Mooting the Mootness Issue as Moot?: Symczyk’s Impact on FLSA Litigation in Florida and Beyond
Seven thousand, sixty-four — that is the record-setting number of federal wage and hour suits brought under the Fair Labor Standards Act (FLSA) between March 2011 and March 2012.1 That number represents an almost five-fold increase in the number of FLSA federal actions brought since the survey began in 1993.2 Ostensibly, there are three primary reasons behind the high number of FLSA claims. First, the FLSA requires an award of attorneys’ fees to successful plaintiffs regardless of the wage amount in controversy,3 although there is no similar provision for prevailing defendants. Second, the FLSA is a strict-liability statute,4 even though the coverage of the statute is subject to considerable uncertainty.5 Third, §216(b) of the FLSA provides a mechanism whereby an employee can bring an action on his or her own behalf and “on behalf of any [similarly situated] employee”; such actions are known as collective actions.6
Based on these three factors, there has been a rise in the number of collective actions brought under §216(b) of the FLSA. Accordingly, as explained in greater detail below, a strategy has evolved in FLSA collective action litigation in which a defendant will make a Rule 68 offer of judgment to a named plaintiff before the action is certified by the court as a collective action. Specifically, the defendant offers to settle the case for the full amount of the named plaintiff’s purported damages, plus reasonable attorneys’ fees and costs, and the defendant will then file a motion to dismiss on the grounds that the defendant has offered to compensate fully the plaintiff, rendering the case moot since there is no longer a live case or controversy as required by U.S. Const. art. III. The effect of this tactic, when successfully employed, is that the collective action is, as they say, nipped in the bud; that is, once the named plaintiff’s claim is mooted, the case will not proceed, and other potential plaintiffs cannot opt-in to the lawsuit. For defendants, potential exposure to numerous plaintiffs’ alleged unpaid overtime claims and attorneys’ fees and costs is significantly reduced. For named plaintiffs, their claims are fully satisfied (possibly for more than the claims were actually worth). For potential opt-in plaintiffs, however, they will have to file separately their own suits against the defendant. Thus, based on the language of §216(b) and the practical realities of collective action litigation, a divergence of authority has developed as to whether Rule 68 mootness principles thwart the underlying goal of the FLSA’s collective action mechanism.
This issue was recently before the U.S. Supreme Court in Symczyk v. Genesis Healthcare Corporation, 656 F.3d 189 (3d Cir. 2011), cert. granted, 133 S. Ct. 26 (2012). This article highlights the practical implications of the ruling for plaintiffs and defendants, preceded by a brief background of the relevant law, and an analysis of the Court’s ruling.
The Development of FLSA Collective Actions
The FLSA, codified at 29 U.S.C. §201 et seq., was enacted in 1938 in order to help the “lowest paid. . . of the nation’s working population” to secure a livable wage.7 Between its enactment and 1947, the FLSA permitted an employee to designate an agent or representative to bring an action on behalf of all employees similarly situated under the FLSA’s collective action mechanism.8 However, responding to “excessive litigation spawned by plaintiffs lacking a personal interest in the outcome,” Congress amended the act, eliminating “representative action[s] by plaintiffs not themselves possessing claims.”9 To that end, in 1947 Congress inserted a requirement that similarly situated employees must affirmatively “opt-in” to an ongoing FLSA suit by filing written consents.10
Currently, under §216(b), the FLSA provides that “[a]n action. . . may be maintained against any employer…by any one or more employees for and in behalf of himself or themselves and other employees similarly situated.”11 When deciding whether a §216(b) suit may move forward as a collective action, courts typically employ a two-pronged approach. First, the court makes a preliminary determination as to whether the employees in the complaint can be provisionally categorized as “similarly situated” to the putative representative. If the plaintiff satisfies this test, the court will “conditionally certify” the collective action for the purposes of notice and pretrial discovery.12 After discovery, a court will then make a conclusive determination as to whether each plaintiff who has opted in to the collective action is in fact similarly situated to the named plaintiff, and, should the plaintiff satisfy this second prong, the case will proceed to trial on the merits as a collective action.13
Importantly, once a plaintiff has cleared the hurdle of having the action conditionally certified, notice of the suit is sent to potential opt-in plaintiffs to inform them of their ability to opt in to the action.14 Obviously, the potential addition of more plaintiffs makes this step particularly vital for employers, plaintiffs, and their respective attorneys, as more parties tend to drive up litigation costs, and because, as mentioned above, §216(b) provides for reasonable attorneys’ fees and costs.15
However, the crucial issue is whether the named plaintiff in a putative FLSA collective action has a procedural right to represent other potential plaintiffs independent of the named plaintiff’s own substantive claims. If not, and the plaintiff’s claims can be extinguished before notice is sent and opt-in plaintiffs have joined the action, then the case cannot proceed once an offer of settlement has been made because the action is no longer a live case or controversy. But, if the plaintiff does have such an independent procedural right, then the case can proceed, even if the named plaintiff’s claims are no longer “live.”16 Courts throughout the United States have looked to Rule 23 and its interpretive precedent in determining the FLSA collective action mootness issue.17
The Relatedness of Rule 23 Class Actions
Fed. R. Civ. P. 23 is the procedural mechanism for class action litigation in federal court.18 The justifications for class action litigation were explained by the Supreme Court in Deposit Guaranty Nat’l Bank v. Roper, 445 U.S. 326 (1980),
in which the Court held that the class mechanism is useful because it allows a multitude of aggrieved individuals to obtain relief when small, individual suits may be ineffective or impractical.19 Additionally, in United States Parole Comm’n v. Geraghty, 445 U.S. 388 (1980), the Supreme Court explained that Rule 23 was also developed to protect defendants from inconsistent obligations, and so that defendants could ostensibly keep litigation costs lower by defending one action instead of many.20
With that basic understanding of Rule 23 in mind, similar to a collective action under §216(b), a representative plaintiff must move for certification of the proposed class before the case proceeds on the merits.21 Therefore, the Geraghty Court explained that in the Rule 23 context, the named plaintiff “presents two separate issues for judicial resolution. One is the claim on the merits; the other is the claim that he is entitled to represent a class.”22 Nevertheless, to ensure that the independent procedural right of certification is appealable and to accomplish the objectives of class action litigation, the Court stated that the named plaintiff has a “personal stake” in the procedural class certification claim so long as there remains “a dispute capable of judicial resolution.”23
Accordingly, one of the primary distinctions between §216(b) and Rule 23 actions is the manner in which individuals beyond the named plaintiff come to be represented in the suit. As mentioned above, in a §216(b) action, additional plaintiffs must affirmatively file a written consent, known as “opting in.” As the 10th Circuit explained, “Congress’s purpose in adding [the ‘opt-in’ language to section 216(b)] was to. . . ‘prevent[ ] large group actions, with their vast allegations of liability, from being brought on behalf of employees who had no real involvement in, or knowledge of, the lawsuit.’”24 Therefore, arguably, §216(b) actions are only proper when the litigants are active participants in the suit. However, §216(b)’s mechanism (and the justification for it) creates a dichotomy with that of Rule 23’s mechanism, since, in a Rule 23 suit, a class is described, and, if the action is ultimately maintainable as a class action, each person fitting the description is automatically considered a class member unless he or she affirmatively opts out.25 Therefore, post- Geraghty, courts in Rule 23 actions have held that even if a named plaintiff’s individual claims are disposed of, the named plaintiff retains a sufficient personal stake in the litigation for the action to continue.26
Rule 68 Offers of Judgment and Mootness
As briefly noted above, U.S. Const. art. III limits the jurisdiction of the federal courts to actual cases and controversies.27 Therefore, “[w]hen the issues presented in a case are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome, the case becomes moot and the court no longer has subject matter jurisdiction.”28 Accordingly, a party’s interest in the litigation constitutes what is known as the “personal stake” requirement,29 and the “personal stake” prong of the mootness doctrine serves the purpose of assuring that courts are presented with disputes they are capable of resolving.30
Rule 68 was designed “to encourage settlement and avoid litigation.”31 Consequently, an offer of complete relief under Rule 68 can moot a plaintiff’s claim, because at that point the plaintiff arguably retains no “personal stake” in the outcome of the litigation. Thus, courts have held that no justiciable controversy remains once a defendant tenders an offer of judgment under Rule 68 encompassing all the relief a plaintiff could potentially recover at trial.32
As a result, defendants in §216(b) actions have tendered Rule 68 offers of judgment to named plaintiffs prior to conditional certification so that the putative representative’s claims become moot, and the action is dismissed before notice is sent out to other potential claimants.33 However, in Florida and beyond, some courts have expressed reservations as to whether defendants should be allowed “to use Rule 68 as a sword, ‘picking off’ representative plaintiffs and avoiding ever having to face a collective action.”34 The Fifth Circuit elucidated this concern by explaining that defendants could potentially moot each successive case before a decision on certification is reached, and that the defendants would essentially have the option to preclude a viable class action, at their sole discretion, from ever reaching the certification stage, contrary to the goals of the FLSA.35 Thus, based on the split of authority on this issue, the U.S. Supreme Court elected to review Symczyk.
The Symczyk Opinion
From April 2007 through December 2007, Laura Symczyk was employed by Genesis Healthcare Corporation and Eldercare Resources Corporation as a registered nurse in Philadelphia.36 On December 4, 2009, Ms. Symczyk filed a collective action pursuant to §216(b) on behalf of herself and all similarly situated individuals, alleging defendants violated the FLSA by implementing a policy that automatically deducted time for meal breaks even if the employees performed compensable work during the breaks.37 Along with their answer, the defendants served Ms. Symczyk with an offer of judgment, pursuant to Fed. R. Civ. P. 68, in the amount of $7,500 in alleged unpaid wages, plus attorneys’ fees, costs, and expenses.38 Ms. Symczyk did not dispute whether the defendants’ offer was sufficient to fully compensate her for her claims and did not respond to the offer.39
Later, the court held a scheduling conference, during which an initial discovery period was set.40 The court stated that at the close of the discovery period Ms. Symczyk would move for conditional certification under §216(b).41 Eight days after the scheduling conference, the defendants filed a motion to dismiss for lack of subject matter jurisdiction, arguing that because Ms. Symczyk had been offered full relief by their Rule 68 offer of judgment, she no longer had a personal stake or legally cognizable interest in the outcome of the case as required under U.S. Const. art. III.42 However, Ms. Symczyk objected, arguing that the defendants were attempting to “pick her off” prior to certification under §216(b).43 The district court held that the defendants’ Rule 68 offer mooted the action, and the case was dismissed for lack of subject matter jurisdiction.44 Ms. Symczyk then appealed to the U.S. Court of Appeals for the Third Circuit.45
The Third Circuit explained that although an offer of full satisfaction under Rule 68 will ordinarily moot a claim resulting in dismissal, it would “frustrate the objectives of class actions” to allow a tender of judgment to pick off plaintiffs.46 The court further explained that even though Rule 68 was designed to encourage settlements, “Rule 68 can be manipulated to frustrate rather than to serve” that intent.47 The Third Circuit ultimately held that the “relation back” doctrine should have been employed, analogizing the case to a Rule 23 class action in which the claims of class members relate back to the filing of the complaint, even though the certification of the class occurs much later.48 The court noted that once a Rule 23 class has been certified, mooting a class representative’s claim does not moot the entire action.49 Thus, under the “relation back” doctrine, the court ruled that Ms. Symczyk should have been allowed to file a motion for certification of the collective action prior to dismissal by the lower court.50 Consequently, the Third Circuit reversed the district court, remanding the case to provide Ms. Symczyk with an opportunity to file a motion for certification since, in the opinion of the court, the defendants’ Rule 68 offer of judgment on the plaintiffs alone would not have mooted the claims of the other putative collective action members if at least one other plaintiff opted in.51 The defendants appealed.
In their petition to the U.S. Supreme Court, the defendants argued that a direct conflict exists between the 11th and Ninth circuits, holding that claims can be mooted, and the Third and Fifth circuits, holding that certification after a plaintiff’s claims are disposed of can vitiate mootness by “relation back” to the complaint.52 The defendants further argued that the key question is whether it makes sense to extend the treatment of mootness in class actions to a context like the FLSA, in which the individual plaintiff has no representative relationship to the absent parties.53
Justice Clarence Thomas authored the Court’s majority opinion, in which Chief Justice John G. Roberts and Justices Antonin Scalia, Anthony M. Kennedy, and Samuel A. Alito joined. Unfortunately, the majority opinion did not directly answer the question of whether a Rule 68 offer of judgment moots a §216(b) plaintiff’s claims, and, thus, did not resolve the circuit split on this issue. Instead, the Court “assume[d], without deciding, that petitioner’s Rule 68 offer mooted respondent’s individual claim.”54 As is obvious from the preceding paragraphs, this was arguably the most important issue on appeal to the high Court since it most directly affects the outcome of active and future FLSA litigation throughout the United States. In explaining its holding, the majority explained that Ms. Symczyk failed to properly challenge the lower court rulings that the offer resolved her individual claim, which, in the opinion of the majority, warranted upholding the decision of the trial court as properly dismissing her proposed collective action without further analysis. The dissenting opinion, authored by Justice Kagan, succinctly summed up the dissenters’ take on this ruling by stating, “Feel free to relegate the majority’s decision to the furthest reaches of your mind: The situation it addresses should never arise again.”55
Although the Court punted the direct Rule 68 mootness issue, the majority did make clear that if a plaintiff’s claim is mooted, the entire lawsuit simultaneously becomes moot. In reaching this conclusion, the Court first addressed the issue of whether conditional certification under §216(b) could potentially save an otherwise mooted FLSA action. The majority opinion explained that the line of cases interpreting Rule 23 are inapposite to a §216(b) analysis because of the fundamental distinction between the two types of actions. The distinction is that the putative class in a Rule 23 class action, by its very nature, acquires its own independent legal status as soon as it is certified under Rule 23. However, by contrast, the majority stated that “the sole consequence of conditional certification [under §216(b)] is the sending of court-approved written notice to employees,” and those employees only become parties if and when they file a written consent to that effect. Accordingly, in the opinion of the majority, even conditional certification by a district court will not save a case previously mooted.
Next, the majority examined the case through the lens of the “inherently transitory” relation back doctrine, a doctrine that is designed to save cases in which the complained of conduct would cease before the litigation runs its course. Under that doctrine, certification would relate back to the date of the filing of the original complaint. The Court explained that the “inherently transitory” rule was developed for use in situations in which injunctive relief is sought for conduct that may resolve prior to completing litigation, but that may occur again at a later time, such as when dealing with the constitutionality of pretrial detentions. The majority stated that the doctrine does not work to save a mooted §216(b) action since the potential opt-in plaintiffs are fully able to bring their own FLSA claims regardless of the resolution of the putative collective action.
Finally, the majority addressed whether the FLSA’s collective action mechanism is frustrated by the use of Rule 68 to “pick off” named plaintiffs prior to certification. Justice Thomas explained that the cases standing for such a proposition were premised on the plaintiffs possessing a continuing personal stake in the litigation despite the offer of judgment. The majority opinion explicitly stated that conditional certification under §216(b) “is not tantamount to class certification under Rule 23.” Thus, the majority held that the purpose behind the collective action mechanism is not thwarted when named plaintiffs are “picked off.”
Justice Kagan’s biting dissent lambastes the majority, taking issue with the fact that Justice Thomas and company did not answer the important issue directly presented, and also taking issue with the substance of the majority’s holding. Justice Kagan first opined that the majority’s decision relied on a false, unfounded assumption that Ms. Symczyk’s claim was actually moot, and that because of reliance on that unexplained assumption, the majority’s holding is of limited utility. Justice Kagan re-emphasized the fact that the issue presented to the Court was “[w]hether a case becomes moot…when the lone plaintiff receives an offer from the defendants to satisfy all of the plaintiff’s claims,” and that by its refusal to answer the question, the majority had “impede[d] intelligent resolution” of the matter.
Further, Justice Kagan explained that “[a]s every first-year law student learns,” an unaccepted offer cannot moot a case because an unaccepted offer is a “legal nullity.” Justice Kagan also stated that Rule 68 provides no mechanism to terminate a lawsuit without the plaintiff’s consent, and that a court does not have authority to enter an unwanted judgment on an individual’s claims “in service of” eliminating a potential collective action. Justice Kagan concluded that such a tactic short-circuits a collective action, frustrating the purpose of the FLSA. Ultimately, Justice Kagan’s own words accurately sum up her take on the Court’s opinion: “the [majority] chose to address an issue predicated on [a] misconception, in a way that aids no one, now or ever.”
Practical Implications of the Decision
In this author’s opinion, the majority could have (and should have) answered the real question presented directly. Directly answering the question would have cleared up confusion among courts on an important issue that is commonly litigated, presently costing both sides considerable time and expense due to uncertainty on a legal issue capable of quick and final resolution. However, even though Justice Kagan’s opinion urges that the majority’s holding “aids no one,” this author believes that the majority’s opinion does provide some guidance for courts to resolve this issue with greater confidence, especially the district courts sitting in Florida.
While the Middle District has been steadfast in its position that a Rule 68 offer of judgment for full relief moots a plaintiff’s claim,56 not all federal courts sitting in Florida have taken the same stance. For example, in Reyes v. Carnival Corporation, 2005 WL 4891058 (S.D. Fla. 2005), the court noted its reservations with allowing a defendant’s Rule 68 offer to moot a case. Specifically, the court stated that “[p]ermitting a defendant to evade a collective action by making an offer of judgment at the earliest possible time defeats the purpose of the collective action mechanism.”57 Many other courts have expressed similar reservations.58 However, the Supreme Court’s holding in Symczyk clearly explains that the FLSA’s collective action mechanism alone does not give a plaintiff a sufficient personal stake in the action to survive a sufficient Rule 68 offer that fully satisfies his or her claims. Accordingly, the slight breeze of the FLSA’s collective action mechanism alone is inadequate to fill the sails of a plaintiff’s case and continue it forward in its course when the headwind that is the plaintiff’s own personal stake has died. Similarly, the “relation back” doctrine as applied to §216(b) actions was summarily trounced by the Symczyk majority, and so courts will be unable to rely on that argument to refuse to find a case mooted after a sufficient Rule 68 offer. Thus, courts throughout the country should be able to overcome their reservations and find that a case can be mooted when a Rule 68 offer will fully satisfy the plaintiff’s claims.
However, now that defendants are armed with the Symczyk opinion, this author believes that the key issue in FLSA overtime cases will be developing and pinning down a precise valuation of plaintiffs’ claims, since, as numerous decisions have noted, a Rule 68 offer is likely invalid if the plaintiff credibly asserts that the offer is insufficient to compensate his or her claim.59 To this end, some courts employ special interrogatories to plaintiffs that attempt to value claims early on in a case, which will be even more helpful in future FLSA litigation in light of Symczyk. Additionally, particularly in cases when a court does not employ special interrogatories, it seems likely that there will be an increased focus on Rule 26(a)(1)(A)(iii), which requires a disclosing party to provide quantifiable amounts of damages sought and the computation used in determining those amounts.
Specifically, the rule states that a disclosing party must provide “a computation of each category of damages claimed. . . [and the materials] on which each computation is based.”60 On this topic, the Northern, Middle, and Southern districts of Florida have consistently held that disclosing parties must provide an amount of and calculation for his or her economic damages in the Rule 26 disclosures.61 The Northern District went as far as to state: “[the rule] is clear and can be followed by every claimant with reasonable effort. All the claimant needs to do is sit down and calculate the damages that are claimed.”62 Consequently, based on the courts’ interpretation of Rule 26, defendants in FLSA suits will likely increasingly focus on a claimant’s Rule 26 disclosures as they relate to economic damages so that a clear total can be adduced and a valid Rule 68 offer made. Once plaintiffs clearly value their claims for damages, defendants should be able to fully leverage the Symczyk decision.
The Supreme Court declined to address the Rule 68 mootness issue head-on. However, the majority opinion’s holding vitiates the primary arguments that have been raised in opposition to a Rule 68 offer mooting a case. Therefore, many cases may ultimately hinge on whether the Rule 68 offer fully compensates the plaintiff(s). This will likely create an increased focus on quantifying economic damages.
1 Seyfarth Shaw LLP, Survey: FLSA Cases in Federal Court, www.seyfarth.com/dir_docs/publications/FLSA2.pdf (For context, for the 12-month period ending March 31, 2001, a mere 1,961 FLSA actions were commenced throughout the United States); United States Courts, Federal Judicial Caseload Statistics 46 (March 31, 2001), available at http://www.uscourts.gov/Viewer.aspx?doc=/uscourts/Statistics/FederalJudicialCaseloadStatistics/2011/front/Mar11title.pdf.
3 2 9 U.S.C. §216(b) (“The court in [an FLSA] action shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney’s fee to be paid by the defendant, and costs of the action.”).
4 See Norceide v. Cambridge Health Alliance, 814 F. Supp. 2d 17, 29 (2011) (“[T]he FLSA is a strict-liability statute, meaning that an employer is obliged to ensure that an employee who could have but did not record all time on the job is properly compensated. . . for all time actually worked.”) (emphasis in original).
5 See, e.g., Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 168-71 (discussing inconsistencies within the Department of Labor’s FLSA regulations).
6 Hoffman-La Roche, Inc. v. Sperling, 493 U.S. 165, 169-70 (1989).
7 Brooklyn Sav. Bank v. O’Neil, 324 U.S. 697, 707 n. 18 (1945).
8 Martino v. Michigan Window Cleaning Co., 327 U.S. 173 (1946).
9 Hoffmann–La Roche, Inc. v. Sperling, 493 U.S. 165, 173 (1989).
11 2 9 U.S.C. §216(b).
12 See Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233 (11th Cir. 2008) (explaining the certification process).
13 See id.
14 See, e.g., Mackenzie v. Kindred Hosps. E., LLC, 276 F. Supp. 2d 1211, 1220 (M.D. Fla. 2003) (explaining the notice process once an action has been conditionally certified).
15 2 9 U.S.C. §216(b) (“In addition to any judgment awarded to the plaintiff or plaintiffs, [the court shall] allow a reasonable attorney’s fee to be paid by the defendant.”).
16 See Cameron-Grant v. Maxim Healthcare Serv., Inc., 347 F.3d 1240 (11th Cir. 2003) (examining whether named plaintiffs possess the independent procedural right).
17 See, e.g., id. (discussing Rule 23 procedural rights); Smith v. T-Mobile USA Inc., 570 F.3d 1119 (9th Cir. 2009) (same); Sandoz v. Cingular Wireless LLC, 553 F.3d 913 (5th Cir. 2008) (same); Symczyk v. Genesis Healthcare Corp., 656 F.3d 189 (3d Cir. 2011) (same).
18 See generally Laurie C. Uustal, In the Matter of Rhone-Poulenc Rorer : Shielding Defendants Under Rule 23, 51
U. Miami L. Rev. 1247 (1997).
19 Deposit Guaranty Nat’l Bank v. Roper, 445 U.S. 326, 339 (1980).
20 United States Parole Comm’n v. Geraghty, 445 U.S. 388, 402-403 (1980).
21 See Roper, 445 U.S. at 329-34 (describing the class certification process in general).
22 Geraghty, 445 U.S. at 402.
23 Id. at 403.
24 United Food & Commercial Workers Union v. Albertson’s, Inc., 207 F.3d 1193 (10th Cir. 2000) (quoting Arrington v. Nat’l Broad. Co., 531 F. Supp. 498 (D. D.C. 1982)).
25 LaChapelle v. Owens-Illinois, Inc., 513 F.2d 286 (5th Cir. 1975).
26 E.g., Love v. Turlington, 733 F.2d 1562 (11th Cir. 1984); Satterwhite v. City of Greenville, 634 F.2d 231 (5th Cir. 1981); Weiss v. Regal Collections, 385 F.3d 337 (3d Cir. 2004); Martinez-Mendoza v. Champion Int. Corp., 340 F.3d 1200 (11th Cir. 2003).
27 DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 340-41 (2006).
28 Weiss v. Regal Collections, 385 F.3d 337, 340 (3d Cir. 2004).
29 Geraghty, 445 U.S. at 396.
30 Id. at 397.
31 Marek v. Chesny, 473 U.S. 1 (1985).
32 See, e.g., Weiss v. Regal Collections, 385 F.3d 337, 340 (3d Cir. 2004) (“[W]e hold defendant’s Rule 68 offer of judgment, in the amount of $1,000 plus reasonable costs and fees provided the maximum statutory relief available to [plaintiff] individually….”); Greisz v. Household Bank (Ill.), N.A., 176 F.3d 1012, 1015 (7th Cir. 1999) (A Rule 68 offer of judgment by a defendant to a plaintiff for more than his claim is worth “eliminates a legal dispute upon which federal jurisdiction can be based. . . [y]ou cannot persist in suing after you’ve won.”).
33 Mackenzie v. Kindred Hosps. E., LLC, 276 F. Supp. 2d 1211 (M.D. Fla. 2003); Williams v. McCallum Group Enterprises, Inc., 2008 WL 203302 (M.D. Fla. 2008).
34 Sandoz v. Cingular Wireless LLC, 553 F.3d 913, 919 (5th Cir. 2008); see also Reyes v. Carnival Corp., 2005 WL 4891058 (S.D. Fla. 2005) (“[T]he defense strategy of providing an offer of judgment to the initial plaintiff in a FLSA collective action in order to bar the case from proceeding as to all similarly situated plaintiffs violates the very policies behind the FLSA.”).
35 Sandoz, 553 F.3d at 920 (citing Zeidman v. J. Ray McDermott & Co., 651 F.2d 1030, 1050 (5th Cir. 1981)).
36 Symczyk, 656 F.3d at 190-91.
37 Id. at 190.
39 Id. at 190-91.
40 Id. at 191.
44 Symczyk v. Genesis HealthCare Corp., No. Civ. A 09-5782 (E.D. Pa. 2010). It’s worth noting at this point that Ms. Symczyk was not awarded, nor did she otherwise receive, any damages or other relief; the district court dismissed the case after the defendant’s offer of judgment expired and the defendants moved for dismissal on mootness grounds.
45 Symczyk, 656 F.3d at 191.
46 Id. at 195 (citing Deposit Guar. Nat’l Bank v. Roper, 445 U.S. 326, 339 (1980)).
47 Id. at 195 (citing Marek v. Chesny, 473 U.S. 1, 5 (1985)).
48 Id. at 200-01.
49 Id. at 196 (citing Sosna v. Iowa, 419 U.S. 393, 401 (1975)).
50 Id. at 200-01.
52 Petition for a Writ of Certiorari, Genesis Healthcare Corp. v. Laura Symczyk, No. 11-1059 at 16 (2012), available at http://sblog.s3.amazonaws.com/wp-content/uploads/2012/03/11-1059-Genesis-v.-Symczyk-Petition.pdf.
53 Id. at 8-13.
54 Genesis HealthCare Corp. v. Symczyk, No. 11–1059 at 5 (2013) (slip opinion).
55 Id. at 2 (dissenting opinion).
56 E.g., Dean v. Community Dental Services, Inc., 2012 WL 4208114 (M.D. Fla. 2012) (even though plaintiff did not accept Rule 68 offer, offer of full relief mooted claim); Williams v. McCallum Group Enterprises, Inc., 2008 WL 203302 (M.D. Fla. 2008) (offer of judgment, even though not accepted, rendered plaintiff’s claims moot); Mackenzie v. Kindred Hosps. E., LLC, 276 F. Supp. 2d 1211, 1219 (M.D. Fla. 2003) (offer of full relief eliminates a legal dispute upon which federal jurisdiction can be based and renders the case moot).
57 Reyes v. Carnival Corporation, 2005 WL 4891058 at *4 (S.D. Fla. 2005) (citing Reed v. TJX Companies, Inc., 2004 WL 2415055 (N.D. Ill. 2004)).
58 Rubery v. Buth-Na-Bodhaige, Inc., 494 F. Supp. 2d 178 (W.D.N.Y. 2007); Guerra v. Big Johnson Concrete Pumping, Inc., 2006 WL 2290517 (S.D. Fla. 2006); Geer v. Challenge Fin. Investors Corp., 2006 WL 704933 (D. Kan. 2006).
59 See, e.g., Evans v. General Mechanical Corp., 2012 WL 1450107 (M.D. Fla. 2012) (case not moot where plaintiff claims unspecific damages, contests amount of damages, and has not received records to calculate damages).
60 Fed. R. Civ. P. 26(a)(1)(A)(iii).
61 E.g., Dixon v. Bankhead, 2000 WL 33175440 (N.D. Fla. 2000); Dunstan v. Wal-Mart Stores East, L.P., 2008 WL 2025313 (M.D. Fla. 2008); De Verona v. Discount Auto Parts, LLC, 2012 WL 2334703 (S.D. Fla. 2012).
62 Dixon v. Bankhead, 2000 WL 33175440 *1 (N.D. Fla. 2000).
J. Evan Gibbs is an associate attorney with Constangy, Brooks & Smith, LLP, in the firm’s Jacksonville office. Gibbs received his J.D. from the Florida State University College of Law, where he was an editorial board member of the Florida State University Law Review.
This article is submitted on behalf of the Labor and Employment Law Section, Robert Stuart Turk, chair, and Robert Eschenfelder, editor.