Leahy-Fernandez v. Bayview Loan Servicing, LLC

Filing 43

ORDER denying 40 Motion to Strike. See Order for details. Signed by Judge Virginia M. Hernandez Covington on 3/16/2016. (DRW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
CYNTHIA LEAHY-FERNANDEZ,
Plaintiff,
v.

Case No. 8:15-cv-2380-T-33TGW

BAYVIEW LOAN SERVICING, LLC,
Defendant.
_____________________________/
ORDER
This matter comes before the Court in consideration of
Plaintiff Cynthia Leahy-Fernandez’s Motion to Strike Offer of
Judgment or in the Alternative to Declare Offer of Judgment
Ineffective (Doc. # 40), filed on February 23, 2016. Defendant
Bayview Loan Servicing, LLC filed its response on March 10,
2016. (Doc. # 42). The Court denies the Motion for the reasons
set forth herein.
Discussion
On October 8, 2015, Leahy-Fernandez filed her putative
class

action

Complaint

Complaint

brings

three

Consumer

Collection

against

Bayview.

Doc.

#

counts:

violation

of

the

Practices

Act

(FCCPA)

1).

The

Florida

(Count

I);

violation of the Fair Debt Collection Practices Act (FDCPA)
(Count II); and a claim for injunctive and monetary sanctions

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for violations of a bankruptcy discharge injunction. (Id.).
Count III has been dismissed; Counts I and II remain pending.
(Doc. # 32). Leahy-Fernandez has not moved to certify the
putative class, although she has until June 10, 2016, to do
so. (Doc. # 35).
On February 10, 2016, Bayview served Leahy-Fernandez’s
counsel with an offer of judgment. (Doc. # 40 at 2). LeahyFernandez did not accept the offer of judgment. (Doc. # 42 at
2). The offer of judgment has not been filed with the Court
and, as of the date of this Order, Bayview has not sought any
relief as to the offer of judgment. See (Id. at 2-3).
Rule 68 states, in part, “[a]t least 14 days before the
date set for trial, a party defending against a claim may
serve on an opposing party an offer to allow judgment on
specified terms, with the costs then accrued.” Fed. R. Civ.
P. 68(a). If the offer is not accepted, it is considered
withdrawn. Fed. R. Civ. P. 68(b). Evidence of an unaccepted
offer is not admissible except in a proceeding to determine
costs. Id. Furthermore, “[i]f the judgment that the offeree
finally obtains is not more favorable than the unaccepted
offer, the offeree must pay the costs incurred after the offer
was made.” Fed. R. Civ. P. 68(d).

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“The plain purpose of Rule 68 is to encourage settlement
and avoid litigation.” Zinni v. ER Solutions, Inc., 692 F.3d
1162, 1168 n.9 (11th Cir. 2012) (quoting Marek v. Chesny, 473
U.S. 1, 5 (1985)). “[A]pplication of Rule 68 will require
plaintiffs

to

‘think

very

hard’

about

whether

continued

litigation is worthwhile; that is precisely what Rule 68
contemplates.” Marek, 473 U.S. at 11.
Rule 1 makes clear that the Federal Rules of Civil
Procedure “govern the procedure in all civil actions and
proceedings,” except as provided for in Rule 81. Fed. R. Civ.
P. 1 (emphasis added). Rule 81 does not exempt Rule 23 from
Rule 68. Fed. R. Civ. P. 81.
Furthermore, the Advisory Committee was well aware of
Rule 23, but it chose not to exempt Rule 23, i.e., class
actions, from Rule 68’s purpose. To be sure, the Advisory
Committee rejected a proposed amendment to Rule 68 that would
have exempted Rule 23 from Rule 68. See Committee on Rules of
Practice and Procedure of the Judicial Conference of the
United States, Preliminary Draft of Proposed Amendments to
the Federal Rules of Civil Procedure (Sept. 1984), reprinted
in 102 F.R.D. 407, 433 (1985). “There is even some indication
that the Supreme Court would disapprove any effort to treat
class actions differently for Rule 68 purposes.” 12 CHARLES

3 

ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE & PROCEDURE § 3001.1
(2d ed. 1997).
Leahy-Fernandez’s Motion is also denied to the extent it
requests this Court to strike an offer of judgment that is
not a part of the record currently before the Court. Although
an offer of judgment is not filed until it is accepted or a
defendant

seeks

costs,

Fed.

R.

Civ.

P.

68(a)-(b),

it

nevertheless remains true that the Court simply has nothing
to strike until the offer is filed on the record. See White
v. Ally Fin. Inc., No. 2:12-cv-384, 2012 WL 2994302, at *3
(S.D. W. Va. July 20, 2012) (stating, “‘[t]here is nothing to
strike here, as an offer of judgment is not filed with the
court until accepted or until offered by a [defendant] to
provide costs’” (quoting McDowall v. Cogan, 216 F.R.D. 46, 52
(E.D.N.Y. 2003))) (second alteration in original).
In addition, Leahy-Fernandez’s Motion is denied to the
extent

it

requests

this

Court

to

declare

the

offer

ineffective. Bayview has not yet moved for relief under Rule
68. Thus, determining the effectiveness of Bayview’s offer of
judgment would be advisory. And, insofar as Leahy-Fernandez’s
argument for declaring the offer ineffective is based on her
contention that Rule 23 is exempted from Rule 68, the Court

4 

has already disposed of such an argument as unpersuasive based
on the plain text of the Rules.
In sum, the Rules make no provision for exempting class
actions

from

Rule

68

and

its

purpose

of

encouraging

settlements. Furthermore, the Court cannot strike that which
is not a part of the record. Finally, Bayview has not yet
moved for relief under Rule 68. Therefore, the Court denies
Leahy-Fernandez’s Motion.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
Plaintiff Cynthia Leahy-Fernandez’s Motion to Strike
Offer of Judgment or in the Alternative to Declare Offer of
Judgment Ineffective (Doc. # 40) is DENIED.
DONE and ORDERED in Chambers in Tampa, Florida, this
16th day of March, 2016.

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