Amended Class Definition That Excludes Putative Class Member Does Not Preclude American Pipe Tolling

by Carlton Fields
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The Eastern District of Michigan recently held that certain claims of a putative class member were tolled under American Pipe & Constr. Co. v. Utah., 414 U.S. 538 (1974), even though the named plaintiff had unsuccessfully moved for certification of an amended class whose definition excluded the putative class member’s claims. In 2013, Plaintiff Machesney filed a Telephone Consumer Protection Act (“TCPA”) class action against Ramsgate Insurance Company in the Eastern District of Michigan after receiving three junk faxes between 2006 and 2007. At that time, another person who had received the same junk faxes from Ramsgate, and another company managed by Ramsgate, had already initiated a similar, but separate class action against Ramsgate and the management company in Illinois state court.  The Michigan court dismissed Machesney’s case without prejudice, awaiting resolution of the Illinois case.

The Illinois plaintiff subsequently amended his class definition to exclude two of Machesney’s faxes, and the Illinois court then denied class certification. Machesney then moved to reopen her case in the Eastern District of Michigan, asserting damages only as to the two faxes that were excluded from the amended class definition in the Illinois action.  The Eastern District of Michigan granted the motion, and ruled that:

(a) Machesney was entitled to tolling, pursuant to American Pipe prior to the Illinois class definition being amended,

(b) Machesney was entitled to cross-jurisdictional tolling because the claims raised in both actions arose from the same source of law, the TCPA, 

(c) The tolling ended once the class definition was amended to exclude the two faxes that are the subject of Machesney’s action, but that was well within the four-year statute of limitations for TCPA actions, and

(d) Machesney was not limited to bringing an individual action, but could bring a putative class action.  The court noted that, generally, the pendency of a previously filed class action does not toll the time for additional class actions by putative members of the original class.  However, because the amendment of the Illinois class definition excluded her as a member, Machesney was not barred from initiating a subsequent class action.  The court agreed that if a class action is dismissed prior to reaching the merits of class certification, the putative class members may litigate the question of whether class action treatment is proper.  The Illinois court’s decision not to certify the class was based on the Illinois plaintiff’s amended class definition, which did not include two of Machesney’s faxes.

Accordingly, “Machesney has not yet received one full and fair opportunity to litigate those claims. . . . Applying collateral estoppel to Machesney’s claims does not further judicial economy; rather, it unjustifiably prevents Machesney a full and fair opportunity for relief.”

Machesney v. Ramsgate Ins., Inc., No. 2:13-cv-11804 (E.D. Mich. June 10, 2014).

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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