In Lucero v. Bureau Of Collection Recovery, Inc., — F.3d —-, 2011 WL 1184168 (10th Cir. 2011), the Court of Appeals for the Tenth Circuit held that an FDCPA defendant may not deprive a class plaintiff of a justiciable controversy by serving a Rule 68 Offer of Judgment before class certification.  The facts and procedural history were as follows:  


Plaintiff (“Lucero”) filed a class action complaint in state court seeking declaratory relief and damages, alleging violation of the Fair Debt Collection Practices Act (“FDCPA”) and the New Mexico Collection Agency Regulatory Act on April 20, 2009. Aplt.App. 10, 13. Included in the complaint were various class-action allegations. Id. at 13. Defendant (“BCR”) removed the case to federal court. On June 2, 2009, BCR filed its answer and also served Plaintiff with a Rule 68 offer of judgment, offering to settle for $3,001 plus reasonable attorneys’ fees and costs incurred to that date. Id. at 2, 64. On August 13, 2009, the parties submitted a joint status report and provisional discovery plan proposing that discovery be divided into two phases, the first phase pertaining to certification of the class, with the second phase devoted to the merits claims and defenses of the par-ties. Doc. 10 at 1–2. The parties further agreed to conduct discovery only on the class certification issue for the first six months. Id. at 5. The district court then adopted the joint status report and provisional discovery plan, setting the deadlines for class-action discovery (February 13, 2010) and motions regarding class certification (February 23, 2010), and setting a class certification hearing date (March 31, 2010). Aplt.App. 58–59.      On December 21, 2009, BCR filed a motion to dismiss for lack of subject matter jurisdiction. Aplt. Br. 4. On February 22, 2010, Lucero filed his motion for class certification and supporting memorandum. Id. The court vacated the class certification hearing. On May 6, 2010, the district court dismissed Lucero’s claims against BCR as moot and dismissed his complaint for lack of subject matter jurisdiction. Aplt.App. 61–85; see Lucero v. Bureau of Collection Recovery, Inc., 716 F.Supp.2d 1085 (D.N.M.2010).    The district court concluded that jurisdiction is not present “over a case where no class has been certified but the defendant has satisfied the plaintiff’s demand for relief.” Lucero, 716 F.Supp.2d at 1097. Therefore, the court concluded, because BCR offered to satisfy Lucero’s entire claim there was no longer a justiciable dispute. Accordingly, the court granted BCR’s motion to dismiss for lack of subject-matter jurisdiction pursuant to Rule 12(b)(1). Because BCR’s offer of judgment had terminated, the district court did not compel Lucero to accept the judgment and did not enter a judgment against BCR. Id. at 1100.    On appeal, Plaintiff argues that courts have generally looked with disfavor on allowing defendants in class action lawsuits to “buy off” class action plaintiffs by tendering an early Rule 68 judgment for the full amount of individual claims. Plaintiff argues that this dilemma can be solved either of two ways: providing that the class certification motion relates back to the filing of the class-action complaint or recognizing that an offer of judgment to a named plaintiff in a class action does not terminate the continued personal stake of the class, which, Plaintiff argues, is present from the inception of the suit. Aplt. Br. at 5–6, 9. BCR argues that our decision in Reed v. Heckler recognizes a general presumption of mootness in cases such as this and that the Supreme Court recognizes only narrow exceptions to this “general rule.” The only way we may reach the result Mr. Lucero requests, BCR argues, is to relate his motion for class certification back to the filing of the complaint, which is an improper application of mootness principles. See Aplee. Br. at 9; Weiss v. Regal Collections, 385 F.3d 337 (3d Cir.2004). 



The Court of Appeals summarized a number of decisions from other Circuits, and ultimately concluded:



The Third, Fifth, and Seventh Circuits have concluded that offers of judgment will not render moot class actions for monetary relief in which a class certification motion is already pending. See Lusardi, 975 F.2d 964, 975 (3d Cir.1992); Zeidman, 651 F.2d at 1051; Susman v. Lincoln Am. Corp., 587 F.2d 866, 870 (7th Cir.1978). We find no authority on which to distinguish the case in which a class certification motion is pending or filed within the duration of the offer of judgment from our case: any Article III interest a class may or may not have in a case is or is not present from its inception. See Susman, 587 F.2d at 869 n. 2 (noting that “[i]t would be arguable, on the same theory, that a complaint with class action allegations sufficiently brings the interests of the class members before the court, at least where the court proceeds with reasonable promptness to reach the issue of class action maintenance” but declining to reach the question). We need not and do not decide the impact of a Rule 68 offer of judgment made in a collective, or “opt-in” action. See, e.g., Sandoz, 553 F .3d at 920; Darboe v. Goodwill Industries of Greater New York & Northern New Jersey, Inc., 485 F.Supp.2d 221, 223–34 (E.D.N.Y.2007).    In sum, we hold that a named plaintiff in a proposed class action for monetary relief may proceed to seek timely class certification where an unaccepted offer of judgment is tendered in satisfaction of the plaintiff’s individual claim before the court can reasonably be expected to rule on the class certification motion. That certainly is the case here, given the parties’ agreement to proceed according to a specific schedule to resolve the class certification issues and given the Plaintiff’s indisputable compliance with that schedule.