The opinion of the court was delivered by: Samuel Der-yeghiayan, District Judge
This matter is before the court on Defendant Banco Popular North America's (Banco) motion to dismiss. For the reasons stated below, we grant the motion to dismiss.
On April 1, 2010, Plaintiff Wallace Stilz III (Stilz) allegedly withdrew funds from an automated teller machine operated by Banco located on E. Erie Street in Chicago, Illinois (ATM1). Stilz contends that he was charged a $2.00 fee to withdraw funds from ATM1. According to Stilz, there was no notice posted on ATM1 that disclosed that users could be charged a fee to conduct an electronic fund transfer on ATM1. Stilz also contends that there was no notice posted on ATM1 indicating that funds deposited might not be available for immediate withdrawal. Stilz further alleges that on April 17, 2010, he withdrew funds from an automated teller machine operated by Banco located on North Avenue in Chicago, Illinois (ATM2). Stilz contends that he was charged a $2.00 fee to withdraw funds from ATM2. According to Stilz, the notice posted on the outside of ATM2 incorrectly stated that he could be charged a $1.50 fee to conduct an electronic fund transfer on ATM2. Stilz includes in his amended complaint a claim alleging a violation of the Electronic Fund Transfers Act (EFTA), 15 U.S.C. § 1693, et seq., for the absence of a fee notice on ATM1 (Count I), an EFTA claim based on an improper fee notice on ATM2 (Count II), and an EFTA claim based on the improper deposit notice on ATM1 (Count III). Banco moves to dismiss all claims.
Federal Rule of Civil Procedure 12(b)(1)requires a court to dismiss an action when it lacks subject matter jurisdiction. United Phosphorus, Ltd. v. Angus Chemical Co., 322 F.3d 942, 946 (7th Cir. 2003). If the concern of the court or party challenging subject matter jurisdiction is that "subject matter jurisdiction is not evident on the face of the complaint, the motion to dismiss pursuant to Rule 12(b)(1) would be analyzed as any other motion to dismiss, by assuming for purposes of the motion that the allegations in the complaint are true." Id.; see also Ezekiel v. Michel, 66 F.3d 894, 897 (7th Cir. 1995)(stating that when reviewing a motion to dismiss brought under Rule 12(b)(1), this court "must accept as true all well-pleaded factual allegations, and draw reasonable inferences in favor of the plaintiff"). However, if the complaint appears on its face to indicate that the court has subject matter jurisdiction, "but the contention is that there is in fact no subject matter jurisdiction, the movant may use affidavits and other material to support the motion." United Phosphorus, Ltd., 322 F.3d at 946. For the purpose of determining subject matter jurisdiction, this court "'may properly look beyond the jurisdictional allegations of the complaint and view whatever evidence has been submitted on the issue to determine whether in fact subject matter jurisdiction exists.'" Ezekiel, 66 F.3d at 897 (quoting Capitol Leasing Co. v. Federal Deposit Insurance Corp., 999 F.2d 188, 191 (7th Cir. 1993)). The burden of proof in regards to a Rule 12(b)(1)motion is "on the party asserting jurisdiction." United Phosphorus, Ltd., 322 F.3d at 946.
Banco contends that it extended an offer of judgment (Offer of Judgment) pursuant to Federal Rule of Civil Procedure 68 (Rule 68) to Stilz before he filed a motion for class certification and that this action therefore became moot. Under Article III of the United States Constitution federal courts are provided with jurisdiction "over cases and controversies" and "[b]oth litigants must have a personal interest in the case at the beginning of the litigation, and their interests must persist throughout its entirety." Holstein v. City of Chicago, 29 F.3d 1145, 1147 (7th Cir. 1994). A case becomes moot and a court is without jurisdiction "when the dispute between the parties no longer rages, or when one of the parties loses his personal interest in the outcome of the suit." Id. The Seventh Circuit has indicated that one instance in which a case can become moot is when "'the defendant offers to satisfy the plaintiff's entire demand, there is no dispute over which to litigate, and a plaintiff . . . has no remaining stake.'" Id. (quoting Rand v. Monsanto Co., 926 F.2d 596, 598 (7th Cir. 1991)).
I. Offer of Judgment Prior to Motion for Class Certification
In the instant action, it is not disputed that on July 16, 2010, Banco filed and served on Stilz the Offer of Judgment in which Banco offered Stilz $1,020.00 plus reasonable attorneys' fees and costs. It is also not disputed that on July 19, 2010, Stilz, by letter, rejected the Offer of Judgment. On August 12, 2010, Banco filed the instant motion to dismiss and afterwards, on August 17, 2010, Stilz filed a motion for class certification. The Seventh Circuit has indicated that the mere prospect that an action may become a class action does not preclude the dismissal of an action if a named plaintiff is offered full relief before he files a motion for class certification. See Holstein, 29 F.3d at 1147 (7th Cir. 1994)(stating that case was moot and noting that the plaintiff could not "claim the benefit of" the class action "exception to the mootness doctrine because the district court did not certify the class" and the plaintiff "did not even move for class certification prior to the evaporation of his personal stake"); see also, e.g., Olson v. Brown, 594 F.3d 577, 582 (7th Cir. 2010)(explaining the inherently transitory exception to the mootness doctrine). Thus, the instant action became moot prior to the filing of the motion for class certification by Stilz. We note that in the instant action, not only did Stilz fail to file the motion for class certification before the filing of the Offer of Judgment, Stilz filed his motion for class certification even after rejecting the offer.
II. Whether Full Relief was Offered
Banco contends that it offered Stilz more than he could have received under the statutory cap for the EFTA claims brought by Stilz in this action. Banco offered Stilz $1,020.00 plus reasonable attorneys' fees and costs. EFTA provides the following as to the recovery of damages:
Except as otherwise provided by this section and section 1693h of this title, any person who fails to comply with any provision of this subchapter with respect to any consumer, except for an error resolved in accordance with section 1693f of this title, is liable to such consumer in an amount equal to the sum of--(1) any actual damage sustained by such consumer as a result of such failure; [and] ...