Filing an bare-bones motion for class certification alongside the class-action complaint is one tactic to avoid the mooting effect of a Rule 68 offer. But what are defendants and the courts supposed to do with such a motion and its flimsy thread-bare recitals of the Rule 23 requirements?

Federal judges do not like motions lingering on their dockets longer than six months; it hurts their stats and gets reported to Washington.  See, e.g., Singer v. Illinois State Petroleum Corp., 2013 wl 2384314, at *2 (N.D. Ill. May 24, 2013) (“[T]his Court is unwilling to contemplate the prospect of shattering its unbroken record of more than three decades of reporting no ‘stale’ pending motions in its statutorily-required September 30 report where, as here, such purported staleness is occasioned by lawyer-caused delays rather than by this Court’s failing to act on a live motion.”).

Instead of agreeing to an arbitrarily fast six-month class-cert discovery and briefing schedule – all to avoid the prospect of a “stale” class certification motion – here are some better options:

Immediately dismiss the class-cert motion without prejudice to refiling later.

  • Radha Geismann v. BeThin, Inc., 2015 WL 2182737 (E.D. Mo. May 11, 2015) (“The Court sees no benefit in allowing a motion to languish on the dockets while waiting for discovery to proceed which may take several months.  Therefore, Plaintiff’s Motion for Class Certification will be dismissed with leave to refile once an offer of judgment has been made necessitating such a filing or when the facts have developed enough to allow for a ruling on class certification.”)
  • Physicians Healthsource, Inc. v. Purdue Pharma L.P., 2013 WL 4782378, *1 (D.Conn. Sep 06, 2013) (“[I]t does not follow that an initial, under-developed motion—like the one at bar—must linger on the docket while the court awaits the filing of a later, fully-developed motion following discovery . . . .  To the extent that class allegations are preserved from mootness by the filing of a premature motion for certification, they are no less preserved by an order denying that motion without prejudice to renewal before final judgment.”)
  • 3081 Main Street, LLC v. Business Owners Liability Team LLC, 2012 WL 4755048, *1 (D.Conn. Sep 24, 2012) (“[T]here is nothing to be gained by formally staying plaintiff’s current, underdeveloped motion while the court awaits the filing of a later, fully-developed motion. An order denying certification, much like an order granting certification, is ‘inherently tentative’ and the court ‘remains free to modify it in light of subsequent developments in the litigation.’ Therefore, plaintiff’s motion for class certification is denied without prejudice to renewal after discovery.”) (citations omitted)

Withdraw the motion and stipulate that defendant will not “pick off” the named plaintiff.  

  • Kurgan v. Chiro One Wellness Centers LLC, 2014 WL 642092 (N.D.Ill. Feb 19, 2014) (noting that in the Seventh Circuit, often “motions are withdrawn shortly after the initial status hearing because defendants are willing to enter into a stipulation that they will not attempt to ‘pick off’ the named plaintiff in an early settlement”)