U.S. THIRD CIRCUIT

Eastman v. First Data Corporation

CIVIL PROCEDURE—Class Actions

New Jersey Law Journal

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Eastman v. First Data Corporation, No. 13-8071; Third Circuit; per curiam opinion; filed December 4, 2013. Before Judges Smith, Hardiman and Van Antwerpen. On petition for permission to appeal pursuant to Fed. R. Civ. P. 23(f) from the District of New Jersey. [Sat below: Judge Walls.] DDS No. 07-8-xxxx [6 pp.]

Plaintiffs, now petitioners, are 24,000 New Jersey merchants who entered into contracts for credit or debit point-of-sales terminals with defendants First Data Corporation and First Data Merchant Services Corporation. Plaintiff Rachel Eastman and others filed a class-action complaint against defendants in the district court for the District of New Jersey alleging that, among other things, they charged small business owners unconscionable and exorbitant fees for the lease of the terminals and added extra costs not included in the contracts. Plaintiffs filed a motion to certify the class. On July 31, 2013, the district court entered an order denying the motion. On Aug. 19, 2013, petitioners filed in this court a petition for permission to appeal the order denying class certification pursuant to Fed. R. Civ. P. 23(f).

Petitioners concede that the Rule 23(f) petition was filed beyond the 14-day deadline for filing; however, they assert that the late filing should be permitted. Respondents object to the timeliness of the petition and urge the court to dismiss the untimely petition.

Held: Petitioners' Rule 23(f) petition for permission to appeal the district court's order denying class certification is dismissed as untimely.

A petition for permission to appeal an order denying class certification must meet the requirements of Fed. R. App. P. 5 and be filed by the deadline specified in the statute or rule authorizing the appeal. Rule 23 of the Federal Rules of Civil Procedure states that this court may permit an appeal from an order granting or denying class certification as long as the petition for permission to appeal is filed "within 14 days after the order is entered." Because Rule 23(f) is a rule of civil procedure, Fed. R. Civ. P. 6(a) governs the calculation of time to file the petition. Fed. R. Civ. P. 6(a)(1)(B) provides that when computing time in terms of days, Saturdays, Sundays and legal holidays are included. Accordingly, the deadline for filing the Rule 23(f) petition was 14 calendar days from July 31, 2013, or Aug. 14, 2013. The petition, however, was filed on Aug. 19, 2013.

Fed. R. Civ. P. 6(d) adds three days to the period "[w]hen a party may or must act within a specified time after service and service is made under Rule 5(b)(2)(C), (D), (E), or (F)...." This provision does not apply to the filing of a Rule 23(f) petition for permission to appeal. The time to file a Rule 23(f) petition runs from entry of the order, not service of a document.

Petitioners contend that the late filing should be permitted based on excusable neglect because they mistakenly added three days for service as provided by Fed. R. Civ. P. 6(d) and therefore believed that the deadline for filing the petition was Monday, Aug. 19, 2013. This argument is unconvincing. Counsel's mistake or ignorance of the rules does not constitute excusable neglect and is not a reason to accept an untimely Rule 23(f) petition.

Petitioners also assert that the court should allow the Rule 23(f) petition to be filed out of time. As this court has noted previously, the time limit set forth in Rule 23(f) is "strict and mandatory." Additionally, Fed. R. App. P. 26(b)(1) clearly states that this court cannot extend the time for filing a petition for permission to appeal. Therefore, this argument also fails.

In Gutierrez v. Johnson & Johnson, the court carved out a limited exception for timely motions to reconsider the grant or denial of class certification filed in district court. If a motion to reconsider is proper and timely, it resets the time for filing a Rule 23(f) petition. Nonetheless, the narrow exception set forth in Gutierrez does not apply since no motion for reconsideration was filed.

Accordingly, the untimely Rule 23(f) petition is dismissed.

For plaintiff-petitioners—Nathan M. Edelstein and Mark A. Fisher, Arnold C. Lakind and Stephen Skillman (Szaferman, Lakind, Blumstein & Blader). For defendant-respondents—Thomas A. Cunniff (Fox Rothschild).

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