Continuous Michigan Class-Action Tolling for § 1983 Takings Claims When a Putative Class Case Is Reopened (MCR 3.501(F))

1. Introduction

Brent Perry v. St. Joseph Cnty., Mich. arises out of Michigan tax-foreclosure practice in which counties kept surplus proceeds after selling foreclosed property for more than the delinquent tax debt. Louis Perry’s property was foreclosed in March 2014; St. Joseph County later sold it for $29,500 above the debt and retained the surplus.

Louis Perry’s heir and estate representative, Brent Perry, later sued the County and two treasurers under 42 U.S.C. § 1983 (and Michigan law), alleging an unconstitutional taking (and related theories) based on retention of the surplus. The decisive appellate issue was not the merits of the takings theory, but whether Perry’s § 1983 claims were time-barred or instead tolled by earlier, sprawling class-action litigation: Wayside Church v. Van Buren County.

The district court dismissed the federal claims as untimely, reasoning that the clock ran during a multi-year gap between dismissal of Wayside and its later reopening. The Sixth Circuit vacated and remanded, holding that Michigan’s class-action tolling rule can deem tolling continuous from the filing of the putative class complaint when later procedural events “supersede” the earlier “final disposition.”

2. Summary of the Opinion

The Sixth Circuit held that:

  • Michigan’s three-year limitations period for property injury applies to Perry’s § 1983 claims, and Michigan tolling rules apply so long as not inconsistent with § 1983 policy.
  • Under MCR 3.501(F)(1), filing a complaint “asserting a class action” tolls claims of all persons “within the class described in the complaint,” regardless of whether a class is ever certified.
  • Although a dismissal is a “final disposition” restarting the clock under MCR 3.501(F)(2), if that restart-triggering event is later “superseded” (here, by reopening of the case), MCR 3.501(F)(3) deems the limitations period to have been tolled continuously from commencement.
  • The district court erred by refusing tolling on the theory that Wayside was an invalid class action under MCR 3.501(I)(1). The Sixth Circuit reasoned that invalidity goes to when tolling ends under (F)(2), not whether tolling begins under (F)(1).
  • Federal case law limiting “federal class action tolling” (notably Wyser-Pratte Mgmt. Co. v. Telxon Corp.) did not bar application of Michigan’s tolling rule here.
  • The case was remanded for the district court to determine, in the first instance, whether St. Joseph County had the requisite “notice” for tolling under Michigan law, as described in Cowles v. Bank W. and Hill v. City of Warren.

3. Analysis

A. Precedents Cited

1) Wayside Church v. Van Buren County (2017 and 2025)

The opinion treats Wayside Church v. Van Buren County, 847 F.3d 812 (6th Cir. 2017) as the procedural hinge: the original complaint (filed December 2014) purported to sue Van Buren County and a putative defendant class of “all other counties” alleged to have retained tax-sale surplus. The case was dismissed, later vacated and remanded for dismissal for lack of subject-matter jurisdiction, and then—critically—reopened in March 2019 due to intervening Supreme Court precedent, as discussed in Wayside Church v. Van Buren County, No. 24-1598, 2025 WL 2829601, at *1-3 (6th Cir. Oct. 6, 2025).

The Sixth Circuit in Perry uses the reopening to trigger MCR 3.501(F)(3): reopening “superseded” the earlier dismissal orders, so tolling is “deemed” continuous from the original filing date. In other words, Wayside is not merely factual background; it supplies the tolling timeline.

2) Wershe v. City of Detroit

Wershe v. City of Detroit, 112 F.4th 357 (6th Cir. 2024) provides the doctrinal framework for limitations and tolling in § 1983 cases: federal courts borrow the forum state’s limitations period and generally apply the state’s tolling rules unless they conflict with federal policy. The Perry panel cites Wershe both for de novo review and for the “borrowed” limitations/tolling approach.

3) Wyser-Pratte Mgmt. Co. v. Telxon Corp.

St. Joseph County invoked Wyser-Pratte Mgmt. Co. v. Telxon Corp., 413 F.3d 553 (6th Cir. 2005) for the proposition that federal class-action tolling does not apply to defendants not named in the class complaint. The court distinguished Wyser-Pratte on two grounds:

  • Wyser-Pratte involved a defendant not named as a party at all, whereas St. Joseph County was within the putative defendant class described in Wayside.
  • Wyser-Pratte is a federal tolling rule; Perry turns on Michigan’s tolling rule (MCR 3.501(F)) borrowed under § 1983 principles.

4) Heard v. Strange and Bishop v. Children's Ctr. for Developmental Enrichment

Heard v. Strange, 127 F.4th 630 (6th Cir. 2025) supports the idea that state tolling rules need not mirror federal equitable tolling and are not “inconsistent” merely because they differ from federal tolling doctrine. The court also cites Bishop v. Children's Ctr. for Developmental Enrichment, 618 F.3d 533 (6th Cir. 2010) to underscore that tolling can coexist with, and indeed serve, federal constitutional interests—here, the vindication of a § 1983 takings claim.

5) Cowles v. Bank W. and Hill v. City of Warren

The remand pivots on Michigan’s notice prerequisite for class-action tolling, articulated in Cowles v. Bank W., 719 N.W.2d 94 (Mich. 2006): tolling requires that the defendant have notice of the class member’s claim and the “number and generic identities” of potential plaintiffs. The panel further relies on Hill v. City of Warren, 740 N.W.2d 706 (Mich. Ct. App. 2007), which takes a functional view: if a defendant is generally aware of the claims and parties it will face, the absence of explicit naming should not bar later participation/tolling effects.

Perry is notable because the defendant is not a single named entity from the outset; rather, it is a member of a putative defendant class. The panel notes Michigan appellate courts have not directly applied Cowles/Hill to a putative defendant class member, and thus the Sixth Circuit “predicts” Michigan would apply the same notice logic in that context.

6) Whitlock v. FSL Mgmt., LLC

Whitlock v. FSL Mgmt., LLC, 843 F.3d 1084 (6th Cir. 2016) is cited for the general principle that federal courts may predict how a state’s highest court would resolve an open question of state law. Here, that predictive step concerns applying Cowles/Hill notice doctrine to putative defendant-class members.

B. Legal Reasoning

  1. Start with borrowed limitations and tolling for § 1983. Following Wershe, the court applies Michigan’s three-year property-injury limitations period and Michigan tolling rules, unless those tolling rules undermine § 1983’s policies.
  2. MCR 3.501(F)(1): tolling begins with the complaint’s class description. The text tolls claims for all persons “within the class described in the complaint” upon “commencement” of a class action. The panel treats that text as decisive: certification is not a prerequisite to the tolling start.
  3. MCR 3.501(F)(2) and (F)(3): dismissal can restart the clock, but reopening can erase that restart. The district court’s 2015 dismissal was a “final disposition” that would ordinarily restart the limitations period under (F)(2). But (F)(3) provides a “winding back” mechanism: if the restart-triggering circumstance is “superseded” by later order or reversal, tolling is deemed continuous from commencement. Reopening Wayside in 2019 was such a superseding order.
  4. Rejecting the “invalid class action” argument. The County (and district court) reasoned that because Wayside sought money from individual members of a defendant class, it could not be maintained as a class action under MCR 3.501(I)(1), and therefore could not toll under (F). The Sixth Circuit rejected that move as inconsistent with the structure of (F): defects in class viability are addressed by events that end tolling (e.g., denial of certification), not by rewriting (F)(1) to require a valid/certified class at the outset. The opinion points to MCR 3.501(F)(2)(c) (order denying certification) as textual confirmation.
  5. No federal-policy conflict. Relying on Heard and Wershe, the court frames the relevant “inconsistency” inquiry as whether Michigan’s tolling rule undermines the federal cause of action—not whether it matches federal tolling doctrine. The court finds no undermining; tolling supports adjudication of alleged constitutional takings.
  6. Remand on notice. Even if (F) applies, Michigan law requires adequate notice to the defendant of the claims and general plaintiff identities. Whether St. Joseph County had such notice—given the putative defendant-class structure of Wayside—is left to the district court.

C. Impact

  • Strengthened tolling protection for opt-outs and absent class members in long-running litigation. The decision confirms that, under Michigan’s MCR 3.501(F), tolling can remain effective through complex procedural histories (dismissal, reopening, amended complaints, and eventual settlement), and can protect individuals who later opt out and sue independently.
  • Limits a common defense strategy in surplus-proceeds litigation. Counties facing § 1983 surplus-retention claims may find it harder to prevail on limitations defenses when a prior putative class action encompassed the claimant and defendants—especially if later orders “supersede” earlier dispositions.
  • Signals openness to tolling against members of a putative defendant class—subject to notice. The court’s prediction that Michigan would apply Cowles/Hill notice principles to putative defendant-class members may broaden tolling exposure in cases where defendants are aggregated by description rather than individually named, but the remand emphasizes that notice is not assumed.
  • Doctrinal clarification for § 1983 borrowing. By distinguishing federal class-action tolling cases like Wyser-Pratte, Perry reinforces that the key question is state tolling consistency with § 1983’s purposes, not alignment with federal tolling doctrines.

4. Complex Concepts Simplified

42 U.S.C. § 1983
A federal statute allowing individuals to sue state/local actors for violating federal constitutional or statutory rights. Here, the asserted right is grounded in the Constitution’s protections against uncompensated takings.
Borrowing a statute of limitations
§ 1983 does not supply its own limitations period, so federal courts use the forum state’s most analogous limitations period (here, Michigan’s three-year period for property injury).
Tolling
A rule that “stops the clock” on the limitations period for a time—so a claim filed later can still be timely.
MCR 3.501(F) class-action tolling
Michigan’s rule that, when a class action is commenced, limitations are tolled for people within the class described in the complaint. Tolling typically ends upon certain events (like final disposition or denial of certification), but can be deemed continuous if a later order supersedes the event that restarted the clock.
“Superseded” under MCR 3.501(F)(3)
If the event that restarted limitations (e.g., a dismissal) is later undone or overtaken by a later order (e.g., reopening), Michigan law can treat tolling as having never stopped in the first place.
Putative class / putative defendant class
“Putative” means proposed but not yet certified. A putative defendant class describes defendants by category (e.g., “all other counties”), which raises special notice questions: did an individual county have sufficient notice that it was within the described defendant group and would face claims?
Notice prerequisite (Cowles/Hill)
Tolling is not purely mechanical; defendants must have fair notice of the claims and the general scope of who might sue, so tolling does not become an unfair surprise.

5. Conclusion

The Sixth Circuit’s decision establishes a practical and text-driven rule for Michigan-based § 1983 litigation: when a putative class action is commenced, MCR 3.501(F) can toll limitations for absent class members described in the complaint, and if later proceedings “supersede” a dismissal or other “final disposition,” tolling can be deemed continuous from the start. The court further rejects the idea that alleged class invalidity under MCR 3.501(I)(1) negates tolling ab initio, while reserving the fact-intensive question whether the defendant county received the notice required by Cowles v. Bank W. and Hill v. City of Warren.

On remand, the timeliness of Perry’s § 1983 takings claim will turn less on arithmetic and more on whether St. Joseph County had legally sufficient notice from the earlier Wayside litigation—an issue that may shape how broadly class-action tolling can operate when defendants are identified by class description.