Fulton Dental, LLC v. Bisco, Inc.
860 F.3d 541
7th Cir.2017Background
- Fulton Dental sued Bisco under the TCPA after receiving an unsolicited advertising fax, seeking statutory damages, an injunction, and class certification.
- Bisco first served a Rule 68 offer of judgment for the plaintiff’s individual claim before Fulton moved for class certification; Fulton declined it.
- Bisco then deposited $3,600 into the court registry under Federal Rule of Civil Procedure 67, which it argued fully compensated Fulton’s individual claim and satisfied the requested injunction.
- The district court treated the Rule 67 deposit and Bisco’s offer to accept an injunction as mooting Fulton’s individual claim and disqualifying Fulton as a class representative, and entered judgment for Bisco.
- The Seventh Circuit reversed, holding that a Rule 67 deposit does not automatically moot the plaintiff’s claim or force acceptance of a settlement, and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an unaccepted Rule 67 deposit into the court registry moots the named plaintiff’s individual claim | Fulton: An unaccepted deposit does not extinguish the case or force acceptance; the registry is not an account payable to plaintiff | Bisco: Depositing full amount of plaintiff’s claim into court registry satisfies the claim and moots it, eliminating class standing | The deposit does not moot the claim; unaccepted offers or deposits do not bind the plaintiff and the registry is not an account payable to the plaintiff |
| Whether the district court could enter merits relief after the deposit | Fulton: Court lacked power to enter merits judgment once the claim was effectively unaccepted and disputed | Bisco: Court could treat the deposit as satisfying the claim and enter judgment | Court ruled that entering merits judgment after an unaccepted deposit was improper; the matter is for litigation, not automatic judgment |
| Whether a Rule 67 deposit is equivalent to a Rule 68 offer/offer of judgment for mootness analysis | Fulton: No material difference; unaccepted offers under either rule do not moot claims | Bisco: Rule 67 deposit achieves the end Campbell‑Ewald left open (deposit payable to plaintiff) and thus moots | Court: No principled distinction in outcome—unaccepted deposit like an unaccepted offer does not moot; Rule 67 does not force settlement |
| Whether Fulton still may seek class certification after the deposit | Fulton: Retains ability to seek certification; deposit doesn’t strip representative status automatically | Bisco: Deposit eliminated Fulton’s individual stake and thus precluded class representation | Court: Fulton’s claim remains live and class certification remains open; affirmative defenses (payment, estoppel) remain for district court to consider |
Key Cases Cited
- Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663 (2016) (unaccepted settlement offer does not moot a plaintiff’s case; reserved question about court registry deposits)
- Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523 (2013) (addressed effect of offers of judgment on collective and class claims)
- U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship, 513 U.S. 18 (1994) (settlement mootness and limits on vacatur; courts lack power to decide merits without a live case or controversy)
- Chapman v. First Index, Inc., 796 F.3d 783 (7th Cir. 2015) (Rule 68 pick‑off attempt did not moot TCPA plaintiff’s claim; affirmative defenses may remain)
- Gen. Tel. Co. of the Southwest v. Falcon, 457 U.S. 147 (1982) (standards for class representative adequacy; lack of personal stake may disqualify representative)
- East Texas Motor Freight Sys., Inc. v. Rodriguez, 431 U.S. 395 (1977) (named plaintiffs must have suffered injury to represent the class)