Bennett v. GoDaddy.com, LLC
ORDER denying 7 Motion to Certify Class; denying 8 Motion to Stay. Signed by Magistrate Judge Katherine P. Nelson on 10/13/2016. (srr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
JASON BENNETT, on behalf
of himself and all others similarly
) CIVIL ACTION NO. 16-0291-N
Currently pending before this Court1 is Plaintiff’s Motion for Class
Certification (Doc. 7) and Motion to Stay Reconsideration of Motion for Class
Certification (Doc. 8), both filed on September 15, 2016. For the reasons set
out herein below, Plaintiff’s Motions (Docs. 7 and 8) are Denied.
Under S.D. Ala. GenLR 73(c) and 28 U.S.C. § 636(c), this case has been randomly assigned
to the undersigned United States Magistrate Judge for all purposes, including entry of a
final judgment, as set out in the Notices of Assignment to United States Magistrate Judge
for Trial entered June 22, 2016 and September 22, 2016. (Docs. 4, 11). The Notice of
Assignment informs the parties that they “have the right to have this action reassigned to a
United States District Judge for trial and disposition,” and makes clear that “[a]ny party
may request reassignment by” confidentially emailing the Clerk of Court a “Request for
Reassignment to a United States District Judge.” Inasmuch as no party, to date, has
returned to the Clerk of Court a Request for Reassignment, there presently exists implicit
consent to the undersigned conducting all proceedings in this case. See Chambless v.
Louisiana-Pac. Corp., 481 F.3d 1345, 1350 (11th Cir. 2007) (“[T]he Supreme Court held in
Roell v. Withrow, 538 U.S. 580, 123 S. Ct. 1696, 155 L. Ed. 2d 775 (2003), that consent to a
magistrate judge's jurisdiction can be inferred from a party’s conduct during litigation. Id. at
582, 123 S. Ct. 1696. The Court refused to adopt a bright-line rule requiring express consent,
instead accepting implied consent ‘where ... the litigant or counsel was made aware of the
need for consent and the right to refuse it, and still voluntarily appeared to try the case
before the Magistrate Judge.’ Id. at 589–90, 123 S. Ct. 1696.”).
Plaintiff, individually and on behalf of all other persons similarly
situated, filed his Complaint on June 20, 2016, asserting that Defendant
violated the Telephone Consumer Protection Act (“TCPA”). (Doc. 1). More
specifically, Plaintiff asserts that Defendant used an automatic telephone
dialing system to call Plaintiff on more than five occasions, which were
telemarketing or solicitation calls, made without Plaintiff’s express written
consent or for emergency purposes. (Id. at 3-4). Plaintiff also asserted that
his claim is typical of each Class Member. (Id. at 6).
On September 15, 2016, prior to Defendant filing a responsive pleading
or discovery commencing, Plaintiff filed the subject Motion for Class
Certification (Doc. 7) and Motion to Stay Consideration of Class Certification
(Doc. 8). In the Motion to Stay, Plaintiff requests that “the Court enter the
Motion for Class Certification filed contemporaneously herewith, and then
enter an Order staying any briefing or hearing related to this Motion, and not
to rule on this Motion until such time as the parties have had an adequate
opportunity to conduct discovery and submit appropriate memoranda of law
on the issue of class certification.” (Doc. 8 at 2). In support of his position,
Plaintiff relies on a Seventh Circuit decision which stands for the proposition
that “[c]lass claims may, arguably be rendered moot if a Defendant makes an
individual settlement offer before a Plaintiff has moved to certify a class.” (Id.
citing Damasco v. Clearwire Corp., 662 F.3d 891, 895-95 (7th Cir. 2011) (“[A]
plaintiff cannot avoid mootness by moving for class certification after
receiving an offer of full relief.”).
In accordance with this Court’s previous opinion on this issue in
Church v. Accretive Health, Inc., 299 F.R.D. 676, 678 (S.D. Ala. 2014), the
undersigned, does not find Plaintiff’s argument persuasive. First, the case on
which Plaintiff relies has now been overruled. See Chapman v. First Index,
Inc., 796 F.3d 783, 786 (7th Cir. 2015)(holding offer of full compensation does
not moot litigation). Second, this Court has previously opined, in a similar
situation, that Plaintiff’s Motion for Class Certification is nothing more than
“a mere placeholder, an empty vessel into which plaintiff might pour
substance and content (assuming the evidence gathered in discovery supports
it) many months from now after appropriate class discovery has taken place.”
Church, 299 F.R.D at 677. The granting of such a “placeholder” motion
would only burden the Court resulting in “administrative costs”, and
“inefficiency and waste”, when the currently filed Rule 23 Motion “may prove
unnecessary because plaintiff may think better of pursuing such a motion
based on the results of discovery.” Id. Lastly, the Eleventh Circuit and the
Supreme Court have both recently held that that an unaccepted offer of
judgment does not moot a class action. See Stein v. Buccaneers Ltd. P'ship,
772 F.3d 698, 702 (11th Cir. 2014); Campbell-Ewald Co. v. Gomez, 136 S. Ct.
663, 670 (2016), as revised (Feb. 9, 2016). As a result, there is no need to
proceed in this action in the manner that Plaintiff has requested. Therefore,
Plaintiff’s Motion to Stay Consideration for Class Certification (Doc. 8) is
DENIED. Further, because the Motion to Stay is denied, Plaintiff’s Motion
for Class Certification (Doc. 7) is, likewise, DENIED as premature; however,
plaintiff is authorized to renew such motion at an appropriate time.
DONE and ORDERED this the 13th day of October, 2016.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE
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