UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Nancy Boucher, Individually
and as Personal Representative
of the Estate of Raymond Boucher
v. Civil No. 14-cv-141-LM
Opinion No. 2014 DNH 170
Tyler Rioux and Industrial
Concrete Services, Inc.
O R D E R
In a case that arises from a traffic accident that took the
life of her husband, Nancy Boucher (“Boucher”) has sued truck
driver Tyler Rioux (“Rioux”) and his employer, Industrial
Concrete Services, Inc. (“Industrial Concrete”). Against Rioux,
Boucher asserts claims for negligence (Counts I and II), loss of
consortium (Count III), and negligent infliction of emotional
distress (Count IV). In Count V, Boucher asserts that
Industrial Concrete is vicariously liable for Rioux’s tortious
conduct. Before the Court is Industrial Concrete’s motion to
dismiss Count III and a portion of Count V, for lack of subject-
matter jurisdiction, see Fed. R. Civ. P. 12(b)(1). Industrial
Concrete argues that those claims are moot as a result of an
offer of judgment it made to Boucher. Boucher objects. For the
reasons that follow, Industrial Concrete’s motion to dismiss is
denied.
Standard of Review
“A challenge under Rule 12(b)(1) constitutes a challenge to
federal subject matter jurisdiction, which includes ripeness,
mootness, sovereign immunity and, of course, subject matter
jurisdiction.” Pérez v. P.R. Nat’l Guard, 951 F. Supp. 2d. 279,
287 (D.P.R. 2013) (citing Valentin v. Hosp. Bella Vista, 254
F.3d 358, 362–63 (1st Cir. 2001)). “When a case is moot — that
is, when the issues presented are no longer live or when the
parties lack a generally cognizable interest in the outcome — a
case or controversy ceases to exist, and dismissal of the action
is compulsory.” Redfern v. Napolitano,
727 F.3d 77, 83–84 (1st
Cir. 2013) (quoting Maher v. Hyde,
272 F.3d 83, 86 (1st Cir.
2001); citing Cruz v. Farquharson,
252 F.3d 530, 533 (1st Cir.
2001)).
Background
The following facts are drawn from plaintiff’s complaint.
See Plumbers’ Union Local No. 12 Pension Fund v. Nomura Asset
Acceptance Corp., 632 F.3d 762, 771 (1st Cir. 2011). Boucher’s
husband of 40 years was in the yard of their home when Rioux,
who was working for Industrial Concrete at the time, drove a
truck into him and killed him.
In Count III of her complaint, Boucher “demands judgement
against [Rioux] for compensatory damages as fully allowed by New
2
Hampshire RSA 556:12, II[,] for her loss of comfort, society and
companionship.” Compl. (doc. no. 1-1) 3. In Count V, she
“demands judgement against the defendant, Industrial Concrete
Services, Inc., [under a theory of vicarious liability,] for
compensatory damages for each count and each damage alleged in
the previous counts against Defendant, Rioux.” Id. at 5.
In its answer, Industrial Concrete “admit[ted] legal fault
for the accident.” Answer (doc. no. 6) ¶ 7. Further,
Industrial Concrete admitted that Mr. Boucher’s death was “a
direct and proximate result of the collision.” Id. ¶ 8.
Finally, Industrial Concrete has admitted
that as a consequence of Mr. Boucher’s death, Mrs.
Boucher has suffered the loss of his society, comfort
and companionship. Further, [Industrial Concrete]
admit[ted] liability for the claim of the loss of
comfort, society, companionship, and is ready,
willing, and has proposed to pay the full amount to
which the plaintiff is entitled . . . under the
statutory laws of N.H. RSA 556:12[,] II, the sum of
$150,000. [Industrial Concrete also] admit[ted]
liability and damages as to Count III, and propose[d]
to confess judgment to that Count and pay into Court
the amount to which the plaintiff is entitled.
Id. ¶ 16.
Industrial Concrete made an offer of judgment under Rule 68
of the Federal Rules of Civil Procedure in the amount of
$150,000, which is the statutory maximum for a loss-of-
consortium claim. See Industrial Concrete’s Mot. to Dismiss,
3
Ex. A (doc. no. 8-2), at 3. Boucher rejected Industrial
Concrete’s offer of judgment.
Discussion
Industrial Concrete moves to dismiss Count III and the
portion of Count V that pertains to Boucher’s claim for loss of
consortium for lack of subject-matter jurisdiction because those
claims have been rendered moot by its Rule 68 offer of judgment
in the full amount authorized by RSA 556:12, II. Boucher
objects.
Prior to Justice Kagan’s dissent in Genesis Healthcare
Corp. v. Symczyk, 133 S. Ct. 1523 (2013), such relief was
readily available to a defendant who made an offer of judgment
under Rule 68 that completely satisfied a plaintiff’s claim.
For example, there is the Second Circuit’s decision in Abrams v.
Interco, Inc.,
719 F.2d 23 (2d Cir. 1983). That case was a
putative class action in which class certification was denied.
Id. at 25. The defendant offered to consent to judgment in
favor of individual plaintiffs and pay them three times their
actual damages plus costs and reasonable attorney’s fees.
Id.
The court of appeals affirmed the district court’s dismissal of
plaintiffs’ claims on grounds that there was “no justification
for taking the time of the court and the defendant in the
pursuit of minuscule individual claims which defendant has more
4
than satisfied.” Id. at 32. Several other circuits have
reached generally similar conclusions. See, e.g., Rand v.
Monsanto Co.,
926 F.2d 596, 598 (7th Cir. 1991) (holding that
plaintiff forfeits his claim if he refuses a Rule 68 offer of
judgment that fully satisfies his entire demand); O’Brien v. Ed
Donnelly Enters., Inc.,
575 F.3d 567, 575 (6th Cir. 2009)
(holding that where defendant makes offer of judgment that
satisfies plaintiff’s entire demand, “the better approach is to
enter judgment in favor of the plaintiffs in accordance with the
defendants’ Rule 68 offer of judgment”); see also Diaz v. First
Am. Home Buyers Prot. Corp.,
732 F.3d 948, 953 n.5 (9th Cir.
2013) (providing an extensive survey of pre-Genesis case law and
commentary).
A. Justice Kagan’s Dissent in Genesis
The tide shifted in Genesis. In that case, the plaintiff
brought a “collective action” on her own behalf, and on behalf
of other similarly situated employees, against her employer for
violating the Fair Labor Standards Act. See 133 S. Ct. at 1527
(citing Hoffmann-La Roche, Inc. v. Sperling,
493 U.S. 165, 169-
70 (1989), for the definition of “collective action”).1
1
Judge Krieger has recently explained the difference
between a collective action and a class action:
A “collective action” under [29 U.S.C.] § 216(b)
differs from the traditional class action under Fed.
R. Civ. P. 23, in that Rule 23 class actions are
5
Simultaneous with its answer and before any other plaintiffs had
opted in, the defendant made a Rule 68 offer of judgment in the
amount of $7,500 plus reasonable attorney’s fees, contingent
upon the offer being accepted within ten days. See id. After
the plaintiff let the offer lapse, the district court granted
the defendant’s motion to dismiss for lack of subject-matter
jurisdiction. See id. On appeal, the Third Circuit ruled that
the plaintiff’s individual claim was moot, but reversed and
remanded the case in order to allow the plaintiff to seek
“conditional certification.”2 Id. The defendant appealed to the
Supreme Court. In a 5-4 decision reversing the court of
generally “opt-out,” such that class members are
presumptively treated as remaining in the litigation
class unless they affirmatively request to be
excluded. A collective action under § 216(b) results
in notice of the action being sent to all potential
“class” members, but only those members who
affirmatively “opt in” to the action by filing a
consent form become joined in the litigation.
Delgado v. Castellino Corp., No. 13-cv-03379-MSK-MJW, 2014 WL
4339232, at *1 n.1 (D. Colo. Sept. 2, 2014).
2
The Genesis majority had this to say about the Third
Circuit’s reference to conditional certification:
Lower courts have borrowed class-action terminology to
describe the process of joining co-plaintiffs under 29
U.S.C. § 216(b). While we do not express an opinion
on the propriety of this use of class-action
nomenclature, we do note that there are significant
differences between certification under Federal Rule
of Civil Procedure 23 and the joinder process under §
216(b).
133 S. Ct. at 1527 n.1.
6
appeals, the majority noted that the plaintiff conceded in the
district court that “an offer of complete relief will generally
moot [a] claim.” Id. at 1529. Due to that concession, the
Court expressly declined to reach the mootness issue, and
assumed without deciding that a plaintiff’s claim will become
moot following an unaccepted Rule 68 offer of judgment that
would provide the plaintiff with complete relief. See
id. at
1529, 1532.
In a dissent that was joined by Justices Ginsburg, Breyer,
and Sotomayor, Justice Kagan addressed the very issue that the
majority declined to address. See id. at 1532 (Kagan, J.,
dissenting). Justice Kagan relied on the language of Rule 68 to
explain that courts have no power under that rule to enter
judgment on an unaccepted offer of judgment:
When a plaintiff rejects such an offer — however good
the terms — her interest in the lawsuit remains just
what it was before. And so too does the court’s
ability to grant her relief. An unaccepted settlement
offer — like any unaccepted contract offer — is a
legal nullity, with no operative effect. As every
first-year law student learns, the recipient’s
rejection of an offer leaves the matter as if no offer
had ever been made. Nothing in Rule 68 alters that
basic principle; to the contrary, that rule specifies
that an unaccepted offer is considered withdrawn. So
assuming the case was live before — because the
plaintiff had a stake and the court could grant relief
— the litigation carries on, unmooted.
Id. at 1533–34 (citations, quotation marks and alterations
omitted). Mincing no words, Justice Kagan admonished lower
7
courts as follows: “So a friendly suggestion to the Third
Circuit: Rethink your mootness-by-unaccepted-offer theory. And
a note to all other courts of appeals: Don’t try this at home.”
Id. at 1534. Post-Genesis jurisprudence in both the circuit
courts and the district courts has taken a favorable view of
Justice Kagan’s dissent.
B. Responses in the Circuits
The most notable application of Justice Kagan’s dissent is
the Ninth Circuit’s decision in Diaz. In that case, which was a
class action, the district court denied the plaintiff’s motion
for class certification. See 732 F.3d at 950. Subsequently,
the defendant made a Rule 68 offer of judgment on the
plaintiff’s remaining individual claims. See
id. The offer did
not address plaintiff’s demands for injunctive and declaratory
relief. See
id. at 951. When the plaintiff did not accept the
Rule 68 offer, the defendant moved for dismissal for lack of
subject-matter jurisdiction. See
id. at 950. In granting the
motion, the district court first held that the plaintiff was not
entitled to either injunctive or declaratory relief, and then
found that the offer of judgment mooted the plaintiff’s
remaining claim. See
id. at 950–51. Relying on the dissent in
Genesis, the Ninth Circuit vacated the district court’s
dismissal for lack of subject-matter jurisdiction because “‘Rule
[68] provides no appropriate mechanism for a court to terminate
8
a lawsuit without the plaintiff’s consent.’” Id. at 954
(quoting Genesis,
133 S. Ct. at 1536 (Kagan, J., dissenting)).
The Seventh Circuit, which once held that a plaintiff
forfeits his claim if he refuses a Rule 68 offer of judgment
that fully satisfies his entire demand, see Rand, 926 F.2d at
596, has questioned that holding in light of Justice Kagan’s
dissent and Diaz:
The circuits are split on whether an unaccepted
settlement offer can render a case moot. Compare,
e.g., Diaz . . . (no), with Warren v. Sessoms &
Rogers, P.A., 676 F.3d 365, 370 (4th Cir. 2012) (yes).
The Supreme Court granted certiorari in Genesis . . .,
to resolve this split but ultimately decided that case
on narrower grounds. The circuit split remains, but
there are reasons to question our approach to the
problem. See id. at 1533–34 (Kagan, J., dissenting).
Scott does not challenge our circuit’s view, so we
will continue to await a resolution of the split.
Scott v. Westlake Servs. LLC, 740 F.3d 1124, 1126 n.1 (7th Cir.
2014) (parallel citation omitted).3
In the circuit courts, there are only two counterweights to
Diaz and Scott, but they are very light. In Hrivnak v. NCO
Portfolio Management, Inc., the Sixth Circuit: (1) cited the
majority opinion in Genesis, see 719 F.3d 564, 567 (6th Cir.
3
While Scott could be read as suggesting that the Supreme
Court granted certiorari in Genesis to resolve a circuit split
involving Diaz and Warren, that was not the case, given that
Genesis was decided before Diaz. The Supreme Court described
the circuit split it identified this way: “Compare, e.g., Weiss
v. Regal Collections, 385 F.3d 337, 340 (3d Cir. 2004) with
McCauley v. Trans Union, LLC,
402 F.3d 340, 342 (2d Cir. 2005).”
Genesis,
133 S. Ct. at 1528 n.3.
9
2013); (2) restated the rule from O’Brien that a case or
controversy may be mooted when “an offer of judgment [gives] the
plaintiff everything he has asked for as an individual [which]
means his ‘entire demand,’” Hrivnak, 719 F.3d at 567 (emphasis
in the original); and (3) did not mention Justice Kagan’s
dissent. But, in Hrivnak, there was no reason for the court to
reconsider O’Brien because the Hrivnak “defendants did not offer
to satisfy all of Hrivnak’s individual demands,”
id. at 568.
Thus, Hrivnak cannot be counted as a rejection of Justice
Kagan’s reasoning. Similarly, in Doyle v. Midland Credit
Management, Inc., the Second Circuit relied upon its earlier
decision in Abrams to affirm the dismissal of a claim as moot,
due to the defendant’s unaccepted offer of judgment, see
722
F.3d 78, 80 (2d Cir. 2013). The court did not cite Justice
Kagan’s dissent or reconsider Abrams, but it had no cause to do
so; the only issue on appeal was whether the district court
correctly treated an oral offer at a motion hearing as a Rule 68
offer of settlement. See Doyle,
727 F.3d at 80-81. In short,
neither Hrivnak nor Doyle gives this court any reason not to
adopt the reasoning in Justice Kagan’s dissent.
C. Responses in the District Courts
Responses to Justice Kagan’s dissent in the district courts
are in line with those in the circuit courts. In a recent
district-court case from this circuit, Yaakov v. ACT, Inc.,
10
Judge Hillman relied on the reasoning in Diaz and elected to
heed Justice Kagan’s admonition in Genesis, see 987 F. Supp. 2d
124, 128 (D. Mass. 2013). In Yaakov, the plaintiff filed a
class action under the Telephone Consumer Protection Act. See
id. at 125. The parties agreed on a deadline for class
certification, and before the deadline expired, the defendant
made a Rule 68 offer of judgment for what appeared to be the
full amount he could have recovered on his claim. See
id. When
the offer was not accepted, the defendant filed a motion to
dismiss for lack of subject-matter jurisdiction. See
id. at
126. Judge Hillman denied the motion, stating that he was
persuaded by [the reasoning] expressed [by] the Ninth
Circuit in Diaz and by Justice Kagan’s dissent in
Genesis Healthcare. By its terms, Rule 68 gives [a]
plaintiff the ability to either accept or reject an
offer, and gives a court authority to enter judgment
only when a plaintiff accepts an offer. . . . An
“offer,” rather than “order,” “ruling,” or other like
terms, gives the offeree the ability to accept its
terms or reject it and proceed unhindered. . . .
Here, the [p]laintiff chose the latter course, and,
having allowed the offer to lapse, still has an
unsatisfied claim that can be redressed by the Court.
Id. at 128 (citations and some internal quotation marks
omitted).4
Delgado v. Castellino Corp., No. 13-cv-03379-MSK-MJW, 2014
WL 4339232 (D. Colo. Sept. 2, 2014), is another district-court
4
The district court amended its decision when it granted
the defendant’s motion to certify the decision for interlocutory
review. See Yaakov, 987 F. Supp. 2d at 129-32.
11
case from a circuit without binding precedent requiring
dismissal of a claim as moot when a defendant makes an
unaccepted Rule 68 offer that grants the plaintiff all the
relief requested. In that case, Judge Krieger: (1) ultimately
went against an order she had issued in an earlier case,5 id. at
*4; (2) found “certain aspects of Justice Kagan’s dissent in
Genesis persuasive,” id.; (3) “share[d] the Genesis dissent’s
doubt that an unaccepted Offer of Judgment, even [one] affording
full relief, can operate to render an individual’s claim moot,”
id. She summed up her decision this way:
Ultimately, this Court elects to err on the side
of caution, allowing Mr. Delgado’s claims to proceed.
Four Justices of the Supreme Court emphatically reject
the notion that an unaccepted Offer of Judgment can
render a claim moot. If the majority in Genesis had
affirmed that doctrine, or even expressed some support
for it, this Court might be inclined to concede the
doctrine’s continuing vitality. But they did not —
beyond acknowledging the existing Circuit split on the
question and carefully construing the grant of
certiorari to avoid reaching that matter, the majority
gave no signal that it viewed the “mootness-byunaccepted-offer theory” with any degree of favor.
Similarly, the 10th Circuit has itself chosen to
carefully avoid deciding the question. As between
extremely vocal opponents of the doctrine on one side,
and an absence of any vocal proponents for it on the
other, this Court is compelled to conclude that the
doctrine is waning in power.
Id. at *3.
5
That case is Miranda v. Receivables Performance
Management LLC, No. 12-cv-02507-MSK-MJW, 2013 WL 3958367 (D.
Colo. Aug. 1, 2013).
12
Of course, not all district judges have the freedom that
Judges Hillman and Krieger enjoyed; binding precedent in several
circuits compels dismissal of claims when a defendant makes a
Rule 68 offer of judgment that provides the plaintiff with all
the relief he requested. Still, while adhering to circuit
precedent, several district judges have expressed their
reluctance to do so, and have praised Justice Kagan’s dissent.
For example, in a district-court decision from the Second
Circuit, Judge Furman had this to say:
As the Court made clear during the oral argument
. . ., there are good reasons to question the
proposition that an unaccepted, or rejected, offer of
judgment under Rule 68 can moot a plaintiff’s claim.
Put differently, if the Court were operating on a
blank slate, it might well agree with Justice Kagan’s
view that an unaccepted offer of judgment “is a legal
nullity, with no operative effect.” Genesis
Healthcare Corp., 133 S. Ct. at 1533 (Kagan, J.,
dissenting). As the Court noted, however, the “ship
has sailed” on that question, at least in this
Circuit, as the Court of Appeals has made clear . . .
that an unaccepted offer of judgment can moot a
plaintiff’s claim. See Abrams . . ., 719 F.2d [at] 32
. . . (Friendly, J.) (“[T]here is no justification for
taking the time of the court and the defendant in the
pursuit of minuscule individual claims which defendant
has more than satisfied.”).
Pla v. Renaissance Equity Holdings LLC, No. 12 Civ. 5268(JMF),
2013 WL 3185560, at *4 (S.D.N.Y. June 24, 2013) (citations to
the record omitted).
In a case from a district court in the Sixth Circuit, Judge
Cohn spoke similarly:
13
The Court is cognizant that this result may well have
been different had the dissent’s opinion in Genesis
Healthcare carried the day. However, this Court is
bound by the majority’s opinion in Genesis Healthcare
and the Sixth Circuit’s similar published opinion in
O’Brien. See, e.g., Darrah v. City of Oak Park, 255
F.3d 301, 309 (6th Cir. 2001) (explaining that a
published Sixth Circuit opinion is controlling
authority and binding on subsequent panels unless
inconsistent with a decision of the United States
Supreme Court requires modification of the decision).
Although the Court sees Justice Kagan’s dissent in
Genesis Healthcare as the right decision, it is
limited [by] binding Sixth Circuit precedent, which is
consistent with the majority’s opinion in Genesis
Healthcare. As much as the Court may disagree with
the result, it has no authority to alter the decisions
in Genesis Healthcare and O’Brien.
Hanover Grove Consumer Housing Coop. v. Berkadia Comm’l Mortg.,
LLC, No. 13-13553, 2014 WL 354674, at *7 n.3 (E.D. Mich. Jan.
31, 2014); see also Derry v. Buffaloe & Assocs., PLC, No. 2:12-
CV-303,
2014 WL 460879, at *4 n.5 (E.D. Tenn. Feb. 5, 2014)
(rejecting plaintiff’s reliance on Justice Kagan’s dissent in
light of circuit precedent); McGhee v. Buffaloe & Assocs., PLC,
No. 2:12-CV-333,
2014 WL 460880, at *4 n.5 (E.D. Tenn. Feb. 5,
2014) (same).
Finally, in a district court-decision from the Fifth
Circuit, Judge Ellison echoed the sentiments of Judges Furman
and Cohn:
Justice Kagan exhorted the Third Circuit to
“[r]ethink [its] mootness-by-unaccepted-offer theory”;
she urged “all other courts of appeals [not to] try
this at home.”
14
Plaintiffs cite the [Genesis] dissent throughout
their briefing and with good reason. This Court finds
Justice Kagan’s view persuasive. Plaintiffs’ problem,
however, is that, per the holding of Sandoz [v.
Cingular Wireless LLC, 553 F.3d 913 (5th Cir. 2008)]
the Fifth Circuit has already “tried this at home.”
Silva v. Tegrity Pers. Servs., Inc., 986 F. Supp. 2d 826, 833-34
(S.D. Tex. 2013) (citation omitted); see also Hooks v. Landmark
Indus., Civ. No. H-12-0173,
2014 WL 2981229, at *3 (S.D. Tex.
July 1, 2014) (“This court must follow Fifth Circuit precedent,
Justice Kagan’s dissent in Genesis notwithstanding.); Masters v.
Wells Fargo Bank S. Cent., N.A., No. A-12-CA-376-SS,
2013 WL
3713492, at *4 (W.D. Tex. July 11, 2013) (“In the absence of a
controlling decision from the United States Supreme Court, this
Court turns to circuit law. The Fifth Circuit holds [that] an
unaccepted offer fully satisfying a claim does moot the claim,
and this Court is bound to apply this rule, Masters’s pleas to
follow Justice Kagan’s dissent notwithstanding.”) (citing
Sandoz,
553 F.3d at 921 & n.5).
The long and the short of it is that since Genesis was
decided: (1) two district courts in circuits without binding
precedent barring application of the reasoning in Justice
Kagan’s dissent have adopted that reasoning; and (2) three
district courts in circuits with binding precedent barring
application of Justice Kagan’s reasoning have indicated their
approval of her approach, but were precluded by circuit
15
precedent from adopting it. What the court has been unable to
locate, despite a diligent search, is even a single district-
court opinion, from a circuit that has not weighed in on the
issue, that rejects Justice Kagan’s reasoning. The
jurisprudence as a whole counsels in favor of adopting the
reasoning of Justice Kagan and Diaz.
D. This Court’s response to Justice Kagan’s Dissent
Based upon the foregoing survey of opinions from the
circuit courts and the district courts, it should be evident
that this court is strongly persuaded by Justice Kagan’s
dissent, and the opinions that have adopted its reasoning. That
said, the court notes that a substantial majority of the cases
that have ruled on the question in this case have done so in
cases involving class actions or collective actions, and the
problem of defendants attempting to “pick off” individual
plaintiffs. See Scott, 740 F.3d at 1126 n.1 (“Since most
plaintiffs are happy to have defendants surrender, this tactic
[i.e., making offers of judgment] is most controversial as a
means to short-circuit a looming class action or as a means to
avoid paying attorney fees and costs in light of Buckhannon Bd.
and Care Home, Inc. v. West Virginia Dept. of Health and Human
Resources,
532 U.S. 508 (2001).”) (parallel citations omitted).
This case stands on a different footing because it involves a
sole plaintiff who is not attempting to press either a class
16
action or a collective action. But, the language in Justice
Kagan’s dissent, which focusses on the legal status of an
unaccepted offer rather than any legal principle specific to
class actions or collective actions, is broad enough to cover
the circumstances of this case.
I find the reasoning in Justice Kagan’s dissent, Diaz, and
Yaakov persuasive and apply it here.6 Accordingly, for the same
reasons the courts in Diaz and Yaakov denied the motions to
dismiss for lack of subject-matter jurisdiction that were before
them, this court denies Industrial Concrete’s motion to dismiss
Count III and the portion of Count V that incorporates Count
III.
E. Two Observations
The court begins by reminding Boucher that “[t]he plain
purpose of Rule 68 is to encourage settlement and avoid
litigation.” Marek v. Chesny, 473 U.S. 1, 5 (1985) (citing
Report of Proposed Amendments to Rules of Civil Procedure for
the District Courts of the United States,
5 F.R.D. 433, 483
6
In so ruling, the court notes Justice Kagan’s observation
that “a court has discretion to halt a lawsuit by entering
judgment for the plaintiff when the defendant unconditionally
surrenders and only the plaintiff’s obstinacy or madness
prevents her from accepting total victory.” Genesis, 133 S. Ct.
at 1536 (Kagan, J., dissenting). In the absence of any case law
applying the “obstinacy or madness” exception to a situation
similar to the one presented in this case, the court declines to
dismiss Boucher’s loss-of-consortium claim on the basis of that
exception.
17
(1946)). In order to effectuate its purpose, Rule 68 has teeth:
“If the judgment that the offeree finally obtains is not more
favorable than the unaccepted offer, the offeree must pay the
costs incurred after the offer was made.” Fed. R. Civ. P.
68(d); see also Yaakov, 987 F. Supp. 2d at 218 (citing Fed. R.
Civ. P. 68(d)). It is difficult to see how Boucher could avoid
paying Industrial Concrete’s costs, as it appears that she could
not possibly obtain a judgment against Industrial Concrete that
is more favorable than the offer she received from Industrial
Concrete.
The court’s second observation arises from Boucher’s
rationale for rejecting Industrial Concrete’s offer. As noted
above, the most common reason for plaintiffs to reject offers of
judgment is to preserve class actions or collective actions.
Here, Boucher has a different purpose in mind. As she explains
in her objection to Industrial Concrete’s motion to dismiss:
Nancy Boucher has the right to collect damages from
either or both Defendants and it is her desire that
Defendant Rioux pay loss of consortium. See NH RSA
507:7-e (joint and several liability applies to
defendants who are 50 percent or more at fault and
plaintiff can collect from any of the defendants).7
7
Joint and several liability is a legal concept that
generally applies where there are joint tortfeasors. Thus, it
is not clear how that concept applies to this case, where
Industrial Concrete and Rioux are not joint tortfeasors but,
rather, Industrial Concrete is alleged to be vicariously liable
for Rioux’s tortious conduct.
18
Defendant Rioux has not accepted responsibility for
killing Raymond Boucher and he has not even
apologized.
. . . .
The most significant damage component of Plaintiff
Estate is the hedonic/loss of enjoyment of life
component. It is feared and believed that Defendant
Industrial Concrete Services, Inc. is attempting to
limit the trial evidence by its offer of judgment.
Pl.’s Obj. (doc. no. 10) §§ 6, 7, 9. The problem is that if
Boucher brings her loss-of-consortium claims against Industrial
Concrete and Rioux to trial, the claim against Rioux is quite
unlikely to come before the jury. Industrial Concrete has
conceded liability for loss of consortium and the amount of
damages to which Boucher is entitled, i.e., the statutory
maximum. Given those concessions, and the bar against double
recovery, there would be no reason to try the loss-of-consortium
claim against Rioux, and the court would be unlikely to do so.
If Boucher is insistent on trying her loss-of-consortium claim
against Rioux, she could move to voluntarily dismiss her claim
that Industrial Concrete is vicariously liable for her loss of
consortium. But that move might make her liable for any costs
Industrial Concrete incurred after its offer of judgment. The
foregoing matters, however, are questions for another day.
19
Conclusion
For the reasons detailed above, Industrial Concrete’s
motion to dismiss, document no. 8, is denied.
SO ORDERED.
__________________________
Landya McCafferty
United States District Judge
September 8, 2014
cc: William A. Mulvey, Jr., Esq.
Patrick Mulvey, Esq.
Gary M. Burt, Esq.
Douglas N. Steere, Esq.
Andrew R. Schulman, Esq.
20
