Rule 68: applications to other federal statutory class actions following Genesis
Last week, Magistrate Judge Maughmer issued an order in Goans Acquisition, Inc. v. Merchant Solutions, LLC, No. 12-00539, 2013 WL 5408460 (W.D. Mo. Sept. 26, 2013) tackling a popular class action topic these days: To what extent does an unaccepted Rule 68 Offer of Judgment moot a putative class action claim? Although the Supreme Court dodged this ultimate question under the FLSA context in Genesis (read about our previous posts about that case its aftermath here, here, and here), in Goans, Judge Maughmer held that Goans’ claim under the Telephone Consumer Protection Act (“TCPA”), both on an individual and class basis, was mooted by the unaccepted offer. Slip op. at *3 ( “Most federal circuits have found that an offer of judgment that would provide all the relief a plaintiff requests (or is entitled to) has the effect of mooting the action even if the offer is not accepted.”) The court did, however, find that plaintiff’s conversion claim was not addressed by the defendant’s Rule 68 offer and therefore survived a motion to dismiss.
There are a couple of interesting aspects to this decision worth discussing. First, while the court did not cite the Supreme Court’s recent decision in Genesis, it is the first post-Genesis case in the 8th Circuit which holds that an unaccepted Rule 68 offer can moot a putative class claim prior to class certification. Here, the court relied upon the Seventh Circuit’s decision in Damasco v. Clearwater Corp., 662 F.3d 891, 896 (7th Cir. 2011) and found that a finding of mootness was appropriate and not prejudicial to a putative class because the case had been pending for over two and half years before the offer of judgment was tendered, which in the court’s view was “more than enough time [for plaintiff] to have compiled a record to support class certification.” Slip op. at *7.
Further, with respect to the operation of Rule 68 offers and particular relief sought, the plaintiff argued that their TCPA claim was not moot because the offer did not address the injunctive relief requested; specifically, a preliminary and permanent injunction from all unsolicited fax transmissions. The court noted that “while the argument has some superficial appeal,” because the injunctive relief requested was outside the court’s jurisdiction (the statute did not authorize such “an unlimited prophylactic prohibition”) the failure of the offer of judgment to specifically address the claim was meaningless. Slip op at *4-5, citing Jones v. CBE Group, Inc., 215 F.R.D. 558 (D.Minn.2003).