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Stiller v. Costco Wholesale Corporation

United States District Court, S.D. California

October 1, 2014

ERIC STILLER and JOSEPH MORO, on behalf of themselves individually and all other similarly situated, Plaintiffs,
COSTCO WHOLESALE CORPORATION and DOES 1 through 25, inclusive, Defendants.


GONZALO P. CURIEL, District Judge.


Before the Court is Plaintiffs Eric Stiller and Joseph Moro's ("Plaintiffs") Motion to Clarify. (ECF No. 232). Defendant Costco Wholesale Corporation ("Defendant") filed an opposition. (ECF No. 234.) Plaintiffs responded. (ECF No. 235.)

The parties have fully briefed the motion. (ECF Nos. 232, 234, 235.) The Court finds the motion suitable for disposition without oral argument pursuant to Civil Local Rule 7.1(d)(1). Upon review of the moving papers, admissible evidence, and applicable law, the Court DENIES Plaintiffs' Motion to Clarify.


On October 2, 2009, Plaintiffs filed an amended class action complaint against Defendant in San Diego Superior Court. (ECF No. 1.) On November 4, 2009, Defendant removed this case to the United States District Court for the Southern District of California. (Id.) On December 13, 2010, the Court granted certification of a California Rule 23 class and conditional certification of a nationwide FLSA collective action. (ECF No. 104.) On October 11, 2012, this case was transferred to the Honorable Gonzalo P. Curiel. (ECF No. 187.) On April 15, 2014, the Court decertified the class and collective actions (the "Decertification Order"). (ECF No. 224.) On April 29, 2014, Plaintiffs filed a petition for permission to appeal the Decertification Order pursuant to Federal Rule of Civil Procedure 23(f). (ECF No. 228.) On May 9, 2014, the parties filed a joint motion to stay the case pending the resolution of Plaintiffs' petition for permission to appeal. (ECF No. 229.) On May 12, 2014, the Court granted the motion to stay (the "Stay Order"). (ECF No. 231.) To date, the Ninth Circuit has not ruled on Plaintiffs' petition.

On July 10, 2014, Plaintiffs filed a motion to clarify the Stay Order. (ECF No. 232.) On August 1, 2014, Defendant filed an opposition to Plaintiffs' motion. (ECF No. 234.) On August 15, 2014, Plaintiffs responded to Defendant's opposition. (ECF No. 235.) The parties dispute the type of tolling that Plaintiffs seek in the motion to clarify. (See ECF No. 234, at 3-5; ECF No. 235, at 3.) However, Plaintiffs make clear that they are seeking American Pipe tolling and thus the Court proceeds to analyze whether American Pipe tolling is appropriate. (See ECF No. 235, at 3.)


A. American Pipe Tolling

In American Pipe & Construction Co. v. Utah, the Supreme Court created a tolling doctrine that applies in the class action context. 414 U.S. 538 (1974). The Supreme Court held that "the commencement of a class action suspends the applicable statute of limitations as to all asserted members of the class who would have been parties had the suit been permitted to continue as a class action." Id. at 554. That suspension lasts "only during the pendency of the motion to strip the suit of its class action character." Id. at 561. In Crown, Cork & Seal Co. v. Parker, the Supreme Court extended American Pipe tolling to apply not only to situations "where plaintiffs sought to intervene in a continuing action, but also" to situations "where they sought to file an entirely new action." Catholic Social Servs., Inc. v. Immigration and Naturalization Serv. , 232 F.3d 1139, 1147 (9th Cir. 2000) (citing Crown, Cork, 462 U.S. 345, 350 (1983)). The Supreme Court reiterated that American Pipe tolling continues "until class certification is denied." Crown, Cork, 462 U.S. at 354.

B. Post-Decertification Order and Pending Appeal

Plaintiffs argue that American Pipe tolling should continue after the Decertification Order because they have filed a Rule 23(f) petition. (See ECF No. 235, at 3.) The Court notes that the cases cited by Plaintiffs do not deal with American Pipe tolling. See Arpon v. United Parcel Serv., No. 08-cv-8085-DDP-RZX, 2009 U.S. Dist. LEXIS 38627 (C.D. Cal. Mar. 9, 2009); Monahan v. City of Wilmington, No. 00-cv-0505-JJF, 2004 U.S. Dist. LEXIS 1322 (D. Del. Jan. 30, 2004); Nat'l Asbestos Workers Med. Fund v. Phillip Morris, Inc., No. 98-cv-1492 , 2000 U.S. Dist. LEXIS 13910 (E.D.N.Y. Sept. 26, 2000). Moreover, the very section of the Manual for Complex Litigation cited by Plaintiffs, (see ECF No. 235, at 3), specifically states that American Pipe tolling "[o]rdinarily... ceases when a court denies class certification." FED. JUDICIAL CTR., MANUAL FOR COMPLEX LITIGATION ยง 21.28 n.871 (4th ed. 2004) (citing Armstrong v. Martin Marietta Corp. , 138 F.3d 1374, 1378 (11th Cir. 1998)).

While the Ninth Circuit has not had the opportunity to specifically rule whether American Pipe tolling ends upon denial of class certification, Ninth Circuit Judge J. Clifford Wallace did analyze this issue while writing for another circuit that also had not had the opportunity to rule on this issue prior to Judge Wallace's opinion. See Giovanniello v. ALM Media, LLC. 726 F.3d 106 (2d Cir. 2013) . Sitting by designation on the Second Circuit, Judge Wallace wrote that the Second Circuit "take[s] this opportunity to join our sister circuits and hold that American Pipe tolling does not extend beyond the denial of class status." Id. at 116 (referencing decisions by the 1st, 3d, 4th, 5th, 6th, 7th, 11th, and Federal Circuits). Finding Judge Wallace's reasoning persuasive, this Court follows the lead set by the nine Circuit Courts that have held that American Pipe tolling does not extend beyond the denial of class status.

In Giovanniello, the plaintiff filed a putative class action in federal district court. 726 F.3d at 108. The district court denied class certification and dismissed the case; the plaintiff subsequently appealed. Id . The appeal was stayed pending a related appeal. Id . After the related appeal was decided, the plaintiff failed to respond to an order to show cause and his appeal was dismissed. Id . Six months after the dismissal, the plaintiff again filed a putative class action under the same statute. Id . The district court ruled that the statute of limitations had run on the plaintiff's cause of action and dismissed the case. Id. at 108-09. The plaintiff appealed the district court's ...

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