Trial Practice and Procedure - Philip W. Savrin and Robert W. Capobianco

• Publication year: 1999

Trial Practice and Procedureby Philip W. Savrin*and

Robert W. Capobianco*

I. Introduction

This Article surveys the 1998 decisions of the Eleventh Circuit Court of Appeals that have a significant impact on issues relating to trial practice and procedure.

II. Statute op Limitations

A. Entry of an Interlocutory Order Denying Class Certification

In Armstrong v. Martin Marietta Corp.,¹ the court had to decide whether, in the absence of controlling authority, the statute of limitations begins to run immediately upon the district court's entry of an interlocutory order denying class certification or whether the statute remains tolled through final judgment in the former class action and completion of an appeal from the order denying class certification. Appellants in Armstrong were thirty-one former Martin Marietta employees who were discharged between 1992 and 1993. Following their terminations, twenty-eight of the appellants filed charges of age discrimination with the Equal Employment Opportunity Commission ("EEOC"); three of the appellants did not file EEOC charges.²

Over time, the EEOC notified all twenty-eight appellants that their charge of age discrimination was dismissed. Generally, receipt of notice of dismissal triggers the ninety-day statute of limitations for bringing a civil action.³ However, the ninety-day period is tolled when the potential plaintiff is a putative member of a class action.⁴ In this case, twenty-eight of the appellants opted into Carmichael v. Martin Marietta Corp.,⁵ an age discrimination class action suit already proceeding in Florida (the other three appellants were already named plaintiffs in Carmichael). The court in Carmichael found that appellants were not "similarly situated" to the other Carmichael plaintiffs and, thus, certified a class that did not include appellants.⁶ The court dismissed the claims of appellants who were named plaintiffs and denied the remaining appellants' requests to opt into the Carmichael class.⁷ Then, more than ninety days after the court in Carmichael denied their requests to opt into the class action, appellants filed their complaint.⁸

Martin Marietta filed, and the district court later granted, a motion for partial summary judgment on the ground that appellants failed to file their individual lawsuits within ninety days after their dismissal from the Carmichael class action. On appeal, appellants argued that the statute of limitations should continue to be tolled, even after the court's denial of class certification in Carmichael, "because the denial of certification in an interlocutory order may be reversed by the district court at any time before final judgment."⁹ After the court of appeals reversed and remanded, a rehearing en banc was granted.¹⁰

The Age Discrimination in Employment Act's¹¹ statute of limitations requires a plaintiff to file suit within ninety days of receiving the EEOC's notice of dismissal of the plaintiff's discrimination charge.¹² However, membership in a pending class action tolls the ninety-day period.¹³ "The purpose of such tolling is to encourage class members reasonably to rely on the class action to protect their rights."¹⁴ The Eleventh Circuit, in affirming the district court's grant of summary judgment, stated that once the order denying class certification was entered, "reliance on the named plaintiffs' prosecution of the matter ceases to be reasonable, and . . . excluded putative class members are put on notice that they must act independently to protect their rights."¹⁵ Additionally, because a class certification decision is not a "'final decision' within the meaning of 28 U.S.C. Sec. 1291", it is not appealable as a matter of right.¹⁶ Waiting until the appellate process is completed or until the time for taking an appeal has expired before resuming the statute of limitations would take years and create uncertainty.¹⁷ Consequently, the district court's decision was affirmed.¹⁸

B. Equitable Tolling Under Truth in Lending Act

In Ellis v. General Motors Acceptance Corp. ,¹⁹ appellants purchased an automobile in May 1995. After allegedly discovering fraud fifteen months after the purchase, appellants sued the financing company for violations of the Truth in Lending Act ("TILA").²⁰ Appellants, recognizing that under TILA they only had one year from the time they purchased the car to bring an action, argued that because they were prevented from learning of the alleged misrepresentation, equitable tolling should apply to suspend the statute of limitations.²¹ "[T]he district court concluded that TILA [is] a jurisdictional statute and that the [appellants'] claim was therefore time-barred."²² Appellants contended that TILA was not a jurisdictional statute, but rather it was a statute of limitations subject to equitable tolling.²³ The issue of whether TILA was subject to equitable tolling was one of first impression in the Eleventh Circuit.²⁴

In its analysis, the court first began by noting that every other circuit that considered the issue held that TILA was subject to equitable tolling.²⁵ '"Equitable tolling"' is the doctrine under which plaintiffs may sue after the statutory time period has expired if they have been prevented from doing so due to inequitable circumstances.²⁶ Here, the court noted that TILA is a consumer protection statute and, as such, is remedial in nature and should be construed liberally.²⁷ Because a literal reading of the time limit within TILA would thwart its remedial purpose, the court found that the statute of limitations in TILA is subject to equitable tolling.²⁸ To hold otherwise would reward those perpetrators who are successful in concealing their fraudulent actions long enough for the statute of limitations period to expire.²⁹

C. Rehabilitation Act and Title II of the Americans with Disabilities Act ("ADA")

In Everett v. Cobb County School District,³⁰ a plaintiff with multiple sclerosis and bilateral SI joint dysfunction, while attending Kennesaw State College to earn a degree in early childhood education, began her student teaching assignment at Kennesaw Elementary School. The teacher of the classroom to whom Everett was assigned made frequent comments about Everett's disability and told Everett that she would have to demonstrate that she was capable of teaching in any situation to receive a satisfactory grade. On May 31, 1994, the Kennesaw State faculty gave Everett a grade of incomplete and told her she would have to repeat the student teaching program the following year. On June 6, 1994, Everett received a letter confirming that the May 31 decision would stand. On June 6, 1996, Everett filed a complaint based on Title II of the Americans with Disabilities Act ("ADA")³¹ and the Rehabilitation Act of 1973,³² alleging discrimination because of her disability.³³

The district court granted defendants' motion to dismiss after it reasoned that Georgia's two-year statute of limitations applied to all of Everett's claims.³⁴ Everett appealed the district court's decision "asserting that Georgia's two-year personal injury statute of limitations is inapplicable to claims brought under the ADA and the Rehabilitation

Act."³⁵

Recognizing that the issue of the applicable statute of limitations under Title II of the ADA and the Rehabilitation Act of 1973 was an issue of first impression for the Eleventh Circuit, the court stated that when a federal statute does not contain a statute of limitations period, courts should look to the most analogous state statute of limitations.³⁶ Looking to the Supreme Court and other circuit courts for guidance on the characterization of ADA or Rehabilitation Act claims, the court concluded that, like most civil rights actions, discrimination actions are claims to vindicate injuries to personal rights.³⁷ Therefore, the appropriate period is the state's statute of limitations for personal injury actions.³⁸

Only the Fourth Circuit failed to apply the state personal injury statute of limitations in a similar situation.³⁹ However, in that case the Fourth Circuit held that because Virginia had passed a state antidiscrimination statute that was identical to the federal Rehabilitation Act, the statute of limitations contained in that statute should be applied as the most analogous.⁴⁰ Because Georgia had not passed a state law identical to the Rehabilitation Act from which to borrow a limitations period, the court decided to follow the lead of all the other circuits and apply Georgia's two-year statute of limitations period for personal injury actions to discrimination claims brought under Title II of the ADA and the Rehabilitation Act.⁴¹

III. Jurisdictional Issues

A. Res Judicata and Collateral Estoppel

1. Res Judicata. In Fleming v. Universal-Rundle Corp.,*⁴² plaintiff suffered a back injury while working for defendant. A year later she applied for a clerical position with defendant that paid less than what she was currently earning but would be less physically demanding.

Although qualified for the position, plaintiff did not receive the job. When plaintiff later filed an employment discrimination lawsuit against the defendant alleging discrimination based on her race and disability, the corporation explained it had a policy against allowing employees to transfer to lower paying jobs. During the course of the litigation, two additional clerical positions, similar to the types plaintiff originally sought, opened at defendant corporation. Plaintiff never applied for these positions and only learned of them during the course of discovery nearly a year later. While plaintiff never amended her complaint to include these incidents, she did describe them in her briefs before both the magistrate judge and the district court. Plaintiff sought to use these incidents as additional evidence that defendant's policy was a pretext for discrimination and thus avoid summary judgment on her claims arising out of the transfer decision. While later analyzing defendant's motion for...