In an October 4, 2013 opinion, Diaz v. First American Home Buyers Protection Corporation, the US Court of Appeals for the Ninth Circuit held that an unaccepted FRCP 68 offer of judgment that would fully satisfy the plaintiff's claim is insufficient to render the claim moot.

Plaintiff Diaz, the owner of a First American home warranty plan, filed a class action complaint against First American asserting state-law claims, including misrepresentation, breach of contract and breach of the implied covenant of good faith and fair dealing. First American removed the action to federal district court. The district court denied Diaz's motion for class certification.

Following the certification denial, First American made a Rule 68 offer of judgment to Diaz on her remaining individual claims in the amount of $7,000. The offer stated that if it was not accepted by a specific date, the offer shall have no effect, be null and void and be deemed withdrawn. When Diaz did not accept the offer, First American filed a motion to dismiss the action for lack of subject matter jurisdiction. The district court dismissed Diaz's remaining claims, finding that the unaccepted Rule 68 offer rendered them moot. Diaz appealed.

The Ninth Circuit reversed, holding that an unaccepted Rule 68 offer that would have fully satisfied a plaintiff's claim does not render that claim moot. The court, acknowledging a circuit split on the issue, cited US Supreme Court Justice Kagan's recent dissent in Genesis Healthcare Corporation v. Symczyk. In that case, Justice Kagan explained that an unaccepted offer of judgment cannot moot a case because: