Scott Barr, DDS v. The Harvard Drug Group, LLC , 591 F. App'x 928 ( 2015 )

Case: 14-13138 Date Filed: 01/29/2015 Page: 1 of 3
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 14-13138
Non-Argument Calendar
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D.C. Docket No. 0:13-cv-62019-KAM
SCOTT BARR, DDS
on behalf of itself and others similarly situated,
Plaintiff-Appellant,
versus
THE HARVARD DRUG GROUP, LLC,
a Michigan corporation
d.b.a. Expert-Med,
Defendant-Appellee.
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Appeal from the United States District Court
for the Southern District of Florida
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(January 29, 2015)
Before JORDAN, KRAVITCH and BLACK, Circuit Judges.
PER CURIAM:
Case: 14-13138 Date Filed: 01/29/2015 Page: 2 of 3
In this appeal, we must determine whether a putative class action becomes
moot when a defendant offers a judgment in favor of the only named plaintiff and
putative class representative and the plaintiff declines the offer. Because this court
recently answered this question in the negative, we reverse and remand the district
court’s dismissal of the plaintiff’s complaint.
Scott Barr, DDS, filed a putative class action against The Harvard Drug
Company, LLC (HDC) for violations of the Telephone Consumer Protection Act,
47 U.S.C. § 227. Before Barr moved for class certification, HDC made an offer of
judgment, see Fed.R.Civ.P. 68, for the maximum monetary damages for Barr’s
individual cause of action, an injunction to prevent future violations of the Act, and
an entry of a judgment. Barr did not accept the offer and instead moved for class
certification.
Thereafter, HDC moved to dismiss the complaint as moot. See Fed.R.Civ.P.
12(b)(1). The district court found Barr’s claims moot and dismissed the complaint
for lack of subject-matter jurisdiction.
When reviewing a court’s dismissal of a complaint as moot, we review
factual findings for clear error and the legal issue de novo. Stein v. Buccaneers
Ltd. P’ship, 772 F.3d 698, 701 (11th Cir. 2014).
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Case: 14-13138 Date Filed: 01/29/2015 Page: 3 of 3
Our recent decision in Jeffrey Stein, D.D.S., M.S.D., P.A. v. Buccaneers
Limited Partnership, controls this appeal. 1 772 F.3d at 704, 709. In Buccaneers
Limited, the named plaintiff received an offer of judgment under Rule 68 before
the plaintiff moved for class certification. The plaintiff then rejected the offer. Id.
at 700-01. We held that the unaccepted offer of judgment under Rule 68 did not
render the named plaintiff’s complaint moot. Id. at 704.
The facts in the instant case are the same in all relevant respects.
Accordingly, based on Buccaneers Limited, HDC’s offer of judgment did not
render Barr’s complaint moot. We therefore REVERSE the order of dismissal for
lack of subject-matter jurisdiction and REMAND for further proceedings
consistent with this opinion.
REVERSED and REMANDED.
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HDC argues that Barr waived any argument concerning mootness by not raising it in his
opposition to the motion to dismiss. We disagree because “we have an independent obligation to
assure ourselves of the justiciability of a controversy under Article III.” Doe v. Wooten, 747
F.3d 1317, 1322 n.3 (11th Cir. 2014) (citation omitted).
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