United States District Court, W.D. Pennsylvania, Pittsburgh.
MILLER'S FURNITURE OF MERCER COMPANY, A PENNSYLVANIA CORPORATION, INDIVIDUALLY AND AS THE REPRESENTATIVE OF A CLASS OF SIMILARLY-SITUATED PERSONS; Plaintiff,
BANNER LIFE INSURANCE COMPANY, WILLIAM PENN LIFE INSURANCE COMPANY OF NEW YORK, DJM ADVISORY GROUP, LLC, DONALD QUIRKE, JOHN DOES 1-12, Defendants. ECF 2, 26
PUPO LENIHAN United States Magistrate Judge
with the filing of the Class Action Complaint in this matter,
Plaintiff has filed a Motion for Class Certification. ECF No.
2. DJM Defendants filed a Response in Opposition on May 22,
2017, arguing that the Motion was premature. ECF No. 18. On
May 31, 2017 the undersigned held a status conference to
discuss the Motion to Stay, Transfer or Dismiss. ECF No. 16.
During this conference the Court asked Plaintiffs counsel to
withdraw his Motion for Class Certification as it was
premature. Counsel advised that he was protecting his class
representatives from being "picked off by Defendants. He
asked Defense counsel if he would agree not to do this.
9, 2017 Plaintiff filed a Motion to Postpone Briefing on
Class Certification. ECF No. 26. In said motion Plaintiff
again asserted that the motion was filed to protect the
class. Plaintiffs relied on Gomez v. Campbell-Ewald
Co., 136 S.Ct. 663 (2016). In that case the defendants
filed an offer of judgment pursuant to Federal Rule of Civil
Procedure 68, offering to pay the proposed class
representative his costs, excluding attorney's fees and
all damages due and owing under the Telephone Consumer
Protection Act, 47 U.S.C. § 227 under which the case was
filed. Gomez did not accept the offer and allowed the Rule 68
submission to lapse. Defendants argued that the Rule 68 offer
rendered Gomez's individual claim moot, and because he
had not previously moved for class certification, the
putative class claim was also moot. The Supreme Court granted
certiorari to resolve a dispute among the circuits as to
whether an unaccepted Rule 68 offer can moot a plaintiffs
claim. The Court adopted Justice Kagan's analysis in her
dissent in Genesis Healthcare Corp. v. Symczyk, 133
S.Ct. 1523 (2013), and held that "Gomez's complaint
was not effaced by Campbell's unaccepted offer to satisfy
his individual claim." 136 S.Ct.at 665.
Gomez decision noted that its ruling that an
unaccepted settlement offer of judgment does not moot a
plaintiff s case was sufficient to the issue before it, and
it therefore need not decide the "hypothetical
question" of whether a different result would obtain if
"a defendant deposits the full amount of the plaintiffs
individual claim in an account payable to plaintiff, and the
court then enters judgment for the plaintiff in that
amount." Id. at 672. The Plaintiff herein
relies on this distinction for its early Motion for Class
Certification. The Court of Appeals for the Seventh Circuit
has, however, recently held that a putative class action over
unauthorized faxes cannot be mooted by the deposit of an
unaccepted settlement offer with the Court, finding "no
principled distinction" between such Rule 67
circumstances and those found insufficient to moot an action
under the Supreme Court's decision in Gomez. Fulton
Dental, LLC v. Bisco, Inc., 16-CV-3574 (7th
Cir., June 20, 2017). Accordingly, the Court finds that
Plaintiff is being overly cautious and the Motion for Class
Certification is premature.
Third Circuit, in Richardson v. Bledsoe, 829 F.3d
273 (3rd Cir. 2016) provided an excellent overview of the
progression of the law regarding "picking off class
members prior to class certification. It expressly observed
the problematic nature of plaintiffs in putative class
actions across the country filing "premature"
motions for class certification, stating: "[t]hese
placeholder motions 'come with a cost, ' as they
burden 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 Court's
reports for an unspecified period of time."
Richardson, 829 F.3d at 284 (citing Church v.
Accretive Health, Inc., 299 F.R.D. 676, 679). The Court
of Appeals specifically directed that its ruling was meant to
discourage premature motions (such as the one filed here)
because a plaintiff is not at risk of having his claim mooted
while the factual development of a class claim is taking
place. Id. This observation is appropriately raised
by Defendants herein.
reasons set forth above, the Court finds that the Motion for
Class Certification is premature and should be denied without
prejudice to refile at the appropriate juncture in the case.
Therefore, this 23rd day of June, 2017
HEREBY ORDERED that the Motion for Class Certification, ECF
No. 2. is DENIED WITHOUT PREJUDICE;
FURTHER ORDERED that the Motion to Postpone Briefing on Class
Certification, ECF No. 26, is DENIED as moot;
FURTHER ORDERED that, in accordance with the Magistrate
Judges Act, 28 U.S.C. § 636(b)(1)(A), Federal Rule of
Civil Procedure 72(a), and Local Civil Rule 72.C.2., the
parties are allowed fourteen (14) days after the date of
service of this Order to file objections to the
determinations made herein, which shall specifically
designate the parts of the order objected to and the basis
for the objection. Any party opposing the objections shall
have fourteen (14) days from the date ...