Clausen Law Firm, PLLC v. National Academy of Continuing Legal Education
2010 U.S. Dist. LEXIS 120989
W.D. Wash.2010Background
- Clausen filed a class action-like action on June 21, 2010 against NACLE in Washington federal court alleging TCPA, Fax Statute, and CPA violations.
- NACLE allegedly sent an unsolicited fax in November 2009 advertising educational materials/services.
- There was dispute over whether the fax was unsolicited.
- Rule 68 offer of judgment for $3,000 plus fees/other relief was served August 2, 2010; Clausen did not accept.
- Plaintiff had not yet moved for class certification; no certified classes existed at the time.
- Court must decide if proposed uncertified class action is moot after a pre-certification Rule 68 offer; issue debated among circuits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rule 68 moots a proposed class before certification. | Clausen argues relation back prevents mootness. | NACLE argues complete relief moots claims. | Rule 12(b)(1) dismissal denied; relation back applied. |
| Does Rule 68 offer pre-certification create mootness despite pending Rule 23 motion? | Relate back should preserve class action potential. | Offer should moot individual claims. | Court adopts relation-back approach to preserve potential class action. |
| Should the court apply the relation-back doctrine given timing after filing but before certification? | Plaintiff had time to conduct discovery for certification. | Defendant offered complete relief to moot claims. | Relation back applied; prevents picking off named plaintiff. |
| Did Supreme Court decisions disapprove tactics of “picking off” named plaintiffs pre-certification? | Roper/Weiss support protections against pre-certification mootness. | Roper dicta not controlling; offer should moot claims. | Court rejects defendant’s broad reliance on Greisz-Lucero line; adopts relation-back rationale. |
Key Cases Cited
- Sosna v. Iowa, 419 U.S. 553 (1975) (relation-back to preserve class review in inherently transitory claims)
- Roper v. Consurve, Inc., 445 U.S. 326 (1980) (disapproved picking off named plaintiffs pre-certification)
- Geraghty v. United States, 445 U.S. 388 (1980) (class action jurisdiction preserved despite mooted claims; personal stake retained)
- Weiss v. Regal Collections, 385 F.3d 337 (3d Cir. 2004) (relation-back to avoid mootness when Rule 68 offered early; class integrity)