Settlements: Ninth Circuit Law On Structuring F.R.Civ.P. 68 Offer So As To Moot Cases—Different Than Other Federal Decisions Cited In Our May 5, 2014 Post

 

Ninth Circuit Splits With Other Circuits on this Issue.

     Given that we primarily blog on California cases (including those from the Ninth Circuit), we provide an update on a post of May 5, 2014, surveying cases on how a federal Rule 68 offer could or could not moot a consumer (FDCPA) case.

     We canvassed non-Ninth Circuit cases on the issue, which sometimes did or did not rule a case was moot depending on the circumstances. However, it appears that the Ninth Circuit holds that an unaccepted Rule 68 offer that would fully satisfy a plaintiff’s claim is insufficient to render the claim moot. (Diaz v. First American Home Buyers Protection Corp., 732 F.3d 948, 954-955 (9^th Cir. 2013).)

     This puts the Ninth Circuit squarely at odds with other circuits, resulting in quite a sharp split among federal circuits that likely needs to be resolved some day. If you want more information on Diaz and the circuit court of appeals’ division on the issue, see “Recent Cases,” 127 HARVARD L. REV. 1260-1267 (2014) [commentary on Diaz, observing in a footnote that it is inconsistent with Doyle—the latter being a decision we cited in our May 5, 2014 post].

     HAT TIP—We thank Fred W. Schwinn, Esq. of Consumer Law Center, Inc. in San Jose, California for calling Diaz to our attention. Thanks. Mr. Schwinn.