J.C. Penney Text Message Class Action Lawsuit Will Continue

A California federal judge has refused to dismiss a class action lawsuit alleging that J.C. Penney Co. violated the Telephone Consumer Protection Act (TCPA) by sending unsolicited text messages to consumers.

Plaintiff Tracy Maier filed the text spam class action lawsuit in January 2013 because J.C. Penney allegedly sent text messages to her cellphone even though she had not given the company her permission to do so, as is required by the federal law. The department store then offered Maier a judgment of complete relief based on her individual claims according to the Federal Rule of Civil Procedure 68, but Maier did not agree to the offer.

J.C. Penney argued that Judge Janis L. Sammartino should dismiss the text message class action lawsuit because Maier had denied the offer of complete relief, but the federal judge cited a decision from the 9th U.S. Circuit Court of Appeals in October 2013 regarding Diaz v. First American Home Buyers Protection Corp., which stated that “an unaccepted Rule 68 offer that would have fully satisfied a plaintiff’s claims does not render that claim moot.”

J.C. Penney argued that Judge Sammartino should not view the 9th Circuit’s decision in the Diaz case as binding. Judge Sammartino disagreed.

“First, defendants maintain that this case is factually distinguishable from Diaz because the offer of judgment made by the defendant in that case provided that, if not accepted, the offer would become ‘null and void, and be deemed withdrawn,'” the judge explains in her Jan. 22 ruling. However, J.C. Penney’s “offer of judgment in this case includes no such language.”

Sammartino deemed the argument unpersuasive, saying that the appellate court “did not rely on the specific language of the defendant’s offer in it’s analysis.”

The second reason Judge Sammartino says that the 9th Circuit’s decision should not be considered binding is because even though J.C. Penney argues that “this case falls within an exception apparently recognized by Diaz providing a court discretion to ‘halt a lawsuit by entering judgement for plaintiff when the defendant unconditionally surrenders and only the plaintiff’s obstinacy or madness prevents her from accepting total victory,'” Diaz does not elaborate “on the contours of this exception.”

Ultimately, J.C. Penney tries to argue that the Diaz decision was wrong and the company says that it intends “to seek a change in the law through an interlocutory appeal to the Ninth Circuit and if necessary, a petition for writ of certiorari to the U.S. Supreme Court.”

Sammartino says that the court must follow the “rule of law set forth in Diaz,” and for this reason denies J.C. Penney’s request to dismiss the class action lawsuit.

This is the second unsuccessful attempt by J.C. Penney to dismiss the case. A federal judge rejected the retailer’s bid to dismiss the J.C. Penney text class action lawsuit in June 2013.

The plaintiff is represented by Ronald A. Marron, Skye Resendez and Alexis Wood of Law Offices of Ronald A. Marron APLC, and by Douglas J. Campion.

The J.C. Penney Text Message Class Action Lawsuit is Tracy Maier v. J.C. Penney Corp. Inc., Case No. 3:13-cv-00163, in the U.S. District Court for the Southern District of California.

If you or someone you know receives unsolicited faxes, phone calls, or text messages, legal options are available. Learn more and get a free legal consultation regarding a claim’s eligibility at the Text Message Spam, Cell Phone Call TCPA Class Action Lawsuit Settlement Investigation. Experienced legal professionals are available to determine if you have case, so act now.