Isaacs v. One Touch Direct, LLC

Filing 64

ORDER: Defendant's Motion to Dismiss Plaintiff's Amended Complaint 40 is denied. Signed by Judge James S. Moody, Jr on 1/15/2015. (LN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

ANGELA ISAACS, on her own behalf and
all similarly situated individuals,
Plaintiff,
v.

Case No. 8:14-cv-1716-T-30EAJ

ONE TOUCH DIRECT, LLC, a Florida
Limited Liability Company,
Defendant.
_____________________________________/

ORDER
THIS CAUSE comes before the Court upon Defendant’s Motion to Dismiss Plaintiff’s
Amended Complaint (Dkt. 40), Plaintiff’s Response in Opposition (Dkt. 48), and
Defendant’s Supplement (Dkt. 56). The Court, having reviewed the motion, response,
supplement, and being otherwise advised in the premises, concludes that the motion should
be denied.
BACKGROUND
On July 15, 2014, Plaintiff Angela Isaacs filed this collective action under the Fair
Labor Standards Act (“FLSA”) alleging that Defendant One Touch Direct, LLC failed to
compensate Isaacs and others similarly situated for overtime compensation. During the
relevant time, Isaacs was a customer service representative. Isaacs alleges that One Touch
violated the FLSA by: (a) requiring employees to arrive at work early to perform tasks

integral to their work before their shift began; (b) failing to include commissions in
employees’ regular rate of pay; and (c) failing to compensate employees for break time.
On October 13, 2014, Isaacs amended her complaint. On November 18, 2014, One
Touch filed the instant motion to dismiss under Rule 12(b)(1) of the Federal Rules of Civil
Procedure. One Touch argues that this action is moot based on an unaccepted offer of
judgment that it served on Isaacs under Rule 68 of the Federal Rules of Civil Procedure.
Specifically, One Touch contends that this collective action no longer presents a live
controversy because Isaacs, the named plaintiff, was offered full relief and the offer was
made prior to conditional certification of the collection action.1
One Touch’s motion to dismiss was filed before the Eleventh Circuit’s December 1,
2014 decision in Stein v. Buccaneers Ltd. Partnership, 772 F.3d 698 (11th Cir. 2014). As
explained below, Stein makes clear that an unaccepted offer of judgment under Rule 68 does
not moot a plaintiff’s case under these circumstances.
STANDARD OF REVIEW
A motion to dismiss under Rule 12(b)(1) of the Federal Rules of Civil Procedure
challenges a court’s subject matter jurisdiction. Such motions are grounded in the idea that
Article III of the Constitution limits federal-court jurisdiction to cases and controversies. See
U.S. Parole Comm’n v. Geraghty, 445 U.S. 388, 395 (1980). If the issues presented in a case
are no longer live or the plaintiff lacks a legally cognizable interest in the outcome, i.e., a

1

Plaintiff’s Motion to Certify Class and Facilitate Notice Pursuant to 29 U.S.C. 216(b) was
filed on October 3, 2014 (Dkt. 21).
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“personal stake,” then a case is moot. See Cameron-Grant v. Maxim Healthcare Servs., Inc.,
347 F.3d 1240, 1244-46 (11th Cir. 2003).
DISCUSSION
In Stein, the Eleventh Circuit held that a class action was not moot when the named
plaintiff did not accept the defendant’s offer of judgment under Rule 68 of complete relief
before the class was certified. See, generally, Stein, 772 F.3d 698. Prior to Stein, persuasive
authority suggested that a court may dismiss a collective action for mootness based on a
named plaintiff’s unaccepted offer of judgment if the offer provided the plaintiff with full
relief and was made prior to conditional certification of the collective action. See Collado
v. J. & G. Transport, Inc., 2014 WL 6896146, at *3-*4 (S.D. Fla. December 5, 2014)
(discussing same and listing cases). Stein makes clear that a defendant’s act of serving a
plaintiff with an offer of judgment that provides that plaintiff with full relief in order to moot
the case is no longer a viable defense strategy in the Eleventh Circuit. Specifically, the
Eleventh Circuit held:
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. When the deadline for accepting these offers passed, they were
“considered withdrawn” and were “not admissible.” See Fed.R.Civ.P. 68(b).
The plaintiffs could no longer accept the offers or require the court to enter
judgment. In short, the plaintiffs still had their claims, and BLP still had its
defenses. BLP had not paid the plaintiffs, was not obligated to pay the
plaintiffs, and had not been enjoined from sending out more faxes. The named
plaintiffs’ individual claims were not moot.
Stein, 772 F.3d at 702.

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Although Stein involved a class action under Rule 23 of the Federal Rules of Civil
Procedure, the opinion is clear that the same logic would apply to an FLSA collective action.
Specifically, the Eleventh Circuit quoted and embraced a portion of the dissenting opinion
in Genesis Healthcare Corp. v. Symczyk, --- U.S.----, 133 S.Ct. 1523 (2013), a case involving
a collective action under the FLSA, where Justice Kagan, writing for four justices, stated:
That thrice-asserted view [that the defendant’s offer mooted the plaintiff’s
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, 185 L.Ed.2d 1 (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 court’s 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 recipient’s 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, 7 S.Ct. 168, 30 L.Ed. 376
(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, 772 F.3d at 702-03 (quoting Symczyk, 133 S.Ct. at 1533-34 (Kagan, J., dissenting));
see also Collado, 2014 WL 6896146, at *3-*4 (holding that an unaccepted offer of
judgment made to the named individual plaintiff cannot moot a collective action under
the FLSA based on the Eleventh Circuit’s recent opinion in Stein). Accordingly, even
assuming for the sake of argument that One Touch’s offer of judgment provided Isaacs
with full relief, her failure to accept the offer did not moot this collective action.
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It is therefore ORDERED AND ADJUDGED that Defendant’s Motion to Dismiss
Plaintiff’s Amended Complaint (Dkt. 40) is denied.
DONE and ORDERED in Tampa, Florida on January 15, 2015.

Copies furnished to:
Counsel/Parties of Record
S:\Even\2014\14-cv-1716.denym2dismiss40-mootness issue under 68.frm

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