Court Lets Plaintiff Revive Mooted Claims In Second Action Against Same Defendants

The Eastern District of New York recently denied a motion to dismiss and found that the plaintiff's claims were not precluded by a different court's ruling that the same claims against the same defendants had been mooted by an offer of judgment. See Bank v. Spark Energy Holdings, No. 13-6130, 2014 U.S. Dist. LEXIS 84493 (E.D.N.Y. June 20, 2014); Bank v. Spark Energy Holdings, No. 11-4082, 2013 U.S. Dist. LEXIS 150733 (S.D. Tex. Oct. 18, 2013).

The plaintiff alleges that he received telemarketing calls "using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party." 47 U.S.C. § 227(b)(1)(B). He first filed suit in the Southern District of Texas, where the defendants eventually made a Rule 68 offer of judgment. Although the plaintiff rejected that offer, the Texas court found that he no longer had a personal stake in the outcome of the litigation because he had been offered complete relief and had yet to move for