Geismann v. Be-Thin, Inc. et al
MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that Plaintiff's Motion for Class Certification is DENIED, without prejudice. IT IS FURTHER ORDERED that Plaintiffs Motion to Stay Briefing on Plaintiff's Motion for Class Certification is DENIED, as moot. So Ordered this 11th day of May, 2015. Signed by District Judge E. Richard Webber on May 11, 2015. (MCB)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
RADHA GEISMANN, M.D., P.C.,
BE-THIN, INC., et al.,
Case No. 4:15CV00615 ERW
MEMORANDUM AND ORDER
This matter comes before the Court on Plaintiff’s Motion for Class Certification [ECF
No. 6] and Plaintiff’s Motion to Stay Briefing on Plaintiff’s Motion for Class Certification [ECF
This case originated in the Circuit Court of St. Louis County. Defendant Be-Thin, Inc.
removed to this Court on April 14, 2015 [ECF No. 1]. When Plaintiff filed her Petition in the
Circuit Court of St. Louis County, she simultaneously filed a Motion for Class Certification
[ECF No. 5, 6]. Once the case was removed, Plaintiff filed a Motion to Stay Briefing on
Plaintiff’s Motion for Class Certification requesting the Court hold her Motion for Class
Certification in abeyance until after a Rule 16 conference is held and discovery is completed
[ECF No. 10]. According to Plaintiff, she needs discovery to develop the facts necessary to
certify the class. Plaintiff states she filed her motion at the same time as filing suit to prevent her
case from being deemed moot should Defendants make an offer of settlement under Federal Rule
of Civil Procedure (“FRCP”) 68 as occurred in Damasco v. Clearwire Corporation, 662 F.3d
891 (7th Cir. 2011). Defendants assert Plaintiff’s Motion for Class Certification should be
denied with leave to refile once Plaintiff can adequately argue her motion.
For a federal court to have Article III jurisdiction over a case, the plaintiff must have a
legally cognizable interest or personal stake in the outcome of the case. Genesis Healtcare Corp
v. Synczyk, 133 S. Ct. 1523, 1528 (2013). If the claimant loses a personal stake in the action, the
case must be dismissed as moot. Church of Scientology v. United States, 506 U.S. 9, 12 (1992).
To moot a case by an offer of judgment, the offer must give the plaintiff everything he has
requested in his complaint as an individual. Hartis v. Chicago Title Ins. Co., 694 F.3d 935, 949
(8th Cir. 2012). This creates a unique situation in the class action context where a defendant can
moot a case by offering full judgment with the named plaintiff prior to class certification,
avoiding the class action lawsuit. 1
Circuit courts have split on how to handle such a situation. Four circuits have held a
plaintiff can move to certify a class, without delay, after the offer has been made and avoid
mootness because the class certification would relate back to the filing of the complaint. See
e.g., Pitts v. Terrible Herbst, Inc., 653 F.3d 1081, 1091-92 (9th Cir. 2011) (“[W]e hold that an
unaccepted Rule 68 offer of judgment – for the full amount of the named plaintiff’s individual
claim and made before the named plaintiff files a motion for class certification – does not moot a
class action.”); Lucero v. Bureau of Collection Recovery, Inc., 639 F.3d 1239, 1249-50 (10th Cir.
2011) (“Because Geraghty informs us that the personal stake of the class inheres prior to
certification, we conclude that the federal court’s Article III jurisdiction to hear the motion for
class certification is not extinguished by the Rule 68 offer of judgment to an individual
After class certification, the defendant would need to satisfy the demands of the entire class to moot the case
through an offer of judgment.
plaintiff.”); Sandoz v. Cingular Wireless, LLC, 553 F.3d 913, 920-21 (5th Cir. 2008) (holding a
timely motion for certification relates back to the date the complaint was filed, especially when
one of the defendant’s first actions is to make a Rule 68 offer of judgment.); and Weiss v. Regal
Collections, 385 F.3d 337, 348 (3d Cir. 2004) (“Absent undue delay in filing a motion for class
certification, therefore, where a defendant makes a Rule 68 offer to an individual claim that has
the effect of mooting possible class relief asserted in the complaint, the appropriate course is to
relate the certification motion back to the filing of the class complaint.”). The Seventh Circuit
has refused to adopt this principle. Damasco v. Clearwire Corp., 662 F.3d 891 (7th Cir. 2011).
The Seventh Circuit held “To allow a case, not certified as a class action and with no motion for
class certification even pending, to continue in federal court when the sole plaintiff no longer
maintains a personal stake defies the limits on federal jurisdiction expressed in Article III.” Id. at
896. Instead, the Seventh Circuit suggests a plaintiff move to certify the class at the same time
as the complaint is filed and if the facts have not yet developed for class certification, the
plaintiff should ask the court to delay the ruling for additional discovery. Id.
The Eighth Circuit has not directly ruled on this issue. However, the Eight Circuit has
stated judgment against a named plaintiff in a class action should be entered only where class
certification has been properly denied and the offer satisfies the entire demand for injuries and
costs of the suit. Alpern v. Utilicorp United, Inc., 84 F.3d 1525, 1539 (8th Cir. 1996). The
majority of the district courts in the Eighth Circuit have followed the reasoning of the majority of
circuits and have found an offer of judgment does not moot a class action prior to class
certification. See e.g., Jenkins v. Pech, 301 F.R.D. 401, 408 n.4 (D. Neb. Aug. 27, 2014) (“even
if the offer of judgment did satisfy the plaintiff’s entire demand for injuries and costs of
litigation, the court is not convinced the Eight Circuit would find the case moot in these
circumstances.”); March v. Medicredit, Inc., No. 4:13CV1210 TIA, 2013 WL 6265070 at *3-4
(E.D.Mo. Dec. 4, 2013) (“The sound rationale behind these cases is that Defendant should not be
able to use offers of judgment to thwart class actions.”); Sandusky Wellness Center, LLC v.
Medtox Scientific, Inc., No. 12-2066(DSD/SER), 2013 WL 3771397 at *2 (D. Minn. Jul. 18,
2013) (“To moot the claim of a putative class representative, a Rule 68 offer must provide
complete relief for both the individual and class claims.”); Mertz v. Lindell Bank & Trust Co.,
No. 4:10CV2098 HEA, 2012 WL 1080824 at *1 (E.D.Mo. Mar. 30, 2012) (“In this instance,
defendant submitted its offer of judgment to plaintiff before filing an answer and before plaintiff
could reasonably have been expected to file a motion for class certification. In such cases, it has
been held that defendant’s offer of judgment does not moot the matter.”); Liles v. Am. Corrective
Counseling Services, Inc., 201 F.R.D. 452, 455 (S.D. Iowa Jul. 2, 2001) (“Hinging the outcome
of this motion on whether or not class certification has been filed is not well-supported in the law
nor sound judicial practice; it would encourage a “race to pay off” named plaintiffs very early in
litigation, before they file motions for class certification.”).
This Court is persuaded by the reasoning of the majority of the circuit courts and the
majority of the district courts on this issue. If a defendant makes an offer of judgment pursuant
to Rule 68 satisfying all of Plaintiff’s demands, Plaintiff will have the opportunity to file a
motion for class certification which relates back to the date of filing of the original complaint,
avoiding it being deemed moot. While this Court appreciates Plaintiff’s efforts to protect her
interests and prevent her claim from being deemed moot, the Court finds her motion to be
premature. There is no suggestion in any of the filings that any defendant has made an offer of
judgment and the facts have not developed enough as to allow for a ruling on class certification.
The Court sees no benefit in allowing a motion to languish on the dockets while waiting for
discovery to proceed which may take several months. 2 Therefore, Plaintiff’s Motion for Class
Certification will be dismissed with leave to refile once an offer of judgment has been made
necessitating such a filing or when the facts have developed enough to allow for a ruling on class
IT IS HEREBY ORDERED that Plaintiff’s Motion for Class Certification is DENIED,
IT IS FURTHER ORDERED that Plaintiff’s Motion to Stay Briefing on Plaintiff’s
Motion for Class Certification is DENIED, as moot.
So Ordered this 11th day of May, 2015.
E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE
District courts across the country have differed in this approach. Some have allowed the motion to remain on the
docket while others have dismissed with leave to refile.
If a defendant makes an offer of judgment prior to the facts developing allowing for a ruling on the motion, the
Court will hold the motion in abeyance until such facts do develop as to allow for a rigorous analysis of class
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