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 automated telephone calls to his cellular telephone, in violation of the Telephone Consumer Protection Act. Taking a cue from a recent Supreme Court case, Campbell–Ewald Co. v. Gomez, ––– U.S. ––––, 136 S.Ct. 663, 193 L.Ed.2d 571 (2016) (“Campbell–Ewald ”), on appeal Allstate deposited $20,000 in full settlement of Pacleb’s individual monetary claims in an escrow account “pending entry of a final District Court order or judgment directing the escrow agent to pay the tendered funds to Pacleb, requiring Allstate to stop sending non-emergency telephone calls and short message service messages to Pacleb in the future and dismissing this action as moot.” On the basis of these actions, Allstate argues we should “reverse the denial of Allstate’s motion to dismiss for lack of subject matter jurisdiction and remand to the District Court to order disbursement of the tendered funds to Pacleb, the entry of judgment in favor of Pacleb and the dismissal of this action as moot.” We disagree. First, even if the district court entered judgment affording Pacleb complete relief on his individual claims for damages and injunctive relief, mooting those claims, Pacleb would still be able to seek class certification under Pitts v. Terrible Herbst, Inc., 653 F.3d 1081 (9th Cir.2011). Although Allstate argues Pitts is no longer good law after Genesis Healthcare Corp. v. Symczyk, ––– U.S. ––––, 133 S.Ct. 1523, 185 L.Ed.2d 636 (2013), we rejected that very argument in Gomez v. Campbell–Ewald Co., 768 F.3d 871 (9th Cir.2014) (“Gomez ”), aff’d, ––– U.S. ––––, 136 S.Ct. 663, 193 L.Ed.2d 571 (2016). Pitts therefore remains the law of this circuit. Second, even if Pitts were not binding, and Allstate could moot the entire action by mooting Pacleb’s individual claims for damages and injunctive relief, those individual claims are not now moot, and we will not direct the district court to moot them by entering judgment on them before Pacleb has had a fair opportunity to move for class certification. Under Supreme Court and Ninth Circuit case law, a claim becomes moot when a plaintiff actually receives complete relief on that claim, not merely when that relief is offered or tendered. Where, as here, injunctive relief has been offered, and funds have been deposited in an escrow account, relief has been offered, but it has not been received. Pacleb’s individual claims, therefore, are not now moot. Nor will we direct the district court to moot them. Assuming arguendo a district court could enter a judgment according complete relief on a plaintiff’s individual claims over the plaintiff’s objections, thereby mooting those claims, such action is not appropriate here. As the Supreme Court said in Campbell–Ewald, 136 S.Ct. at 672, “[w]hile a class lacks independent status until certified, see Sosna v. Iowa, 419 U.S. 393, 399, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975), a would-be class representative with a live claim of her own must be accorded a fair opportunity to show that certification is warranted.” Because Pacleb has not yet had a fair opportunity to move for class certification, we will not direct the district court to enter judgment, over Pacleb’s objections, on his individual claims. For the above reasons, we affirm the order denying Allstate’s motion to dismiss for lack of subject matter jurisdiction.