Symczyk v. Genesis HealthCare Corp.

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________

No. 10-3178
___________

LAURA SYMCZYK, an individual,
on behalf of herself and others similarly situated,
Appellant

v.

GENESIS HEALTHCARE CORPORATION;
ELDERCARE RESOURCES CORPORATION
d/b/a GENESIS ELDERCARE
_______________________

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
D.C. Civil Action No. 09-cv-05782
(Honorable Michael M. Baylson)
______________

Argued March 7, 2011

Before: SCIRICA, AMBRO and VANASKIE,
Circuit Judges.

(Filed: August 31, 2011)
GARY F. LYNCH, ESQUIRE (ARGUED)
Carlson Lynch
36 North Jefferson Street
P.O. Box 7635
New Castle, Pennsylvania 16107

GERALD D. WELLS, III, ESQUIRE
Faruqi & Faruqi
101 Greenwood Avenue, Suite 600
Jenkintown, Pennsylvania 19046
Attorneys for Appellant

JAMES N. BOUDREAU, ESQUIRE (ARGUED)
CHRISTINA TELLADO-WINSTON, ESQUIRE
Greenberg Traurig
2700 Two Commerce Square
2001 Market Street
Philadelphia, Pennsylvania 19103

MICHELE H. MALLOY, ESQUIRE
Littler Mendelson
Three Parkway, Suite 1400
1601 Cherry Street
Philadelphia, Pennsylvania 19102
Attorneys for Appellees

_________________

OPINION OF THE COURT
_________________

SCIRICA, Circuit Judge.

2
 Laura Symczyk sought relief under the Fair Labor
Standards Act (FLSA), 29 U.S.C. §§ 207 and 216(b), on
behalf of herself and all others similarly situated. The District
Court for the Eastern District of Pennsylvania dismissed
Symczyk‟s complaint for lack of subject matter jurisdiction
after defendants Genesis HealthCare Corporation and
ElderCare Resources Corporation extended an offer of
judgment under Fed. R. Civ. P. 68 in full satisfaction of her
alleged damages, fees, and costs. At issue in this case is
whether a collective action brought under § 216(b) of the
FLSA becomes moot when, prior to moving for “conditional
certification” and prior to any other plaintiff opting in to the
suit, the putative representative receives a Rule 68 offer. We
will reverse and remand.

I.

From April 2007 through December 2007, Symczyk
was employed by defendants as a Registered Nurse at
Pennypack Center in Philadelphia, Pennsylvania. On
December 4, 2009, Symczyk initiated a collective action
under 29 U.S.C. § 216(b) on behalf of herself and all
similarly situated individuals, alleging defendants violated the
FLSA when they implemented a policy subjecting the pay of
certain employees to an automatic meal break deduction
whether or not they performed compensable work during
their breaks.1 On February 18, 2010, defendants filed an
1
Symczyk‟s amended complaint identified those “similarly
situated” as
All persons employed within the three years
preceding the filing of this action by Defendants
. . . , whose pay was subject to an automatic 30
minute meal period deduction even when they

3
answer to Symczyk‟s complaint and served her with an offer
of judgment under Fed. R. Civ. P. 68 in the amount of
“$7,500.00 in alleged unpaid wages, plus attorneys‟ fees,
costs and expenses as determined by the Court.”2 Symczyk

performed compensable work during the unpaid
“meal break” . . . .
These persons include, but are not limited to,
secretaries, housekeepers, custodians, clerks,
porters, registered nurses, licensed practical
nurses, nurses‟ aides, administrative assistants,
anesthetists, clinicians, medical coders, medical
underwriters, nurse case managers, nurse
interns, nurse practitioners, practice supervisors,
professional staff nurses, quality coordinators,
resource pool nurses, respiratory therapists,
senior research associates, operating room
coordinators, surgical specialists, admissions
officers, student nurse technicians, trainers, and
transcriptionists employed at any of
Defendants‟ facilities during the three years
preceding the filing of this action.
2
In part, Fed. R. Civ. P. 68 provides:
(a) At least 14 days before the date set for trial,
a party defending against a claim may serve on
an opposing party an offer to allow judgment on
specified terms, with the costs then accrued. If,
within 14 days after being served, the opposing
party serves written notice accepting the offer,
either party may then file the offer and notice of
acceptance, plus proof of service. The clerk
must then enter judgment.

4
did not dispute the adequacy of defendants‟ offer but
nevertheless declined to respond.

The District Court—unaware of the offer of
judgment—held a Fed. R. Civ. P. 16 scheduling conference
on March 8, 2010. Two days later, the court entered a
scheduling order providing for “an initial ninety (90) day
discovery period, at the close of which [Symczyk] will move
for conditional certification under § 216(b) of the FLSA.”
Following the court‟s ruling on certification, the parties were
to have “an additional six (6) month discovery period, to
commence at the close of any Court-ordered opt-in window.”

On March 23, 2010, defendants filed a motion to
dismiss for lack of subject matter jurisdiction under Fed. R.
Civ. P. 12(b)(1), contending that, because Symczyk had
effectively rejected their Rule 68 offer of judgment, see Fed.
R. Civ. P. 68(a) (providing a plaintiff with 14 days to accept
an offer), she “no longer ha[d] a personal stake or legally
cognizable interest in the outcome of this action, a
prerequisite to this Court‟s subject matter jurisdiction under
Article III of the United States Constitution.” Symczyk
objected, citing defendants‟ strategic attempt to “pick off” the
named plaintiff before the court could consider her
“certification” motion.3

(b) An unaccepted offer is considered
withdrawn, but it does not preclude a later offer.
Evidence of an unaccepted offer is not
admissible except in a proceeding to determine
costs.
3
On March 29, 2010, defendants removed Symczyk‟s related
state-court action to the United States District Court for the

5
 On May 19, 2010, the District Court “tentatively
concluded” that defendants‟ Rule 68 offer mooted the
collective action and that the action should be dismissed for
lack of subject matter jurisdiction. Symczyk v. Genesis
HealthCare Corp., Civ. No. 09-5782, 2010 U.S. Dist LEXIS
49599, at *17 (E.D. Pa. May 19, 2010). In its memorandum,
the court explained:

Symczyk does not contend that other
individuals have joined her collective action.
Thus, this case, like each of the district court
cases cited by Defendants, which concluded
that a Rule 68 offer of judgment mooted the
underlying FLSA collective action, involves a
single named plaintiff. In addition, Symczyk
does not contest Defendants‟ assertion that the
Rule 68 offer of judgment fully satisfied her
claims. . . .

Id. at *16-17. The court instructed Symczyk to file a brief in
support of continued federal jurisdiction on her state-law
claims and her motion for class certification under Fed. R.
Civ. P. 23 by June 10, 2010. Id. at *17. Symczyk did so but
conceded she did not believe the court possessed an

Eastern District of Pennsylvania. Thereafter, on April 13,
2010, the parties jointly filed a proposed stipulated order
providing Symczyk would voluntarily dismiss her related
state-law action and amend her complaint in this action to
include those state-law claims asserted in the related action.
The District Court entered the parties‟ stipulated order on
April 15, 2010, and Symczyk filed an amended
class/collective action complaint on April 23, 2010.

6
independent basis for jurisdiction over her state-law claims in
the event her FLSA claim was dismissed. The District Court
declined to exercise supplemental jurisdiction over
Symczyk‟s state-law claims in accordance with 28 U.S.C. §
1367(c) and dismissed those claims without prejudice. The
court also dismissed Symczyk‟s FLSA claim with prejudice
in accordance with its earlier memorandum. Symczyk timely
appealed.4

II.

A.

Enacted in 1938, the FLSA, 29 U.S.C. § 201 et seq.,
was designed “to aid the unprotected, unorganized and lowest

4
Prior to dismissing the action, the District Court had subject
matter jurisdiction under 28 U.S.C. § 1331 and 29 U.S.C. §
216(b). We exercise appellate jurisdiction pursuant to 28
U.S.C. § 1291. Our review of the court‟s order granting
defendants‟ motion to dismiss for lack of subject matter
jurisdiction is plenary. Gould Elecs., Inc. v. United States,
220 F.3d 169, 176 (3d Cir. 2000). Because defendants‟
motion to dismiss was based on facts outside the pleadings
(i.e., their Rule 68 offer of judgment), the trial court was
entitled to weigh and evaluate the evidence bearing on the
jurisdictional dispute. Mortensen v. First Fed. Sav. & Loan
Ass’n, 549 F.2d 884, 891 (3d Cir. 1977). This factual
evaluation “may occur at any stage of the proceedings.” Id.
“When subject matter jurisdiction is challenged under Rule
12(b)(1), the plaintiff must bear the burden of persuasion.”
Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409
(3d Cir. 1991).

7
paid of the nation‟s working population; that is, those
employees who lacked sufficient bargaining power to secure
for themselves a minimum subsistence wage.” Brooklyn Sav.
Bank v. O’Neil, 324 U.S. 697, 707 n.18 (1945). Under the
“collective action” mechanism set forth in 29 U.S.C. §
216(b), an employee alleging an FLSA violation may bring
an action on “behalf of himself . . . and other employees
similarly situated,” subject to the requirement that “[n]o
employee shall be a party plaintiff to any such action unless
he gives his consent in writing to become such a party and
such consent is filed in the court in which such action is
brought.”

Prior to 1947, the FLSA permitted an aggrieved
employee to “designate an agent or representative to maintain
such action for and in behalf of all employees similarly
situated.” Martino v. Mich. Window Cleaning Co., 327 U.S.
173, 175 n.1 (1946) (quoting Fair Labor Standards Act of
1938, Pub. L. No. 75-718, § 16(b), 52 Stat. 1060, 1069
(1938)). But in response to “excessive litigation spawned by
plaintiffs lacking a personal interest in the outcome,”
Congress amended the Act to eliminate “representative action
by plaintiffs not themselves possessing claims.” Hoffmann-La
Roche, Inc. v. Sperling, 493 U.S. 165, 173 (1989); see also
Portal-to-Portal Act of 1947, Pub. L. No. 80-49, § 5(a), 61
Stat. 84, 87 (1947). Further altering the collective action
procedure in § 216(b), Congress inserted a requirement that
similarly situated employees must affirmatively “opt in” to an
ongoing FLSA suit by filing express, written consents in
order to become party plaintiffs. See id.

In deciding whether a suit brought under § 216(b) may
move forward as a collective action, courts typically employ a
two-tiered analysis. During the initial phase, the court makes

8
a preliminary determination whether the employees
enumerated in the complaint can be provisionally categorized
as similarly situated to the named plaintiff. If the plaintiff
carries her burden at this threshold stage, the court will
“conditionally certify” the collective action for the purposes
of notice and pretrial discovery. In the absence of statutory
guidance or appellate precedent on the proper definition of
“similarly situated,” a divergence of authority has emerged on
the level of proof required at this stage. Some trial courts
within our circuit have allowed a plaintiff to satisfy her
burden simply by making a “substantial allegation” in her
pleadings that she and the prospective party plaintiffs suffered
from a single decision, plan or policy, but the majority of our
circuit‟s trial courts have required the plaintiff to make a
“modest factual showing” that the proposed recipients of opt-
in notices are similarly situated. See Wright v. Lehigh Valley
Hosp., Civ. No. 10-431, 2010 U.S. Dist LEXIS 86915, at *7-
10 (E.D. Pa. Aug. 24, 2010) (canvassing cases).

Under the “modest factual showing” standard, a
plaintiff must produce some evidence, “beyond pure
speculation,” of a factual nexus between the manner in which
the employer‟s alleged policy affected her and the manner in
which it affected other employees. See Smith v. Sovereign
Bancorp, Inc., No. 03-2420, 2003 U.S. Dist LEXIS 21010, at
*10 (E.D. Pa. Nov. 13, 2003). We believe the “modest factual
showing” standard—which works in harmony with the opt-in
requirement to cabin the potentially massive size of collective
actions—best comports with congressional intent and with the
Supreme Court‟s directive that a court “ascertain[ ] the
contours of [a collective] action at the outset.” See Hoffman-

9
La Roche, 493 U.S. at 172.5

5
Although this two-step approach is nowhere mandated, it
appears to have garnered wide acceptance. And, while courts
retain broad discretion in determining whether to
“conditionally certify” a collective action, it is useful to
prescribe a uniform evidentiary standard. Cf. In re Hydrogen
Peroxide Antitrust Litig., 552 F.3d 305, 316-20 (3d Cir. 2008)
(outlining the guiding principles for a district court‟s
discretionary evaluation of a class certification motion in the
Rule 23 context).
This case illustrates how an uncertain standard may
work to the detriment of § 216(b) plaintiffs. Here, the court—
unaware of defendants‟ Rule 68 offer—issued a case
management order allotting Symczyk “an initial ninety (90)
day discovery period” to compile evidence before she would
be expected to move for “conditional certification.” Symczyk
represents she considered the standard for “conditional
certification” a “moving target in our circuit” and requested
discovery in order to buttress the allegations in her pleadings
with sufficient evidence to make a “meaningful motion” at
this initial stage. Because defendants‟ Rule 68 offer preceded
the commencement of this preliminary discovery period,
however, Symczyk had no opportunity to gather such
evidence before the court granted defendants‟ motion to
dismiss. Had Symczyk been operating under the assumption
that the court would employ the “substantial allegation”
standard, she may have been prepared to move for
“conditional certification” without conducting minimal
discovery. And, had the court in fact facilitated notice to
potential opt-ins based solely on the allegations in Symczyk‟s
complaint, defendants‟ Rule 68 offer may not have antedated

10
 After discovery, and with the benefit of “a much
thicker record than it had at the notice stage,” a court
following this approach then makes a conclusive
determination as to whether each plaintiff who has opted in to
the collective action is in fact similarly situated to the named
plaintiff. Morgan v. Family Dollar Stores, Inc., 551 F.3d
1233, 1261 (11th Cir. 2008). “This second stage is less
lenient, and the plaintiff bears a heavier burden.” Id. Should
the plaintiff satisfy her burden at this stage, the case may
proceed to trial as a collective action.6

the arrival of a consent form from a party plaintiff, an
occurrence that would have fundamentally transformed the
court‟s mootness analysis.
6
Because only the notice stage is implicated in this appeal,
we need not directly address the level of proof required to
satisfy the similarly situated requirement at the post-discovery
stage. Although this standard must necessarily be more
rigorous than the standard applicable at the notice stage, the
fact-specific, flexible nature of this approach affords district
judges latitude in exercising their discretion. See 45C Am.
Jur. 2d Job Discrimination § 2184 (2011) (listing fourteen
factors courts may consider at the post-discovery stage). As
we have explained:
A representative (but not exhaustive or
mandatory) list of relevant factors [at this stage]
includes whether the plaintiffs are employed in
the same corporate department, division and
location; advanced similar claims of . . .
discrimination; sought substantially the same
form of relief; and had similar salaries and
circumstances of employment. Plaintiffs may

11
 Absent from the text of the FLSA is the concept of
“class certification.” As the Eighth Circuit has noted,
however, “[m]any courts and commentators . . . have used the
vernacular of the Rule 23 class action for simplification and
ease of understanding when discussing representative cases
brought pursuant to § 16(b) of the FLSA.” Kelley v. Alamo,
964 F.2d 747, 748 n.1 (8th Cir. 1992). As a result, courts
commonly refer to a plaintiff‟s satisfaction of her burden at
the notice stage as resulting in “conditional certification,” see,
e.g., Ruehl v. Viacom, Inc., 500 F.3d 375, 389 n.17 (3d Cir.
2007), or “provisional certification,” see, e.g., Nash v. CVS
Caremark Corp., 683 F. Supp. 2d 195, 199 (D.R.I. 2010).
Similarly, the court‟s second-step analysis is traditionally
triggered by a defendant‟s motion to “decertify the class” on
the ground that its proposed members are not similarly
situated. See, e.g., Lusardi v. Xerox Corp., 975 F.2d 964, 967
(3d Cir. 1992). And, in the same fashion, a named plaintiff
becomes a “class representative,” see, e.g., id. at 966, his
attorney becomes “class counsel,” see, e.g., Harkins v.
Riverboat Servs., Inc., 385 F.3d 1099, 1101 (7th Cir. 2004),
and similarly situated employees become “potential class
members,” see, e.g., In re Family Dollar FLSA Litig., 637
F.3d 508, 518 (4th Cir. 2011).

Despite this judicial gloss on § 216(b), “the
„certification‟ we refer to here is only the district court‟s
exercise of [its] discretionary power, upheld in Hoffmann-La

also be found dissimilar on the basis of case
management issues, including individualized
defenses.
Ruehl v. Viacom, Inc., 500 F.3d 375, 389 n.17 (3d Cir. 2007)
(citations omitted).

12
Roche, to facilitate the sending of notice to potential class
members,” and “is neither necessary nor sufficient for the
existence of a representative action under FLSA.” Myers v.
Hertz Corp., 624 F.3d 537, 555 n.10 (2d Cir. 2010); see also
Morgan, 551 F.3d at 1261 n.40 (“District courts following the
two-step . . . approach should treat the initial decision to
certify and the decision to notify potential collective action
members as synonymous.”).7 Defendants here rely heavily on
the superficiality of the similarities between the
“certification” processes inherent in Rule 23 class actions and
§ 216(b) collective actions in arguing Symczyk could not
purport to “represent” the interests of similarly situated
employees before anyone had opted in to the action. And, as
noted, expedient adoption of Rule 23 terminology with no
mooring in the statutory text of § 216(b) may have injected a
measure of confusion into the wider body of FLSA
jurisprudence. Although “conditional certification” may not
vest a § 216(b) “class” with the independent legal status that
certification provides a Rule 23 class, see Trotter v. Klincar,
748 F.2d 1177, 1183 (7th Cir. 1984), this realization does not

7
In Hoffmann-La Roche, the Supreme Court recognized the
efficacy of § 216(b) hinges on “employees receiving accurate
and timely notice concerning the pendency of the collective
action, so that they can make informed decisions about
whether to participate.” 493 U.S. at 170. To ensure this task
“is accomplished in an efficient and proper way,” the Court
interpreted § 216(b) as endowing district courts with “the
requisite procedural authority to manage the process of
joining multiple parties in a manner that is orderly, sensible,
and not otherwise contrary to statutory commands or the
Federal Rules of Civil Procedure.” Id. at 170-71.

13
control our mootness analysis in the manner suggested by
defendants. Provision of notice does not transform an FLSA
suit into a “representative action,” but, as we will explain, its
central place within the litigation scheme approved of by the
Supreme Court in Hoffmann-La Roche necessarily shapes our
approach to squaring Rule 68 and § 216(b).

B.

Article III of the United States Constitution limits the
jurisdiction of the federal courts to “actual „Cases‟ and
„Controversies.‟” Sprint Commc’ns Co. v. APCC Servs., Inc.,
554 U.S. 269, 298 (2008) (Roberts, C.J., dissenting). “When
the issues presented in a case are no longer „live‟ or the
parties lack a legally cognizable interest in the outcome, the
case becomes moot and the court no longer has subject matter
jurisdiction.” Weiss v. Regal Collections, 385 F.3d 337, 340
(3d Cir. 2004). “An offer of complete relief will generally
moot the plaintiff‟s claim, as at that point the plaintiff retains
no personal interest in the outcome of the litigation.” Id.
Thus, whether or not the plaintiff accepts the offer, no
justiciable controversy remains when a defendant tenders an
offer of judgment under Rule 68 encompassing all the relief a
plaintiff could potentially recover at trial. See Rand v.
Monsanto Co., 926 F.2d 596, 598 (7th Cir. 1991). We have
recognized, however, that conventional mootness principles
do not fit neatly within the representative action paradigm. Cf.
Lusardi, 975 F.2d at 974 (“[S]pecial mootness rules apply in
the class action context, where the named plaintiff purports to
represent an interest that extends beyond his own.”).

Rule 68 was designed “to encourage settlement and
avoid litigation.” Marek v. Chesny, 473 U.S. 1, 5 (1985). In
the representative action arena, however, Rule 68 can be

14
manipulated to frustrate rather than to serve these salutary
ends. Exploring this deviation from Rule 68‟s purposes, the
Supreme Court has noted:

Requiring multiple plaintiffs to bring separate
actions, which effectively could be „picked off‟
by a defendant‟s tender of judgment before an
affirmative ruling on class certification could be
obtained, obviously would frustrate the
objectives of class actions; moreover it would
invite waste of judicial resources by stimulating
successive suits brought by others claiming
aggrievement.

Deposit Guar. Nat’l Bank v. Roper, 445 U.S. 326, 339
(1980); see also Zeidman v. J. Ray McDermott & Co., 651
F.2d 1030, 1050 (5th Cir. Unit A July 1981) (“By tendering
to the named plaintiffs the full amount of their personal
claims each time suit is brought as a class action, the
defendants can in each successive case moot the named
plaintiffs‟ claims before a decision on certification is
reached.”).

We addressed the tension between Rules 23 and 68 in
Weiss. There, the named plaintiff filed a federal class action
complaint alleging violations of the Fair Debt Collection
Practices Act, 15 U.S.C. § 1692, and, prior to moving for
class certification, received a Rule 68 offer of judgment in
full satisfaction of the individual relief sought. The plaintiff
rejected the offer, and the court granted the defendants‟
12(b)(1) motion to dismiss the complaint on mootness
grounds. On appeal, we explored the applicability of the
“relation back” doctrine to a scenario in which the
defendants‟ “tactic of „picking off‟ lead plaintiffs with a Rule

15
68 offer . . . may deprive a representative plaintiff the
opportunity to timely bring a class certification motion, and
also may deny the court a reasonable opportunity to rule on
the motion.” 385 F.3d at 347. Finding application of the
doctrine necessary to vindicate the policy aims inherent in
Rule 23, we held that, “[a]bsent undue delay in filing a
motion for class certification . . . where a defendant makes a
Rule 68 offer to an individual claim that has the effect of
mooting possible class relief asserted in the complaint, the
appropriate course is to relate the certification motion back to
the filing of the class complaint.” Id. at 348. As there had
been no undue delay, we reversed and directed the district
court to allow the plaintiff to file a class certification motion
that would “relate back” to the filing of the complaint. Id.8

8
In Weiss, we noted that our opinion might be viewed as
creating tension with Lusardi, which involved alleged
violations of the Age Discrimination in Employment Act
(ADEA), 29 U.S.C. §§ 621 et seq. Section 7(b) of the ADEA
incorporates § 216(b) by reference. See 29 U.S.C. § 626(b).
However, in distinguishing Lusardi, we did not rely on the
differences between the procedures applicable to Rule 23 and
§ 216(b) actions. See Weiss, 385 F.3d at 348-49. Instead, we
explained that Lusardi, unlike Weiss, involved a voluntary
settlement entered into by the named plaintiffs rather than “an
offer of judgment made in response to the filing of a
complaint.” Id. at 349. We wrote:
In this appeal, the „picking off‟ scenarios
described by the Supreme Court in Roper are
directly implicated. In Lusardi they were not. . .
. In Lusardi, no unilateral action by the
Defendant rendered the plaintiffs‟ claims

16
 In essence, the relation back doctrine allows a district
court to retain jurisdiction over a matter that would appear
susceptible to dismissal on mootness grounds by virtue of the
expiration of a named plaintiff‟s individual claims. In Sosna
v. Iowa, 419 U.S. 393, 401 (1975), the Supreme Court found
federal court jurisdiction to adjudicate a live controversy
between members of a certified Rule 23 class and a named
defendant was not extinguished by the named plaintiff‟s
claim becoming moot before the district court reached the
merits of the case. Addressing the possibility that resolution
of the controversy as to the named plaintiffs may occur
“before the district court can reasonably be expected to rule
on a certification motion,” the Court explained such
certification “can be said to „relate back‟ to the filing of the
complaint” when the issue might otherwise evade review. Id.
at 402 n.11; see also U.S. Parole Comm’n v. Geraghty, 445
U.S. 388, 399 (1980) (preserving an Article III court‟s
authority to review class certification issues when a named
plaintiff‟s claims are “so inherently transitory that the trial
court will not have even enough time to rule on a motion for
class certification before the proposed representative‟s
individual interest expires”).

This equitable principle has evolved to account for
calculated attempts by some defendants to short-circuit the

„inherently transitory.‟ Defendants here used the
Rule 68 offer to thwart the putative class action
before the certification question could be
decided.
Id. These considerations are not unique to the Rule 23
context, and Weiss did not turn on the disparity between opt-
in and opt-out actions.

17
class action process and to prevent a putative representative
from reaching the certification stage. Certification vests a
named plaintiff with a procedural right to act on behalf of the
collective interests of the class that exists independent of his
substantive claims. See Sosna, 419 U.S. at 399 (explaining
that, once a class has been certified, the mooting of a class
representative‟s individual claims does not invariably result in
the mooting of the entire action because “the class of
unnamed persons described in the certification acquire[s] a
legal status separate from the interest asserted by [the named
plaintiff]”). Although traditional mootness rules would
ordinarily apply absent an affirmative ruling on class
certification, “in certain circumstances, to give effect to the
purposes of Rule 23, it is necessary to conceive of the named
plaintiff as a part of an indivisible class and not merely a
single adverse party even before the class certification
question has been decided.” Weiss, 385 F.3d at 347. The
rationale underpinning the relation back doctrine serves to
shield from dismissal on mootness grounds those claims
vulnerable to being “picked off” by defendants attempting to
forestall class formation. As the Seventh Circuit has
explained:

Normally, . . . a class action must be certified as
such in order for it to escape dismissal once the
claims of the named plaintiff become moot. But
the courts have recognized that an absolute
requirement would prevent some otherwise
justiciable claims from ever being subject to
judicial review. . . . [J]ust as necessity required
the development of the relation back doctrine in
cases where the underlying factual situation
naturally changes so rapidly that the courts

18
 cannot keep up, so necessity compels a similar
result here. If the class action device is to work,
the courts must have a reasonable opportunity
to consider and decide a motion for
certification. If a tender made to the individual
plaintiff while the motion for certification is
pending could prevent the courts from ever
reaching the class action issues, that opportunity
is at the mercy of a defendant, even in cases
where a class action would be most clearly
appropriate.

Susman v. Lincoln Am. Corp., 587 F.2d 866, 870 (7th Cir.
1978) (citations omitted).

When a defendant‟s Rule 68 offer threatens to preempt
the certification process, reconciling the conflicting
imperatives of Rules 23 and 68 requires allocating sufficient
time for the process to “play out.” Weiss, 385 F.3d at 348. By
invoking the relation back doctrine, a court preserves its
authority to rule on a named plaintiff‟s attempt to represent a
class by treating a Rule 23 motion as though it had been filed
contemporaneously with the filing of the class complaint.
Consequently, “the „relation back‟ principle ensures that
plaintiffs can reach the certification stage.” Sandoz v.
Cingular Wireless LLC, 553 F.3d 913, 919 (5th Cir. 2008).

III.

A.

The issue we must resolve on this appeal, then, is
whether an FLSA collective action becomes moot when (1)
the putative representative receives a Rule 68 offer in full

19
satisfaction of her individual claim prior to moving for
“conditional certification,” and (2) no other potential plaintiff
has opted in to the suit.9 Animating our decision in Weiss was
the ability of defendants to use Rule 68 “to thwart the putative
class action before the certification question could be
decided.” 385 F.3d at 349. Symczyk cites similar arguments
in the § 216(b) context and discerns no material distinction
between the two procedures insofar as this consideration is
concerned. By contrast, defendants contend Weiss does not
apply in the FLSA context because a putative § 216(b) named
plaintiff allegedly lacks the “representative” status that
accords a Rule 23 named plaintiff a personal stake in the
matter sufficient to confer continued Article III jurisdiction
once his individual claim has been mooted. We believe the

9
Relying on a careful analysis of various district court efforts
to grapple with the interplay of Rule 68 and § 216(b)
provided in Briggs v. Arthur T. Mott Real Estate LLC, No.
06-0468, 2006 U.S. Dist LEXIS 82891 (E.D.N.Y. Nov. 14,
2006), the District Court concluded Symczyk‟s case was
distinguishable from those in which courts declined to
dismiss complaints following Rule 68 offers because, in
those, “other individuals had already opted in to join the
collective action, it was unclear whether the Rule 68 offer
fully satisfied the plaintiff's claims, or the plaintiff had
already filed a motion for conditional certification under §
216(b).” Symczyk, 2010 U.S. Dist LEXIS 49599, at *13
(footnotes omitted). Here, Symczyk did not dispute the
adequacy of the offer as it pertained to the value of her
individual claim. However, as we will explain, we believe
treating the other two conditions as dispositive would be
imprudent.

20
considerations warranting application of the relation back
doctrine to Rule 23 class actions also apply to § 216(b)
collective actions.

In support of their effort to confine Weiss to the class
action setting, defendants rely principally on the dissimilar
roles played by Rule 23 and § 216(b) named plaintiffs. As
noted, the statutory form of aggregation provided for in the
FLSA requires each party plaintiff affirmatively to opt in to a
collective action by filing a consent form “in the court in
which such action is brought.” 29 U.S.C. § 216(b). Whereas a
member of a certified class in a Rule 23(b)(3) proceeding will
be bound by judgment unless he has intentionally opted out of
the suit, resolution of a § 216(b) collective action will not
bind any similarly situated employee absent his express,
written consent. See id.; LaChapelle v. Owens-Illinois, Inc.,
513 F.2d 286, 288 (5th Cir. 1975).10 Defendants argue a §
216(b) named plaintiff whose individual claim has been
mooted by a Rule 68 offer before anyone has opted in to the
action cannot purport to possess a personal stake in
representing the interests of others.11

10
Of course, class actions certified under Rule 23(b)(1) or
(b)(2) are “mandatory” class actions in that class members are
not permitted to opt out. Wal-Mart Stores, Inc v. Dukes, ---
U.S. ----, 131 S. Ct. 2541, 2558 (2011).
11
As noted, the Portal-to-Portal Act notionally abolished
“representative actions.” See Pub. L. No. 80-49, § 5(a), 61
Stat. 84, 87 (1947). This amendment, however, did not strip
an employee—such as Symczyk—of her right to act on behalf
of similarly situated co-workers. Rather, the 1947 amendment
eliminated the so-called “agency suit,” divesting nonparty
representatives of standing to initiate actions under § 216(b).

21
 Although defendants‟ logic has some surface appeal,
reliance on the watershed event of an opt-in to trigger
application of the special mootness rules that prevail in the
representative action context incentivizes the undesirable
strategic use of Rule 68 that prompted our holding in Weiss.12

See id. “By identifying „employees‟ as the only proper parties
in a § 216(b) action, the Portal to Portal Act aimed to ban
representative actions that previously had been brought by
unions on behalf of employees.” Cameron-Grant v. Maxim
Healthcare Servs., 347 F.3d 1240, 1248 (11th Cir. 2003); see
also Arrington v. Nat’l Broad. Co., 531 F. Supp. 498, 502
(D.D.C. 1982) (explaining Congress amended the FLSA “to
eradicate the problem of totally uninvolved employees
gaining recovery as a result of some third party‟s action in
filing suit”). The FLSA does not prevent an employee,
serving as lead plaintiff, from fulfilling a representative role.
When defendants made their Rule 68 offer of judgment,
Symczyk represented only her own interests, and defendants‟
potential liability consisted entirely of the individual damages
sought by Symczyk as named plaintiff. That Symczyk had yet
to assume a representative role vis-à-vis the allegedly
similarly situated employees listed in her complaint stemmed
not from some purported statutory prohibition but instead
from defendants‟ successful attempt to pick her off before the
court had occasion to consider the suitability of allowing the
claims to be litigated collectively with Symczyk as lead
plaintiff.
12
In both Susman and Zeidman, the relation back rationale
was deployed to salvage a court‟s jurisdiction over class
complaints when the named plaintiffs‟ claims had ostensibly
been mooted while their motions for class certification were
pending. However, because “the federal rules do not require

22
As the Supreme Court explained in Hoffmann-La Roche,
actualization of § 216(b)‟s purposes often necessitates a
district court‟s engagement at the notice phase of the
proceeding. 493 U.S. at 170-71; see also Morgan, 551 F.3d at
1259 (“[T]he importance of certification, at the initial stage, is
that it authorizes either the parties, or the court itself, to
facilitate notice of the action to similarly situated
employees.”). When a defendant‟s Rule 68 offer arrives
before the court has had an opportunity to determine whether
a named plaintiff has satisfied his burden at this threshold
stage, and the court has therefore refrained from overseeing
the provision of notice to potential party plaintiffs, it is not
surprising to find the offer has also preceded the arrival of
any consent forms from prospective opt-ins. If our mootness
inquiry in the § 216(b) context were predicated inflexibly on
whether any employee has opted in to an action at the
moment a named plaintiff receives a Rule 68 offer, employers
would have little difficulty preventing FLSA plaintiffs from
attaining the “representative” status necessary to render an
action justiciable notwithstanding the mooting of their
individual claims.

In Sandoz, the only court of appeals‟ decision to

certification motions to be filed with the class complaint, nor
do they require or encourage premature certification
determinations,” we explained in Weiss that “reference to the
bright line event of the filing of the class certification motion
may not always be well-founded.” 385 F.3d at 347.
Consequently, we extended the doctrine to instances in which
the plaintiff moved for class certification subsequent to
receipt of a Rule 68 offer so long as he did so without “undue
delay.” Id. at 348.

23
address the applicability of the relation back doctrine in the
FLSA context, the Fifth Circuit concluded Congress did not
intend, through the enactment of § 216(b), to create an
“anomaly” by allowing employers “to use Rule 68 as a sword,
„picking off‟ representative plaintiffs and avoiding ever
having to face a collective action.” 553 F.3d at 919. The court
elaborated:

[T]he differences between class actions and
FLSA § 216(b) collective actions do not compel
a different result regarding whether a
certification motion can “relate back” to the
filing of the complaint. The status of a case as
being an “opt in” or “opt out” class action has
no bearing on whether a defendant can
unilaterally moot a plaintiff‟s case through a
Rule 68 offer of judgment. Although the
differences between Rule 23 class actions and
FLSA § 216(b) collective actions alter the
conceptual mootness inquiry, each type of
action would be rendered a nullity if defendants
could simply moot the claims as soon as the
representative plaintiff files suit. Thus, the
policies behind applying the “relation back”
principle for Rule 23 class actions apply with
equal force to FLSA § 216(b) collective actions.

Id. at 920 (citations omitted). There, the defendant tendered
its offer of judgment approximately one month after Sandoz
had commenced her FLSA action, and Sandoz waited thirteen
months after filing her complaint to move for “conditional
certification.” Id. at 921. Borrowing language from Weiss and
holding that “relation back is warranted only when the
plaintiff files for certification „without undue delay,‟” id.

24
(quoting Weiss, 385 F.3d at 348), the Fifth Circuit remanded
for the district court to consider whether Sandoz had “timely
sought certification of her collective action,” id.

B.

Although the opt-in mechanism transforms the manner
in which a named plaintiff acquires a personal stake in
representing the interests of others, it does not present a
compelling justification for limiting the relation back doctrine
to the Rule 23 setting. The considerations that caution against
allowing a defendant‟s use of Rule 68 to impede the
advancement of a representative action are equally weighty in
either context. Rule 23 permits plaintiffs “to pool claims
which would be uneconomical to litigate individually.”
Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 809 (1985).
Similarly, § 216(b) affords plaintiffs “the advantage of lower
individual costs to vindicate rights by the pooling of
resources.” Hoffmann-La Roche, 493 U.S. at 170. Rule 23
promotes “efficiency and economy of litigation.” Crown,
Cork & Seal Co. v. Parker, 462 U.S. 345, 349 (1983).
Similarly, “Congress‟ purpose in authorizing § 216(b) class
actions was to avoid multiple lawsuits where numerous
employees have allegedly been harmed by a claimed violation
or violations of the FLSA by a particular employer.” Prickett
v. DeKalb Cnty., 349 F.3d 1294, 1297 (11th Cir. 2003).

When Rule 68 morphs into a tool for the strategic
curtailment of representative actions, it facilitates an outcome
antithetical to the purposes behind § 216(b). Symczyk‟s
claim—like that of the plaintiff in Weiss—was “acutely
susceptible to mootness” while the action was in its early
stages and the court had yet to determine whether to facilitate
notice to prospective plaintiffs. See Weiss, 385 F.3d at 347

25
(internal quotation marks omitted). When the certification
process has yet to unfold, application of the relation back
doctrine prevents defendants from using Rule 68 to “undercut
the viability” of either type of representative action. See id. at
344.

C.

Additionally, the relation back doctrine helps
safeguard against the erosion of FLSA claims by operation of
the Act‟s statute of limitations. To qualify for relief under the
FLSA, a party plaintiff must “commence” his cause of action
before the statute of limitations applying to his individual
claim has lapsed. Sperling v. Hoffmann-La Roche, Inc., 24
F.3d 463, 469 (3d Cir. 1994).13 For a named plaintiff, the
action commences on the date the complaint is filed. 29
U.S.C. § 256(a). For an opt-in plaintiff, however, the action
commences only upon filing of a written consent. Id. §
256(b). This represents a departure from Rule 23, in which
the filing of a complaint tolls the statute of limitations “as to
all asserted members of the class” even if the putative class
member is not cognizant of the suit‟s existence. See Crown,
Cork & Seal Co. 462 U.S. at 350 (internal quotation marks
omitted). Protracted disputes over the propriety of dismissal
in light of Rule 68 offers may deprive potential opt-ins whose
claims are in jeopardy of expiring of the opportunity to toll
the limitations period—and preserve their entitlements to

13
Plaintiffs seeking recovery under the FLSA must
commence an action within two years of the alleged violation
(or within three years if the violation is “willful”). 29 U.S.C.
§ 255(a).

26
recovery—by filing consents within the prescribed window.14

D.

In sum, we believe the relation back doctrine helps
ensure the use of Rule 68 does not prevent a collective action
from playing out according to the directives of § 216(b) and
the procedures authorized by the Supreme Court in
Hoffmann-La Roche and further refined by courts applying
this statute. Depriving the parties and the court of a
reasonable opportunity to deliberate on the merits of
collective action “conditional certification” frustrates the
objectives served by § 216(b). Cf. Sandoz, 553 F.3d at 921
(explaining “there must be some time for a[n FLSA] plaintiff

14
Defendants contend a party plaintiff‟s cause of action vests
at the moment he files his consent form and that no
conception of the relation back doctrine would permit this
statutorily mandated act of opting in to relate back to the
filing of the collective action complaint. While perhaps true,
this assertion is beside the point. For the sake of argument,
consider a hypothetical co-worker of Symczyk‟s who was
subjected to a willful FLSA violation and whose tenure with
the company also ended in December 2007. Because
Symczyk‟s complaint was dismissed before this (or any)
employee had opted in to the action, this potential plaintiff
forfeited any claim to relief in December 2010. The relation
back doctrine cannot, at this juncture, redeem this would-be
plaintiff‟s cause of action. However, had Symczyk been
permitted to move—in timely fashion—for “conditional
certification” in light of defendants‟ March 2010 motion to
dismiss, this plaintiff may have received notice of the
ongoing collective action prior to her claim growing stale.

27
to move to certify a collective action before a defendant can
moot the claim through an offer of judgment”). Absent undue
delay, when an FLSA plaintiff moves for “certification” of a
collective action, the appropriate course—particularly when a
defendant makes a Rule 68 offer to the plaintiff that would
have the possible effect of mooting the claim for collective
relief asserted under § 216(b)—is for the district court to
relate the motion back to the filing of the initial complaint.

Upon remand, should Symczyk move for “conditional
certification,” the court shall consider whether such motion
was made without undue delay, and, if it so finds, shall relate
the motion back to December 4, 2009—the date on which
Symczyk filed her initial complaint. If (1) Symczyk may yet
timely seek “conditional certification” of her collective
action, (2) the court permits the case to move forward as a
collective action (by virtue of Symczyk‟s satisfaction of the
“modest factual showing” standard), and (3) at least one other
similarly situated employee opts in, then defendants‟ Rule 68
offer of judgment would no longer fully satisfy the claims of
everyone in the collective action, and the proffered rationale
behind dismissing the complaint on jurisdictional grounds
would no longer be applicable. If, however, the court finds
Symczyk‟s motion to certify would be untimely, or otherwise
denies the motion on its merits, then defendants‟ Rule 68
offer to Symczyk—in full satisfaction of her individual
claim—would moot the action.

IV.

For the foregoing reasons, we will reverse the
judgment of the District Court and remand for proceedings
consistent with this opinion.

28