IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

JOEL NOONKESTER, §

 §

Plaintiff, §

 §

v. § Civil Action No. 4:22-cv-00223-O

 § 

CAPITAL MANAGEMENT §

HOLDINGS, LLC, et al., § 

§ 

Defendants. §

 

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Before the Court are the Motion to Dismiss for Lack of Jurisdiction filed by Defendants 

Elite Debt Brokers, LLC (“Elite”), Allied Financial Group, LLC (“Allied”), and Michael Bovino,

collectively (“Defendants”) (ECF No. 73), Plaintiff’s Response (ECF No. 74), and Defendants’

Reply. (ECF No. 75). Having considered the pleadings and applicable legal authorities, the 

undersigned RECOMMENDS that United States District Judge Reed O’Connor DENY the 

Motion. ECF No. 73. 

I. BACKGROUND

Plaintiff Joel Noonkester (“Noonkester”) obtained two loans from non-parties

CashNetUSA (“Account 1”) and QC Holdings, Inc. (“Account 2”). ECF No. 53. After Account 1 

went into default, it was charged off and sold, eventually coming into Elite’s possession, which

then transferred the account to Allied. Id. at 4. However, Elite retained certain contractual rights 

regarding Account 1. Id. Similarly, after Account 2 went into default, it was charged off and sold, 

eventually coming into the possession of Allied. Id. at 6.

Case 4:22-cv-00223-O Document 84 Filed 07/27/23 Page 1 of 7 PageID 1273
2

Noonkester alleges that around March 27, 2021, “most likely Allied, but in the alternative 

an unknown (and unnamed) agent of Elite” called him and his relatives attempting to collect on 

the accounts. Id. Without Noonkester’s consent, this agent called his nephew and his wife, telling 

them that they “would be served with papers if Plaintiff did not repay a debt before the process 

server arrived.” Id. at 7. The agent also left Noonkester a voicemail stating that a case would soon 

be filed against him if he did not pay his debts. Id. The caller in the voicemail gave Noonkester a 

phone number as a point of contact about the case. Id. Allied was the authorized user of the phone 

number from which the calls originated. Id. After Noonkester received the voicemail, he called the 

number provided, and a purported Allied employee told him that he “would be sued for more than 

$1,000 if he did not immediately remit payment.” Id. at 8. Fearing suit, Noonkester agreed to and 

did pay the debt collector $212 by credit card over the phone. Id.

Noonkester then sued Defendants for several violations of the Fair Debt Collection 

Practices Act (“FDCPA”) and Texas Finance Code, and alternatively pleading that Defendants 

were liable for the tort of intrusion upon seclusion. Id. Noonkester claims that “[t]he debt 

collector’s intimidation tactics caused Plaintiff anxiety, worry, and emotional distress.” Id. He also 

asserts that the communications with his nephew and wife caused him “severe embarrassment and 

strained his familial relations.” Id. at 9. Finally, he alleges monetary harm as a result of the $212 

he paid to the debt collector over the phone. Id. at 19. 

On July 8, 2022, Defendants offered Noonkester an Offer of Judgment under Federal Rule 

of Civil Procedure 68 in the amount of $2,000. ECF No. 73 at 1. Noonkester did not accept the 

offer. Id. On June 27, 2023, after a court-ordered settlement conference, Defendants made a new 

Offer of Judgment, and Noonkester accepted the offer. ECF No. 72. Noonkester and Defendants

agreed to leave Noonkester’s claim for attorney’s fees open for the Court’s determination. Id. Nine 

Case 4:22-cv-00223-O Document 84 Filed 07/27/23 Page 2 of 7 PageID 1274
3

days later Defendants filed the Motion. ECF No. 73. In it, they seek dismissal under Federal Rule 

of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction, arguing mootness. Id.

Specifically, Defendants claim that their earlier Rule 68 Offer of Judgment, even though not 

accepted, offered everything that Noonkester could possibly recover from his lawsuit, rendering 

his claims moot. Id. The Motion is now ripe for review. 

II. LEGAL STANDARDS

A. 12(b)(1) Motion to Dismiss 

Rule 12(b)(1) allows dismissal based on lack of subject matter jurisdiction. Fed. R. Civ. P. 

12(b)(1). If a federal court lacks subject matter jurisdiction, it must dismiss the complaint. Fed. R. 

Civ. P. 12(h)(3). The burden of proof in establishing subject matter jurisdiction is on the party 

bringing a case in federal court. Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001) 

(citing McDaniel v. United States, 899 F. Supp. 305, 307 (E.D. Tex. 1995)). The court properly 

dismisses the case if a plaintiff fails to establish subject matter jurisdiction “when the court lacks 

the statutory or constitutional power to adjudicate the case.” CleanCOALition v. TXU Power, 536

F.3d 469, 473 (5th Cir. 2008) (quoting Home Builders Ass’n of Miss., Inc. v. City of Madison, 143 

F.3d 1006, 1010 (5th Cir. 1998)).

B. Article III Mootness

Article III of the Constitution limits federal court jurisdiction to “cases” and 

“controversies.” U.S. Const., Art. III, § 2. The courts have interpreted this requirement to demand 

that “an actual controversy ... be extant at all stages of review, not merely at the time the complaint 

is filed.” Arizonans for Official English v. Arizona, 520 U.S. 43, 67 (1997) (quoting Preiser v.

Newkirk, 422 U.S. 395, 401 (1975)). “If an intervening circumstance deprives the plaintiff of a 

‘personal stake in the outcome of the lawsuit,’ at any point during litigation, the action can no 

Case 4:22-cv-00223-O Document 84 Filed 07/27/23 Page 3 of 7 PageID 1275
4

longer proceed and must be dismissed as moot.” Genesis Healthcare Corp., 569 U.S. 66, 72 (2013) 

(quoting Lewis v. Continental Bank Corp., 494 U.S. 472, 477-478 (1990)). A case becomes moot, 

however, “only when it is impossible for a court to grant any effectual relief whatever to the 

prevailing party.” Knox v. Service Employees, 567 U.S. 298, 308 (2012). “As long as the parties 

have a concrete interest, however small, in the outcome of the litigation, the case is not moot.” 

Chafin v. Chafin, 568 U.S. 165, 172 (2013) (internal quotation marks omitted). To determine if a 

Rule 68 Offer of Judgment renders a claim moot, the Court thus must determine if the offer 

provided complete relief to the plaintiff. Mabary v. Hometown Bank, N.A., 276 F.R.D. 196, 201

(S.D. Tex. 2011)

Further, the Fifth Circuit recognizes “an exception to the general principle of mootness in 

instances where some issues of a case have become moot but the case as a whole remains alive 

because other issues have not become moot.” La. Env't Action Network v. EPA, 382 F.3d 575, 581 

(5th Cir. 2004). The Court assesses mootness by claim, not by case. Masters v. Wells Fargo Bank

S. Cent., N.A., No. A-12-CA-376-SS, 2013 WL 3713492, at *4 (W.D. Tex. July 11, 2013). So 

when a plaintiff requests several forms of relief and one of these requests becomes moot, the court 

still considers the remaining requests. Woodruff v. Caris MPI, Inc., No. 21-11249, 2022 WL 

4534987, at *2 (5th Cir. Sept. 28, 2022); see also University of Texas v. Camenisch, 451 U.S. 390, 

394 (1981) (acknowledging “another instance in which one issue in a case has become moot, but 

the case as a whole remains alive because other issues have not become moot.”); Hinkley v. Envoy

Air, Inc., 968 F.3d 544, 548 (5th Cir. 2020) (citation omitted) (“[R]esolution of a particular issue 

may be moot even if other issues on appeal remain ripe.”)

Case 4:22-cv-00223-O Document 84 Filed 07/27/23 Page 4 of 7 PageID 1276
5

III. ANALYSIS

A. An unaccepted Rule 68 offer does not render a case moot. 

Defendants argue in their Motion that Noonkester’s claims are moot because their first 

offer of judgment, which Noonkester rejected, provided him “everything he could possibly recover 

from his lawsuit.” ECF No. 73 at 3. Because the case is moot, they say, the Court lacks subject 

matter jurisdiction and must dismiss the case. Id. Noonkester contends that the Court must look to 

the merits, and that the first offer of judgment did not give him all of the relief that he was seeking. 

ECF No. 74 at 2-6. Noonkester cites Campbell-Ewald v. Gomez, 577 U.S. 153 (2016), to support 

his claim that the Court does have subject matter jurisdiction and that it should deny the Motion.

ECF No. 74 at 7. In their Reply, Defendants argue that Campbell-Ewald is a limited holding in a 

class action case and does not apply here. ECF No. 75 at 1-2. 

Defendants are correct that Campbell-Ewald was a class action case, but the Court’s 

discussion of Rule 68 was not limited to class actions. Campbell-Ewald, 577 U.S. at 160–61. The 

Court held that under basic principles of contract law, a Rule 68 offer of judgment, once rejected, 

has no continuing effect. Id. at 163; see also Genesis Healthcare, 569 U.S. 66, 72 (2013) (Kagan, 

J., dissenting). “Absent acceptance, a settlement offer remains only a proposal, binding on neither 

party.” Campbell-Ewald, 577 U.S. 153 at 163. The Court also noted that Rule 68 hardly supports 

the argument that an unaccepted settlement offer can moot a complaint. Id. “An offer of judgment

‘is considered withdrawn’ if not accepted within 14 days of its service.” Campbell-Ewald, 569 

U.S. at 163 (citing Rule 68(a)-(b)). 

Here, Defendants argue that Campbell-Ewald is not controlling because it was a class 

action case, yet they cite Masters to support their argument that the July 2022 offer satisfied the 

entirety of Noonkester’s claims. ECF No. 75 at 1-3; Masters, No. A-12-CA-376-SS, 2013 WL 

Case 4:22-cv-00223-O Document 84 Filed 07/27/23 Page 5 of 7 PageID 1277
6

3713492, at *4. Masters also was a putative class action case from 2013, which relied on Fifth 

Circuit law and was decided three years before the decision in Campbell-Ewald. Thus, Defendants’

argument on mootness relies on an outdated class action case. Noonkester did not accept

Defendants’ first offer in July 2022. ECF No. 73 at 1. As a result, “[b]oth [parties] retained the 

same stake in the litigation they had at the outset.” Campbell-Ewald, 577 U.S. at 154. Because the 

Rule 68 Offer was no longer operative, the parties remained adverse, and Noonkester’s claims are 

not moot. Woodruff, No. 21-11249, 2022 WL 4534987, at *2.

B. Noonkester has not obtained complete relief because the issue of attorney’s 

fees remains in dispute. 

Even if a discussion of the merits were required, Defendants cannot show that Noonkester 

has received “the entirety of [his] claims” as required. ECF No. 75 at 2; Mabary, 276 F.R.D. at

201. The Motion states that the Offer of Judgment “left the issue of attorney fees for the Court to 

decide.” ECF No. 73 at 1. At the time of this Motion, Defendants anticipated that Noonkester 

would apply for attorney’s fees in excess of $100,000, which they would “vigorously oppose.” Id. 

Noonkester has since filed a Motion for Atttorney Fees and Costs (ECF No. 77), and Defendants 

have filed a Response and Appendix in Opposition (ECF Nos. 80, 81). Because Noonkester’s 

claims for attorney’s fees still are still in dispute, he has not received the complete relief he sought 

when filing suit, and Judge O’Connor should not dismiss the case due to mootness. 

IV. CONCLUSION

The Supreme Court has held that an unaccepted Offer of Judgment under Rule 68 does not 

per se render a plaintiff’s claims moot. The parties here have not settled the issue of Noonkester’s 

attorney’s fees, and Noonkester’s case therefore is not moot. Accordingly, the undersigned 

RECOMMENDS that Judge O’Connor DENY the Motion (ECF No. 73).

A copy of these findings, conclusions, and recommendation shall be served on all parties 

Case 4:22-cv-00223-O Document 84 Filed 07/27/23 Page 6 of 7 PageID 1278
7

in the manner provided by law. Any party who objects to any part of these findings, conclusions, 

and recommendation must file specific written objections within 14 days after being served with 

a copy. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2). To be specific, an objection must 

identify the particular finding or recommendation to which objection is made, state the basis for 

the objection, and specify the place in the magistrate judge’s findings, conclusions, and 

recommendation where the disputed determination is found. An objection that merely incorporates 

by reference or refers to the briefing before the magistrate judge is not specific. Failure to file 

specific written objections will bar the aggrieved party from appealing the factual findings and 

legal conclusions of the magistrate judge that are accepted or adopted by the district court, except 

upon grounds of plain error. See Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1417 (5th 

Cir. 1996) (en banc).

SIGNED on July 27, 2023. 

____________________________________

Hal R. Ray, Jr.

UNITED STATES MAGISTRATE JUDGE

Case 4:22-cv-00223-O Document 84 Filed 07/27/23 Page 7 of 7 PageID 1279