Hornsby v. McDonald's USA, LLC et al

Filing 9

ORDER: Plaintiff's Motion for Class Certification (Dkt. 2) is denied without prejudice as premature. Defendants' Unopposed Joint Motion for Extension of Time to Respond to Plaintiff's Motion for Class Certification (Dkt. 6) is denie d as moot. Defendants' Unopposed Joint Motion for Extension of Time to Respond to the Class Action Complaint (Dkt. 7) is granted to the extent that Defendants shall file their responses to the Complaint on or before October 26, 2014. Signed by Judge James S. Moody, Jr on 10/7/2014. (LN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
SHERYL HORNSBY,
Plaintiff,
v.

Case No: 8:14-cv-2288-T-30TBM

MCDONALD’S USA, LLC and JTS
ENTERPRISES OF TAMPA, LTD,
Defendants.

ORDER
THIS CAUSE comes before the Court upon Plaintiff’s Motion for Class
Certification (Dkt. 2), Defendants’ Unopposed Joint Motion for Extension of Time to
Respond to Plaintiff’s Motion for Class Certification (Dkt. 6), and Defendants’ Unopposed
Joint Motion for Extension of Time to Respond to the Class Action Complaint (Dkt. 7).
Upon consideration, the Court denies the motion to certify class as premature, denies
Defendants’ motion for extension of time to respond to the motion to certify class as moot,
and grants Defendants’ motion for extension of time to respond to the complaint in part.
On September 12, 2014, Plaintiff filed a Class Action Complaint alleging violations
of the Fair Credit Reporting Act (“FCRA”). Plaintiff alleges that Defendant McDonald’s
USA, LLC, and Defendant JTS Enterprises of Tampa, Ltd. are “joint employers” under the
FCRA, due to the “rigorous control McDonald’s exercises over all of its franchises.”
(Dkt. 1). Plaintiffs allege that Defendants violated the FCRA with respect to Plaintiff and
putative class members through their use of undisclosed consumer report information

including, (1) taking adverse employment action without allowing reasonable opportunity
to respond; (2) procuring consumer reports without making proper disclosures; and (3)
obtaining consumer reports without proper authorization.

Plaintiff seeks to recover

statutory damages for a class of persons similarly situated, including punitive damages.
On September 12, 2014, prior to Defendant filing a response to the complaint,
Plaintiff filed a motion to certify class. The motion states that it was filed “at this early
juncture” to avoid Plaintiff “being ‘picked off’ through a Rule 68 offer of judgment or
individual settlement offer” pursuant to Genesis HealthCare Corp. v. Symczyk, -- U.S. --,
133 S. Ct. 1523, 1529, 185 L. Ed. 2d 636 (2013).

In Genesis, the Supreme Court

“assume[d], without deciding” that a petitioners’ Rule 68 offer mooted a respondent’s
individual claim. Id.
On October 3, 2014, Defendants filed an unopposed motion for an extension of time
to respond to the motion for class certification. (Dkt. 6). The unopposed motion quoted
Plaintiff’s motion for class certification, which “respectfully request[ed] that the Court stay
briefing on this Motion and permit Plaintiff to file an amended Motion after time for
additional discovery and investigation.” (Dkt. 2, ¶11).
Plaintiff’s motion for class certification is premature.

It was filed prior to a

response from Defendant and prior to the commencement of discovery. Plaintiff’s citation
to Genesis to justify her strategy in filing the motion at this early juncture is unpersuasive.
In Genesis the Supreme Court explicitly stated “we do not resolve the question whether a
Rule 68 offer that fully satisfies the plaintiff’s claims is sufficient by itself to moot the
action”. Genesis, 133 S. Ct. at 1529, n. 4. The Supreme Court also noted that while

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“Courts of Appeals on both sides of that issue have recognized that a plaintiff’s claim may
be satisfied even without the plaintiff’s consent”, there are other courts that “maintain that
an unaccepted offer of complete relief alone is sufficient to moot the individual’s claim.”
Id. It is doubtful that the Eleventh Circuit would adopt the former approach.

See

Church v. Accretive Health, Inc., 2014 WL 1623787, at *1-*2 (S.D. Ala. April 24, 2014)
(discussing same). Further, as set forth by the court in Accretive Health,
As the foregoing discussion demonstrates, there is precious little reason to
believe that the two-step dance Church proposes here (file a generic Rule 23
Motion at the outset of the case, then stay it for many months until class discovery
concludes and comprehensive briefs are prepared) is grounded in any justifiable
fear that the entire class action may be ripped away from her absent such a
preventive measure. The premise that a Rule 68 offer of judgment moots a class
action in the absence of a prior Rule 23 motion is a decidedly minority view. The
Eleventh Circuit has not accepted it. Plaintiff offers no indication that the
Eleventh Circuit would ever be inclined to adopt it, as indeed most other federal
courts have not. Even district courts in the Seventh Circuit (which propounded
that minority review) appear to allow the continued safety hatch of a two-week
window after an offer of judgment is made for the plaintiff to file a class
certification motion. There is no evidence and no reason to believe that Accretive
will engage in such a frowned-upon “picking off” strategy here. And the
underlying principle that any offer of judgment for complete relief would moot
Church’s claims even if she did not accept it has recently faced a withering attack
from four U.S. Supreme Court Justices, with no rebuttal from the others. For all
of these reasons, the Court concludes that Church's “placeholder” Motion for
Class Certification is highly unlikely to confer any meaningful benefit or
protection on plaintiff.
Id. at *2-*3.
Moreover, Plaintiff’s strategy comes with a cost. It burdens the Court with an
obviously premature motion that is devoid of content and the motion remains on the
Court’s docket as pending, which is reflected on the Court’s reports for an unspecified
period of time. See id. at *3 (“Plaintiff’s straight-out-of-the-chute Rule 23 Motion is

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highly unlikely to advance her cause one iota, but is virtually certain to impose
administrative costs, unnecessary distractions, and an unhelpful drag on efficiency and
judicial economy.”).
For these reasons, it is therefore ORDERED AND ADJUDGED that:
1. Plaintiff’s Motion for Class Certification (Dkt. 2) is denied without prejudice as
premature.
2. Defendants’ Unopposed Joint Motion for Extension of Time to Respond to
Plaintiff’s Motion for Class Certification (Dkt. 6) is denied as moot.
3. Defendants’ Unopposed Joint Motion for Extension of Time to Respond to the
Class Action Complaint (Dkt. 7) is granted to the extent that Defendants shall
file their responses to the Complaint on or before October 26, 2014.
DONE and ORDERED in Tampa, Florida, this 7th day of October, 2014.

Copies furnished to:
Counsel/Parties of Record
S:\Even\2014\14-cv-2288 dny premature class cert.docx

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