IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

PHYSICIANS HEALTHSOURCE, INC., )

an Ohio corporation, individually and as )

the representatives of a class of similarly- )

situated persons, )

)

Plaintiff, )

) No. 12 C 3233

v. )

) Magistrate Judge Jeffrey Cole

)

ALLSCRIPTS-MISY’S HEALTHCARE ) 

SOLUTIONS, INC., ALLSCRIPTS, LLC,) 

and ALLSCRIPTS HEALTHCARE )

SOLUTIONS, INC., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

On May 1, 2012, Physicians Healthsource, Inc. filed this class action against AllscriptsMisy’s Healthcare Solutions, Inc., Allscripts, LLC, and Allscripts Healthcare Solutions, Inc. for

sending “junk” faxes in violation of the Telephone Consumer Protection Act. (“TCPA”), 47

U.S.C. § 227.1 [Dkt. #1]. Concurrent with the Complaint, the plaintiff also filed a bare-bones,

boiler plate Motion for Class Certification, but did not notice it for presentment at that time.

[Dkt. #4]. That same day, before even entering an appearance, counsel for the defendants sent

the plaintiff a settlement letter offering to pay $1,500 for each and every facsimile the plaintiff

received – the maximum amount recoverable under the TCPA – as well as any costs that the

plaintiff would recover were it to prevail. (See [Dkt. #34], Almeida Decl., Ex. A at 2). The

defendants also offered to agree to the injunctive relief sought by the plaintiff. Id. Having made a

1 This is the second TCPA class action suit brought by plaintiff’s counsel against defendants,

which settled and was finally approved by Magistrate Judge Kim on February 16, 2012. See Geismann v.

Allscripts-Misys Healthcare Solutions, Inc., Case No. 09 CV 5114. 

Case: 1:12-cv-03233 Document #: 43 Filed: 11/29/12 Page 1 of 7 PageID #:333
complete offer of judgment, the defendants now move to dismiss the complaint for lack of

subject matter jurisdiction for mootness. They also renew their previous request to deny the

plaintiff’s Motion for Class Certification.2

It is axiomatic that “[y]ou cannot persist in suing after you've won.” Greisz v. Household

Bank (Illinois), N.A., 176 F.3d 1012, 1015 (7th Cir. 1999). Article III of the Constitution limits

the jurisdiction of federal courts to “actual, ongoing, controversies.” Honig v. Doe, 484 U.S. 305,

317 (1988). In order for a court to maintain jurisdiction, there must be “an actual case or

controversy at all stages of the litigation.” Muro v. Target Corp., 580 F.3d 485, 491 (7th Cir.

2009). That is to say, “the parties to a federal case [must] maintain a personal stake in the

outcome at all stages of the litigation.” Damasco v. Clearwire Corp., 662 F.3d 891, 895 (7th Cir.

2011). It necessarily follows that, “[a] case becomes moot when the dispute between the parties

no longer rages, or when one of the parties loses his personal interest in the outcome of the suit.”

Holstein v. City of Chicago, 29 F.3d 1145, 1147 (7th Cir. 1994); Gates v. City of Chicago, 623

F.3d 389, 412 (7th Cir. 2010). Consequently, “‘[o]nce the defendant offers to satisfy the

plaintiff's entire demand, there is no dispute over which to litigate, and a plaintiff who refuses to

acknowledge this loses outright, under Fed.R.Civ.P. 12(b)(1), because he has no remaining

stake.’” Damasco, 662 F.3d at 895.

The doctrine of mootness applies with no less force to a class action suit, where a named

plaintiff serves in a representative capacity. Premium Plus Partners, L.P. v. Goldman, Sachs &

2

 The defendants originally filed a motion to dismiss for lack of subject matter jurisdiction – no

injury alleged, to deny the plaintiff’s Motion for Class Certification, and in the alternative, to stay all

proceedings pending the Seventh Circuit’s resolution of Holtzman v. Turza (7th Cir. Nos. 11-3176 & 11-

3188), [Dkt. #17] I granted the motion to stay, denied the motion to dismiss without prejudice, and

ordered the defendants to directly address the plaintiff’s class certification motion in light of the their incourt representations that they had offered to settle the plaintiff’s claims in full. [Dkt. #32]

2

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Co., 648 F.3d 533, 538 (7th Cir. 2011) (“It takes a representative with a live claim to carry on

with a class action”); Wrightsell v. Cook County, 599 F.3d 781 (7th Cir.2010); Muro, 580 F.3d

485. A complete offer of settlement made prior to the filing for class certification moots the

plaintiff's claim. Damasco, 662 F.3d at 894; Holstein, 29 F.3d 1145. The mere fact that a

complaint identifies the suit as a class action “is not enough by itself to keep the case in federal

court.” Damasco, 662 F.3d at 896; see Turek v. General Mills, Inc., 662 F.3d 423, 424 (7th

Cir.2011). Nor can a plaintiff avoid mootness by moving for class certification after receiving

an offer that satisfies their entire demand. Damasco 662 F.3d at 895; Gates, 623 F.3d at 413. 

“To allow a case, not certified as a class action and with no motion for class certification even

pending, to continue in federal court when the sole plaintiff no longer maintains a personal stake

defies the limits on federal jurisdiction expressed in Article III.” Damasco 662 F.3d at 896

Because a “defendant cannot moot a case by making an offer after a plaintiff moves to

certify a class,” id., at 895-896 (emphasis in original), the Seventh Circuit’s solution to the “buyoff” problem faced by class action plaintiffs is for the plaintiff to “move to certify the class at the

same time they file their complaint,” Id., at 896.3

 And, “[i]f the parties have yet to fully develop

the facts needed for certification, then they can also ask the district court to delay its ruling to

provide time for additional discovery or investigation.” Id.

 The plaintiff’s Motion for Class Certification filed simultaneously with its Complaint 

thus explained: 

3

 In other circuits, absent undue delay, a plaintiff may move to certify a class after being

offered complete relief and avoid mootness. See Pitts v. Terrible Herbst, Inc., 653 F.3d 1081, 1091–92

(9th Cir.2011); Lucero v. Bureau of Collection Recovery, Inc., 639 F.3d 1239, 1249–50 (10th Cir.2011);

Sandoz v. Cingular Wireless LLC, 553 F.3d 913, 920–21 (5th Cir.2008); Weiss v. Regal Collections, 385

F.3d 337, 348 (3d Cir.2004). The Seventh Circuit has rejected this approach. Damasco, 662 F.3d at 896.

3

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Because the Seventh Circuit has ruled that a class plaintiff must file a motion for

class certification to avoid a “pick-off,” Plaintiff has filed this motion for class

certification now, rather than waiting for discovery. Plaintiff requests leave to

submit a brief and other evidence in support of this motion after discovery about

the class elements has been completed.”

[Dkt. #4, at 1-2] (citation omitted). 

The defendants argue that the plaintiff’s class certification motion does not protect them

from the dispositive effects of an offer for complete relief because the plaintiff failed to notice

the motion for presentment within the 14-day period required under by Local Rule 5.3(b). 

Having failed to comply with Local Rule 5.3(b), the defendant has moved to dismiss the motion

pursuant to Local Rule 78.2. It is without question that the plaintiff did not notice its motion

within 14 days of filing it. Given that the defendants’ counsel did not enter an appearance4

 until

25 days after the motion was filed, the plaintiff’s failure to adhere to LR 5.3(b)’s 14-day notice

requirement is somewhat understandable and quite harmless.5 The plaintiff, however, did not

file its first notice of presentment until the day after the defendant first moved to deny the

plaintiff’s motion for class certification – for failure to file a notice of presentment – and fiftyone days after filing the motion. [See Dkts. ## 17, 23]. 

The defendant is correct that LR 5.3(b)’s presentment requirement is not optional and

that judges in this District have repeatedly dismissed motions for failure to comply with the

4 Counsels for the defendants filed their appearance on May 25, 2012. [Dkts. ## 12, 13]. Four

days later, they filed an unopposed motion for an extension of time to respond to the complaint [Dkt.

#14]. 

5

 In their reply brief, the defendants argue that in other class action cases the plaintiff’s counsel

had no problem complying with LR 5.3(b), filing timely notices of presentment with motions for class

certification. (Def.’s Reply, at 8). However, the docket sheets provided by the defendants in support of

this argument show that while true, in each instance, counsel for the defendant(s) had already entered an

appearance. (Def.’s Reply., Ex. B, C, D). That said, as a matter of best practice, and to avoid the very

issue now faced, the plaintiff would have been well served to simply file the notice of presentment along

with its motion for class certification. 

4

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Rule. Although LR 5.3(b) is a rule of notice and the defendants cannot say the plaintiff’s failure

to notice their motion for class certification in any way disadvantaged them – the complaint itself

is entitled “Class Action Complaint,” – deadlines count. See Spears v. City of Indianapolis, 74

F.3d 153, 157 (7th Cir.1996) (“we live in a world of deadlines ... the practice of law is no

exception ... when parties wait until the last minute to comply with a deadline, they are playing

with fire”); In re Sulfuric Acid Antitrust Litigation, 230 F.R.D. 527, 533

(N.D.Ill.2005)(collecting cases). And the Seventh Circuit has repeatedly warned that ignoring

deadlines is the surest way to lose a case. United States v. Golden Elevator, Inc., 27 F.3d 301,

302 (7th Cir.1994); see also Harris v. Owens–Corning Fiberglass Corp., 102 F.3d 1429, 1433

(7th Cir.1996). 

However, whether to dismiss a motion under Local Rule 78.2 is entirely within a court’s

discretion. LR 78.2 provides, “[w]here the moving party ... delivers a motion ... without the

notice required by LR5.3(b) and fails to serve notice of a date of presentment within 14 days of

delivering the copy of the motion ... to the court ... the court may on its own initiative deny the

motion.” (emphasis added). While the Seventh Circuit has stressed the importance of

compliance with Local Rules, see FTC v. Bay Area Business Council, Inc., 423 F.3d 627 (7th

Cir.2005), Local Rules have their limitations. And, like all rules, they must have sufficient

flexibility and must be applied to accomplish the ends of justice and “not bury it beneath the

pressure of their own weight,” Joseph Story, Miscellaneous Writings, 210 (1852). 

For that reason, our Court of Appeals has recognized that trial judges have broad

discretion to determine how and when to enforce local rules. See Elustra v. Mineo, 595 F.3d 699,

710 (7th Cir. 2010); Schlacher v. Law Offices of Phillip J. Rotche & Associates, P.C., 574 F.3d

5

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852, 859 (7th Cir.2009); Little v. Cox's Supermarkets, 71 F.3d 637, 641 (7th Cir. 1995);

Waldridge v. American Hoechst Corp., 24 F.3d 918, 923 (7th Cir. 1994). Inherent in that

discretion is the authority to decide when a departure from Local Rules should be excused.

Somlyo v. J. Lu-Rob Enterprises, 932 F.2d 1043, 1048 (2nd Cir.1991). Cf. Brengettcy v. Ilorton,

423 F.3d 674 (7th Cir. 2005). An appropriate circumstance for excusing non-compliance with

rules is when compliance would have been an exercise in futility. See Murata Mfg. Co., Ltd. v.

Bel Fuse, Inc., 242 F.R.D. 470, 474 (N.D.Ill.2007) (collecting cases).

Excusing the plaintiff’s noncompliance with the Local Rule’s presentment schedule in

this case is consistent with Damasco’s requirement that to avoid the “buy-off” problem, a

plaintiff must file with his complaint a motion for class certification and its directive that a court

should “wait until ‘an early practicable time’ before ruling on a motion to certify a class.”

Damasco, 662 F.3d at 896 (quoting F.R.C.P. 23(c)(1)(A)). A court “must engage in a ‘rigorous

analysis’—sometimes probing behind the pleadings—before ruling on certification.” Id.

(emphasis added). And in fact, “a court may abuse its discretion by not allowing for appropriate

discovery before deciding whether to certify a class.” Id., at 897 (citations omitted). Those

directives often cannot be adhered to if a court were required to rule on a class certification

motion that was noticed to be heard within days of the filing of the simultaneously filed

complaint. Dismissal in this case, especially when there is no prejudice to the defendant by the

plaintiff’s failure to notice its motion in a more timely way serve no useful purpose.

This is not to say that Local Rule 38.2 can be ignored or that in circumstances other than

those presented here, the result might not be different. Rules and schedules count and cannot be

ignored. “We live in a world of deadlines... the practice of law is no exception... when parties

6

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wait until the last minute to comply with a deadline, they are playing with fire.” Spears v. City

of Indianapolis, 74 F.3d 153, 157 (7th Cir. 1996). See also Raymond v. Ameritech Corp., 442

F.3d 600 (7th Cir. 2006). See also Milam v. Dominick's Finer Foods, Inc., 567 F.3d 830, 831 (7th

Cir. 2009); Gross v. Town of Cicero, 528 F.3d 498, 499-500 (7th Cir.2008). 

The defendants’ motions to dismiss and to deny class certification are denied. 

ENTERED:_____________________________________

 UNITED STATES MAGISTRATE JUDGE

DATE: 11/29/12

7

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