In Peters v. Credit Protection Association, 2015 WL 5216709, at *5-6 (S.D.Ohio, 2015), Judge Marbley found that a TCPA Class Action defendant’s Rule 68 offer was inadequate and did not moot the class action anyway. And, Judge Marbley refused to stay the case pending the outcome of the Supreme Court’s case in Campbell-Ewald.
Such is a merits-based argument regarding the type of relief to which Peters is entitled. Just as the Hrivnak Court found with regards to the FDCPA, neither the Sixth Circuit nor the Supreme Court has held that the TCPA does not permit declaratory relief. Accordingly, because the claim for declaratory relief is not so insubstantial that it fails to present a federal controversy, Defendant’s Rule 68 offer did not provide Plaintiff with all the relief he requested, and thus did not deprive the court of subject matter jurisdiction. Defendant argues additionally that Peters lacks standing to pursue declaratory relief, and thus the Rule 68 offer it tendered to Peters encompasses all of the relief he possibly could recover. It is well established that “[i]n the context of a declaratory judgment action, allegations of past injury alone are not sufficient to confer standing. The plaintiff must allege and/or ‘demonstrate actual present harm or a significant possibility of future harm.’ ” Fieger v. Ferry, 471 F.3d 637, 643 (6th Cir. 2006) (citing Peoples Rights Org., Inc. v. City of Columbus, 152 F.3d 522, 527 (6th Cir. 1998); O’Shea v. Littleton, 414 U.S. 488, 495–96, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974); (Golden v. Zwickler, 394 U.S. 103, 109–10, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969)). Defendant avers that Plaintiff alleges only past harm arising from the practices he challenges in his complaint. Further, Defendant points out that its Rule 68 offer included relief enjoining CPA from engaging in any of the alleged unlawful practices Peters alleges in the complaint, and thus that Plaintiff cannot aver that there is a possibility of future harm. Defendant concludes, therefore, that Peters lacks standing to pursue declaratory relief, and the offer of judgment offered all of the relief he can recover, which it argues meets the standard of “complete relief” mandated in O’Brien. Defendant’s argument pursues a new line of reasoning but to the same end—he entreats this Court to decide his merits argument regarding the availability of declaratory judgment under the facts alleged in the complaint in order to determine whether a Rule 68 offer of judgment moots all of his claims. This he cannot do. See Hrivnak, 719 F.3d at 570 (defendants are not permitted to “require the district court to address their other merits arguments in order to determine whether a Rule 68 offer of judgment as to some claims moots all claims”). A recent district court case within this Circuit similarly implemented the rationale in Hrivnak and came to an identical conclusion. See Compressor Eng’g Corp. v. Thomas, No. 10-10059, 2015 WL 730081, at *7 (E.D. Mich. Feb. 19, 2015). The Thomas Court assessed the defendant’s 12(b)(1) motion seeking to moot plaintiff’s TCPA claims based on defendant’s unaccepted Rule 68 offer, which did not include the injunctive relief requested in the complaint. The defendant argued that plaintiff had not shown that he would be subject again to the alleged offending activity and thus that injunctive relief was unavailable, quoting the standard for injunctive relief. Id. at *5. The Thomas Court denied defendant’s motion, concluding that defendant’s request to moot Plaintiff’s claims based on its unaccepted Rule 68 offer, while simultaneously attempting to “have the Court then separately address and assess Plaintiff’s remaining claim[,] is at odds with the Sixth Circuit’s treatment of Hrivnak.” Id. at * 7. The Hrivnak Court clarified that “ample mechanisms exist to force the issue” of whether some of a plaintiff’s claims lack merit, such as a motion to dismiss for failure to state a claim under Fed. R. Civ. P. 12(b)(6), a motion for summary judgment under Fed. R. Civ. P. 56, or a motion for judgment on the pleadings under Fed. R. Civ. P. 12(c). 719 F.3d at 570. This Court will not look to the facts alleged in the complaint and entertain a motion to dismiss for failure to state a claim for a declaratory judgment when such a motion is not before it. Further, as explained supra, Defendant’s unaccepted Rule 68 offer has no force of law—it did not moot Plaintiff’s claims because Defendant’s unaccepted offer was not one of “complete relief” under Hrivnak and O’Brien, and thus this Court has declined to enter judgment pursuant to. Accordingly, it would defy logic to treat Defendant’s offer of injunctive relief as having the force of law, sufficient to render it impossible for Plaintiff to sustain a declaratory judgment claim. The Court declines to follow Defendant down this circular path. In summary, Defendant’s motion to dismiss based on lack of subject matter jurisdiction is DENIED because Defendant’s offer of judgment failed to satisfy Plaintiff’s entire demand as Hrivnak requires. . . . Thus, this Court holds that Defendant’s unaccepted Rule 68 offer made before Plaintiff filed a motion for class certification, even if it had offered complete relief, did not moot the class action claims. Accordingly, Defendant’s Motion to Dismiss for Lack of Jurisdiction is DENIED. (Doc. 36). It follows, that Plaintiff’s Motion to Strike Defendant’s Offer of Judgment is GRANTED. (Doc. 41). In addition, pursuant to this Court’s denial of Defendant’s Motion to Dismiss, this Court’s DENIES Defendant’s Motion for Reconsideration. (Doc. 48). All of Defendant’s arguments in its motion for reconsideration pertain to the unresolved matter of this case’s justiciability. That issue has now been resolved, and this case can proceed unhindered. This Court directs the Magistrate Judge to institute a revised case management schedule in this case that includes a date by which the Plaintiff must file a motion for class certification.