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Career Counseling, Inc. v. Amsterdam Printing & Litho, Inc.

United States District Court, D. South Carolina, Columbia Division

July 12, 2016

Career Counseling, Inc., d/b/a Snelling Staffing Services, a South Carolina corporation, individually and as the representative of a class of similarly situated persons, Plaintiff,
Amsterdam Printing & Litho, Inc.; Taylor Corporation, John Does 1-10, Defendants.


         This matter is before the court on Plaintiff's Motion to Certify Class (ECF No. 6). Plaintiff alleges that Defendants faxed an advertisement to Plaintiff and others on June 22, 2015 and December 14, 2015 in violation of the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227 (2012). For the reasons herein, this court DENIES Plaintiff's Motion to Certify Class (ECF No. 6) without prejudice and with leave to refile.


         Because Plaintiff's claim arises under federal law, this court has subject matter jurisdiction under 28 U.S.C. § 1331 (2012).

         II. ANALYSIS

         A. The Parties' Arguments

         Plaintiff filed a "Placeholder" Motion to Certify Class (ECF No. 6) on January 4, 2016, expressing that this court should allow the placeholder motion to remain pending in order to avoid the "‘unnecessary gamesmanship'" surrounding "pick-off" attempts. (ECF No. 6 at 2 (quoting Stein v. Buccaneers Ltd. P'ship, 772 F.3d 698, 708 (11th Cir. 2014).) Plaintiff also states that it "anticipates that the proposed class definition may change after discovery defines the precise contours of the class and the advertisements that were sent." (ECF No. 6 at 3.) Plaintiff therefore requests leave to file supplemental briefing in support of its Motion after it has conducted more discovery. (Id.)

         In their Response to Plaintiff's Motion, Defendants claim that Plaintiff has filed the placeholder motion to deny them their right to make an offer of judgment under Rule 68 of the Federal Rules of Civil Procedure.[1] (ECF No. 21 at 4.) Defendants argue that the court should deny Plaintiff's motion as premature because Plaintiff seeks class certification ruling based just on its pleadings and before it has conducted discovery. (Id. at 7-10.) Alternatively, Defendants contend that this court should deny the motion because it fails to comply with Fed.R.Civ.P. 23's requirements for class certification. (Id. at 6 (arguing that Plaintiff's motion fails to overcome the "rigorous analysis" Rule 23 requires).)

         B. The Court's Review

         Soon after Plaintiff filed its Motion to Certify Class, the United States Supreme Court, in a January 20, 2016 decision, held that an unaccepted offer to satisfy the named plaintiff's individual claim "has no force" in mooting a case "when the complaint seeks relief on behalf of the plaintiff and a class of persons similarly situated." Campbell-Ewald Co. v. Gomez, 136 S.Ct. 663, 666 (2016). Since Campbell-Ewald, the Court of Appeals for the Fourth Circuit has not addressed the related, but separate, issue of whether a defendant can moot a putative Rule 23 class action by picking off a named plaintiff's individual claim with a judgment offer for which funds have been tendered, or with a judgment offer that a named plaintiff accepts. Neither has the Fourth Circuit explicitly decided whether a pending placeholder motion for class certification can prevent this tactic.

         Before Campbell-Ewald, some district courts in the Fourth Circuit allowed plaintiffs to rely on a pending placeholder motion to deny unaccepted pick-off offers. See, e.g., Chatman v. GC Servs., LP, 302 F.R.D. 136, 138 (D.S.C. 2014) ("[A]n offer of judgment of complete individual relief to the named plaintiff may not moot a class action, at least where a motion for class certification is pending at the time the offer is made."). In Chatman, after plaintiff filed a placeholder motion with the complaint, the defendant made a pick-off offer and moved to dismiss the case as moot; the court explained that "[l]acking any contrary circuit court decision or guidance from the Fourth Circuit, this court finds that an offer of judgment will not moot a named plaintiff's claim if the offer is made while a motion to certify the class is pending." Id. (declining to extend to the Rule 23 context the United States Supreme Court precedent in the Fair Labor Standards Act context supporting the defendant's position).

         Another Fourth Circuit district court had gone further and followed other circuit courts in indirectly suggesting that a placeholder motion is altogether unnecessary because even where no certification motion is pending and the plaintiff has received an offer of complete relief, the putative class plaintiff may continue to seek class certification, which will "relate back" to assess any mootness. Kensington Physical Therapy, Inc. v. Jackson Therapy Partners, LLC, 880 F.Supp.2d 689, 694 (D. Md. 2012) (following the rationale of Weiss v. Regal Collections, 385 F.3d 337, 348 (3d Cir. 2004)). And in Campbell-Ewald, the Court observed that the plaintiff had not moved for class certification before the lower court rejected the defendant's argument that his unaccepted Rule 68 offer mooted the class claims because it came before a class certification motion. Campbell-Ewald Co., 136 S.Ct. at 668. There is no indication in Campbell-Ewald that the district court was in error to reject the defendant's mootness arguments without a class certification motion before it; indeed, the Court ultimately sided with the district court's ruling that the unaccepted Rule 68 offer did not moot the plaintiff's individual and class action claims. See Id. at 671-72.

         Moreover, several district courts have not exactly welcomed Rule 23 "placeholder" certification motions filed with a plaintiff's pleadings. In Jay Clogg Realty Group, Inc. v. Burger King Corp., for example, the plaintiff alleged that the defendant transmitted unsolicited faxes by telephone facsimile machine to class members without consent and filed the complaint and the motion for class certification concurrently to prevent being picked off under Rule 68. 298 F.R.D. 304, 305 (D. Md. 2014). The court denied the plaintiff's motion for certification without prejudice until the plaintiff obtained sufficient discovery "to prevent a prolonged, unresolved motion pending on [the] docket." Id. In Dickerson v. Lab. Corp. of Am., the plaintiff simultaneously filed a Rule 23 motion for class certification along with its complaint alleging a class of persons who had allegedly received unsolicited automatic telephone dialing system calls and prerecorded messages for debt collection. No. 8:14-cv-1390-T-30TBM, 2014 U.S. Dist. LEXIS 100323 (M.D. Fla. July 23, 2014). The Court denied the motion for certification as premature, stating:

[T]here is precious little reason to believe that the two-step dance [Plaintiff] proposes here (file a generic Rule 23 Motion at the outset of the case, then stay it for many months until class discovery concludes and comprehensive briefs are prepared) is grounded in any justifiable fear that the entire class action may be ripped away from her absent such a preventive measure. . . .
Plaintiff's strategy comes with a cost. It burdens the Court with an obviously premature motion that is devoid of content and the motion remains on the Court's docket as pending, which is reflected on the ...

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