Lucero v. Bureau of Collection Recovery, Inc.
639 F.3d 1239
| 10th Cir. | 2011Background
- Lucero filed a class action in state court seeking declaratory relief and damages under the FDCPA and NM regulatory act (April 20, 2009).
- BCR removed to federal court and served a Rule 68 offer of judgment to Lucero on June 2, 2009 for $3,001 plus fees and costs.
- District court scheduled phased discovery focused on class certification before merits; set deadlines and a hearing for class certification.
- Lucero filed a motion for class certification; BCR moved to dismiss for lack of subject-matter jurisdiction arguing mootness after the offer.
- On May 6, 2010 the district court dismissed Lucero’s claims as moot and for lack of jurisdiction; the court did not compel acceptance of the Rule 68 offer or enter judgment against BCR.
- Lucero appeals, arguing that a Rule 68 offer to a named plaintiff in a proposed class action should not moot the case before the court rules on class certification and that the class action should proceed to certification despite the offer.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a Rule 68 pre-certification offer can moot a proposed class action. | Lucero argues pre-certification offers should not moot the class action while class certification is pending. | BCR argues offers moot individual claims and hence the entire action. | No; the court held that a pre-certification Rule 68 offer to a named plaintiff does not automatically moot the class action. |
| Does Sosna/Geraghty require considering a timely class certification motion before dismissing for mootness? | Lucero contends class-interest attaches pre-certification, so the case should not be moot pending certification. | BCR argues mootness follows from the absence of a live controversy once the individual claim is satisfied. | The district court erred; Geraghty extends to pre-certification context and timing is not crucial for class-action jurisdiction. |
| Does Geraghty’s personal stake rationale sustain jurisdiction to review class certification despite an offer to the named plaintiff? | Lucero relies on Geraghty that personal stake persists pre-certification. | BCR relies on Reed and general mootness principles to argue dismissal. | Yes; Geraghty supports continuing jurisdiction to adjudicate class certification despite an unaccepted Rule 68 offer. |
| Should the appeal be governed by Weiss/Clark line of authorities recognizing ongoing class issues despite offers? | Lucero argues Weiss/Clark support maintaining the claim for certification. | BCR says those authorities are distinguishable or limited. | The court aligns with Weiss/Weis-like reasoning, holding pre-certification offers do not moot the proposed class action where a certification motion is pending. |
Key Cases Cited
- Sosna v. Iowa, 419 U.S. 393 (1975) (class action mootness principles; repetition and evasion; pre-certification context)
- Geraghty v. U.S. Parole Comm'n, 445 U.S. 388 (1980) (pre-certification mootness and personal stake in class action)
- Deposit Guaranty Nat'l Bank v. Roper, 445 U.S. 326 (1980) (offers of judgment and class certification timing; mootness concept in Roper context)
- U.S. Parole Comm'n v. Geraghty, 445 U.S. 388 (1980) (reaffirmation of class-action mootness principles and personal stake)
- Clark v. State Farm Mut. Auto. Ins. Co., 590 F.3d 1134 (2010) (pre-certification mootness and Weiss/Zeidman context in Tenth Circuit)
- Reed v. Heckler, 756 F.2d 779 (1985) (extension of Geraghty in class-action interlocutory posture)
- Weiss v. Regal Collections, 385 F.3d 337 (2004) (rule 68 offer timing before class certification; pre-certification mootness in FDCPA context)
- Sandoz v. Cingular Wireless, LLC, 553 F.3d 913 (2008) (pre-certification rule 68 offers and class action mootness in FLSA context)
- Zeidman v. J. Ray McDermott & Co., 651 F.2d 1030 (1981) (pre-certification mootness and class-action considerations)