The Southern District of Ohio recently weighed in on a currently contentious class action issue: whether a Rule 68 Offer of Judgment made to the named plaintiff in a putative class action, prior to the filing of a motion for certification, makes the entire case moot and non-justiciable. In a departure from the recent trend within the Sixth Circuit, the court concluded that such an offer does not moot the case.
Prior entries on this blog have noted the sundry but related issues around Rule 68 offers and class actions. Last year, the Eastern District of Michigan held that a Rule 68 offer of complete relief was capable of mooting the entire case. However, the Eleventh and Fifth Circuits have recently held that an unaccepted Rule 68 offer to the named plaintiffs in a putative class action does not moot the case. The Sixth Circuit has yet to weigh in on this precise issue.
The latest case from the Southern District of Ohio, Peters v. Credit Protection Association LP (“CPA”), dealt with a putative class action under the Telephone Consumer Protection Act (“TCPA”). Prior to the filing of a motion for certification, CPA made an offer of judgment to the named plaintiff, which he allowed to lapse. Subsequently, the plaintiff sought additional discovery, CPA moved to dismiss the case as moot (relying on the lapsed Rule 68 offer), and Peters sought to strike the offer. The district court analyzed the combined motions using a two-step inquiry: (1) whether the offer of judgment was complete, insofar as it gave the plaintiff everything he requested by way of relief as an individual; and, if so, (2) whether the individual and uncertified claims must be dismissed as moot.
Turning to the first inquiry, the court stated that a Rule 68 offer must providecomplete relief to the plaintiff in order to render a claim moot. In its Rule 68 offer, CPA had offered the plaintiff everything he had asked for, except declaratory relief. The court held this lack of declaratory relief meant that CPA’s Rule 68 offer was not a complete offer of judgment, and the plaintiff’s request for relief still presented a live “case or controversy.” Therefore, the claim was not moot.
Having decided the motions based on the first step of its analysis, the court nonetheless turned to the general effect of offers of judgment on a putative class, determining that “[e]ven if Defendant’s Rule 68 offer did moot Plaintiff’s individual claims, the class claims remain alive, and the named plaintiff . . . retains the ability to pursue them.” The court relied on its own precedent, here, having previously held that defendants cannot use Rule 68 offers prior to a motion for certification to end class actions, in part because this would severely curtail litigants’ ability to bring class actions under Rule 23. The court noted it had the support of four other circuits in its reasoning, and that only the Seventh Circuit had diverged from the consensus to hold that putative class actions can be mooted with Rule 68 offers.
Finally, the court acknowledged that it was weighing in on both recent and current Supreme Court litigation. It first distinguished the Supreme Court’s recent ruling inGenesis Healthcare Corp. v. Symczyk—which allowed a Rule 68 offer to moot a Fair Labor Standards Act (“FLSA”) collective action case—as limited to FLSA cases. Next, the court rejected CPA’s request to stay consideration of its motion to dismiss in light of the High Court’s recent grant of certiorari in Gomez v. Campbell-Ewald Co., a Ninth Circuit case presenting two issues: (1) whether an offer of complete relief moots a plaintiff’s claim, and (2) whether this answer differs in the pre-certification class action context.
For the moment, the Southern District of Ohio’s recent decision is not a momentous step in either direction as to the power of Rule 68 offers, other than to serve as a cautionary tale that such offers must truly be complete in order to withstand judicial scrutiny and force the dismissal of a case (even if only of one person’s claim). However, the court’s analysis of the circuit split on the broader capabilities of Rule 68 offers in the pre-certification context indicates the divergent views likely to force a final determination of this issue at the Supreme Court this year. Stay tuned as this issue continues to develop.