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Boucher v. Rioux

United States District Court, D. New Hampshire

September 8, 2014

Nancy Boucher, Individually and as Personal Representative of the Estate of Raymond Boucher,
Tyler Rioux and Industrial Concrete Services, Inc.. Opinion No. 2014 DNH 170


LANDYA McCAFFERTY, District Judge.

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." Perez 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)).


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 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, Ex. A (doc. no. 8-2), at 3. Boucher rejected Industrial Concrete's offer of judgment.


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 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] 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 appeals, the majority noted that the plaintiff conceded in the district court that "an offer of complete relief will generally moot [a] ...

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