Gelder v. Coxcom Inc.
| Decision Date | 08 August 2012 |
| Docket Number | No. 12–706.,12–706. |
| Citation | 696 F.3d 966 |
| Parties | Bradley GELDER; Bobby Bowick; Henry Holmes; Jessica Diket, individually and on behalf of those similarly situated; Sharon Coughlin, individually, and on behalf of all others similarly situated; Sandra Prezgay; Ron Strobo; Barksdale Hortenstine; Toni Becnel; John Joseph Brady; Robert M. Becnel; Ernest Johnson; Trevor Haynes; Garrett W. Wotkyns; Brittni Cottle–Banks, an individual on behalf of herself and of all others similarly situated, Petitioners, v. COXCOM INC.; Cox Communications, Inc.; Cox Communications New Orleans, Inc.; Cox Communications Louisiana LLC; Cox Nevada Telecom LLC; Cox Communications Las Vegas, Inc.; Cox Communications Holdings, Inc.; Cox Communications EBD Holdings, Inc.; Cox Communications NCC Inc.; Cox Communications Gulf Coast LLC; Cox Nevada Telecom LLC; Elizabeth Ann Brady; Does, 1 through 100, exclusive, Respondents. |
| Court | U.S. Court of Appeals — Tenth Circuit |
OPINION TEXT STARTS HERE
Michael J. Blaschke, Rachel Lawrence Mor, S. Randall Sullivan, A. Daniel Woska, A. Daniel Woska & Associates, P.C., Oklahoma City, OK, Allan Kanner, Cynthia Green St. Amant, Kanner & Whiteley, LLC, New Orleans, LA, Todd Schneider, Adam Wolf, Schneider Wallace Cottrell Brayton & Konecky, LLP, San Francisco, CA, Joe R. Whatley, Jr., Whatley Drake & Kallas, New York, NY, for Petitioners.
Teresa Anne Arnold–Simmons, Quintairos Prieto Wood PA, Jacksonville, FL, Robert G. Kidwell, Mintz Levin Cohn Ferris Glovsky & Popeo PC, Washington, DC, Martin E. Landrieu, Gordon, Arata, McCollam & Duplantis, New Orleans, LA, David Kent Meyers, Esq., Crowe & Dunlevy, Oklahoma City, OK, for Respondents.
Before LUCERO, HARTZ, and O'BRIEN, Circuit Judges.
This matter is before the court to consider the plaintiffs' petition for permission to appeal the district court's denial of their request for class certification filed pursuant to Fed.R.Civ.P. 23(f) and Fed. R.App. P. 5. The petition is denied.1
The plaintiffs filed this action against Cox Enterprises, Inc., on behalf of themselves as well as a putative class consisting of all persons in the United States who subscribe to Cox for so-called premium cable and who paid Cox a monthly rental fee for the accompanying set-up box. In order to receive full access to Cox's premium cable services the plaintiffs had to rent the set-up box from Cox. The plaintiffs alleged that this constituted an illegal tie-in in violation of the Sherman Act, 15 U.S.C. § 1.
Multiple class actions were originally filed in 2009 in various jurisdictions against Cox on these same grounds. At Cox's request, the United States Judicial Panel on Multidistrict Litigation consolidated the cases and transferred them to the Western District of Oklahoma for resolution.
In 2011 the district court denied the plaintiffs' motion for class certification. The court determined that the plaintiffs satisfied the numerosity (numbering more than 3 million), commonality, typicality, and adequacy of representation requirements of Fed.R.Civ.P. 23(a). The court, however, concluded that the determination of Cox's market power was not amenable to proof on a classwide basis. The court also concluded that there was a lack of common evidence regarding the plaintiffs' proffered methods of determining injury.
The court entered its order on December 28, 2011. The plaintiffs filed a motion for reconsideration on January 6, 2012, which was denied on March 28, 2012. This petition for permission was filed on April 11, 2012.
Fed.R.Civ.P. 23(f) provides that a “court of appeals may permit an appeal from an order granting or denying class-action certification under this rule if a petition for permission to appeal is filed with the circuit clerk within 14 days after the order is entered.”
Cox argues that the plaintiffs' petition for permission is untimely. It contends that, although the petition was filed within 14 days after the district court entered its order denying the motion for reconsideration, the petition is late because the motion for reconsideration merely “tolled” the time to file the petition. It contends that because the motion for reconsideration was filed 9 days after the order was entered, the plaintiffs had only 5 days remaining in which to file their petition with this court and because the petition was filed more than 5 days later, the petition is untimely. It relies on this court's opinion in Carpenter v. Boeing Co., 456 F.3d 1183, 1192 (10th Cir.2006), in which this court stated that it assumed, without deciding, that a motion to reconsider filed within the time to appeal would toll the time limit in Rule 23(f).
The statement in Carpenter, however, was not even dictum, and therefore precise language was not essential. The precise statement of the effect of a motion to reconsider can be found in United States v. Ibarra, 502 U.S. 1, 112 S.Ct. 4, 116 L.Ed.2d 1 (1991), which held that when a timely motion for reconsideration is filed, the time to appeal begins anew. It explained:
We believe the issue is better described as whether the [time to appeal] began to run on the date of the first order or on the date of the order denying the motion for reconsideration, rather than as a matter of tolling. Principles of equitable tolling usually dictate that when a time bar has been suspended and then begins to run again upon a later event, the time remaining on the clock is calculated by subtracting from the full limitations period whatever time ran before the clock was stopped.... However, we previously made clear that would-be appellants are entitled to the full 30 days after a motion to reconsider has been decided. United States v. Dieter, 429 U.S. 6, 7–8 [97 S.Ct. 18, 50 L.Ed.2d 8] (1976) ( per curiam ) ().
Thus, the plaintiffs had 14 days from the date the district court denied the motion for reconsideration to file their petition in this court. Because the petition was filed within that time, it was timely.
The concurrence would consider the notice of appeal timely by construing the Motion to Reconsider as one brought under Fed.R.Civ.P. 60, so that Fed. R.App.P. 4(a)(4)(B)(ii) delayed the time for appeal until the motion was decided. But Rule 60(b) is limited to relief from “a final judgment, order, or proceeding.” As the advisory committee note to the 1946 Amendment to Rule 60 states: “The addition of the qualifying word ‘final’ emphasizes the character of the judgments, orders or proceedings from which Rule 60(b) affords relief; and hence interlocutory judgments are not brought within the restrictions of the rule....” In any event, the application of Rule 60(b) is irrelevant. As observed by the Seventh Circuit: Blair v. Equifax Check Services, Inc., 181 F.3d 832, 837 (7th Cir.1999) (citations omitted).
The decision whether to grant the petition is purely discretionary. SeeFed.R.Civ.P. 23(f); Vallario v. Vandehey, 554 F.3d 1259, 1262 (10th Cir.2009) () (quoting Fed.R.Civ.P. 23(f) advisory committee's note). “[C]ourts of appeals have remained ever mindful that interlocutory appeals are traditionally disfavored....” Id. “[T]he grant of a petition for interlocutory review constitutes the exception rather than the rule.” Id. (citations and quotations omitted). “We will exercise restraint in accepting Rule 23(f) petitions and will not accept such petitions as a matter of course.” Id. (citations and quotations omitted).
Upon a careful review of the materials filed with this court and the applicable law, we conclude that this matter is not appropriate for immediate review. None of the concerns noted by this court in Vallario to justify an interlocutory appeal is present here. See id. at 1263–64.
Accordingly, the petition is DENIED.
I concur in parts I and III of the Court's opinion and concur in the result. I cannot join part II because it suggests a “Motion to Reconsider,” that cannot be construed to be one of the motions mentioned in Appellate Rule 4(a)(4)(A), might, nevertheless, extend the time for filing a notice of appeal. There is no need for such speculation.
Rule 5 of the Federal Rules of Appellate Procedure provides in relevant part:
(a) Petition for Permission to Appeal.
(1) To request permission to appeal when an appeal is within the court of appeals' discretion, a party must file a petition for permission to appeal. The petition must be filed with the circuit clerk with proof of service on all other parties to the district-court action.
(2) The petition must be filed within the time specified by the statute or rule authorizing the appeal or, if no such time is specified, within the time provided by Rule 4(a) for filing a notice of appeal.
Fed. R.App. P. 5(a)(1) and (2).
Civil Rule 23(f) reads as follows: Fed.R.Civ.P. 23(f).
Appellate Rule 4(a) specifies in exquisite detail the kinds of motions that extend the time for filing a notice of appeal. In relevant part, it provides:
(4) Effect of a Motion on a Notice of Appeal.
(A) If a party timely files in the district court any of the following motions under the Federal Rules of Civil Procedure,...
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