Case: 12-41161      Document: 00512457474         Page: 1     Date Filed: 12/02/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit

                                                                                   FILED
                                      No. 12-41161                          December 2, 2013
                                                                              Lyle W. Cayce
DONALD W. THOMAS                                                                   Clerk


                                                 Plaintiff-Appellant,
v.

MAMASO, INCORPORATED, doing business as Maso’s Texaco,

                                                 Defendant-Appellee




                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 4:10-CV-229


Before JOLLY, DeMOSS, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       On May 3, 2010, Appellant Donald Thomas filed suit under the
Electronic    Funds     Transfer     Act   (“EFTA”)      against    Appellee       Mamaso,
Incorporated (“Mamaso”) in the United States District Court for the Eastern
District of Texas.      At the time Thomas filed suit, the EFTA required an
operator of an automated teller machine (“ATM”) charging a service fee to
display a “prominent and conspicuous” notice “on or at” the machine informing
the user of the fee. See 15 U.S.C. § 1693b(d)(3)(B), amended by Act of Dec. 20,


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 12-41161
2012, Pub.L. No. 112-216, 126 Stat. 1590.           This “on-machine” notice
requirement was in addition to the familiar “on-screen” fee notification and has
since been repealed. Id.; see also Charvat v. Mut. First Fed. Credit Union, 

, 821 (8th Cir. 2013) (discussing the EFTA before and after the recent
amendments); Hughes v. Kore of Ind. Enter., Inc., 

, 674 (7th Cir.
2013) (same).    A consumer charged a service fee by an ATM lacking the on-
machine notice could maintain an individual action against the operator of the
ATM for any actual damages and between $100 and $1,000 in statutory
damages. 15 U.S.C. § 1693m(a). A class of consumers could recover up to the
lesser of $500,000 or 1% of the operator’s net worth. 

complaint alleged that an ATM located in a gas station
owned by Mamaso charged him a $2.00 service fee while lacking the then-
required on-machine notice. The complaint also alleged that Mamaso was the
“operator” of the ATM under 12 C.F.R. § 205.16(a). Thomas asserted an EFTA
claim individually and on behalf of a purported class of consumers who had
used the ATM.
      Mamaso answered and denied that it was the operator of the ATM. In
response, Thomas amended his complaint to name the company that serviced
the ATM, Cash Technologies of America, Inc. (“CTA”), as the defendant.
Thomas then settled with CTA for $10,000. After executing the settlement
agreement with CTA, Thomas amended his complaint again to “re-name”
Mamaso as the defendant. Mamaso moved for summary judgment, asserting
that because Thomas had already received a full recovery from CTA on his
EFTA claim, Thomas’s individual and class-action claims against Mamaso
were moot.      The district court agreed and granted Mamaso’s motion for
summary judgment. Thomas appeals.
      “As a general principle, a purported class action becomes moot when the
personal claims of all named plaintiffs are satisfied and no class has been
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                                  No. 12-41161
certified.” Murray v. Fidelity Nat’l Fin., Inc., 

, 421 (5th Cir. 2010).
Although Thomas raises a number of arguments on appeal as to why the CTA
settlement did not satisfy his individual EFTA claim, he did not present any of
those arguments to the district court. Accordingly, he has waived the issue.
Martco Ltd. P’ship v. Wellons, Inc., 

, 877 (5th Cir. 2009).
      No class had been certified at the time of the CTA settlement. In fact,
Thomas did not move for class certification until well after Mamaso filed its
motion for summary judgment. Nonetheless, Thomas argues that under the
relation back doctrine, his settlement with CTA did not render his class action
claim moot.
      The relation back doctrine generally provides that a defendant to a
purported class action cannot “pick off” the named plaintiff early in the case by
offering to satisfy his individual claims and thereby moot the class action
before the plaintiff has the opportunity to obtain class certification. Weiss v.
Regal Collections, 

, 347 (3d Cir. 2004). While the precise contours
of the relation back doctrine remain ill-defined, courts applying the doctrine
have distinguished between situations where the defendant attempts to force
mootness by offering to settle with the named plaintiff for the full amount of
his claim before the time for moving for class certification has expired and
those where the named plaintiff voluntarily accepts a full settlement offer
before filing a motion for class certification. See 

; see
also Sandoz v. Cingular Wireless LLC, 

, 920 (5th Cir. 2008).
Because Thomas’s voluntary settlement with CTA falls into the latter category,
the district court correctly held that the relation back doctrine did not apply
and that Thomas’s settlement with CTA therefore mooted his EFTA action.
      For the foregoing reasons, the judgment of the district court is
AFFIRMED.


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