In its August 28, 2013 opinion in Smith v. Res-Care, the US District Court for the Southern District of West Virginia denied the defendant's motion to dismiss because its offer of judgment did not offer full relief of the plaintiff's claims.

Jason Smith applied for employment with Res-Care and signed an authorization for Res-Care to conduct a background check on his application. Res-Care ordered a consumer report, which contained allegedly inaccurate criminal background information, and consequently declined to hire Smith.

Smith then filed a class action complaint, bringing five counts against Res-Care under the Fair Credit Reporting Act and seeking statutory and punitive damages, as well as attorney fees and costs. Res-Care made an offer of judgment for $25,000 under FRCP 68, to which Smith did not respond. Res-Care subsequently filed a motion to dismiss, arguing that Smith's claims were moot because Res-Care's offer of judgment fully satisfied the relief sought given that the most realistic maximum the plaintiff could receive was $10,000. Additionally, Res-Care argued that Smith had no interest in representing the putative class because no motion had been made for class certification yet.

The district court held that Res-Care's FRCP 68 offer of judgment did not satisfy Smith's request for relief. The court primarily relied on the US Court of Appeals for the Fourth Circuit's case Warren v. Sessoms & Rogers. In Warren, the Fourth Circuit held that if a plaintiff seeks uncapped and unspecified damages, an unaccepted offer of judgment cannot be said to provide full relief, particularly where an evidentiary hearing has not been conducted as to the amount of actual damages. The district court also distinguished the US Supreme Court's decision in Genesis Healthcare v. Symczyk because Symczyk focused on whether collective action allegations sustained a live controversy rather than what constituted a complete offer of relief.

The Southern District of West Virginia found that although it was unlikely the plaintiff would receive more than $10,000, such an award was still possible because punitive damages were unspecified. Moreover, because the case was still in the early stages of discovery, determination of the potential amount of punitive damages would be inappropriate. Therefore, the court held that Res-Care's offer of a $25,000 judgment did not provide full relief to the plaintiff's claims and denied Res-Care's motion to dismiss. Because it found that the plaintiff's claim was not mooted, it declined to reach the issue of whether full satisfaction of plaintiff's request for relief, prior to the filing of a motion for class certification, would mean that there was no longer a justiciable case.

Counsel should be mindful of the relevant circuit's law on FRCP 68 offers of judgment since the US Supreme Court has not resolved the circuit split over whether an unaccepted offer that fully satisfies a plaintiff's claim is sufficient to render the claim moot.