                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-22-2008

Gutierrez v. Johnson Johnson
Precedential or Non-Precedential: Precedential

Docket No. 07-8025




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                                          PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT


                     No. 07-8025


            NILDA GUTIERREZ, ET AL.

                                 Petitioners

                            v.

              JOHNSON & JOHNSON,

                             Respondent


    On Appeal from the United States District Court
             for the District of New Jersey
             (D.C. Civil No. 01-cv-05302)
     District Judge: Honorable William H. Walls


              Argued on March 13, 2008

Before: FUENTES, CHAGARES, and VAN ANTWERPEN,
                   Circuit Judges.

                (Filed: April 22, 2008 )
Cyrus Mehri, Esq.
Pamela Coukos, Esq. (Argued)
Woodley Osborne, Esq.
Nicole M. Austin-Hillery, Esq.
Mehri & Skalet, PLLC
1250 Connecticut Ave., NW
Suite 300
Washington, D.C. 20008

Scott Alan George, Esq.
Seeger Weiss, LLP
1515 Market Street, Suite 1380
Philadelphia, PA 19102

Bennet D. Zurofsky, Esq.
Reitman Parsonnet, PC
744 Broad St.
Suite 1807
Newark, NJ 07102

Barry Goldstein, Esq.
Goldstein, Demchak, Baller, Borgen & Dardarian
300 Lakeside Dr.
Suite 300
Oakland, CA 94612

      Counsel for Petitioners

Theodore V. Wells, Jr., Esq.
Jeh Charles Johnson, Esq. (Argued)
Maria Keane, Esq.
Paul, Weiss, Rifkind, Wharton & Garrison, LLP
1285 Avenue of the Americas


                                1
New York, NY 10019

Donald R. Livingston, Esq.
Akin Gump Strauss Hauer & Feld, LLP
Robert S. Strauss Building
1333 New Hampshire Ave., NW
Washington, D.C. 20036

Francis X. Dee, Esq.
McElroy Deutsch Mulvaney & Carpenter, LLP
Three Gateway Center
100 Mulberry Street
Newark, NJ 07102

R. Lawrence Ashe, Esq.
Nancy Rafuse, Esq.
Ashe Rafuse & Hill, LLP
1355 Peachtree St.
Suite 500
Atlanta, GA 30309

      Counsel for Respondent

Kelly M. Dermody, Esq.
Allison Elgart, Esq.
Daniel M. Hutchinson, Esq.
Jahan C. Sagafi, Esq.
Lieff, Cabraser, Heimann & Bernstein, LLP
275 Battery St.
30th Floor
San Francisco, CA 94111

Rachel J. Geman, Esq.
Lieff, Cabraser, Heimann & Bernstein, LLP
780 Third Ave.


                            2
48th Floor
New York, NY 10017

       Counsel for Amici Curiae




                 OPINION OF THE COURT


VAN ANTWERPEN, Circuit Judge.

        Petitioners are former employees of Johnson &
Johnson. They allege that Johnson & Johnson discriminated
against them on the basis of their race. Petitioners attempted
to certify a class of plaintiffs that encompassed any African-
American or Hispanic employee of Johnson & Johnson or any
of its United States subsidiaries who was employed at any
time during an approximately ten-year period. The putative
class consisted of approximately 8,600 employees. On
December 20, 2006, the District Court declined to certify the
proposed class. On April 24, 2007, Petitioners petitioned this
Court for permission to file an appeal of the District Court’s
denial of certification. We will dismiss the petition because it
was untimely.

                               I.

       Petitioners are African-American and Hispanic former
employees of Johnson & Johnson. They allege that Johnson
& Johnson’s subjective compensation and promotion
practices resulted in discrimination against them and other
African-American and Hispanic employees of Johnson &
Johnson and its subsidiaries. They filed suit against Johnson
& Johnson on behalf of themselves and other similarly-


                               3
situated employees, alleging disparate impact and disparate
treatment in violation of 42 U.S.C. § 1981, Title VII of the
Civil Rights Act of 1964, and the laws of the state of New
Jersey. On August 16, 2004, following extensive discovery,
Petitioners filed a motion for class certification pursuant to
Rule 23 of the Federal Rules of Civil Procedure. The putative
class identified by Petitioners was “All persons of African
American and /or Hispanic descent employed by defendant
Johnson & Johnson in any permanent salaried exempt or
nonexempt position in the United States at any time from
November 15, 1997 to the present.” See App. at 29. The
proposed class encompassed approximately 8,600 current or
former employees of Johnson & Johnson and all of its United
States subsidiaries, regardless of position or length of
employment. Following further discovery, the District Court
held a full day of oral argument on the issue of class
certification. On December 20, 2006, the District Court
issued an order (“December 20 Order”) denying the motion
for class certification. According to the District Court,
Petitioners failed to identify any Johnson & Johnson policy at
the subsidiary or business unit level that resulted in
discrimination; thus, according to the District Court,
Petitioners’ proof fell short of establishing commonality and
typicality, such that class certification would have been
inappropriate. See Gutierrez v. Johnson & Johnson, 467 F.
Supp. 2d 403, 411 (D.N.J. 2006).1


       1
        The District Court also noted that the size and diversity
of the putative class actually cut against certification:
“Furthermore, it is worth noting that the very diversity of the
putative class also undermines Plaintiffs’ allegation of
commonality. The proposed class, which encompasses clerical
employees, physicians, lawyers, computer scientists ... and
computer specialists at thirty-five different companies, is
unprecedented in scope and diversity.” Gutierrez, 467 F. Supp.

                               4
        On December 22, 2006, Petitioners filed a letter with
the District Court explaining that they and Johnson & Johnson
had reached an agreement for an extension of time to file a
motion requesting that the District Court reconsider its denial
of class certification. In this letter, the Petitioners stated that
“Plaintiffs understand that this extension is sought and may be
granted without prejudice to Plaintiffs’ right to seek leave of
court to appeal the Order [denying certification].” 2 App. at
149. This was the only submission to the District Court filed
within ten days of the denial of class certification. The
District Court granted the extension in a December 29, 2006
letter, ordering submission of the motion by January 19, 2007.
On that day, Petitioners filed their Motion to Reconsider.3 On
April 10, 2007, the District Court denied Petitioners’ Motion
to Reconsider (“April 10 Order”).

        On April 24, 2007, Petitioners filed a petition with this
Court, seeking permission to file an interlocutory appeal of
the denial of class certification pursuant to Federal Rule of
Civil Procedure 23(f). This petition was filed within ten Rule
days of the denial of Petitioners’ Motion to Reconsider, but
125 days after the entry of the order denying class
certification. The petition was referred to a Motions Panel.



2d at 412.
       2
        An original draft of the letter stated that the parties
“agreed” that the extension did not prejudice their right to an
appeal, but Johnson & Johnson rejected that language in favor
of the language in the letter that was filed with the District
Court.
       3
        Motions to reconsider in the United States District Court
for the District of New Jersey are governed by District of New
Jersey Local Civil Rule 7.1.

                                5
On April 25, 2007, our Clerk’s office wrote to the parties and
requested that they address the question of whether the
petition for permission to appeal was timely, given the ten-day
time limit in Rule 23(f). After additional briefing on the issue
of whether Petitioners’ Rule 23(f) petition was timely, the
Motions Panel issued a September 11, 2007 Order referring
the petition to a Merits Panel. The Motions Panel did not
decide the issue of whether to grant the Rule 23(f) petition.
The Motions Panel’s Order read: “The foregoing motion for
leave to appeal and the Clerk’s submission are referred to a
merits panel. The Clerk shall issue a briefing schedule. The
parties are directed to address whether the application under
Rule 23(f) should be granted and this Court’s authority to
grant the application.” App. at 39. The parties timely filed
their submissions on these issues, and the question now before
this Court is whether to grant Petitioners permission to file an
interlocutory appeal of the District Court’s December 20,
2006 denial of class certification.

                              II.

       The District Court had jurisdiction over Petitioners’
claims of employment discrimination under Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., as well
as 42 U.S.C. § 1981 and 28 U.S.C. § 1331. Plaintiffs filed a
petition for permission to appeal pursuant to Fed. R. Civ. P.
23(f). This Court has the discretion to grant the petition for
interlocutory review under Rule 23(f) and 28 U.S.C. § 1292.

       In determining whether to grant the petition, this Court
has substantial discretion and may base its decision to grant
permission to appeal “on any consideration that [it] finds
persuasive.” See Fed. R. Civ. P. 23(f) advisory committee’s
note. To guide the exercise of its discretion, this Court
employs the factors set forth in Newton v. Merrill Lynch,


                               6
Pierce, Fenner & Smith, Inc., 259 F.3d 154 (3d Cir. 2001).

                              III.

        Rule 23 of the Federal Rules of Civil Procedure sets
forth the rules and procedures governing class actions. See
Fed. R. Civ. P. 23. Rule 23(f), which governs the method by
which a party can appeal from the grant or denial of class
certification, directs 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 ten days after the
order is entered.” Fed. R. Civ. P. 23(f). A Rule 23(f) appeal
is a specific type of interlocutory appeal, and the courts of
appeals have very broad discretion in deciding whether to
grant permission to pursue a Rule 23(f) appeal. See Fed. R.
Civ. P. 23(f) advisory committee’s note. According to the
Advisory Committee’s Note, which was appended to Rule 23
following the 1998 adoption of Rule 23(f), “[t]he court of
appeals is given unfettered discretion whether to permit the
appeal, akin to the discretion exercised by the Supreme Court
in acting on a petition for certiorari.” Id. As the Note further
states, “[p]ermission to appeal may be granted or denied on
the basis of any consideration that the court of appeals finds
persuasive.” Id. Because the Motions Panel neither granted
nor denied Petitioners’ request for permission to appeal
pursuant to Rule 23(f) when it referred the matter to a Merits
Panel, we would normally have to determine whether to grant
Petitioners permission to appeal the District Court’s denial of
class certification.

                               A.

       Before we can determine whether to grant Petitioners’
request for permission to appeal the denial of class


                               7
certification, however, we must first determine whether
Petitioners’ Rule 23(f) petition is timely. Rule 23(f) requires
that a petition requesting permission to appeal an order
granting or denying class certification be filed within ten days
after the entry of the order. This ten-day time limit, as other
courts have noted, is strict and mandatory. See, e.g., Jenkins
v. BellSouth Corp., 491 F.3d 1288, 1290 (11th Cir. 2007)
(noting “that the ten-day deadline provides a single window
of opportunity to seek interlocutory review, and that window
closes quickly to promote judicial economy”); Carpenter v.
Boeing Co., 456 F.3d 1183, 1190 n.1 (10th Cir. 2006) (noting
that the timeliness requirement is “mandatory”); Coco v.
Incorporated Village of Belle Terre, New York, 448 F.3d 490,
491-92 (2d Cir. 2006) (per curiam) (noting that Rule 23(f) is
“inflexible”); see also Gary v. Sheahan, 188 F.3d 891, 892-93
(7th Cir. 1999). As the Seventh Circuit has noted, in order
“[t]o ensure that there is only one window of potential
disruption, and to permit the parties to proceed in confidence
about the scope and stakes of the case thereafter, [Rule
23(f)’s] window of review is deliberately small.” Gary, 188
F.3d at 893; see also Blair v. Equifax Check Services, Inc.,
181 F.3d 832, 833-35 (7th Cir. 1999) (discussing the
reasoning behind the adoption of Rule 23(f) and noting that
“Rule 23(f) is drafted to avoid delay” in the district court’s
proceedings).

       Although the ten-day time limit is clearly strict and
mandatory, the circuit courts have carved out a narrow
exception to the rigid ten-day time limit. The circuit courts
agree that a timely-filed motion to reconsider the grant or
denial of class certification tolls the ten-day time limit within
which to file a petition for permission to appeal under Rule
23(f). See Carpenter, 456 F.3d at 1191-92; McNamara v.
Felderhof, 410 F.3d 277, 281 (5th Cir. 2005); Shin v. Cobb
County Bd. of Educ., 248 F.3d 1061, 1064-65 (11th Cir. 2001)


                                8
(per curiam); Gary, 188 F.3d at 892; see also United States v.
Dieter, 429 U.S. 6, 8 & n.3 (1976) (noting that a timely-filed
motion for rehearing in another context renders the original
judgment non-final and thus tolls the time period for appeal
provided the motion is filed within the time to file a notice of
appeal).

        We join the other circuits in holding that the ten-day
period within which to file a Rule 23(f) petition is tolled by
the filing of a timely and proper motion to reconsider the
grant or denial of class certification.4 Thus, the ten-day time
period in Rule 23(f) does not begin to run until the district
court rules on the motion to reconsider. We stress that, for the
purpose of tolling the time within which to file a Rule 23(f)
petition, a “timely” motion to reconsider is one that is filed
within the ten-day period set forth in Rule 23(f). See Shin,
248 F.3d at 1064-65 n.1 (“By ‘timely filed,’ we mean when a
motion for reconsideration, instead of a Rule 23(f) petition for
permission to appeal, is filed within ten days after the
certification order.”). Accordingly, and regardless of any
conflicting local rules, a motion to reconsider a class
certification decision that is filed more than ten days after the
order granting or denying class certification is “untimely”


       4
         While the circuit courts that have addressed the issue of
the Rule 23(f) time period have used the term “tolled” to
describe the impact of a timely-filed motion to reconsider, using
the term “postpones” or “resets” may be a more accurate way of
describing the effect of a motion to reconsider. Regardless of
when during the ten-day Rule 23(f) period the motion to
reconsider is filed, the ten-day period begins anew when the
district court rules on the motion to reconsider. Thus, the
running of the ten-day period is “postponed” until the district
court rules on the motion. Nonetheless, for consistency we will
use the same terminology as our sister circuits.

                                9
with respect to Rule 23(f)5 and will not toll the period for
filing a Rule 23(f) petition. See, e.g., Carpenter, 456 F.3d at
1191; McNamara, 410 F.3d at 281; Gary, 188 F.3d at 892-93.
We also stress that the ten-day period for filing either a Rule
23(f) petition or a motion to reconsider runs from the order
granting or denying class certification. See Fed. R. Civ. P.
23(f). A later order that does not change the status quo will
not revive the ten-day time limit. See Jenkins, 491 F.3d at
1291-92 (“[W]hat counts is the original order denying or
granting class certification, not a later order that maintains the
status quo.”); Carpenter, 456 F.3d at 1191-92 (“An order that
leaves class-action status unchanged from what was
determined by a prior order is not an order ‘granting or
denying class action certification.’”); McNamara, 410 F.3d at


       5
        This is not to suggest that a district court’s local rule that
sets forth a longer period within which to file a motion to
reconsider is always invalid. District courts are entitled to set
and control their own dockets, and nothing in this opinion
should be construed as a limitation on this power. A district
court is free to extend the time to file a motion before it or to
promulgate a local rule that grants more than ten days to file a
motion to reconsider. A district court may not, however, enlarge
the time to file a Rule 23(f) petition. See, e.g., Delta Airlines v.
Butler, 383 F.3d 1143, 1145 (10th Cir. 2004) (per curiam); see
also Fed. R. App. P. 26(b)(1) (noting that the court “may not
extend the time to file: a notice of appeal (except as authorized
in Rule 4) or a petition for permission to appeal”). We reiterate
that the Rule 23(f) time period is strict and mandatory, and we
emphasize the narrow nature of the exception for timely-filed
motions to reconsider. As such, a motion to reconsider that is
filed more than ten days after an order granting or denying class
certification will not toll the time to file a 23(f) petition, even if
the motion is “timely” as defined by the district court’s rules or
its scheduling order.

                                 10
281 (“As the district court ... merely reaffirmed its prior
ruling, the court’s order was not ‘an order ... granting or
denying class action certification’ under Rule 23(f).”).

                               B.

        Petitioners filed their motion to certify the proposed
class on August 16, 2004. The District Court denied the
motion on December 20, 2006. Petitioners filed their Motion
to Reconsider on January 19, 2007, pursuant to the District
Court’s scheduling order. They filed neither a Rule 23(f)
petition nor a motion to reconsider the denial of certification
within ten days of the December 20 Order. Accordingly,
because the ten-day Rule 23(f) period passed without either a
Rule 23(f) petition or a proper motion to reconsider being
filed, Petitioners’ April 24, 2007 Rule 23(f) petition, which is
now before us, is not timely.

        Petitioners argue that because they filed their Rule
23(f) petition within ten days of the District Court’s April 10,
2007 denial of their Motion to Reconsider, that petition is
timely. This argument is unavailing because the April 10
Order did not change the status quo. See Jenkins, 491 F.3d at
1291. The denial of the Motion to Reconsider merely
affirmed the District Court’s decision not to certify the class.
Accordingly, the denial of the Motion to Reconsider does not
qualify as an order “granting or denying class action
certification” within the meaning of Rule 23(f). See Jenkins,
491 F.3d at 1291-92; Carpenter, 456 F.3d at 1191-92;
McNamara, 410 F.3d at 281. The December 20 Order, not the
April 10 Order, was the decision that started the running of
Rule 23(f)’s ten-day period. Thus, in order for their Rule
23(f) petition to have been timely, Petitioners should have
filed their petition within ten days of that decision. Because
Petitioners did not file their petition until long after the Rule


                               11
23(f) period expired, the petition now before us is untimely.

        Petitioners also argue that, even though their Rule
23(f) petition was not filed within ten days of the December
20 Order, their January 19, 2007 Motion to Reconsider tolled
the ten-day period until the District Court’s April 10, 2007
ruling on the motion. Petitioners contend that their Motion to
Reconsider was “timely” because it was filed within the time
period agreed to by the parties and approved by the District
Court. As a “timely” motion to reconsider, Petitioners
suggest, the motion would thus toll the Rule 23(f) period. As
noted supra, however, the fact that the motion was timely for
the purposes of the District Court’s schedule does not
necessarily make it timely for an appeal to this Court. A
“timely” motion to reconsider in the Rule 23(f) context is, as
we have noted, one that is filed within ten days of the grant or
denial of class certification. It is the ten-day period in Rule
23(f), and not any other schedule or time period, that dictates
whether a motion to reconsider will toll Rule 23(f)’s strict
time period and make a later-filed Rule 23(f) petition timely
for the purposes of this Court’s review. Petitioners’ Motion
to Reconsider was not filed within ten days of the December
20 Order, and therefore the ten-day time limit in Rule 23(f)
was not tolled. The fact that the District Court extended the
time for Petitioners to file their Motion to Reconsider beyond
the time limit within which to file a timely Rule 23(f) petition
does not change our determination that Petitioners’ petition
was untimely.6


       6
        As we have explained, while the District Court has the
power to control its docket and was well within its authority to
extend the time for Petitioners to file their Motion to
Reconsider, it did not have the authority to extend the time to
file a Rule 23(f) petition. See supra note 5. Although the
Motion to Reconsider may have been “timely” filed in the

                               12
        Alternatively, Petitioners suggest that even if their
Motion to Reconsider was not timely for the purpose of
tolling Rule 23(f), their December 22, 2006 letter requesting
more time to file a motion to reconsider could be considered a
sufficient motion for the purpose of tolling the Rule 23(f)
period. We disagree. It is true that courts do not require a
formal motion or pleading in order to consider a filing to be
such a motion. See, e.g., McNamara, 410 F.3d at 280 (noting
that trial management plan could be considered a motion to
reconsider where the plan included a specific request to
modify its ruling with respect to class certification).
Furthermore, as this Court has noted in another context, it is
the relief desired, not the title of the motion, that dictates how
this Court should view a particular filing. See, e.g., United
States v. Contents of Account Numbers 3034504504 and 144-
07143 at Merrill, Lynch, Pierce, Fenner, and Smith, Inc., 971
F.2d 974, 987 (3d Cir.1992). Despite this general rule, we
will not construe the letter filed with the District Court on
December 22, 2006, to be a motion to reconsider. Petitioners’
letter does not in any way provide the District Court with the
reasons or errors upon which Petitioners were basing their
claim for relief. Additionally, it does not comply with the
District of New Jersey Local Civil Rule that governs motions
to reconsider, as it was not accompanied by a brief “setting
forth concisely the matter or controlling decisions which the
party believes the Judge or Magistrate Judge has overlooked.”
See N.J. L.Civ.R. 7.1. At best, the letter is, as Petitioners’
characterized it, a “notice of their intent to seek
reconsideration.” See Appellant’s Br. at 46, 48; App. at 16.
The letter was a petition for additional time to file a court


District Court based on its extension of time, it was not “timely”
filed for the purpose of tolling Rule 23(f), despite the District
Court’s extension of time, because it was not filed within ten
days of the December 20 Order.

                               13
document, not a filing itself. While the Petitioners’ letter may
have preserved the time to file a motion to reconsider with the
District Court, it was not a proper motion to reconsider. Thus,
the letter cannot, by itself, toll the ten-day period for filing a
Rule 23(f) petition even though it was filed with the District
Court within ten days of the December 20 Order.7

       For all of the foregoing reasons, we hold that
Petitioners’ Rule 23(f) petition was untimely.

                               C.

        During her oral argument to this Court, Counsel for the
Petitioners suggested that Johnson & Johnson waived its
ability to challenge the timeliness of the Rule 23(f) petition
because Johnson & Johnson did not raise that argument
before the District Court. As with the argument that the
petition was timely, this argument also suffers from multiple
infirmities. Initially, we note that Johnson & Johnson could
not have challenged the timeliness of the Rule 23(f) petition
in the District Court, as the petition was not before that court.
The Rule 23(f) petition was filed with and addressed issues
before this Court. Unlike interlocutory appeals filed pursuant
to 28 U.S.C. §1292(b) and Federal Rule of Appellate
Procedure 5, no certification by the District Court was
required.


       7
        Additionally, it is worth noting that none of the circuits
that have permitted the filing of a timely motion to reconsider
the denial of class certification to toll the time to file a Rule
23(f) petition has permitted the mere notice of an intention to
file such a motion sufficient to toll the time period. Such a
holding would be inconsistent with the generally rigid, strict
approach courts have taken when construing the Rule 23(f) time
limit.

                               14
        We raised the issue of timeliness sua sponte. Because
the petition was filed with and addressed to this Court, as
opposed to the District Court, the proper challenge to the
timeliness of the petition would have been with this Court.
Thus, Johnson & Johnson did not prejudice its ability to now
challenge the timeliness of the petition by failing to first raise
that argument in the District Court.

        Additionally, Johnson & Johnson did not, as
Petitioners argue, waive its challenge to the timeliness of the
Rule 23(f) petition by failing to object to the District Court’s
approval of the extension of time requested by Petitioners.
Petitioners suggest that by agreeing to an extension of time to
file the Motion to Reconsider, Johnson & Johnson effectively
agreed to an extension of time to file the Rule 23(f) petition
and forfeited the ability to challenge the filing of that petition.
The language of the letter belies this contention, however.
The original draft of the letter to the District Court stated that
the parties, Petitioners and Johnson & Johnson, “agreed” that
the extension of time to file a motion to reconsider would not
prejudice Petitioners’ ability to appeal the denial of class
certification. See App. at 146. Johnson & Johnson objected
to this language, and the letter that was ultimately submitted
read “Plaintiffs understand that this extension is sought and
may be granted without prejudice to Plaintiffs’ right to seek
leave of court to appeal the Order [denying certification].”
App. at 149 (emphasis added). The fact that Johnson &
Johnson would not state that it agreed that the extension of
time to file a motion to reconsider would not prejudice the
Petitioners’ Rule 23(f) petition suggests that Johnson &
Johnson did not waive or forfeit any objection to the
timeliness of the Rule 23(f) petition.

      Furthermore, because a motion to reconsider and the
Rule 23(f) petition are distinct motions, the failure to object to


                                15
the timeliness of one does not forfeit the failure to object to
the timeliness of the other. Finally, as this Court had not yet
adopted the rule that a timely and proper motion to reconsider
tolls the time to file a Rule 23(f) petition, it was not clear at
that time that whatever Johnson & Johnson agreed to with
regard to Petitioners’ Motion to Reconsider would necessarily
have any effect on Petitioners’ ability to file a Rule 23(f)
petition. Thus, requiring Johnson & Johnson to object in the
District Court to the filing of Petitioners’ Motion to
Reconsider in order to preserve an objection in this Court to
the timeliness of the Rule 23(f) petition would have required
prior knowledge of a rule we had not yet announced.

      For all of these reasons, we will not ignore the
untimeliness of Petitioners’ Rule 23(f) petition based on
Johnson & Johnson’s actions. 8 Although it may be possible in


       8
         On the issue of waiver, Petitioners direct our attention to
the Sixth Circuit’s statement in National Ecological Foundation
v. Alexander that “where a party forfeits an objection to the
untimeliness of a Rule 59(e) motion, that forfeiture makes the
motion ‘timely’ for the purpose of Rule 4(a)(4)(A)(iv).” See
National Ecological Foundation v. Alexander, 496 F.3d 466,
476 (6th Cir. 2007). Petitioners suggest that the same would
hold true in this case, where Johnson & Johnson did not object
in the District Court to the timeliness of either the Rule 23(f)
petition or the Motion to Reconsider. National Ecological is
distinguishable from the instant case, however, because a Rule
59(e) motion is made to the District Court, whereas a 23(f)
petition is made directly to this Court. Thus, although a
challenge to the timeliness of a Rule 59(e) motion would be
properly before the District Court, any challenge to the
timeliness of the Rule 23(f) petition could only have been made
to this Court. The fact that Johnson & Johnson did not raise an
objection to the filing of the Rule 23(f) petition before the

                                16
certain circumstances to waive an objection to an untimely-
filed Rule 23(f) petition, Johnson & Johnson was not required
to object in the District Court to Petitioners’ actions in order
to preserve an objection to the timeliness of the petition
before this Court. Accordingly, Johnson & Johnson did not
waive any challenge to the timeliness of Petitioners’ Rule
23(f) petition.

                                D.

       When it referred Petitioners’s Rule 23(f) petition to a
Merits Panel, the Motions Panel requested that the parties
submit briefs addressing the impact of the Supreme Court’s
decision in Bowles v. Russell, 551 U.S. ---, 127 S. Ct. 2360
(2007), and whether the doctrine of “unique circumstances”
would apply to toll the time for Petitioners to file their Rule
23(f) petition. In Bowles, the Supreme Court noted that “the
taking of an appeal within the prescribed time is ‘mandatory
and jurisdictional.’” Bowles, 551 U.S. at ---, 127 S. Ct. at


District Court does not, therefore, make that petition timely.
Furthermore, with regard to the argument that Johnson &
Johnson’s failure to object to the timeliness of the Motion to
Reconsider or the extension of time to file the Motion waives
any objection to the timeliness of the 23(f) petition, the court in
National Ecological noted that a “properly filed motion that is
considered by the district court” would likely toll the time to file
a notice of appeal under Federal Rule of Civil Procedure 4. See
id. Here, as we have noted, the letter was not a proper motion
to reconsider. As such, and given that the Rule 23(f) time
period is strict and mandatory, we decline to read National
Ecological as requiring a determination that Petitioners’ Rule
23(f) petition is timely because of Johnson & Johnson’s failure
to object to the filing of that petition or the Motion to
Reconsider.

                                17
2363 (quoting Griggs v. Provident Consumer Discount Co.,
459 U.S. 56, 61 (1982)). The Court distinguished between
time limits for taking an appeal that are set forth in a statute
and those that are derived from court-made, “claims-
processing” rules. See id. at ---, 127 S. Ct. at 2364-65; see
also Eberhart v. United States, 546 U.S. 12, 15-19 (2005) (per
curiam) (discussing jurisdictional time limits and the Supreme
Court’s holding in Kontrick v. Ryan, 540 U.S. 443 (2004)).
According to the Court, the failure to file a notice of appeal
within a statutorily-based time limit deprives the appeals court
of jurisdiction to hear the appeal. See Bowles, 551 U.S. at ---,
127 S. Ct. at 2364-65. Where a time limit is set forth in a
procedural, claims-processing rule, however, a court can
exercise its discretion and hear an untimely appeal. See id. at
---, 127 S. Ct. at 2365. Additionally, the Court noted, a party
that seeks the enforcement of a non-jurisdictional time limit
can be found to have waived its objection to an untimely
petition, whereas the jurisdictional time limits are not
waivable. See id. at ---, 127 S. Ct. at 2365.

        The import of this distinction between jurisdictional
and non-jurisdictional rules, according to the Supreme Court,
is that courts cannot create equitable exceptions to
jurisdictional time limits. See id. at ---, 127 S. Ct. at 2366. In
Bowles, the Supreme Court held that one such equitable
exception, the doctrine of “unique circumstances,” was not
applicable to cases where the time limit was jurisdictional.
See id. at ---, 127 S. Ct. at 2366. The doctrine of “unique
circumstances,” first explicated in Harris Truck Lines, Inc. v.
Cherry Meat Packers, Inc., prevents a party from being
penalized for relying on a district court’s assurance that the
party has additional time, beyond the time in a statute or Rule,
to file an appeal. See Harris Truck Lines, Inc. v. Cherry Meat
Packers, Inc., 371 U.S. 215, 216-217 (1962) (per curiam); see
also Schneider ex rel. Estate of Schneider v. Fried, 320 F.3d


                               18
396, 403 (3d Cir. 2003) (“The unique circumstances doctrine
was designed ... to prevent the appellant’s reliance on the
district court’s mistake from prejudicing the appellant.”);
Sonicraft, Inc. v. NLRB, 814 F.2d 385, 387 (7th Cir. 1987)
(noting that the doctrine is “limited to the situation where the
district court ... assures a party that he has time to appeal, and
the party relies and forgoes filing a timely appeal”). As both
the Supreme Court and this Court have noted, the doctrine is
to be very narrowly construed and rarely applied to expand
the time to file an appeal. See Bowles, 551 U.S. at ---, 127 S.
Ct. at 2366; Kraus v. Consolidated Rail Corp., 899 F.2d 1360,
1365 (3d Cir. 1990).

        In light of Bowles, we would be without jurisdiction to
hear Petitioners’ appeal if Rule 23(f) is jurisdictional because
Petitioners’ petition was filed more than ten days after the
December 20 Order. Bowles also suggests that if Rule 23(f)
is jurisdictional, the doctrine of unique circumstances would
be unavailable to save Petitioners’ untimely petition.
However, the time limit set forth in Rule 23(f) for filing a
petition for permission to appeal is closer in nature to the rule-
based, claims-processing time limits discussed in Eberhart
and Kontrick than it is to the statutorily-based, jurisdictional
time limit at issue in Bowles. Rule 23(f) is a rule promulgated
by the Supreme Court, and the ten-day time limit is not set
forth in a statute. Rule 23(f), like the rules discussed in
Eberhart and Kontrick, is thus a claims-processing,
procedural rule designed to ensure that the business of the
courts is done in an orderly fashion.9 See Bowles, 551 U.S. at


       9
        We recognize that some circuits have referred to their
lack of “jurisdiction” to hear an untimely Rule 23(f) petition.
See, e.g., McNamara, 410 F.3d at 279-81; Shin, 248 F.3d at
1064. These courts did not have the benefit of the Supreme
Court’s decisions in Kontrick, Eberhart, and Bowles, however.

                               19
---, 127 S. Ct. at 2365; Asher v. Baxter Int’l Inc., 505 F.3d
736, 741 (7th Cir. 2007) (“How much time litigants have to
take interlocutory appeals is a question for the rulemaking
process, which implies that the deadline is not
jurisdictional.”).

        Although the time limit in Rule 23(f) is claims-
processing rather than jurisdictional, it is clearly a strict and
inflexible time limit. See, e.g., Coco, 448 F.3d at 491-92. To
the extent that the doctrine of unique circumstances can still
be used to toll non-jurisdictional time periods after Bowles,10
the doctrine cannot save Petitioners’ untimely petition. In the
letter Petitioners filed with the District Court requesting
additional time to file their Motion to Reconsider, Petitioners
wrote that they “understood” that the extension of time would
not prejudice their ability to seek review of the denial of class
certification. Although this was an incorrect assumption in
light of the paucity of case law in this Circuit concerning the
effect of a timely-filed motion to reconsider on the Rule 23(f)
time period, Petitioners cannot use the District Court’s
approval of the extension of time to save their untimely


Given the Court’s definition of “jurisdictional” rules in Bowles,
it appears that referring to a lack of “jurisdiction” to hear an
untimely Rule 23(f) petition is not an accurate use of that word
in the Rule 23(f) context.
       10
         While Bowles clearly sounded the death knell of the
doctrine of unique circumstances in the context of jurisdictional
time limits, the Court was less clear as to whether its refusal to
“resurrect the doctrine from its 40-year slumber” applied to
claims-processing rules. See Bowles, 551 U.S. at ---, 127 S. Ct.
at 2366. We need not reach the question of the extent of the
Supreme Court’s decision, however, as the doctrine is
inapplicable in this case.

                               20
petition. The District Court made no affirmative statements
about the effect of the extension of time on Petitioners’ ability
to appeal to this Court. At best, Petitioners may have relied
on the District Court to correct their mistaken
“understanding” of the law, which is not a situation in which
the doctrine of unique circumstances would apply.
Accordingly, the doctrine of unique circumstances provides
no relief for Petitioners. Given the narrow manner in which
this Court has interpreted the doctrine of unique
circumstances, and to the extent that it survives Bowles, we
will not toll the Rule 23(f) time period based on the District
Court’s grant of additional time to file a motion to
reconsider.11

                               E.

       We stress that Rule 23(f)’s time limit for filing a
motion to reconsider is a strict and mandatory time period, for
Rule 23(f) “creates a (brief) opportunity for expedited
review.” Asher, 505 F.3d at 740. Therefore, unless a motion
to reconsider is filed within ten days of the order granting or
denying class certification, the Rule 23(f) petition will be
untimely if filed outside the ten-day window. The purpose of
Rule 23(f), in part, is to ensure that interlocutory appeals of
class certification decisions are heard and decided in a timely
manner, so as not to disrupt the proceedings at the district
court level. See Fed. R. Civ. P. 23(f) advisory committee’s
note. The Rule specifically cautions the appellate courts to
act expeditiously on such petitions for permission to appeal.
See id. We expect that the district courts will also deal with


       11
        Additionally, it is worth noting that during their oral
argument before this Court, Petitioners specifically stated that
they were not relying on the doctrine of unique circumstances to
save their untimely Petition.

                               21
motions to reconsider in a timely fashion, so that the tolling of
the period during which to file a Rule 23(f) petition does not
result in undue delays of trial. See Asher, 505 F.3d at 739
(“[T[he ability to extend the debate about certification in the
district court does not mean that the window of opportunity
for appellate review must be open indefinitely.”).

       Petitioners did not file a Rule 23(f) petition or a proper
motion to reconsider the denial of class certification within
ten days of the District Court’s December 20, 2006 Order.
Accordingly, Petitioners’ Rule 23(f) petition for permission to
appeal the denial of class certification was not timely filed
with this Court.12

                               IV.

        We have considered all other arguments made by the
parties on appeal, and conclude that no further discussion is
necessary. For the foregoing reasons, we will dismiss the


       12
         We note in passing that plaintiffs who find themselves
in the same position as the Petitioners in this matter are not
without recourse. Those plaintiffs may request that the district
court alter or amend its order on class certification; this request
can be made at any time prior to the entry of final judgement.
See Fed. R. Civ. P. 23(c)(1)(C); see also McNamara, 410 F.3d
at 280-81 (“Indeed ... a district court is free to reconsider its
class certification ruling as often as necessary before
judgment.”). They may also request permission to appeal, under
Rule 23(f), should the district court enter a new order on the
issue of class certification, such as an order decertifying a class
or one certifying a different class. See, e.g., Jenkins, 491 F.3d
at 1291-92. Additionally, plaintiffs may appeal the denial of
class certification once a final judgment has been entered. See
Asher, 505 F.3d at 740; Jenkins, 491 F.3d at 1292.

                                22
Petitioners’ petition for permission to appeal the denial of
class certification as untimely.




                               23
