On April 6, 2016, the Third Circuit, in Weitzner v. Sanofi Pasteur, Inc., considered whether an offer of judgment under Federal Rule of Civil Procedure 68 moots a plaintiff’s entire action, including class claims, thereby depriving a district court of subject matter jurisdiction. The opinion, authored by Judge Scirica, held that, pursuant to the Supreme Court’s recent decision in Campbell-Ewald Company v. Gomez, 136 S. Ct. 663 (2016), an unaccepted offer of judgment does not moot a case.
Plaintiff Ari Weitzner, a physician from New York, together with his professional corporation, filed a putative class action against Sanofi Pasteur, Inc. and Vaxserve Inc., alleging violations of the TCPA. Plaintiffs alleged that defendants sent over 10,000 faxes to plaintiffs and other class members without prior invitation or permission. After the filing of the complaint, but before the filing of any motion for class certification, defendants made offers of judgment under Rule 68 to both Weitzner and his professional corporation. Defendants offered to pay $1,500 for each allegedly violative fax. Defendants also offered to pay costs and to stop sending faxes in violation of the TCPA. When plaintiffs failed to respond within the allotted time under the Rule, defendants moved to dismiss for lack of subject matter jurisdiction. The district court denied the motion, and defendants moved to certify the order for interlocutory appeal. The district court certified the question, and the Third Circuit affirmed the lower court’s ruling.
In its ruling, the Third Circuit relied on the Supreme Court’s recent Campbell-Ewald decision. In Campbell-Ewald, the Supreme Court held that an unaccepted offer to settle a named plaintiff’s individual claims doesn’t moot a case where the complaint seeks relief on a class-wide basis. The Court further held that an unaccepted Rule 68 offer has no force.
The Third Circuit noted that Campbell-Ewald overruled that circuit’s previous jurisprudence that an offer of complete relief would moot a plaintiff’s personal claim. Instead, under Campbell-Ewald, it was now clear that an unaccepted settlement offer, made before class certification, would moot neither a plaintiff’s individual claims nor the whole case. However, the Third Circuit was careful to rule narrowly and expressly declined to elaborate on any further impact Campbell-Ewald might have.