Gomez v. Campbell-Ewald Co.
| Decision Date | 08 April 2011 |
| Docket Number | Case No. CV 10–2007 DMG (CWx). |
| Citation | 805 F.Supp.2d 923 |
| Court | U.S. District Court — Central District of California |
| Parties | Jose GOMEZ, individually and on behalf of a class of similarly situated individuals, Plaintiff, v. CAMPBELL–EWALD COMPANY, a Delaware corporation, Defendant. |
OPINION TEXT STARTS HERE
Evan M. Meyers, Michael J. McMorrow, Rafey S. Balabanian, Ryan D. Andrews, Edelson McGuire LLC, Chicago, IL, Sean Patrick Reis, Edelson McGuire LLP, Rancho Santa Margarita, CA, for Plaintiff.
Laura A. Wytsma, Christine M. Reilly, Michael L. Mallow, Loeb & Loeb LLP, Los Angeles, CA, for Defendant.
This matter is before the Court on the following: (1) Plaintiff's motion to strike [Doc. # 32]; (2) Plaintiff's motion for class certification [Doc. # 33]; and (3) Defendant's motion to dismiss [Doc. # 47]. The Court held a hearing on April 8, 2011. Having duly considered the respective positions of the parties, as presented in their briefs and at oral argument, the Court now renders its decision. For the reasons set forth below, Defendant's motion to dismiss is DENIED, Plaintiff's motion to strike is GRANTED, and the Court defers its ruling on Plaintiff's motion for class certification until after the parties have completed class discovery.
On March 19, 2010, Plaintiff filed a class action complaint in this Court alleging violation of the Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq. (“TCPA”). (Compl. ¶ 20.) According to Plaintiff, beginning in at least 2006, Defendant directed the mass transmission of wireless spam to the cellular telephones of consumers across the nation to advertise on behalf of the U.S. Navy. (Compl. ¶ 14.)
On or about May 11, 2006, Plaintiff received the following text message on his cellular phone:
DESTINED FOR SOMETHING BIG? DO IT IN THE NAVY. GET A CAREER. AN EDUCATION. AND A CHANCE TO SERVE A GREATER CAUSE. FOR A FREE NAVY VIDEO CALL 1–800–510–2074.
( Id. ¶ 16; emphasis in original). Plaintiff received additional text message advertisements over the next several months and never consented to the receipt of such text message calls from Defendant. ( Id. ¶¶ 18–19.)
Plaintiff seeks $500 in damages for each purported TCPA violation, as well as treble damages, injunctive relief, and an award of reasonable attorneys' fees and costs. ( Id. ¶¶ 30–31.) Plaintiff seeks to certify a nationwide class of “thousands” consisting of “all persons in the United States and its Territories who received one or more unauthorized text message advertisements from Defendant.” ( Id. ¶¶ 20–21.)
Pursuant to Local Rule 23–3, Plaintiff's motion for class certification was originally due to be filed on or before June 17, 2010.
On May 18–19, 2010, counsel for the parties conferred regarding Defendant's motion to dismiss. (Decl. of Michael J. McMorrow in Supp. Reply (“McMorrow MTD Decl.”) ¶¶ 2–3.) In response to Plaintiff's counsel's request for additional time to respond to Defendant's motion, Defendant's counsel stated, “we are amenable to a change in the hearing date as long as you agree not to initiate discovery until after the motion is decided.” (McMorrow MTD Decl. ¶ 3, Ex. 1.)
On June 2, 2010, the parties filed a stipulation (the “Stipulation”) by which the parties agreed that the deadline for Plaintiff to file his motion for class certification should be extended. [Doc. # 9.] Plaintiff wished to wait for Defendant to answer or otherwise respond to the Complaint, and to conduct pre-certification discovery, before filing his motion for class certification. Defendant agreed that it would be “inefficient for the Court and the parties to expend resources on class certification-related activities before Defendant has responded to the Complaint and before any threshold motions are resolved and the pleadings are more settled.” (Stipulation at 2.)
The parties therefore stipulated that:
Following disposition of Defendant's responsive pleadings, the Parties, if necessary, anticipate presenting a proposed discovery schedule to the Court setting forth the deadlines and requirements associated with the parties' Rule 26(f) conference and report.
( Id.) On June 3, 2010, the Court approved the Stipulation and extended Plaintiff's deadline to file his motion for class certification “until after all Parties have answered and presented a proposed discovery schedule to the Court setting forth the deadlines and requirements associated with the parties' Rule 26(f) conference and report.” [Doc. # 10.]
On May 19, 2010, Defendant filed its first motion to dismiss, which the Court denied on November 5, 2010. On November 19, 2010, Defendant filed its Answer. On November 22, 2010, Defendant filed a motion for reconsideration of its motion to dismiss, which the Court denied on December 9, 2010. On January 19, 2011, Plaintiff filed his motion for class certification. On February 1, 2011, the Court issued its Scheduling and Case Management Order.
On January 5, 2011, Defendant filed a notice of offer of judgment pursuant to Fed R. Civ. P. 68 (the “Rule 68 Offer”).1 [Doc. # 31.] Defendant offered to allow judgment to be entered against it in this action (1) in the amount of $1503 for each unsolicited text message that Plaintiff alleged received from or on behalf of Defendant (which represented $501 trebled as requested by Plaintiff in the Complaint), (2) to pay any and all reasonable costs incurred by Plaintiff or his attorneys in the action, and (3) to allow the Court to enter an injunction against it. ( Rule 68 Offer at 1.)
On January 5, 2011, Defendant also made a settlement offer to Plaintiff (the “Settlement Offer”). Defendant offered “to resolve all claims which [Plaintiff] has or had against [Defendant] arising from or related to any unsolicited text messages that were allegedly sent by or on behalf of [Defendant] to [Plaintiff] between March 19, 2006, and the present.” (Decl. of Laura A. Wytsma (“Wytsma Decl.”) ¶ 6, Ex. 5.) In the Settlement Offer, Defendant offered to: (1) pay Plaintiff the sum of $1503 for each and every unsolicited text message that was allegedly sent by or on behalf of Defendant to any cell phone owned by Plaintiff; (2) pay Plaintiff any costs that he would recover if he were to prevail in the action; and (3) agree to a stipulated injunction prohibiting it from the alleged “wireless spam activities.” ( Id.)
On January 19, 2010, Plaintiff filed a(1) motion to strike and quash Defendant's Rule 68 Offer [Doc. # 32] and a(2) motion for class certification [Doc. # 33]. On March 11, 2011, Defendant filed an opposition to Plaintiff's motion to strike, an opposition to Plaintiff's motion for class certification, and a second motion to dismiss [Doc. # 47]. On March 25, 2011, Plaintiff filed a reply in support of his motion to strike, a reply in support of his motion for class certification, and an opposition to Defendant's second motion to dismiss. On April 1, 2011, Defendant filed a reply in support of its second motion to dismiss.
The parties do not dispute that Defendant's Rule 68 Offer would have fully satisfied the individual claims asserted, or that could have been asserted, by Plaintiff in this action.3 The parties also do not dispute that an offer of judgment cannot moot a case once a class has been certified. The question before the Court is whether an offer of judgment made to a named plaintiff prior to class certification moots a putative class action.
Defendant contends that the Rule 68 Offer moots Plaintiff's claim because Plaintiff has “won” and there is no longer anything left for this Court to adjudicate. Plaintiff argues that the Rule 68 Offer is an improper attempt to “pick off Plaintiff's claim because he had no opportunity to file a class certification motion prior to such offer.
Article III of the Constitution limits federal subject matter jurisdiction to “cases and controversies.” U.S. Const. art. III § 2; United States Parole Commission v. Geraghty, 445 U.S. 388, 395, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980); see also Rosemere Neighborhood Ass'n v. U.S. Environmental Protection Agency, 581 F.3d 1169, 1172–73 (9th Cir.2009).
A case is moot when (1) “the issues presented are no longer live” or (2) the parties lack a “legally cognizable interest in the outcome.” Geraghty, 445 U.S. at 396, 100 S.Ct. 1202 (internal quotations omitted). The “personal stake” requirement assures that the Court is presented with a dispute it is capable of resolving. Id. at 397, 100 S.Ct. 1202. “The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness).” Id. (internal quotations omitted).
In the class action context, the Supreme Court has permitted named plaintiffs whose individual claims were mooted to appeal a denial of class certification. Geraghty, supra, 445 U.S. 388, 100 S.Ct. 1202; Deposit Guar. Nat'l Bank v. Roper, 445 U.S. 326, 100 S.Ct. 1166, 63 L.Ed.2d 427 (1980). Applying a “relation back” approach, the Supreme Court held that such named plaintiffs who had a personal stake at the inception of the action may continue to litigate the class certification issue on appeal in these circumstances: (1) where the claim is “capable of repetition yet evading review”; and (2) where the claim is so “inherently transitory” that the trial court will not have enough time to rule on a motion for class certification before the proposed named plaintiff's individual interest expires Geraghty, 445 U.S. at 398–99, 100 S.Ct. 1202.
The parties in this case debate whether the rationale...
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