Case No. 17-1094 | 9th Cir.
Preview by Christopher Lin
Troy Lambert (“Lambert”) purchased an aphrodisiac dietary supplement manufactured by Nutraceutical Corp. (“Nutraceutical”) that alleged it would enhance sexual performance. Lambert later contended that the product was not in fact approved by the FDA and had not undergone clinical testing as required by 21 C.F.R. § 310.528(b) and (c).
Lambert filed a consumer class action against Nutraceutical under Federal Rule of Civil Procedure 23(b)(3), alleging violation of California consumer fraud, false advertising, and unfair competition law. The district court initially granted class certification, but after discovery, on February 20, 2015, granted Nutraceutical’s motion to decertify class. On March 2, 2015, ten days after the decertification, Lambert expressed his intention to file a motion for reconsideration at a status conference, and the court set the deadline for his motion at ten days from the conference—twenty days in total after the order decertifying class. Lambert timely filed his motion on March 12, 2015 as the court had instructed, moving for reconsideration and asking for recertification. Three months later, the court denied Lambert’s motion on the merits, and Lambert subsequently filed a petition for permission to appeal the decertification order under Rule 23(f), which imposes a filing deadline of “14 days after the order is entered.”
When reviewing the timeliness of the petition, the Ninth Circuit held that Rule 23(f) was procedural and not jurisdictional, and that equitable exceptions such as tolling could thus apply. It also held that Lambert’s expression of his intent to move for reconsideration was sufficient to toll the Rule 23(f) deadline, and that after the district court denied Lambert’s motion for reconsideration, he filed his petition within the 14-day deadline. With this reasoning, the Ninth Circuit held that Lambert timely filed his petition, although it also acknowledged that other circuits would likely reach a different conclusion.
The central issue that the Supreme Court will address is whether the Ninth Circuit erred when it held that equitable exceptions apply to mandatory claim-processing rules and that Lambert timely filed a petition for permission to appeal under Rule 23(f) because the deadline to file was tolled.
Nutraceutical contends that claim-processing rules are mandatory and unalterable in nature, and that the Ninth Circuit had the duty to dismiss Lambert’s appeal under Supreme Court case law. It further contends that the Ninth Circuit could not have extended the deadline for a petition for permission to appeal because Federal Rule of Appellate Procedure Rule 26(b) expressly prohibits it.
In response, Lambert argues that “equitable tolling to Rule 23(f) does not constitute an ‘extension,’” but “simply recalibrates the date from which the 14-day deadline begins to run.” Brief for Respondent at 6, Nutraceutical Corp. v. Lambert, No. 17-1094 (U.S. filed Oct. 1, 2018). He further contends that his petition for permission to appeal was timely regardless of whether the Ninth Circuit reached the issue of equitable tolling because his oral representation at the status conference constituted a formal motion under Federal Rule of Civil Procedure Rule 7(b)(1) that recalibrated the deadline to appeal to run from the date that the district court disposed of his motion.