In Scott v. Westlake Services, LLC, — F.Supp.2d —-, 2013 WL 2468253 (N.D.Ill. 2013), Judge Castillo dismissed a TCPA class action as moot due to a full-relief settlement offer made before a class certification motion was filed. The facts were as follows:
Westlake is a California business entity head-quartered in Los Angeles. (R. 6, Am.Compl.¶ 6.) Scott is a resident of Chicago, Illinois and has never had a business relationship with Westlake nor given Westlake permission to contact her on her cellular telephone. (Id. ¶¶ 4–5.) Beginning in or around October 2012, Westlake placed automated calls to Scott’s cellular telephone using an automatic telephone dialing system (“ATDS”). (Id. ¶ 10) (R. 19–1, Def.’s Mem., Ex. A, Settlement E-mail). Scott alleges that Westlake placed a total of 20 such calls: with seven calls made on or about November 10, 2012; nine calls made on or about November 12, 2012; and four calls made on or about November 16, 2012. (R. 6, Am.Compl.¶¶ 12–14, 16.) Therefore, Scott alleges that Westlake violated Section 227(b)(1)(A) of the TCPA by negligently, knowingly, or willfully placing these automated calls to her cellular telephone without her prior express consent as required by the Act.FN1 (Id . ¶¶ 1, 19.) ¶ . . . On February 5, 2013, after Scott commenced this cause of action, Westlake e-mailed her a settlement offer, which provided that Westlake would pay Scott “the sum of $1,500 for each and every dialer-generated telephone call made to” her. (R. 19–1, Def.’s Mem ., Ex. A, Settlement E-mail.) Westlake also offered to pay Scott “all costs which she would recover if she were to prevail in the lawsuit, including the cost of any filing fee and any service fees which would be taxable as costs.” (Id.) In addition, Westlake agreed to an injunction prohibiting itself from making any future calls to Scott without her prior express consent. (Id.) ¶ Westlake further stated that its records reflected a total of six dialer-generated calls made to Scott’s cellular telephone during the alleged time period, but it offered to discuss the exact number of calls with Scott and her counsel in order to resolve any discrepancies over the number of dialer-generated calls actually made. (Id.) (“[Westlake’s] records, however, reflect that all of the calls made on [November 10, 12, and 16, 2012] were manually dialed and, further, that there were a total of only six dialer generated calls. If you would care to share with me the basis for your belief that the November 10, 12, and 16 calls were dialer generated, perhaps we can resolve this discrepancy.”) (emphasis supplied). On February 6, 2013, Scott rejected Westlake’s offer and moved this Court to certify a class. (R. 14, Pl.’ s Mot. Class Certification; R. 19–2, Def.’s Mem., Ex. B, Rejection E-mail.) ¶ On February 13, 2013, Westlake moved to dis-miss this case pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, arguing that Scott’s claims are moot, thereby divesting this Court of subject-matter jurisdiction over them. (R. 18, Def.’s Mot.; R. 19, Def.’s Mem. at 3.)
The District Court dismissed the case on mootness grounds:
In the context of putative class actions, such as the one now before the Court, the Seventh Circuit has made it clear that when a defendant makes a complete offer of relief to the plaintiff class representative before the plaintiff class representative moves for class certification, the plaintiff class representative’s individual claim is mooted. Holstein, 29 F.3d at 1147. As one court in this District recently observed, the rule in the Seventh Circuit is that “an offer’s effect depends on its timing: offers received before a motion for class certification is filed moot the case, but offers received after the motion has been filed do not.” White v. Humana Health Plan, Inc., No. 06 C 5549, 2007 WL 1297130, at *6 (N.D.Ill. May 2, 2007) (Leinenweber, J.) (citing Greisz, 176 F.3d at 1015; Holstein, 29 F.3d at 1147); see also Radha Geismann, M.D., P.C. v. Allscript Healthcare Solutions, Inc., 764 F.Supp.2d 957, 959–60 (N.D.Ill.2011) (Keys, Mag. J.) (“[I]n the class action context the impact of the offer turns on its timing. Typically, if the full-relief offer comes before the plaintiff moves for class certification, the offer eliminates the controversy, and the suit becomes moot.”) (citing White, 2007 WL 1297130, at *6; Holstein, 29 F.3d at 1147) (in-ternal citations and quotation marks omitted); Wiskur v. Short Term Loans LLC, 94 F.Supp.2d 937, 939 (N.D.Ill.2000) (Gettelman, J.) (“An offer of settlement (or judgment) greater than the named plaintiff’s claim that comes before a motion for class certification is the equivalent of a default judgment against the defend-ant, and eliminates the legal dispute upon which federal jurisdiction can be based.”) (citing Greisz, 176 F.3d at 1015; Holstein, 29 F.3d at 1147). ¶ . . . Scott claims that Westlake used an ATDS to call her cellular telephone without her prior express consent in violation of Section 227(b)(1)(A) of the TCPA, and she specifically alleges that 20 such telephone calls were made between November 12 and November 16, 2012. (R. 6, Am.Compl.¶¶ 12–19.) Westlake contends that its February 5, 2013 e-mail, which was transmitted to Scott before she moved for class certification, was an unconditional offer to pay Scott $1,500 for “each and every” automated call made to Scott’s cellular telephone in violation of the Act during the alleged time period, the maximum statutory penalty, and therefore that its offer was one of full relief which stripped Scott of her personal stake in this matter, rendering her claims moot and subject to mandatory dismissal pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of subject-matter jurisdiction. (R. 19, Def.’s Mem. at 4–5; R. 19–1, Def.’s Mem., Ex. A, Settlement E-mail.) ¶ . . .Westlake agreed to Scott’s demand for injunctive relief, offered to pay her all of the costs and fees that she could recover were she to prevail at trial, and offered her the full relief possible for “each and every” call which Westlake made in violation of the TCPA and for which Scott could recover statutory damages pursuant to Sections 227(b)(3)(B) & (C) of the Act. (R. 19–1, Def.’s Mem., Ex. A, Settlement E-mail.) Thus, Westlake’s offer provides Scott with everything she prays for in her complaint. (R. 6, Am.Compl.¶ 7.) Westlake’s offer effectively makes Scott whole, and she may not “spurn” the offer and continue to litigate this action when her claims have been fully satisfied. See Holstein, 29 F.3d at 1147; Gates II, 623 F.3d at 413; Damasco, 662 F.3d at 895. As noted earlier, Judge Easterbrook stated in Monsanto that “[o]nce the defendant offers to satisfy the plaintiff’s entire demand, there is no dispute over which to litigate, and a plaintiff who refuses to acknowledge this loses outright, under Fed.R.Civ.P. 12(b)(1), because [s]he has no remaining stake.” Monsanto, 926 F.2d at 598 (citing Alliance to End Repression, 820 F.2d at 878) (internal citations omitted). The Court therefore finds that Westlake’s offer satisfied Scott’s entire demand, and was thus an offer of full relief, and rejects Scott’s contention that Westlake’s offer was incomplete because it listed only six dialer-generated calls. See Damasco, 2010 WL 3522950, at *3. ¶ There is no longer a “live” dispute in this case over which the Court can rule. See id. Because Westlake made a complete offer of relief to Scott before she moved for class certification, the Court finds that Scott’s personal interest in both of her claims under the TCPA was eliminated, and that she lacks “a legally cognizable interest in the outcome” of the case, thereby mooting her claims and divesting this Court of subject-matter jurisdiction over them. See Powell, 395 U.S. at 496; Holstein, 29 F.3d at 1147; Greisz, 176 F.3d at 1041; Primax Recoveries, 324 F.3d at 546–47; Gates II, 623 F.3d at 413; Damasco, 662 F.3d at 896. Furthermore, Scott’s claims do “not lend themselves to any exception to the general rule” that a plaintiff’s claims are mooted by a defendant’s offer of full relief before a motion for class certification is filed. See Gates II, 623 F.3d at 413. As in Holstein, this Court is unaware of the strategy that Scott is attempting to employ by rejecting Westlake’s offer of complete relief, but in the words of Judge Williams, her “refusal of the relief [s]he initially sought suggests an attempt to use the judicial system in a manner in which it was not intended to be employed.” 803 F.Supp. at 209. This Court will not tolerate any pursuit by Scott to manipulate the judicial system by continuing to litigate her cause of action after it has become moot. Because Westlake’s offer to Scott is one of complete relief, she is essentially victorious in her suit, and, as Judge Posner would admonish her: “You cannot persist in suing after you’ve won.” Greisz, 176 F.3d at 1015. Because the Court finds that Scott’s claims are moot, it lacks subject-matter jurisdiction over them, and accordingly they must be dismissed pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure.