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Ford v. Chartone10/30/2003
onary review under Federal Rule of Civil Procedure 23 (f); see In re Lorazepam & Clarazepate Antitrust Litig., 351 U.S. App. D.C. 223, 289 F.3d 98 (2002), they do not entitle Ford to an appeal as of right here.
The so-called "death knell" doctrine was a judicially-created exception to the general rule of finality. The doctrine purported to permit immediate appellate review of an order denying class certification if the appellate court "determines the individual plaintiff cannot feasibly continue to litigate his claim alone. . . ." Kanelos, supra, 346 A.2d at 249 (citing Graci v. United States, 472 F.2d 124, 126 (5th Cir. 1973)). This court has never applied the "death knell" doctrine; in Kanelos we dismissed the appeal, finding that the appellant failed to show that she satisfied the doctrine's requirements. Three years later, the United States Supreme Court unanimously ruled that the denial of class action certification was not appealable under the "death knell" doctrine absent the trial judge's certification required by 28 U.S.C. § 1292 (b). See Coopers & Lybrand v. Livesay, 437 U.S. 463 (1978). Coopers & Lybrand sounded the death knell for the "death knell" doctrine. See Shakman v. Democratic Org. of Cook County, 919 F.2d 455, 460 (7th Cir. 1990); Loya v. Immigration & Naturalization Serv., 583 F.2d 1110, 1112 (9th Cir. 1978). As this court has not previously allowed an appeal under the "death knell" doctrine, we decline Ford's implicit invitation to do so now in the absence of any statutory warrant for it. Instead we follow the Supreme Court in rejecting the doctrine as a basis on which to take an interlocutory appeal of an order denying class certification as of right.
Nor are orders denying class certification reviewable under the "collateral order" doctrine, for the issues they resolve are not completely separate from the merits of the action. See generally Rolinski, 828 A.2d at 747. On the contrary, as the Supreme Court explained in rejecting such a claim, a class determination "generally involves considerations that are 'enmeshed in the factual and legal issues comprising the plaintiff's cause of action.'" Coopers & Lybrand, 437 U.S. at 469 (citation omitted). "The typicality of the representative's claims or defenses, the adequacy of the representative, and the presence of common questions of law or fact are obvious examples" of the overlap. Id. at n.12 (quoting 15 C. WRIGHT, A. MILLER, & E. COOPER, FEDERAL PRACTICE AND PROCEDURE § 3911, p. 485 n. 45 (1976)).
For the foregoing reasons, the application for permission to appeal is denied.
So ordered.
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