Connector Castings, Inc. v. Joseph T. Ryerson & Sons, Inc
MEMORANDUM AND ORDER..IT IS HEREBY ORDERED that defendant's combined motion for certification under § 1292(b) and to stay (#48) is DENIED without prejudice. IT IS FURTHER ORDERED that plaintiffs motion for issuance of an order setting Rule 16 scheduling conference (#55) is DENIED without prejudice.IT IS FURTHER ORDERED that the parties shall have until March 22, 2016 by which to complete discovery on the limited issue of how many facsimiles were transmitted to plaintiff by defendant. IT IS FINALLY ORDERED that that any renewed motion for certification and stay shall be filed by March 29, 2016. ( Discovery Completion due by 3/22/2016.). Signed by District Judge Stephen N. Limbaugh, Jr on 1/19/16. (MRS)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
CONNECTOR CASTINGS, INC.,
JOSEPH T. RYERSON & SON, INC.,
d/b/a RYERSON, et al.,
Case No. 4:15-CV-851 SNLJ
MEMORANDUM AND ORDER
Plaintiff brought this action on behalf of itself and others similarly situated against
the defendant Joseph T. Ryerson & Son, Inc., which does business as “Ryerson,” and
several John Does. Ryerson is a services company that processes and distributes metals.
Plaintiff alleges that defendant sent “junk faxes” to it in violation of the Telephone
Consumer Protection Act of 1991, as amended by the Junk Fax Prevention Act of 2005,
47 U.S.C. § 227 (“TCPA”). Defendant removed this case from the 22nd Judicial Circuit
for the City of St. Louis. Plaintiff filed with its state court petition a motion to certify a
class of similarly situated individuals/entities. Defendant moved to dismiss (#15) on July
2, 2015, because, among other reasons, defendant had made an offer of “more than
complete relief” to plaintiff. Defendant had offered plaintiff three times the statutory
amount of damages for the one “junk fax” plaintiff allege it received from defendant.
Defendant sought an order entering judgment in favor of plaintiff for the full amount of
the offer and dismissing the class allegations without prejudice.
This Court denied defendant’s motion to dismiss and motion to strike class
allegations (#47). In that Order, the Court recognized that the “law in this arena --- that
is, the interplay between a class action complaint, the motion to certify, and an offer of
judgment --- is evolving.” (#22 at 5.) Defendants seek to appeal this Court’s Order
denying their motions despite the absence of a final judgment in this case. Specifically,
defendants seek certification of the following two questions:
Can an offer of full and complete relief to a single putative class
representative in a putative class action before a decision on class
certification result in entry of judgment for that single putative class
representative and dismissal of the class allegations without
prejudice? (The “Judgment Issue”)
Does an offer of judgment under Federal Rule of Civil Procedure 68
allow for post-offer cost-shifting to a single putative class
representative if class certification is denied and the ultimate
individual recovery for that single putative class representative is
less than the offer of judgment? (The “Rule 68 Issue”)
Defendant also seeks a stay of this matter pending resolution of the interlocutory appeal
or pending resolution of three matters currently pending before the Supreme Court, the
United States Court of Appeals for the D.C. Circuit, and the Federal Communications
Defendant seeks this interlocutory appeal under 28 U.S.C. § 1292(b), which
provides for appellate review of a non-final order if that order states that it “involves a
controlling question of law as to which there is substantial ground for difference of
opinion and that an immediate appeal from the order may materially advance the ultimate
termination of the litigation.”
Courts consider the following factors when determining whether to stay a matter:
(1) the potential prejudice to the non-moving party; (2) hardship and inequity to the
moving party if the action is not stayed; and (3) the judicial resources that would be saved
by staying the matter. SSDD, LLC v. Underwriters at Lloyd’s, London, No. 4:13-CV258 CAS, 2013 WL 2420676, at *2 (E.D. Mo. June 3, 2013) (quoting Emerson v. Lincoln
Elec. Holdings, Inc., 2009 WL 690181, at *1 (W.D. Mo. Mar. 12, 2009).
In requesting that this Court follow the extraordinary course of interlocutory
review of this matter, defendant “bears the heavy burden of demonstrating that the case is
an exceptional one in which immediate appeal is warranted.” Union Cty., Iowa v. Piper
Jaffray & Co., 525 F.3d 643, 646 (8th Cir. 2008) (quotation omitted). Here, defendant
argues immediate appeal is justified because (1) the issue is one of law, not fact, (2) there
are substantial grounds for difference of opinion, and (3) resolution could materially
advance this case.
Plaintiff disputes that this matter offers a pure question of law because plaintiff
disputes that defendant actually offered “full and complete relief” to plaintiff. Plaintiff
claims that defendant sent it “junk faxes” in violation of the Telephone Consumer
Protection Act, 47 U.S.C. § 227. Plaintiff alleges defendant sent it one fax on April 22,
2014 and “on information and belief other similar faxes.” (#21 ¶¶ 9, 32.) Defendant
offered judgment to plaintiff in the amount of $4,500 plus an injunction. Statutory
damages for plaintiff’s claims are $1,500 per fax, so defendant believes plaintiff’s case is
moot and that judgment should have been entered for plaintiff pursuant to the terms of
the offer and Federal Rule of Civil Procedure 68(a).
Plaintiff contends that the $4,500 offer did not moot its case because it is unclear
how many faxes plaintiff received and the offer of judgment did not include prejudgment
interest nor an incentive award, which this plaintiff is seeking in light of its willingness to
act as named plaintiff for a class of similarly situated individuals or entities. Plaintiff
suggests that discovery is required to determine how many faxes plaintiff was sent by
defendant and that this issue of fact precludes certification of any appeal of this issue.
Defendant seems to suggest that whether the offer of proof here actually
constitutes “full and complete relief” is inapposite. Whether or not $4,500 was adequate
compensation, this Court agreed with the majority of courts that have rejected the
“mootness argument” in the class action context, and it is on that basis that defendant was
denied a Rule 68 judgment. As defendant points out, should this Court’s determination
be reversed on appeal, all the Court would need to determine is whether defendant’s offer
provides full and complete relief. Notably, defendant has made a second offer of
judgment --- this offer is for $40,000. Defendant states that limited discovery would
show that $40,000 plus injunctive relief would provide full and complete relief to
plaintiff and moot plaintiff’s claim. (#49 at 9.)
This case is not yet ripe for interlocutory appeal. Although this Court has already
established that the circuit courts are divided on this subject (#47 at 5), and the issue
would be dispositive (thus materially advancing the case), the Court cannot certify this
matter for appeal unless the fact issue --- how many faxes defendant sent to plaintiff --has been addressed. For that reason, the Court will order limited discovery on that
matter. The defendant may submit a rewnewed motion in light of that discovery and to
update the Court any developments in the law pursuant to the schedule set forth below.
The Court will also deny defendant’s motion for a stay at this time in order to
proceed with the limited discovery discussed above. In light of the discovery and motion
schedule set out below, the Court will also deny plaintiff’s motion for issuance of an
order setting the Rule 16 conference.
IT IS HEREBY ORDERED that defendant’s combined motion for certification
under § 1292(b) and to stay (#48) is DENIED without prejudice.
IT IS FURTHER ORDERED that plaintiff’s motion for issuance of an order
setting Rule 16 scheduling conference (#55) is DENIED without prejudice.
IT IS FURTHER ORDERED that the parties shall have until March 22, 2016 by
which to complete discovery on the limited issue of how many facsimiles were
transmitted to plaintiff by defendant.
IT IS FINALLY ORDERED that that any renewed motion for certification and
stay shall be filed by March 29, 2016.
Dated this 19th day of January, 2016.
STEPHEN N. LIMBAUGH, Jr.
UNITED STATES DISTRICT JUDGE
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