Farley v. Family Dollar Stores, Inc. et al

Filing 52

USCA ORDER re: 50 Petition (Letter) is denied on 4/25/13. (lswsl )

Appellate Case: 13-704

Document: 01019042831

Date Filed: 04/25/2013

UNITED STATES COURT OF APPEALS
E
EALS

Page: 1
FILED
United States Court of Appeals
Tenth Circuit

FOR THE TENTH CIRCUIT
_________________________________
_
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FAMILY DOLLAR STORES INC.;
FAMILIY DOLLAR STORES OF
COLORADO, INC.,

April 25, 2013
Elisabeth A. Shumaker
Clerk of Court

Petitioners,
No. 13-704
(D.C. No. 1:12-CV-00325-RBJ-MJW)

v.
JULIE FARLEY, on behalf of herself and
all similarly situated persons,
Respondent.

_________________________________
ORDER
_________________________________
Before BRISCOE, Chief Judge, LUCERO, and HARTZ, Circuit Judges.
_________________________________
Defendants Family Dollar Stores, Inc. and Family Dollar Stores of Colorado, Inc.
(Family Dollar) have filed a petition for permission to appeal the district court’s oral
ruling granting class certification, pursuant to Fed. R. Civ. P. 23(f) and Fed. R. App. P. 5.
Plaintiff Julie Farley has filed a response and Family Dollar has filed a motion for leave
to file a reply in support of its petition, along with a proposed reply.
The decision whether to grant a Rule 23(f) petition is purely discretionary. See
Fed. R. Civ. P. 23(f); Vallario v. Vandehey, 554 F.3d 1259, 1262 (10th Cir. 2009)
(noting that the court’s discretion is “unfettered and akin to the discretion exercised by
the Supreme Court in acting on a petition for certiorari” (internal quotations omitted)).

Appellate Case: 13-704

Document: 01019042831

Date Filed: 04/25/2013

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We are ever mindful that “interlocutory appeals are traditionally disfavored.” Vallario,
554 F.3d at 1262. As a result, “the grant of a petition for interlocutory review constitutes
the exception rather than the rule.” Id. We exercise restraint and “will not accept such
petitions as a matter of course.” Id.
This court has previously identified three general categories of cases where
interlocutory review of a district court’s certification order is appropriate: (1) “death knell
cases” (where the court’s certification order sounds the death knell for the plaintiff’s
claims or makes settlement the only prudent course for the defendant); (2) cases raising
unresolved issues of class action law that might evade end-of-case review; and (3)
instances of manifest error by the district court. Id. at 1263.
A party seeking class certification must satisfy the requirements of Fed. R. Civ. P.
23(a) and (b). In making a class certification ruling, a district court must conduct a
rigorous analysis to ensure that all of Rule 23’s requirements are met. See Gen. Tel. Co.
of Sw. v. Falcon, 457 U.S. 147, 161 (1982); Vallario, 554 F.3d at 1265. Family Dollar
petitions for interlocutory review principally on the ground that the district court’s ruling
was manifestly erroneous under Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541 (2011),
arguing that the district court failed to address how evidence common to the proposed
class established that the commonality and predominance requirements of Rule 23(a)(2)
and (b)(3) were satisfied as required by that case.
Upon careful consideration of the petition, response, and proposed reply, the
materials filed with the court, and the applicable law, we conclude that the district court’s
class certification ruling is not appropriate for interlocutory review. We find the district
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Appellate Case: 13-704

Document: 01019042831

Date Filed: 04/25/2013

Page: 3

court’s oral ruling sparse and note that the lack of a written order, with the legal citation
and thorough analysis such usually engenders, inhibits our ability to assess the propriety
of the district court’s decision. In the future, we urge the district court to articulate in
writing an in-depth analysis as to each of Rule 23’s requirements. Nevertheless, we
cannot say that the district court’s class certification decision in this case presents any of
the concerns previously identified by this court as meriting interlocutory review. See
Vallario, 554 F.3d at 1264 (noting that, “[i]n most instances, a manifest error will be one
of law, rather than an incorrect application of the law to a given set of facts”). Moreover,
we are cognizant that the district court may amend its certification order or decertify the
class altogether at any point prior to final judgment if it determines that its predictions
regarding satisfaction of the requirements of Rule 23 were inaccurate. See Fed. R. Civ. P.
(c)(1)(C).
Accordingly, the petition is denied. Family Dollar’s motion for leave to file a
reply is granted.
Entered for the Court
ELISABETH A. SHUMAKER, Clerk

by: Jane K. Castro
Counsel to the Clerk

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