CALIFORNIA CLASS ACTION LAW

Category: Offer of Judgment

Central District Holds in a “Pick-Off” Case That an Unaccepted Rule 68 Offer of Judgment Cannot Moot Plaintiff’s Claims or Class Claims

In the Navy

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Judge Dolly M. Gee of the Central District of California held that a Rule 68 offer that was not accepted by a lead plaintiff cannot moot either plaintiff’s claim or the putative class claim.  Gomez v. Campbell-Ewald Company, 2011 WL 3664354, No. CV 10-2007 (C.D. Cal. Apr. 6, 2011).

Background

Plaintiff filed a class action complaint alleging violation of the Telephone Consumer Protection Act alleging that 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. Id. *1. Plaintiff received several text messages regarding pursuing a career in the Navy and did not consent to receiving such text messages from the Defendant. Id. Plaintiff sought damages, treble damages, injunctive relief, and attorneys’ fees and costs. Id.  Plaintiff also sought to certify a nationwide class of “all persons in the United States and its Territories who received one or more unauthorized text message advertisements from Defendant.” Id.

The Parties’ Stipulation

The parties stipulated that they agreed that the deadline for Plaintiff to file his motion for class certification would be extended until after the Defendant answered or otherwise responded to the complaint and conducted pre-certification discovery. Id. Defendant agreed that not waiting would be inefficient. Id. The Court approved the stipulation and extended the deadline until after all parties answered and a proposed discovery schedule was set forth to the Court. Id. *2. Read the rest of this entry »

Ninth Circuit Affirms Dismissal of Individual Claims Where Plaintiff Received an Offer of Judgment for More Than Amount He Was Entitled to Recover

special offer
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The United States Court of Appeals for the Ninth Circuit affirmed a dismissal of individual claims in a class action for lack of subject matter jurisdiction, were the named plaintiff received an offer of judgment for more than he was entitled to recover.  Marschall v. Recovery Solution Specialists, Inc., No. 08-55247, 2010 WL 3937992 (9th Cir. Oct. 5, 2010) (slip op.).

Plaintiff Carl N. Marschall appealed pro se from a district court’s judgment dismissing his action brought under the federal Fair Debt Collection Practices Act (“FDCPA”) and the California Fair Debt Collection Practices Act (“Rosenthal Act”).  Id. *1.  Reviewing de novo, the Ninth Circuit found that the district court properly dismissed Marschall’s individual claims against Recovery Solution Specialists, Inc. (“RSS”) for lack of subject matter jurisdiction because RSS’s offer of judgment was for more than Marschall was legally entitled to recover. Id. (citing 15 U.S.C. § 1692k(a); Cal. Civ. Code §§ 1788.17 and 1788.30(b); Chang v. United States, 327 F.3d 911, 919 (9th Cir.2003) (case is moot where there remains “no effective relief … for the court to provide”)).

The Ninth Circuit also affirmed dismissal of the class claims against RSS because Marschall had a “reasonable opportunity to file a motion for class certification but failed to do so.” Id. (citing C.D. Cal. R. 23-3; Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) (per curiam) (“Only in rare cases will we question the exercise of discretion in connection with the application of local rules.”)). Read the rest of this entry »

Northern District Rejects Collateral Estoppel, Finding Sufficient Difference in Allegedly Misleading Statements

Electrolux washing machine
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The Northern District denied a motion to strike class allegations from a putative class action complaint, finding sufficient difference between the allegedly deceptive statements in the prior case and the present case to reject defendant’s collateral estoppel contentions.  Murray v. Sears, Roebuck and Co., No. 09-05744 CW, 2010 WL 3490214 (N.D. Cal. Sept. 3, 2010) (slip op.). Read the rest of this entry »

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