Rule 23(f)'s Fourteen Day Window Is "Rigid And Inflexible" Court Tells RNs.
On May 3, 2011, the Second Circuit rejected an appeal by a group of Registered Nurses (“RNs”) of the partial denial of their motion for class certification. In a case pending since 2006, the RNs contend that certain hospitals in the Albany-Schenectady-Troy metropolitan area conspired to depress salaries in violation of the Sherman Antitrust Act, 15 U.S.C. §1. In July 2008, the United States District Court for the Northern District of New York partially granted the nurses’ motion for class certification under Rule 23 of the Federal Rules of Civil Procedure, finding “Plaintiff’s have adequately demonstrated that class certification is appropriate with respect to whether there has been a violation of antitrust law and whether there has been injury to the class that the Sherman Act was designed to prevent. Injury-in-fact and damages, however, must be separately determined, as there exists too much disparity among the proposed class members to proceed under one common trial.” The District Court explained that there are three elements to an antitrust claim, 1) violation of antitrust law; 2) injury and causation; and 3) damages. While the RNs had asserted a common violation of antitrust law, the issues of injury-in-fact and damages were, in the District Court’s view, insufficiently common among the putative class members to justify class certification.
The RNs appealed to the United States Court of Appeals for the Second Circuit under Rule 23(f) of the Federal Rules of Civil Procedure, which governs interlocutory appeals of orders granting or denying class action certification. Rule 23(f) provides that a petition for permission to appeal must be filed with the Circuit Court within 14 days after the certification order is entered. Since the appeal was made nearly 18 months after the decision, it was untimely and, accordingly, was rejected. The Circuit Court expressly rejected the RNs’ argument that denial of the motion to amend should reset the clock for the appeal stating, “if denial of amendment to an order granting class certification were sufficient to reset the clock for appeal, a litigant could easily circumvent Rule 23(f)’s deadline by filing a motion to amend or decertify the class at any time after the district court’s original order, then petitioning for leave to appeal within fourteen days from the denial of that motion.” Citing to its earlier decision in Coco v. Inc. Vill. Of Belle Terre, N.Y., 448 F.3d 490, 491-92 (2d Cir. 2006), the Circuit Court confirmed the Second Circuit’s well established rule that Rule 23(f)’s fourteen day filing requirement is “a rigid and inflexible restriction.”
