In Diaz v. First American Buyers’ Protection Corp., — F.3d – (9th Cir. 2013), the Court of Appeals for the Ninth Circuit held that an unaccepted Rule 68 offer to a class-plaintiff on an individual basis did not moot the claim, holding that an unaccepted Rule 68 offer that would fully satisfy a plaintiff’s claim is insufficient to render the claim moot.
Diaz’s first argument requires us to decide whether an unaccepted Rule 68 offer that would have fully satisfied a plaintiff’s claim is sufficient to render the claim moot. The Supreme Court has yet to address this issue. See Genesis Healthcare Corp. v. Symczyk, 133 S.Ct. 1523, 1528–29 (2013) (“While the Courts of Appeals disagree whether an unaccepted offer that fully satisfies a plaintiff’s claim is sufficient to render the claim moot, we do not reach this question, or resolve the split, because the issue is not properly before us.” (footnote omitted)). Nor have we squarely addressed the issue. In Pitts v. Terrible Herbst, Inc., 653 F.3d 1081, 1091–92 (9th Cir.2011), we held “that an unaccepted Rule 68 offer of judgment—for the full amount of the named plaintiff’s individual claim and made before the named plaintiff files a motion for class certification— does not moot a class action ” (emphasis added), but we did not squarely address whether the offer mooted the plaintiff’s individual claim. We assumed that an unaccepted offer for complete relief will moot a claim, but we neither held that to be the case nor analyzed the issue. See id. at 1090–92. In GCB Communications, Inc. v. U.S. South Communications, Inc., 650 F.3d 1257, 1267 9th Cir.2011), we noted that a case will “become moot” when “an opposing party has agreed to everything the other party has demanded,” but we did not address the effects of an unaccepted Rule 68 offer, an issue not presented in that case. We therefore treat this as an open question in this circuit. ¶ Other circuits are divided on the question. The Seventh Circuit holds that an unaccepted Rule 68 offer for complete relief will moot a plaintiff’s claim and that the plaintiff loses outright. See 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.” (citation omitted)). ¶ In the absence of controlling Ninth Circuit precedent on point, the district court here followed the Seventh Circuit’s approach. ¶ The Sixth Circuit agrees with the Seventh Circuit that “an offer of judgment that satisfies a plaintiff’s entire demand moots the case,” but disagrees “with the Seventh Circuit’s view that a plaintiff loses outright when he refuses an offer of judgment that would satisfy his entire demand.” ‘Brien v. Ed Donnelly Enters., Inc., 575 F.3d 567, 574–75 (6th Cir.2009). The Sixth Circuit holds that “the better approach is to enter judgment in favor of the plaintiffs in accordance with the defendants’ Rule 68 offer of judgment.” Id. at 575. Finally, the Second Circuit disagrees with the Sixth and Seventh Circuit that an unaccepted Rule 68 offer for complete relief moots a plaintiff’s claim, see McCauley v. Trans Union, L.L.C., 402 F.3d 340, 342 (2d Cir.2005) (“In the absence of an obligation to pay [the plaintiff] the $240 in claimed damages, the controversy between [the plaintiff] and [the defendant] is still alive.”), but agrees with the Sixth Circuit that when such an offer has been made, the “better resolution” is to enter judgment against the defendant, although the Second Circuit may require as a precondition to entering such a judgment that the defendant expressly consents to its entry. See id. (“At oral argument, both parties agreed that entry of a default judgment would satisfactorily resolve this case.”). “Such a judgment would remove any live controversy from this case and render it moot.” Id. Still other circuits, including this one, have yet to address whether an unaccepted offer of judgment renders a claim moot. See, e.g., Zinni v. ER Solutions, Inc., 692 F.3d 1162, 1167 n. 8 (11th Cir.2012) (declining to decide “whether an offer for full relief, even if rejected, would be enough to moot a plaintiff’s claims”). Although the majority of courts and commentators appear to agree with the Seventh Circuit that an unaccepted offer will moot a plaintiff’s claim, four justices of the United States Supreme Court, as well as the Solicitor General of the United States, embraced a contrary position in Genesis Healthcare. As noted, the majority in Genesis Healthcare did not reach whether an unaccepted offer that fully satisfies a plaintiff’s claim is sufficient to render the claim moot. See Genesis Healthcare, 133 S.Ct. at 1528–29. In a dissenting opinion, however Justice Kagan, writing for all four justices who reached the question, agreed with the Second Circuit that “an unaccepted offer of judgment cannot moot a case.” Id. at 1533 (Kagan, J., dissenting); accord Brief for the United States as Amicus Curiae Supporting Affirmance, Genesis Healthcare Corp. v. Symczyk, 133 S.Ct. 1523 (2013) (No. 11–1059), 2012 WL 4960359, at *10–15.