Kyla Asbury Dec. 2, 2014, 11:03am

ATLANTA (Legal Newsline) - A federal appeals court has ruled that a plaintiff's individual claim is not mooted by an unaccepted offer of judgment in a class action lawsuit against the Tampa Bay Buccaneers for allegedly sending unsolocited faxes to businesses.

"This case presents the question whether a defendant may moot a class action through an unaccepted Federal Rule of Civil Procedure 68 offer of complete relief to the named plaintiffs — but not to class members — before the named plaintiffs move to certify the class," the Dec. 1 opinion in the U.S. Court of Appeals for the 11th Circuit states. "In the circumstances of this case, the answer is no. We join the majority of circuits that have addressed the issue."

Circuit judges Beverly B. Martin, Richard K. Eaton and Robert L. Hinkle voted in the majority, with Hinkle authoring the opinion.

"On the issue of the mootness of the class claims, Zeidman [v. J. Ray McDermott & Co.] is different from our case in only one significant respect: in Zeidman, the plaintiffs moved to certify a class before the individual claims became moot, while here, the plaintiffs moved to certify the class only after [Buccaneers Limited Partnership] served its Rule 68 offers," the opinion states. "BLP says this changes the result. We disagree."

The class action lawsuit was initially filed in the Circuit Court of the Sixth Judicial Circuit for Pinellas County, Fla. on Aug. 1, 2013. It was removed to the U.S. District Court for the Middle District of Florida on Aug. 16, 2013.

Jeffrey M. Stein, D.D.S., M.S.D., P.A.; Devito Orthodontics P.A.; Steven J. Melilli, D.C., P.A.; Charles R. Hatley Inc.; Donald White and Jonathan Hall claimed beginning on July 14, 2009, the defendant transmitted unsolicited facsimiles to the plaintiffs for the purpose of offering for sale game tickets to the Tampa Bay Buccaneers' home football games.

The plaintiffs claimed the defendants actions violated the Telephone Consumer Protection Act.

On Oct. 24, 2013, the district court ordered the class action lawsuit dismissed for lack of jurisdictionally necessary "case or controversy."

In Sosna v. Iowa, the named plaintiff challenged Iowa's durational residence requirement for divorces, according to the opinion.

"After a three-judge district court upheld the Iowa provision on the merits, and while the case was pending on appeal to the Supreme Court, the named plaintiff’s individual claim became moot on two grounds: she got a divorce in another state, and she had lived in Iowa long enough to satisfy the durational residence requirement."

The Supreme Court said the case could nonetheless go forward and the court said that upon certification, class members "acquired a legal status separate from the interest of [the named plaintiff]."

"And the Court cited its prior decisions holding that disputes were not moot when they were 'capable of repetition, yet evading review,'" the opinion states. "Sosna squarely refutes any assertion that a class action is always moot just because the named plaintiff’s claim is moot.

"First, a plaintiff’s individual claim is not mooted by an unaccepted Rule 68 offer of judgment. Second, a proffer that moots a named plaintiff’s individual claim does not moot a class action in circumstances like those presented here, even if the proffer comes before the plaintiff has moved to certify a class. The district court’s order dismissing the action is reversed."

The panel stated it is plain that this case still presents a live controversy.

"The plaintiffs say BLP violated the Telephone Consumer Protection Act and that all class members are entitled to money damages; BLP denies it," the opinion states. "In indistinguishable circumstances, Zeidman held the dispute was still live and said: 'The case before us, therefore, rests not on whether there exists a live controversy, but on whether the district court has before it some plaintiff with a personal stake in that controversy.'... The same is true here."

The panel stated the Supreme Court has made clear, more than once, that the necessary personal stake in a live class action controversy sometimes is present even when the named plaintiff’s own individual claim has become moot.

The plaintiffs are represented by Joseph J. Siprut and Gregg M. Barbakoff of Siprut PC in Chicago; James M. Thomas of the Law Office of James M. Thomas in Dunedin, Fla.

The Buccaneers are represented by Thomas Emerson Scott Jr., Scott Allan Cole, Barry Adam Postman, Justin C. Sorel of Cole Scott & Kissane PA in Miami.

U.S. Court of Appeals for the 11th Circuit case number: 13-15417

From Legal Newsline: Kyla Asbury can be reached at

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