JAMES B. ZAGEL, United States District Judge
On January 25, 2002, Brighton and Nextel entered into an agreement under which Brighton agreed to license to Nextel the non-exclusive use of its premises so that Nextel could install, maintain, service, and operate panel antennas at the top of the building for its fiberoptic and wireless communications system. Under the agreement, Nextel had the right to terminate the license only after the commencement of the first renewal term. Furthermore, upon a non-monetary default by Nextel, Brighton could revoke the license and/or purse any remedies to which it may be legally entitled unless Nextel cured its default and continued to proceed with reasonable diligence within 30 days of written notice sent to Nextel. Such a default occurred on April 30 when Nextel told Brighton that it was terminating the agreement. On May 2, Brighton responded that it would not consider an early termination of the agreement and that it would "file a declaratory action against the Licensee if the Licensee is not willing to affirm the License Agreement in writing, or to settle the matter by making Brighton whole under the License Agreement." Nextel did not attempt to cure within 30 days of this letter. On September 19, Brighton filed suit against Nextel on behalf of itself and a class of all other property owners similarly situated. On October 31, Nextel attempted to settle the case by ratifying and affirming the original agreement. When Brighton refused to accept this offer, Nextel moved for summary judgment on mootness grounds, arguing that it had offered to pay all the damages due to Brighton.
Federal courts may only entertain actual cases or controversies. Holstein v. City of Chicago, 29 F.3d 1145, 1147 (7th Cir. 1994). Thus, once the defendant has offered to make the plaintiff whole, the lawsuit may not proceed. Id. Here, Nextel was required to cure its default and continue to proceed with reasonable diligence within 30 days of the notice it received from Brighton. Having failed to do so, Nextel may owe Brighton more than simple "ratification" and "affirmation" of the agreement. In fact, Brighton's complaint seeks $81,440 in individual monetary damages, aside from incurred costs and/or reasonable attorneys' fees. Therefore, Nextel's October 31 letter in which it "ratifies and affirms" the agreement is not "an offer of the entire relief sought" by Brighton individually. Griesz v. Household Bank, 176 F.3d 1012, 1015 (7th Cir. 1999). In fact, that is how this case differs from Holstein, where the defendant determined that money was indeed owed to the plaintiff and tried to refund these funds but the plaintiff refused. Holstein, 29 F.3d at 1146. Under traditional mootness principles, it was clear that the case could not remain alive before the District Court: "Grove may not spurn this offer of all the damages he is owed and proceed to trial." Id. at 1147. That is not the case here where Brighton has not been offered individually all the damages to which it may be owed, regardless of any class action issues.
I do not interpret the phrase "ratifies and affirms" to be a firm and clear settlement offer from Nextel to pay Brighton $81,440 in damages, as required under the agreement.
Although not determinative to this decision, I respectfully disagree with the conclusion in Asch v. Teller, Levit Silvertrust, 200 F.R.D. 399, 400 (N.D.Ill. 2000) that Griesz is "arguably inconsistent" with Holstein. As Nextel correctly notes, Griesz supports Holstein's holding that an effort to moot a claim by making the plaintiff whole is premature in the class context "unless the offer comes before class certification is sought, Holstein v. City of Chicago, supra, 29 F.3d at 1147, and so before the existence of other potential plaintiffs has been announced." Id. (emphasis added). Thus, Griesz affirms that a commitment to make the plaintiff whole before class certification is sought requires dismissal for mootness. The mere filing of a complaint purportedly on behalf of a class does not preclude the possibility of mooting a claim until class certification is requested and subsequently denied. Such a conclusion belies the actual result in Holstein where although a class action complaint had been filed, the named plaintiff's claim was rendered moot and thus dismissed before a decision was ever rendered on the certifiability of a class. A plaintiff must actually seek (i.e., move for) class certification in order to avoid application of the mootness doctrine.
Therefore, Defendant's Motion for Summary Judgment on Grounds of Mootness is DENIED.