Ewing Industries Corporation v. Bob Wines Nursery, Inc., et al

On January 12, 2010, Aero Financial, Inc. (“Aero”) filed a class action

complaint in Florida state court against the Defendants, Bob Wines Nursery, Inc.

and Robert L. Wines, Jr. The complaint alleged that the Defendants sent

unsolicited facsimile advertisements to the putative class in violation of the

Telephone Consumer Protection Act. See 47 U.S.C. § 227(b)(1)(C). These claims

are governed by a four-year statute of limitations. See 28 U.S.C. § 1658(a). The

complaint alleged that the conduct took place in December of 2006, meaning that a

little over three years had passed between the alleged conduct and the filing of the

complaint.

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On June 25, 2013, the Florida state court granted summary judgment in

favor of the Defendants because Aero did not have standing. Aero did not have

standing because the alleged unlawful faxes were not sent to Aero, and the

attempted assignment of the claim to Aero was invalid. The Florida state court

never ruled on the issue of class certification. The dispositive issue was a defect in

the class representative, and the court never ruled on the whether the class itself

was a proper class.

On August 2, 2013, the Plaintiff in this action, Ewing Industries Corporation

(“Ewing”), filed a similar class complaint in federal court against the same

Defendants containing similar allegations. Ewing is the only party seeking to

represent the class as the named plaintiff in this action. Recognizing that more

than four years had passed since the alleged conduct, the complaint alleges that the

statute of limitations was tolled during the pendency of Aero’s purported class

action. On February 7, 2014, the Defendants filed a motion to strike the class

allegations in Ewing’s complaint, contending that the claims were barred by the

statute of limitations. On June 26, 2014, the district court entered an order striking

the class allegations in Ewing’s complaint, holding that the claims were time

barred. The district court considered only the pleadings, and, relying on this

court’s decision in Griffin II, 17 F.3d at 359, concluded that the pendency of

Aero’s purported class action did not toll the statute of limitations for Ewing’s

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purported class action. Because the district court struck the class allegations from

Ewing’s complaint, it denied Ewing’s pending motion for class certification with

prejudice. Ewing appeals.

II. Discussion The dispositive issue on this appeal is whether this court’s decision in

Griffin II controls the outcome in this case. Ewing contends that Griffin II

addressed a different factual scenario. Ewing admits that if a purported class

action reaches the class certification stage, and class certification is denied, there is

no tolling for a subsequent class action based on the same conduct. A contrary

result would allow a purported class almost limitless bites at the apple as it

continuously substitutes named plaintiffs and relitigates the class certification

issue. However, Ewing contends that when a class action fails due to the

inadequacy of the class representative—rather than due to defects in the class

itself—the statute of limitations is tolled. In short, Ewing contends that every

purported class should get at least one attempt at class certification. The

Defendants contend that Griffin II addressed the exact situation at issue here: the

“piggybacking” of class actions one after another in an attempt to find an adequate

class representative. According to the Defendants, this court’s opinion in Griffin II

squarely rejected tolling in a case like this one.

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We ordinarily review de novo a district court’s decision on the pleadings.

See Williams v. Bd. of Regents of Univ. Sys. of Ga., 477 F.3d 1282, 1291 (11th Cir.

2007). While we review decisions on class certification only for abuse of

discretion, see Armstrong v. Martin Marietta Corp., 138 F.3d 1374, 1388 (11th

Cir. 1998), “[w]e decide pure law issues de novo, which is another way of saying

that a ruling based on an error of law is an abuse of discretion.” Young v. New

Process Steel, LP, 419 F.3d 1201, 1203 (11th Cir. 2005) (citations omitted).

We begin by noting that the first purported class action in this case was filed

in state court under the state equivalent of Federal Rule of Civil Procedure 23,

while the second purported class action was filed in federal court under Rule 23.

We consider the difference irrelevant for tolling purposes.

We now turn to this court’s opinion in Griffin II. To understand the holding

in Griffin II, a brief review of the facts and procedural history of that case is

necessary, including its discussion of the related case of Griffin v. Dugger, 823 F.2d 1476 (11th Cir. 1987) (hereinafter “Griffin I”).1 The original plaintiff in

Griffin I filed a class action in 1979, based on a theory that became known as the

“across-the-board” approach to Title VII class actions. See Griffin II, 17 F.3d at

357. This theory—under Fifth Circuit precedent at the time—allowed a class

1Our discussion of Griffin I is relevant only for the purpose of understanding the procedural history—and thus the holding—of Griffin II. For this reason, we cite to Griffin II in describing the details of the Griffin I litigation, rather than to the Griffin I opinion itself.

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representative to bring claims on behalf of a class that were different from his

individual claims. See id. In 1980, the district court permitted the intervention of a

second plaintiff. See id. In 1982, the Supreme Court reversed the Fifth Circuit

precedent that allowed across-the-board class actions. See General Telephone Co.

of Southwest v. Falcon, 457 U.S. 147, 157–61, 102 S. Ct. 2364, 2370–72 (1982).

The Supreme Court held that “a class representative must be part of the class and

possess the same interest and suffer the same injury as the class members.” Id. at

156, 102 S. Ct. at 2370 (quotations omitted). After the Supreme Court’s decision

in Falcon, rather than decertify the class, the district court in Griffin I permitted the

intervention of a third plaintiff in an attempt to ensure that the named plaintiffs

properly represented the class. See Griffin II, 17 F.3d at 357–58.

In 1985, the district court certified for interlocutory appeal its decision to let

the three named plaintiffs serve as class representatives. See id. at 358. In Griffin I,

this court vacated the district court’s order certifying the class. 823 F.2d at 1494.

The class was decertified because none of the three named plaintiffs were proper

representatives. See Griffin II, 17 F.3d at 358. The first and second plaintiffs were

not proper representatives because they did not have constitutional standing under

the Supreme Court’s holding in Falcon. See id. As to the third plaintiff, he had

constitutional standing but was precluded from bringing suit because he did not

properly exhaust his administrative remedies. See id.

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On remand from Griffin I, the parties sought to amend their complaints, and

additional class representatives sought to intervene. Id. At the same time, a

number of members of the purported class filed their own class complaints

(hereinafter the “Platt plaintiffs”), seeking to represent the same class that was the

subject of Griffin I. Id. The district court denied the Griffin I plaintiffs’ motions to

amend, denied intervention to the additional parties, and entered judgment for the

defendants. In the related litigation involving the Platt plaintiffs, the district court

struck the class allegations and denied class certification, concluding that the Platt plaintiffs’ claims were untimely.2 Id. at 359.

The Griffin I plaintiffs and the Platt plaintiffs both appealed, and the appeals

were consolidated in Griffin II. Relevant for our purposes is this court’s

consideration in Griffin II of whether the Platt plaintiffs’ claims were untimely, or

whether the statute of limitations was tolled pending the Griffin I litigation. This

court held that the statute of limitations was not tolled during the Griffin I

litigation, and affirmed the judgment of the district court. Id. In reaching this

conclusion, this court noted that “the pendency of a previously filed class action

does not toll the limitations period for additional class actions by putative members

of the original asserted class.” Id. (citations omitted). The Griffin II court

2The timeliness issue with the Platt plaintiffs actually related to the filing of a charge with the Equal Employment Commission, rather than the filing of a complaint. See Griffin II, 17 F.3d at 358–59. The Griffin II court did not consider the distinction relevant, and the parties in this case make no attempt to distinguish Griffin II on this basis.

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concluded that it does not matter whether the first purported class action fails due

to the inadequacy of the class representative or due to defects in the class itself.

While it is true that Griffin II involved claims that had reached the class

certification stage and been decertified on appeal, the reason for decertification was

the inadequacy of the class representatives, not the defectiveness of the class itself.

Thus, Ewing’s attempt to distinguish Griffin II is unconvincing.

If there is any doubt whether Griffin II governs this case, it is resolved by the

following excerpt from this court’s opinion in Griffin II,

The plaintiffs may not “piggyback one class action onto another” and thereby engage in endless rounds of litigation in the district court and in this Court over the adequacy of successive named plaintiffs to serve as class representatives. This case illustrates the wisdom of the rule against piggybacked class actions. Fifteen years after the Griffin lawsuit was filed, the class action issues are still being litigated, and we decline to adopt any rule that has the potential for prolonging litigation about class representation even further. Id. (citations omitted) (emphasis added). Griffin II was concerned about the very

issue we confront here: the potential for multiple rounds of litigation as the class seeks an adequate class representative.3

3 The Griffin II court recognized that the pendency of a purported class action tolls the statute of limitations for subsequent individual actions by members of the original purported class. See Am. Pipe & Constr. Co. v. Utah, 414 U.S. 538, 94 S. Ct. 756 (1974); Griffin II, 17 F.3d at 360. The parties in this case do not dispute this.

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Several other circuits that have considered this issue have either

distinguished this court’s decision in Griffin II or criticized and declined to follow

it. According to the Seventh Circuit,

[Griffin II] did not distinguish between a situation in which class status was denied in the first suit because the plaintiff was not a suitable representative, and a situation in which class status was denied because the other criteria of Rule 23(a) and (b) could not be met. These two situations seem to us different, for the reasons we have given. Perhaps the eleventh circuit would think so too . . . .

Sawyer v. Atlas Heating and Sheet Metal Works, Inc., 642 F.3d 560, 564 (7th Cir.

2011); see also In re Vertrue Inc. Mktg. and Sales Practices Litig., 719 F.3d 474,

480 n.2 (6th Cir. 2013) (distinguishing Griffin II on similar grounds); Catholic Soc.

Servs., Inc. v. I.N.S., 232 F.3d 1139, 1148–50 (9th Cir. 2000) (en banc) (same).

And, according to the Third Circuit, “[w]hile [Griffin II’s] denial of tolling for all

sequential class action plaintiffs has the virtue of clarity and ease of application, it

is also characterized by a rigidity which we reject.” Yang v. Odom, 392 F.3d 97,

106 (3d Cir. 2004); see also Great Plains Trust Co. v. Union Pac. Ry. Co., 492

F.3d 986, 997 (8th Cir. 2007) (interpreting Kansas’s equivalent to Rule 23 and,

while not addressing Griffin II directly, agreeing with the Third Circuit’s analysis

in Yang). For the reasons discussed above, we disagree with the courts that have

distinguished Griffin II from facts similar to those in this case. As to the courts

that have rejected our holding in Griffin II, the merits of the holding in Griffin II

are not before us. Under our prior precedent rule, a panel cannot overrule a prior

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panel’s holding. United States v. Steele, 147 F.3d 1316, 1317–18 (11th Cir. 1998)

(en banc).

For the foregoing reasons, the judgment of the district court is affirmed.



AFFIRMED.