Troy Lambert v. Nutraceutical Corp. ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 27 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TROY LAMBERT, on Behalf of No. 15-56423
Themselves and All Others Similarly
Situated, D.C. No. 2:13-cv-05942-AB-E
Plaintiff-Appellant,
MEMORANDUM*
v.
NUTRACEUTICAL CORP.,
Defendant-Appellee.
On Remand from the United States Supreme Court
Before: PAEZ, BERZON, and CHRISTEN, Circuit Judges.
Troy Lambert petitions under Federal Rule of Civil Procedure 23(f) for leave
to appeal the district court’s order decertifying the proposed class in this case. In a
prior opinion, we held that the Rule 23(f) 14-day deadline was equitably tolled
under the circumstances presented here, but the Supreme Court reversed. See
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Nutraceutical Corp. v. Lambert, 139 S. Ct. 710, 713, 717–18 (2019).1 The Court
remanded for us to address Lambert’s alternative arguments that his Rule 23(f)
petition was timely without resort to equitable tolling. Id. at 717. We conclude
that his petition is untimely, and therefore dismiss the petition.
The only question we must answer is whether Lambert’s Rule 23(f) petition
is timely where, following the district court’s scheduling order, Lambert filed a
motion for reconsideration 20 days after the district court’s decertification order
and then filed a Rule 23(f) petition 14 days after the denial of the motion for
reconsideration. Id. at 713.
Lambert raises three arguments on remand from the Supreme Court. It
appears that Lambert’s first two arguments were not raised in his initial appellate
briefs. We recognize, however, that “it is claims that are deemed waived or
forfeited, not arguments.” United States v. William, 846 F.3d 303, 311 (9th Cir.
2016) (quoting United States v. Pallares-Galan, 359 F.3d 1088, 1095 (9th Cir.
2004)). We therefore address the new arguments and the one that was earlier
raised but conclude all lack merit.
1. Lambert first argues that his Rule 23(f) petition was timely because his
1
The Court did, however, affirm our holding that Rule 23(f) “is properly classified
as a nonjurisdictional claim-processing rule.” Nutraceutical, 139 S. Ct. at 714. It
disagreed with our application of equitable tolling because it concluded that the
governing rules of procedure “speak directly to the issue of Rule 23(f)’s flexibility
and make clear that its deadline is not subject to equitable tolling.” Id. at 715.
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motion for reconsideration was filed within the time allowed by Federal Rule of
Civil Procedure 59(e)2 and the time to file a petition ran from the disposition of the
reconsideration motion, not the decertification order. This argument is unavailing.
In Nutraceutical, the Supreme Court noted that “[a] timely motion for
reconsideration filed within a window to appeal . . . ‘renders an otherwise final
decision of a district court not final.’” 139 S. Ct. at 717. Thus, a timely motion for
reconsideration “does not toll anything” but rather “affects the antecedent issue of
when the 14-day limit begins to run.” Id. By extension, if a motion for
reconsideration is filed after the Rule 23(f) 14-day window to file a petition passes,
then the district court’s order has already become final and the untimely motion
cannot impact the antecedent issue of when the 14-day period begins to run. Cf.
Hibbs v. Winn, 542 U.S. 88, 98 (2004) (holding that “[b]ecause [28 U.S.C.]
§ 2101(c)’s 90-day limit [for petition for certiorari] had not yet expired, the clock
could still be reset”). In other words, Lambert cannot resuscitate the Rule 23(f)
deadline by filing a motion for reconsideration after the 14-day period has expired.
2. Lambert also argues that his Rule 23(f) petition was timely because the
motion for reconsideration was filed within the time limit set by the district court,
causing the time to appeal to run from the court’s disposition of the reconsideration
2
Rule 59(e) provides that a motion for reconsideration must be filed “no later than
28 days after the entry of the judgment.”
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motion. This argument, however, contravenes the Supreme Court’s unequivocal
conclusion “that Rule 23(f)’s time limit is purposefully unforgiving,”
Nutraceutical, 139 S. Ct. at 716, and “[t]he Rules thus express a clear intent to
compel rigorous enforcement of Rule 23(f)’s deadline,” id. at 715. While the
district court has authority to set deadlines for motions for reconsideration, see
Ready Transp., Inc. v. AAR Mfg., Inc., 627 F.3d 402, 404 (9th Cir. 2010), that
authority does not allow the court to extend the deadline for seeking leave to
appeal under Rule 23(f). See United States v. W.R. Grace, 526 F.3d 499, 511 (9th
Cir. 2008) (noting that “whatever the scope of this inherent power [of federal
courts to formulate procedural rules], it does not include the power to develop rules
that circumvent or conflict with the Federal Rules” (internal alterations and
quotation marks omitted)).
3. Last, Lambert argues that the district court’s decision denying the motion for
reconsideration constituted an “order granting or denying class-action
certification” under Rule 23(f), and therefore triggered a new 14-day window to
appeal. Lambert asserts that it constituted a new certification order because the
district court altered the decertification order by directing Lambert’s counsel to
give notice to the class of the decertification and, alternatively, because the
reconsideration denial with its notice provision falls within the plain language of
Rule 23(f). As we previously pointed out, other circuits that have considered
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motions for reconsideration filed more than 14 days after the order granting or
denying certification have suggested or held that petitioners may receive an
additional 14 days to file a Rule 23(f) petition only if the motion for
reconsideration was granted and changed the status quo of class certification. See
Lambert v. Nutraceutical Corp., 870 F.3d 1170, 1181 n.8 (9th Cir. 2017), rev’d on
other grounds, 139 S. Ct. 710 (2019). Here, the district court denied Lambert’s
motion for reconsideration and did not change the status quo of class certification.
In ordering counsel to give notice of class decertification, the district court did not
change the status quo of class certification itself. Moreover, we note that the
district court explicitly instructed Lambert not to file a new motion for class
certification and Lambert’s counsel stated on the record that it was counsel’s
intention to file only a motion for reconsideration. Allowing Lambert to restyle his
motion for reconsideration as a motion to recertify the class would defeat the
function of the Rule 23(f) deadline.
We therefore reject Lambert’s arguments and dismiss the petition as
untimely.
PETITION DISMISSED.
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