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Geismann v. ZocDoc, Inc.

United States District Court, S.D. New York

September 26, 2014

RADHA GEISMANN, M.D., P.C., on behalf of herself and others similarly situated, Plaintiff, -
v.
- ZOCDOC, INC., Defendant

Counsel Amended May 7, 2015.

FOR PLAINTIFF: Aytan Yehoshua Bellin, LEAD ATTORNEY, Bellin & Associates, White Plains, NY, Max G. Margulis, LEAD ATTORNEY, MARGULIS LAW GROUP, Chesterfield, MO, Brian J. Wanca, Ross M. Good, Ryan M. Kelly, ANDERSON & WANCA, Rolling Meadows, IL; Of Counsel.

FOR DEFENDANT: Bryan K. Clark, LEAD ATTORNEY, VEDDER AND PRICE, Chicago, IL; Matthew Allen Jacober, LEAD ATTORNEY, Lathrop & Gage LLP, Clayton, MI; Blaine C. Kimrey, VEDDER PRICE P.C., Chicago, IL; Of Counsel, Charles J. Nerko, VEDDER PRICE P.C., New York, NY.

Page 405

ORDER & JUDGMENT

LOUIS L. STANTON, United States District Judge.

Plaintiff Radha Geismann, M.D., P.C., brings this putative class action against defendant ZocDoc, Inc. (" ZocDoc" ) under the Telephone Consumer Protection Act (" TCPA" ), 47 U.S.C. § 227 et seq., alleging that ZocDoc sent her two unsolicited fax advertisements on July 24, 2012 and October 2, 2012 that did not contain the required opt-out notices.

Geismann filed the Complaint in Missouri state court on January 10, 2014. Dkt. No. 4. On the same day, Geismann also filed a motion for class certification. Dkt. No. 5. Defendant ZocDoc removed this action to the District Court for the Eastern District of Missouri under its diversity jurisdiction on March 13, 2014, Dkt. 1, and made a Rule 68 offer of judgment to Geismann on March 27, 2014. Clark Dec. Ex. 1 at 3.

On August 26, 2014, the Eastern District of Missouri transferred this action to this district under 28 U.S.C. § 1404(a) and denied all pending motions as moot. Dkt. No. 32. Geismann filed an amended motion for class certification on August 28, 2014. Dkt. No. 36. ZocDoc moves to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted, arguing that ZocDoc's offer of judgment mooted Geismann's claims.

On March 27, 2014, ZocDoc had sent to Geismann an offer of judgment pursuant to Fed.R.Civ.P. 68 for $6,000, plus reasonable attorneys' fees as determined by the Court. That offer related solely to Geismann's individual claim, and would also enjoin ZocDoc from sending advertisement faxes to Geismann's fax number in violation of the TCPA. Clark Decl. Ex. 1 at 3.

The monetary damages Geismann can recover individually under the TCPA for two unsolicited faxes she received on July 24, 2012 and October 2, 2012 are limited to $1,000, which could be trebled to not more

Page 406

than $3,000 if the Court finds that it was a willful and knowing violation. ZocDoc's offer of judgment not only adds Geismann's attorneys' fees, but is twice the trebled amount, and thus more than satisfies any recovery Geismann could make under the applicable statute.

Geismann has rejected that offer and says she will not accept it unless the offer is extended to each member of the class. Clark Decl. Ex. 2 at 1.

But Geismann's rejection of that offer is immaterial, for the offer makes available to her all of the relief to which she would be entitled if she won her case. In Doyle v. Midland Credit Mgt., Inc.,722 F.3d 78, 80 (2d Cir. ...


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