FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GARETH PITTS, No. 10-15965
Plaintiff-Appellant, D.C. No.
v. 2:09-cv-00940-
TERRIBLE HERBST, INC., RCJ-RJJ
Defendant-Appellee.
OPINION
Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, Chief District Judge, Presiding
Argued and Submitted
June 15, 2011—San Francisco, California
Filed August 9, 2011
Before: Ferdinand F. Fernandez and Jay S. Bybee,
Circuit Judges, and James K. Singleton,
Senior District Judge.*
Opinion by Judge Bybee
*The Honorable James K. Singleton, Senior District Judge for the U.S.
District Court for Alaska, Anchorage, sitting by designation.
10439
10442 PITTS v. TERRIBLE HERBST, INC.
COUNSEL
Leon Greenberg, Leon Greenberg Professional Corporation,
Las Vegas, Nevada, for the plaintiff-appellant.
PITTS v. TERRIBLE HERBST, INC. 10443
Patrick H. Hicks, Wendy M. Krincek, and Wesley C. Shelton
(argued), Littler Mendelson, P.C., Las Vegas, Nevada, for the
defendant-appellee.
OPINION
BYBEE, Circuit Judge:
We must decide, inter alia, whether a rejected offer of judg-
ment for the full amount of a putative class representative’s
individual claim moots a class action complaint where the
offer precedes the filing of a motion for class certification.
We hold that it does not.
I
In April 2009, Gareth Pitts filed a class action complaint in
Nevada state court against his employer, Terrible Herbst, Inc.
(“Terrible”). The complaint alleged that Terrible failed to pay
Pitts and other similarly-situated employees overtime and
minimum wages and listed three causes of action: (1) a collec-
tive action under 29 U.S.C. § 216(b) for violations of the Fair
Labor Standards Act (“FLSA”) (Count 1); (2) a class action
for violations of Nevada labor laws (Count 2); and (3) a class
action for breach of contract (Count 3). Terrible removed the
case to federal court in May 2009.
In July 2009, the district court entered a scheduling order
that called for all discovery to be concluded by January 2010.
That same day, Pitts served Terrible with a request for pro-
duction of documents, including “a list of the names and
addresses of all of [its] employees who work or have worked
in [its] retail locations . . . on an hourly . . . basis” and “[a]ll
other records . . . that show . . . the hours worked by, [and]
the wages paid to” these employees. After Terrible refused to
comply with his discovery request, Pitts filed a motion to
10444 PITTS v. TERRIBLE HERBST, INC.
compel discovery. This motion, filed in October 2009, argued
that “production of time records for all members of the puta-
tive class is highly relevant to whether class certification
should be granted.”
In December 2009, a magistrate judge held a hearing on
Pitts’s motion to compel and indicated that he would rule on
it after the end of the year. In January 2010, without a ruling
and facing an impending discovery deadline, Pitts filed a
motion to extend the discovery schedule, in which he again
argued that “a properly developed record can[not] be pre-
sented to the Court on the class certification issue without all
or some of [the requested] discovery.” In February 2010, the
magistrate judge granted the motion and extended discovery
until April 2010. The motion to compel remained unresolved.
In the meantime, Terrible made Pitts an offer of judgement
pursuant to Federal Rule of Civil Procedure 68. Under the
terms of this offer, which was dated October 26, 2009, Terri-
ble agreed “to allow judgment to be taken against it in the
total amount of $900.00, plus costs and a reasonable attor-
ney’s fee.” Although Pitts claimed only $88.00 in damages
for himself, he refused Terrible’s offer.
Because Terrible’s offer fully compensated Pitts for his
individual monetary claim, Terrible filed a motion to dismiss
the action for lack of subject matter jurisdiction. Specifically,
Terrible argued that its offer of judgment rendered the entire
case moot. Following the Fifth Circuit’s decision in Sandoz v.
Cingular Wireless LLC, 553 F.3d 913 (5th Cir. 2008), the dis-
trict court, in March 2010, held that a Rule 68 offer of judg-
ment does not moot a putative class action so long as the class
representative can still file a timely motion for class certifica-
tion. Nevertheless, the district court then held that Terrible’s
offer mooted the action because Pitts failed to timely seek
class certification. The district court acknowledged that the
magistrate judge had extended discovery until April 2010 and
that he had not yet ruled on the motion to compel discovery.
PITTS v. TERRIBLE HERBST, INC. 10445
But the court nevertheless concluded that Pitts “pushed
beyond the limits of timeliness in waiting for certification”
and that Pitts’s “failure to move for class certification before
the initial deadline for discovery demonstrates untimeliness
on his part.” The court then dismissed the entire action with
prejudice for lack of subject matter jurisdiction, entered judg-
ment in the defendant’s favor, and ordered Terrible to pay
$900 to Pitts and $3,500 to Pitts’s attorney.
In the same order that dismissed Counts 1 and 2 of the
complaint for lack of subject matter jurisdiction (as we
explain below, Count 3 had already been dismissed) the dis-
trict court also dismissed Count 2 on alternative grounds. Spe-
cifically, the court concluded that a Federal Rule of Civil
Procedure 23 class action alleging violations of state labor
laws is incompatible with a collective action under the FLSA
and held that when both actions are brought together, only the
FLSA action may proceed. In its ruling, the district court
acknowledged that Pitts sought to abandon his FLSA claims
and pursue only his Rule 23 class action, but refused to allow
him to do so. The court explained that Pitts failed to amend
his complaint to reflect that he was waiving his FLSA claims
and accused Pitts of forum shopping: “[S]o long as there is no
FLSA claim, the jurisdictional anchor to this removed action
is lost. It is then in the discretion of the Court under [28
U.S.C.] § 1367 whether it is appropriate to retain the ancillary
jurisdiction it properly has over Plaintiff’s state law claims,
despite the fact that the federal claims are no longer in the
suit.”
In prior orders, the district court also dismissed Count 3 of
Pitts’s complaint for two separate reasons. First, the district
court concluded that Count 3 lacked definiteness because it
failed to specify the hourly wage provided for by Pitts’s
alleged employment contract. However, because Pitts agreed
to amend his complaint to specify the contractual hourly rate,
the district court granted Pitts 15 days to amend. But Pitts
never had a chance to do so because before the expiration of
10446 PITTS v. TERRIBLE HERBST, INC.
the 15 days, the district court dismissed Count 3 again, this
time with prejudice. Specifically, the court construed the
breach of contract claim as a claim for violation of Nevada
Revised Statutes § 608.100 and dismissed it because only the
Nevada Labor Commissioner may enforce this statute.
II
Pitts has timely appealed all dispositive rulings of the dis-
trict court. This appeal raises five issues: (1) whether a
rejected Rule 68 offer of judgment made before the filing of
a motion for class certification moots a putative class repre-
sentative’s class action complaint; (2) whether Pitts was
untimely in seeking class certification; (3) whether FLSA col-
lective actions are incompatible with related Rule 23 state law
class actions; (4) whether Nev. Rev. Stat. § 608.100 abrogates
Nevada’s common law breach of contract action; and (5)
whether Pitts pled his breach of contract claim with sufficient
specificity. We address each issue in turn.1
A
[1] We first address whether a Rule 68 offer of judgment
for the full amount of a putative class representative’s individ-
ual monetary claim moots that representative’s class action
complaint. We agree with the district court that the class
action is not moot.
1
We review the district court’s determination of the timeliness of a
motion for class certification for abuse of discretion. See Probe v. State
Teachers’ Ret. Sys., 780 F.2d 776, 780 (9th Cir. 1986); cf. Alaska v. Sub-
urban Propane Gas Corp., 123 F.3d 1317, 1319 (9th Cir. 1997) (“We
review for abuse of discretion the district court’s determination that the
motion to intervene was untimely.” (citation omitted)). All other issues
present questions of law, which we review de novo. See Wolfson v. Bram-
mer, 616 F.3d 1045, 1053 (9th Cir. 2010).
PITTS v. TERRIBLE HERBST, INC. 10447
1
[2] Article III of the Constitution limits the jurisdiction of
the federal courts to “Cases” or “Controversies.” See U.S.
Const. art. III, § 2, cl. 1. The doctrine of mootness, which is
embedded in Article III’s case or controversy requirement,
requires that an actual, ongoing controversy exist at all stages
of federal court proceedings. See Burke v. Barnes, 479 U.S.
361, 363 (1987). Whether “the dispute between the parties
was very much alive when suit was filed . . . cannot substitute
for the actual case or controversy that an exercise of this
[c]ourt’s jurisdiction requires.” Honig v. Doe, 484 U.S. 305,
317 (1988). A case becomes moot “when the issues presented
are no longer ‘live’ or the parties lack a legally cognizable
interest in the outcome” of the litigation. Powell v. McCor-
mack, 395 U.S. 486, 496 (1969). In other words, if events
subsequent to the filing of the case resolve the parties’ dis-
pute, we must dismiss the case as moot, see Stratman v. Leis-
noi, Inc., 545 F.3d 1161, 1167 (9th Cir. 2008); DHX, Inc. v.
Allianz AGF MAT, Ltd., 425 F.3d 1169, 1174 (9th Cir. 2005),
because “[w]e do not have the constitutional authority to
decide moot cases,” Foster v. Carson, 347 F.3d 742, 747 (9th
Cir. 2003) (citation and internal quotation marks omitted).
[3] Although the Supreme Court has described mootness
as a constitutional impediment to the exercise of Article III
jurisdiction, the Court has applied the doctrine flexibly, par-
ticularly where the issues remain alive, even if “the plaintiff’s
personal stake in the outcome has become moot.” Matthew I.
Hall, The Partially Prudential Doctrine of Mootness, 77 Geo.
Wash. L. Rev. 562, 622 (2009). The distinction between
issues that have become moot and parties whose interest in
the issue may have become moot is especially visible in the
context of class actions. For example, in Sosna v. Iowa, 419
U.S. 393 (1975), the Court considered whether an entire class
action becomes moot when the class representative loses her
personal stake in the outcome of the litigation after the district
court certifies a class. There, the appellant filed a class action
10448 PITTS v. TERRIBLE HERBST, INC.
complaint challenging the constitutionality of Iowa’s one-year
durational residency requirement for invoking the state’s
divorce court jurisdiction. Id. at 396-97. After the district
court certified a class and ruled against the appellant on the
merits, the appellant sought Supreme Court review. Id. But
while the case was pending before the Court, the appellant
had both obtained a divorce in another state and resided in
Iowa for more than one year. Id. at 398-99.
The Court explained that had the appellant sued only on her
own behalf, “both the fact that she now satisfies the one-year
residency requirement and the fact that she has obtained a
divorce elsewhere would make this case moot and require dis-
missal.” Id. at 399. However, the Court held that the case was
not moot because by the time the appellant lost her personal
stake in the outcome of the litigation, the district court had
already certified a class. Class certification “significantly
affect[ed] the mootness determination” because “[w]hen the
District Court certified the propriety of the class action, the
class of unnamed persons described in the certification
acquired a legal status separate from the interest asserted by
appellant.” Id. Accordingly, an Article III case or controversy
existed at the time of the Court’s review between “a named
defendant and a member of the class represented by the
named plaintiff, even though the claim of the named plaintiff
ha[d] become moot.” Id. at 402; see also id. at 401
(“Although the controversy is no longer alive as to appellant
Sosna, it remains very much alive for the class of persons she
has been certified to represent.”).
The Court in Sosna anticipated the possibility that a case
might become moot with respect to the named plaintiffs
before the district court could rule on class certification. In
such a case, “whether the certification can be said to ‘relate
back’ to the filing of the complaint may depend upon the cir-
cumstances of the particular case and especially the reality of
the claim that otherwise the issue would evade review.” Id. at
402 n.11.
PITTS v. TERRIBLE HERBST, INC. 10449
The Court addressed the mootness of actions that might
otherwise evade review in Gerstein v. Pugh, 420 U.S. 103
(1975). In Gerstein, the named plaintiffs challenged the con-
stitutionality of certain state pretrial detention procedures.
However, by the time the case reached the Supreme Court, the
named plaintiffs had been convicted and, therefore, their pre-
trial detention had ended. Id. at 110 n.11. Nevertheless, the
Court held that “[t]his case belongs . . . to that narrow class
of cases in which the termination of a class representative’s
claim does not moot the claims of the unnamed members of
the class.” Id. Because the time of pretrial custody was short,
it was “most unlikely” that any named plaintiff or potential
class representative “would be in pretrial custody long enough
for a district judge to certify the class.” Id. Accordingly, the
named plaintiff’s substantive claim was one “distinctly ‘capa-
ble of repetition yet evading review’ ” and, therefore, not
moot. Id.
The Court extended Sosna in Deposit Guaranty National
Bank v. Roper, 445 U.S. 326 (1980), and United States Parole
Commission v. Geraghty, 445 U.S. 388 (1980), where it held
that a putative class representative may appeal the district
court’s denial of class certification even after his individual
claim becomes moot. In Roper, the named plaintiffs filed a
class action complaint in which they alleged that the defen-
dant charged them usurious finance fees in violation of fed-
eral law. 445 U.S. at 328. After the district court denied class
certification, the defendant “tendered to each named plaintiff
. . . the maximum amount that each could have recovered.” Id.
at 329. Although the named plaintiffs declined to accept the
tender, the district court entered judgment in their favor, over
their objection and in accordance with the defendant’s offer.
Id. at 329-30. After the Fifth Circuit reversed the denial of
class certification, the Supreme Court granted certiorari to
decide “whether a tender to named plaintiffs in a class action
of the amounts claimed in their individual capacities, fol-
lowed by the entry of judgment in their favor on the basis of
that tender, over their objection, moots the case and termi-
10450 PITTS v. TERRIBLE HERBST, INC.
nates their right to appeal the denial of class certification.” Id.
at 327.
At the outset, the Court noted it was “important” that, as
here, “[a]t no time did the named plaintiffs accept the tender
in settlement of the case; instead, judgment was entered in
their favor by the court without their consent and the case was
dismissed over their continued objections.” Id. at 332. The
Court then held that the case was not moot because the named
plaintiffs retained “an economic interest in class certifica-
tion,” id. at 333, including “their desire to shift part of the
costs of litigation to those who will share in its benefits if the
class is certified and ultimately prevails,” id. at 336. More-
over, the Court expressed concern at the ability of defendants
to “ ‘buy off’ ” proposed class representatives before a court
can certify a class, thereby “frustrat[ing] the objectives of
class actions.” Id. at 339.2
In Geraghty, the Court extended Roper even to cases where
the named plaintiff lacks any economic interest in the class
certification decision. There, a federal prisoner brought a class
2
Concurring, Justices Rehnquist and Stevens offered additional reasons
why a settlement offer does not moot a class action complaint. Justice
Rehnquist explained that a class action “is moot in the Art. III sense only
if th[e] Court adopts a rule that an individual seeking to proceed as a class
representative is required to accept a tender of only his individual claims.”
Roper, 445 U.S. at 341 (Rehnquist, J., concurring). But so long as the
Court does not adopt such a rule, “the requisite Art. III adversity contin-
ues” because “the defendant has not offered all that has been requested in
the complaint (i.e., relief for the class) and any other rule would give the
defendant the practical power to make the denial of class certification
questions unreviewable.” Id. Justice Stevens argued that “when a proper
class-action complaint is filed, the absent members of the class should be
considered parties to the case or controversy at least for the limited pur-
pose of the court’s Art. III jurisdiction.” Id. at 342 (Stevens, J., concur-
ring). Accordingly, “the continued viability of the case or controversy, as
those words are used in Art. III, does not depend on the district judge’s
initial answer to the certification question; rather, it depends on the plain-
tiffs’ right to have a class certified.” Id.
PITTS v. TERRIBLE HERBST, INC. 10451
action challenging the constitutionality of certain parole
release guidelines and sought to certify “a class of all federal
prisoners who are or will become eligible for release on
parole.” 445 U.S. at 393 (internal quotation marks omitted).
After the district court denied class certification and ruled
against the named plaintiff on the merits, the named plaintiff
appealed. Id. at 393-94. But while the appeal was pending,
Geraghty completed his sentence and was released from
prison, an event that rendered his individual claim moot. Id.
at 394. The Court noted that if the class had been certified,
Geraghty’s release would not have mooted the controversy.
Id. The question was whether Geraghty’s release also mooted
his appeal of the class certification ruling. The Court held that
it did not.
[4] The Court observed that “[a] plaintiff who brings a
class action presents two separate issues for judicial resolu-
tion. One is the claim on the merits; the other is the claim that
he is entitled to represent a class.” Id. at 402. Discussing the
latter claim, the Court explained that “the Federal Rules of
Civil Procedure give the proposed class representative the
right to have a class certified if the requirements of the Rules
are met.” Id. at 403. This procedural right to represent a class
“is more analogous to the private attorney general concept
than to the type of interest traditionally thought to satisfy the
‘personal stake’ requirement,” but it nevertheless suffices to
satisfy Article III concerns because the class certification
question “remains as a concrete, sharply presented issue”
even after the named plaintiff’s individual claim has expired
and because “vigorous advocacy [of the plaintiff’s right to
have a class certified] can be assured through means other
than the traditional requirement of a ‘personal stake in the
outcome.’ ” Id. at 403-04. Accordingly, the Court held that
“an action brought on behalf of a class does not become moot
upon expiration of the named plaintiff’s substantive claim,
even though class certification has been denied,” id. at 404,
and if denial of class certification is reversed on appeal, “the
10452 PITTS v. TERRIBLE HERBST, INC.
corrected ruling ‘relates back’ to the date of the original deni-
al,” id. at 404 n.11.
Finally, in County of Riverside v. McLaughlin, 500 U.S. 44
(1991), the plaintiffs brought a class action to challenge the
County’s policy of combining probable cause determinations
with its arraignment procedures. The Court noted that the
plaintiffs—persons incarcerated who at the time the complaint
was filed had not received a probable cause determination—
no longer had live individual claims because they had either
received a probable cause determination or been released. Id.
at 51. Citing Gerstein and Sosna, the Court repeated that the
termination of a class representative’s claim does not moot
the class claims. Id. As the Court explained, “[t]hat the class
was not certified until after the named plaintiffs’ claims had
become moot does not deprive [the Court] of jurisdiction.” Id.
at 52. Where the claims are “inherently transitory” “the ‘rela-
tion back’ doctrine is properly invoked to preserve the merits
of the case for judicial resolution.” Id. (citation omitted).
2
Though Sosna, Gerstein, Roper, Geraghty, and McLaughlin
do not address the precise issue before us—whether a putative
class action becomes moot when the named plaintiff receives
an offer of settlement that fully satisfies his individual claim
before he files a motion for class certification—they provide
several principles that guide our decision.
[5] First, if the district court has certified a class, mooting
the putative class representative’s claim will not moot the
class action. That is so because upon certification the class
“acquire[s] a legal status separate from the interest asserted by
[the class representative],” Sosna, 419 U.S. at 399, so that an
Article III controversy now exists “between a named defen-
dant and a member of the [certified] class,” id. at 402. At this
point, a defendant may moot a class action through an offer
of settlement only if he satisfies the demands of the class; an
PITTS v. TERRIBLE HERBST, INC. 10453
offer to one cannot moot the action because it is not an offer
to all.
[6] Second, if the district court has denied class certifica-
tion, mooting the putative class representative’s claim will not
necessarily moot the class action. The putative class represen-
tative retains an interest in obtaining a final decision on class
certification that allows him to litigate the denial of class cer-
tification on appeal. See Geraghty, 445 U.S. at 404; Roper,
445 U.S. at 336-37. This interest may be either an individual
economic interest in “shift[ing] part of the costs of litigation
to those who will share in its benefits if the class is certified
and ultimately prevails,” Roper, 445 U.S. at 336, or a private-
attorney-general-like interest in having a class certified if the
requirements of Rule 23 are met, Geraghty, 445 U.S. at 403,
but it nevertheless satisfies Article III concerns. “If the appeal
results in reversal of the class certification denial, and a class
subsequently is properly certified, the merits of the class
claim then may be adjudicated pursuant to the holding in
Sosna.” Id. at 404.
[7] Third, even if the district court has not yet addressed
the class certification issue, mooting the putative class repre-
sentative’s claims will not necessarily moot the class action.
“[S]ome 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.” McLaughlin, 500 U.S. at 52 (internal quota-
tion marks omitted). An inherently transitory claim will cer-
tainly repeat as to the class, either because “[t]he individual
could nonetheless suffer repeated [harm]” or because “it is
certain that other persons similarly situated” will have the
same complaint. Gerstein, 420 U.S. at 110 n.11. In such
cases, the named plaintiff’s claim is “capable of repetition, yet
evading review,” id., and “the ‘relation back’ doctrine is prop-
erly invoked to preserve the merits of the case for judicial res-
olution,” McLaughlin, 500 U.S. at 52; see also Geraghty, 445
U.S. at 398; Sosna, 419 U.S. at 402 n.11. Application of the
10454 PITTS v. TERRIBLE HERBST, INC.
relation back doctrine in this context thus avoids the spectre
of plaintiffs filing lawsuit after lawsuit, only to see their
claims mooted before they can be resolved.
3
[8] Applying these principles to our case, we conclude that
Terrible’s unaccepted offer of judgment did not moot Pitts’s
case because his claim is transitory in nature and may other-
wise evade review. Accordingly, if the district court were to
certify a class, certification would relate back to the filing of
the complaint. We recognize that the canonical relation-back
case—such as Gerstein or McLaughlin—involves an “inher-
ently transitory” claim and, correspondingly, “a constantly
changing putative class.” Wade v. Kirkland, 118 F.3d 667,
670 (9th Cir. 1997). But we see no reason to restrict applica-
tion of the relation-back doctrine only to cases involving
inherently transitory claims. Where, as here, a defendant
seeks to “buy off” the small individual claims of the named
plaintiffs, the analogous claims of the class—though not
inherently transitory—become no less transitory than inher-
ently transitory claims. Thus, although Pitts’s claims “are not
‘inherently transitory’ as a result of being time sensitive, they
are ‘acutely susceptible to mootness’ in light of [the defen-
dant’s] tactic of ‘picking off’ lead plaintiffs with a Rule 68
offer to avoid a class action.” Weiss v. Regal Collections, 385
F.3d 337, 347 (3d Cir. 2004) (internal citation omitted). The
end result is the same: a claim transitory by its very nature
and one transitory by virtue of the defendant’s litigation strat-
egy share the reality that both claims would evade review.
Invoking the relation back doctrine in this context furthers
the purposes of Rule 23. Where the class claims are so eco-
nomically insignificant that no single plaintiff can afford to
maintain the lawsuit on his own, Rule 23 affords the plaintiffs
a “realistic day in court” by allowing them to pool their
claims. Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 809
(1985); see also Roper, 445 U.S. at 339 (“Where it is not eco-
PITTS v. TERRIBLE HERBST, INC. 10455
nomically feasible to obtain relief within the traditional
framework of a multiplicity of small individual suits for dam-
ages, aggrieved persons may be without any effective redress
unless they may employ the class-action device.”). A rule
allowing a class action to become moot “simply because the
defendant has sought to ‘buy off’ the individual private claims
of the named plaintiffs” before the named plaintiffs have a
chance to file a motion for class certification would thus con-
travene Rule 23’s core concern: the aggregation of similar,
small, but otherwise doomed claims. Roper, 445 U.S. at 339;
see also Weiss, 385 F.3d at 344 (“[A]llowing the defendants
here to ‘pick off’ a representative plaintiff with an offer of
judgment less than two months after the complaint is filed
may undercut the viability of the class action procedure, and
frustrate the objectives of this procedural mechanism for
aggregating small claims . . . .”). It would effectively ensure
that claims that are too economically insignificant to be
brought on their own would never have their day in court. See
Zeidman v. J. Ray McDermott & Co., 651 F.2d 1030, 1050
(5th Cir. 1981) (“[I]n those cases in which it is financially fea-
sible to pay off successive named plaintiffs, the defendants
would have the option to preclude a viable class action from
ever reaching the certification stage.”); Stewart v. Cheek &
Zeehandelar, LLP, 252 F.R.D. 384, 386 (S.D. Ohio 2008)
(“[T]reating pre-certification settlement offers as mooting the
named plaintiffs’ claims would have the disastrous effect of
enabling defendants ‘to essentially opt-out of Rule 23.’ ”
(citation omitted)). And even if it does not discourage poten-
tial claimants, it “may waste judicial resources by ‘stimulating
successive suits brought by others claiming aggrievement.’ ”
Weiss, 385 F.3d at 345 (quoting Roper, 445 U.S. at 339).
[9] Accordingly, we hold 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.3
3
In so holding, we join the three other circuits that have considered the
pre-certification effect of a Rule 68 offer of judgment on the mootness of
10456 PITTS v. TERRIBLE HERBST, INC.
If the named plaintiff can still file a timely motion for class
certification, the named plaintiff may continue to represent
the class until the district court decides the class certification
issue. Then, if the district court certifies the class, certification
relates back to the filing of the complaint. Once the class has
been certified, the case may continue despite full satisfaction
of the named plaintiff’s individual claim because an offer of
judgment to the named plaintiff fails to satisfy the demands
of the class. See Sosna, 419 U.S. at 402-03. Conversely, if the
district court denies class certification, under Roper and
Geraghty, the plaintiff may still pursue a limited appeal of the
class certification issue. Only once the denial of class certifi-
cation is final does the defendant’s offer—if still available—
moot the merits of the case because the plaintiff has been
offered all that he can possibly recover through litigation. See
Sandoz, 553 F.3d at 921 & n.5. We agree with the district
court that Terrible’s offer of judgment to Pitts did not moot
his class action.
B
[10] We next address whether the district court abused its
discretion in finding that Pitts could no longer file a timely
motion for class certification. “A district court abuses its dis-
cretion when it makes an error of law, when it rests its deci-
sion on clearly erroneous findings of fact, or when we are left
with ‘a definite and firm conviction that the district court
committed a clear error of judgment.’ ” United States v. Hink-
a class action. See Lucero v. Bureau of Collection Recovery, Inc., 639 F.3d
1239, 1249 (10th Cir. 2011) (holding that “a nascent interest attaches to
the proposed class upon the filing of a class complaint such that a rejected
offer of judgment for statutory damages and costs made to a named plain-
tiff does not render the case moot under Article III”); Sandoz v. Cingular
Wireless LLC, 553 F.3d 913, 920-21 (5th Cir. 2008) (holding that a timely
filed motion for class certification relates back to the filing of the com-
plaint so that a pre-certification Rule 68 offer of judgment does not moot
the case); Weiss, 385 F.3d at 348 (same).
PITTS v. TERRIBLE HERBST, INC. 10457
son, 611 F.3d 1098, 1114 (9th Cir. 2010) (citation omitted).
Here, the district court held that Pitts was untimely in seeking
class certification because he failed to file his motion to cer-
tify prior to the initial discovery deadline. With respect, we
think the district court committed a clear error of judgment.
We acknowledge that Pitts did not file a motion for class
certification by January 2010, the initial discovery deadline.
But at the time of the district court’s ruling, Pitts had already
asked for and received an extension of this deadline until
April 2010. Pitts had a good reason for doing so: by January
2010, the court had not yet ruled on his motion to compel the
production of certain documents that, in his view, were cru-
cial to the class certification decision.4 Pitts repeatedly and
timely informed the court—in his motion to compel, at the
hearing held for this motion, and in his motion to extend the
initial discovery deadline—that he was awaiting the court’s
ruling prior to filing a motion for class certification.5 The
court, however, never ruled on the motion to compel. Had the
4
Terrible argues that Pitts was untimely in seeking class certification
because he waited nearly 9 months to depose “the person most knowl-
edgeable at [Terrible] regarding the company’s policy and practice for
approving employee overtime.” We disagree. At the time Pitts conducted
this deposition, his motion to compel was still pending before the district
court. We fail to see how Pitts was untimely in seeking class certification
because he awaited the resolution of a discovery motion which, if granted,
would have allowed him to conduct a more meaningful deposition of a
critical witness.
5
It was certainly reasonable for Pitts to await a ruling on his motion to
compel the production of documents allegedly crucial to class certification
before filing a motion to certify a class. We have previously held that
“[t]he propriety of a class action cannot be determined in some cases with-
out discovery” and that “[t]o deny discovery in [such cases] would be an
abuse of discretion.” Kamm v. Cal. City Dev. Co., 509 F.2d 205, 210 (9th
Cir. 1975); see also Doninger v. Pac. Nw. Bell, Inc., 564 F.2d 1304, 1313
(9th Cir. 1977) (stating that “the better and more advisable practice for a
District Court to follow is to afford the litigants an opportunity to present
evidence as to whether a class action was maintainable” and that such an
opportunity requires “enough discovery to obtain the material”).
10458 PITTS v. TERRIBLE HERBST, INC.
court ruled on Pitts’s motion—which was filed well before
the initial discovery deadline—or had the court simply
informed Pitts that he was nevertheless expected to file a
motion for class certification by January 2010, Pitts could
then have filed his motion for class certification in a “timely”
manner. But the court did not do so.
[11] Without a clear statement from the district court set-
ting a deadline for the filing of a motion for class certification,
Pitts could not predict that he was expected to file his motion
by the end of the initial discovery deadline. Unlike the local
rules of some district courts, the local rules of the District of
Nevada do not impose a particular deadline for filing a motion
for class certification. Nor did the scheduling order entered by
the district court refer to any deadline for filing such a motion.
In fact, the scheduling order contemplated that a class certifi-
cation motion could be filed even after the initial discovery
deadline; it states that “[d]ispositive motions shall be filed no
later [than] 60 days after the end of discovery unless a motion
for class action certification is made . . . during such time.”
The only other guideline Pitts had for determining when he
was expected to seek class certification was Rule 23 itself,
which states that the district court must decide the class certi-
fication issue “[a]t an early practicable time.” Fed. R. Civ. P.
23(c)(1)(A). Under these circumstances—where the court had
extended the initial discovery deadline at the time of its rul-
ing, where a motion to compel the production of documents
allegedly crucial to the class certification decision had been
filed well in advance of the initial discovery deadline and was
still pending, where neither the local rules nor the court’s own
scheduling order imposed a deadline for seeking class certifi-
cation, and where the scheduling order actually suggested that
a motion for class certification could be filed even after the
end of discovery—the district court abused its discretion in
finding that Pitts could no longer file a timely motion to cer-
tify a class.
PITTS v. TERRIBLE HERBST, INC. 10459
C
Aside from dismissing Pitts’s entire action for lack of sub-
ject matter jurisdiction, the district court alternatively dis-
missed Count 2 of the complaint because, in its view, a Rule
23 class action could not co-exist with a related collective
action under the FLSA. Although the question has divided
district courts in our circuit, compare Misra v. Decision One
Mortg. Co., LLC, 673 F. Supp. 2d 987, 994 (C.D. Cal. 2008)
(holding that “an opt-out class under Rule 23 is not inherently
incompatible with an FLSA opt-in class”), with Williams v.
Trendwest Resorts, Inc., 2007 WL 2429149, at *4 (D. Nev.
Aug. 20, 2007) (holding that “the class action mechanisms of
the FLSA and Rule 23 are incompatible”), we need not
address this issue because Pitts has told us—as he told the dis-
trict court—that he will not pursue his FLSA claims.6 Because
Pitts has abandoned these claims, any alleged incompatibility
between a Rule 23 class action and an FLSA collective action
is not present in this case.
The district court faulted Pitts for failing to amend his com-
plaint to reflect his waiver of the federal claims and for trying
to oust the court of jurisdiction. Neither reason justifies the
district court’s refusal to allow Pitts to relinquish his FLSA
claims. First, a litigant may abandon a claim by communicat-
ing his desire to do so to the district court. Pitts did so in a
written response to a motion to dismiss; he did not need to
further amend his complaint. Second, a plaintiff may volun-
tarily abandon a claim even though his decision may affect
the jurisdiction of a federal court; after all, the claim he
abandons—once dismissed with prejudice—is the price he
pays. See Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 357
(1988) (stating that the concern “that a plaintiff whose suit has
been removed to federal court will be able to regain a state
6
The only circuit that has addressed this issue has held that Rule 23
class actions and FLSA collective actions may peacefully co-exist. See
Ervin v. OS Rest. Servs., 632 F.3d 971, 976-79 (7th Cir. 2011).
10460 PITTS v. TERRIBLE HERBST, INC.
forum simply by deleting all federal-law claims from the
complaint and requesting that the district court remand the
case . . . hardly justifies a categorical prohibition on the
remand of cases involving state-law claims”); cf. Templeton
v. Nedlloyd Lines, 901 F.2d 1273, 1275-76 (5th Cir. 1990)
(holding that the district court did not abuse its discretion in
granting the plaintiff’s motion for voluntary dismissal where,
after dismissal, the defendant faced the prospect of a trial in
state court). And in any event, the district court retains discre-
tion under 28 U.S.C. § 1367 to exercise supplemental jurisdic-
tion over state law claims even after the federal claims, which
provided the original jurisdictional anchor, are dismissed. See
Cohill, 484 U.S. at 357 (holding that a district court may take
the plaintiff’s forum manipulation into account when deter-
mining whether to remand a case involving pendent state-law
claims); cf. Satey v. JPMorgan Chase & Co., 521 F.3d 1087,
1091 (9th Cir. 2008) (“The fact that [the plaintiff] may have
later sought dismissal of his federal claims does not divest the
district court of its power to exercise supplemental jurisdic-
tion unless those claims were absolutely devoid of merit or
obviously frivolous.”).
D
We next turn to the district court’s reasons for dismissing
Count 3 of the complaint.
[12] Although Count 3 alleged a common law cause of
action for breach of contract, the district court recast Count 3
as a statutory claim alleging a violation of Nev. Rev. Stat.
§ 608.100. Then, because Nevada courts have held that
§ 608.100 does not provide a private cause of action, the dis-
trict court dismissed Count 3. A district court may not substi-
tute a claim that is easy to dismiss for a claim actually
asserted in the complaint and then dismiss the original claim
unless the substitute claim somehow preempts the original
claim. Because § 608.100 does not abrogate Nevada’s com-
PITTS v. TERRIBLE HERBST, INC. 10461
mon law breach of contract action, we reverse the district
court.
[13] Nevada courts will not construe a statute as eliminat-
ing a common law cause of action unless the statute unam-
biguously requires that result. See Hardy Cos., Inc. v.
SNMARK, LLC, 245 P.3d 1149, 1155-56 (Nev. 2010) (“In the
enactment of a statute, ‘the legislature will be presumed not
to intend to overturn long-established principles of law, and
the statute will be so construed unless an intention to do so
plainly appears by express declaration or necessary implica-
tion.’ ” (citations omitted)); cf. United States v. Texas, 507
U.S. 529, 534 (1993) (“In order to abrogate a common-law
principle, the statute must ‘speak directly’ to the question
addressed by the common law.” (citations omitted)). Section
608.100 provides, in relevant part, that “[i]t is unlawful for
any employer to . . . [p]ay a lower wage . . . to an employee
than the amount that the employer is required to pay . . . by
contract between the employer and the employee.” Nev. Rev.
Stat. § 608.100(1)(b). Although it is true that only the Nevada
Labor Commissioner may enforce this provision, see Bal-
donado v. Wynn Las Vegas, LLC, 194 P.3d 96, 100-03 (Nev.
2008), nothing in § 608.100’s text expresses the legislature’s
desire to eliminate a common law breach of contract action
covering the same conduct; in fact, § 608.100 does not even
mention the common law or a breach of contract action.
Moreover, a violation of § 608.100 imposes liability of a kind
that cannot be imposed by a breach of contract action, which
suggests that § 608.100 was meant to complement rather than
replace the common law. See Nev. Rev. Stat. § 608.195 (stat-
ing that any person who violates Nev. Rev. Stat. § 608.100 “is
guilty of a misdemeanor” and that “the Labor Commissioner
may impose . . . an administrative penalty of not more than
$5,000 for each such violation”).
Nevertheless, Terrible argues that Sands Regent v. Valgard-
son, 777 P.2d 898 (Nev. 1989), compels a different result.
Terrible cites the case for the proposition that whenever the
10462 PITTS v. TERRIBLE HERBST, INC.
legislature enacts a statute that imposes liability for conduct
that already rendered the actor liable under a common law
cause of action, the legislature necessarily displaces the exist-
ing cause of action. But Terrible has misread Valgardson. In
Valgardson, the plaintiffs sued their employer after they were
fired for being too old and alleged, among other things, a
cause of action for violation of a Nevada statute that prohib-
ited discrimination in employment on the basis of age and a
cause of action for common law public policy tortious dis-
charge. Id. at 898-99. In part because Nevada’s unlawful
employment practices statute already created a private cause
of action for firing an employee because of his age, the court
refused to extend the common law public policy tortious dis-
charge cause of action to cover instances of age discrimina-
tion. Id. at 900. Accordingly, Valgardson held that Nevada
will not create a new common law cause of action where the
legislature has already provided a statutory remedy covering
the same wrongful conduct; Valgardson nowhere held that a
statute that imposes liability for conduct that renders the actor
liable under an existing cause of action abrogates the existing
cause of action.7
E
Lastly, we address the district court’s dismissal of Count 3
of the complaint for lack of definiteness.
Before the district court dismissed Count 3 on the merits,
it dismissed Count 3 because Pitts failed to specify in his
complaint the hourly wage he was entitled to under his
alleged employment contract with Terrible. However, after
Pitts offered to amend his complaint to make this specific
allegation, the court gave Pitts 15 days to amend. But the
court then denied Pitts an opportunity to amend by dismissing
7
This is not to say that an employee can seek to enforce statutory provi-
sions by framing them as implied contract terms. See Baldonado, 194 P.3d
at 104 n.33.
PITTS v. TERRIBLE HERBST, INC. 10463
Count 3 with prejudice before the expiration of the 15 days.
Now that we have reversed the district court’s latter dismissal,
we presume that Pitts will amend his complaint. Accordingly,
we need not address the district court’s pleading specificity
holding.
III
We hold that where a defendant makes an unaccepted Rule
68 offer of judgment that fully satisfies a named plaintiff’s
individual claim before the named plaintiff files a motion for
class certification, the offer does not moot the case so long as
the named plaintiff may still file a timely motion for class cer-
tification. Once filed, a timely motion for class certification
relates back to the time of the filing of the complaint. We fur-
ther hold that the district court abused its discretion in finding
that Pitts could no longer file a timely motion of class certifi-
cation; that it erred in refusing to allow Pitts to abandon his
FLSA claims; and that it erred in holding that Nev. Rev. Stat.
§ 608.100 abrogates Pitts’s breach of contract claims.
REVERSED and REMANDED.