Jacobson v. Credit Control Services, Inc. ( 2016 )

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS March 10, 2016
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
ROSE JACOBSON,
Plaintiff-Appellant/
Cross-Appellee,
v. Nos. 14-1425 & 14-1454
CREDIT CONTROL SERVICES, INC., a
Delaware corporation,
Defendant-Appellee/
Cross-Appellant.
_______________________________
Appeal from the United States District Court
for the District of Colorado
(D.C. No. 1:13-CV-03307-WYD-MJW)
_________________________________
Submitted on the briefs:*
Scott L. Nelson and Allison M. Zieve, Public Citizen Litigation Group, Washington,
District of Columbia; David M. Larson, Englewood, Colorado, for Plaintiff-Appellant.
Joseph J. Lico and Steven J. Wienczkowski, Adam L. Plotkin, P.C., Denver, Colorado,
for Defendant-Appellee.
_________________________________
Before KELLY, PORFILIO, and BALDOCK, Circuit Judges.
_________________________________
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
KELLY, Circuit Judge.
_________________________________
Rose Jacobson appeals the district court’s dismissal without prejudice of her
claims under the Fair Debt Collection Practices Act (FDCPA), and Credit Control
Services (CCS) cross-appeals the fact that the dismissal was without prejudice
instead of with prejudice. Ms. Jacobson originally sought both statutory and actual
damages under the FDCPA. CCS made an offer of judgment under Federal Rule of
Civil Procedure 68 for $1,001, one dollar more than the statutory damages sought,
plus attorneys’ fees and costs. Ms. Jacobson did not accept and the offer lapsed
under the Rules. Several months later, Ms. Jacobson filed a notice waiving her claim
to actual damages. CCS moved to dismiss the case, arguing that the offer of
judgment would have accorded her the full amount of statutory damages she could
recover, rendering the action moot.
The district court agreed, finding that CCS offered Jacobson “an amount that
exceeds what she can recover pursuant to 15 U.S.C. § 1692k(a).” Aplt. App. at 66a.
On that basis, the district court dismissed the action without prejudice and awarded
costs to CCS. Thus, on appeal, the central issue is whether an unaccepted offer of
judgment under Rule 68 can moot a plaintiff’s claim to relief, thereby depriving the
district court of subject-matter jurisdiction. Coincidentally, the Supreme Court
granted certiorari to decide this exact issue in Campbell-Ewald Co. v. Gomez,
136 S. Ct. 663 (2016). Accordingly, we held the matter in abatement pending the
2
Court’s decision.1 On January 20, 2016, the Court decided Gomez, holding that an
unaccepted settlement offer does not, in fact, render a plaintiff’s case moot because
the parties remain just as adverse as they were at the outset of litigation without an
accepted settlement offer. 136 S. Ct. at 670–72.
We asked the parties to file supplemental briefs addressing whether Gomez
answers the question posed by Ms. Jacobson’s appeal. Both parties agree that it
does. Both parties also agree that CCS’s cross-appeal is moot in light of Gomez. We
therefore vacate the judgment and assessment of costs, and remand for continued
proceedings.
1
We also held the matter in abatement based on the Court’s grant of certiorari
in Robins v. Spokeo, Inc., 742 F.3d 409 (9th Cir. 2014), cert. granted, 135 S. Ct.
1892 (2015). The issue in Spokeo is whether Congress may confer standing upon a
plaintiff who suffers no cognizable harm, and who therefore could not otherwise
invoke federal jurisdiction, by authorizing a private right of action based on a bare
violation of a federal statute. Pet. for Writ of Cert. at i, Spokeo, No. 13-1339 (May 1,
2014). We agree with the parties that Gomez is more germane to the issue before us
and that we need not wait for the Spokeo decision.
3