Odle v. Flores
| Decision Date | 01 December 2017 |
| Docket Number | No. 16-10347,16-10347 |
| Citation | 899 F.3d 344 (Mem) |
| Parties | Stephanie ODLE, on behalf of herself and all others similarly situated, et al; Plaintiffs Wal-Mart Stores, Incorporated, Defendant - Appellee v. Oralia FLORES; Rosie Lujan; Alice Biscardi; Debbie Hayworth; Brenda Henderson; Linda Mcfadden; Margarita Murillo; Sandra Phelan, on behalf of themselves and others similarly situated, Movants - Appellants |
| Court | U.S. Court of Appeals — Fifth Circuit |
Theodore J. Boutrous, Jr., Esq., Catherine Anne Conway, Esq., Attorneys, Gibson, Dunn & Crutcher, L.L.P., Los Angeles, CA, Rachel Susan Brass, Gibson, Dunn & Crutcher, L.L.P., San Francisco, CA, Michelle L. Maryott, Gibson, Dunn & Crutcher, L.L.P., Irvine, CA, Karl G. Nelson, Gibson, Dunn & Crutcher, L.L.P., Dallas, TX, Mark Andrew Perry, Gibson, Dunn & Crutcher, L.L.P., Washington, DC, for Defendant – Appellee.
Hal K. Gillespie, Gillespie Sanford, L.L.P., Dallas, TX, Joseph M. Sellers, Christine E. Webber, Cohen Milstein Sellers & Toll, P.L.L.C., Washington, DC, for Movants – Appellants.
Before REAVLEY, ELROD, and GRAVES, Circuit Judges.
Treating the Petition for Rehearing En Banc as a Petition for Panel Rehearing, the Petition for Panel Rehearing is DENIED. The court having been polled at the request of one of the members of the court and a majority of the judges who are in regular active service and not disqualified not having voted in favor ( FED. R. APP. P. and 5TH CIR. R. 35), the Petition for Rehearing En Banc is DENIED.
In the poll, 5 judges vote in favor of rehearing en banc, and 9 vote against. Voting in favor are Judges Jolly, Jones, Smith, Clement, and Owen. Voting against are Chief Judge Stewart, Dennis, Prado, Elrod, Southwick, Haynes, Graves, Higginson, and Costa.
JAMES E. GRAVES, JR., Circuit Judge, joined by REAVLEY and ELROD, Circuit Judges, concurring in denial of rehearing en banc:
BACKGROUND
In this case, the panel merely followed precedent. We faced the issue of whether, following a Rule 41(a)(1)(A)(ii) stipulated dismissal with prejudice by a named plaintiff in a class action, a district court had jurisdiction to entertain a motion to intervene by absent class members seeking to appeal an earlier denial of class certification. See Odle v. Flores , 683 F. App'x 288, 289 (5th Cir. 2017). We held only that the district court had jurisdiction to consider the motion. Id. We did not "express any opinion on whether intervention [was] warranted." Id.
In reaching that conclusion, we followed Sommers v. Bank of America , 835 F.3d 509 (5th Cir. 2016). In Sommers , a shareholder sought to intervene in a lawsuit after entry of a stipulated dismissal. Id. at 511. We affirmed the district court’s denial of the motion to intervene, finding that the motion was untimely. Id. at 513. However, we rejected the argument that "intervention is always improper after a case has been dismissed." Id. In a substantive footnote, we reconciled that conclusion with earlier Fifth Circuit cases. Id. at 513 n.5.
Appellant timely filed a motion for rehearing en banc , which we now deny.
The dissenting opinion criticizes both Odle and Sommers , arguing that they are contrary to Supreme Court precedent, our prior Fifth Circuit case law, a prominent treatise, and other circuits’ decisions.1 With respect, the dissenting opinion fails to cite any precedent showing that either Sommers or Odle are error.
Sommers only rejected the broad proposition that intervention is always improper after a case has been dismissed. 835 F.3d at 513. The dissenting opinion contends that conclusion "contradicted a long train of authorities that carve out very narrow exceptions to parties’ ability to dismiss cases voluntarily without court approval."
Sommers is not in conflict with any of the dissenting opinion’s cited authority.
The dissenting opinion claims that Sommers does not follow Cooter & Gell v. Hartmarx Corp. , 496 U.S. 384, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990). However, Cooter does not address the issue presented in Sommers.
In Cooter , the Supreme Court faced the issue of "whether petitioner’s dismissal of its antitrust complaint [without prejudice] pursuant to [Rule 41(a)(1)(A)(i) ] deprived the District Court of the jurisdiction to award attorney’s fees." Id. at 393-94, 110 S.Ct. 2447. Cooter has nothing to do with a court’s jurisdiction to entertain post-dismissal motions to intervene after a stipulated dismissal with prejudice under Rule 41(a)(1)(A)(ii). Nor does it address the unique circumstances presented in a class action lawsuit.
Nonetheless, Cooter is cited as "identif[ying] certain collateral issues that a court may handle following a stipulated dismissal, including Rule 11 sanctions, imposition of costs, attorney’s fees and contempt sanctions." That list, however, must be viewed in light of the facts presented in Cooter . The Supreme Court listed these collateral issues as examples of Rule 11-like issues that do not require a judgment on the merits, and therefore do "not deprive the plaintiff of his right under Rule 41(a)(1) to dismiss an action without prejudice." Cooter , 496 U.S. at 396, 110 S.Ct. 2447. This was of particular importance in Cooter , where the plaintiff exercised its unilateral right to dismiss without prejudice prior to any merits determination.
Neither of the plaintiffs in either Sommers or Odle exercised the right found in Rule 41(a)(1)(A)(i). Nor did either dismiss without prejudice. Instead, both dismissed with prejudice under a Rule 41(a)(1)(A)(ii) joint stipulation. Nothing in Cooter suggests that the same importance of the right to unilaterally avoid a merits determination underlies a Rule 41(a)(1)(A)(ii) dismissal with prejudice. Further, nothing indicates that the listed collateral issues are an exhaustive list of issues proper for consideration after such dismissals. Cooter is not controlling on the issue presented.
Not only is Cooter not controlling, but Supreme Court precedent indicates that Sommers was rightly decided. In United Airlines, Inc. v. McDonald , 432 U.S. 385, 97 S.Ct. 2464, 53 L.Ed.2d 423 (1977), the Supreme Court held that a putative class member could appeal the denial of a class certification by intervention, after entry of a judgment in favor of the named plaintiff, but before the statutory time for appeal had run. Id. at 396, 97 S.Ct. 2464. While set in a different procedural posture, McDonald expresses the Court’s concern that putative class members should have a chance to appeal an adverse class determination once it is clear that their interests will no longer be protected by the named plaintiffs. Id. at 392-96, 97 S.Ct. 2464.
Three years later, in Deposit Guaranty National Bank v. Roper , 445 U.S. 326, 100 S.Ct. 1166, 63 L.Ed.2d 427 (1980), the Court again recognized "the rights of putative class members as potential intervenors." Id. at 331, 100 S.Ct. 1166. Though the Court ultimately determined the narrow issue presented by considering "the private interest of the named plaintiffs," id. at 332, 100 S.Ct. 1166, the Court noted that "[a] district court’s ruling on the certification issue is often the most significant decision rendered in these class-action proceedings." Id. at 339, 100 S.Ct. 1166. The Court then expressed concern about defendants attempting to "buy off" the named plaintiffs, and noted that forcing putative plaintiffs to each bring their own action "obviously would frustrate the objectives of class actions ... [and] invite waste of judicial resources." Id. Moreover, the Court stated that it "view[s] the denial of class certification as an example of a procedural ruling, collateral to the merits of a litigation , that is appealable after the entry of a final judgment." Id. at 336, 100 S.Ct. 1166 (emphasis added); see also id. ().
Sommers is not in conflict with Cooter , and is in fact supported by the Supreme Court’s decisions in McDonald and Roper .
The dissenting opinion next asserts that Sommers is contrary to a number of our cases. Again, Sommers is not in conflict with the cited precedent.
First, in Gaines v. Dixie Carriers, Inc. , 434 F.2d 52 (5th Cir. 1970), this court permitted a law firm to intervene post-dismissal in order to protect an interest in attorneys’ fees. Id. at 54. The dissenting opinion cites Gaines for the proposition that "the case having been dismissed by joint consent, the intervention falls with it." This quote is taken out of context. In fact, this language is the Gaines court’s framing of the losing argument. Gaines , 434 F.2d at 54. The dissenting opinion further attempts to distinguish Gaines on the grounds that "[d]isposing of the res was a collateral matter within the understood scope of Rule 41(a)." Even if true, nothing in Gaines supports the broad conclusion that motions to intervene are always improper post-dismissal.
Second, in Ford v. City of Huntsville , 242 F.3d 235 (5th Cir. 2001), this court again granted a post-dismissal right to intervene, this time in order to challenge a confidentiality order. Id. at 238. Ford , therefore, shows our court recognizing that intervention can be proper post-dismissal, as recognized in Sommers . See 835 F.3d at 513 n.5. The dissenting opinion distinguishes the holding in Ford by asserting that the challenge to the confidentiality order was a "matter collateral to the merits." Even if true, nothing in Ford supports the conclusion that Sommers erred in finding that intervention is potentially proper post-dismissal.
Third, in SmallBizPros, Inc. v. MacDonald , 618 F.3d 458 (5th Cir. 2010), we held that after a Rule 41 stipulated dismissal a court only maintains jurisdiction to enforce a settlement agreement if the parties "agree to such...
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