Opinion
Civil Action No. CV-02-1550 (DGT)
July 9, 2003
ORDER
Plaintiff Judith Vega ("Vega") commenced this action by means of a class action complaint on March 12, 2002, seeking damages and declaratory and injunctive relief arising from alleged violations of the Fair Debt Collection Practices Act (the "FDCPA"), 15 U.S.C. § 1692 et seq., by defendant Credit Bureau Enterprises ("Credit Bureau"). Issue was joined on April 8, 2002. Shortly thereafter, on June 18, 2002, defendant submitted an offer of judgment (the "Offer") pursuant to Rule 68 of the Federal Rules of Civil Procedure. The Offer provided:
Defendant Credit Bureau Enterprises . . . offers to allow judgment to be taken against it in this matter in the sum of $1,000 representing the maximum amount available to plaintiff Vega under the Fair Debt Collection Practices Act, 15 U.S.C. § 1692(k), plus reasonable costs as provided for by statute up to June 18, 2002 and reasonable attorneys' fees incurred up to June 18, 2002 in pursuit of plaintiff Vega's claims under the Fair Debt Collection Practices Act, as determined by this Court.
Def.'s Offer of Judgment, Ex. 6, attached to Aff. of Michael McDermott. Plaintiff declined to accept the offer and, on September 6, 2002, filed a motion for judgment on the pleadings as to liability. That same day, defendant filed a cross-motion to dismiss the case for lack of subject matter jurisdiction.
Credit Bureau argues that its offer of judgment renders Vega's claim moot by offering her the maximum amount available to her under the FDCPA, viz. $1,000 in statutory damages, plus reasonable costs and attorneys' fees. Further, because no class has yet been certified — indeed, plaintiff has not yet moved for certification — defendant contends that the class action complaint should be dismissed for lack of subject matter jurisdiction. Some courts in this circuit have held that when a defendant in a FDCPA case makes an offer of judgment, before a motion for class certification has been filed, offering the named plaintiff the maximum amount available under the statute for her individual claim, the plaintiff no longer has a personal stake in the matter, and the class action complaint should be dismissed as moot. See Ambalu v. Rosenblatt, 194 F.R.D. 451 (E.D.N.Y. 2000); see also Grief v. Wilson, Elser, Moskowitz, Edelman Dicker LLP, 258 F. Supp.2d 157 (E.D.N.Y. 2003); Tratt v. Retreival Masters Creditors Bureau, Inc., 2001 WL 667602 (E.D.N.Y. May 23, 2001).
A number of courts, however, have criticized this result, citing concerns that it would enable defendants to preempt class certification by "picking off" named plaintiffs with offers of judgment. Accordingly, courts have refused to dismiss FDCPA complaints on mootness grounds where plaintiffs have not had a reasonable opportunity to move for class certification prior to a defendant's offer of judgment. See McDowall v. Cogan, ___ F.R.D. ___, 2003 WL 21079615, at *5 (E.D.N.Y. May 12, 2003) (concluding that defendants should not be permitted "to force plaintiffs into hastily-drafted certification motions by making offers of judgment. Such a policy . . . would encourage a race to the courthouse between defendants armed with uniformed offers and plaintiffs with under-researched certification motions"); Nasca v. GC Servs. Ltd. P'ship, 2002 WL 31040647, at *3 (S.D.N.Y. Sept. 12, 2002) (refusing to find plaintiff's complaint moot where plaintiff had not "had a reasonable opportunity to file a motion for certification" prior to defendant's offer of judgment); White v. OSI Collection Servs., Inc., 2001 WL 1590518 (E.D.N.Y. Nov. 5, 2001); Schaake v. Risk Mgmt. Alternatives, Inc., 203 F.R.D. 108, 112 (S.D.N.Y. 2001) (concluding that plaintiff should not be forced "to make a class certification motion before the record for such motion is complete").
In this case, Credit Bureau submitted the Offer approximately three months after the complaint was filed. Defendant argues that Vega had a reasonable opportunity to move for class certification during this three month period. However, because of discovery disputes, the record necessary for a certification motion had not been completed at the time defendant submitted the Offer. Plaintiff's claims ought not to be rendered moot by an offer of judgment submitted before counsel has a reasonable opportunity to compile a record necessary to support a motion for class certification. Cf. Grief, 258 F. Supp.2d at 161 (granting defendant's motion to dismiss in a FDCPA case where defendant made Rule 68 offer prior to plaintiff moving for class certification, but finding it notable that "plaintiff [did] not indicate that she was prevented from commencing discovery or moving for class certification"). Accordingly, defendant's motion to dismiss the complaint is denied.
It appears that the outstanding discovery disputes have now been resolved, following a May 14, 2003 conference before Magistrate Judge Robert M. Levy, and discovery is scheduled to close on September 10, 2003. Plaintiff is directed to move for class certification within forty (40) days of the close of discovery.
Plaintiff's motion for judgment on the pleadings is denied at this time. However, plaintiff is granted leave to renew her motion at the time she seeks class certification.
SO ORDERED.