United States District Court, N.D. Illinois, Eastern Division
WENDELL H. STONE COMPANY, INC. d/b/a Stone & Company, individually and on behalf of all others similarly situated, Plaintiff,
M PARTNERS REBAR, LLC, M Partners International, Defendant.
MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY United States District Judge.
H. Stone Company, Inc. (Stone) filed a class action
complaint, alleging that M Partners Rebar, LLC (M Partners)
sent unsolicited fax advertisements in violation of the Junk
Fax Prevention Act (JFPA). Before Stone filed for class
certification, M Partners moved to deposit funds with the
Court that it claimed would fully satisfy Stone's
individual claims. M Partners requested that the Court enter
judgment in favor of Stone in the amount of the deposit, and
it argued that this would render moot both the individual and
reasons stated below, the Court holds that a defendant's
deposit of funds cannot render moot a plaintiff's
individual or class claims. The Court grants M Partners'
motion to deposit funds but denies its request to enter
judgment and concludes that Stone's individual and class
claims are not moot.
is a corporation whose principal place of business is
Connellsville, Pennsylvania. M Partners is a small steel
corporation headquartered in Illinois and run by Frank
Bergren. Stone alleges that M Partners sent unsolicited fax
advertisements to Stone and many others. Specifically, Stone
alleges that it received at least one fax promoting M
Partners' services and steel products. Stone asserts that
it had no prior relationship with M Partners and that it
never gave M Partners permission to send these faxes. Stone
also alleges that any faxes omitted the proper opt-out notice
required by 47 C.F.R. § 64.1200. Stone further alleges
that M Partners sent the same fax to more than forty other
recipients. Stone filed its complaint on behalf of itself and
all others similarly situated. Stone seeks statutory damages,
to be trebled if the facts show that M Partners acted
willfully; injunctive and declaratory relief; pre-judgment
interest; and attorneys' fees and costs.
September 16, 2016, M Partners filed a motion to deposit with
the Court funds in the amount of $30, 500. M Partners further
requests-if the Court permits the deposit-an entry of
judgment in favor of Stone for the same amount or a briefing
schedule for parties to argue the consequences of the
deposit. Def.'s Mot. to Deposit Funds at 4. In its
motion, M Partners alleges that on that same date, it also
made an offer of judgment to Stone under Federal Rule of
Civil Procedure 68 in the amount of $30, 500 plus accrued
costs. M Partners describes this as "more than Stone
could hope to recover in this action since it reflects the
maximum statutory damages of $1, 500 for each violation and
assumes that [ ] a single fax could constitute multiple
violations of the TCPA." Def.'s Mot. to Deposit
Funds at 1.
September 23, Stone filed what it called a
"placeholder" motion for class certification. In
its motion, Stone asks the Court to enter and continue the
motion for class certification until after discovery, at
which time Stone will submit a more detailed memorandum. The
Court has not yet ruled on this motion.
primary question before the Court is essentially whether M
Partners' deposit of funds would render moot both
Stone's individual claims and its attempt to pursue a
class action. This stems from the heavily-litigated question
of whether a defendant's offer of full relief under Rule
68 moots a plaintiff's individual or class claims. In
2015, the Seventh Circuit ruled that an offer on its own does
not render a plaintiff's claims moot. See Chapman v.
First Index, Inc. 796 F.3d 783, 786 (7th Cir. 2015). In
January 2016, the Supreme Court confirmed this holding in
Campbell-Ewald v. Gomez, 136 S.Ct. 663 (2016).
See id. at 670. In doing so, however, the Court
expressly declined to address whether its ruling would be
different had the defendant deposited the full amount owed to
the plaintiff and the lower court entered judgment for the
plaintiff. Id. at 672. The Seventh Circuit has not
yet addressed this question, though other appellate and
district courts have. This Court now holds that M Partners
cannot render moot either Stone's individual or class
claims by its motion to deposit funds.
Federal Rule of Civil Procedure 67, a party-by leave of
court-may deposit with the court all or part of a monetary
judgment sought as relief. Fed.R.Civ.P. 67(a). There is
little Seventh Circuit case law regarding this rule. Other
circuits have indicated that the purpose of Rule 67 is to
relieve a party who holds a contested fund from
responsibility for disbursement of that fund. See,
e.g., Alstom Caribe, Inc. v. George P. Reintjes
Co., 484 F.3d 106, 113 (1st Cir. 2007). District courts
have discretion in determining whether to employ Rule 67.
See id. at 114; Zelaya/Capital Int'l
Judgment, LLC v. Zelaya, 769 F.3d 1296, 1300 (11th Cir.
2014); LTV Corp. v. Gulf States Steel, Inc. of Ala.,
969 F.2d 1050, 1063 (D.C. Cir. 1992); Cajun Elec. Power
Coop., Inc. v. Riley Stoker Corp., 901 F.2d 441, 445
(5th Cir. 1990).
Partners' requested deposit is permissible under Rule 67.
Stone has requested statutory damages as part of its relief,
and M Partners seeks to deposit "all or part of the
money." See Fed. R. Civ. P. 67(a). Stone argues
that the Court should refuse the deposit because permitting
it would be contrary to the purposes of Rule 67 and would
threaten to overburden the Clerk of the Court. First, Stone
suggests that a Rule 67 deposit can be used only to relieve M
Partners of the burden of administering an asset. Pl.'s
Resp. at 7. This is unpersuasive. Nothing in the language of
the rule indicates that it is limited in this way, and M
Partners' request falls within the language of the rule.
Stone's argument that permitting this deposit will
overburden the Clerk of Court is likewise unconvincing. As
Stone agrees, this motion requires a single deposit of a
specific amount, hardly a burden to the Clerk. Pl.'s
Resp. at 6. Stone's unsupported suggestion that allowing
the deposit would "lead to similar deposits in nearly
every consumer class action, " Pl.'s Resp. at 6-7,
is not grounds for denying a deposit otherwise appropriate
under Rule 67. The Court therefore grants permission for M
Partners to deposit $30, 500 with the Court, to be
distributed to Stone if the Court grants judgment in its
favor. For the reasons discussed below, however, this deposit
will not render moot either Stone's individual claims or
those of the putative class.
III of the Constitution limits the jurisdiction of federal
courts to cases and controversies. U.S. Const., Art. III,
§ 2. This limitation requires that "[i]f an
intervening circumstance deprives the plaintiff of a personal
stake in the outcome of the lawsuit, at any point during
litigation, the action can no longer proceed and must be
dismissed as moot." Campbell-Ewald, 136 S.Ct.
at 669 (internal quotation marks omitted). The case is not
moot, however, "[a]s long as the parties have a concrete
interest, however small, in the outcome of the
litigation." Id; see also Holstein v. City
of Chicago, 29 F.3d 1145, 1147 (7th Cir. 1994) ("A