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Rodriguez v. Premier Bankcard, LLC

United States District Court, N.D. Ohio, Western Division

June 21, 2019

Adrena Rodriguez, et al., Plaintiffs
v.
Premier Bankcard, LLC, et al., Defendants

          ORDER

          James G. Carr Sr., U.S. District Judge

         This case arises under the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227.

         Plaintiffs 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.

         During 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 accepted.

         Thereafter, 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 the case.

         Jurisdiction is proper pursuant to 28 U.S.C. § 1331.

         I deny 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.

         I 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 notice.

         Background

          I 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 them here.

         I. Facts

         Plaintiffs, 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, ¶ 4).

         In 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).

         Over 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).

         Shortly 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).

         By July 12, 2016, [1] 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).

         II. Procedural History

         Plaintiffs filed suit on October 18, 2016 and simultaneously filed what courts commonly call a “placeholder” motion for class certification.[2] (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).

         On 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.

         After 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).

         The 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).

         The same day plaintiffs accepted the offer of judgment, they filed the pending motion.[3]

         Discussion

         Premier 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.

         I. Mootness

         Generally, “[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 ...

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