Mabary v. Hometown Bank, N.A.
276 F.R.D. 196
S.D. Tex.2011Background
- Plaintiff Mabary, on behalf of herself and others, sues Hometown Bank alleging EFTA and Regulation E violations related to ATM fee notices.
- Plaintiff claims a $2.00 terminal fee in May 2010 with no notice posted on or at the ATM informing of the fee.
- Plaintiff seeks class certification for all persons charged such a fee where no on/off ATM notice was posted.
- Hometown moved to dismiss under Rule 12(b)(6) or 12(b)(1); later offered judgment under Rule 68 for $1,000 to Plaintiff.
- Plaintiff amended to add class allegations and moved for class certification; the court stayed ruling on class certification pending disposition.
- Court applies the Fifth Circuit’s relation back doctrine to preserve jurisdiction for class certification review despite an offer of complete relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether relation back preserves jurisdiction | Relation back keeps live controversy if class certification is pending. | Offer moots claims; no live controversy without certified class. | Relation back preserves jurisdiction; mootness depends on class certification outcome. |
| Whether the case is moot under Rule 12(b)(1) | Class certification pending keeps case live; offers do not moot the entire action. | Offer of judgment moots individual claims, potentially dismissing the case. | Rule 12(b)(1) denial; case remains justiciable pending class certification. |
| Whether the First Amended Complaint cures Rule 12(b)(6) defects | FAC cures deficiencies in original complaint regarding EFTA liability. | Original complaint lacked jurisdictional facts; amendments may not relate back. | FAC resolved pleading deficiencies; 12(b)(6) denial based on cured allegations. |
| Whether Hometown’s Rule 68 offer extinguishes EFTA claims | Offer of full relief for individual claims should not defeat class treatment absent certification. | Full relief to named plaintiff would moot the case. | Offer may be non-moot if timely class certification motion is pending and relates back. |
| Whether the EFTA notice requirements were adequately pled | Alleged lack of “on the machine” notice supports statutory damages. | Need to show Hometown was ATM operator and account holder; pleading specifics required. | FAC adequately alleges Hometown as ATM operator and Mabary’s account ownership; claims survive. |
Key Cases Cited
- Zeidman v. J. Ray McDermott & Co., Inc., 651 F.2d 1030 (5th Cir. 1981) (relation back to preserve class action live controversy when certification pending)
- Sandoz v. Cingular Wireless LLC, 553 F.3d 913 (5th Cir. 2008) (extends relation back to collective actions; timing of certification motion)
- Murray v. Fidelity National Financial, Inc., 594 F.3d 419 (5th Cir. 2010) (discusses timely class certification and relation back in presence of offer)
- Rand v. Monsanto Co., 926 F.2d 596 (7th Cir. 1991) (offers of complete relief can moot a plaintiff's claim)
- United States Parole Comm’n v. Geraghty, 445 U.S. 388 (U.S. 1980) (Article III mootness limits; live controversy required)
- Deposit Guaranty Natl Bank v. Roper, 445 U.S. 326 (U.S. 1980) (mootness and class actions context)