In the

United States Court of Appeals

For the Seventh Circuit

No. 13-2699

ETTA SCOTT, on behalf of herself and

others similarly situated,

Plaintiff-Appellant,

v.

WESTLAKE SERVICES LLC, doing business as WESTLAKE FINANCIAL SERVICES,

Defendant-Appellee.

Appeal from the United States District Court for the 

Northern District of Illinois, Eastern Division.

No. 12 C 9289 — Rubén Castillo, Chief Judge.

ARGUED DECEMBER 10, 2013 — DECIDED JANUARY 23, 2014

Before MANION, ROVNER, and HAMILTON, Circuit Judges.

HAMILTON, Circuit Judge. Etta Scott filed suit on behalf of

herself and a putative class alleging that defendant Westlake

Services LLC repeatedly called her in violation of the Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”).

Before Scott moved to certify a plaintiff class, Westlake offered
2 No. 13-2699

to pay Scott the full statutory damages for any calls that

violated the TCPA. Scott did not accept the offer. The district

court then held that the offer rendered Scott’s case moot and

entered final judgment, but retained jurisdiction over postjudgment discovery in the case. Scott appeals, and we reverse.

I. Factual and Procedural Background

Scott filed her first amended complaint (the operative

complaint in the case) on January 17, 2013. The complaint

alleged that Westlake repeatedly called her cell phone using an

automated dialer in violation of the TCPA. Scott sought for

herself and a putative class: (1) statutory damages of $500 for

each negligent violation of the Act and $1500 for each intentional violation of the Act, (2) injunctive relief, and (3) attorney

fees. She did not immediately move for class certification.

On February 5, 2013, Westlake sent Scott’s attorney an

email with a settlement offer. Westlake offered to pay Scott

$1500 (the statutory maximum) “for each and every dialergenerated telephone call made to plaintiff.” The email went on

to say that while Scott had identified twenty dialer-generated

calls made to her phone, Westlake believed there were only six,

and suggested further discussion to “resolve the discrepancy.”

Westlake also agreed to pay Scott all costs that she would

recover if she prevailed in her lawsuit, and agreed to the entry

of an injunction prohibiting Westlake from calling her again

without her express permission. The email concluded by

warning Scott that, in Westlake’s view, its offer rendered her

case moot. The next day, Scott moved for class certification and

declined the settlement offer. She explained that there was “a

significant controversy” concerning how many dialer-gener-
No. 13-2699 3

ated calls Westlake had placed to her phone, so the offer was

inadequate and did not render her case moot. 

Westlake then moved to dismiss Scott’s suit as moot. The

district court granted the motion, finding that Westlake had

offered Scott everything she sought in her complaint thus

depriving the court of subject matter jurisdiction. The court

recognized, however, that there was sufficient uncertainty

about the actual terms of the settlement offer that it would

need to retain jurisdiction to enforce compliance with the offer.

The court directed the parties to conduct discovery to determine just how many dialer-generated calls Scott had actually

received from Westlake so that the amount of Westlake’s check

to Scott could be calculated. In the court’s view, Kokkonen v.

Guardian LifeIns. Co. of America, 511 U.S. 375 (1994), authorized

this procedure as long as the judgment incorporated the

settlement offer. Scott appeals the dismissal and the district

court’s retention of jurisdiction under Kokkonen.

II. Analysis

Before turning to the substance of Scott’s claims, we must

first determine the basis of our jurisdiction over this appeal.

Post-judgment discovery is ongoing in the district court, and

that court may issue further rulings to decide discovery

disputes and enforce the settlement offer. Despite these

continued proceedings, the district court entered on June 6,

2013 a final judgment that resolved all claims. Upon entry of

that final judgment, Scott could not risk waiting for further

action. We conclude that we have jurisdiction over the appeal

from the final judgment pursuant to 28 U.S.C. § 1291. On to the

merits.
4 No. 13-2699

Under this circuit’s case law, an unaccepted settlement offer

can render the plaintiff’s case moot if it gives the plaintiff

everything she requested. Damasco v. Clearwire Corp., 662 F.3d

891, 895 (7th Cir. 2011); Gates v. City of Chicago, 623 F.3d 389,

413 (2010). These cases reason that once “the defendant offers

to satisfy the plaintiff’s entire demand, there is no dispute over

which to litigate” and thus no controversy to resolve. Rand v.

Monsanto Co., 926 F.3d 596, 597–98 (7th Cir. 1991). In other

words, “You cannot persist in suing after you’ve won.”

Greisz v. Household Bank (Ill.), N.A., 176 F.3d 1012, 1015 (7th Cir.

1999).1

On the other hand, if the defendant offers to pay only what

it thinks might be due, the offer does not render the plaintiff’s

case moot. Gates v. Towery, 430 F.3d 429, 431–32 (7th Cir. 2005).

In that situation, the plaintiff still has a stake in the action

because she may obtain additional relief if she prevails. The

plaintiff’s stake is negated only if no additional relief is

Since most plaintiffs are happy to have defendants surrender, this tactic 1

is most controversial as a means to short-circuit a looming class action or as

a means to avoid paying attorney fees and costs in light of Buckhannon Bd.

and Care Home, Inc. v. West Virginia Dept. of Health and Human Resources, 532

U.S. 598 (2001). The circuits are split on whether an unaccepted settlement

offer can render a case moot. Compare, e.g., Diaz v. First Am. Home Buyers

Protection Corp., 732 F.3d 948, 950 (9th Cir. 2013) (no), with Warren v. Sessoms

& Rogers, P.A., 676 F.3d 365, 370 (4th Cir. 2012) (yes). The Supreme Court

granted certiorari in Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523

(2013), to resolve this split but ultimately decided that case on narrower

grounds. The circuit split remains, but there are reasons to question our

approach to the problem. See id. at 1533–34 (Kagan, J., dissenting). Scott

does not challenge our circuit’s view, so we will continue to await a

resolution of the split.
No. 13-2699 5

possible. Id. To hold otherwise would imply that any reasonable settlement offer moots the plaintiff’s case orthat long-shot

claims are moot rather than unlikely to succeed. Id. at 432.

“That’s not the way things work: A bad theory (whether of

liability or of damages) does not undermine federal jurisdiction.” Id.

Westlake did not offer to satisfy Scott’s entire demand.

Westlake offered to pay only for dialer-generated calls and

acknowledged only six such calls, significantly fewer than the

twenty or more calls Scott identified in her complaint, translating to a difference of at least $21,000 in damages due. That is

not an unconditional offer to pay the plaintiff the entirety of

her demand. Whether a call is “dialer-generated” within the

meaning of the TCPA is a hotly contested issue on the merits.

See, e.g., Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 950

(9th Cir. 2009) (reversing grant of summary judgment because

of factual dispute on whether defendants had used automated

dialer in violation of TCPA). Westlake’s offer amounted to

telling Scott it was willing to pay for all calls that in its estimation (or perhaps that of a court) violated the TCPA. Under the

sound reasoning of Gates v. Towery, such an offer could not

render Scott’s case moot.

Westlake argues, however, that Damasco v. Clearwire Corp.,

662 F.3d 891 (7th Cir. 2011), requires affirmance. We disagree.

In Damasco, the defendant offered to pay the plaintiff maximum statutory damages “for each text message received from

Clearwire.” Id. at 893. That offer gave the plaintiff everything

he requested because it offered to pay the plaintiff for every

message he had received from the defendant. All that remained to be done was to count the number of calls and write
6 No. 13-2699

the plaintiff a check. Here, by contrast, Westlake offered to pay

for each dialer-generated call Scott received, and disputed the

number of qualifying calls. The fact that Westlake was willing

to pay for “each and every” such message does not change the

fact that Westlake was offering to pay only the amount it felt

might be due. That was not enough to moot Scott’s case.

Our conclusion is bolstered by the district court’s order to

conduct post-judgment discovery to determine how many

qualifying calls Scott received. Post-judgment discovery is

unusual to begin with. The idea of post-judgment discovery

into a disputed issue on the merits of the case to figure out how

to apply an unaccepted settlement offer that supposedly

rendered the case moot is difficult to grasp. Where further

discovery relevant to the merits and possibly even future

rulings are needed to determine how much the defendant

actually offered to pay, a live controversy still exists between

the parties.

The district court concluded, and Westlake argues, that

Kokkonen v. Guardian LifeIns. Co. of America, 511 U.S. 375 (1994),

authorized the court to retain jurisdiction over the postjudgment discovery proceedings. Because we conclude that

Scott’s case is not moot, we need not decide whether Kokkonen

authorized this procedure. We note, however, that Kokkonen

involved a settlement agreement rather than an unaccepted

settlement offer, and that the parties’ post-judgment dispute

did not involve the merits of the underlying case. Kokkonen,

511 U.S. at 376–77. Supervising post-judgment discovery into

the merits of the underlying case is quite different from

determining, as in Kokkonen, whether one party must return a

file to the other. Id. at 377. The difference between the disagree-
No. 13-2699 7

ment in Kokkonen and the disagreement in this case is a further

indication that Scott’s case is not moot. 

One somewhat sticky puzzle remains to be resolved: how

should the district court proceed on remand, given that

discovery is already taking place as part of the post-judgment

proceedings?We conclude that the district court should simply

revive the original case and convert the post-judgment

discovery into discovery on the merits of the underlying case,

including full discovery if appropriate. Scott is also free to

renew her motion for class certification, which was denied

when her case was declared moot.

We REVERSE the judgment dismissing the case as moot

and REMAND to the district court for proceedings consistent

with this opinion.