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Civil Procedure — class certification — appeal

By: WISCONSIN LAW JOURNAL STAFF//February 24, 2012//

Civil Procedure — class certification — appeal

By: WISCONSIN LAW JOURNAL STAFF//February 24, 2012//

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United States Court of Appeals For the Seventh Circuit

Civil

Civil Procedure — class certification — appeal

A plaintiff cannot file an untimely appeal of a denial of class certification, along with a timely appeal of a later denial of a different proposed class, but the first denial does not preclude appeal of the second ruling.

“[T]he plaintiffs’ argument is that their 14 days to seek leave to appeal ran anew from the denial of their amended motion for class certification. The defendant points out that a deadline for appealing cannot be extended by a motion for reconsideration of a previous appealable order, Asher v. Baxter Int’l Inc., supra, 505 F.3d at 739-40; Gary v. Sheahan, 188 F.3d 891 (7th Cir. 1999); Jenkins v. BellSouth Corp., 491 F.3d 1288, 1290-92 (11th Cir. 2007); McNamara v. Felderhof, 410 F.3d 277, 280-81 and n. 8 (5th Cir. 2005), unless the motion is made within the time allowed for taking the appeal, Blair v. Equifax Check Services, Inc., supra, 181 F.3d at 837, and this rule applies to appeals under Rule 23(f). Id. Otherwise the deadline for taking the appeal would be eviscerated. And this is so even if the motion for reconsideration doesn’t just say “and for the reasons stated in our original motion we ask the court to reverse its ruling” but adds “and by the way we have thought of some clever new arguments for why our motion should have been granted.” Carpenter v. Boeing Co., 456 F.3d 1183, 1190- 91 (10th Cir. 2006). For it is easy to think up new arguments.”

“But it doesn’t follow that the failure to take a timely appeal from one interlocutory order operates as a forfeiture, jurisdictional or otherwise, of the right to appeal a subsequent order. For the later motion may not be, either in form or, more important, in substance, a motion to reconsider the previous denial. A rule limiting parties to one interlocutory appeal from a grant or denial of class certification would disserve Rule 23(f). It is important that the question whether the case is to proceed as a class action be resolved sooner rather than later. So if it becomes clear in the course of the lawsuit, as a result of new law or newly learned facts, that the denial of certification was erroneous, and if years of litigation lie ahead before a final judgment can be expected, and if therefore an appeal from the denial of certification may either end the litigation or at least place it on a path to swift resolution, the court of appeals should have discretion to allow the appeal.”

Reversed.

11-3639 McReynolds v. Merrill Lynch, Pierce Fenner & Smith, Inc.

Appeal from the United States District Court for the Northern District of Illinois, Gettleman, J., Posner, J.

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