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10-3672 Sawyer v. Atlas Heating and Sheet Metal Works, Inc.

By: WISCONSIN LAW JOURNAL STAFF//May 26, 2011//

10-3672 Sawyer v. Atlas Heating and Sheet Metal Works, Inc.

By: WISCONSIN LAW JOURNAL STAFF//May 26, 2011//

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Civil Procedure
Statute of limitations; tolling; class actions

Where a plaintiff in a proposed class action in state court voluntarily dismisses the case, the statute of limitations is tolled during the period the suit was pending.

“Sawyer did not have any way to prevent Park Bank from dismissing the original suit—nor did the state court permit Sawyer to intervene and take over that litigation. (Wisconsin authorizes class actions but unlike Fed. R. Civ. P. 23(e) does not provide for judicial review of voluntary dismissals.) If Atlas Heating is right, the only way Sawyer and the fax’s other recipients could have protected their interests would have been to intervene before Park Bank threw in the towel. Yet intervention would undermine the representative quality of a class action. The premise of class litigation is that individual suits and collective actions (large numbers of persons litigating under a single docket number) are inefficient, and perhaps prohibitively expensive in relation to the potential relief per victim. The Supreme Court decided American Pipe as it did in order to eliminate any need for members of the putative class to intervene in order to guard against an adverse outcome in the original case. 414 U.S. at 553–54. The Court’s goal of enabling members of a putative class to rely on a pending action to protect their interests can be achieved only if the way in which the first suit ends—denial of class certification by the judge, abandonment by the plaintiff, or any other fashion—is irrelevant. Accord, Robbin v. Fluor Corp., 835 F.2d 213 (9th Cir. 1987).”

Affirmed.

10-3672 Sawyer v. Atlas Heating and Sheet Metal Works, Inc.

Appeal from the United States District Court for the Eastern District of Wisconsin, Adelman, J., Easterbrook, J.

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