Case: 13-13619        Date Filed: 12/01/2014       Page: 1 of 3


                                                                      [DO NOT PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              _______________________

                                      No. 13-13619
                                _______________________

                         D. C. Docket No. 9:12-cv-80577-KAM

BRIAN KEIM, on behalf of himself and all
others similarly situated,

                                                                   Plaintiff – Appellant,

                                             versus

ADF MIDATLANTIC, LLC; AMERICAN HUTS, INC.;
ADF PIZZA I, LLC; ADF PA, LLC,

                                                                   Defendants – Appellees.

                                _______________________

                      Appeal from the United States District Court
                          for the Southern District of Florida
                            ________________________

                                     (December 1, 2014)

Before MARTIN, Circuit Judge, and EATON, ∗ Judge, and HINKLE, ∗∗ District
Judge.


       ∗
          Honorable Richard K. Eaton, United States Court of International Trade Judge, sitting
by designation.
       ∗∗
           Honorable Robert L. Hinkle, United States District Judge for the Northern District of
Florida, sitting by designation
               Case: 13-13619     Date Filed: 12/01/2014       Page: 2 of 3


HINKLE, District Judge:

      The district court dismissed this proposed class action as moot after the

defendants served on the named plaintiff a Federal Rule of Civil Procedure 68

offer of judgment that the defendants say would have provided complete relief to

the named plaintiff individually. The named plaintiff did not accept the offer.

      We have today issued our opinion in Jeffrey Stein, D.D.S., M.S.D., P.A. v.

Buccaneers Ltd. Partnership, __ F.3d __, No. 13-15417 (11th Cir. ____, 2014).

There we held that a proposed class action like this one was not rendered moot by

an unaccepted Federal Rule of Civil Procedure 68 offer of complete relief to the

named plaintiffs, but not to class members. There, as here, the defendant served

the Rule 68 offer before the class was certified and indeed before the named

plaintiffs moved to certify the class. The decision is squarely on point and requires

reversal of the district court’s order dismissing this case.

      Indeed, this case presents a weaker case for dismissal than Stein. Here, as in

Stein, the complaint asserts a claim under the Telephone Consumer Protection Act.

See 47 U.S.C. § 227(b)(1)(C). Here, as in Stein, the complaint demands $500 for

each violation, trebled to $1,500 for willfulness. But in Stein, the defendant

offered a sum certain to each named plaintiff. Here, in contrast, the defendants

offered the named plaintiff $1,500 for each violation, that is, for each illegal text

message he allegedly received, without specifying a number. The record does not

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               Case: 13-13619     Date Filed: 12/01/2014     Page: 3 of 3


show how many messages the named plaintiff received. So the named plaintiff’s

individual claim would not have been moot even had he accepted the Rule 68

offer; there was still work to be done to get the case to the finish line.

      The defendants moved to dismiss the complaint on other grounds as well.

The district court did not address those grounds, nor do we. Because the Rule 68

offer mooted neither the named plaintiff’s individual claim nor the class claims, the

district court’s order dismissing the case is reversed.




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