Richard Weiss, on behalf of himself and all others similarly situated v. Regal Collections

PRECEDENTIAL
UNITED STATES
COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 03-4033
RICHARD WEISS, on behalf of himself
and all others similarly situated,
Appellant
v.
REGAL COLLECTIONS;
LANCER INVESTMENTS, INC.
On Appeal from the
United States District Court for the
District of New Jersey
D.C. Civil Action No. 01-cv-00881
(Honorable Alfred M. Wolin)
Argued May 28, 2004
Before: SCIRICA, Chief Judge,
FISHER and ALARCÓN*,
Circuit Judges
(Filed: September 29, 2004)
William J. Pinilis, Esquire (Argued)
Gabriel H. Halpern, Esquire
PinilisHalpern, LLP
237 South Street
Morristown, New Jersey 07960
Attorneys for Appellant
Bruce D. Greenberg, Esquire (Argued)
Lite DePalma Greenberg & Rivas, LLC
Two Gateway Center, 12th Floor
Newark, New Jersey 07102
Attorney for Appellees
OPINION OF THE COURT
SCIRICA, Chief Judge.
At issue is whether a putative class
representative’s claim is mooted by a Rule
68 offer of judgment so as to defeat federal
subject matter jurisdiction in a suit
requesting class-wide relief. This appeal
reflects the tension between two rules of
civil procedure—Fed. R. Civ. P. 23 and
Fed. R. Civ. P. 68—and whether they can
be harmonized when the only individual
relief requested by the representative
plaintiff has been satisfied through an
offer of judgment.1 The District Court
granted defendants’ motion to dismiss on
grounds of mootness. We will reverse and
remand.
*The Honorable Arthur L. Alarcón,
United States Circuit Judge for the Ninth
Judicial Circuit, sitting by designation.
1Our Court addressed a similar issue in
Colbert v. Dymacol., Inc., 302 F.3d 155
(3d Cir. 2002). That case was vacated and
reheard by the Court en banc, 305 F.3d
1256 (3d Cir. 2002), which then dismissed
the appeal as improvidently granted. 344
F.3d 334 (3d Cir. 2003).

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2
I. Facts
On October 25, 2000, defendant bill
collector Regal Collections mailed a letter
to Richard Weiss demanding payment of a
debt allegedly owed to Citibank.
Contending that certain statements in the
letter constituted unfair debt collection
practice in violation of the Fair Debt
Collections Practices Act (“FDCPA”), 15
U.S.C. § 1692, Weiss filed a federal class
action complaint on February 21, 2001,
seeking statutory damages on behalf of
himself and a putative nationwide class.
On March 2, 2001, Weiss filed an
amended complaint seeking declaratory
and injunctive relief under the FDCPA,
and adding Lancer Investments as a co-
defendant.
On April 16, 2001, before filing an
answer, and before Weiss moved to certify
a class, defendants made a Fed. R. Civ. P.
682 offer of judgment to Weiss in the
amount of $1000 plus attorney fees and
expenses—the maximum amount an
individual may recover under the FDCPA.
The offer of judgment provided no relief
to the class and offered neither injunctive
nor declaratory relief. Weiss declined to
accept the offer of judgment. Defendants
then filed a motion to dismiss under Fed.
R. Civ. P. 12(b)(1), arguing Weiss’s claim
was rendered moot because the Rule 68
offer provided him the maximum damages
available under the statute.3 For this
2Fed. R. Civ. P. 68 provides:
At any time more than 10
days before the trial begins,
a party defending against a
claim may serve upon the
adverse party an offer to
allow judgment to be taken
against the defending party
for the money or property or
to the effect specified in the
offer, with costs then
accrued. If within 10 days
after the service of the offer
the adverse party serves
written notice that the offer
is accepted, either party may
then file the offer and notice
of acceptance together with
proof of service thereof and
thereupon the clerk shall
enter judgment. An offer
not accepted shall be
deemed withdrawn and
evidence thereof is not
admissible except in a
proceeding to determine
costs. If the judgment
finally obtained by the
o f f er e e i s n o t m o r e
favorable than the offer, the
offeree must pay the costs
incurred after the making of
the offer.
3The FDCPA sets a $1000 statutory
limit on damages awarded in a private
actions. 15 U.S.C. § 1692k(a). The statute
also limits the amount of damages
recoverable in a class action to the “lesser
of $500,000 or 1 per centum of the net
wo rth of the debt collector.” §
1692k(a)(2)(B).

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3
reason, defendants contended the District
Court no longer had subject matter
jurisdiction over Weiss’s claims. The
District Court agreed and dismissed the
class action complaint.
II. Discussion
On appeal, Weiss asserts the Rule
68 offer did not provide the maximum
possible recovery because the complaint
requested declaratory and injunctive relief,
and sought recovery for a putative
nationwide class. As such, Weiss argues
his claim was not rendered moot by the
Rule 68 offer, and the District Court erred
in dismissing the class action complaint.4
Despite Weiss’s assertion, the FDCPA
does not permit private actions for
declaratory or injunctive relief. The
principal question, therefore, is whether
defendants’ Rule 68 offer mooted the
claim.
Article III of the United States
Constitution limits the jurisdiction of the
federal courts to “cases and controversies.”
U.S. Const. art. III § 2; Flast v. Cohen, 392
U.S. 83, 94 (1968). When 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. County of Los Angeles
v. Davis, 440 U.S. 625, 631 (1979). An
offer of complete relief will generally
moot the plaintiff’s claim, as at that point
the plaintiff retains no personal interest in
the outcome of the litigation. Rand v.
Monsanto Co., 926 F.2d 596, 598 (7th Cir.
1991) (“Once the defendant offers to
satisfy the plaintiff's entire demand, there
is no dispute over which to litigate and a
plaintiff who refuses to acknowledge this
loses outright, under Fed. R. Civ. P.
12(b)(1), because he has no remaining
stake.”) (internal citation omitted); see
also 13A Charles Alan Wright & Arthur
R. Miller, Fed. Practice and Procedure:
Jurisdiction 2d § 3533.2, at 236 (2d ed.
1984) (“Even when one party wishes to
persist to judgment, an offer to accord all
of the relief demanded may moot the
case.”).
A.
As a threshold matter, we 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 Weiss individually under
the FDCPA. The FDCPA allows a
plaintiff to recover “any actual damage
sustained”5 as a result of the debt
collector’s violation of the FDCPA, as
well as “such additional damages as the
court may allow, but not exceeding
$1,000,” and “the costs of the action,
4We exercise plenary review over the
District Court’s dismissal of a complaint.
Oran v. Stafford, 226 F.3d 275, 281 n.2
(3d Cir. 2000).
5Weiss does not allege any actual
damages. Cf. Colbert, 344 F.3d 334 (3d
Cir. 2003) (en banc) (reversing order of
dismissal because all relief requested in
complaint not included in Fed. R. Civ. P.
68 offer).

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4
together with a reasonable attorney’s fees
determined by the court.” 15 U.S.C. §
1692k(a)(1), (2)(A), (3).
The FDCPA contains no express
provision for injunctive or declaratory
relief in private actions. See 15 U.S.C. §
1692k (listing damages and counsel fees as
remedies, but not declaratory or injunctive
relief).6 Most courts have found equitable
relief unavailable under the statute, at least
with respect to private actions. See
Crawford v. Equifax Payment Servs., Inc.,
201 F.3d 877, 882 (7th Cir. 2000) (noting
that all private actions under the FDCPA
are for damages); Bolin v. Sears Roebuck
& Co., 231 F.3d 970, 977 n.39 (5th Cir.
2000) (“[A]lthough this circuit has not
definitively ruled on the issue, courts
uniformly hold that the FDCPA does not
authorize equitable relief.”); Sibley v.
Fulton Dekalb Collection Servs., 677 F.2d
830, 834 (11th Cir. 1982) (holding in dicta
that equitable relief is not available to an
individual under the Act.) 7
The remedies under the FDCPA
differ depending on who brings the
action.8 Compare 15 U.S.C. § 1692k(a)
(damage remedies for private litigants)
with 15 U.S.C. § 1692l (administrative
e n f o r c e m e n t b y F e d e ra l T r a d e
Commission). The statute authorizes
damages for civil liability, but permits only
the Federal Trade Commission to pursue
injunctive or declaratory relief. See 15
6The language of the FDCPA provides
that a debt collector who fails to comply
with the Act shall be liable for an
“amount.” 15 U.S.C. § 1692k(a).
7As noted, most courts have found
declaratory or equitable relief is not
available to private litigants under the
FDCPA. See, e.g., In re Risk Mgmt.
Alternatives, Inc. Fair Debt Collection
Practices Litig., 208 F.R.D. 493, 503
(S.D.N.Y. 2002); Goldberg v. Winston &
Morrone, 1997 U.S. Dist. LEXIS 3521
(S.D.N.Y. Mar. 26, 1997). Some courts
have found declaratory relief is available
to a certified class. See, e.g., Ballard v.
Equifax Check Servs., 158 F. Supp. 2d
1163, 1177 (E.D . Cal. 2001) (allowing
declaratory relief in a class action);
Woodard v. Online Info. Servs., 191
F.R.D. 502, 507 (E.D.N.C. 2000) (same);
Gammon v. GC Servs. Ltd. P’ship, 162
F.R.D. 313, 319-20 (N.D. Ill. 1995)
(same).
8The legislative history of the Act also
suggests two categories of penalties
depending on who brings the action. See
95 S. Rep. 382, at 5 (discussing “civil
l i a b i l i t y ” a n d “ a d m i n i s t r a t i v e
enforcement” under separate sub-
headings); see also Zanni v. Lippold, 119
F.R.D. 32, 34 (C.D. Ill. 1988) (relying on
dual penalty schemes in legislative history
of FDCPA to support conclusion that
equitable relief is unavailable to private
litigants).

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5
U.S.C. § 1692l.9 Some trial courts have
interpreted this statutory structure to
preclude injunctive or declaratory relief in
private actions. See Zanni v. Lippold, 119
F.R.D. 32, 33-34 (C.D. Ill. 1988) (“‘The
FDCPA specifically authorizes the Federal
Trade Commission (FTC) to seek
injunctive relief . . . and defendant
persuasively argues that this is a strong
indication of Congress' intent to limit
private actions to damage claims.’”)
(quoting Strong v. Nat’l Credit Mgmt. Co.,
600 F. Supp. 46 (E.D. Ark. 1984)); see
also Washington v. CSC Credit Servs., 199
F.3d 263, 268 (5th Cir. 2000) (“[Under the
Fair Credit Reporting Act, the] affirmative
grant of power to the FTC to pursue
injunctive relief, coupled with the absence
of a similar grant to private litigants, when
they are expressly granted the right to
obtain damages and other relief,
persuasively demonstrates that Congress
vested the power to obtain injunctive relief
solely with the FTC.”). Because the
statute explicitly provides declaratory and
equitable relief only through action by the
Federal Trade Commission, we believe the
different penalty structure demonstrates
Congress’s intent to preclude equitable
relief in private actions.
For these reasons, we hold
injunctive and declaratory relief are not
available to litigants acting in an
individual capacity under the FDCPA.
Therefore, the Rule 68 offer provided all
the relief available to Weiss as an
individual plaintiff acting in his personal
capacity.
Of course, the Rule 68 offer did not
provide the maximum damages to the
putative class. For class actions, the
maximum relief under the FDCPA is
greater. The FDCPA authorizes additional
recovery for non-named class members
“without regard to a minimum individual
recovery, not to exceed the lesser of
$500,000 or 1 per centum of the net worth
of the debt collector.” 15 U.S.C. §
1692k(a)(2)(B). Because defendants’ Rule
68 offer included no relief for the putative
class, either under the provisions of the
FDCPA or through the aggregation of
class claims, we address the mootness
question in that context.
9Section 1692l provides, in part:
Administrative enforcement
( a ) F e d e r a l T r a d e
Commission. Compliance
with this title shall be
e n f o r c e d b y t h e
Commission, except to the
extent that enforcement of
the requirements imposed
under this title is specifically
committed to an o ther
agency under subsection (b)
. . . . All of the functions and
powers of the Commission
under the Federal Trade
Commission Act [15 USCS
§§ 41 et seq.] are available
to the Commission to
enforce compliance by any
person with this title . . . .

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6
B.
1.
The Federal Rules of Civil
P r o c e d u r e a r e d e s i g n e d t o b e
interdependent. See Fed. R. Civ. P. 1
(“These rules govern the procedure in . . .
all suits of a civil nature . . . .”); Canister
Co. v. Leahy, 182 F.2d 510, 514 (3d Cir.
1950) (“[The Rules] must be considered in
relation to one another.”). Whenever
possible we should harmonize the rules.
In the event of an unreconcilable conflict,
then one rule of procedure may have to
take precedence over another.
As discussed, under traditional
mootness principles, an offer for the
entirety of a plaintiff’s claim will generally
moot the claim. We have held a class
action may be dismissed when the named
plaintiff’s claim is rendered moot before
filing a motion for class certification. See
Brown v. Phila. Hous. Auth., 350 F.3d
338, 343 (3d Cir. 2003) (“[W]hen claims
of the named plaintiffs become moot
before class certification, dismissal of the
action is required.”) (quoting Lusardi v.
Xerox Corp., 975 F.2d 964, 974 (3d Cir.
1992)). Defendants argue this action is
moot because they submitted the Fed. R.
Civ. P. 68 offer for complete individual
relief before Weiss filed a motion for class
certification.
The question of mootness in the
class action context is not a simple one.
See Lusardi, 975 F.2d at 974 (“[S]pecial
mootness rules apply in the class action
context, where the named plaintiff
purports to represent an interest that
extends beyond his own.”). Nonetheless,
it appears to be settled that once a class has
been certified, mooting a class
representative’s claim does not moot the
entire action because the class “acquire[s]
a legal status separate from the interest
asserted by [the named plaintiff].” Sosna
v. Iowa, 419 U.S. 393, 399 (1975).
In two decisions in 1980, United
States Parole Comm’n v. Geraghty, 445
U.S. 388 (1980) and Deposit Guar. Nat’l
Bank v. Roper, 445 U.S. 326 (1980), the
Supreme Court provided some guidance in
this area. These cases permitted a named
plaintiff whose individual claims were
mooted to appeal a denial of class
certification.
In Geraghty, the question presented
was “whether a trial court’s denial of a
motion for certification of a class may be
reviewed on appeal after the named
plaintiff’s personal claim has become
‘moot.’” 445 U.S. at 390. The Court
looked beyond the mootness of Geraghty’s
substantive claims and focused on his
distinct “procedural . . . right to represent
a class.” Id. at 402. The Court held the
action was not moot upon the expiration of
the substantive claim, because the plaintiff
retained a “personal stake” in the class
certification decision. Id. at 404.
Of special significance to this
appeal, in Roper, the Supreme Court
expressed concern at a defendant’s ability
to “pick off” named plaintiffs by mooting
their private individual claims. 445 U.S.
at 339. Credit card holders brought a class
action challenging finance charges levied

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7
on their accounts and those of similarly
situated card holders. Id. at 328-29. After
the district court denied their motion for
class certification, the bank tendered to
each named plaintiff the maximum
amount he would have received
individually. Id. at 329. The named
plaintiffs refused the offer, but the district
court, over their objections, entered
judgment in their favor and dismissed the
action as moot. Id. at 330. The Court of
Appeals for the Fifth Circuit reversed,
noting: “The notion that a defendant may
short-circuit a class action by paying off
the class representatives either with their
acquiescence or, as here, against their will,
deserves short shrift. Indeed, were it so
easy to end class actions, few would
survive.” Roper v. Consurve, Inc., 578
F.2d 1106, 1110 (5th Cir. 1978).
Granting certiorari, the Supreme
Court considered whether putative class
representatives retained a private interest
in appealing the denial of class
certification subsequent to the entry of
judgment in their favor, over their
objections. The bank argued the entire
case had been mooted by the individual
offers. The Supreme Court disagreed,
stating:
Requiring multiple plaintiffs
to bring separate actions,
which effectively could be
‘ p i c k e d o f f ’ b y a
defend ant’s tender o f
j u d g m e n t b e f o r e a n
affirmative ruling on class
certification could be
obtained, obviously would
frustrate the objectives of
class actions; moreover it
would invite waste of
j u d i c ia l r e so u r c e s b y
stimulating successive suits
brought by others claiming
aggrievement.
445 U.S. at 339.
Then-Associate Justice Rehnquist
concurred in the judgment, but wrote
separately, commenting:
The distinguishing feature
here is that the defendant
has made an unaccepted
offer of tender in settlement
of the individual putative
representative’s claim. The
action is moot in the Art. III
sense only if this Court
adopts a rule that an
individ u a l s e e k i n g to
p r o c e e d a s a c l a s s
representative is required to
accept a tender of only his
individual claims. So long
as the court does not require
s u c h a c c e p t a n c e , t h e
individual is required to
prove his case and the
requisite Art. III adversity
continues. Acceptance [of
defendant’s offer] need not
be mandated under our
p r e c e d e n t s i n c e t h e
defendant has not offered all
that has been requested in
the complaint (i.e. relief for
the class) . . . .

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8
Id. at 341 (Rehnquist, J., concurring).
We recognize Roper addressed a
different issue, whether a putative class
representative retains an individual interest
in appealing the denial of class
certification subsequent to an entry of
judgment in his favor, to which he
objected.10 But the matters addressed in
Roper—particularly a defendant’s ability
to “pick off” representative plaintiffs and
thwart a class action—have direct
application to the issue presented by this
appeal.11 Of course, plaintiff here was
only a putative class representative.
Although Weiss filed a class complaint, he
had not yet moved for class certification.
As sound as is Rule 68 when
applied to individual plaintiffs, its
application is strained when an offer of
ju d g m e n t i s m a d e t o a c l a ss
representative.12 As in Roper, allowing
10We also acknowledge Roper
specifically limited its holding, stating:
“Difficult questions arises as to what, if
an y, a r e t h e n am e d p l a i n ti f f s’
responsibilities to the putative class prior
to certification; this case does not require
us to reach these questions.” 445 U.S. at
340 n.12 (emphasis in original).
11One court considering the identical
issue to ours in a FDCPA class action
commented: “The rationale animating the
Court’s determination [in Roper] . . .
speaks directly to the concerns present
here.” White v. OSI Collection Servs., Inc.,
2001 U.S. Dist. LEXIS 19879, at *12
(E.D.N.Y. Nov. 5, 2001).
12Courts have wrestled with the
application of Rule 68 in the class action
context, noting Rule 68 offers to
individual named plaintiffs undercut close
court supervision of class action
settlements, create conflicts of interests for
named plaintiffs, and encourage premature
class certification motions. See Gibson v.
Aman Collection Serv. Inc., 2001 U.S.
Dist. LEXIS 10669, at *8 (S.D. Ind. July
23, 2001) (recognizing conflict of interest
posed by Rule 68 offer to lead plaintiff);
Gay v. Waiter’s and Dairy Lunchmen’s
Union, 86 F.R.D. 500, 502-03 (N.D. Cal.
1980). Justice Brennan also discussed the
conflict of interests facing named
representatives presented with a Rule 68
offer in Marek v. Chesny, 473 U.S. 1, 35
n.49 (1985) (Brennan, J., dissenting).
No express statement limits the
application of Fed. R. Civ. P. 68 in class
actions. Proposed amendments to make
Rule 68 inapplicable to class actions were
suggested in 1983 and 1984, and they were
rejected both times. The proposals read in
part: “[t]his rule shall not apply to class or
derivative actions under Rules 23, 23.1,
and 23.2.” See 98 F.R.D. at 363; 102
F.R.D. at 433. In support of the proposals,
the Advisory Committee wrote: “An
offeree’s rejection would burden a named
representative-offeree with the risk of
exposure to heavy liability [for costs and
expenses] that could not be recouped from
unnamed class members. . . . [This] could
lead to a conflict of interest between the
named representatives and other members

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9
the defendants here to “pick off” a
representative plaintiff with an offer of
judgment less than two months after the
complaint is filed may undercut the
viability of the class action procedure, and
frustrate the objectives of this procedural
mechanism for aggregating small claims,
like those brought under the FDCPA.
The purposes behind Fed. R. Civ.
P. 23 are well-recognized. “A significant
benefit to claimants who choose to litigate
their individual claims in a class-action
context is the prospect of reducing their
costs of litigation, particularly attorney’s
fees, by allocating such costs among all
members of the class who benefit from the
recovery.” Roper, 445 U.S. at 338 n.9.
The Supreme Court also commented that
“[c]lass actions . . . may permit the
plaintiffs to pool claims which would be
uneconomical to litigate individually. For
example, this lawsuit involves claims
averaging about $100 per plaintiff; most
of the plaintiffs would have no realistic
day in Court if a class action were not
available.” Phillips Petroleum v. Shutts,
472 U.S. 797, 809 (1985). This “[c]ost-
spreading can also enhance the means for
private attorney general enforcement and
the resulting deterrence of wrongdoing.”
In re Gen’l Motors Corp., Pick-up Truck
Fuel Tank Prods. Liab. Litig., 55 F.3d
768, 784 (3d Cir. 1995). Allowing
defendants to “pick off” putative lead
plaintiffs contravenes one of the primary
purposes of class actions—the aggregation
of numerous similar (especially small)
claims in a single action.
Moreover, a rule allowing plaintiffs
to be “picked off” at an early stage in a
putative class action may waste judicial
resources by “stimulating successive suits
brought by others claiming aggrievement.”
Roper, 445 U.S. at 339. This result is
contrary to the purpose of Fed. R. Civ. P.
68 as well. See 13 Moore’s Federal
Practice § 68.02[2], at 68-7 (3d ed. 2004)
(“The primary purpose of Rule 68 is to
promote settlements and avoid protracted
of the class.” Advisory Committee’s Note
to Proposed Amendment to Rule 68, 102
F.R.D. at 436. See also Roy D. Simon, Jr.,
The Riddle of Rule 68, 54 Geo. Wash. L.
Rev. 1, 52 (1985) (discussing rule changes
and rationale for rejecting changes).
The leading treatises recognize the
tension between these two procedural
rules. See, e.g., 12 Charles Alan Wright &
Arthur R. Miller, Fed. Practice and
Procedure § 3001.1, at 76 (2d ed. 1997)
(“There is much force to the contention
that, as a matter of policy [Rule 68] should
not be employed in class actions.”); 13
James William M oore et. al., Moore’s
Federal Practice ¶ 68.03[3], at 68-15 (3d
ed. 2004) (“policy and practicality
considerations make application of the
offer of judgment rule to class and
derivative actions questionable.”); 5
Newberg on Class Actions § 15.36, at 115
(4th ed.) (“[B]y denying the mandatory
imposition of Rule 68 in class actions,
class representatives will not be forced to
abandon their litigation posture each time
they are threatened with the possibility of
incurring substantial costs for the sake of
absent class members.”).

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10
litigation.”).
There is another significant
consideration. Congress explicitly
provided for class damages in the FDCPA.
See 15 U.S.C. § 1692k(a)(2)(B )
(establishing maximum damages in class
actions under the FDCPA). Congress also
intended the FDCPA to be self-enforcing
by private attorney generals. See S. Rep.
No. 95-382 p.5 (describing FDCPA as
“self-enforcing”); see also Graziano v.
Harrison, 950 F.2d 107, 113 (3d Cir.
1991) (“[FDCPA] mandates an award of
attorney’s fees as a means of fulfilling
Congress’s intent that the Act should be
enforced by debtors acting as private
attorneys general.”). Representative
actions, therefore, appear to be
fundamental to the statutory structure of
the FDCPA. Lacking this procedural
mechanism, meritorious FDCPA claims
might go unredressed because the awards
in an individual case might be too small to
prosecute an individual action. For this
reason, defendants’ view of the interplay
between Fed. R. Civ. P. 23 and Fed. R.
Civ. P. 68 would frustrate Congress’s
explicit directive that the FDCPA be
enforced by private attorney generals
acting in a representative capacity.
Alleged violators of federal law would be
allowed to tender the statutory amount of
damages to a named plaintiff, derailing a
putative class action and frustrating the
goals and enforcement mechanism of the
FDCPA.13
2.
As the Court in Geraghty stated,
“mootness . . . can be avoided through
certification of a class prior to expiration
of the named plaintiff's personal claim.”
445 U.S. at 398; see also Holstein v. City
of Chi., 29 F.3d 1145, 1147-48 (7th Cir.
1994) (finding case moot where plaintiff
did not move for class certification before
“evaporation of his personal stake”).
Some appellate courts have extended
Geraghty and declined to dismiss on
mootness grounds while class certification
was pending. See Susman v. Lincoln Am.
Corp., 587 F.2d 866, 869-71 (7th Cir.
1978) (holding case not moot when class
certification motion was pending before
district court at the time named plaintiffs
were tendered damages); Zeidman v. J.
Ray McDermott & Co., 651 F.2d 1030,
1051 (5th Cir. July 1981) (“conclud[ing]
that a suit brought as a class action should
not be dismissed for mootness upon tender
to the named plaintiffs of their personal
claims, at least when, as here, there is
pending before the district court a timely
filed and diligently pursued motion for
13Class actions may be well-suited to
the FDCPA, where an individual
claimant’s damages are capped at $1,000.
As one trial court commented: “The
FDCPA caps individual statutory damages
at $1,000, so no individual statutory
damages claim is very large. Thus, it may
be financially feasible for the defendant to
buy off successive plaintiffs in the hopes
of preventing class certification.” White v.
OSI Collection Servs., 2001 U.S. Dist.
LEXIS 19879, at *16 n.7 (E.D.N.Y. Nov.
5, 2001).

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11
class certification.”); see also Lusardi, 975
F.2d 964, 975 (3d Cir. 1992) (noting the
exception to the general mootness rule
where a certification motion which district
court did not have a reasonable
opportunity to decide was filed before
plaintiff’s claim expired). As noted,
although plaintiff here filed a class
complaint, he never filed a motion for
class certification. His individual claim
was allegedly “mooted” by the Rule 68
offer before the court had a reasonable
opportunity to consider class certification
under Fed. R. Civ. P. 23. This situation is
not uncommon in FDCPA cases and has
created an unsettled area of law.14
3.
There appears to be considerable
authority that once a motion for class
certification has been filed, the “relation
back” doctrine explained by the Supreme
Court in Sosna v. Iowa, 419 U.S. 393, 399
(1975) comes into play. In Sosna, the
Court recognized:
There may be cases in
which the controv ersy
i n v o lv i n g t h e n am e d
plaintiffs is such that it
becomes moot as to them
before the district court can
reasonably be expected to
rule on a certification
motion. In such instances,
whether the certification can
be said to ‘relate back’ to
the filing of the complaint
may depend upon the
c i r c u m s ta n c e s o f t h e
p a r t i c u l a r c a s e a n d
especially the reality of the
14Several courts have found that when
a Fed. R. Civ. P. 68 offer of judgment for
the entire individual claim follows closely
on the heels of the filing of an FDCPA
class complaint, the case should not be
dismissed. See Nasca v. GC Servs., 2002
U.S. Dist. LEXIS 16992, at *9 (S.D.N.Y.
2002) (“To allow a Rule 68 offer to moot
a named plaintiff’s claim in these
circumstances would en courage
defendants to pick off named plaintiffs in
the earliest stage of the case.”); Schaake v.
Risk Mgmt. Alternatives, Inc., 203 F.R.D.
108, 112 (S.D.N.Y. 2001) (“Here, it is true
no motion for class certification was
pending at the time defendant made its
Rule 68 Offer of Judgment. However, the
complaint was filed on May 23 . . . and
the Rule 68 offer was made a mere 32
days later, well before plaintiff could be
reasonably expected to file its class
certification motion.”); Liles v. Am.
Corrective Counseling Servs., Inc., 201
F.R.D. 452, 455 (S.D. Iowa 2001).
As another approach, some courts
have held a motion to certify the class filed
within the Rule 68 ten-day offer period
will avoid mootness. See Parker v. Risk
Mgmt. Alternatives, Inc., 204 F.R.D. 113,
115 (N.D. Ill. 2001) (claim not mooted
where class certification motion filed
before expiration of ten day period);
Kremnitzer v. Cabrera & Rephen, P.C.,
202 F.R.D. 239, 244 (N.D. Ill. 2001)
(same).

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12
claim that otherwise the
issue would evade review.
Id. at 402 n.11. Furthermore, in Geraghty
the Court held class certification may
relate back to the filing of the complaint
where claims are “so inherently transitory
that the trial court will not have even
enough time to rule on a motion for class
certification before the proposed
re pr es en tat ive's individual interest
expires." 445 U.S. at 399 (1980). The
mootness exception recognizes that, in
certain circumstances, to give effect to the
purposes of Rule 23, it is necessary to
conceive of the named plaintiff as a part of
an indivisible class and not merely a single
adverse party even before the class
certification question has been decided.
By relating class certification back to the
filing of a class complaint, the class
representative would retain standing to
litigate class certification though his
individual claim is moot. But the question
in this case is whether the “relation back”
doctrine should apply only after the filing
of a motion for class certification or
whether it may also be employed after the
filing of a class complaint.
The “relation back” doctrine
generally has been used for “inherently
transitory” claims. See County of
Riverside v. McLaughlin, 500 U.S. 44, 52
(1991) (quoting Geraghty, 445 U.S. at
399). Although Weiss’s claims here are
not “inherently transitory” as a result of
being time sensitive, they are “acutely
susceptible to mootness,” Comer v.
Cisneros, 37 F.3d 775, 797 (2d Cir. 1994),
in light of defendants’ tactic of “picking
off” lead plaintiffs with a Rule 68 offer to
avoid a class action. As noted, this tactic
may deprive a representative plaintiff the
opportunity to timely bring a class
certification motion, and also may deny the
court a reasonable opportunity to rule on
the motion.15
It bears noting that most of the
cases applying the relation back doctrine
have done so after a motion to certify the
class has been filed. See Zeidman v. J.
Ray McDermott & Co., 651 F.2d 1030,
1048-49 (5th Cir. July1981); Susman v.
Lincoln Am. Corp., 587 F.2d 866, 869-71
(7th Cir, 1978).16 Nonetheless, reference
15One commentator addressed the
problems encountered in Riverside, which
are similar to those presented here. David
Hill Koysza, Note, Preventing Defendants
from Mooting Class Actions By Picking off
Named Plaintiffs, 53 Duke L.J. 781, 804-
805 (2003); see also 13 James William
Moore, et al., Moore’s Federal Practice §
68.03[3] (3d ed. 2004) (advocating
application of the relation back doctrine to
problem of claims being “picked off”).
16At least one case has explicitly
applied the relation back doctrine to Rule
68 offers made before a class certification
motion is filed. See White, 2001 U.S. Dist.
LEXIS 19879, at *16 n.7 (“[I]t may be
financially feasible for the defendant to
buy off successive plaintiffs in the hopes
of preventing class certification. It is in
this sense that plaintiff’s claim is acutely
susceptible to mootness, and thereby fairly
characterized as transitory.”); see also

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13
to the bright line event of the filing of the
class certification motion may not always
be well-founded. Representative actions
vary according to the substantive claims
and the courses of action. There are at
least three distinct events on the path to a
certified class: filing the class complaint,
filing the motion for class certification,
and a decision on the motion. Yet
plaintiffs may file the class certification
motion with the class complaint, and in
some cases, include a motion for approval
of an already negotiated settlement. Of
course, the federal rules do not require
certification motions to be filed with the
class complaint, nor do they require or
encourage prem ature certif icatio n
determinations.17 It seems appropriate,
therefore, that the class action process
should be able to “play out” according to
the directives of Rule 23 and should permit
due deliberation by the parties and the
court on the class certification issues.
That said, the proper procedure is
for the named representative to file a
motion for class certification. That did not
occur here. But neither was there undue
delay.18 In circumstances like these, we
believe the relation back doctrine should
apply. Absent undue delay in filing a
motion for class certification, therefore,
McDowall, 216 F.R.D. 46, 50 n.4
(discussing relation back doctrine in
reaching conclusion that FDCPA case not
moot). As noted in footnote 12, several
cases have declined to dismiss the class
claims on mootness grounds even when
the Rule 68 offer came before the filing of
a motion for class certification, but these
cases have not explicitly relied on the
relation back doctrine.
17Fed. R. Civ. P. 23 directs that
certification decisions be made “at an
early practicable time.” Fed. R. Civ. P.
23(c)(1)(a). This recent amendment
replaced the language of the old rule: The
former “‘as soon as practicable’ exaction
neither reflect[ed] prevailing practice nor
capture[ed] the many valid reasons that
may justify deferring the initial
certification decision.” See Fed. R. Civ. P.
23(c)(1)(a) Advisory Committee Notes.
Nor do local rules require or envision
expedited certification decisions. See E.
Dist. Pa. L.R.C.P. 23.1(c) (requiring the
filing of the certification motion within 90
days after filing the complaint).
Allowing time for limited discovery
supporting certification motions may also
be necessary for sound judicial
administration. See Newton v. Merrill
Lynch, Pierce, Fenner & Smith, Inc., 259
F.3d 154, 166 (3d Cir. 2001) (“[I]t may
be necessary for the Court to probe behind
the pleadings before coming to rest on the
certification question.”) (quoting Gen. Tel.
Co. v. Falcon, 457 U.S. 147, 160 (1982));
7B Wright and Miller, Fed. Practice and
Procedure § 1785, at 107 (“The
[certification] determination usually
should be predicated on more information
than the complaint itself affords.”).
18Defendants made their Rule 68 offer
six weeks after plaintiff filed his amended
complaint.

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14
where a defendant makes a Rule 68 offer
to an individual claim that has the effect of
mooting possible class relief asserted in
the complaint, the appropriate course is to
relate the certification motion back to the
filing of the class complaint.19 Because in
this case, no motion for class certification
was made, we will direct the trial court to
allow Weiss to file the appropriate motion.
4.
We recognize our decision creates
some tension with our opinion in Lusardi
v. Xerox Corp., 975 F.2d 964 (3d Cir.
1992), but we believe the cases can be
reconciled.20 In Lusardi, the named
plaintiffs, f o l l o w i n g tw o o r ders
decertifying a class, agreed to a full and
unconditional release of their individual
age discrimination claims, and the court
dismissed their individual claims. Id. at
968-69. Nonetheless, the named plaintiffs
filed a de novo motion for class
certification. After the trial court
dismissed the class claims as moot, we
affirmed, noting that after the named
plaintiff’s claims had been voluntarily
settled, they no longer had justiciable
19To hold otherwise would
automatically result in a plaintiff seeking
class relief in a consumer representative
action to file a motion for class
certification at the time of filing the class
complaint. As one trial court noted:
“Hinging the outcome of this motion [to
dismiss] on whether or not class
certification has been filed is not well-
supported in the law nor sound judicial
practice; it would encourage a ‘race to pay
off’ named plaintiffs very early in the
litigation, before they file motions for class
certification.” Liles v. Am. Corrective
Counseling Servs., 201 F.R.D. 452, 455
(S.D. Iowa 2001).
20Our decision may also appear to
create tension with Brown v. Phila. Hous.
Auth., 350 F.3d 338 (3d Cir. 2003), where
we noted that “when claims of the named
plaintiffs become moot before class
certification, dismissal of the action is
required.” Id. at 343 (quoting Lusardi,
975 F.2d at 974). But, Brown is
distinguishable on its facts.
In Brown, the housing authority and
certain tenants entered into a consent
decree in 1974. Id. No class was ever
certified. Upon discovering that the
named plaintiffs had not been tenants in
1974 nor in 2002, the housing authority
moved in 2002 to vacate the original 1974
consent decree. The district court rejected
this motion and the housing authority
appealed to this court. We held that the
consent decree should be vacated because
appellees were not housing authority
tenants at the entry of the consent decree in
1974 nor in 2002. In so doing, we rejected
the appellees argument for “implied class
certification.” Id. at 343, 346. Therefore,
lacking representative and individual
interests, their claims were clearly moot.
Furthermore, the tenants’ claims in Brown
were not mooted by purposive action of
the housing authority but rather because
they were not public housing tenants at the
relevant times.

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15
claims when they moved for class
certification. Id. at 979-80.
Unlike the case here, Lusardi did
not involve an offer of judgment made in
response to the filing of a complaint. The
named plaintiffs voluntarily entered into
individual settlements subsequent to class
decertification. See id. at 979 (“Here,
there is no dispute that plaintiffs
voluntarily settled their individual
claims.”). In this appeal, the “picking off”
scenarios described by the Supreme Court
in Roper are directly implicated. In
Lusardi they were not. The Roper Court
stressed that “at no time did the named
plaintiffs accept the tender in settlement of
the case; instead, judgment was entered in
their favor by the court without their
consent.” 445 U.S. at 332. Similarly, in
Zeidman, the Court of Appeals for the
Fifth Circuit wrote:
[P]laintiffs claims have been
rendered moot by purposive
action of the defendants . . .
. By tendering to the named
plaintiffs the full amount of
their personal claims each
time suit is brought as a
class action, the defendants
can in each successive case
moot the named plaintiffs’
claims before a decision on
certification is reached.
651 F.2d 1030, 1049-50. The tactic at play
here, similar to those described in Roper
and Zeidman, contrasts with the voluntary
settlement in Lusardi where the plaintiffs
agreed to settle with the defendants after
two motions for class certification had
been denied. Indeed, even Lusardi noted,
in a somewhat different context, that it
“simply was not a case where . . . the
class-action defendant successfully
prevented effective resolution of a class
certification issue.” Lusardi, 975 F.2d at
983. In Lusardi, no unilateral action by
the Defendant rendered the plaintiffs’
claims “inherently transitory.” Defendants
here used the Rule 68 offer to thwart the
putative class action before the
certification question could be decided.
Under this set of circumstances, we
believe the tension between Fed. R. Civ.
P. 23 and Fed. R. Civ. P. 68 should be
addressed through the “relation back”
analysis.21
21Weiss also argues Fed. R. Civ. P.
23(e) requires court approval of the Rule
68 offer of judgment before dismissing the
class complaint. Several courts, including
our own, had concluded the supervisory
guarantees of the former Rule 23(e)
applied in the pre-certification context.
See Kahan v. Rosenstiel, 424 F.2d 161,
169 (3d Cir. 1970) (“a suit brought as a
class action should be treated as such for
purposes of dismissal or compromise, until
there is a full determination that the class
action is not proper”).
These holdings arguably have been
superseded by the 2003 Amendments to
the Federal Rules of Civil Procedure
which provide that Fed. R. Civ. P. 23(e)
approval is required only after a class has
been certified. The rule was revised in
2003, to provide: “The court must approve

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16
III.
For the foregoing reasons, the
judgment of the District Court will be
reversed and the matter will be remanded
for proceedings consistent with our
opinion.
any settlement, voluntary dismissal, or
compromise of the claims, issues, or
defenses of a certified class.” Fed. R. Civ.
P. 23(e)(1)(a) (emphasis added). The
Advisory Committee Notes state the
amendment was designed to remove
ambiguity regarding the application of
Rule 23(e) approvals at the pre-
certification stage:
Rule 23(e)(1)(A) resolves
the ambiguity in former
Rule 23(e)’s reference to
dismissal or compromise of
a “class action.” That
language could be—and at
times was— read to require
c o u r t a p p r o v a l o f
settlements with putative
class representatives that
resolved only individual
claims. The new rule
requires approval only if the
claims, issues, or defenses
of a certified class are
resolved by settlement,
voluntary dismissal, or
compromise.
2003 Adv isory Com mittee N otes
(emphasis added). Nevertheless, given our
holding here, we need not address this
argument.

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