tolling period was approximately ten months, but than two years passed after I denied class certification in the Rattray case before the Barkley Plaintiffs filed their putative class action on November 5, 2010. At that point, both their individual claims and their putative class claims are time-barred under the two-year statute of limitations for personal injury claims in Iowa, IOWA CODE § 614.1(2), applicable to their § 1983 claims. See Wycoff, 773 F.2d at 984. Because their claims are barred, they are subject to dismissal pursuant to Rule 12(b)(6). See Illig, 652 F.3d at 976 ("A court may dismiss a claim under Rule 12(b)(6) as barred by the statute of limitations if the complaint itself establishes that the claim is time-barred."). This conclusion is fully dispositive of the defendants' Motion To Dismiss.
Nevertheless, I will also consider — for the sake of argument and/or in the alternative — whether any claims are time-barred, if the tolling period ends with the appellate court's decision on interlocutory appeal. It is appropriate to do so, because whether the tolling periods ends with the district court's decision denying class certification or the appellate court's decision on interlocutory appeal is a question of first impression in the Eighth Circuit.
Assuming that the decision of the Eighth Circuit Court of Appeals affirming my denial of class certification in the Rattray case ended the tolling period, only about two weeks of untolled time had run from the date that the challenged jail policy was withdrawn, on October 15, 2007, until the filing of Rattray's class claims on October 31, 2007, and the statute of limitations did not begin to run again for approximately 45 months, until August 5, 2010, the date of the appellate court's decision, and ran only three more months before the Barkley Plaintiffs filed their initial Complaint, including class claims, on November 5, 2010. Thus, as the Barkley Plaintiffs have alleged, in their definition of the putative class, members of the putative class who were subjected to the allegedly unconstitutional strip searches on or after February 1, 2006, would potentially have timely claims, if the appellate court's decision affirming denial of class certification in the Rattray case ends the tolling period. Claims within this limitations period would include those of the named plaintiffs, each of whom was allegedly subjected to an unconstitutional strip search after that date (in Barkley's case, on September 25, 2006; in Dawdy's case, on July 18, 2007; in Ben Curry's case, on July 19, 2007; in Jennifer Curry's case, on July 10, 2007; and in Simon's case, on November 12, 2006).
If the date of the appellate court's decision affirming denial of class certification in the Rattray case is the end of the tolling period, the individual claims of the named plaintiffs are timely under the "American Pipe rule," which tolls individual claims without regard to the reasons that class certification was denied in the prior action. See Great Plains, 492 F.3d at 997. On the other hand, because the district court's undisturbed reasons for denying class certification are controlling, even if the appellate court's decision ends the tolling period, the Barkley Plaintiffs cannot assert
Only if the Barkley Plaintiffs are correct (1) that the appellate court's decision affirming denial of class action treatment in the predecessor class action ends the American Pipe tolling period for their claims, and (2) that the appellate court's decision also establishes the only reasons that class certification was denied in the prior case would both their individual and class claims be timely. However, I have rejected both propositions. Instead, I conclude that the district court's decision ends the tolling period. I also conclude that the district court's reasons for denial of class certification in the predecessor action that were left undisturbed on interlocutory appeal may not be relitigated by a putative plaintiff in a subsequent action and, where such reasons go to the deficiencies in the class itself, subsequent class claims are not tolled.
THEREFORE, the defendants' January 10, 2011, joint Motion To Dismiss (docket no. 5) is
Sawyer, 642 F.3d at 563. The Seventh Circuit Court of Appeals concluded, however, that "[t]here is no conflict," explaining,
Sawyer, 642 F.3d at 563-64; see also Bright v. United States, 603 F.3d 1273, 1285 (Fed.Cir. 2010) (noting a split in the circuits on the considerably narrower question, not at issue here, of whether American Pipe permits the tolling of opt-in class actions under the Age Discrimination in Employment Act (ADEA)).
As the Ninth Circuit Court of Appeals recently recognized, the Circuit Courts of Appeals are also "split on whether American Pipe tolls the statute of limitations for an individual among a plaintiff-class who files an untimely, individual lawsuit before the disposition of a certification motion in the class action litigation. Compare State Farm Mut. Auto. Ins. Co. v. Boellstorff, 540 F.3d 1223, 1234 (10th Cir.2008) (tolling limitations period); In re Hanford Nuclear Reservation Litig., 534 F.3d 986, 1009 (9th Cir.2008) (same), with Wyser-Pratte Mgmt. Co. v. Telxon Corp., 413 F.3d 553, 569 (6th Cir.2005) (refusing to toll limitations period under Ohio law); Glater v. Eli Lilly & Co., 712 F.2d 735, 739 (1st Cir.1983) (refusing to toll limitations period)." Albano v. Shea Homes Ltd. Partnership, 634 F.3d 524, 535 n. 8 (9th Cir.2011). That issue is not presented in this case, however.
Barkley Plaintiffs' Amended Complaint, ¶ 2 (emphasis added to highlight differences from the Rattray class). The redefinition of the putative class in the Second Amended Complaint does not, in my view, have any impact upon the defendants' Motion To Dismiss. This is so, because it simply redefines the class consistent with the Supreme Court's decision in Florence v. Board of Chosen Freeholders of the County of Burlington, 566 U.S. ___, 132 S.Ct. 1510, 182 L.Ed.2d 566 (2012), and specifies that visual body cavity searches were conducted, an allegation made elsewhere as to the representative plaintiffs and the putative class members in the Amended Complaint. It does not change the timeliness of any individual or putative class claims.
