In Ewing Indus. Corp. v. Bob Wines Nursery, No. 14-13842, 2015 U.S. App. LEXIS 13484 (11th Cir. Aug. 3, 2015), the Eleventh Circuit Court of Appeals held that the pendency of a prior purported class action does not toll the statute of limitations for a subsequent class action, even when the prior action is dismissed due to the inadequacy of the class representative rather than a defect in the class itself.
In January 2010, Aero Financial, Inc. filed a putative class action lawsuit against Bob Wines Nursery, Inc., for alleged violations of the Telephone Consumer Protection Act, 47 U.S.C. § 227, in Florida state court (the “Florida action”). The alleged conduct took place in December 2006, within the TCPA’s four year statute of limitations. In June 2013, the Florida state court granted summary judgment in favor of Bob Wines Nursery on the grounds that the named plaintiff did not have standing, and never ruled on the issue of class certification.
In August 2013, Ewing Industries Corporation (“Ewing”) filed a similar class action complaint against Bob Wines Nursery in federal court, involving the same conduct during 2006. Ewing argued that under the case law arising from, e.g., Am. Pipe & Const. Co. v. Utah, 414 U.S. 538 (1974), the statute of limitations was tolled during the pendency of the Florida action. The district court granted Bob Wines Nursery’s motion to strike the class allegations, and held that the Florida action did not toll the statute of limitations for subsequent class actions.
On appeal, the Eleventh Circuit affirmed the district court’s ruling. Ewing argued that while the statute of limitations would not be tolled for a subsequent class action if class certification had been denied, tolling should apply when the prior action is dismissed due to the inadequacy of the named plaintiff to represent the class. Relying upon its prior decision in Griffin v. Singletary, 17 F.3d 356 (11th Cir. 1994), the Eleventh Circuit held that the statute of limitations is not tolled during a prior putative class action, even when the action is dismissed due to the inadequacy of the named representative. While recognizing that several Circuits have disagreed with Griffin, the Court noted that 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.”
Accordingly, the Eleventh Circuit affirmed the district court’s decision. A fully copy of the Eleventh Circuit’s decision is available here.
