Last Tuesday we covered a landmark 11th Circuit opinion dealing with the recent practice of attempting to "pick off" class reps via unaccepted Rule 68 offers.
Not one to let things sit for very long, Magistrate Judge Goodman has already weighed in:
However, this is no longer a viable defense strategy in the Eleventh Circuit. This past Monday, on December 1, 2014, the Eleventh Circuit definitively stated that an unaccepted Rule 68 offer of judgment does not moot a plaintiff’s case. Stein v. Buccaneers Ltd. Pʹship, No. 13‐15417, 2014 WL 6734819, at *3 (11th Cir. Dec. 1, 2014) (“Giving controlling effect to an unaccepted Rule 68 offer—dismissing a case based on an unaccepted offer as was done here—is flatly inconsistent with the rule.”). In so doing, the Eleventh Circuit explicitly quoted and embraced a portion of the dissenting opinion in Symczyk, where Justice Kagan, writing for four justices, stated:Is he the first one in the district to cite this new case?
That thrice‐asserted view [that the defendantʹs offer mooted the plaintiffʹs individual claims] is wrong, wrong, and wrong again. We made clear earlier this Term that “[a]s long as the parties have a concrete interest, however small, in the outcome of the litigation, the case is not moot.” Chafin v. Chafin, 568 U.S. ––––, ––––, 133 S.Ct. 1017, 1023 (2012) (internal quotation marks omitted). “[A] case becomes moot only when it is impossible for a court to grant any effectual relief whatever to the prevailing party.” Ibid. (internal quotation marks omitted). By those measures, an unaccepted offer of judgment cannot moot a case. When a plaintiff rejects such an offer—however good the terms—her interest in the lawsuit remains just what it was before. And so too does the courtʹs ability to grant her relief. An unaccepted settlement offer—like any unaccepted contract offer—is a legal nullity, with no operative effect. As every first‐year law student learns, the recipientʹs rejection of an offer “leaves the matter as if no offer had ever been made.” Minneapolis & St. Louis R. Co. v. Columbus Rolling Mill, 119 U.S. 149, 151 (1886). Nothing in Rule 68 alters that basic principle; to the contrary, that rule specifies that “[a]n unaccepted offer is considered withdrawn.” Fed. Rule Civ. Proc. 68(b). So assuming the case was live before—because the plaintiff had a stake and the court could grant relief—the litigation carries on, unmooted.Stein v. Buccaneers Ltd. Pʹship, No. 13‐15417, 2014 WL 6734819, at *3 (11th Cir. Dec. 1, 2014) (quoting, entirely, Symczyk, 133 S. Ct. at 1533–34 (Kagan, J., dissenting)). Based on this newly‐issued binding precedent alone, the Undersigned denies the motion to dismiss.
(Here's hoping he works Starland Vocal Band into his next opinion!)