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Ewing Indus. Corp. v. Bob Wines Nursery, Inc.

United States Court of Appeals, Eleventh Circuit

August 3, 2015

EWING INDUSTRIES CORPORATION, a Florida corporation, individually and as the representative of a class of similarly-situated persons, Plaintiff - Appellant,
v.
BOB WINES NURSERY, INC., ROBERT L. WINES, Defendants - Appellees

Appeal from the United States District Court for the Middle District of Florida. D.C. Docket No. 3:13-cv-00931-BJD-JBT.

AFFIRMED.

For EWING INDUSTRIES CORPORATION, a Florida corporation, individually and as the representative of a class of similarly-situated persons, Plaintiff - Appellant: Phillip Andrew Bock, Bock & Hatch, LLC, CHICAGO, IL; Ryan Michael Kelly, Anderson Wanca, ROLLING MEADOWS, IL.

For BOB WINES NURSERY, INC., ROBERT L. WINES, Defendants - Appellees: Michael Resis, Eric Samore, Yesha Sutaria, SmithAmundsen, LLC CHICAGO, IL; Russell Willliam LaPeer, Landt Wiechens LaPeer & Ayres, LLP, OCALA, FL.

Before TJOFLAT, COX, and SENTELLE,[*] Circuit Judges.

OPINION

COX, Circuit Judge.

This case presents the question of whether the pendency of a purported class action tolls the statute of limitations for a later class action seeking to represent the same class, when the original purported class action was dismissed due to the inadequacy of the class representative rather than a defect in the class itself. The district court held tat the purported class action did not toll the statute of limitations for the later class action. We affirm. We hold that our decision in Griffin v. Singletary, 17 F.3d 356 (11th Cir. 1994) (hereinafter " Griffin II " ), controls this case.

I. Facts and Procedural History

On January 12, 2010, Aero Financial, Inc. (" Aero" ) filed a class action complaint in Florida state court against the Defendants, Bob Wines Nursery, Inc. and Robert L. Wines, Jr. The complaint alleged that the Defendants sent unsolicited facsimile advertisements to the putative class in violation of the Telephone Consumer Protection Act. See 47 U.S.C. § 227(b)(1)(C). These claims are governed by a four-year statute of limitations. See 28 U.S.C. § 1658(a). The complaint alleged that the conduct took place in December of 2006, meaning that a little over three years had passed between the alleged conduct and the filing of the complaint.

On June 25, 2013, the Florida state court granted summary judgment in favor of the Defendants because Aero did not have standing. Aero did not have standing because the alleged unlawful faxes were not sent to Aero, and the attempted assignment of the claim to Aero was invalid. The Florida state court never ruled on the issue of class certification. The dispositive issue was a defect in the class representative, and the court never ruled on the whether the class itself was a proper class.

On August 2, 2013, the Plaintiff in this action, Ewing Industries Corporation (" Ewing" ), filed a similar class complaint in federal court against the same Defendants containing similar allegations. Ewing is the only party seeking to represent the class as the named plaintiff in this action. Recognizing that more than four years had passed since the alleged conduct, the complaint alleges that the statute of limitations was tolled during the pendency of Aero's purported class action. On February 7, 2014, the Defendants filed a motion to strike the class allegations in Ewing's complaint, contending that the claims were barred by the statute of limitations. On June 26, 2014, the district court entered an order striking the class allegations in Ewing's complaint, holding that the claims were time-barred. The district court considered only the pleadings, and, relying on this court's decision in Griffin II, 17 F.3d at 359, concluded that the pendency of Aero's purported class action did not toll the statute of limitations for Ewing's purported class action. Because the district court struck the class allegations from Ewing's complaint, it denied Ewing's pending motion for class certification with prejudice. Ewing appeals.

II. Discussion

The dispositive issue on this appeal is whether this court's decision in Griffin II controls the outcome in this case. Ewing contends that Griffin II addressed a different factual scenario. Ewing admits that if a purported class action reaches the class certification stage, and class certification is denied, there is no tolling for a subsequent class action based on the same conduct. A contrary result would allow a purported class almost limitless bites at the apple as it continuously substitutes named plaintiffs and relitigates the class certification issue. However, Ewing contends that when a class action fails due to the inadequacy of the class representative--rather than due to defects in the class itself--the statute of limitations is tolled. In short, Ewing contends that every purported class should get at least one attempt at class certification. The Defendants contend that Griffin II addressed the exact situation at issue here: the " piggybacking" of class actions one after another in an attempt to find an adequate class representative. According to the Defendants, this court's opinion in Griffin II squarely rejected tolling in a case like this one.

We ordinarily review de novo a district court's decision on the pleadings. See Williams v. Bd. of Regents of Univ. Sys. of Ga., 477 F.3d 1282, 1291 (11th Cir. 2007). While we review decisions on class certification only for abuse of discretion, see Armstrong v. Martin Marietta Corp., 138 F.3d 1374, 1388 (11th Cir. 1998), " [w]e decide pure law issues de novo, which is another way of saying that a ruling based on an error of law is an abuse of ...


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