PUBLISH 

UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

BRADLEY GELDER; BOBBY BOWICK; 

HENRY HOLMES; JESSICA DIKET, 

individually and on behalf of those 

similarly situated; SHARON COUGHLIN, 

individually, and on behalf of all others 

similarly situated; SANDRA PREZGAY; 

RON STROBO; BARKSDALE 

HORTENSTINE; TONI BECNEL; JOHN 

JOSEPH BRADY; ROBERT M. 

BECNEL; ERNEST JOHNSON; TREVOR 

HAYNES; GARRETT W. WOTKYNS; 

BRITTNI COTTLE-BANKS, an individual 

on behalf of herself and of all others 

similarly situated, 

 Petitioners, 

v. 

COXCOM INC.; COX 

COMMUNICATIONS, INC.; COX 

COMMUNICATIONS NEW ORLEANS, 

INC.; COX COMMUNICATIONS 

LOUISIANA LLC; COX NEVADA 

TELECOM LLC; COX 

COMMUNICATIONS LAS VEGAS, 

INC.; COX COMMUNICATIONS 

HOLDINGS, INC.; COX 

COMMUNICATIONS EBD HOLDINGS, 

INC.; COX COMMUNICATIONS NCC 

INC.; COX COMMUNICATIONS GULF 

COAST LLC; COX NEVADA TELECOM 

LLC; ELIZABETH ANN BRADY; DOES, 

1 through 100, exclusive, 

 Respondents. 

No. 12-706 

(D.C. No. 5:09-ML-02048-C) 

FILED 

United States Court of Appeals 

Tenth Circuit 

August 8, 2012

Elisabeth A. Shumaker 

Clerk of Court
2 

_________________________________ 

ORDER

_________________________________ 

Before LUCERO, HARTZ, and O'BRIEN, Circuit Judges. 

_________________________________ 

This matter is before the court to consider the plaintiffs’ petition for 

permission to appeal the district court’s denial of their request for class 

certification filed pursuant to Fed. R. Civ. P. 23(f) and Fed. R. App. P. 5. The 

petition is denied.1 

I

The plaintiffs filed this action against Cox Enterprises, Inc., on behalf of 

themselves as well as a putative class consisting of all persons in the United 

States who subscribe to Cox for so-called premium cable and who paid Cox a 

monthly rental fee for the accompanying set-up box. In order to receive full 

access to Cox’s premium cable services the plaintiffs had to rent the set-up box 

from Cox. The plaintiffs alleged that this constituted an illegal tie-in in violation 

of the Sherman Act, 15 U.S.C. § 1. 

 1

Under Fed. R. App. P. 5(b)(3), “[t]he petition and answer will be 

submitted without oral argument unless the court of appeals orders otherwise.” 

Because oral argument would not materially assist the determination of the 

appeal, we decide this matter without oral argument. 
3 

Multiple class actions were originally filed in 2009 in various jurisdictions 

against Cox on these same grounds. At Cox’s request, the United States Judicial 

Panel on Multidistrict Litigation consolidated the cases and transferred them to 

the Western District of Oklahoma for resolution. 

In 2011 the district court denied the plaintiffs’ motion for class 

certification. The court determined that the plaintiffs satisfied the numerosity 

(numbering more than 3 million), commonality, typicality, and adequacy of 

representation requirements of Fed. R. Civ. P. 23(a). The court, however, 

concluded that the determination of Cox’s market power was not amenable to 

proof on a classwide basis. The court also concluded that there was a lack of 

common evidence regarding the plaintiffs’ proffered methods of determining 

injury. 

The court entered its order on December 28, 2011. The plaintiffs filed a 

motion for reconsideration on January 6, 2012, which was denied on March 28, 

2012. This petition for permission was filed on April 11, 2012. 

II

Fed. R. Civ. P. 23(f) provides that a “court of appeals may permit an appeal 

from an order granting or denying class-action certification under this rule if a 

petition for permission to appeal is filed with the circuit clerk within 14 days 

after the order is entered.” 
4 

Cox argues that the plaintiffs’ petition for permission is untimely. It 

contends that, although the petition was filed within 14 days after the district 

court entered its order denying the motion for reconsideration, the petition is late 

because the motion for reconsideration merely “tolled” the time to file the 

petition. It contends that because the motion for reconsideration was filed 9 days 

after the order was entered, the plaintiffs had only 5 days remaining in which to 

file their petition with this court and because the petition was filed more than 5 

days later, the petition is untimely. It relies on this court’s opinion in Carpenter 

v. Boeing Co., 456 F.3d 1183, 1192 (10th Cir. 2006), in which this court stated 

that it assumed, without deciding, that a motion to reconsider filed within the 

time to appeal would toll the time limit in Rule 23(f). 

The statement in Carpenter, however, was not even dictum, and therefore 

precise language was not essential. The precise statement of the effect of a 

motion to reconsider can be found in United States v. Iberra, 502 U.S. 1, which 

held that when a timely motion for reconsideration is filed, the time to appeal 

begins anew. It explained: 

We believe the issue is better described as whether the [time to 

appeal] began to run on the date of the first order or on the date of 

the order denying the motion for reconsideration, rather than as a 

matter of tolling. Principles of equitable tolling usually dictate that 

when a time bar has been suspended and then begins to run again 

upon a later event, the time remaining on the clock is calculated by 

subtracting from the full limitations period whatever time ran 

before the clock was stopped. . . . However, we previously made 

clear that would-be appellants are entitled to the full 30 days after a 

motion to reconsider has been decided. United States v. Dieter, 429 

U.S. 6, 7-8 (1976) (per curiam) (‘[T]he 30-day limitation period 
5 

runs from the denial of a timely petition ... rather than from the date 

of the order itself.’). 

Id. at 4 n.2. 

Thus, the plaintiffs had 14 days from the date the district court denied the 

motion for reconsideration to file their petition in this court. Because the petition 

was filed within that time, it was timely. 

The concurrence would consider the notice of appeal timely by construing 

the Motion to Reconsider as one brought under Fed. R. Civ. P. 60, so that Fed. R. 

App.P. 4(a)(4)(B)(ii) delayed the time for appeal until the motion was decided. 

But Rule 60(b) is limited to relief from “a final judgment, order, or proceeding.” 

As the advisory committee note to the 1946 Amendment to Rule 60 states: “The 

addition of the qualifying word ‘final’ emphasizes the character of the judgments, 

orders or proceedings from which Rule 60(b) affords relief; and hence 

interlocutory judgments are not brought within the restrictions of the rule....” In 

any event, the application of Rule 60(b) is irrelevant. As observed by the 

Seventh Circuit: “[F]ederal courts long have held that a motion for 

reconsideration tolls the time for appeal, provided that the motion is made within 

the time for appeal. The practice is independent of [Appellate] Rule 4(a)(4), or 

any other rule.” Blair v. Equifax Check Services, Inc., 181 F.3d 832, 837 (7th 

Cir. 1999) (citations omitted). 
6 

III

The decision whether to grant the petition is purely discretionary. See Fed. 

R. Civ. P. 23(f); Vallario v. Vandehey, 554 F.3d 1259, 1262 (10th Cir. 2009) (this 

discretion is “‘unfettered and akin to the discretion exercised by the Supreme 

Court in acting on a petition for certiorari.’”) (quoting Fed. R. Civ. P. 23(f) 

advisory committee’s note). “[C]ourts of appeals have remained ever mindful that 

interlocutory appeals are traditionally disfavored . . . .” Id. “[T]he grant of a 

petition for interlocutory review constitutes the exception rather than the rule.” 

Id. (citations and quotations omitted). “We will exercise restraint in accepting 

Rule 23(f) petitions and will not accept such petitions as a matter of course.” Id. 

(citations and quotations omitted). 

Upon a careful review of the materials filed with this court and the 

applicable law, we conclude that this matter is not appropriate for immediate 

review. None of the concerns noted by this court in Vallario to justify an 

interlocutory appeal is present here. See id. at 1263-64. 

Accordingly, the petition is DENIED. 

Entered for the Court 

PER CURAIM 

 
12-706, Gelder v Coxcom Inc. 

O’BRIEN, J. concurring in part and concurring in the result. 

I concur in parts I and III of the Court’s opinion and concur in the result. I cannot 

join part II because it suggests a “Motion to Reconsider,” that cannot be construed to be 

one of the motions mentioned in Appellate Rule 4(a)(4)(A), might, nevertheless, extend 

the time for filing a notice of appeal. There is no need for such speculation. 

 Rule 5 of the Federal Rules of Appellate Procedure provides in relevant 

part: 

(a) Petition for Permission to Appeal. 

(1) To request permission to appeal when an appeal is within 

the court of appeals' discretion, a party must file a petition 

for permission to appeal. The petition must be filed with 

the circuit clerk with proof of service on all other parties 

to the district-court action. 

(2) The petition must be filed within the time specified by the 

statute or rule authorizing the appeal or, if no such time is 

specified, within the time provided by Rule 4(a) for filing 

a notice of appeal. 

Fed. R. App. P. 5(a)(1) and (2). 

 Civil Rule 23(f) reads as follows: “A court of appeals may permit an appeal 

from an order granting or denying class-action certification under this rule if a petition for 

permission to appeal is filed with the circuit clerk within 14 days after the order is 

entered. An appeal does not stay proceedings in the district court unless the district judge 

or the court of appeals so orders.” Fed. R. Civ. P. 23(f). 
2 

Appellate Rule 4(a) specifies in exquisite detail the kinds of motions that extend 

the time for filing a notice of appeal. In relevant part, it provides: 

(4) Effect of a Motion on a Notice of Appeal. 

(A) If a party timely files in the district court any of the 

following motions under the Federal Rules of Civil Procedure, the 

time to file an appeal runs for all parties from the entry of the order 

disposing of the last such remaining motion: 

(i) for judgment under Rule 50(b); 

(ii) to amend or make additional factual findings under 

Rule 52(b), whether or not granting the motion would alter 

the judgment; 

(iii) for attorney's fees under Rule 54 if the district 

court extends the time to appeal under Rule 58; 

(iv) to alter or amend the judgment under Rule 59; 

(v) for a new trial under Rule 59; or 

(vi) for relief under Rule 60 if the motion is filed no 

later than 28 days after the judgment is entered. 

(B)(i) If a party files a notice of appeal after the court 

announces or enters a judgment--but before it disposes of any 

motion listed in Rule 4(a)(4)(A)--the notice becomes effective to 

appeal a judgment or order, in whole or in part, when the order 

disposing of the last such remaining motion is entered. 

(ii) A party intending to challenge an order disposing 

of any motion listed in Rule 4(a)(4)(A), or a judgment's 

alteration or amendment upon such a motion, must file a 

notice of appeal, or an amended notice of appeal--in 

compliance with Rule 3(c)--within the time prescribed by this 

Rule measured from the entry of the order disposing of the 

last such remaining motion. 
3 

(iii) No additional fee is required to file an amended 

notice. 

Fed. R. App. P. 4(a)(4). 

Nowhere in Rule 4 does the term “motion for reconsideration” appear. In fact, the 

term is nowhere mentioned or even recognized in the Federal Rules of Appellate 

Procedure or the Federal Rules of Civil Procedure. We noted that omission in Hatfield v. 

Bd. of Cnty. Comm'rs for Converse Cnty., 52 F.3d 858, 861 (10th Cir. 1995).1

 Our 

Hatfield decision charted the path for dealing with such motions. It requires us to look 

past the title of the motion to its substance. If the substance of the motion can reasonably 

be construed to identify it as one of the motions mentioned in Appellate Rule 4(a)(4)(A), 

we will treat it as such and the time for filing the notice of appeal is extended; otherwise 

not. 

In this case we can easily construe plaintiff’s Motion to Reconsider as one brought 

under Fed. R. Civ. P. 60; it expressly refers to and relies upon Rule 60 as the basis for 

reconsideration. So construed, the appeal time runs from the filing of the order disposing 

of it. Fed. R. App. P. 4(a)(4)(B)(ii). That resolves this matter. Nothing need be said 

about non-qualifying motions. 

According to the majority, 

 1 See also Warren v. Am. Bankers Ins. of Florida, 507 F.3d 1239, 1243 (10th Cir. 

2007) (“For nearly twenty years. . .we have admonished counsel that the Federal Rules of 

Civil Procedure do not recognize that creature known all too well as the ‘motion to 

reconsider’ or ‘motion for reconsideration.’” We are not alone. See, e.g., Auto Serv. Co., 

Inc. v. KPMG, LLP, 537 F.3d 853, 855 (8th Cir. 2008); Hope v. United States, 43 F.3d 

1140, 1142 n. 2 (7th Cir. 1994). 
4 

[R]ule 60(b) is limited to relief from “a final judgment, order, or 

proceeding.” As the advisory committee note to the 1946 Amendment to 

Rule 60 states: “The addition of the qualifying word ‘final’ emphasizes the 

character of the judgments, orders or proceedings from which Rule 60(b) 

affords relief; and hence interlocutory judgments are not brought within the 

restrictions of the rule....” 

Majority Opinion at 5. 

The order denying class certification may not have been final, but that does not 

mean Rule 60 is inapplicable. Civil Rule 23(f), adopted in 1998, is an exception to the 

general finality rule. In authorizing an appeal from the granting or denial of class action 

certification, it necessarily recognizes that orders granting or denying class certification 

are not final, but it treats them as final for appeal purposes. In like manner, Appellate 

Rule 5, adopted in 1965, recognizes that some permitted appeals are from non-final 

orders; it, too, treats them as final and sets the time for appeal as dictated in the “statute 

or rule” (Civil Rule 23 in this case) or as provided in Appellate Rule 4. While Rule 23 

sets the appeal time at 14 days, neither it nor Appellate Rule 5, speak to motions which 

might extend the time for filing a notice of appeal. There is no need to do so because 

Rule 5 specifically refers to Rule 4. That reference would seem to make Rule 4 the place 

to look for such exceptions, as it specifically deals with them; it makes no mention of a 

"Motion to Reconsider." 

I am not convinced that the Seventh Circuit’s opinion in Blair v. Equifax Check 

Services, Inc., 181 F.3d 832, 837 (7th Cir. 1999) gives license to this panel to ignore 

Tenth Circuit cases discouraging the promiscuous use of undifferentiated motions to 

reconsider. Restricting time extensions triggered by nominal motions to reconsider to 
5 

those which are, in fact, motions identified in Appellate Rule 4, as we have historically 

done, maintains the spirit of the rules and discourages lazy practice or misuse.