           Case: 15-15260   Date Filed: 08/03/2017   Page: 1 of 15


                                                             [PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                             No. 15-15260
                       ________________________

                   D.C. Docket No. 0:12-cv-61959-RNS



ZENOVIDA LOVE, et al.,

                                           Plaintiffs,

PENELOPE MORRIS,
KATHLEEN FORBES,
LISA O'BRIEN,
LOU ANN HAWES,
LINDA RAY,
JUDITH DANNEMAN,
BRIDGETTE BRAMLEY,
EDNA REMINGTON,

                                           Intervenors - Plaintiffs - Appellants,

versus

WAL-MART STORES, INC.,

                                              Defendant - Appellee.
               Case: 15-15260      Date Filed: 08/03/2017      Page: 2 of 15


                              ________________________

                     Appeal from the United States District Court
                         for the Southern District of Florida
                           ________________________

                                     (August 3, 2017)

Before MARCUS, ANDERSON, and GINSBURG, * Circuit Judges.

GINSBURG, Circuit Judge:

       In Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011), the Supreme Court

reversed the certification of a nationwide class of female Wal-Mart employees

claiming gender discrimination. Thereafter, the unnamed plaintiffs in Dukes filed

new actions seeking certifications of regional classes. The Appellants, a group of

would-be class members of one of these regional class actions, appeal the district

court’s dismissal of the class claims and the denial of the Appellants’ motion to

intervene. We hold that the appeal from the order dismissing the class claims was

untimely filed, and is therefore jurisdictionally barred, and the appeal from the

order denying the Appellants’ motion to intervene is moot.

I. Background

       In 2011, the Supreme Court reviewed the certification of a putative class

action of “one and a half million … current and former female employees” of Wal-

*
 Honorable Douglas H. Ginsburg, United States Circuit Judge for the District of Columbia
Circuit, sitting by designation.


                                              2
              Case: 15-15260     Date Filed: 08/03/2017    Page: 3 of 15


Mart. Dukes, 564 U.S. at 342. The plaintiffs had alleged gender discrimination in

promotions and wages, in violation of Title VII of the Civil Rights Act of 1964.

Id. at 343. Holding the would-be class action did not meet the commonality

requirement of Federal Rule of Civil Procedure 23, the Supreme Court reversed the

certification. Id. at 349-60.

      Members of the putative Dukes class then filed various regional class

actions, including the action at issue here. Love v. Wal-Mart Stores, Inc., No. 12-

61959-CIV, 2013 WL 5434565, at *1 (S.D. Fla. Sept. 23, 2013). The Love

plaintiffs sought to represent former and current female employees of Wal-Mart in

the southeastern United States. Id. The Dukes would-be class members were able

to file a new action because the Dukes litigation tolled the statute of limitations to

file their discrimination claims with the Equal Employment Opportunity

Commission, which filing is required prior to filing a suit in federal court. Id. In

the Eleventh Circuit, however, this tolling is limited to individual, not class,

claims: “[T]he pendency of a previously filed class action does not toll the

limitations period for additional class actions by putative members of the original

class.” Id. at *2 (quoting Griffin v. Singletary, 17 F.3d 356, 359 (11th Cir.1994)).

Therefore, the district court held it was bound by precedent to dismiss the class

claims, but not the individual claims, as untimely. Id. at *2-*3.



                                           3
               Case: 15-15260    Date Filed: 08/03/2017    Page: 4 of 15


      On October 16, 2015, after settling their individual claims with Wal-Mart,

the named plaintiffs and Wal-Mart filed a “stipulation of voluntary dismissal,”

with prejudice, pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(ii). On

October 23, the district court entered an order stating “[t]he parties have dismissed

this case” pursuant to FRCP 41, and denying “[a]ll pending motions . . . as moot.”

On November 6, the Appellants, unnamed members of the would-be class, filed a

“motion for leave to intervene” solely “so that they may appeal” the order

dismissing the class claims. On November 19, the district court held the stipulated

dismissal stripped it of jurisdiction to hear the motion to intervene and therefore

denied the motion. Later the same day, the Appellants filed their notice of appeal

of both (1) the order denying the motion to intervene and (2) the order dismissing

the class claims.

II. Analysis

      Before addressing the present appeal, we are met with Wal-Mart’s motion to

dismiss it as untimely filed, and the Appellants’ opposition thereto. We take up

that issue first because, if Wal-Mart is correct, then we are without jurisdiction to

hear the appeal. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94

(1998).




                                           4
              Case: 15-15260      Date Filed: 08/03/2017    Page: 5 of 15


      Wal-Mart’s argument is that the present appeal is untimely because it was

filed more than 30 days after the stipulated dismissal, contra the deadline to file an

appeal specified in Federal Rule of Appellate Procedure 4. The Appellants, for

their part, contend the stipulated dismissal filed on October 16 begins the

countdown only with respect to any appeal filed by a named plaintiff who settled

with Wal-Mart via the stipulated dismissal: “Had one of the individual plaintiffs

who was party to the stipulation of dismissal wished to appeal denial of class

certification despite the resolution of her individual claims, … the time to appeal

would have run from the entry of the stipulation.” According to the Appellants,

the clock for their appeal did not begin to run until the district court entered its

order of October 23.

      The question presented is whether a stipulated dismissal begins the 30-day

countdown of Rule 4. Answering it requires us to analyze the interaction between

Rule 4 and FRCP 41.

      With certain exceptions inapplicable here, Rule 4 provides: “In a civil case

… the notice of appeal … must be filed with the district clerk within 30 days after

entry of the judgment or order appealed from.” Because this time limit is

“mandatory and jurisdictional,” Bowles v. Russell, 551 U.S. 205, 209 (2007), we

must decide which “judgment or order” began the countdown for the Appellants’

appeal. The “judgment or order appealed from” under Rule 4 must be one that is
                                            5
              Case: 15-15260      Date Filed: 08/03/2017    Page: 6 of 15


“final” because ordinarily an appellate court has jurisdiction to hear appeals only

from a “final decision[] of the district court[].” Firestone Tire & Rubber Co. v.

Risjord, 449 U.S. 368, 373-74 (1981) (quoting 28 U.S.C. § 1291). Finality, in turn,

depends upon the interpretation of FRCP 41, which governs the dismissal of civil

cases and provides for two relevant types of “Voluntary Dismissal”: (1) “By the

Plaintiff” per 41(a)(1)(A), “without a court order by filing … a stipulation of

dismissal signed by all parties who have appeared,” 41(a)(1)(A)(ii), and (2) per

41(a)(2) “By Court Order.”

      The Appellants’ position that there are different “final” decisions for the

parties and for the would-be intervenors is untenable. Generally, there cannot be

two final orders in a single case because a final order “ends the litigation on the

merits and leaves nothing for the court to do but execute the judgment.” Risjord,

449 U.S. at 373 (1981) (citation omitted). Here, the stipulated dismissal resolved

all of the claims of all the parties to the case at that time, which did not include the

would-be intervenors. Therefore, a later order purporting to dismiss the case

would be shooting a dead horse. Indeed the district court did not need to file the

October 23 order for the stipulated dismissal of October 16 to be effective and

hence final. Because FRCP 41(a)(1)(A)(ii) specifies the plaintiff can by stipulation

dismiss an action “without a court order,” the “plain language of Rule

41(a)(1)(A)(ii) requires that a stipulation filed pursuant to that subsection is self-

                                            6
                Case: 15-15260        Date Filed: 08/03/2017        Page: 7 of 15


executing and dismisses the case upon its becoming effective,” i.e., “upon filing

unless it explicitly conditions its effectiveness on a subsequent occurrence.”

Anago Franchising, Inc. v. Shaz, LLC, 677 F.3d 1272, 1278 (11th Cir. 2012).1

There was no condition subsequent in this stipulation. Therefore, the stipulated

dismissal is, pursuant to FRAP 4, “the judgment or order appealed from” with

regard to the dismissal of the class claims. Accord State Nat’l Ins., 824 F.3d at

406-07 & n.18 (holding an appeal is timely only if filed within 30 days of the filing

of a stipulated dismissal).

       The Appellants’ attempt to distinguish Anago and State National on the

ground that “neither case involved a class action or considered the rights of absent

class members,” is unconvincing because FRAP 4 does not include an exception

for class actions or absent class members. A plaintiff’s ability to dismiss her case

without a court order under FRCP 41(a)(1)(A) is not unlimited and, as relevant

here, is “[s]ubject to Rule[] 23(e),” which provides “[t]he claims, issues, or

defenses of a certified class may be settled, voluntarily dismissed, or compromised

only with the court’s approval.” That the Congress included in FRCP 41(a)(1)(A)

an exception for a certified class makes the absence of an exception for an

uncertified class all the more telling.
1
  The Appellants suggest FRCP 58 requires that the final order be a separate document from the
stipulated dismissal but that is simply inconsistent with the self-executing nature of a stipulated
dismissal. See State Nat’l Ins. Co. v. Cty. of Camden, 824 F.3d 399, 406-07 (3d Cir. 2016).


                                                 7
              Case: 15-15260     Date Filed: 08/03/2017    Page: 8 of 15


      Contrary to the Appellants’ contention, neither United Airlines, Inc. v.

McDonald, 97 S. Ct. 2464 (1977) nor Smith v. Bayer Corp., 131 S. Ct. 2368

(2011), is informative about the interaction of a FRCP 41(a)(1) dismissal and the

30-day deadline of FRAP 4. The McDonald Court held intervention by putative

class members after final judgment was timely for purposes of Rule 24

(Intervention), not Rule 4. Because the appeal from the denial of the motion to

intervene was filed in that case within 30 days of the final order, the Court did not

consider whether the absent class members could have appealed after 30 days had

passed. McDonald, 97 S. Ct. at 2467. The Appellants rely upon Smith for the

broad proposition that “absent class members of an uncertified class are not bound

by actions of the named plaintiffs,” but the Smith Court, in deciding the preclusive

effect of prior litigation under the Anti-Injunction Act, 28 U.S.C. § 2283, actually

held rather narrowly that the plaintiff seeking class certification in a state court was

not bound by a federal court’s earlier denial of class certification to another

plaintiff pursuing a similar class. Bayer Corp., 131 S. Ct. at 2379. Even the

Court’s broadest observation that a “court’s judgment binds only the parties to a

suit” tells us nothing about whether a stipulated dismissal starts the 30-day clock in

FRAP 4. Id.

      Put simply, here the Appellants filed their appeal of the order dismissing the

class claims 34 days after the date of “the judgment or order appealed from.”

                                           8
                  Case: 15-15260     Date Filed: 08/03/2017      Page: 9 of 15


Because the timeliness of an appeal is a jurisdictional prerequisite to our review,

we must dismiss the appeal of the order dismissing the class claims for lack of

jurisdiction. 2

       In contrast, the notice of appeal of the November 19 order denying their

motion to intervene was timely; indeed, the Appellants filed that appeal later the

same day the order was issued. Nonetheless, because the Appellants sought to

intervene only in order to appeal the order of the district court “dismissing

Plaintiffs’ class claims,” their appeal of the order denying intervention must be

denied as moot. Florida Ass’n of Rehab. Facilities, Inc. v. State of Fla. Dep’t of

Health & Rehab. Servs., 225 F.3d 1208, 1217 (11th Cir. 2000) (“When events

subsequent to the commencement of a lawsuit create a situation in which the court

can no longer give the plaintiff meaningful relief, the case is moot and must be

dismissed”).




2
  Because we conclude the would-be class members did not file their appeal in a timely manner,
we do not address the question whether a stipulated dismissal strips the district court of
jurisdiction to hear a motion to intervene. The only courts to have addressed that question have
held the district court may grant post-dismissal motions to intervene by would-be class members.
See In re Brewer, No. 15-8009, 2017 WL 3091563 (D.C. Cir. July 21, 2017) (holding
intervention after stipulated dismissal is permissible and no different from intervention allowed
after the court-ordered dismissal in McDonald); Odle v. Wal-Mart Stores, Inc., No.16-10347,
2017 WL 1163339 (5th Cir. Mar. 27, 2017) (same).



                                                9
              Case: 15-15260   Date Filed: 08/03/2017   Page: 10 of 15


III. Conclusion

      For the reasons set forth above, the appeal of the order dismissing the class

claims and the appeal of the order denying intervention are DISMISSED for lack

of jurisdiction.




                                         10
                Case: 15-15260         Date Filed: 08/03/2017         Page: 11 of 15


ANDERSON, Circuit Judge, concurring specially:

        I concur in the decision in this case on the understanding that putative class

members who move to intervene and file a notice of appeal within the thirty-day

time to appeal from the final judgment effected by a Federal Rule of Civil

Procedure 41(a)(1)(A)(ii) joint stipulation are not foreclosed from exercising their

conditional right to intervene after final judgment for the purpose of appealing the

district court’s previous denial of class certification, as contemplated by the

Supreme Court in United Airlines, Inc. v. McDonald, 432 U.S. 385, 97 S. Ct. 2464

(1977).1 This understanding relies upon my agreement with the holding and

rationale of In re: Brewer, No. 15-8009, — F.3d —, 2017 WL 3091563 (D.C. Cir.

July 21, 2017) (Ginsburg, J.). Although Brewer held that a Rule 41(a)(1)(A)(ii)

“stipulated dismissal is effective automatically upon filing and requires no further

action on behalf of a district court in order to constitute a final judgment,” id. at *4,


1
         Under McDonald, putative class members may rely on the putative named plaintiffs to
represent their interests and then intervene after final judgment to appeal the denial of class
certification so long as they do so “as soon as it bec[omes] clear” that their interests are no longer
being adequately protected by the putative named plaintiffs. Id. at 394, 97 S. Ct. at 2470. This
conditional right is founded in concerns of fairness and judicial economy: it (1) protects the
reasonable expectations of absent class members, see id. at 394, 97 S. Ct. at 2469; (2) does not
significantly prejudice a defendant that was already actively defending against the absent class
members’ claims, see id. at 392–94, 97 S. Ct. at 2469–70; and (3) avoids unnecessary and
duplicative litigation by obviating the need for interested parties to intervene shortly after the
initial denial of class certification in order to preserve their rights, see id. at 394 n.15, 97 S. Ct. at
2470 n.15.




                                                   11
              Case: 15-15260      Date Filed: 08/03/2017     Page: 12 of 15


it also held that the district court did have jurisdiction to hear and approve a motion

to intervene by a previously absent putative class member to appeal the denial of

class certification even though the named plaintiff and defendant had stipulated to

dismissal. Id. at *4–5.

       Brewer reasoned that a joint stipulation of dismissal reveals the mootness of

the case as between the parties to the stipulation, leaving the district court without

jurisdiction over other issues as between those parties. Id. at *4. According to the

Brewer panel, the lack of jurisdiction on the part of the district court following

such a joint dismissal is attributable to mootness, and not to any special feature of

Rule 41(a)(1)(A)(ii). Id. However, Brewer held that the mootness and lack of

jurisdiction as to the parties to the stipulation did not affect the district court’s

continuing jurisdiction to entertain a motion to intervene by putative class

members to appeal the district court’s denial of class certification. Id. at *5.

       My understanding also is a recognition that our decision in Anago

Franchising, Inc. v. Shaz, LLC, 677 F.3d 1272 (11th Cir. 2012), is distinguishable

because it lacked the class action context present in this case, in the Brewer case,

and in the McDonald case. The issue in Anago was whether parties could ensure

that a district court had continuing jurisdiction to enforce their settlement

agreement after a Rule 41(a)(1)(A)(ii) dismissal by stating that the court would




                                            12
                Case: 15-15260        Date Filed: 08/03/2017         Page: 13 of 15


have such jurisdiction. Id. at 1280. 2 Anago did not occur in the class action

context, nor did it concern a motion to intervene for the purpose of appealing an

adverse class certification decision as contemplated in McDonald.

       To be sure, Anago contains broad dicta suggesting that a Rule

41(a)(1)(A)(ii) stipulated dismissal always extinguishes district court jurisdiction.

See id. at 1278 (“District courts need not and may not take action after the

stipulation becomes effective because the stipulation dismisses the case and divests

the district court of jurisdiction.”). But this language must be read in the context of

the named parties’ attempt to create “otherwise nonexistent federal jurisdiction,

rely[ing] upon a relationship so tenuous as the breach of an agreement that

produced the dismissal of an earlier federal suit.” Kokkonen v. Guardian Life Ins.

Co., 511 U.S. 375, 379, 114 S. Ct. 1673, 1676 (1994). Indeed, we know that

Anago’s dicta cannot be taken literally. Rule 41(a)(1) dismissals do not strip

district courts of the power to impose sanctions. Cooter & Gell v. Hartmarx Corp.,

496 U.S. 384, 398, 110 S. Ct. 2447, 2457 (1990). Nor do they foreclose a court’s

consideration of cost and attorney fee awards. See id. at 395–96, 110 S. Ct. at

2455–56. We have also held that a Rule 41(a)(1) dismissal does not bar a district


2
        Anago’s holding is narrow: we recognized that jurisdiction could be retained if parties
“requested” the district court to retain jurisdiction in their stipulated dismissal and the district
court entered an order retaining jurisdiction subsequent to their stipulated dismissal. See id. at
1280 (citing Am. Disability Ass’n, Inc. v. Chmielarz, 289 F.3d 1315, 1318 (11th Cir. 2002)).


                                                  13
               Case: 15-15260        Date Filed: 08/03/2017        Page: 14 of 15


court from confirming an arbitral award. PTA-FLA, Inc. v. ZTE USA, Inc., 844

F.3d 1299, 1309 (11th Cir. 2016). 3 And it is broadly accepted that courts retain

jurisdiction to consider motions to reopen the judgment under Rule 60(b) after a

Rule 41(a)(1) dismissal. See, e.g., Yesh Music v. Lakewood Church, 727 F.3d

356, 363 (5th Cir. 2013). Accordingly, I do not think Anago should be interpreted

to strip district courts of jurisdiction to consider post-dismissal motions by putative

class members to intervene in order to appeal the denial of class certification as

contemplated by McDonald. Indeed, such an interpretation of Anago would be

incompatible with the Supreme Court’s decision in McDonald.4

       Assuming, as I do, that Anago is distinguishable as above described, and

thus limited such that it is not inconsistent with Brewer, the tension between the

Anago dicta and McDonald is resolved. I can thus concur in today’s decision, and

3
        Cooter & Gell and PTA-FLA both concerned a plaintiff’s unilateral notice of dismissal
under Rule 41(a)(1)(A)(i). See Cooter & Gell, 496 U.S. at 393–94, 110 S. Ct. at 2454–55; PTA-
FLA, 844 F.3d at 1308. But they are not distinguishable on that ground. See Anago, 677 F.3d at
1278 (stating that “[t]he distinctions Rule 41(a)(1) draws between stipulations and notices are
based on the stage of litigation during which they may be filed” and “find[ing] no reason” to
treat the two differently for jurisdictional purposes).
4
         In addition, such a result would be a matter of significant concern because of the obvious
risk of collusion. See Brewer, 2017 WL 3091563, at *5 (discussing this risk). The defendant in
class action cases has an obvious and strong incentive to insist on a joint stipulation of dismissal
that fails to protect the rights of putative class members, thus accomplishing not only a
settlement with the named plaintiff, but also — if the conditional rights of putative class
members under McDonald were eviscerated — effectively ending the often more dangerous
class action. Similarly, the settling named plaintiff may have no incentive to protect the rights of
putative class members. Indeed, elimination of the class action can serve as leverage for the
named plaintiff to exact a more favorable settlement for its own benefit.



                                                 14
             Case: 15-15260     Date Filed: 08/03/2017    Page: 15 of 15


its holding that the thirty-day time limit for filing Appellants’ notice of appeal

began to run immediately upon the filing of the joint stipulation pursuant to Rule

41(a)(1)(A)(ii).




                                          15
