2013 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

12-4-2013

Rachel Eastman v. First Data Corp

Precedential or Non-Precedential: Precedential

Docket No. 13-8071

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Recommended Citation

"Rachel Eastman v. First Data Corp" (2013). 2013 Decisions. Paper 1552.

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DCO-004 PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 13-8071

___________

RACHEL EASTMAN, an individual; ACADEMIC 

SOFTWARE, a New Jersey Corporation; AIA 

ENTERPRISES INC, d/b/a Chesterfield Inn, a New Jersey 

Corporation; BUDGET WINDOWS, a New Jersey 

Corporation; JOHN PIERSON, an individual, on behalf of 

themselves and all others similarly situated;

Petitioners

v.

FIRST DATA CORPORATION, a Delaware Corporation; 

FIRST DATA MERCHANT SERVICES CORPORATION, a 

Florida Corporation,

Respondents

____________________________________

On Petition for Permission to Appeal Pursuant to Fed. R. Civ. 

P. 23(f) 

from the United States District Court

for the District of New Jersey

(D.C. Civil No. 2-10-cv-04860)

District Judge: Honorable William H. Walls
2

____________________________________

Submitted for Possible Dismissal Due to a 

Jurisdictional Defect on

October 16, 2013

Before: SMITH, HARDIMAN and VAN ANTWERPEN, 

Circuit Judges

(Opinion filed December 4, 2013)

Nathan M. Edelstein, Esq.

Suite 206

761 Canterbury Drive

Yardley, PA 19067

Mark A. Fisher, Esq.

Arnold C. Lakind, Esq.

Stephen Skillman, Esq.

Szaferman, Lakind, Blumstein & Blader

101 Grovers Mill Road

Quakerbridge Executive Center, Suite 200

Lawrenceville, NJ 08648

Counsel for Plaintiffs - Petitioners

Thomas A. Cunniff, Esq.

Fox Rothschild

997 Lenox Drive

Princeton Pike Corporate Center

Building 3

Lawrenceville, NJ 08648
3

Counsel for Defendants - Respondents

_________

OPINION

_________

PER CURIAM

Petitioners have filed a Fed. R. Civ. P. 23(f) petition 

for permission to appeal the District Court’s order denying 

class certification. Because the Rule 23(f) petition is 

untimely, we will dismiss the petition.

I.

Plaintiffs, now Petitioners, are 24,000 New Jersey 

merchants who entered into contracts for credit or debit point 

of sales terminals with Defendants First Data Corporation and 

First Data Merchant Services Corporation. Plaintiff Rachel 

Eastman and others filed a class action complaint against 

Defendants in the United States District Court for the District 

of New Jersey alleging that, among other things, they charged 

small business owners unconscionable and exorbitant fees for 

the lease of the terminals and added extra costs not included 

in the contracts. Plaintiffs filed a motion to certify the class. 

On July 31, 2013, the District Court entered an order denying 

the motion. On August 19, 2013, Petitioners filed in this 

Court a petition for permission to appeal the order denying 

class certification pursuant to Fed. R. Civ. P. 23(f). 

After the petition was filed, the Clerk ordered the 

parties to address the timeliness of the petition. Petitioners 
4

concede that the Rule 23(f) petition was filed beyond the 

fourteen day deadline for filing; however, they assert that the 

late filing should be permitted. Respondents object to the 

timeliness of the petition and urge the Court to dismiss the 

untimely petition. 

II.

A petition for permission to appeal an order denying 

class certification must meet the requirements of Fed. R. App. 

P. 5 and be filed by the deadline specified in the statute or 

rule authorizing the appeal. See Fed. R. App. P. 5(a)(2). 

Rule 23 of the Federal Rules of Civil Procedure states that 

this Court may permit an appeal from an order granting or 

denying class certification as long as the petition for 

permission to appeal is filed “within 14 days after the order is 

entered.” See Fed. R. Civ. P. 23(f) (emphasis added). 

Because Rule 23(f) is a rule of civil procedure, Fed. R. Civ. P. 

6(a) governs the calculation of time to file the petition. See

Beck v. Boeing Co., 320 F.3d 1021, 1023 (9th Cir. 2003) (per

curiam); In re Veneman, 309 F.3d 789, 793 (D.C. Cir. 2002) 

(citing cases); Lienhart v. Dryvit Sys., Inc., 255 F.3d 138, 

142, n.1 (4th Cir. 2001). Fed. R. Civ. P. 6(a)(1)(B) provides 

that when computing time in terms of days, Saturday, 

Sundays and legal holidays are included. Accordingly, the 

deadline for filing the Rule 23(f) petition was fourteen 

calendar days from July 31, 2013 or August 14, 2013. See
5

Fed. R. Civ. P. 6(a)(1)(B) & 23(f). The petition, however, 

was filed three days late on August 19, 2013.1 

Fed. R. Civ. P. 6(d) adds three days to the period 

“[w]hen a party may or must act within a specified time after 

service and service is made under Rule 5(b)(2)(C), (D), (E), 

or (F). . . .” See Fed. R. Civ. P. 6(d). This provision does not 

apply to the filing of a Rule 23(f) petition for permission to 

appeal. The time to file a Rule 23(f) petition runs from entry 

of the order, not service of a document. See Fed. R. Civ. P. 

23(f); Delta Airlines v. Butler, 383 F.3d 1143, 1145 (10th Cir. 

2004) (per curiam); see also Hong v. Smith, 129 F.3d 824, 

825 (5th Cir. 1997) (three days inapplicable to letter from 

clerk of court directing action); Adams v. Trustees of the N.J. 

Brewery Employees’ Pension Trust Fund, 29 F.3d 863, 870 

(3d Cir. 1994) (three days for service does not apply to Fed. 

R. Civ. P. 59(e) motion for reconsideration); Lashley v. Ford 

Motor Co., 518 F.2d 749, 750 (5th Cir. 1975) (per curiam) 

(three additional days for service is not added for filing of 

notice of appeal). 

Petitioners contend that the late filing should be 

permitted based on excusable neglect because they 

mistakenly added three days for service as provided by Fed. 

R. Civ. P. 6(d) and therefore believed that the deadline for 

filing the petition was Monday, August 19, 2013. This 

 

1 We note that even if Rule 26 of the Federal Rules of 

Appellate Procedure was used to determine the timeliness of 

the petition, the Rule 23(f) petition would still be untimely as 

the calculation of the deadline is the same pursuant to both 

rules. See Fed. R. App. P. 26(a)(1)(B). 
6

argument is unconvincing. Counsel’s mistake or ignorance of 

the rules does not constitute excusable neglect and is not a 

reason to accept an untimely Rule 23(f) petition. See, e.g., 

Delta Airlines, 383 F.3d at 1145 (citing Pioneer Inv. Servs. v. 

Brunswick Assocs. Ltd. Partnership, 507 U.S. 380, 392 

(1993)). 

Petitioners also assert that the Court should allow the 

Rule 23(f) petition to be filed out of time. As this Court has 

noted previously, the time limit set forth in Rule 23(f) is 

“strict and mandatory.” Gutierrez v. Johnson & Johnson, 523 

F.3d 187, 192 (3d Cir. 2008) (citations omitted). 

Additionally, Fed. R. App. P. 26(b)(1) clearly states that this 

Court cannot extend the time for filing a petition for 

permission to appeal. Therefore, this argument also fails. 

The Court has carved out a limited exception for 

timely motions to reconsider the grant or denial of class 

certification filed in District Court. See Gutierrez, 523 F.3d 

at 199. If a motion to reconsider is proper and timely, it 

resets the time for filing a Rule 23(f) petition. See id. (noting 

deadline for filing Rule 23(f) petition begins anew after 

district court rules on timely and proper motion for 

reconsideration). Nonetheless, the narrow exception set forth 

in Gutierrez does not apply since no motion for 

reconsideration was filed.

Accordingly, we will dismiss the untimely Rule 23(f) 

petition.