In an interesting case of first impression, the District Court of Kansas held that the United States Supreme Court’s recent decision in Genesis HealthCare Corp. v. Symczk, 133 S.Ct. 1523 (2013) (which we discussed back in April), does not allow defendants to moot an FLSA claim by making an offer of judgment to a representative plaintiff pursuant to Fed. R. Civ. P. 68.  In Michaels v. City of McPherson, Kansas, 2013 WL 3895343 (D. Kan., July 29, 2013), the City/Defendant served an offer of judgment on the lone plaintiff asserting an FLSA claim while the motion for conditional certification was pending (and of course before any class members were able to opt into the class).  The Defendant then opposed Plaintiff’s motion to amend the complaint to add a new representative plaintiff on the grounds that amendment was futile, asserting that the offer of judgment mooted the Plaintiff’s claims under Genesis and deprived the Court of jurisdiction.  

Judge Murugia disagreed, distinguishing Genesis on the basis that the Court in that case had assumed, without deciding, that the plaintiff’s claims were moot, and had addressed neither the issue of whether an unaccepted offer of judgment that fully satisfies the plaintiff’s claim actually moots the claim, and whether the existence of a pending motion for conditional certification changes the analysis.

Although the Tenth Circuit has yet to address the issue of what moots a pending FLSA claim, the District Court held that the offer of judgment in this case failed to moot the Plaintiff’s claim because Defendant failed to state how it had determined the amount of the offer, making it impossible for the Plaintiff to determine if it fully satisfied his claim. Moreover, although the Tenth Circuit has yet to weigh in on this issue as well, the District Court concluded that even if the offer had fully compensated Plaintiff, it would frustrate the purpose of the FLSA to allow a defendant to “pick off” a representative plaintiff, especially where the Court has not yet had the opportunity to rule on the pending motion for conditional certification.  Accordingly, the Court determined that it retained jurisdiction over the case and granted the motion to amend.

It is, however, unclear whether the same result would have followed had the plaintiff been dilatory in seeking conditional certification (the Court expressly noted that the Plaintiff in this case had not sat on his hands), or if the conditional certification motion had not been pending.