United States District Court, N.D. Ohio, Western Division
G. Carr Sr., U.S. District Judge
case arises under the Telephone Consumer Protection Act
(TCPA), 47 U.S.C. § 227.
Adrena Rodriguez and William Hodge allege that that
defendants Premier Bankcard, LLC and First Premier Bank
(collectively, Premier) repeatedly called their cell phones
using an automated dialing system without prior express
consent. They raise similar claims on behalf of a putative
class, which has not been certified.
the class discovery period, but before plaintiffs filed a
motion for class certification, Premier offered judgment on
plaintiffs' individual claims under Fed.R.Civ.P. 68.
plaintiffs filed the pending motion to proceed with class
discovery and certification (Doc. 55). Premier opposes the
motion (Doc. 56), arguing that the offer of judgment moots
is proper pursuant to 28 U.S.C. § 1331.
plaintiffs' motion insofar as it seeks to keep the case
alive despite the accepted offer of judgment. To that end, I
agree with defendants that the case is moot.
reserve judgment on plaintiffs' alternative request that
I authorize notice of the settlement to the putative class
pending a telephone conference on that issue. The parties
have presented insufficient evidence for me to evaluate
whether the putative class would suffer prejudice absent such
discussed the facts of this case at length in my summary
judgment order on plaintiffs' individual claims,
Rodriguez v. Premier Bankcard, LLC, 2018 WL 4184742,
*1-2 (N.D. Ohio) (Carr, J.), (Doc. 44), and briefly summarize
who are married, maintain a joint cell phone account. (Doc.
36-1 at 1, ¶ 2). Each spouse has his or her own cell
phone with a separate phone number. (Id. at 2,
July, 2014 and March, 2016, Hodge applied for and received
two credit cards from First Premier in his name only. (Doc.
36-1 at 3-4, ¶ 8). Premier issued a credit card
agreement to Hodge for each card. Each agreement contained a
“consent-to-call” provision, whereby Hodge
“agree[d] and expressly consent[ed] that [Premier and
its affiliates] may call or contact [Hodge] at any cellular .
. . telephone number . . . that . . . [Hodge] provide[d] or
use[d] to contact [Premier].” (Doc. 30-9 at 3-4,
¶¶ 11-13; Doc. 43-1 at 8-12).
the life of the credit card accounts, Hodge gave defendants
both his and Rodriguez's cell phone numbers.
(See Doc. 30-6 at 8-10, ¶¶ 14-15, 17).
after Hodge opened his second account in 2016, he fell behind
on his credit card payments. (Doc. 36-1 at 16, ¶ 36).
Premier began collection efforts, using an automated dialing
system to call both Hodge's and Rodriguez's phone
numbers. (Id. at 16-17, ¶¶ 36-37).
12, 2016,  Hodge and Rodriguez each had asked Premier
to stop autodialing their cell phones. But the calls
continued, apparently because a Premier employee failed to
“flag” Hodge's account. (Doc. 36-1 at 18-19,
¶ 40). Finally, on August 17, 2016, Hodge again asked
that Premier stop calling, and the calls to both plaintiffs
ended. (Id. at 19, ¶¶ 41-42).
filed suit on October 18, 2016 and simultaneously filed what
courts commonly call a “placeholder” motion for
class certification. (Doc. 1; Doc. 2). On August 28, 2017, I
denied the class certification motion “as moot without
prejudice to right to renew pending ruling on dispositive
motions.” (Text Order of 8/28/17).
August 31, 2018, I granted in part and denied in part
Premier's motion for summary judgment on plaintiffs'
individual claims. Rodriguez, supra, 2018
WL 4184742. (Doc. 44). I determined that 1) Hodge consented
to Premier's calls when he signed the credit card
agreements; 2) Premier could rely on Hodge's
representations that Premier could reach him at
Rodriguez's number, even though Rodriguez did not
explicitly consent to Premier's calls; and 3) Hodge and
Rodriguez revoked their consent to Premier's calls, but
the date of such revocation is a genuine dispute for trial.
Id. at *5-16.
my summary judgment ruling, the parties began class
discovery. On January 4, 2019 - during the class discovery
period, but before plaintiffs filed a new class certification
motion - Premier gave plaintiffs a Rule 68 offer of judgment.
Plaintiffs accepted. (Doc. 49).
offer of judgment “is . . . in complete settlement of
any and all claims and allegations by Plaintiffs against . .
. Defendants.” (Doc. 54 at 2, ¶ 8). Pursuant to
that settlement, defendants paid plaintiffs “$115, 500,
which includes all damages relating to any alleged calls
placed by, or on behalf of, Defendants to Plaintiffs'
cellular telephone numbers . . . and an additional $33,
000.00 in attorneys' fees.” (Doc. 56-4). The
parties agree that these amounts exceed plaintiffs'
potential recovery for their individual claims. (See
Doc. 55 at 2-3; Doc. 56 at 3-4).
same day plaintiffs accepted the offer of judgment, they
filed the pending motion.
argues that the case became moot when plaintiffs accepted the
offer of judgment. Plaintiffs assert that the case is not
moot and, alternatively, ask that I allow them to resume
class discovery, so counsel may identify putative class
members and send them notice of the settlement.
“[s]ettlement of a plaintiff's claims moots an
action.” Brunet v. City of Columbus,
1 F.3d 390, 399 (6th Cir. 1993) (internal quotations and
citations omitted). But
[S]pecial mootness rules exist for class actions. Once a
class is certified, the mooting of the named
plaintiff's claim does not moot the action, the court
continues to have jurisdiction to hear the merits of the
action if a controversy between any class member and the
defendant exists. Where, on the other hand, the named