Opinion
CV 04-0829-PHX (HRH).
February 23, 2005
ORDER
Motion for Reconsideration
Plaintiff moves for reconsideration of this court's General Order No. 3 of November 10, 2004, wherein the court addressed statute of limitations issues applicable generally in the jointly managed cases (JMC) brought by DirecTV. Because plaintiff's motion raised matters not put before the court by the original motion, the court entered its further order of January 11, 2005, wherein the procedural posture of the case was updated, and those parties to the JMC who had participated in the statute of limitations motion practice were afforded an opportunity to respond to plaintiff's motion for reconsideration. The defendants in three of the JMC have opposed the motion for reconsideration: defendant Hulme in No. CV-04-0205-TUC, defendants Grange in No. CV-04-0203-TUC, and defendants Hilow in No. CV-04-0816-PHX. Oral argument on the motion for reconsideration has not been requested and is not deemed necessary.
Clerk's Docket No. 26.
Clerk's Docket No. 23.
Clerk's Docket No. 28.
Some parties may note that, in disposing of this motion for reconsideration, the court has made no mention of defendants' opposition to plaintiff's motion. The oppositions are filed by defendants who appear pro se in these cases, as is their right. Presumably these defendants do not have the benefit of legal training, so it is not surprising that their responses, while reflective of what the defendants believe about this case, fail to address the somewhat obscure and technical point as to which plaintiff and the court disagree.
The motion for reconsideration focuses upon that portion of General Order No. 3 wherein the court addressed plaintiff's contention that the refiled complaints as to the moving defendants should be deemed to relate back to the date of filing of the original complaint against those defendants who were dismissed from the original cases. The court now takes up this discussion at the point where the court's January 11, 2005, order left off.
Plaintiff first argues that the procedural history of the case supports plaintiff's contention that the refiled complaints should be deemed to relate back to the original filing dates. Judge Bolton made no such ruling. Judge Bolton dismissed all but the first named plaintiff in numerous DirecTV cases without prejudice. On motion to amend order, Judge Bolton addressed the relation back issue, saying:
See Order (Dec. 9, 2003), Clerk's Docket No. 69 inDirecTV v. Simms, No. CV-03-0985-PHX.
DirecTV is free to argue in each case that the filing date of the new complaint should relate back to the date of the originally filed complaints or that the statute of limitations should be equably tolled under the circumstances.
Order at 6 (Feb. 27, 2004), Clerk's Docket No. 92 in No. CV-03-0985-PHX.
Plainly, Judge Bolton did not decide the plaintiff's argument about relation back. Judge Bolton left that matter for another day, which, as it turns out, arrived when the court issued its General Order No. 3 on November 10, 2004.
After reassignment to this court, the decision was made to take up the statute of limitations issues, they were briefed, and the relation back issue that Judge Bolton had held open was decided.
Plaintiff argues that Judge Bolton's provided that the parties would be free to address the relation back issue "in each individual case." (Motion for Reconsideration at 5.) One certainly can draw this inference from Judge Bolton's order, but, being of the view that the relation back issue was a matter of law that could be taken up simultaneously as to all of the cases, this court has done so.
Plaintiff next argues that in order to avoid substantial prejudice to it, DirecTV should have the benefit of the relation back doctrine. In this regard, plaintiff makes reference in its motion for reconsideration to Rule 21, Federal Rules of Civil Procedure, to Coughlin v. Rogers, 130 F.3d 1348, 1350 (9th Cir. 1997), and to Elmore v. Henderson, 227 F.3d 1009, 1012 (7th Cir. 2000). While Elmore is interesting because of some of its factual similarities to the DirecTV situation, neither case is instructive as regards the possible application of the relation back doctrine in this case.
In Coughlin, the district court granted a dismissal for misjoinder, and that decision was affirmed on appeal. The district court decision (quoted in the appellate court decision) states, based upon Rule 21, Federal Rules of Civil Procedure, that:
If the test for permissive joinder is not satisfied, a court, in its discretion, may sever the misjoined parties, so long as no substantial right will be prejudiced by the severance.Coughlin, 130 F.3d at 1350. Two things need to be said aboutCoughlin. First, it is curious that, as quoted above, the district court in Coughlin talks about "severance" of misjoined parties so long as no rights are prejudiced. Severance is the remedy of preference where the dismissal of misjoined parties would cause prejudice. In Coughlin, the court in fact granted the dismissal, and there appears to have been no issue of whether or not there was any prejudice to the dismissed party. Second, and most important, Coughlin simply does not address the situation that we have: the moving defendants were dismissed, not severed; and here, unlike Coughlin, plaintiff is concerned that it may be prejudiced for having suffered a dismissal of defendants rather than a severance of them. Again, there is no discussion in Coughlin of the relation back doctrine to obviate the possible impact of a dismissal rather than a severance because of statute of limitations concerns. Elmore is a case where one of plaintiff's claims was dismissed for misjoinder, and the court of appeals expressly observes that, "[t]he judge erred in thinking that the statute of limitations was tolled between the filing of the original suit and when she dismissed Elmore from it." Elmore, 227 F.3d at 1012. Nevertheless, the Seventh Circuit affirmed the dismissal of a refiled complaint on statute of limitations grounds. InElmore, the court holds that:
It is irrelevant that the dismissal was almost certainly erroneous, not because there wasn't misjoinder, but because in formulating a remedy for a misjoinder the judge is required to avoid gratuitous harm to the parties, including the misjoined party. Rule 21 not only requires that orders adding or dropping parties be made "on such terms as are just," but also expressly allows the judge to sever the misjoined party's claim rather than dismiss it.Id. The Seventh Circuit holds that the district court should have allowed Elmore's claim "to continue as a separate suit so that it would not be time-barred." Id. Interestingly, Elmore goes on to rule that dispensing with the statute of limitations in the refiled suit would not have been a proper remedy for an erroneous dismissal. "The proper remedy is appeal [of the dismissal for misjoinder]." Id.
Coming to what is most interesting in Elmore for purposes of our case, the Seventh Circuit observes that,
There are defenses to the statute of limitations, and Elmore is right in identifying equitable tolling as one of them. The running of a statute of limitations can be equitably tolled when through no fault of his own the plaintiff was unable to sue within the limitations period but he sued as soon as he could. This, however, is not a case in which the plaintiff was prevented from suing within the limitations period. He did sue within that period. His complaint is that his suit was erroneously dismissed, as a result of which, though the dismissal was without prejudice, his claim was lost because the statute of limitations ran before he refiled. Equitable tolling is not a remedy for an erroneous judgment; appeal, or in exceptional cases a motion under Fed.R.Civ.P. 60, is.Id. at 1013 (citations omitted).
The Seventh Circuit goes on to ameliorate the foregoing, harsh-sounding proposition by observing that:
even if equitable tolling could do service for an appeal . . . the doctrine would be unavailable to Elmore in the circumstances of this case. It is true that he cannot be faulted for having failed to refile his suit before the district court dismissed him from the original one. He had no reason to anticipate an erroneous order dismissing him for misjoinder rather than just severing his claim and allowing it to continue as a separate suit. But he could not possibly invoke the doctrine of equitable tolling unless he sued just as soon as possible after the judge's action made him realize that the statute of limitations had run.Id. After observing that Elmore waited four months to refile without offering any excuse for the delay, the court observes that, "[s]ince all he had to do was refile the original complaint, merely deleting reference to his co-plaintiff's claims, it is not surprising that he is unable to come up with an excuse." Id.
This court does not consider itself bound by Seventh Circuit case law, although we certainly look to other circuits for guidance in the absence of Ninth Circuit decisions. Especially in light of the last stated qualification of the Seventh Circuit's position that appeal was the remedy for erroneous dismissal rather than severance, this court continues to share Judge Bolton's view that equitable tolling is an argument available to plaintiff should it come to pass that there is a statute of limitations problem created by the refiling of plaintiff's claims against defendants who were dismissed out of previously filed cases for misjoinder. For our present purposes, however, Elmore is uninstructive. Like Coughlin, it does not even remotely suggest the availability of the relation back doctrine in cases of the dismissal of defendants for misjoinder. Rather, an appeal or perhaps equitable tolling are the remedies.
Finally, plaintiff contends that there is ample authority providing for relation back in cases such as the JMC. There are indeed district court cases that discuss the concept of relation back of refiled complaints in the context of cases such as this. However, plaintiff is yet to come forward with any authoritative text or authoritative appellate court decision which applies the relation back doctrine that has its primary formulation in Rule 15(c), Federal Rules of Civil Procedure, to cases such as these where there has been an unconditional dismissal of defendants for misjoinder and a refiling. Rule 21, Federal Rules of Civil Procedure, makes provision for conditional dismissal; but that did not happen here.
In this regard, plaintiff relies in particular on Graziose v. American Home Products Corp., 202 F.R.D. 638 (D. Nev. 2001). Having concluded that the case before him should have been six separate cases, Judge Hunt held:
The Court will sever the claims, dismissing all but the first named Plaintiffs, Mr. and Mrs. Graziose (spouses may certainly bring their claims together), and permitting the remaining Plaintiffs to re-file their complaints nunc pro tunc, so they will relate back to the time of the filing of this original complaint to avoid the effect of this order resulting in violations of statutes of limitations.Id. at 641. After referring to Coughlin, Judge Hunt further observed that: "There will of course be a time limitation for the filing of the new complaints." Id.
It is of course clear that in speaking of "sever[ing] the claims," the court was using the word "sever" in a non-legal sense, for it is clear in the context of Graziose that the court was neither dealing with the separation of claims or defendants within an ongoing case. Rather, the court was (as did Judge Bolton in this case) dismissing parties for misjoinder. Relevant to what is going on here, Judge Hunt in fact did what plaintiff in these cases endeavored to have Judge Bolton do, once it was clear that defendants were going to be dismissed, not severed. As plaintiff suggests, Judge Hunt specifically made provision for the complaints to be filed "nunc pro tunc, so they will relate back to the time of the filing of [the] original complaint. . . ." Graziose, 202 F.R.D. at 641. The refiled complaint "relate[d] back" because of the nunc pro tunc ruling which effected the dismissal, not the Rule 15(a) doctrine. Id. This court is unpersuaded that there is any authority for it to apply the relation back doctrine to plaintiff's refiled complaints after the dismissal and refiling of a complaint.
Plaintiff has not demonstrated that there is any error of fact or law in the court's initial decision that, as a matter of law, plaintiff's refiled complaint against the Redferns (as well as the many other defendants similarly situated) does not relate back to the date of the original complaint. Plaintiff is simply taking a doctrine developed for purposes of dealing with amended pleadings within a case and endeavoring to export it to an entirely different pleading situation: one where a complaint is dismissed in one case as to a party and subsequently a new complaint in a new case is filed by the same plaintiff against the same dismissed defendant. Relation back does not apply to the latter situation.
In General Order No. 3, after reaching the above conclusion, this court took up briefly the doctrine of equitable tolling and determined not to reach that issue until later. The court remains of the view that if some of plaintiff's claims against the previously dismissed defendants turn out to be barred by the applicable statute of limitations, plaintiff may argue the doctrine of equitable tolling.
Reconsideration is granted; however, for the above reasons (and those originally stated), the court concludes that plaintiff's refiled complaints do not relate back to the date of filing of plaintiff's original complaints.
Clerk's Docket No. 26.
The clerk of court will please ensure that a certified copy of this order is also filed and distributed in the related cases of:DirecTV v. Hulme, No. CV-04-0205-TUC, DirecTV v. Grange, No. CV-04-0203-TUC, and DirecTV v. Hilow, No. CV-04-0816-PHX.