United States District Court, E.D. Michigan, Southern Division
ORDER SETTING HEARING FOR PLAINTIFF'S PLACEHOLDER
MOTION (DOCUMENT NO. 5), DENYING AS MOOT DEFENDANT'S
MOTION TO DISMISS (DOCUMENT NO. 18) AND SETTING SCHEDULING
STEPHEN J. MURPHY, III United States District Judge
claims Defendants sent unsolicited faxes in violation of the
Junk Fax Prevention Act, 47 U.S.C. § 227. Am. Compl.
1-3, ECF No. 28. Plaintiff brought the case as a putative
class action on behalf of itself and others who allegedly
received the unwanted faxes. Id. Three matters are
now before the Court: a "placeholder" motion
Plaintiff filed concurrently with its complaint, a motion to
dismiss brought by one of Defendants, and the need for a
The Placeholder Motion
same day Plaintiff filed the initial complaint, it filed
another motion - a so-called "placeholder" motion
for class certification - and explained why the motion was
necessary. See Mot., ECF No. 5. According to
Plaintiff, defendants in class actions like this one will
sometimes attempt to moot a plaintiff's claims by
tendering an offer of judgment to the individual plaintiff
but not to potential class members. Id. at 2. The
"picking off" maneuver, according to plaintiff,
limits a defendant's liability to the offer of judgment
tendered to an individual plaintiff and prevents a class
action from advancing. But a pending motion for class
certification stymies that result because prior decisions of
the Sixth Circuit have made clear that if a motion for class
certification is pending when an offer of judgment is made to
an individual plaintiff - even if the individual accepts the
offer - the class action can continue. See, e.g.,
Carroll v. United Compucred Collections, Inc., 399
F.3d 620, 625 (6th Cir. 2005).
therefore filed the instant motion "defensively."
Although the motion ostensibly seeks class certification, the
reasons given in support of certifying the class are thin,
and understandably so: there has not yet been any discovery.
The real purpose of the motion is clear from its title: to
stand in the place of a more substantial motion to be filed
at a later time and after the benefit of discovery. And the
motion itself reinforces that purpose when Plaintiff asks the
Court to allow the motion to "remain pending." Mot.
6, ECF No. 5.
the parties dispute the real purpose of the motion, but
Defendants claim the motion is neither procedurally proper
nor necessary. Resps., ECF Nos. 19, 21. They note that the
Sixth Circuit addressed an issue much like this one earlier
this year. In Family Health Chiropractic, Inc. v. MD
On-Line Sols., Inc., the plaintiff also sued under the
Junk Fax Prevention Act. 632 F.App'x 259 (6th Cir. 2016).
Plaintiff rejected defendant's settlement offer and then
amended its complaint to seek class certification.
Id. at 260. Defendant "subsequently filed a
motion to dismiss, arguing that because the rejected
settlement offer covered all of [the plaintiff's]
demanded relief, [the plaintiff's] claims were
moot." Id. The district court denied the motion
and the court of appeals affirmed. The court explained that
even if it assumed that the settlement offer satisfied all of
the plaintiff's demands, the plaintiff's claims
"still give rise to a live case or controversy under
Campbell-Ewald" because "an unaccepted
settlement offer or offer of judgment does not moot a
plaintiff's case." Id. (quoting
Campbell-Ewald Co. v. Gomez, 136 S.Ct. 663 (2016)).
plaintiffs in Family Health faced the same dilemma
Plaintiff fears it might encounter here - but in Family
Health, an offer of settlement was made and the
mooting maneuver was attempted. Here, no settlement
has been extended, and at least Defendant Wacker claims it
"ha[s] no intention to do so." Resp. 3 n.2, ECF No.
19. In light of all the facts, available precedent, and
especially the decisions in Family Health and
Campbell-Ewald, the Court sees no need to keep a
motion "pending" to protect the rights of potential
class members. But prior to denying the motion without
prejudice to file anew later, the Court will permit Plaintiff
to orally argue its position when the parties appear for a
scheduling conference in the case.
Defendant Wacker's Motion to Dismiss
Wacker moved to dismiss the complaint as to Wacker. Mot., ECF
No. 18. Plaintiff then timely filed an amended complaint.
See Am. Compl., ECF No. 28. Defendant Wacker's
motion will be denied as moot.
The Scheduling Conference
parties have already filed a discovery plan suggesting a
bifurcated schedule that would first focus on Plaintiff's
motion for class certification and, if the motion is granted,
a second schedule would permit discovery on the merits and
set other deadlines, including a trial date. Because some
time has passed since the filing of the discovery plan, the
Court will order the parties to update the discovery plan, if
necessary, and file it in advance of the scheduling
it is hereby ORDERED that Defendant
Wacker's Motion to Dismiss (document no. 18) is
DENIED AS MOOT.
IS FURTHER ORDERED that a scheduling conference
pursuant to Civil Rule 16 is scheduled for December
7, 2016 at 10:00 a.m. before the Honorable Stephen
J. Murphy, III, Theodore Levin U.S. Courthouse, Room 228, 231
W. Lafayette, Detroit, Michigan. The parties shall
FILE an updated discovery plan, if any, at
least seven days prior to the scheduling
conference. The ...