For many years, Rule 23 of the Federal Rules of Civil Procedure used to require that class certification motions be brought “as soon as practicable after the commencement of the action.” It seems that no one ever knew what this meant. And, in addition, many lawyers and judges thought that it was bad policy (whatever it meant), so the rule was changed in 2003. This mandate was deleted.
On the other hand, Eight Circuit class action lawyers are now on notice that there is still some risk if one delays before bringing such a motion, as Iowa counsel Jean Pendleton and Joan Fletcher learned this week from the U.S. Court of Appeals for the Eighth Circuit.
At 2:00 a.m., in August, 2006, Sioux City Iowa police arrested Maureen Rattray for drunk driving, a first offense “serious misdemeanor” punishable under Iowa law with a minimum of 48-hours in jail. When Rattray was booked, she was subjected to not one but two full body (and body cavity) strip searches.
Seem a bit much to you? It did to Ms. Rattray and she brought suit in February, 2007, claiming that the searches violated her rights under the Fourth Amendment. Then, in October, 2007, claiming that she first learned that her experience was shared by all arrestees charged with a “serious misdemeanor,” she moved to amend her complaint to convert it into a class action. Then in April, 2008, Ms. Rattray moved for class certification.
The U.S. Court of Appeals for the Eight Circuit ruled this week that her delay between February, 2007, when she brought the suit, and October, 2007, when she was granted leave to amend to convert her case to a class action, and April, 2008 when her counsel moved for class certification was altogether too long. Based on this, the U.S. Court of Appeals for the Eight Circuit affirmed the district court’s denial of class certification, for failure to demonstrate “the zeal with which she would represent the interests of absent class members,” and thus a failure to meet the requirement that she adequately represent the class.