PRECEDENTIAL


      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT
                _____________

                    No. 15-2876
                   _____________

            SEBASTIAN RICHARDSON,
                         Appellant

                          v.

   DIRECTOR FEDERAL BUREAU OF PRISONS;
 BRYAN A. BLEDSOE; DAVID YOUNG, Associate
 Warden at USP Lewisburg; DONALD C. HUDSON,
JR., Associate Warden; CAPTAIN BRADLEY TRATE;
     SEAN SNIDER, Deputy Captain; LT. JAMES
   FLEMING; LT. PEDRO CARRASQUILLO; LT.
CHRIS MATTINGLY; LT. MATTHEW SAYLOR; LT.
 AARON SASSAMAN; LT. JASON SEEBA; ROGER
 MILLER; LT. THOMAS JOHNSON; LT. CAMDEN
       SCAMPONE; LT. KYLE WHITTAKER
                   _____________

    On Appeal from the United States District Court
          for the Middle District of Pennsylvania
             District Court No. 3-11-cv-02266
District Judge: The Honorable William J. Nealon, Junior
                 Argued May 17, 2016

Before: SMITH, HARDIMAN, and NYGAARD, Circuit
                    Judges

                 (Filed: July 15, 2016)


Alexandra Morgan-Kurtz         [ARGUED]
Pennsylvania Institutional Law Project
429 Forbes Avenue
Suite 800
Pittsburgh, PA 15219

Su Ming Yeh, Esq.
Pennsylvania Institutional Law Project
718 Arch Street
Suite 304S
Philadelphia, PA 19106
       Counsel for Appellant

Michael J. Butler               [ARGUED]
Office of United States Attorney
228 Walnut Street,
P.O. Box 11754
220 Federal Building and Courthouse
Harrisburg, PA 17108
      Counsel for Appellee
                           2
                   ________________

                       OPINION
                   ________________

SMITH, Circuit Judge.

       Plaintiff Sebastian Richardson, a former inmate at
the United States Penitentiary at Lewisburg, is seeking
both individual monetary damages for alleged violations
of his constitutional rights at USP Lewisburg and class-
wide injunctive relief to prevent future constitutional
violations at the penitentiary. While the procedural
history of this case is complex, we are presented with a
single issue on appeal. We must determine whether
Richardson’s class-wide claims for injunctive relief are
moot because Richardson was transferred out of USP
Lewisburg after he filed an amended class action
complaint but before he moved for class certification.
       We conclude that Richardson’s class claims are
not moot. As we have previously held, when individual
claims for relief are acutely susceptible to mootness, a
would-be class representative may, in some
circumstances, continue to seek class certification after
losing his personal stake in the case. Additionally, even
though Richardson never filed a motion for class
certification, we hold that the class certification issue was
clearly presented to the District Court both in
                             3
Defendants’ motion to dismiss Richardson’s amended
class complaint and in Richardson’s response to that
motion. Richardson’s claims, therefore, relate back to
the date on which he filed his amended class action
complaint. Accordingly, he may continue to seek class
certification in this case. We will therefore remand this
case to the District Court for further proceedings
consistent with this opinion.
                           I.
       Sebastian Richardson arrived at USP Lewisburg in
March 2010 and was immediately placed in the Special
Management Unit program (SMU program). The SMU
program was created to house inmates with special
security concerns, namely individuals with past histories
of violence and individuals who “participated in or had
leadership roles in geographical groups/gang related
activity.” U.S. Dep’t of Justice, Program Statement:
Special Management Units, P5217.01, § 1 (Nov. 19,
2008),                    available                    at
https://www.bop.gov/policy/progstat/5217_001.pdf.
Upon entering the SMU program, inmates are
interviewed to determine their “separation needs and
known enemies” so that they are not placed with
incompatible individuals. Richardson v. Kane, No.
3:CV-11-2266, 

, at *2 (M.D. Pa. Apr.
9, 2013). Once in the program, inmates are rotated
between cells every twenty-one days, sometimes
receiving new cellmates as they rotate. 

amended complaint alleges that
through a “pattern, practice or policy,” Pl.’s Am. Compl.
2, ECF No. 21, officials at USP Lewisburg frequently
placed inmates in cells with hostile cellmates,
unnecessarily increasing the risk of inmate-on-inmate
violence. 

He further alleges that if an
inmate refused to accept a hostile cellmate, he would be
placed in painful restraints as a form of punishment. 

Richardson claims that he was subjected to this
policy and that it violated his Fifth and Eighth
Amendment rights.
       In support of this claim, Richardson explains
how—after seven months of living with a compatible
cellmate—corrections staff asked him to “cuff up” on the
cell door so that a new inmate could be transferred into
his cell. 

Richardson alleges that this inmate,
known among the prison population as “the Prophet,”
had attacked over twenty former cellmates.             

to “cuff up” because he did not want
to be placed with “the Prophet.” Corrections staff then
asked if Richardson was refusing his new cellmate, and
he replied that he was. 

“the Prophet”
away, corrections staff returned thirty minutes later with
a Use of Force team and asked Richardson if he would
submit to the use of restraints. Richardson complied. 

then taken down to a laundry
room where he was stripped, dressed in paper clothes,
and put in “hard” restraints. 

Next, he was
                            5
locked in a cell with another prisoner (who was also in
hard restraints) and left there for three days before being
transferred yet again. 

Richardson alleges
that he was held in hard restraints for nearly a month,
was forced to sleep on the floor for much of that time,
and frequently was refused both showers and bathroom
breaks. Richardson also claims that there have been at
least 272 reports of inmate-on-inmate violence at USP
Lewisburg between January 2008 and July 2011 and that
dozens of other inmates have suffered treatment similar
to his as a result of this unwritten practice or policy. 

       While still in the SMU program at USP
Lewisburg, Richardson brought suit against a number of
prison officials alleging that this unwritten policy
violated his constitutional rights. Richardson’s amended
complaint seeks individual monetary damages and class-
wide injunctive relief for “[a]ll persons who are currently
or will be imprisoned in the SMU program at USP
Lewisburg.” 

      Richardson’s amended complaint notes that he is
seeking class certification under Federal Rule of Civil
Procedure 23(b)(2), which generally provides for only
injunctive relief.1 It also explains why such relief should

1
  We need not weigh in on “whether there are any forms
of ‘incidental’ monetary relief that are consistent with the
interpretation of Rule 23(b)(2),” because Richardson has
                             6
be granted and discusses the specific Rule 23 factors
courts must consider when determining whether to certify
a class. 

The District Court, however, found
Richardson’s class definition “untenable because it [wa]s
not objectively, reasonably ascertainable.” Kane, 

, at *4. Certification was therefore denied.
While this did not prevent Richardson from pursuing his
individual claims for damages against the Defendants,
the District Court eventually stayed Richardson’s case in
its entirety pending this Court’s resolution of Shelton v.
Bledsoe, 

(3d Cir. 2015). In Shelton, we
granted a motion for interlocutory appeal of the same
issue that was decided by the District Court here: the
ascertainability of an identically defined class of
prisoners at USP Lewisburg.              We held that
ascertainability is not required for Rule 23(b)(2) classes
and therefore remanded the case to the District Court to
“consider whether the properly-defined putative class
meets the remaining Rule 23 requirements for class
certification.” 

       After we decided Shelton, Richardson sought leave
to appeal the District Court’s denial of class certification
in his case. A motions panel of this Court granted the
request. This case, then, raises substantive issues nearly

not sought such incidental monetary relief in this case.
Wal-Mart Stores, Inc. v. Dukes, 

, 366
(2011).
                             7
identical to those we considered in Shelton. Indeed,
Richardson argues that Shelton controls our decision in
this case and that we should reverse the District Court’s
order denying class certification and remand for further
proceedings consistent with Shelton.
       Defendants disagree.      While they admit that
Shelton would control the outcome of Richardson’s class
action claims, they argue that these claims have become
moot for two reasons. First, they argue that because
Richardson’s individual claims for injunctive relief are
moot, he cannot represent a class seeking the same
injunctive relief. Specifically, because Richardson was
not housed in the SMU when the District Court denied
class certification, they argue that he does “not have
standing to represent a class of USP Lewisburg inmates
housed in the SMU.” Appellees’ Br. 10. Second,
Defendants note that all the individuals Richardson
named as defendants have since retired or changed jobs.
Defendants argue that this moots Richardson’s claims for
injunctive relief because they read the amended
complaint to allege harms resulting only from conduct
that is personal to the individual defendants (as opposed
to conduct that is systematic and institutional in nature).
Accordingly, Defendants assert that Richardson’s claims
for injunctive relief are moot under Spomer v. Littleton,

(1974), as there is no reason to believe the
allegedly unconstitutional conduct will continue under


                            8
the new prison administration. Appellees’ Br. 11. We
address these two arguments in turn.2

                           II.

       Defendants argue that Richardson’s class action
claims are moot because Richardson failed to move for
class certification before he was transferred out of USP
Lewisburg. While Richardson, of course, still has
standing to seek damages for any past constitutional
violations that occurred while he was housed in the SMU
program at USP Lewisburg, he must have separate
standing for forward-looking, injunctive relief. Friends
of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc.,

, 185 (2000) (“[A] plaintiff must
demonstrate standing separately for each form of relief
sought.”).     To determine whether Richardson has
standing to seek injunctive relief, we ask whether he can
“show that he is likely to suffer future injury from the
defendant’s conduct.” McNair v. Synapse Grp. Inc., 

, 223 (3d Cir. 2012) (internal quotation marks
and citations omitted). Typically, “[i]n the class action
context, [this] requirement must be satisfied by at least
one named plaintiff.” 

is clear that

2
   The District Court had jurisdiction pursuant to 28
U.S.C. § 1331. We have jurisdiction pursuant to 28
U.S.C. § 1292(e) as a result of Richardson’s petition for
interlocutory appeal under Federal Rule of Civil
Procedure 23, which was granted on July 30, 2015.
                           9
Richardson had standing to seek injunctive relief when
he filed his amended complaint (as he was still housed in
the SMU program at USP Lewisburg), we must ask
whether his claims for injunctive relief are now moot
because he is no longer housed there.3 Generally
speaking, a case will become moot “when . . . the parties
lack a legally cognizable interest in the outcome.” U.S.
Parole Comm’n v. Geraghty, 

, 396 (1980)
(internal citations and quotation marks omitted).
Mootness jurisprudence characterizes this as “the
personal stake requirement.” 

Court in Geraghty, however, noted
that Article III mootness is more “flexible” than other
justiciability requirements, especially in the context of
class action litigation. 

Indeed, we have
recognized that “[i]n the class action context, special
mootness rules apply” for determining at what point in
time a named plaintiff must still have a personal stake in
the litigation to continue seeking to represent a putative
class action. Brown v. Phila. Hous. Auth., 

,
343 (3d Cir. 2003).
       These special mootness rules have evolved over
time to allow a plaintiff to continue seeking class
certification in certain circumstances even though his

3
 Richardson was transferred out of USP Lewisburg on
September 10, 2012, a mere six weeks after he filed his
amended complaint.
                           10
individual claim for relief has become moot. One such
special rule is commonly referred to as the “relation back
doctrine.” See Sosna v. Iowa, 

, 402 n.11
(1975) (“[W]hether the certification can be said to ‘relate
back’ to the filing of the complaint may depend upon the
circumstances of the particular case and especially the
reality of the claim that otherwise the issue would evade
review.”). This doctrine permits courts to relate a would-
be class representative’s (now moot) claim for relief back
in time to a point at which that plaintiff still had a
personal stake in the outcome of the litigation. The
plaintiff can thus continue to represent, or seek to
represent, a class of similarly situated persons despite no
longer having a justiciable claim for individual relief.
See Cty. of Riverside v. McLaughlin, 

, 51
(1991) (“‘[T]he termination of a class representative’s
claim does not moot the claims of the unnamed members
of the class.’” (quoting Gerstein v. Pugh, 

,
110 n.11 (1975))).
        For example, courts have often recognized that the
relation back doctrine applies to claims that are
“inherently transitory” or “capable of repetition yet
evading review.” See 

;

; N.J. Tpk. Auth. v. Jersey
Cent. Power & Light, 

, 31 (3d Cir. 1985).
Such cases can still be heard in federal court even if the
named plaintiff’s claims have become moot during the
litigation. Here, however, we consider a different
                            11
application of the relation back doctrine: the picking off
exception to mootness.

                           A.

       In Weiss v. Regal Collections, we held that when a
plaintiff’s individual claim for relief is “acutely
susceptible to mootness” by the actions of a defendant,
that plaintiff may continue to represent the class he is
seeking to certify even if his individual claim has been
mooted by actions of the defendant. 

, 347-
48 (3d Cir. 2004). This has colloquially been termed the
“picking off” exception to mootness. See Wilson v.
Gordon, __ F.3d __, 

, at *9 (6th Cir.
May 23, 2016). Because Weiss (the only case in this
Circuit to recognize the picking off exception) was
partially overruled by the Supreme Court in Campbell-
Ewald Co. v. Gomez, 

(2016), we find it
necessary to reexamine the basis for this exception to
determine whether this holding in Weiss is still good law.
We will therefore trace the development of the picking
off exception and explain why we conclude that it has
survived Campbell-Ewald.
       We find one of the first invocations of the picking
off exception in White v. Mathews, 

, 857 (2d
Cir. 1977). Here, plaintiff George White alleged that the
Social Security Administration delayed processing
numerous disability claims in violation of the Social
Security Act. However, because the Administration had
                           12
processed White’s claim while his class certification
motion was pending, the court had to determine whether
the mooting of his individual claim mooted the entire
class action. 

first recognized that if it did
not relate White’s claim back to the date on which he
sought class certification, the Social Security
Administration “could avoid judicial scrutiny of its
procedures by the simple expedient of granting hearings
to plaintiffs who seek, but have not yet obtained, class
certification.” 

did “not suggest that this
occurred here,” it explained that it must take into
account “the ‘reality’ of that possibility in the future.”

court held that White’s claim could
relate back to the date he sought class certification, thus
preventing mootness. 

White also recognized that the district
court could have ruled on the motion to certify more
quickly if it “had been concerned about mootness.” 

also concluded that “a district court should have
enough time to consider these important issues of class
status carefully, particularly when no purpose would be
served by rushing a ruling.” 

issue will be
discussed in more detail below.

       While White first recognized the logic of the
picking off exception, it was not until the following year
that this exception was expanded to permit relation
back—not just to the date of the motion for class
certification, but to the date of the class complaint. In
                            13
Blankenship v. Secretary of HEW, all the named
plaintiffs received complete relief (in the form of
expedited review of their disability claims) before they
moved for class certification. 

, 333 (6th Cir.
1978). This, the defendants argued, mooted the entire
class action. The Sixth Circuit disagreed. It recognized
that the plaintiffs’ claims

      epitomize[d] the type of claim which
      continually evades review if [they are]
      declared moot merely because the
      defendants have voluntarily ceased the
      illegal practice complained of in the
      particular instance. Thus, the defendants
      may expedite processing for any plaintiffs
      named in a suit while continuing to allow
      long delays with respect to all other
      applicants.

was concerned by the use of these tactics
because they seemed to give the defendants the ability to
exploit a loophole that would, in some cases, prevent
class certification indefinitely.       As Blankenship
recognized, if defendants were allowed to “pick off”
would-be class representatives, the defendants might be
able to ensure “that no remedy could ever be provided for
continuing abuses.” 

someone filed a
complaint and sought class status, the defendants could,
as they did in Blankenship, expedite review of that
plaintiff’s disability claim and prevent that person from
                           14
becoming a class representative. 

piecemeal litigation would undermine the very purpose
of class action litigation. Thus, Blankenship held that
even if the would-be class representative’s claim became
moot, “the class members retain[ed] a live interest in
th[e] case so that the class action should not be declared
moot, and the class certification should ‘relate back’ to
the date of the filing of the complaint.” 

later, the Supreme Court acknowledged
this same practical concern and recognized that “[t]o
deny the right to appeal simply because the defendant has
sought to ‘buy off’ the individual private claims of the
named plaintiffs would be contrary to sound judicial
administration.” Deposit Guar. Nat’l Bank, Jackson,
Miss. v. Roper, 

, 339 (1980). In Roper,
however, the Supreme Court did not have to decide
whether the relation back doctrine could be used to relate
a claim back to the date on which a plaintiff filed a class
complaint, as opposed to the class certification motion,
because the named plaintiff’s claim became moot only
after the denial of class certification was appealed. Thus,
the Court held only that the named plaintiff’s loss of a
personal stake in the litigation while appealing the class
certification issue did not prevent him from continuing to
seek to represent the class. That being said, for the
reasons discussed below, we agree with the Sixth Circuit
that there is “no distinction between picking off a named
plaintiff when a motion for class certification has been
                            15
filed and is then pending and picking off a named
plaintiff after the motion for class certification has been
denied.” Wilson, __ F.3d at __, 

, at
*10. In other words, while the Supreme Court’s holding
in Roper is limited in scope, we believe its logic extends
more broadly.

       Indeed, just a year after Roper was decided, the
Fifth Circuit came to the same conclusion. The court
held that the picking off exception permits application of
the relation back doctrine even when the District Court
has not yet ruled on the issue of class certification:
      By tendering to the named plaintiffs the full
      amount of their personal claims each time
      suit is brought as a class action, the
      defendants can in each successive case moot
      the named plaintiffs’ claims before a
      decision on certification is reached. A series
      of individual suits, each brought by a new
      named plaintiff, could individually be
      “picked off” before class certification; as a
      practical matter, therefore, a decision on
      class certification could, by tender to
      successive named plaintiffs, be made . . .
      difficult to procure . . . .

Zeidman v. J. Ray McDermott & Co., 

,
1050 (5th Cir. 1981). In support of this position, the
court cited several cases that “have considered the effect
                            16
of a defendant governmental agency’s voluntary
performance of a specific action demanded in the
lawsuit.” 

It concluded that “[i]n each of
these cases the court has held that the defendant could
not prevent a decision on the plaintiff’s motion for
certification by rendering the individual plaintiff’s
demand for injunctive relief moot before the court has
reasonably been able to consider the motion.” 

cases thus highlight the development of and
rationale for the picking off exception to mootness.

        All this brings us back to Weiss. We held in Weiss
that a would-be class representative can continue to seek
class certification even after losing his personal stake in
the litigation if the claims raised are “acutely susceptible
to 

(internal citations
omitted). We also held that this picking off exception to
mootness would permit us to relate a claim for relief back
to the date the would-be class representative filed his
class action complaint, not just to the date of the class
certification decision (as the Supreme Court did in
Roper). 

       Indeed, Weiss noted that while “most of the cases
applying the relation back doctrine have done so after a
motion to certify has been filed[,] . . . reference to the
bright line event of the filing of the class certification
motion may not be well-founded.” 

(internal
citations and quotation marks omitted). We explained
that a bright line rule was not consistent with the general
                            17
principle that “the class action process should be able to
‘play out’ according to the directives of Rule 23 and
should permit due deliberation by the parties and the
court on the class certification issues.” 

That
being said, Weiss also recognized that the picking off
exception was still limited.         For example, Weiss
explained that relation back is not appropriate if the
plaintiff “undu[ly] delay[s]” raising the issue of class
certification. 

discussion of the facts in Weiss helps make
the reasoning behind this approach clear. Richard Weiss
filed suit against Regal Collections on behalf of himself
and a putative nationwide class of similarly situated
individuals alleging that Regal Collections’ debt
collection practices violated the Fair Debt Collections
Practices Act (FDCPA). 

Weiss sought
monetary, declaratory, and injunctive relief. 

41. In response, and a mere “six weeks after plaintiff
filed his amended complaint,” 

n.18, Regal
Collections made a Rule 68 offer to Weiss in the amount
of $1000 plus attorney fees, the full amount available
under the FDCPA. 

40. This offer came before
Weiss had moved for class certification, and did not
provide for any injunctive, declaratory, or class-wide
relief. Recognizing that class action mootness principles
may not always track those of individual claims for
relief, Weiss held that Regal Collections’ Rule 68 offer
mooted Weiss’s individual claim for relief, but further
                            18
held that this did not prevent Weiss from continuing to
seek class certification as a would-be class
representative. In other words, Weiss’s loss of a personal
stake in the litigation did not moot the case.

       We concluded that if Regal Collections’ offer of
relief to Weiss could moot the entire class action, “it
would encourage a race to pay off named plaintiffs very
early in the litigation, before they file motions for class
certification.” 

n.19 (internal quotation marks
and citations omitted). This would “encourage premature
certification decisions,” 

and undermine the
import of Rule 23(c)(1)(a), which now states that
certification decisions should be made “at an early
practicable time,” Fed. R. Civ. P. 23(c)(1)(a), instead of
“as soon as practicable after commencement of an
action.”     

notes to 2003
amendment. This change reflects the view of the
Advisory Committee that there are “many valid reasons
that may justify deferring the initial certification
decision.” 

after Weiss, the Supreme Court took
up an issue that had been bedeviling courts across the
country: whether an unaccepted Rule 68 offer could moot
an individual plaintiff’s claim for relief. As mentioned
above, we held in Weiss that a Rule 68 offer did moot the
individual claim for relief, but we also held that the
would-be class representative still had an interest in
seeking class certification and thus the case was not
                            19
moot. The Supreme Court, however, disagreed with our
first holding, and instead explained that “an unaccepted
settlement offer or offer of judgment does not moot a
plaintiff’s case . . . .” 

.
This meant that someone in Weiss’s position still had a
personal stake in the outcome of the litigation even
though he was offered complete relief under Rule 68.
The Supreme Court, therefore, did not need to reach the
arguably more difficult question: whether a named
plaintiff who did in fact lack a personal stake in the
outcome of the litigation could continue to seek class
certification even though his claim became moot before
filing a motion for class certification.
        Accordingly, as we have already recognized,
“Campbell-Ewald overrules our previous holding in
Weiss that ‘[a]n offer of complete relief will generally
moot the plaintiff’s claim, as at that point the plaintiff
retains no personal interest in the outcome of the
litigation.’” Weitzner v. Sanofi Pasteur, Inc., 

, 64 (3d Cir. 2016) (quoting 

).
However, Campbell-Ewald did not address the picking
off exception. Doing so was clearly unnecessary under
Campbell-Ewald’s logic. Accordingly, we do not read
Campbell-Ewald to overrule Weiss’s holding regarding
the picking off exception to mootness.
      Nor do we read Campbell-Ewald to answer the
question posed in this case. Richardson’s individual
claim for injunctive relief is still moot. Richardson was
                            20
transferred out of USP Lewisburg before he filed any
documents other than his amended class action
complaint.    Because of this transfer, Richardson’s
personal stake in the claims for injunctive relief was
extinguished.4 We therefore will apply the picking off
exception just as we did in Weiss to determine whether
Richardson may continue to represent the class of

4
  Richardson has not carried his burden of showing that
he fits into either the “capable of repetition yet evading
review” or the “inherently transitory” exceptions to
mootness. Specifically, Richardson has not shown that
he has a reasonable expectation of being placed in the
SMU Program again in the future, nor has he shown that
the amount of time an inmate spends in the SMU
Program is typically so brief as to evade review by
becoming moot before a District Court can rule on class
certification. Cf. Jersey Cent. Power & 

(“Thus, a matter is not necessarily moot simply
because the order attacked has expired; if the underlying
dispute between the parties is one ‘capable of repetition,
yet evading review,’ it remains a justiciable controversy
within the meaning of Article III.”); Lusardi v. Xerox
Corp., 

, 981 (3d Cir. 1992) (“Some 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.” (citing 

)).
                            21
inmates still being held in the SMU Program at USP
Lewisburg despite the mootness of his individual claim.5

       Next, we briefly analyze a few post-Weiss cases
which further support the continued use of the picking off
exception and help to clarify its scope. Specifically, we
look at when this doctrine should apply by considering
what constitutes a reasonable amount of time within
which it would be expected that a plaintiff should have
moved for class certification. We also consider a few
additional arguments that have been made more recently
in support of the picking off exception. This will help us
to determine infra whether and how the exception should
apply in this case.
       While Campbell-Ewald, as mentioned above, does
not actually address the picking off exception, we see in
it some support for the principles animating the exception
in the Court’s discussion of class action standing.
Specifically, the Court noted that while a class does not
become an independent entity until certification, “a
would-be class representative with a live claim of her
own must be accorded a fair opportunity to show that
certification is 

. This

5
  Crucially, in doing so we must still determine whether
Richardson “undu[ly] delay[ed]” presenting the issue of
class certification to the District Court—a requirement
the plaintiff satisfied in Weiss. 

.
That issue is discussed in Part B below.
                           22
statement seems to suggest a corollary: when a would-be
class representative is not given a “fair opportunity” to
show that certification is warranted (perhaps because her
individual claim became moot before she could
reasonably have been expected to file for class
certification), she should be permitted to continue
seeking class certification for some period of time after
her claim has become moot.
       Without this “fair opportunity,” there would be, as
we explained in Weiss, a race between the plaintiff and
the defendant to see who could act first—the plaintiff in
moving for class certification or the defendant in mooting
the claims of would-be class representatives. Such a race
would often thwart proper factual development of class
action claims and thus prevent courts from fully and
fairly assessing the merits of class certification. Cf. Yaffe
v. Powers, 

, 1366 (1st Cir. 1972) (“To
pronounce finally, prior to allowing any discovery, the
non-existence of a class or set of subclasses, when their
existence may depend on information wholly within
defendants’ ken, seems precipitate and contrary to the
pragmatic spirit of Rule 23.”).

       Indeed, we have seen this exact problem arising in
district courts across the country. Plaintiffs increasingly
file so-called “placeholder” motions for class
certification solely to prevent defendants from mooting
the claims of would-be class representatives. See, e.g.,
Wasvary v. WB Holdings, LLC, No. 15-10750, 

5161370, at *3 (E.D. Mich. Sept. 2, 2015); Church v.
Accretive Health, Inc., 

, 679 (S.D. Ala.
2014); Beaudry v. Telecheck Servs., Inc., No. 3:07-CV-
0842, 

, at *2 (M.D. Tenn. July 20,
2010). These placeholder motions “come[] with a cost,”
as, they

      burden[] the Court with an obviously
      premature motion that is devoid of content
      and the motion remains on the Court’s
      docket as pending, which is reflected on the
      Court’s reports for an unspecified period of
      time. See [Church v. Accretive Health, Inc.,
      

,] 

at *3 (“Plaintiff’s straight-out-of-the-
      chute Rule 23 Motion is highly unlikely to
      advance her cause one iota, but is virtually
      certain to impose administrative costs,
      unnecessary distractions, and an unhelpful
      drag on efficiency and judicial economy.”).
Dickerson v. Lab. Corp. of Am., No. 8:14-cv-1390-T-
30TBM, 

(M.D. Fla. July
23, 2014). Our ruling today is intended to have the
salutary effect of discouraging these premature motions
in favor of motions brought within a reasonable period of
time and after proper factual development of the claims
has occurred. This is so because a plaintiff, by waiting
until it would be appropriate to seek class certification,

                           24
does not run the risk of having the entire class action
mooted in the interim.

       Indeed, Weiss has already had this beneficial effect
in some of the district courts in this Circuit. See Smith v.
Interline Brands, Inc., 

, 701-03
(D.N.J. 2014) (denying a premature motion for class
certification and explaining that after Weiss, waiting to
seek class certification until the facts are fully developed
will not expose the would-be class representative to a
premature mootness challenge). Smith also noted that
our approach in Weiss “is a sensible recognition of the
undesirability of a premature motion for class
certification, unsupported by discovery and largely
untethered to the requirements for actually certifying a
class.” 

We could not agree more.6

6
  In the Middle District of Pennsylvania, where this case
was filed, Local Rule 23.3 requires the filing of a motion
for class certification within ninety days of the complaint.
While neither side raised arguments concerning this rule
on appeal, we take this occasion to note that a strict time
limitation like the one imposed by Local Rule 23.3 “may
be inconsistent with Rule 23(c)(1)(A)’s emphasis on the
parties’ obligation to present the court with sufficient
information to support an informed decision on
certification. Parties need sufficient time to develop an
adequate record.” Ann. Manual Complex Lit. § 21.133
(4th ed.). Further, Local Rule 23.3 may conflict with this
                            25
        Other circuits have recently been moving in this
same direction. In Pitts v. Terrible Herbst, Inc., for
example, the Ninth Circuit concluded that the relation
back doctrine should be extended to situations in which a
defendant could “‘buy off’ the small individual claims of
the named plaintiffs,” 

, 1091 (9th Cir.
2011), because such claims are “acutely susceptible to
mootness.” 

385 F.3d at 347). If such
an exception to mootness were not adopted, Pitts
explained, “[i]t would effectively ensure that claims that
are too economically insignificant to be brought on their
own would never have their day in court.” 

The effect would be to broadly undermine the purpose of
Rule 23 and class action litigation. Cf. Stewart v. Cheek
& Zeehandelar, LLP, 

, 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.” (internal quotation marks and
citation omitted)). The court in Pitts therefore held that a
named plaintiff’s claim could relate back to the date of
filing the class action 

.




Court’s recognition—as reflected in the change to
Federal Rule of Civil Procedure Rule 23(c)(1)(A)—that
class certification questions should not be hastily raised
or resolved.
                            26
       The Eleventh Circuit has also taken this approach.
In Stein v. Buccaneers Ltd. Partnership, the court
recognized that it was bound by Zeidman (the Fifth
Circuit’s7 1981 opinion adopting the picking off
exception) and held that the picking off exception to
mootness should apply when defendants are able
“‘effectively to prevent any plaintiff in the class from
procuring a decision on class certification.’” 

, 706 (11th Cir. 2014) (quoting 

).

        Stein also concluded that “nothing . . . suggests the
relation-back doctrine turns on whether the named
party’s individual claims become moot before or after the
plaintiffs move to certify a class. Quite the contrary.”

Stein then explained that in class action
litigation, in no way does “the filing of a certification
motion, rather than the entry of a certification order,
affect[] legal rights.” 

Indeed, Stein further
held that the motion itself “does nothing significant” and
merely “indicates that the named plaintiff intends to
represent a class if allowed to so do,” something that a
class action complaint also does. 

Thus, it is
erroneous for courts to conclude that the filing of the

7
  Decisions of the former Fifth Circuit rendered prior to
October 1, 1981, are precedent in the Eleventh Circuit.
See Bonner v. City of Prichard, 

, 1209
(11th Cir.1981) (en banc).
                             27
class certification motion somehow “fundamentally
changes the legal landscape” of the case. 

concluded that the focus should be on
whether “the named plaintiff acts diligently to pursue the
class claims.” 

“diligence” in each
case may vary, but Stein concluded that it was sufficient
to simply state that if a plaintiff “acts without undue
delay” seeking class certification, relation back is
permissible. 

it concluded that the filing
of the class certification motion should lack legal
significance, Stein held that when the relation back
doctrine applies, “certification relates back not to the
filing of the motion to certify but to the filing of the
complaint.” 

omitted).
       The Tenth Circuit has similarly held that the
relation back doctrine may be applied to relate a now-
moot individual claim back to the date of the class action
complaint. In Lucero v. Bureau of Collection Recovery,
Inc., the court adopted a narrow formulation of this rule,
holding that when “satisfaction of the plaintiff’s
individual claim [occurs] before the court can reasonably
be expected to rule on the class certification motion,” the
plaintiff’s stake in the litigation is not extinguished. 

, 1250 (10th Cir. 2011). Indeed, Lucero
adopted reasoning similar to that in Stein when it
explained that “[w]e find no authority on which to
distinguish the case in which a class certification motion
is pending or filed within the duration of the offer of
                            28
judgment from our case [in which no motion has yet been
filed]: any Article III interest a class may or may not
have in a case is or is not present from its inception.” 

       Based primarily on Weiss, but also upon
consideration of the well-reasoned approaches of our
sister circuits, we reaffirm the validity of the picking off
exception. When an individual plaintiff’s claim for relief
is acutely susceptible to mootness and it is clear from the
complaint that the plaintiff is seeking to represent a class,
we may relate such a claim back to the date of the filing
of the class complaint.

       That said, our holding should not be read to give
plaintiffs a free pass to delay the determination of class
status. As Lucero noted, this mootness exception should
apply only in situations where the mooting of the
individual claim “occurred at so early a point in litigation
that the named plaintiff could not have been expected to
file a class certification 

(internal quotation marks and citations omitted). If, on
the other hand, “the plaintiff had ample time to file the
class certification motion,” this exception should not
apply and “courts [should] adhere to the general rule that
the mooting of named plaintiff’s claim prior to class
certification moots the entire case.”        

marks and citations omitted).


                             29
                             B.
       We now address whether the mooting of
Richardson’s individual claim occurred “at so early a
point in litigation” that his failure to file a motion for
class certification was not unreasonable. 

this determination, we are mindful of two separate but
related considerations. Weiss explained that plaintiffs
cannot “undu[ly] delay” seeking class 

, while Campbell-Ewald suggested that
plaintiffs must still have a “fair opportunity” to seek class

.
                             i.

       We begin by considering whether Richardson was
given a fair opportunity to present the issue of class
certification to the District Court before he was
transferred out of the SMU program. Fortunately, for
purposes of this case, we need not determine the outer
bounds of what might constitute a “fair opportunity” to
seek class certification because the facts of this case
make it clear that Richardson was not given such an
opportunity. 8 Richardson was transferred out of USP

8
  The Court of Appeals for the Tenth Circuit grappled
with what might constitute the outer bounds of a “fair
opportunity” in Clark v. State Farm, explaining that
“when the defendant makes a full offer of judgement—
thereby mooting the named plaintiff’s claims—at so early
                             30
Lewisburg’s SMU program a mere six weeks after he
filed his amended complaint; this is much shorter than
the 90 days allowed by Local Rule 23.3 (which may
itself, as we explained in the margin, be too short), and is
the same amount of time Weiss was given to seek
certification before his claim was mooted.9 Thus,


a point in the litigation that the named plaintiff could not
have been expected to file a class certification motion,
the class’s claims are not moot and the case may proceed.
But where the plaintiff has had ample time to file the
class certification motion, district courts adhere to the
general rule that the mooting of a named plaintiff’s claim
prior to class certification moots the entire case.” Clark
v. State Farm Mut. Auto. Ins. Co., 

, 1139
(10th Cir. 2009). In Clark, however, the court did not
need to decide whether it would adopt our approach in
Weiss. It held that even under Weiss, Clark’s claim
would be moot as he delayed seeking class certification
for two years after the case was remanded to the district
court.
9
  In Weiss, we held that the plaintiff had not unduly
delayed seeking class certification because his claim was
mooted a mere six weeks after he filed his 

n.18. As discussed further in this Part,
the corollary of this conclusion is that Weiss had not
exhausted his fair opportunity to seek class certification
in the six weeks he had been given.
                            31
whatever the outer bounds may be, it is clear that if a
defendant acts to moot a would-be class representative’s
claim within six weeks of the filing of a class action
complaint, that plaintiff did not have a fair opportunity to
present his case for class certification to the District
Court. We will accordingly relate his claim back to the
date on which the amended class complaint was filed.

.
                            ii.
       We take care to note that the concept of a “fair
opportunity” is bounded by the admonition from Weiss
mentioned above: that a plaintiff must present the issue
of class certification to the District Court without “undue
delay.” 

would prevent relation back to
the date of the complaint. 

of this undue delay standard have yet
to be fleshed out. In Weiss, as mentioned earlier, the
would-be class representative only had six weeks to
move for class certification. By holding that there was
no undue delay, we implicitly suggested that there had
also not been a fair opportunity to seek class certification
before the case became moot and thus instructed the trial
court on remand to permit Weiss to file a motion for class
certification. 

of undue delay was also discussed by
the Fifth Circuit under similar circumstances in Sandoz v.
                            32
Cingular Wireless LLC, 

(5th Cir. 2008).
Sandoz filed a class action complaint against Cingular
Wireless in state court. Twenty-four days after the case
was removed to federal court, Cingular made a Rule 68
offer of judgment and then sought to dismiss the case for
lack of subject matter jurisdiction. The district court
concluded that the Rule 68 offer did not moot the entire
case and denied the motion to dismiss. The case was
taken up on interlocutory appeal, and the Fifth Circuit
concluded that application of the relation back doctrine
was appropriate. Unlike the situation in Weiss, however,
“Sandoz did not file her motion to certify until thirteen
months after she filed her complaint, and relation back is
warranted only when the plaintiff files for certification
‘without undue delay.’” 

(quoting 

). The court therefore concluded that “[o]n
remand, the district court must determine, under these
unique facts, whether Sandoz timely sought certification
of her collective action. If she did, then her motion
relates back to the filing of her initial state court
petition.” Id.10


10
   On remand, the district court held that “[i]n sum,
between the time defendants answered the petition and
made their offer of judgment, the litigation has been
embroiled in the single issue of whether defendants' offer
of judgment mooted the plaintiff’s claim and/or mooted
the entire litigation. After that issue was preliminarily
                           33
       Unfortunately, applying this “undue delay”
analysis to the facts of our case presents an added
challenge. Typically, when determining whether the
plaintiff has unduly delayed, we measure the time
between the filing of the complaint (or amended
complaint) and the filing of the motion for class
certification. Richardson, however, never filed a motion
for class certification. We hold that that is of no moment
here. His failure to file a motion for class certification
does not prevent relation back because the issue was
clearly presented to the District Court without undue
delay.

       Two weeks after Richardson filed his amended
complaint, Defendants filed a motion to dismiss the
entire case. In this motion, Defendants argued, among
other things, that Richardson could not meet the four
requirements for class certification listed in Rule 23(a).
Defs. Mot. to Dismiss 26, ECF No. 28. Richardson
responded to this motion one month later, reiterating the
arguments he made earlier in his amended complaint
regarding class certification and explaining why the

resolved by this court, prior to appeal, plaintiff timely
filed her motion for certification as instructed by the
District Judge. Under these circumstances, it would be a
miscarriage of justice to conclude that plaintiff’s motion
for class certification was filed untimely.” Sandoz, 

, at *4.
                           34
proposed class meets all the requirements of Rule 23(a).
Pl.’s Resp. to Defs. Mot. to Dismiss 29, ECF No. 33.
Defendants’ motion and Richardson’s response thus put
the issue of class certification squarely before the District
Court.11 There was no need for Plaintiff to file a separate
motion seeking class certification.            Richardson’s
amended complaint made it clear that he was seeking
certification under Rule 23(b)(2) and Defendants’ motion
to dismiss recognized that fact. Indeed, the District Court
concluded that the issue of class certification was
properly presented—a determination to which we give
substantial deference—because it considered and denied
class certification based only on the class action
complaint, Defendants’ motion to dismiss, and
Richardson’s response.12

11
    Although Richardson had yet to file a written motion
for class certification, the record reveals curious
references which Defendants’ have failed to explain.
Specifically, their motion to dismiss mentioned a
nonexistent “motion” by Richardson for class
certification at least twice. Defs. Mot. to Dismiss 25, 32,
ECF No. 28.
12
   The District Court cited the amended complaint when
it stated that Richardson had moved for class certification
pursuant to Rule 23. Kane, 

, at *1.
While the amended complaint did explain that
Richardson sought to represent a class of similarly
situated individuals and asked for class certification in its
                             35
        We agree that, ordinarily, the “proper procedure is
for the named representative to file a motion for class
certification.” 

. Yet the absence
of a motion should not necessarily be fatal. Accordingly,
we join the courts of appeals which have held that
“[n]othing in the plain language of Rule 23(c)(1)(A)
either vests plaintiffs with the exclusive right to put the
class certification issue before the district court or
prohibits a defendant from seeking early resolution of the
class certification question.” Vinole v. Countrywide
Home Loans, Inc., 

, 939-40 (9th Cir. 2009);
see also Manning v. Boston Med. Ctr. Corp., 

, 59 (1st Cir. 2013); Pilgrim v. Universal Health Card,
LLC, 

, 949 (6th Cir. 2011). We embrace the
view that “[t]he only requirement [in Rule 23(c)(1)(A)] is
that the certification question be resolved ‘[a]t an early
practicable time.’” 

(quoting Rule
23(c)(1)(A)). There is no per se rule that a plaintiff must
move for class certification before the issue can be
considered by the District Court. However, “[t]o say that
a defendant may freely move for resolution of the class-

prayer for relief, it did not by itself constitute, nor did it
include, a motion for class certification. Richardson too
recognized that he had yet to file a motion for class
certification when he later explained that he was waiting
to file the motion until his earlier motion to consolidate
his case with Shelton was considered. Pl.’s Resp. to
Defs. Mot. to Dismiss 28, ECF No. 33.
                             36
certification question whenever it wishes does not free
the district court from the duty of engaging in a rigorous
analysis of the question . . . .” 

(internal quotation marks omitted). Indeed, “a court
should typically await the development of a factual
record before determining whether the case should move
forward on a representative basis.” 

.
       We also believe that permitting either party to raise
the issue of class certification strikes the proper balance
between permitting prompt and efficient judicial
resolution of cases in which “we cannot see how
discovery or for that matter more time would have
helped” the named plaintiff, 

,
and ensuring that district courts allow for the factual
development that is often necessary to determine the
propriety of class certification. Because a district court
must have the freedom to balance these interests, we
conclude that a per se rule requiring the plaintiff to move
for certification is improper.
       Applying these principles to this case, it is clear
that even though Richardson never filed a motion to
certify the class, certification was still squarely presented
to and properly considered by the District Court.13 Both

13
   We also note that the District Court applied the proper
standard in evaluating the certification question even
though the motion was styled as a motion to dismiss. As
                             37
sides briefed the issue and explained why they believed
the class should or should not be certified. And again, as
discussed above, the argument that the mere filing of a
motion for class certification somehow alters the “legal
landscape” of the case “makes no sense” when it is
already clear from the complaint alone that the plaintiff is
seeking such relief. 

. We therefore
hold that the District Court did not err in considering the
merits of class certification absent an affirmative motion
by Richardson.

      For purposes of determining undue delay, we can
thus read Defendants’ motion to dismiss and
Richardson’s response as sufficiently presenting the issue
of class certification to the District Court. Because the
issue was both raised by Defendants and responded to by
Richardson within seven weeks of the filing of the
amended complaint, we cannot conclude that Richardson

we have held before, “the Rule 23 requirements differ in
kind from legal rulings under Rule 12(b)(6).” In re
Cmty. Bank of N. Va., 

, 303 (3d Cir. 2010)
(internal citations and quotation marks omitted). A
motion to dismiss tests the legal sufficiency of a claim,
but “[b]y contrast, an order certifying a class usually is
the district judge’s last word on the subject; there is no
later test of the decision’s factual premises.” Szabo v.
Bridgeport Machs., Inc., 

, 676 (7th Cir.
2001).
                            38
unduly delayed presenting the issue of class certification
to the District Court even though he never filed a motion
for class certification.

                            iii.

       Our analysis can be summed up as follows. First,
Richardson did not have a “fair opportunity” to seek class
certification before his individual claim became moot
because Defendants transferred Richardson out of the
SMU Program six weeks after he filed his amended class
action complaint. In other words, he could not be
expected to have presented the class certification issue to
the District Court within that amount of time. Second,
because the class certification question was both raised
by Defendants and responded to by Richardson within
seven weeks of the filing of the amended class complaint,
we excuse Richardson’s failure to file a motion for class
certification as the issue was squarely presented to the
District Court without undue delay. Accordingly, under
Weiss, we can relate the District Court’s denial of class
certification back to the date of Richardson’s amended
class complaint.14 Because Richardson’s individual


14
  We are not presented with a situation in which no class
members, named or otherwise, currently have standing to
seek relief in this case. Defendants have not alleged that
the SMU program at Lewisburg has been shut down. We
must therefore assume that the program is still active and
                            39
claims for injunctive relief were live at the time he filed
this complaint, the subsequent mooting of these claims
does not prevent Richardson from continuing to seek
class certification or from serving as the class
representative.15
                           III.

       Defendants also argue that this case is moot
because the prison officials Richardson seeks to enjoin
are no longer employed at USP Lewisburg. Defendants
thus attempt to analogize this case to Spomer v. Littleton,
arguing that Richardson has not alleged that the
supposedly unconstitutional practices at USP Lewisburg
would continue under a new 

. Defendants are correct that, in light of Spomer,
Richardson had to plead more than a mere “personal”
grievance against individuals at the prison in order to
avoid the mooting of his claims for injunctive relief.
Richardson instead had to allege that his grievances were

that unnamed class members still have live claims to
assert.
15
   On remand, therefore, the District Court may consider
the additional class certification requirements that it did
not previously reach when it erroneously concluded that
the class was unascertainable. It may also reconsider
whether consolidation with Shelton is appropriate. In
making these determinations, the District Court may
order supplemental briefing as it sees fit.
                            40
systematic, pervasive, or institutional and thus likely to
continue under a new prison administration. Our review
shows that Richardson has made sufficient allegations
that—at least at the motion to dismiss stage—will
prevent a mootness determination under Spomer.
       As we have previously explained, even when “a
substitution of successors in office is procedurally sound,
to obtain injunctive relief against the successor there
must be some indication that the successor would
otherwise continue the unconstitutional practices alleged
in the complaint.” Sarteschi v. Burlein, 

,
114 (3d Cir. 1975). In other words, the question we must
ask under Spomer and Sarteschi is “whether the alleged
violation is personal to the departed official or whether it
reflects a continuing state practice.” Peck v. McDaniel,
No. 2:12-cv-01495, 

, at *5 (D. Nev.
Dec 1, 2014).

    This approach is also supported by the
commentary to Federal Rule of Civil Procedure 25(d),16




16
  Federal Rule of Civil Procedure 25(d) states in relevant
part:

                            41
which permits such substitutions. Specifically, the
Advisory Committee explains that “[i]n general [Rule
25(d)] will apply whenever effective relief would call for
corrective behavior by the one then having official status
and power, rather than one who has lost that status and
power through ceasing to hold office.” Fed. R. Civ. P. 25
advisory committee notes to 1937 adoption. If a practice
is ongoing and “institutional,” the relevant defendant is
the one who has the power to stop it.
       In this case, Defendants argue that because the
unconstitutional actions alleged in the amended
complaint are characterized as being in violation of BOP
policy, the conduct must be personal to Defendants.
They argue that “Richardson’s amended complaint is
devoid of any allegation that the current Director of the
Bureau of Prisons, the Warden of USP Lewisburg, and
his new associate wardens would violate inmates’
constitutional rights by blatantly disregarding prison


      An action does not abate when a public
      officer who is a party in an official capacity
      dies, resigns, or otherwise ceases to hold
      office while the action is pending. The
      officer’s    successor     is   automatically
      substituted as a party. Later proceedings
      should be in the substituted party’s name,
      but any misnomer not affecting the parties’
      substantial rights must be disregarded.
                           42
policy and subjecting inmates to harm.” Appellees’ Br.
23. In response, Richardson argues that “Spomer is
inapplicable to the case at bar as Mr. Richardson’s
allegations do not relate to the personal conduct of the
named defendants, but rather to facts concerning
institutional practices and policies.” Appellant’s Reply
Br. 15.

       While Richardson does allege that conduct at issue
violated BOP policy, this does not necessarily mean that
the conduct was idiosyncratic or limited to the personal
hostility of a particular individual. Instead, the amended
complaint alleges that there was an unspoken practice or
procedure of retribution in the prison, which is more akin
to an “institutional practice,” as the Ninth Circuit
determined in Hoptowit v. Spellman. 

, 782
(9th Cir. 1985) (concluding that the claims did “not relate
to the personal conduct of the principal named
defendants” but “concern[ed] institutional practices and
physical conditions at the penitentiary”).
      In particular, right from the beginning of his
amended complaint, Richardson asserts that the injuries
here are the result of a “pattern, practice, or policy,” and
then refers to the constitutional violations he is alleging
as “systematic failure[s]” at USP Lewisburg. Pl.’s Am.
Compl. 2, 3. We, of course, take no position on whether
Richardson can succeed in showing that this practice has
in fact continued under the new prison administration.
We simply hold that “[t]his is enough for the complaint
                            43
not to be dismissed,” and caution just as we did in
Sarteschi that—should future developments in this case
show that the alleged abuses are in fact no longer
occurring at USP Lewisburg—“it would be appropriate,
upon proper motion by defendants, to enter judgment in
favor of 

.

                         IV.
       For the foregoing reasons, we will vacate the
District Court’s order dismissing Richardson’s class
claims and remand for further proceedings consistent
with this opinion.




                         44