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FILED MAY 2, 2023 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
DANIEL CAMPEAU, individually and on ) No. 38152-8-III behalf of all persons similarly situated, ) ) Respondent, ) ) v. ) PUBLISHED OPINION ) YAKIMA HMA LLC, ) ) Petitioner. )
LAWRENCE-BERREY, A.C.J. — In 2015, the Washington State Nurses Association
(WSNA) brought suit on behalf of its union members against their employer, Yakima
HMA LLC (Yakima Regional), and obtained a large judgment for back wages and
attorney fees. Our Supreme Court reversed that judgment and dismissed the action
because WSNA lacked associational standing to bring suit on behalf of its members.
Daniel Campeau, a union member of WSNA, then brought this action seeking
class certification and asserting the same claims that had been dismissed. Yakima
Regional moved to dismiss on the basis that the statute of limitations had run on Mr.
Campeau’s claims. The trial court denied the motion, concluding that the statute of
limitations had been equitably tolled by WSNA’s suit. Yakima Regional sought For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
No. 38152-8-III Campeau v. Yakima HMA
discretionary review of that ruling, and we granted review.
While review was pending, the Washington State Supreme Court clarified the
doctrine of equitable tolling. Mr. Campeau tacitly concedes that the doctrine does not
apply here. He now argues that the statute of limitations was tolled under another
doctrine, American Pipe1 tolling.
As an intermediate appellate court, we must follow Washington State Supreme
Court precedent. Recent precedent requires us to conclude that American Pipe tolling is
not available in Washington. But even if it was available, the doctrine would not apply
here. We reverse the trial court’s order and dismiss Mr. Campeau’s claims.
FACTS
Previous litigation
Mr. Campeau was employed as a home care nurse from 2011 to 2016. In 2015, his
union, WSNA, brought suit against Mr. Campeau’s employer, Yakima Regional, alleging
various wage and hour violations. That case was eventually dismissed by our Supreme
Court; we include the facts of the litigation as related in the court’s opinion:
1 Am. Pipe & Constr. Co. v. Utah, 414 U.S. 538, 94 S. Ct. 756, 38 L. Ed. 2d 713 (1974).
2 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
In April 2015, WSNA filed suit against Yakima Regional on behalf of 28 home health and hospice nurses seeking damages under the Washington Minimum Wage Act[2] and the industrial welfare act[3] for unpaid working hours, overtime hours, and missed meal periods. .... In 2017, the parties filed cross motions for summary judgment. WSNA sought partial summary judgment on liability, and Yakima Regional sought summary dismissal on the grounds that WSNA lacked associational standing to bring its claim. The trial court denied both motions, but it certified its order denying Yakima Regional’s motion for summary judgment for interlocutory discretionary review under RAP 2.3(b)(4) because there was substantial ground for a difference of opinion on the standing issue. The Court of Appeals denied the motion for discretionary review because more factual development was necessary to determine what evidence WSNA would rely on to establish damages. A nine-day bench trial began in January 2018. At trial, nine nurses testified about the work environment, the hours they worked without pay, and missed meal periods. . . . .... In its findings of fact and conclusions of law, the trial court held that WSNA had associational standing to bring the claims. . . . The court found total damages to be $1,447,758.09 and awarded WSNA attorney fees and court costs. Finally, the court ruled that Yakima Regional knowingly and willfully deprived the nurses of their pay and ordered double damages pursuant to RCW 49.52.070. Yakima Regional appealed, arguing, among other things, that WSNA lacked associational standing; WSNA cross appealed.
Wash. State Nurses Ass’n v. Cmty. Health Sys., Inc., 196 Wn.2d 409, 412-14, 469 P.3d
300 (2020). Our Supreme Court reversed the trial court and dismissed the case, holding
2 Chapter 49.46 RCW. 3 Chapter 49.12 RCW.
3 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
that WSNA did not have associational standing because the damages for the individual
nurses “were not certain or easily ascertainable.” Id. at 426. It filed its decision on
August 13, 2020. Id. at 409.
Current litigation
On October 7, 2020, Mr. Campeau filed this action against Yakima Regional,
seeking class certification and raising the same claims as in the WSNA case. The
complaint stated it sought “to vindicate the rights of the nurses who prevailed at trial in
the WSNA [c]ase, but who have still not been paid the wages they are due.” Clerk’s
Papers (CP) at 2. The complaint noted that Mr. Campeau had taken “an active role” in
the prior case, including testifying at trial. CP at 3. Yakima Regional answered that Mr.
Campeau’s claims were barred by the statute of limitations and moved to dismiss on the
pleadings under CR 12(c).
Mr. Campeau argued that the court should apply equitable tolling, relying on
Washington authority applying federal law and our Supreme Court’s decision in In re
Personal Restraint of Fowler, 197 Wn.2d 46, 479 P.3d 1164 (2021). He argued that those
authorities did not require him to show that bad faith by Yakima Regional interfered with
his ability to timely file suit.
4 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
At oral argument before the trial court, Mr. Campeau reiterated, “We are not
alleging any bad faith or deception on the part of [Yakima] Regional. We rely on an
alternative series of equitable tolling cases.” Rep. of Proc. (RP) at 24-25. He also
acknowledged that there had not been any barrier to the nurses joining or intervening in
the WSNA case or filing their own claims previously, beyond it being an “unnecessary
multiplication of litigation.” RP at 26. The trial court ruled that the elements for
equitable tolling had been satisfied and denied Yakima Regional’s motion to dismiss.
Appellate procedure
Yakima Regional petitioned this court for discretionary review, which we
granted under RAP 2.3(b)(1). Comm’r’s Ruling, Campeau v. Yakima HMA, LLC,
No. 38152-8-III,
at 10 (Wash. Ct. App. June 16, 2021). While review was pending, our Supreme
Court decided Fowler v. Guerin, 200 Wn.2d 110, 123, 515 P.3d 502 (2022), in which it
clarified that the more lenient standard for equitable tolling set forth in Personal Restraint
of Fowler was to be applied in the context of personal restraint petitions only. In civil
suits, plaintiffs were still required to show that a defendant’s bad faith interfered with
timely filing suit. Id. at 125.
5 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
ANALYSIS
EQUITABLE TOLLING
Yakima Regional contends the statute of limitations has run on Campeau’s claims
and that equitable tolling is not appropriate.4 We agree.
We review a trial court’s grant of equitable relief de novo. Niemann v. Vaughn
Cmty. Church, 154 Wn.2d 365, 375, 113 P.3d 463 (2005). In civil cases, Washington has
consistently required a plaintiff seeking equitable tolling of the statute of limitations to
demonstrate
(1) the plaintiff has exercised diligence, (2) the defendant’s bad faith, false assurances, or deception interfered with the plaintiff’s timely filing, (3) tolling is consistent with (a) the purpose of the underlying statute and (b) the purpose of the statute of limitations, and (4) justice requires tolling the statute of limitations.
Fowler v. Guerin, 200 Wn.2d at 125 (describing the four predicates as the Millay 5
standard). Federal courts follow a more “relaxed” standard, which our Supreme Court
has followed only in the setting of personal restraint petitions, where it has inherent
4 Although not explicitly discussed by the parties, the statute of limitations is three years for bringing a claim for unpaid wages. RCW 4.16.080(3); Seattle Pro. Eng’g Emps. Ass’n v. Boeing Co., 139 Wn.2d 824, 837-38, 991 P.2d 1126 (2000). 5 Millay v. Cam, 135 Wn.2d 193, 955 P.2d 791 (1998).
6 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
authority to extend time to file a habeas-style challenge to a conviction. Id. at 123-24
(citing Pers. Restraint of Fowler, 197 Wn.2d at 53).
Campeau tacitly concedes that equitable tolling is not available under Washington
law and instead urges this court to apply the tolling rule announced in American Pipe &
Construction Co. v. Utah, 414 U.S. 538, 94 S. Ct. 756, 38 L. Ed. 2d 713 (1974). Yakima
Regional contends that American Pipe tolling is not available in Washington because it
would relieve a plaintiff of a required predicate for tolling the statutes of limitations in
civil actions—that a defendant’s bad faith interfered with the plaintiff timely filing suit.
We agree.
AMERICAN PIPE TOLLING
In American Pipe, the State of Utah commenced a putative class action suit against
American Pipe and Construction Company and others, alleging violations of the Sherman
Act, 15 U.S.C. § 1. 414 U.S. at 540-41. The suit was filed 11 days before the statute of
limitations ran. Id. at 541-42. The trial court declined to certify the case as a class action
because the plaintiffs were not so numerous that joinder was impracticable. Id. at 543.
Eight days after the order denying class action status, 60 Utah public agencies and
entities, members of the original putative class, moved to intervene in the action. Id. at
7 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
543-44. The trial court denied the motions, concluding the statute of limitations had run
and had not been tolled by the filing of the class action on their behalf. Id. at 544.
The United States Supreme Court reversed, holding that where class certification
was denied solely on the grounds of numerosity, “the commencement of the original class
suit tolls the running of the statute for all purported members of the class who make
timely motions to intervene after the court has found the suit inappropriate for class action
status.” Id. at 553. It reasoned that requiring individual class members to preemptively
“file protective motions to intervene or to join in the event that a class was later found
unsuitable” would run contrary to a principal purpose of the class action procedure,
efficiency and economy of litigation. Id.
A. American Pipe tolling is not available in Washington
In Fowler v. Guerin, our Supreme Court explained that “statutes of limitation
reflect the importance of finality and settled expectations in our civil justice system.” 200
Wn.2d at 118. And “‘[a] statutory time bar is a legislative declaration of public policy
which the courts can do no less than respect, with rare equitable exceptions.’” Id.
(internal quotation marks omitted) (quoting Bilanko v. Barclay Ct. Owners Ass’n, 185
Wn.2d 443, 451-52, 375 P.3d 591 (2016)). The court “cautioned against broadly applying
equitable tolling in a manner that ‘would substitute for a positive rule established by the
8 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
legislature a variable rule of decision based upon individual ideas of justice.’” Id. at 119
(quoting Leschner v. Dep’t of Lab. & Indus., 27 Wn.2d 911, 926, 185 P.2d 113 (1947)).
In emphasizing the necessity of the second predicate of the four-part Millay standard, the
court wrote, “[B]y allowing equitable tolling upon a showing that the defendant engaged
in bad faith, false assurances, or deception, the Millay standard properly recognizes that a
defendant should lose the benefits of finality provided by statutes of limitation only when
that defendant has engaged in conduct that justifies making an exception.” Id. at 121.
Later in its opinion, the court reiterated this point: “‘In the absence of bad faith on the
part of the defendant . . . equity cannot be invoked.’” Id. at 123 (emphasis added)
(quoting Douchette v. Bethel Sch. Dist. No. 403, 117 Wn.2d 805, 812, 818 P.2d 1362
(1991)).6
American Pipe tolling does not require a plaintiff to show that the defendant
engaged in conduct that interfered with the plaintiff’s timely filing. And because Fowler
6 We note some ambiguity here. A proper reading of the majority opinion does not require a showing of the defendant’s “bad faith.” Rather, equitable tolling may be found if the defendant “engaged in conduct” that “interfered with the plaintiff’s timely filing.” Fowler v. Guerin, 200 Wn.2d at 121, 125 (linking the conduct to the other requirement of the second predicate). This reading is consistent with Justice Yu’s instruction: “[C]ourts must make a fact-specific determination in each case where equitable tolling is sought, based on what the defendant knew or should have known, and how the defendant’s conduct affected the plaintiff’s ability to timely file their claim.” Id. at 126 (Yu, J., concurring).
9 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
v. Guerin prohibits equitable tolling of the statute of limitations in a civil case without
such a showing, American Pipe tolling is not available in Washington.
B. American Pipe tolling would not apply
As an alternative basis for our decision, even if American Pipe tolling was
available in Washington, that doctrine would not apply here.
Before today, our courts have not decided whether American Pipe tolling is
available under Washington law. But the occasional references to the doctrine indicate
that type of tolling is limited to class actions.
Our Supreme Court has explained that American Pipe tolling stays “‘the
limitations period on viable claims while the trial court determines the parameters of the
class in any possible class action.’” Pickett v. Holland Am. Line-Westours, Inc., 145
Wn.2d 178, 195, 35 P.3d 351 (2001) (quoting Anderson v. Unisys Corp., 47 F.3d 302,
308 (8th Cir. 1995)). And as we have previously noted, the American Pipe rule “makes
sense only in the context of a class action.” Columbia Gorge Audubon Soc’y v. Klickitat
County, 98 Wn. App. 618, 625, 989 P.2d 1260 (1999).
Here, the initial lawsuit brought by WSNA was not a class action. Thus, the
American Pipe rule does not apply. Mr. Campeau nonetheless argues that the WSNA
litigation was just like a class action because it was a representative action. We disagree.
10 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
In a class action, class certification is a threshold issue that is to be determined
“[a]s soon as practicable after the commencement of an action brought as a class action.”
CR 23(c)(1); see also FED. R. CIV. P. 23(c)(1)(A) (“At an early practicable time after a
person sues or is sued as a class representative, the court must determine by order whether
to certify the action as a class action.”). In the WSNA litigation, our Supreme Court
specifically identified early class certification as one of the procedural safeguards of class
actions. Wash. State Nurses Ass’n, 196 Wn.2d at 422-23. It noted that “[a]ssociational
standing cases do not have the same protections.” Id. at 424.
This case highlights an important difference between suits brought on the basis of
associational standing and class actions. In the WSNA case, the question of associational
standing was not finally decided until our Supreme Court issued its decision in 2020, five
years after the action was commenced and after the merits of the case were fully litigated.
Id. at 412-14. Because the associational standing question depended on the evidence on
which WSNA would rely to establish damages, it was not amenable to interlocutory
review and was not a threshold issue like class certification would be. Id. at 413, 424-25.
Applied to class actions only, American Pipe tolling will extend the statute of
limitations for weeks or months. Applied to associational standing, American Pipe tolling
would extend the statute of limitations for years. Thus, to apply American Pipe tolling to
11 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
associational standing would significantly interfere with the important legislative policies
the statute of limitations seeks to further.
C. No “unanticipated jurisdictional black hole”
Mr. Campeau next contends we should apply American Pipe tolling because our
Supreme Court’s decision in Washington State Nurses Association created an
“unanticipated jurisdictional black hole” that prejudiced the nurses. Answer to Yakima
HMA’s Opening Br. at 9. We disagree.
The prior ruling could have been anticipated
Yakima Regional challenged WSNA’s associational standing throughout the prior
litigation.7 “Associational standing requires that damages be certain, easily ascertainable,
and within the knowledge of the defendant.” Wash. State Nurses Ass’n, 196 Wn.2d at
415. The Supreme Court’s decision did not create new law; rather, it “decline[d] to alter”
the existing associational standing test. Id. at 425.
At some point prior to trial, WSNA should have known there was a real risk it
could not meet this standard. To the extent Mr. Campeau and the other union members
7 In its motion to dismiss, Yakima Regional represented that “WSNA’s lack of standing was asserted in [Yakima Regional’s] Answer and at every stage of the lawsuit including summary judgment and trial.” CP at 34 n.4.
12 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
did not anticipate this risk, it has nothing to do with Yakima Regional’s conduct; rather, it
has to do with communications between WSNA and its union members.
No jurisdictional black hole
Our Supreme Court observed that “WSNA chose to bring these claims using
associational standing, which has limitations under our case law.” Id. at 415. The court
noted that “[o]ther routes to collective action . . . were not foreclosed for the nurses,”
including a class action under CR 23 or a collective action under the Fair Labor Standards
Act of 1938, 29 U.S.C. §§ 201-219. Id. at 425. As Mr. Campeau acknowledged to the
trial court, the 28 individual nurses could also have joined in WSNA’s case from the
beginning or intervened when Yakima Regional raised the associational standing issue.
For these reasons, we disagree with Mr. Campeau’s contention that the Supreme
Court’s prior decision created an “unanticipated jurisdictional black hole.”
CONCLUSION
American Pipe tolling is not available in Washington because tolling of the statute
of limitations in civil cases requires a showing that the defendant’s conduct interfered
with the plaintiff’s ability to timely file. But even if American Pipe tolling was available,
it would not apply to an action brought by an association on behalf of its members. We
conclude that Mr. Campeau’s wage claims against Yakima Regional were not tolled and
13 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
No. 38152-8-111 Campeau v. Yakima HMA
are barred by the statute of limitations. We reverse the superior court's order and dismiss
Mr. Campeau's claims.
Lawrence-Berrey, A~J. ' · WE CONCUR:
Pennell, J.
Staab, J.