IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

MAHALA A. CHURCH, individually )

and on behalf of all similarly situated )

individuals, )

 )

Plaintiff, ) CIVIL ACTION 14-0057-WS-B

)

v. )

 ) PUBLISH

ACCRETIVE HEALTH, INC., aka, dba, )

MEDICAL FINANCIAL SOLUTIONS, )

 )

Defendant. )

ORDER

This matter comes before the Court on Plaintiff’s Motion for Class Certification (doc. 14) 

and “Motion to Enter Plaintiff’s Motion for Class Certification, then Stay Further Consideration 

of the Same” (doc. 15).

Plaintiff, Mahala A. Church, filed her Complaint (doc. 1) against Accretive Health, Inc., 

in this District Court on February 11, 2014. The Complaint alleges certain violations of the Fair 

Debt Collection Practices Act, 15 U.S.C. § 1692 (“FDCPA”), as well as willful violations of 

Church’s discharge in bankruptcy. Importantly, Church’s Complaint frames this case as a 

putative class action. Church seeks to litigate her claims on behalf of a class of residents of the 

United States who received a similar Accretive collection letter to that received by Church, as 

well as a subclass of residents of the Southern District of Alabama who received such an 

Accretive collection letter despite the underlying debt having been discharged in bankruptcy. To 

date, no scheduling order has been entered, and no discovery deadlines have been set; indeed, the 

parties have not even conducted a Rule 26(f) conference, much less submitted the accompanying 

report of parties’ planning meeting. This action remains squarely in the starting blocks.

On April 22, 2014, prior to defendant’s filing of a responsive pleading or the 

commencement of formal discovery, Church filed a barebones two-page Motion for Class 

Certification, plus a contemporaneous Motion to Stay consideration of that Motion for Class 

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Certification. In the Motion to Stay, Church requests that the Court accept the Rule 23 Motion 

for filing, then stay briefing or consideration of it “until appropriate discovery has been 

conducted.” (Doc. 15, at 1.) In essence, then, Church asks the Court to accept the Motion for 

Class Certification as a mere placeholder, an empty vessel into which plaintiff might pour 

substance and content (assuming the evidence gathered in discovery supports it) many months 

from now after appropriate class discovery has taken place. As grounds for this request, Church 

relies on Seventh Circuit authority opining that “[c]lass-action plaintiffs can move to certify the 

class at the same time that they file their complaint ... then they can also ask the district court to 

delay its ruling to provide time for additional discovery or investigation.” Damasco v. Clearwire 

Corp., 662 F.3d 891, 896 (7th Cir. 2011). On that basis, Church asks this Court “not to rule on 

this [Rule 23] Motion until such time as the parties have had an adequate opportunity to conduct 

discovery and submit appropriate memoranda of law on the issue of class certification.” (Doc. 

15, at 2.) 

 The Court understands, but does not find persuasive, the concern that prompted Church 

to file her Motion for Class Certification and Motion to Stay at the outset of this litigation, well

before the first morsel of discovery has changed hands and well before she has collected the facts 

on which she intends to rely in that Rule 23 Motion. The rule in the Seventh Circuit is that “a 

defendant can render moot a possible class action by offering to settle for the full amount of the 

plaintiff’s demands before the plaintiff files a motion for class certification.” McMahon v. LVNV 

Funding, LLC, 744 F.3d 1010, 1018 (7th Cir. 2014). This rule, however, spawned fears by the 

plaintiffs’ bar that defendants might “pick off” or “buy off” a putative class representative via 

unaccepted offer of judgment, thereby mooting a class action before the plaintiff had been able to 

complete the necessary discovery to file a Rule 23 motion. To allay these fears, the Seventh 

Circuit noted “that there is a simple solution for a putative class representative who wishes to 

avoid mootness or buy-off: move to certify the class at the same time that the complaint is filed.” 

McMahon, 744 F.3d at 1018. “If 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.” Damasco, 662 F.3d at 896. Church’s filings thus adhere 

closely to the Damasco / McMahon playbook. 

 All of this might be compelling if this Court were situated in the Seventh Circuit, if the 

law of the Seventh Circuit governed this proceeding, or if the Seventh Circuit approach 

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constituted either a majority rule or one as to which the Eleventh Circuit had expressed favor. 

This is not the case. In fact, the Seventh Circuit acknowledged the uniqueness of its formulation 

of the mootness rule in pick-off situations, and that “[o]ther circuits use a more flexible rule, 

under which the would-be representative need only file for class certification without undue 

delay after receiving an offer to settle.” McMahon, 744 F.3d at 1018.1 Plaintiff identifies neither

 1 Those circuits include, at least, the Third, Fifth, Ninth and Tenth Circuits. See 

Pitts v. Terrible Herbst, Inc., 653 F.3d 1081, 1091-92 (9th Cir. 2011) (“[W]e hold that an 

unaccepted Rule 68 offer of judgment – for the full amount of the named plaintiff’s individual 

claim and made before the named plaintiff files a motion for class certification – does not moot a 

class action. If the named plaintiff can still file a timely motion for class certification, the named 

plaintiff may continue to represent the class until the district court decides the class certification 

issue.”) (footnote omitted); Lucero v. Bureau of Collection Recovery, Inc., 639 F.3d 1239, 1250 

(10th Cir. 2011) (“[W]e hold that a named plaintiff in a proposed class action for monetary relief 

may proceed to seek timely class certification where an unaccepted offer of judgment is tendered 

in satisfaction of the plaintiff’s individual claim before the court can reasonably be expected to 

rule on the class certification motion.”); Sandoz v. Cingular Wireless LLC, 553 F.3d 913, 920-21 

(5th Cir. 2008) (holding in context of FLSA collective action that when plaintiff “files a timely 

motion for certification ..., that motion relates back to the date the plaintiff filed the initial 

complaint, particularly when one of the defendant’s first actions is to make a Rule 68 offer of 

judgment”); Weiss v. Regal Collections, 385 F.3d 337, 348 (3rd Cir. 2004) (“Absent undue delay 

in filing a motion for class certification, ... where a defendant makes a Rule 68 offer to an 

individual claim that has the effect of mooting possible class relief asserted in the complaint, the 

appropriate course is to relate the certification motion back to the filing of the class complaint.”). 

Many (albeit not all) district courts in other jurisdictions have adopted a similar approach. See, 

e.g., Neurocare Institute of Central Florida, P.A. v. Healthtap, Inc., --- F. Supp.2d ----, 2014 WL 

1236062, *3 (M.D. Fla. Mar. 25, 2014) (where plaintiff files timely motion for class 

certification, and has otherwise fulfilled duty to pursue class certification diligently, Rule 23 

motion relates back to the filing of the complaint, such that offer of judgment preceding Rule 23 

motion does not moot entire case); March v. Medicredit, Inc., 2013 WL 6265070, *3 (E.D. Mo. 

Dec. 4, 2013) (finding that while one district court had recently followed the Seventh Circuit 

rule, “the majority of district courts in this Circuit addressing this issue have rejected the 

mootness argument in the class action context”); White v. Ally Financial Inc., --- F. Supp.2d ----, 

2013 WL 164156, *6 (S.D. W.Va. Jan. 15, 2013) (“I HOLD today that a defendant’s complete 

offer of judgment to a named plaintiff in a putative class action prior to a motion for class 

certification does not moot the putative class action, as long as the motion for class certification 

is ultimately filed without undue delay.”); Kensington Physical Therapy, Inc. v. Jackson Therapy 

Partners, LLC, 880 F. Supp.2d 689, 694 (D. Md. 2012) (“The Court finds persuasive holdings of 

courts that have employed the relation back doctrine to allow class action claims to go forward 

where no certification motion is pending and the plaintiff has received an offer of complete 

relief.”); Mullinax v. United Marketing Group, LLC, 2011 WL 4085933, *4 (N.D. Ga. Sept. 13, 

2011) (concluding that “when a Rule 68 offer has been made and rejected prior to the time that a 

class certification is due to be filed per the scheduling order, the relation back doctrine applies 

(Continued)

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argument nor authority suggesting that the Eleventh Circuit is likely to follow Damasco / 

McMahon, as opposed to the more relaxed approach of at least four other sister circuits. 

Moreover, plaintiff does not show that, even if the Eleventh Circuit were to embrace Damasco, 

she would be harmed unless she were allowed to lodge her “placeholder” Rule 23 Motion now. 

Even today, district courts in the Seventh Circuit appear to operate under the premise that “a 

plaintiff may avoid mooting its claims if it moves for class certification within the fourteen-day 

(formerly ten-day) period provided in Rule 68 for responding to offers of judgment.” Gonon v. 

Allied Interstate, LLC, 286 F.R.D. 405, 409 (S.D. Ind. 2012). More fundamentally, plaintiff 

offers no basis for suspecting that Accretive is somehow predisposed to engage in the universally 

condemned tactic of “picking off” the named plaintiff via Rule 68 offer of judgment in an effort 

to sabotage the Rule 23 issue from ever reaching the fore. Even if it did, it appears quite possible 

(and indeed likely) that an unaccepted Rule 68 offer of judgment would not moot Church’s

individual claims at all, thereby obviating the question of whether a Rule 23 motion must predate 

an offer of judgment to avoid mooting the entire action.2

 

and the action is not deemed to be moot”); Liles v. American Corrective Counseling Services, 

Inc., 201 F.R.D. 452, 455 (S.D. Iowa 2001) (“Hinging the outcome of [a motion to dismiss] on 

whether or not class certification has been filed is not well-supported in the law nor sound

judicial practice.”).

2 In particular, a stern dissent authored by Justice Kagan and joined in by three 

other justices last year cast considerable doubt on the notion that a plaintiff’s claim may be 

deemed moot by virtue of an unaccepted offer of judgment in the first place. Genesis Healthcare 

Corp. v. Symczyk, --- U.S. ----, 133 S.Ct. 1523, 1534, 185 L.Ed.2d 636 (2013) (“So a friendly 

suggestion to the Third Circuit: Rethink your mootness-by-unaccepted-offer theory. And a note 

to all other courts of appeals: Don’t try this at home.”) (Kagan, J., dissenting). Although Justice 

Kagan’s opinion in Scymczyk was a dissent, her discussion of the mootness issue “conflicts with 

nothing in the Court’s opinion” because the majority simply “assume[d], without deciding, the 

mootness of Symczyk’s individual claim” in order to reach the narrow FLSA issue as to which 

certoriari had been granted. Id. (internal quotation marks omitted). Accordingly, at least four 

sitting U.S. Supreme Court Justices support the proposition that an unaccepted Rule 68 offer of 

judgment does not moot an individual plaintiff’s claims, and there is no indication that the other 

five disagree. If Justice Kagan is correct, then the entire rationale underlying Church’s 

premature Rule 23 Motion (i.e., her lawyer’s fear that Accretive will make an offer of judgment 

that will bounce the whole case out of court, even if she rejects the offer) evaporates.

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As the foregoing discussion demonstrates, there is precious little reason to believe that 

the two-step dance Church proposes here (file a generic Rule 23 Motion at the outset of the case, 

then stay it for many months until class discovery concludes and comprehensive briefs are

prepared) is grounded in any justifiable fear that the entire class action may be ripped away from 

her absent such a preventive measure. The premise that a Rule 68 offer of judgment moots a 

class action in the absence of a prior Rule 23 motion is a decidedly minority view. The Eleventh 

Circuit has not accepted it. Plaintiff offers no indication that the Eleventh Circuit would ever be 

inclined to adopt it, as indeed most other federal courts have not. Even district courts in the 

Seventh Circuit (which propounded that minority review) appear to allow the continued safety 

hatch of a two-week window after an offer of judgment is made for the plaintiff to file a class 

certification motion. There is no evidence and no reason to believe that Accretive will engage in 

such a frowned-upon “picking off” strategy here. And the underlying principle that any offer of 

judgment for complete relief would moot Church’s claims even if she did not accept it has 

recently faced a withering attack from four U.S. Supreme Court Justices, with no rebuttal from 

the others. For all of these reasons, the Court concludes that Church’s “placeholder” Motion for 

Class Certification is highly unlikely to confer any meaningful benefit or protection on plaintiff.

On the other side of the ledger, Church’s course of action comes with a cost. The court 

file is burdened with an obviously premature Rule 23 Motion that is devoid of content. Clerk’s 

Office staff would be required to track, monitor and report the motion for many months as it sits 

idly, collecting dust, while the plaintiff gathers information via discovery to populate the motion 

with actual substance. In addition to this administrative cost, plaintiff’s actions promote 

inefficiency and waste. Not only is it premature, but the Rule 23 Motion filed now may prove 

unnecessary because plaintiff may think better of pursuing such a motion based on the results of 

discovery. Yet plaintiff advocates a system in which litigants race to the courthouse to file 

empty, placeholder motions that may or may not ever be litigated, and that are neither required 

nor encouraged by the Federal Rules of Civil Procedure. See Weiss v. Regal Collections, 385 

F.3d 337, 347 (3rd Cir. 2004) (federal rules do not “require or encourage premature certification 

determinations”). Such a proposal contravenes the spirit of federal practice, and raises 

significant concerns as to efficiency and judicial economy.

In the end, the balance is clear. Plaintiff’s straight-out-of-the-chute Rule 23 Motion is 

highly unlikely to advance her cause one iota, but is virtually certain to impose administrative 

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costs, unnecessary distractions, and an unhelpful drag on efficiency and judicial economy. For 

these reasons, plaintiff’s Motion to Enter Plaintiff’s Motion for Class Certification, then Stay 

Further Consideration of the Same (doc. 15) is denied. Because the Rule 23 Motion is not being 

stayed, plaintiff’s boilerplate Motion for Class Certification (doc. 14) is denied as premature and 

lacking specific factual or legal support; provided, however, that plaintiff is authorized to renew 

such motion at an appropriate time.

DONE and ORDERED this 24th day of April, 2014.

s/ WILLIAM H. STEELE 

CHIEF UNITED STATES DISTRICT JUDGE

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