TCPA Decision: Does offer of judgment “moot” Plaintiff’s claims?

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Ever get those annoying political calls to your cell phone? Not a human but robo (computer) dialed calls? Lori Shamblin did and decided to sue multiple defendants for doing this in federal court in Tampa, Florida.

Here’s what one defendant did to try to show the court that the case should be dismissed as Plaintiff allegedly got everything she was entitled to receive:

New Partners Consulting, Inc. seeks dismissal of the Second Amended Complaint under Rule 12(b)(1) alleging that its Rule 68 Offer of Judgment to Shamblin was an offer of complete relief and thus no case or controversy remains between the parties. (Doc. #122 at 3).

Here’s the basis of this argument:

The doctrine of mootness springs directly from the case or controversy limitation because an action that is moot cannot be characterized as an active case or controversy. Id. Mootness can occur due to a change in circumstances or a change in the law. Coral Springs St. Sys., Inc. v. City of Sunrise, 371 F.3d 1320, 1328 (11th Cir. 2004). A case is also moot when the issue presented is no longer live, the parties lack a legally cognizable interest in the outcome, or a decision could no longer provide meaningful relief to the parties. Troiano v. Supervisor of Elections in Palm Beach Cnty., Fla., 382 F.3d 1276, 1282 (11th Cir. 2004).

The details of the defendant’s argument are the following:

Regardless of whether the plaintiff accepts the offer, “an offer of judgment providing the plaintiff with the maximum allowable relief [will] moot the plaintiff’s claim.” Moore v. Hecker, 250 F.R.D. 682, 684 (S.D. Fla. 2008). Therefore, “Rule 68 offers can be used to show that the court lacks subject-matter jurisdiction.” Pollack v. Bay Area Credit Serv., LLC, No. 08-61101-Civ, 2009 WL 2475167, at *5 (S.D. Fla. Aug. 13, 2009). “Once the defendant offers to satisfy the plaintiff’s entire demand, there is no dispute over which to litigate .. . and a plaintiff who refuses to acknowledge this loses outright, under Fed. R. Civ. P. 12(b)(1), because he has no remaining stake.” Rand v. Monsanto Co., 926 F.2d 596, 598 (7th Cir. 1991).

So did the defendant provide all the relief Plaintiff sought?

Here, unlike Delgado, New Partners Consulting, Inc.’s Offer of Judgment did not comport with the standard set forth in Rule 68 allowing Shamblin to recover the “maximum relief available under the law.” Id. There are multiple defendants in this action, whereas in Delgado, there was only one. Shamblin’s maximum recovery includes relief from all Defendants and not solely from New Partners Consulting, Inc. Therefore, the Offer of Judgment, which was not a mirror image of the prayer for relief, did not moot Shamblin’s claim and deprive this Court of jurisdiction.

In the Complaint Shamblin seeks the following relief:

a. Certify this action as a class action under Federal Rule of Civil Procedure 23, appointing Plaintiff as the class representative and her counsel as class counsel;
b. Enjoin Defendants from violating the TCPA in the future by placing auto-dialed or pre-recorded calls to cellular telephone numbers;
c. Award statutory damages to Plaintiff and the class pursuant to 47 U.S.C. § 227(b)(3).
d. Award reasonable attorney fees and costs to compensate Plaintiff’s counsel for the time and litigation expenses incurred on behalf of the class; and e. Issue such other relief as the Court deems equitable and just.
(Doc. #131 at 5).

New Partners Consulting, Inc.’s Offer of Judgment, offered Shamblin the following:

(1) Judgment shall be entered against Defendant and in favor of SHAMBLIN in the amount of $7,500.00, arising from Plaintiff’s TCPA claims against the Defendant as alleged in Plaintiff’s Second Amended Class Action Complaint, (2) Judgment shall include an additional amount for taxable costs incurred by Plaintiff in prosecuting the case, in an amount to be determined by the Court if the parties are unable to come to an agreement, (3) Judgment shall enjoin Defendant from violating the TCPA in the future by placing auto-dialed or prerecorded calls to SHAMBLIN’s cellular telephone number(s), and (4) Should Plaintiff accept this Offer, Plaintiff agrees that acceptance of this Offer resolves Plaintiff’s TCPA claims against Defendant.
(Doc. #122-1).

An Offer of Judgment cannot be evaluated solely by its dollar amount. Lynch v. First Nat. Collection Bureau, Inc., No. 11-60798-CIV, 2011 WL 2457903 (S.D. Fla. 2011). In the instant action, Shamblin seeks to enjoin all Defendants[1] from committing future violations of the TCPA. (Doc. #131 at 5). The TCPA provides in relevant part that,

A person or entity may, if otherwise permitted by the laws or rules of court of a State, bring in an appropriate court of that State-
(A) an action based on a violation of this subsection or the regulations prescribed under this subsection to enjoin such violation,
(B) an action to recover for actual monetary loss from such a violation, or to receive $500 in damages for each such violation, whichever is greater, or (C) both such actions.
If the court finds that the defendant willfully or knowingly violated this subsection or the regulations prescribed under this subsection, the court may, in its discretion, increase the amount of the award to an amount equal to not more than 3 times the amount available under subparagraph (B) of this paragraph.
47 U.S.C. § 227(b)(3)(emphasis added).

Accordingly, as the TCPA provides that an injunction is an appropriate remedy sought under the statute, and because Shamblin did in fact seek to enjoin all the Defendants in this action, an Offer of Judgment without full injunctive relief diminishes the value of the judgment Shamblin seeks. Thus, the Offer of Judgment, which included injunctive relief only against New Partners Consulting, Inc., even if for the full monetary amount, does not encompass the entire value of relief Shamblin seeks because it does not include an injunction against the other Defendants in this action. Lynch, 2011 WL 2457903.

Although Defendants, Obama for America and DNC Services Corporation, are willing to be enjoined from “violating the TCPA in the future by placing auto-dialed or pre-recorded calls to cellular telephone numbers” at this juncture, that offer does not appear on the face of New Partners Consulting, Inc.’s Offer of Judgment. (Doc. #136). This Court finds that New Partners Consulting, Inc.’s Offer of Judgment failed to provide “maximum allowable relief” to Shamblin and therefore did not moot Shamblin’s claim and deprive this Court of subject matter jurisdiction.

So what is the take home message?

For defendants, if you are going to use an offer of judgment to try to “moot” a Plaintiff’s claims, you have to provide the full relief requested. This is not a buffet where you can pick and choose which items you want and those you don’t want.

For Plaintiffs, make sure you are asking for all the relief you can receive and carefully evaluate offers of judgment to see how the compare with what you asked for. Additionally, I find that hardly any defendants understand the law (or if they do they don’t follow the law) on what makes a valid offer of judgment. They will do things such as:

*Ask that the claims be dismissed — uh, no, it is a judgment!
*Demand that the Plaintiff sign a settlement release — nope — we don’t sign releases when we have a judgment against you.
*Limit attorney fees to 14 days after serving the offer of judgment — nope — when we get a judgment we can get fees when you make us fight on fees.

The list goes on and on.

If it is not a valid offer of judgment, it cannot “moot” your case.

Hope you enjoyed this discussion of this case and have a great day!

If you have questions about the TCPA and you live in Alabama, give us a call at 205-879-2447 or you can learn more about the TCPA on this blog or on our main consumer protection website.

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