August 11, 2015 Practice Points

Eleventh Circuit Rules in Ewing Indus. Corp. v. Bob Wines Nursery, Inc.

The Ewing court acknowledged that several other circuits have distinguished, criticized, or declined to follow Griffin II

by Meghan Hausler

In Ewing Indus. Corp. v. Bob Wines Nursery, Inc., a decision issued on August 3, 2015, an Eleventh Circuit panel held that a purported class action does not toll the statute of limitations for a later class action seeking to represent the same class when the original purported class action was dismissed due to the inadequacy of a class representative, regardless of whether the determination of inadequacy occurs before or as part of a decision on class certification. The panel rejected the plaintiff’s attempt to distinguish its decision in Griffin v. Singletary, 17 F.3d 356 (11th Cir. 1994) (Griffin II), and held that Griffin II controlled the instant case.

Ewing arose after Aero Financial, Inc. filed a class action in Florida state court against defendants Bob Wines Nursery, Inc. and Robert L. Wines, Jr. asserting that the defendants violated the Telephone Consumer Protection Act by sending unsolicited facsimile advertisements to the putative class.  The claims were governed by a four-year statute of limitations, and Aero brought suit in 2010, just over three years after the alleged conduct.  In 2013, the Florida state court granted summary judgment in favor of the defendants, holding that Aero lacked standing to bring the claim and that the attempted assignment of the claims to Aero was invalid. The court did not rule on the issue of class certification.

Premium Content For:
  • Litigation Section
Join - Now