We have commented before in this space about using offers of judgment to “pick off” the named plaintiff in a class action case, a tactic the Supreme Court addressed in Campbell-Ewald v. Gomez, 136 S. Ct. 663 (2016). There, the Supreme Court held that an unaccepted offer of judgment does not moot the case, at least where the defendant hasn’t actually deposited the money comprising the offer in an account payable to the plaintiff. The unsettled jurisprudence in this area has led to some strange procedural wrangling in the lower federal courts.
Judge Conrad dealt with one such maneuver – a so-called “placeholder motion for class certification” – in a recent decision. In RJR Chiropractic Center, Inc. v. BSN Medical, Inc., No. 3:16-cv-00842 (W.D.N.C. Oct. 11, 2017), the Court commented on plaintiffs’ filing of “vague placeholder motions to certify class simultaneously with their complaint,” in an effort to “beat defendants to the punch.” Id. at 4. The court took a dim view of this gambit, concluding that it was an “obsolete procedural tactic” in light of Campbell-Ewald Co.. Id. at 5. Because the complaint “faces no threat of becoming moot if [defendant unsuccessfully] attempts to pick-off [the plaintiff],” the Court was “left with a pending motion filled with vague allegations that is of no utility to either party.” Id. The placeholder motion, in the Court’s view, could not survive the “rigorous gambit of Rule 23,” “having been filed prior to any discovery” and containing no evidence supporting its contentions. Id. at 6.
Other permutations to Rule 68 lie in store, to be sure, but the “placeholder motion,” doesn’t seem to be in vogue any longer, at least in the Western District.