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Boger v. Trinity Heating & Air, Inc.

United States District Court, D. Maryland

November 16, 2018

DAN BOGER, On Behalf of Himself and Others Similarly Situated, Plaintiff,
v.
TRINITY HEATING & AIR, INC., d/b/a Trinity Solar, and MEDIA MIX 365, LLC, Defendants.

          MEMORANDUM OPINION

          THEODORE D. CHUANG, UNITED STATES DISTRICT JUDGE

         Plaintiff Dan Boger has brought this putative class action against Defendants Trinity Heating & Air, Inc. ("Trinity") and Media Mix 365, LLC ("Media Mix"), alleging violations of the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227 (2012), and the Maryland Telephone Consumer Protection Act ("MTCPA"), Md. Code Ann., Com. Law §§ 14-3201 to 3202 (2013). Boger alleges that Defendants violated these laws by using an automatic telephone dialing system ("ATDS") to call his cellular telephone without his consent. Pending before the Court is Trinity's Motion to Deposit Check, Enter Judgment in Plaintiffs Favor, and Dismiss the Putative Class Action Case as Moot, as well as Media Mix's Motion for Joinder in Trinity's Motion. Having reviewed the submitted materials, the Court finds that no hearing is necessary. See D. Md. Local R. 105.6. For the reasons set forth below, Trinity's Motion is DENIED, and Media Mix's Motion is GRANTED IN PART AND DENIED IN PART.

         BACKGROUND

         Trinity, a company that installs solar power systems, uses telemarketing to reach new customers. To that end, Trinity hired Media Mix to conduct a telemarketing campaign on its behalf. As part of this campaign, Media Mix used an ATDS, which places calls automatically, then transfers them to live operators only when the calls are answered. Media Mix called Boger, allegedly on behalf of Trinity, at least three times using an ATDS without his consent between January 2017 and May 2017. Additional factual background relating to these calls is set forth in the Court's April 18, 2018 Memorandum Opinion in this case. Boger v. Trinity Heating & Air, Inc., No. TDC-17-1729, 2018 WL 1851146, at *1 (D. Md. Apr. 18, 2018..

         Boger filed this putative class action on behalf of the thousands of persons who, he alleges, have received similar ATDS-initiated calls without their consent from Defendants over the past four years. Defendants both filed Motions to Dismiss Boger's MTCPA claims, which the Court denied. Two days after the Court issued its ruling on those motions, Trinity transmitted an offer of judgment to Boger pursuant to Federal Rule of Civil Procedure 68 and requested a court order authorizing deposit of a $6, 000 cashier's check into the Court's registry for transmittal to Boger. Boger rejected Trinity's offer of judgment and objected to Trinity's request to deposit funds in the Court's registry. Trinity then filed its Motion seeking entry of judgment in favor of Boger and dismissal of the case. Although the Court declined to accept the check into its accounts because of processing difficulties, it agreed to deem the check received for purposes of the resolution of the Motion.

         DISCUSSION

         In its Motion, Trinity argues that by consenting to entry of judgment in Boger's favor for the full relief requested in the Complaint and by depositing with the Court, for transmittal to Boger, sufficient funds to cover the judgment, Trinity has tendered to Boger complete relief, extinguished his individual claim, and deprived the Court of subject matter jurisdiction over the claims of the putative class. Trinity's argument rests upon its interpretation of Campbell-Ewald Co. v. Gomez, 136 S.Ct. 663 (2016), in which the United States Supreme Court held that an unaccepted offer of judgment in the full amount sought by the individual plaintiff in a class action case does not moot the case, but left open the question whether the result would be different if a defendant deposits the full amount of a plaintiff § individual claim into an account payable to the plaintiff and the court then enters judgment for the plaintiff in that amount. Id. at 672. Trinity asserts that where it has now invoked and executed on this hypothetical scenario referenced in Campbell-Ewald, judgment should be entered in favor of Boger, and the class action should be dismissed as moot.

         Article III of the Constitution limits the judicial power of the federal courts to actual "Cases" and "Controversies." U.S. Const. art. III, § 2, cl. 1. "When a case or controversy ceases to exist, the litigation is moot, and the court's subject matter jurisdiction ceases to exist also." S.C Coastal Conservation League v. U.S. Army Corps of Eng'rs, 789 F.3d 475, 482 (4th Cir. 2015). A "case 'becomes moot only when it is impossible for a court to grant any effectual relief whatever to the prevailing party.'" Chafin v. Chafin, 133 S.Ct. 1017, 1023 (2013) (quoting Knox v. Servo Emps., 132 S.Ct. 2277, 2287 (2012)).

         Determining whether Trinity's actions necessitate the entry of judgment in favor of Boger and dismissal of the case as moot requires a closer examination of the Supreme Court's decision in Campbell-Ewald. Much like in the present case, the plaintiff in Campbell-Ewald, Jose Gomez, filed suit against the Campbell-Ewald Company ("Campbel--Ewald") for a violation of the TCPA and sought to represent a class of over 100, 000 individuals who had received text messages without their consent. Campbell-Ewald, 136 S.Ct. at 667. Before the deadline for Gomez to file a motion for class certification had passed, Campbell-Ewald proposed to settle Gomez's individual claim for the maximum amount of statutory damages and an injunction against further violations of the TCPA. Id. at 667-68. Gomez declined the offer. Id. at 668. Campbell-Ewald also filed an offer of judgment pursuant to Federal Rule of Civil Procedure 68, which Gomez rejected and allowed to lapse after the 14-day period specified in the rule. Id. Campbell-Ewald then moved to dismiss the case for lack of subject matter jurisdiction, claiming that its offer of judgment, though rejected, mooted Gomez's individual claim and thereby mooted the entire class action. Id. The Supreme Court held that, under basic principles of contract law, the unaccepted offer of judgment was a "legal nullity" and did not operate to moot Gomez's individual claim. Id. at 670. The Court grounded its holding in the principles that "a would-be class representative with a live claim of her own must be accorded a fair opportunity to show that certification is warranted," and that a defendant should not be empowered to pick-off a class action plaintiff to "avoid a potential adverse decision . . . that could expose it to damages a thousand-fold larger than the bid Gomez declined to accept." Id. at 672.

         The Supreme Court, however, left open the question whether it would have reached a different result if the defendant had deposited the full amount of the plaintiffs individual claim in an account payable to the plaintiff, and the court had then entered judgment for the plaintiff in that amount. Id. ("That question is appropriately reserved for a case in which it is not hypothetical"). Trinity argues that the Supreme Court's explicit reservation of this hypothetical scenario for future resolution necessarily means that the Court would rule that such actions would render a class action moot.

         Since Campbell-Ewald, the United States Court of Appeals for the Fourth Circuit, in an unpublished opinion, has applied that holding to find that an offer of settlement that included the tendering of a check for the full amount sought by the plaintiff still did not moot the case. See Bennett v. Office of Fed. Employee's Group Life Ins., 683 Fed.Appx. 186, 188 (4th Cir. 2017). But as of the date of this opinion, no Fourth Circuit published opinion has addressed Campbell-Ewald's open question. Several other circuits, however, have considered and rejected the argument offered here by Trinity.

         In Chen v. Allstate Insurance Company, 819 F.3d 1136 (9th Cir. 2016), the United States Court of Appeals for the Ninth Circuit rejected a defendant's effort to moot a class action plaintiffs claim by depositing a check for complete relief in an escrow account for the plaintiff and requesting an order directing the escrow agent to pay the tendered funds to the plaintiff and entering final judgment for the plaintiff. Id. at 1141, 1148. Citing a pvz-Campbel--Ewald case, Pitts v. Terrible Herbst, Inc., 653 F.3d 1081 (9th Cir. 2011), the court concluded that because a named plaintiffs claim is "inherently transitory" and "evades review" when a defendant engages in the tactic of "picking off the lead plaintiff to avoid a class action, an exception to the mootness rule is appropriate if the plaintiff can still file a timely motion for class certification. Chen, 819 F.3d at 1142-43 (citing Pitts, 653 F.3d at 1091-92). Upon consideration of Campbell-Ewald, the court found additional grounds to find that the tendering of the full amount of the judgment sought does not mandate entry of judgment and dismissal of a class action as moot. Noting that the Campbell-Ewald Court stated that "a would-be class representative with a live claim of her own must be accorded a fair opportunity to show that certification is warranted," Campbell-Ewald, 136 S.Ct. at 672, the court reasoned that a named plaintiff could reasonably reject an offer of judgment purportedly providing complete individual relief because such an offer would not actually provide another form of relief sought by the named plaintiff: the opportunity to represent the class and seek relief on its behalf. See Chen, 819 F.3d at 1147. "A named plaintiff acts sensibly by pursuing all of the relief sought in the complaint, and 'a judgment satisfying an individual claim does not give a [named] plaintiff. . . exercising her right to sue on behalf of others all that was "requested in the complaint (i.e., relief for the class).'" Id. (quoting Genesis Healthcare Corporation v. Symczyk, 569 U.S. 66, 85 (2013) (Kagan, J., dissenting)). The court therefore held that even when a defendant consents to judgment affording the monetary and injunctive relief sought by the named plaintiff, a court "should not enter judgment on the individual claims, over the plaintiffs objection, before the plaintiff had had a fair opportunity to move for class certification." Chen, 819 F.3d at 1147.

         Likewise, the United States Court of Appeals for the Seventh Circuit has rejected Trinity's position under strikingly similar facts to those in the present case. In Fulton Dental v. Bisco, Inc., 860 F.3d 541 (7th Cir. 2017), the defendant in a TCPA class action case deposited the maximum amount of statutory damages in the court's registry Under Federal Rule of Civil Procedure 67 and argued that the district court should enter judgment in Fulton's favor and dismiss the case as moot. Id. at 542-43. The court identified two primary bases for declining to find that the deposit of funds required dismissal.

         First, the court noted that depositing funds with the court pursuant to Rule 67 is typically for the purpose of relieving a party of the responsibility of holding contested funds and does not constitute a determination of the ownership of the funds. Id. at 545. Thus, such a deposit is not the equivalent of depositing funds in "an account payable to the plaintiff," the condition described in the Campbell-Ewald hypothetica. Id. (quoting Campbell-Ewald, 136 S.Ct. at 672). Accordingly, the court concluded that "we see no principled distinction between attempting to force a settlement on an unwilling ...


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