If you’re litigating a putative class action in federal court and get a class certification order that is adverse to your client (whether plaintiff or defense), you may petition to take an immediate appeal of that order.  Fed. R. Civ. P. 23(f). The petition to appeal must be filed quickly—within 14 days.  Id.  The short turnaround time “is designed to reduce the risk that attempted appeals will disrupt continuing proceedings.” Fed. R. Civ. P. 23(f), Adv. Comm. Note (1998).

But what happens if you also file a motion for reconsideration of the certification order? See Fed. R. Civ. P. 54(b). Rule 54(b) does not impose a deadline to file a motion for reconsideration; unless otherwise provided by local rule, a motion for reconsideration may be filed “at any time before the entry of a judgment.” Id.; see, e.g., N.D. Cal. Civ. L.R. 7–9; Monterey Bay Military Hous., LLC v. Pinnacle Monterey LLC, No. 14-CV-03953-BLF, 2015 WL 1548833, at *5 n.9 (N.D. Cal. Apr. 7, 2015) (Civil Local Rule 7–9 “imposes no time limits on filing”). 

That presents a question: Does the motion for reconsideration toll the time to file your petition to appeal under Rule 23(f)?

The dreaded answer:  It depends. 

All of the circuits have answered this question in the affirmative—but only if the motion for reconsideration is filed within the 14-day period imposed by Rule 23(f). Lambert v. Nutraceutical Corp., 870 F.3d 1170, 1177 & n.3 (9th Cir. 2017), cert. granted, 138 S. Ct. 2675 (2018) (collecting cases). This limitation is consistent with the general rule that “a motion for reconsideration tolls the time for appeal, provided that the motion is made within the time for appeal.” Id. at 177-78 (citation omitted). Thus, the time to file a Rule 23(f) petition will be extended to 14 days from when the district court issues its order on your timely motion for reconsideration.

Watch out, though. The Supreme Court granted review in Lambert and just heard argument on November 27, 2018. The Question Presented is conceptually distinct: Whether equitable tolling applies to Rule 23(f)’s 14-day deadline. However, the opinion below addressed both equitable tolling and, as noted, whether a motion for reconsideration tolls the time to file a Rule 23(f) petition. Lambert, 870 F.3d at 1177 & n.3. And some of the Justices’ questions during argument appeared directed at the latter issue. See Transcript of Oral Argument at 4:2-6 (“JUSTICE GINSBURG: Counsel, I thought that both sides agreed that if the motion for reconsideration is filed within 14 days, within that period, then there is tolling until the motion is decided. Is that so?”). However the Court rules on the equitable tolling issue, it very well may also comment on whether a motion for reconsideration tolls the time to file a Rule 23(f) petition.

For now, it is still probably a safe bet that a timely motion for reconsideration—i.e., one filed within Rule 23(f)’s 14-day limit—will still toll the time to file a Rule 23(f) petition. A definitive answer may be forthcoming from the Supreme Court in Lambert. But whatever you do, don’t wait more than 14 days!

Josephine Mason Petrick on Linkedin
Josephine Mason Petrick
Senior Counsel at Hanson Bridgett LLP
Josephine is an attorney in Hanson Bridgett's Appellate Practice Group, where she focuses on appeals and law and motion in the state and federal courts.