FRCP

In Aguirre v. Capital One Bank USA N.A., No. 8:23-cv-00128-FWS-JDE, 2023 U.S. Dist. LEXIS 105188, at *7 (C.D. Cal. June 15, 2023), Judge Slaughter kept the case in federal court under CAFA removal based on the defendant's guess-timate of damages. Defendant argues it has put forth reasonable assumptions demonstrating each Plaintiff's recovery exceeds $75,000, based on an estimate of $8,494… Read More

In Selinger v. Ford Motor Co., No. 2:22-CV-08883-SPG-KS, 2023 U.S. Dist. LEXIS 61254, at *35-37 (C.D. Cal. Apr. 5, 2023), Judge Garnett confirmed federal jurisdiction by adding in negative equity at issue in a RISC. Finally, in its supplemental memorandum, Plaintiff argues that remand is appropriate because Defendant "also . . . remain[s] notably silent on whether it would be… Read More

In Chase v. Kia Motors Am., Inc., No. 22-cv-09082-JCS, 2023 U.S. Dist. LEXIS 31208, at *1-2 (N.D. Cal. Feb. 24, 2023), Judge Spero concluded that he did not have jurisdiction to hear a federal claim raised for the first time in an arbitration referred by a state court.  Judge Spero summarized the case as follows: Defendant Hyundai Capital America d/b/a… Read More

In Geismann, M.D., v. ZocDoc, Inc., 14 Civ. 7009 (LLS), 2017 WL 3263140 (S.D.N.Y. July 28, 2017), Judge Stanton filled the gap left by Campbell-Ewald, and allowed a TCPA defendant to tender to the Court all sums for which it could possibly be liable and then move for summary judgment on an Article III basis. I agree with those cases… Read More

In Slovin v. Sunrun, Inc., 2017 WL 2902902, at *4 (N.D.Cal., 2017), Judge Rogers declared a Rule 68 offer to TCPA class representatives invalid because to let it stand until the end of the litigation created a conflict between the class representative and the putative class. The Court finds that the individual plaintiffs could not accept the Offer without jeopardizing their… Read More

In Mey v. North American Bancard, 2016 WL 3613395, at *3-4 (C.A.6 (Mich.), 2016), the Court of Appeals for the Sixth Circuit held that payment of actual cash did not moot a TCPA class action under Campbell-Ewald. In an effort to tee up that question, NAB responded to Campbell-Ewald by mailing Mey's attorney a cashier's check for $4,500, apparently for three calls… Read More

 In Fauley v. Royal Canin U.S.A., Inc., 2016 WL 2766286, at *1-2 (N.D.Ill., 2016), Judge Bucklo vacated Plaintiffs' "placeholder" class cert. motion, and denied the Defendant's motion to lift a stay in a TCPA case so that Defendant could tender to the Plaintiff. In a motion styled “to modify stay,” defendants profess their intent to “exercise the option left open by the… Read More

There's something about all these chiropractors suing under the TCPA  Anyway, In South Orange Chiropractic Center, LLC v. Cayan, LLC d/b/a/ Capital Bankcard, 2016 WL 1441791, at *4-5 (D.Mass., 2016), Judge Saris The parties do not dispute that Defendant has offered to fully provide all requested relief for Plaintiff's individual claims under the TCPA. . . .Defendant has already fallen on… Read More

In Chen v. Allstate Ins. Co., 2016 WL 1425869, at *1-2 (9th Cir. 2016), the Court of Appeals for the Ninth Circuit said that it was not enough post-Campbell-Ewald to merely deposit sums with the Court in order to try to moot a TCPA class action. Florencio Pacleb filed a class action complaint against Allstate Insurance Company, alleging he received unsolicited… Read More

In Brady v. Basic Research, L.L.C., 2016 WL 462916, at *2 (E.D.N.Y., 2016), Judge Feuerstein denied a TCPA Defendant's efforts to tender around Campbell-Ewald.   As Defendants' seek Rule 67(a) permission to deposit funds into court to moot this case arid not to relieve themselves of the burden of administering an asset, and given the Supreme Court's directive that “a would-be… Read More

In Campbell-Ewald Co. v. Gomez, 2016 WL 228345, at *1 (U.S.,2016), the SCOTUS held that: An unaccepted settlement offer or offer of judgment does not moot a plaintiff's case, so the District Court retained jurisdiction to adjudicate Gomez's complaint.Article III's “cases” and “controversies” limitation requires that “an actual controversy ... be extant at all stages of review, not merely at the… Read More

In St. Louis Heart Center, Inc. v. Athenahealth, Inc., 2015 WL 6777873, at *4-5 (E.D.Mo., 2015), Judge Fleissig stayed a TCPA case after the Plaintiff rejected a Rule 68 offer of judgment based on the Supreme Court's decision in Campbell-Ewald.  After carefully considering the parties' briefs and supplemental authority, and weighing all of the competing interests in this case, the Court… Read More

In Connector Castings, Inc. v. Joseph T. Ryerson & Son, Inc., 2015 WL 6431704, at *2-3 (E.D.Mo., 2015), Judge Limbaugh allowed a TCPA class action past the pleadings stage.  He rejected the Defendant's argument that a Rule 68 offer mooted the class. Plaintiff contends that the offer of judgment was invalid insomuch as plaintiff had on file a motion to… Read More

In Peters v. Credit Protection Association, 2015 WL 5216709, at *5-6 (S.D.Ohio, 2015), Judge Marbley found that a TCPA Class Action defendant's Rule 68 offer was inadequate and did not moot the class action anyway.  And, Judge Marbley refused to stay the case pending the outcome of the Supreme Court's case in Campbell-Ewald.  Such is a merits-based argument regarding the type of relief… Read More

In Wasvary v. WB Holdings, LLC, 2015 WL 5161370, at *6-7 (E.D.Mich., 2015) , Judge Cox found that a TCPA class action plaintiff could not avoid a Rule 68 "pick-off" offer by filing a premature, pre-emptive Motion for Class Certification. In cases involving statutory damages that are small in amount, like TCPA cases, Defendants often attempt to “pick off” the named… Read More

In Yaakov v. Varitronics, LLC, 2015 WL 5092501, at *1 (D.Minn.,2015), Judge Montgomery stayed a TCPA-fax class action pending the outcome of the SCOTUS' decision in Campbell-Ewald.  The facts were as follows. This putative class action stems from eight unsolicited fax advertisements Bais Yaakov received between November 2013 and February 2014. See Compl. [Docket No. 1] ¶ 10; Ex. A (the “Fax… Read More

In Bais Yaakov of Spring Valley v. ACT, Inc., 2015 WL 4979406, at *3 (C.A.1 (Mass.),2015), the First Circuit Court of Appeals held that a TCPA defendant can not moot a class action by picking off the named plaintiff through a Rule 68 offer. Against this background, ACT advances a nifty stratagem for defeating motions for class certification: offer only the… Read More

In Boise v. ACE USA, Inc., 2015 WL 4077433, at *3-4 (S.D.Fla.,2015), Judge Cooke found that a TCPA Plaintiff had Article III standing, and that his case was not mooted by a Rule 68 offer.    The District Court found that 11th Circuit precedent bound it on the question of Article III standing. Palm Beach Golf Center–Boca, Inc. v. Sarris, 781… Read More

We previously reported on the Gomez v. Campbell-Ewald matter (http://www.calautofinance.com/?p=5343), wherein the 9th Circuit found that a consumer's failure to accept advertiser's offer of judgment did not render action moot.  Today, the SCOTUS granted cert.  Campbell-Ewald Company v. Gomez, 2015 WL 246885-, -- S.Ct. ---, 83 USLW 3637 (2015).  The Petition for Cert. offered 3 potential issues: 1.Whether a case… Read More

In Keim v. ADF Midatlantic, LLC, --- Fed.Appx. ----, 2014 WL 6734829 (11th Cir. 2014), the Court of Appeals for the 11th Circuit held that a Rule 68 Offer did not moot a TCPA class action plaintiff's claims. We have today issued our opinion in Jeffrey Stein, D.D.S., M.S.D., P.A. v. Buccaneers Ltd. Partnership, ––– F.3d ––––, No. 13–15417 (11th Cir.––––, 2014).… Read More