Cooper v. Nelnet, Inc.

Filing 52

ORDER: Consideration of Plaintiff's Motion for Class Certification (Doc. 6) is STAYED. The Court will take the motion under advisement once it is fully briefed pursuant to the Court's forthcoming Case Management and Scheduling Order. The Clerk is DIRECTED to electronically terminate the motion (Doc. 6) for administrative purposes only. For the purposes of potential mootness, the Court considers the motion pending. Signed by Judge Roy B. Dalton, Jr. on 7/11/2014. (VMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

JAMES DAVID COOPER, JR., on
behalf of himself and all others similarly
situated,
Plaintiff,
v.

Case No. 6:14-cv-314-Orl-37DAB

NELNET, INC.,
Defendant.
ORDER
This cause is before the Court on its own motion upon review of Plaintiff’s Motion
for Class Certification (Doc. 6), filed just after the Complaint (Doc. 1).
The Court is aware of a split of authority regarding whether a defendant’s attempt
to “buy off” a class representative—by offering to fully settle his claim before the filing of
a class certification motion—moots the controversy. Compare Weiss v. Regal Collections,
385 F.3d 337, 348 (3d Cir. 2004) (holding that relation back doctrine prevents an offer of
judgment made prior to the filing of a motion for class certification from mooting a
controversy), Sandoz v. Cingular Wireless LLC, 553 F.3d 913, 920–21 (5th Cir. 2008)
(same), Pitts v. Terrible Herbst, Inc., 653 F.3d 1081, 1092 & n.3 (9th Cir. 2011) (same),
Lucero v. Bureau of Collection Recovery, Inc., 639 F.3d 1239, 1249 (10th Cir. 2011)
(same), and Sampaio v. People First Recoveries, LLC, No. 07-22436-Civ., 2008 WL
509255, at *1 (S.D. Fla. Feb. 19, 2008) (Ungaro, J.) (same), with Damasco v. Clearwire
Corp., 662 F.3d 891, 896 (7th Cir. 2011) (holding that an offer to fully settle the

representative’s claim prior to the filing of a class certification motion moots the
controversy, and noting that representatives may circumvent the buy-off problem by filing
the motion alongside the complaint), and Keim v. ADF MidAtlantic, LLC, No. 12-80577CIV, 2013 WL 3717737, at *4–5 (S.D. Fla. July 15, 2013) (Marra, J.) (same). 1 See
generally Deposit Guar. Nat’l Bank v. Roper, 445 U.S. 326, 332, 339, 340 n.12 (1980);
Sosna v. Iowa, 419 U.S. 393, 402 & n.11 (1975).
Given the unsettled state of the law, representative plaintiffs have begun filing
placeholder motions for class certification along with their complaints. (See, e.g., Doc. 6.)
Because the U.S. Court of Appeals for the Eleventh Circuit has not yet weighed in on this
issue, the Court will not deny without prejudice the instant motion—even though it is
arguably premature—in order to avoid any potential mootness concerns. Instead, the
Court will stay the disposition of the motion until it is fully briefed and the Court has a
reasonable chance to consider the appropriateness of class certification. See Sosna,
419 U.S. at 402 n.11.
Accordingly, it is hereby ORDERED AND ADJUDGED:
1.

The consideration of Plaintiff’s Motion for Class Certification (Doc. 6) is
STAYED. The Court will take the motion under advisement once it is fully
briefed pursuant to the Court’s forthcoming Case Management and
Scheduling Order.

2.

The Clerk is DIRECTED to electronically terminate the motion (Doc. 6) for
administrative purposes only. For the purposes of potential mootness, the

1

Cf. Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523, 1528–29 (2013)
(examining a similar issue in the FLSA collective action context where the representative
conceded mootness, but noting such actions’ distinguishability from Rule 23 classes).

2

Court considers the motion pending.
DONE AND ORDERED in Chambers in Orlando, Florida, on July 11, 2014.

Copies:
Counsel of Record

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