Pitts v. Terrible Herbst, Inc.
653 F.3d 1081
| 9th Cir. | 2011Background
- Pitts filed a putative class action in April 2009 in Nevada state court alleging FLSA overtime claims, Nevada wage-law class claims, and a breach-of-contract claim; the case was removed to federal court in May 2009.
- Terrible Herbst offered Pitts an unaccepted Rule 68 judgment for $900 total to fully satisfy Pitts's individual claim prior to class certification motion.
- Pitts refused the offer; discovery disputes arose over time records and hours worked, with a magistrate delaying ruling and discovery extended to April 2010.
- The district court dismissed Counts 1–3 for lack of subject-matter jurisdiction, and also dismissed Count 2 on alternative grounds, and Count 3 for lack of definiteness, before Pitts could amend.
- Pitts timely appealed all dispositive rulings; the Ninth Circuit addressed mootness of pre-certification offers, timeliness of class certification, FLSA/Rule 23 compatibility, Nev. § 608.100, and pleading sufficiency.
- The Ninth Circuit held that an unaccepted Rule 68 offer before class certification does not moot the case if a timely class-certification motion remains; the district court abused its timeliness ruling and erred on related issues; the judgment was reversed and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does a pre-certification Rule 68 offer moot a putative class action? | Pitts | Terrible | No; offer does not moot if timeliness for class certification remains. |
| Was Pitts timely in seeking class certification? | Pitts | Terrible | District court abused discretion; timely motion was possible despite discovery extension. |
| Are FLSA collective actions and Rule 23 state-law class actions inherently incompatible? | Pitts | Terrible | Not necessary to decide; Pitts waived FLSA claims, so incompatibility was not at issue. |
| Does Nev. Rev. Stat. § 608.100 abrogate a common-law breach-of-contract claim? | Pitts | Terrible | No; § 608.100 does not unambiguously abrogate the common-law claim. |
| Did Pitts plead Count 3 with sufficient definiteness? | Pitts | Terrible | Not resolved on the merits; reversal with expectation of amendment. |
Key Cases Cited
- Sosna v. Iowa, 419 U.S. 393 (1975) (class-action mootness and certification relevance)
- Gerstein v. Pugh, 420 U.S. 103 (1975) (mootness and class action review when preliminary claims end)
- Deposit Guaranty National Bank v. Roper, 445 U.S. 326 (1980) (tender of individual damages and class certification review)
- United States v. Geraghty, 445 U.S. 388 (1980) (class-action certification as a private-attorney-general interest)
- McLaughlin v. Riverside County, 500 U.S. 44 (1991) (relation-back for inherently transitory claims; mootness preservation)
- Sandoz v. Cingular Wireless LLC, 553 F.3d 913 (5th Cir. 2008) (pre-certification Rule 68 offers do not moot if timely certification motion is possible)
- Weiss v. Regal Collections, 385 F.3d 337 (3d Cir. 2004) (pre-certification mootness concerns and pharmaceutical-like settlement tactics)
- Valgardson, 105 Nev. 436, 777 P.2d 898 (1989) (statutory vs. common-law displacement; not dispositive for abrogation)