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Scott v. Westlake Services LLC

United States Court of Appeals, Seventh Circuit

January 23, 2014

Etta SCOTT, on behalf of herself and others similarly situated, Plaintiff-Appellant,
v.
WESTLAKE SERVICES LLC, doing business as Westlake Financial Services, Defendant-Appellee.

Argued Dec. 10, 2013.

Page 1125

Dmitry N. Feofanov, Lyndon, IL, Sergei Lemberg, Lemberg & Associates, LLC, Stamford, CT, for Plaintiff-Appellant.

Susan E. Groh, David L. Hartsell, McGuirewoods LLP, Chicago, IL, for Defendant-Appellee.

Before MANION, ROVNER, and HAMILTON, Circuit Judges.

HAMILTON, Circuit Judge.

Etta Scott filed suit on behalf of herself and a putative class alleging that defendant Westlake Services LLC repeatedly called her in violation of the Telephone Consumer Protection Act, 47 U.S.C. ยง 227 (" TCPA" ). Before Scott moved to certify a plaintiff class, Westlake offered to pay Scott the full statutory damages for any calls that violated the TCPA. Scott did not accept the offer. The district court then held that the offer rendered Scott's case moot and entered final judgment, but retained jurisdiction over post-judgment discovery in the case. Scott appeals, and we reverse.

I. Factual and Procedural Background

Scott filed her first amended complaint (the operative complaint in the case) on January 17, 2013. The complaint alleged that Westlake repeatedly called her cell phone using an automated dialer in violation of the TCPA. Scott sought for herself and a putative class: (1) statutory damages of $500 for each negligent violation of the Act and $1500 for each intentional violation of the Act, (2) injunctive relief, and (3) attorney fees. She did not immediately move for class certification.

On February 5, 2013, Westlake sent Scott's attorney an email with a settlement offer. Westlake offered to pay Scott $1500 (the statutory maximum) " for each and every dialer-generated telephone call made to plaintiff." The email went on to say that while Scott had identified twenty dialer-generated calls made to her phone, Westlake believed there were only six, and suggested further discussion to " resolve the discrepancy." Westlake also agreed to pay Scott all costs that she would recover if she prevailed in her lawsuit, and agreed to the entry of an injunction prohibiting Westlake from calling her again without her express permission. The email concluded by warning Scott that, in Westlake's view, its offer rendered her case moot. The next day, Scott moved for class certification and declined the settlement

Page 1126

offer. She explained that there was " a significant controversy" concerning how many dialer-generated calls Westlake had placed to her phone, so the offer was inadequate and did not render her case moot.

Westlake then moved to dismiss Scott's suit as moot. The district court granted the motion, finding that Westlake had offered Scott everything she sought in her complaint thus depriving the court of subject matter jurisdiction. The court recognized, however, that there was sufficient uncertainty about the actual terms of the settlement offer that it would need to retain jurisdiction to enforce compliance with the offer. The court directed the parties to conduct discovery to determine just how many dialer-generated calls Scott had actually received from Westlake so that the amount of Westlake's check to Scott could be calculated. In the court's view, Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994), authorized this procedure as long as the judgment incorporated the settlement offer. Scott appeals the dismissal and the district court's retention of jurisdiction under Kokkonen.

II. Analysis

Before turning to the substance of Scott's claims, we must first determine the basis of our jurisdiction over this appeal. Post-judgment discovery is ongoing in the district court, and that court may issue further rulings to decide discovery disputes and enforce the settlement offer. Despite these continued proceedings, the district court entered on June 6, 2013 a final judgment that resolved all claims. Upon entry of that final judgment, Scott could not risk waiting for further action. ...


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