A Class Action for Unpaid Overtime is still Permissible after a Rejected Offer of Judgment – California Labor and Employment Attorneys Blumenthal, Nordrehaug & Bhowmik

by Norman B. Blumenthal on October 10, 2012

In 2009, Gareth Pitts filed a class action complaint against his employer, Terrible Herbst, Inc., after Herbst did not pay Pitts and other Herbst’ employees wages owed.  The wages included regular hourly pay, as well as overtime.  Before Pitts filed a motion to certify the class, Terrible Herbst made a Rule 68 offer of judgment for $900, even though Pitts only claimed $88 in damages.  When Pitts rejected the offer of judgment, Terrible Herbst filed a motion to dismiss Pitts’ claim on the grounds that the entire case was now moot. Though the court disagreed that an offer of judgment rendered the entire case moot, Pitts' case was dismissed with prejudice because Pitts failed to timely file the class certification for just a Rule 23 class action.  Pitts v. Terrible Herbst, Inc., 653 F.3d 1081, 1085 (9th Cir. 2011).  Pitts appealed.

The Ninth Circuit Court of Appeal held that an unaccepted offer of judgment does not make a case moot because allowing a defendant to "buy off" a class action by making an offer of judgment to satisfy a plaintiff’s claim would make a matter transitory such that it would evade review.  Furthermore, by giving a written response to a motion to dismiss, Pitts communicated to the district court, his desire to abandon his FLSA claims and pursue a Rule 23 class action available under the Federal Rules of Civil Procedure.

Blumenthal, Nordrehaug & Bhowmik is a California labor and employment law firm that represents California employees with wage and hour claims against their current or former employer.  If you feel your California employer is violating FLSA and/or California wage statutes, contact Blumenthal, Nordrehaug & Bhowmik for a free confidential consultation by calling (800) 568-8020.

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