Case: 13-10037       Document: 00512580795         Page: 1    Date Filed: 04/01/2014




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT
                                                                                United States Court of Appeals
                                                                                         Fifth Circuit


                                         No. 13-10037                                  FILED
                                                                                  March 31, 2014
                                                                                  Lyle W. Cayce
STEPHANIE ODLE,                                                                        Clerk

                                                    Plaintiff-Appellant
v.

WAL-MART STORES, INCORPORATED,

                                                    Defendant-Appellee




                      Appeal from the United States District Court
                           for the Northern District of Texas


Before WIENER, HAYNES, and HIGGINSON, Circuit Judges.
WIENER, Circuit Judge:
         Plaintiff-Appellant Stephanie Odle was an original member of the class
of plaintiffs in Betty Dukes, et al. v. Wal-Mart Stores, Inc. (“Dukes”), 1 “one of
the most expansive class actions ever” certified in the United States. 2 After
many years of litigation over class certification, the Supreme Court decertified



1Civil Action No. 01-2252 (N.D. Cal.). Odle and Wal-Mart request that we take judicial notice
of the district court record in Dukes. We may do so because the “fact that a judicial action
was taken is indisputable and is therefore amenable to judicial notice.” Sepulvado v. Jindal,

, 719 n.3 (5th Cir. 2013) (per curiam) (citing Gray ex rel. Rudd v. Beverly Enters.-
Miss., Inc., 

, 408 n.7 (5th Cir. 2004); Charles A. Wright & Arthur R. Miller, 21B
Fed. Prac. & Proc. § 5106.4 (2d ed. & Supp. 2012); Fed. R. Evid. 201(b)).

2   Wal-Mart Stores, Inc. v. Dukes, 

, 2546 (2011).
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                                        No. 13-10037
the Dukes class in June 2011. 3 Odle then filed the instant putative class action
in the Northern District of Texas (“the Texas district court”). That court
dismissed Odle’s individual claims, concluding that they had ceased to be tolled
and thus were time barred. As we hold that, under American Pipe 4 and its
progeny, the relevant statute of limitations remained tolled when Odle filed
her complaint in this case, we reverse and remand for further proceedings
consistent herewith.
                           I. FACTS AND PROCEEDINGS
         A.      The Dukes Case—The Northern District of California
         In November 1991, Odle went to work for Wal-Mart as an hourly sales
associate at its Sam’s Club store in Lubbock, Texas. 5 Over the next several
years, Odle was transferred to a succession of Sam’s Club stores in Texas,
California, and Nevada, taking on more and more responsibility within the
company. When, in October 1998, Odle was transferred back to Texas as an
assistant manager, she informed her superiors that she wanted to be promoted
to a management position as soon as there was an opening for such. Not long
thereafter, Wal-Mart terminated Odle’s employment.
         In October 1999, Odle timely filed a charge of sex discrimination against
Wal-Mart with the U.S. Equal Employment Opportunity Commission
(“EEOC”). The EEOC issued Odle a right-to-sue notice in May 2001. The next
month, Odle and several other named plaintiffs timely filed Dukes in the
Northern District of California (“the California district court”). 6 The Dukes


3   

4   Am. Pipe & Constr. Co. v. Utah, 

(1974).

5   Wal-Mart owns and operates Sam’s Club stores.

6Betty Dukes filed the original complaint pro se on June 3, 2001. She filed her first amended
complaint approximately two weeks later, adding five women, including Odle, as named
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                                          No. 13-10037
plaintiffs alleged, inter alia, that Wal-Mart maintained discriminatory pay and
promotion policies in violation of Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e, et seq. (“Title VII”).
         Seeking class status for their Title VII claims, the Dukes plaintiffs filed
a motion for certification under Rule 23(b)(2), or, in the alternative, under Rule
23(b)(3), of the Federal Rules of Civil Procedure. 7 As the California district



plaintiffs. Dukes v. Wal-Mart Stores Inc., 

, at *4 (N.D. Cal. Dec.
3, 2001). The California district court later dismissed Odle as a named plaintiff because she
did not satisfy Title VII’s special venue requirements, as the case was proceeding in the
Northern District of California; she nevertheless remained an absent Dukes class member.
See Dukes, 

, at *32-33.

7   Fed. R. Civ. P. 23(b) provides in pertinent part:

                 A class action may be maintained if Rule 23(a) is satisfied and
                 if:

                 ...

                 (2) the party opposing the class has acted or refused to act on
                 grounds that apply generally to the class, so that final injunctive
                 relief or corresponding declaratory relief is appropriate
                 respecting the class as a whole; or

                 (3) 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. The matters pertinent to these findings include:

                        (A) the class members’ interests in individually
                        controlling the prosecution or defense of separate
                        actions;

                        (B) the extent and nature of any litigation
                        concerning the controversy already begun by or
                        against class members;

                        (C) the desirability or undesirability of
                        concentrating the litigation of the claims in the
                        particular forum; and

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                                        No. 13-10037
court certified a nationwide class of female employees—encompassing
approximately 1.5 million women—under Rule 23(b)(2), it did not consider or
rule on the alternative Rule 23(b)(3) request. 8 Wal-Mart appealed the class
certification ruling to the Ninth Circuit.
            Sitting en banc, the Ninth Circuit held that employees like Odle, who
were no longer working for Wal-Mart when the Dukes lawsuit was filed
(“former employees”), 9 lacked standing to pursue injunctive relief under Rule
23(b)(2). 10 The court noted, however, that “this does not mean that former
employees are ineligible to receive any form of relief” because “they may be
eligible to receive back pay and punitive damages.” 11                The Ninth Circuit
therefore remanded the case and instructed the California district court to
“analyze . . . whether an additional class or classes may be appropriate under
Rule 23(b)(3) with respect to the claims of former employees.” 12 The Ninth




                        (D) the likely difficulties in managing a class
                        action.

8 Dukes v. Wal-Mart Stores, Inc., 

, 188 (N.D. Cal. 2004) (certifying a class of
“[a]ll women employed at any Wal-Mart domestic retail store at any time since December 26,
1998[,] who have been or may be subjected to Wal-Mart’s challenged pay and management
track promotions policies and practices”).

9“Former employees” refers to those Wal-Mart employees whose employment ended before
the original Dukes complaint was filed, not to those whose employment ended after that
complaint was filed.

10Dukes v. Wal-Mart Stores, Inc., 

, 623 (9th Cir. 2010) (“We agree with Wal-
Mart [that] those putative class members who were no longer Wal-Mart employees at the
time Plaintiffs’ complaint was filed do not have standing to pursue injunctive or declaratory
relief. . . . Under these circumstances, it is difficult to say that monetary relief does not
predominate with respect to claims by plaintiffs who lack standing to seek injunctive or
declaratory relief.”) (internal citations omitted).

11   

at 624.

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                                       No. 13-10037
Circuit added that, on remand, the California district court could, “in its
discretion, certify a separate Rule 23(b)(3) class of former employees for back
pay and punitive damages.” 13            As for class members who were Wal-Mart
employees when the lawsuit was filed, the Ninth Circuit affirmed the
certification of a Rule 23(b)(2) class “with respect to claims for injunctive relief,
declaratory relief, and back pay.” 14
          Wal-Mart petitioned the Supreme Court for review of that aspect of the
Ninth Circuit’s holding. On June 20, 2011, the Court determined that, even as
narrowed to include only current employees, the Rule 23(b)(2) class did not
meet the Rule 23(a) commonality requirement. 15 Thus, Dukes could not go
forward as a nationwide class action.
          After the Supreme Court’s decision issued, the Dukes plaintiffs promptly
moved to extend tolling of the statute of limitations as to “all claims covered by
the former certified class, so that the members of the former class [could] have
an opportunity to learn of the Supreme Court’s decision, obtain legal advice as
necessary, and make an informed determination on how to best protect their
legal interests.” The California district court granted the motion in part,
stating that “[a]ll former class members who [had] an EEOC notice to sue” had




13   

14Id. at 622-24. With respect to the claims for punitive damages, the Ninth Circuit concluded
“that the district court abused its discretion when it certified a Rule 23(b)(2) class including
punitive damages without first undertaking a comprehensive analysis of whether the
inclusion of such damages in this case causes monetary relief to predominate.” 

“To allow for further pertinent fact-finding,” the court “remand[ed] the certification of the
bifurcated punitive damages claims to the district court to consider whether certification
[was] proper under Rule 23(b)(2).” 

S. Ct. at 2556-57. The Court did not address whether the Ninth Circuit erred
when it remanded the Rule 23(b)(3) issue for further consideration because that issue was
not before it. 

& 2250 n.4.

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                                          No. 13-10037
until “October 28, 2011 to file suit.” 16 The court “grant[ed] this limited period
of additional tolling in the interest of justice and to avoid any confusion that
[may have] exist[ed] among former class members regarding when the time
limit for them to take action expire[d].”
          B.     The Odle Case—The Northern District of Texas
          Complying with the California district court’s tolling extension, Odle
initiated the instant lawsuit (“Odle”) as a putative class action against Wal-
Mart in the Texas district court on October 28, 2011. She filed it on behalf of
herself and all others similarly situated who had “been subjected to gender
discrimination as a result of specific policies and practices in Wal-Mart’s
regions located in whole or in part in Texas.” 17 Odle and the other named
plaintiffs alleged that Wal-Mart had denied them equal opportunities for
promotion to management track positions, and equal pay for hourly retail store
positions and for salaried management positions.
          Wal-Mart moved to dismiss both Odle’s individual claims and the
putative class claims, asserting, inter alia, that they were time barred. As to
Odle’s individual claims specifically, Wal-Mart contended that the last possible
day for her to file her lawsuit was January 18, 2011—90 days after the Ninth
Circuit issued its mandate 18—because that judgment was a “final adverse
determination” for former employees within the meaning of Taylor. 19 Wal-
Mart insisted that, because Odle did not file her complaint until October 28,


16   As noted above, Odle had an EEOC right-to-sue notice.

17Odle filed her first amended complaint on January 19, 2012, adding six other named
plaintiffs who had timely filed EEOC charges.

18Title VII requires a plaintiff to file a lawsuit within 90 days of receiving an EEOC right-to-
sue notice. See 42 U.S.C. § 2000e-5(e)(1) & (f)(1).

. United Parcel Serv., Inc., 

, 521 (5th Cir. 2008).

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                                      No. 13-10037
2011, her lawsuit was not timely filed, so her claims were extinguished by the
running of the statute of limitations.
       The Texas district court granted that motion and dismissed Odle’s
individual claims, reasoning:
              In its en banc opinion, the Ninth Circuit found that
              putative class members who did not work for Wal-
              Mart when Plaintiffs filed the complaint, including
              Odle, lacked standing to pursue injunctive or
              declaratory relief. 

. Once the
              Ninth Circuit rejected that class and issued its
              Mandate, it was clear that Odle and other former
              employees were no longer a part of that class action
              lawsuit. At that time, the putative class members had
              “no reason to assume that their rights were being
              protected” because there was no longer any class of
              former employees on which they could rely. See 

. The Supreme Court’s opinion clarified
              that the class before it did not include Odle or any
              other former employees. See 

              n.1, 2550 n.4. The class of former employees neither
              moved to stay the mandate, nor appealed this issue to
              the Supreme Court. Thus, once the Mandate issued, it
              constituted a “final adverse determination” as to
              Odle’s claims and tolling ceased. See 

. At that point, Odle was required to file a new
              lawsuit in order to protect her claims, and her failure
              to do so within the statute of limitations now bars her
              claims. 20




20The district court also dismissed the putative class claims as untimely. The other named
plaintiffs separately petitioned for permission to proceed with an interlocutory appeal as to
those class claims, and another panel of this court denied the petition on March 19, 2013.
See Case No. 13-90002, ECF no. 00512179890. Consequently, we are concerned with only
Odle’s individual claims in this appeal.

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                                         No. 13-10037
Pursuant to Rule 54(b), the Texas district court entered its judgment of
dismissal against Odle, and she timely filed a notice of appeal. We review that
judgment de novo. 21
           Odle’s appeal presents but one question: Did the Texas district court err
in holding that her employment discrimination claims were time barred
because American Pipe tolling had ceased when the Ninth Circuit’s en banc
mandate issued on October 20, 2010? We conclude that it did so err.
                                             II. Analysis
          “Class action lawsuits, like any other lawsuit, are subject to statutes of
limitation and repose that limit the time within which a suit must be brought.
However, the class action mechanism would not succeed in its goal of reducing
repetitious and unnecessary filings if members of a putative class were
required to file individual suits to prevent their claims from expiring if
certification of the class is denied.” 22 Beginning with the Supreme Court’s
decisions in American Pipe and Crown, Cork & Seal, 23 federal courts have
developed jurisprudence on tolling in class actions, seeking to balance the
competing interests of class action litigation (efficiency and economy) vis-à-vis
those of statutes of limitation (protection against stale claims). 24 The resulting


21   Hall v. Variable Annuity Life Ins. Co., 

, 374-75 (5th Cir. 2013).

22   

23   Crown, Cork & Seal Co., Inc. v. Parker, 

(1983).

24See, e.g., Crown, Cork & 

(“[In American Pipe, t]he Court reasoned
that[,] unless the filing of a class action tolled the statute of limitations, potential class
members would be induced to file motions to intervene or to join in order to protect
themselves against the possibility that certification would be denied. The principal purposes
of the class action procedure—promotion of efficiency and economy of litigation—would
thereby be frustrated. To protect the policies behind the class action procedure, the Court
held 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.”) (internal citations and quotation marks omitted).
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rule is that “the filing of a class action tolls the running of a statute of
limitations for all asserted members of the class.” 25
            Tolling, however, does not continue indefinitely. 26 If the district court
denies certification, or if it certifies the class but later decertifies it, tolling
ceases. 27 This is because “the putative class members ha[ve] no reason to
assume that their rights [a]re being protected.” 28 Furthermore, “[a]lthough the
denial of class certification or the decertification of the class might potentially
be reversed on appeal, such a ruling nonetheless serves as notice to the once-
putative class members that they are ‘no longer parties to the suit and . . . [a]re
obliged to file individual suits or intervene.’ ” 29
            Odle contends that tolling of her action continued because the Ninth
Circuit’s en banc opinion did not notify her that her claims could not be pursued
as part of a class. To the contrary, the Ninth Circuit specifically instructed the
California district court to consider on remand whether the class of former
employees could be certified under Rule 23(b)(3)—relief the Dukes plaintiffs
had requested in their first amended complaint and in their motion for class
certification. Her position, Odle argues, “honors both Rule 23’s purpose as a
vehicle of efficient group representation and limitation statutes’ role in
providing timely notice of adverse claims and preventing harmful delay.” 30




25   

(internal quotation marks and citation omitted).

26   

(citing Crown, Cork & 

).

28   

(quoting 

).

29   Id. (quoting 

).

30   

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                                        No. 13-10037
         Wal-Mart responds that when Odle “was ejected from [the Dukes] class
by the Ninth Circuit’s mandate on October 20, 2010,” as of that date “she was
no longer a member of any certified or pending class action.” Pointing to
Calderon II 31 and Hall, Wal-Mart asserts that this court has “clarified that
[tolling] ends when a court rules that an individual is no longer a member of a
certified class ‘without regard to any appeal from that decision’ and without
regard to reconsideration of that decision on remand.” Wal-Mart concludes
that, because the Ninth Circuit “eliminated” Odle and all other former
employees from the Dukes certified class, she was put on notice that she had
to file an individual lawsuit within 90 days, and she failed to do so.
         We agree with Odle that tolling continued, as the facts of Calderon II
and Hall are distinguishable on significant procedural grounds. Calderon II
was our second go-around with the same putative class action. In Calderon
I, 32 the district court denied class certification. On appeal the first time, we
affirmed the district court’s refusal to certify the class, but we remanded the
case on other grounds. We further noted that the district court nevertheless
could, despite our affirmance, reconsider the class certification issue on
remand. 33 In the meantime—after the district court denied certification but
before the Calderon I appeal was decided—the two-year statute of limitations
expired. 34 On remand, the district court certified the class.


31Salazar-Calderon v. Presidio Valley Farmers Ass’n, 

(5th Cir. 1989) (per
curiam) (“Calderon II”).

32 Salazar-Calderon v. Presidio Valley Farmers Ass’n, 

(5th Cir. 1985)
(“Calderon I”).

33Id. at 1350-51 (“[W]e in no way restrict the court’s discretion to change that decision [to
deny class certification] on remand. It is well-settled that decisions on class certification are
always interlocutory.”)

34   Calderon 

.

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                                   No. 13-10037
          We next determined, in Calderon II, that tolling had ceased when the
district court denied class certification at the outset of the litigation. We held
that, because the Calderon putative class members had failed to protect their
rights by either intervening or by filing individual lawsuits after the district
court’s initial denial of certification and before the two-year statute of
limitations had run, the district court’s subsequent, post-remand certification
order could not resurrect the time-barred claims. 35
          Wal-Mart urges that Calderon II is controlling because it “holds that
decertification constitutes a final adverse determination notwithstanding the
possibility of reconsideration on remand.” Although that is a true statement
of the law in general, Wal-Mart refuses to recognize that Calderon II is
distinguishable from Dukes: The Calderon district court initially denied
certification, whereas the California district court in Dukes certified the class
at the outset of litigation. On appeal, the Ninth Circuit in Dukes upheld the
California district court’s Rule 23(b)(2) determination as to current employees;
and, despite ruling that former employees could not participate in the Rule
23(b)(2) class, it instructed the California district court to consider the
potential for class certification of those employees under Rule 23(b)(3)—an
issue that the district court had not previously considered, but which the
plaintiffs had alleged in their first amended complaint and pursued in their
motion for certification. The Ninth Circuit’s decision thus did not invite the
California district court to reconsider a denial of class certification; rather, it
directed the lower court to consider certifying—for the first time—the carved-
out class of former employees under a different subsection, viz., Rule 23(b)(3).
The fact that the California district court did not consider, much less deny,



35   

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                                        No. 13-10037
certification of the class of former employees under Rule 23(b)(3) is a crucial
distinction that makes Calderon II inapposite.
          As for Hall, Wal-Mart maintains that it is instructive because it rejected
the argument that vacatur of a certification order “effectively reinstate[s]” a
motion for class certification. 36 Wal-Mart warns that, if validated, Odle’s
position would allow revoked class certifications to toll the statute of
limitations indefinitely. We disagree.
          Hall addressed whether Variable Annuity Life Insurance Company
(“VALIC”) had committed securities fraud by misrepresenting the purported
tax benefits of specific deferred annuities. Aggrieved annuities purchasers had
first sued VALIC in the District of Arizona (“Drnek”) and the Drnek court
certified a nationwide class of persons who had purchased the relevant
annuities. 37 The court later vacated its class certification order when plaintiffs’
counsel inexcusably failed to comply with court-ordered expert witness
deadlines; the Ninth Circuit affirmed. 38
          Then, in Hall, John and Brenda Hall (“the Halls”) sued VALIC in the
Southern District of Texas, seeking to vindicate the same fraud claims alleged
in Drnek. Because the Halls’ lawsuit was filed more than five years after the
Drnek court vacated class certification, the district court dismissed it as time
barred. 39         On appeal, the Halls insisted that the district erred when it



36   

.

37   

38Id. (“Without any expert or witness testimony, the court reasoned, the Drnek plaintiffs
would not be able to prove a class-wide measure of damages, so the district court vacated its
prior order granting class certification.”).

39In Hall, the alleged securities fraud claims were subject to a five-year statute of repose. 

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                                          No. 13-10037
determined that the Drnek court’s vacatur of class certification was the
“functional equivalent” of a denial of certification. The Halls contended that,
unlike a denial of certification ab initio, vacating an existing class certification
“effectively reinstated” their motion for certification, thereby “entitling the
putative class members to American Pipe tolling.” 40 We disagreed, concluding
that “the Drnek court’s decision to vacate certification was ‘tantamount to a
declaration that only the named plaintiffs were parties to the suit.’ ” 41 We held
that vacatur of certification was akin to a denial, so American Pipe tolling
ceased because “a contrary rule would allow non-class members to sit on their
rights indefinitely while awaiting full appellate review of a decision that does
not legally apply to them.” 42
           By contrast, the Ninth Circuit’s en banc opinion in Dukes is not akin to
a denial. By instructing the California district court to consider Rule 23(b)(3)
certification on remand, the Ninth Circuit continued proceedings on the
certification issue for those former employees of Wal-Mart. Thus, the appeals
court’s ruling in Dukes was not a final, adverse resolution of class certification
for former employees.            Until the California district court determined on
remand whether the class of former employees could and should be certified
under Rule 23(b)(3), no court had expressly or impliedly ruled that the former
Wal-Mart employees had “officially lost their status as a class.” 43
Consequently, the former Wal-Mart employees who had been original class
members in Dukes are not similarly situated to the Halls, who had “no reason



40   

.

41   

(quoting 

).

42   

(emphasis omitted).
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                                       No. 13-10037
to think that the ex-class representative [would] continue to protect their
interests” once the Drnek court vacated its certification order. 44 Like Calderon
II, then, Hall is also not controlling here.
                                    III. Conclusion
       For Odle, as a member of the putative Rule 23(b)(3) class of former Wal-
Mart employees, the Ninth Circuit’s en banc Dukes opinion was not a “final
adverse determination” within the meaning of Taylor, so tolling did not cease
as to her when the mandate issued. Because Odle filed this lawsuit before the
California district court’s October 28, 2011 filing deadline expired, her action
was timely.      To rule otherwise would frustrate American Pipe’s careful
balancing 45 of the competing goals of class action litigation on the one hand
and statutes of limitation on the other, by requiring former class members to
file duplicative, needless individual lawsuits before the court could resolve the
class certification issue definitively.
       For the forgoing reasons, we reverse the Texas district court’s dismissal
of Odle’s individual claims and remand this case for further proceedings
consistent with this opinion.
       REVERSED and REMANDED.




44Id. Indeed, Odle was never a member of a decertified or vacated class. Although the Ninth
Circuit held that former employees could not proceed under Rule 23(b)(2), it required the
California district to make a Rule 23(b)(3) determination on remand, and therefore the Ninth
Circuit’s judgment was interlocutory as to the former employees. After the Ninth Circuit
issued its mandate, Odle was a member of a putative Rule 23(b)(3) class with a pending
request for certification.

45 To the extent Wal-Mart suggests that a ruling in Odle’s favor is inequitable because it
would “disturb[] the repose Wal-Mart finally should be afforded after more than a decade of
litigation,” we note that Wal-Mart opposed nationwide, class-based resolution of the claims
alleged in Dukes. That it now must defend against timely filed individual lawsuits like Odle’s
does not make our logical holding unjust.
                                             14